Johnsen v. Honeywell International Inc.

Filing 83

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss Count 7 of Plaintiff's Second Amended Class Action Complaint is DENIED with regard to Plaintiffs misrepresentation claim under the MMP A and GRANTED with regard to Plaintiff's omission claim under the MMPA. Signed by District Judge Ronnie L. White on March 29, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SCOTT JOHNSEN, individually and on behalf
of others similarly situated,
Plaintiffs,
v.
HONEYWELL INTERNA TI ONAL INC.,
a Delaware corporation,
Defendant.

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No. 4:14CV594 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Honeywell International Inc.' s Motion to
Dismiss Count 7 of Plaintiffs Second Amended Class Action Complaint (ECF No. 49). The
motion is fully briefed and ready for disposition. Upon consideration of the motion and related
memoranda, the Court will grant Defendant's motion to dismiss in part and deny in part.

I. Background
The background of this case is fully set forth in this Court's Memorandum and Order of
February 12, 2015 and is incorporated herein. (ECF No. 40) In that Order, the Court construed
Defendant's Motion to Dismiss Count 7 as a Motion for More Definite Statement and ordered
Plaintiff to amend his complaint with regard to his claim under the Missouri Merchandising
Practices Act ("MMPA"). In Count 7 of the Second Amended Class Action Complaint, Plaintiff
alleges a violation of the MMPA, Mo. Rev. Stat. §§ 407.020, et seq., on behalf of himself and the
Missouri class. Plaintiff claims that he purchased two Honeywell Humidifiers which had a
defect in workmanship and material necessitating repeated repair and replacement. (Second Am.
Compl. ("SAC") 'if'il 139-40, ECF No. 43) Plaintiff contends that Defendant made false

promises, misrepresentations, and omissions of material facts regarding the advertisement and
sale of the Honeywell Humidifiers, causing Plaintiff and members of the Missouri Class to suffer
damages and losses. (Id. at iii! 141-47)
Specifically, Plaintiff alleges that he chose the Honeywell TrueSTEAM Humidifiers,
Model number HM506, based on Defendant's representations as to the quality and the warranty,
which created the expectation that the humidifiers would last for at least 5 years. (Id. at iii! 6263) However, the units failed, and Defendant first replaced the units without paying for
installation and then offered to send a contractor to service the units. (Id. at iii! 64-71) Plaintiff
spoke with a Honeywell representative in an attempt to obtain further support, but the individual
never followed up as promised. (Id. at if 71) Plaintiff alleges that Defendant affirmatively made
a false warranty representation that its humidifiers were free from defects in workmanship or
materials for 5 years from the date of purchase in violation of the MMP A. (Id. at if 144) In
addition, Plaintiff contends that Defendant concealed from purchasers that the humidifiers were
defective. (Id. at if 145) Plaintiff claims that he and the Missouri Class members have suffered
and continue to suffer damages and losses as a direct and proximate result of Defendant' s false
representations. (Id. at if 146)

In response, Defendant filed a Motion to Dismiss Count 7,

arguing that Plaintiff has failed to sufficiently plead a consumer fraud claim under the MMP A.
(ECFNo. 49)

II. Standard for Ruling on a Motion to Dismiss
A complaint must be dismissed under Federal Rule 12(b)(6) for failure to state a claim
upon which relief can be granted if the complaint fails to plead "enough facts to state a claim to
relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(abrogating the "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41 , 45-46

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(1957)). While the Court cautioned that the holding does not require a heightened fact pleading
of specifics, "a plaintiffs obligation to provide the 'grounds' of his 'entitle[ment] to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do." Id. at 555. In other words, "[f]actual allegations must be enough to raise
a right to relief above the speculative level .... " Id. This standard simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the claim. Id. at 556.
Courts must liberally construe the complaint in the light most favorable to the plaintiff
and accept the factual allegations as true. See Id. at 555; see also Schaaf v. Residential Funding
Corp. , 517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as
true all factual allegations in the complaint); Eckert v. Titan Tire Corp., 514 F .3d 801 , 806 (8th
Cir. 2008) (explaining that courts should liberally construe the complaint in the light most
favorable to the plaintiff). Further a court should not dismiss the complaint simply because the
court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations.
Twombly, 550 U.S. at 556. However, "[w]here the allegations show on the face of the complaint
there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v.
Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Courts "'are not
bound to accept as true a legal conclusion couched as a factual allegation."' Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). When considering a motion to
dismiss, a court can "begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth." Id. at 679. Legal conclusions must be
supported by factual allegations to survive a motion to dismiss. Id.

