Volm Companies, Incorporated et al v. Mark' Andy, Inc.
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant Mark' Andy, Inc.'s Motion to Dismiss 24 is GRANTED. IT IS FURTHER ORDERED that Counts III, IV, and V of the amended complaint are dismissed from this action. Defendant is reminded of its obligation to answer Counts I and II of the amended complaint within the time set by the rules. Signed by District Judge Catherine D. Perry on 09/16/2022. (ANP)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
VOLM COMPANIES, INCORPORATED, )
MARK’ ANDY, INC.,
Case No. 4:22 CV 373 CDP
MEMORANDUM AND ORDER
In this diversity action, plaintiffs Volm Companies, Incorporated, and
Plaspack U.S.A., Inc., assert claims of breach of contract (Counts I and II), breach
of express warranty (Count III), and breach of implied warranty (Counts IV and V)
against defendant Mark’ Andy, Inc., arising out of a Purchase Agreement whereby
plaintiffs purchased a commercial grade printing press (“Press”) from Mark’ Andy
and, after delivery and installation, the Press allegedly had several defects that
Mark’ Andy unsuccessfully attempted to repair. Plaintiffs allege that the defects
and downtime spent in attempted repairs caused them to sustain more than $8
million in damages. Because plaintiffs unequivocally state in their amended
complaint that they did not accept the Press or, alternatively, had revoked their
acceptance, they cannot recover on their claims of breach of express or implied
warranty under Missouri law. I will therefore grant Mark’ Andy’s motion to
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dismiss Counts III-V of the amended complaint for failure to state a claim.1
The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal
sufficiency of the complaint. When reviewing a Rule 12(b)(6) motion, I assume
the factual allegations of the complaint are true and construe them in plaintiff’s
favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). To survive
dismissal, a complaint must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id.; accord
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). It must contain sufficient factual
matter, accepted as true, to state a claim for relief “that is plausible on its face.”
Iqbal, 556 U.S. at 678. It need not contain “detailed factual allegations,” but it
must contain facts with enough specificity “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
In Count I of their amended complaint, plaintiffs allege that Mark’ Andy
breached the Purchase Agreement by failing to provide plaintiffs with a properly
functioning Press. In Count II, plaintiffs allege that by manufacturing, delivering,
and installing a “prototype” Press, Mark’ Andy had no good faith basis to believe
that the Press could perform as provided in the Purchase Agreement, had no good
Although Mark’ Andy’s motion is captioned as a “Motion to Dismiss Amended Complaint”
(ECF 24), it seeks to dismiss only Counts III, IV, and V of the amended complaint.
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faith belief that the Press could be repaired or redesigned in order to so perform,
and thus breached its covenant of good faith and fair dealing. In Count III,
plaintiffs allege that Mark’ Andy breached the Purchase Agreement’s express
warranty that the Press would conform to all the specifications in the Agreement.
Finally, in Counts IV and V, plaintiffs allege breach of implied warranties of
merchantability and of fitness for a particular purpose, respectively.
Mark’ Andy moves to dismiss plaintiffs’ breach-of-warranty claims raised in
Counts III-V of the amended complaint, arguing inter alia that the facts alleged in
the amended complaint limit plaintiffs’ claims in this action to only breach of
contract and preclude their claims seeking relief for breach of warranty. For the
following reasons, I agree.
Under Missouri law, remedies for economic loss sustained by
reason of damage to or defects in products sold are limited to those