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III. Discussion
Defendant argues that Plaintiffs claim under the MMP A must be dismissed because
Plaintiff fails to plead an actionable deceptive practice with particularity. Specifically,
Defendant contends that the mere allegation of a breach of warranty is insufficient as a matter of
law to state a claim of consumer fraud under the MMP A. In addition, Defendant asserts that
Plaintiff fails to plead an omission-based MMP A claim because he fails to allege specific
information withheld from him, fails to allege the requisite scienter, and fails to allege that
Defendant owed him a duty to disclose additional information. In response, Plaintiff asserts that
he has sufficiently alleged an MMPA claim based on Defendant' s misrepresentations and
om1ss1ons.
"The MMPA is a broad statute, prohibiting ' [t]he act, use or employment by any person
of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or the
concealment, suppression, or omission of any material fact in connection with the sale or
advertisement of any merchandise in trade or commerce .... " ' Blake v. Career Educ. Corp., No.
4:08CV00821 ERW, 2009 WL 140742, at *2 (E.D. Mo. Jan. 20, 2009) (quoting Mo. Rev. Stat.§
407.020.1) In MMPA actions, courts apply the particularity requirements of Fed. R. Civ. P. 9(b)
pertaining to fraud. Id. (citations omitted). Under this heightened pleading requirement, "the
complaint must plead such facts as the time, place, and content of the defendant' s false
representations, as well as the details of the defendant' s fraudulent acts, including when the acts
occurred, who engaged in them, and what was obtained as a result." Mattingly v. Medtronic, Inc.
466 F. Supp. 2d 1170, 1174 (E.D. Mo. 2006) (citations omitted).
With regard to the MMPA specifically, "a plaintiff must fust show that he or she
purchased the merchandise in question; second, that he or she purchased the merchandise for

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personal, family, or household use; third, that he or she suffered an ascertainable loss; and fourth,
the ascertainable loss was the result of an unfair practice." Polk v. KV Pharm. Co., No. 4:09CV-00588 SNLJ, 2011 WL 6257466, at *4 (E.D. Mo. Dec. 15, 2011) (citing Mo. Rev. Stat. §
407.025(1)). Plaintiff asserts that he was induced to purchase two humidifiers for household use
based on Defendant' s representations regarding quality and the advertised five-year warranty.
He further states that the warranty response failed to resolve the problem because Defendant
simply replaced the defective units with the same defective model and then failed to respond to
subsequent warranty requests. Plaintiff contends he suffered a monetary loss when the units
failed, and the loss was a result of Defendant's unfair practice of omitting the material fact that
the humidifiers were defective and falsely claiming that they were free from defect in the
warranty.
The undersigned finds that, at the motion to dismiss stage, Plaintiff has stated a plausible
claim under the MMP A based upon the alleged false claims and misrepresentations made by
Defendant regarding the humidifiers. As stated in this Court's prior order, to satisfy the
heightened pleading requirements under Federal Rule of Civil Procedure 9(b) in an MMP A
claim, Plaintiff must identify the "who, what, where, when, and how" of the alleged fraud "to
allow Defendant to prepare a defense to the MMPA charges." Claston v. Kum & Go, L. C. No.
6:14-cv-03385, 2014 WL 6685816, at *7 (W.D. Mo. Nov. 26, 2014) (citations and internal
quotations omitted); see also Scanio v. Zale Delaware, Inc., No. 4:12CV37 CDP, 2012 WL
368741 , at *3 (E.D. Mo. Feb. 3, 2012) (finding that " [i]ncluding the time, place, contents, and
amount, even without the names of the specific individuals responsible for the fraud, can be
sufficient to satisfy the requirements of Rule 9(b)" where specific names of employees can be
obtained through discovery).

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Here, Plaintiff indicates that he purchased the two humidifiers around November 2008
for household use from Bill Survant of Survant Air Systems. (SAC iii! 61 , 139, 141c)
Additionally, he provides details regarding Defendant' s alleged refusal to provide further service
after four humidifier replacements, including a conversation with a Honeywell representative.

(Id. at iii! 64-71 , 141a-b, d-e)
The Court finds that Plaintiff has presented sufficient facts to allow the Defendant to
prepare a defense to the misrepresentation claim under the MMP A set forth in Count 7 of the
Second Amended Complaint. Plaintiff alleges the date of purchase, the dates of replacement, the
dates of contact, and statements from a Honeywell representative regarding the failure of the
humidifiers and the failure to provide further service. See, e.g., Stephens v. Arctic Cat Inc., No.
4:09CV02131AGF, 2012 WL 628867, at *1-*3 (E.D. Mo. Feb. 27, 2012) (denying defendant' s
motion to dismiss plaintiffs MMP A claim that alleged numerous malfunctions with a purchased
ATV that required repairs, as well as failure of the warranty); Schuchmann v. Air Servs. Heating
& Air Conditioning, 199 S.W.3d 228, 233 (Mo. Ct. App. 2006) (finding a plaintiff could

maintain an MMP A claim against an air conditioner seller where that seller refused to honor a
lifetime warranty, thus constituting an unfair practice).
However, the Court finds that Plaintiff has failed to state a plausible claim for omission
under the MMP A because he has not alleged that Defendant possessed the requisite state of
mind. For claims of omission of a material fact under the MMP A, "a greater showing of bad
faith or recklessness is required than for the claims based on alleged affirmative representations."

Hope v. Nissan N Am., Inc., 353 S.W.3d 68, 84 (Mo. Ct. App. 2011). "' [O]mission of a material
fact under the MMP A does have a scienter requirement; it is a failure to disclose material facts
that are ' known to him/her, or upon reasonable inquiry would be known to him/her."' Id.

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(quoting Plubell v. Merck & Co., 289 S.W.3d 707, 713 n.4 (Mo. Ct. App. 2009) (citation
omitted)). Under this standard, Plaintiff is required to show Defendant was aware of the alleged
defect in the humidifier; when Defendant became aware; and that Defendant purposefully
omitted this fact in its representations to the class members. Id.
In the instant case, Plaintiff has failed to demonstrate when Defendant became aware of
the alleged defect and purposeful omission of the allege defect in its representations to the
putative class. Plaintiff merely states in the Second Amended Complaint that Defendant knew,
or reasonably should have known, that the humidifiers had not been adequately tested and would
thus prematurely fail and that Defendant concealed and failed to disclose such alleged defects to
the class members.

(SAC~~

44-46, 53-54) This allegation is conclusory and fails to meet the

particularity requirements of Rule 9(b) and the scienter requirements of an omission claim under
the MMPA. See P.fitzer v. Smith & Wesson Corp. , No. 4:13-CV-676-JAR, 2014 WL 636381 , at
*3 (E.D. Mo. Feb. 18, 2014) (finding that broad and nonspecific allegations that defendants
concealed and omitted material facts about alleged gun and ammunition defects failed to state a
claim under the MMP A). Further, Plaintiffs allegations amount to a failure to notify consumers
of consumer complaints. " [T]he fact that Defendant did not notify the Plaintiff that some
[Honeywell Humidifier] purchasers reported a defect in their product does not amount to an
omission of material fact in connection with the sale or advertisement of the [Honeywell
Humidifier] and therefore cannot form the basis for an MMPA claim for 'fraud by omission."'

Wrightv. Bath & Body Works Direct, Inc. , No. 12-00099-CV-W-DW, 2012 WL 12088132, at *3
(W.D. Mo. Oct. 17, 2012)). Thus, Plaintiffs claim for MMPA omission claim fails as a matter
of law.
Accordingly,

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IT IS HEREBY ORDERED that Defendant' s Motion to Dismiss Count 7 of Plaintiffs

Second Amended Class Action Complaint is DENIED with regard to Plaintiffs
misrepresentation claim under the MMP A and GRANTED with regard to Plaintiffs omission
claim under the MMP A.
Dated this 29th day of March, 2016.

UNITED STATES DISTRICT JUDGE

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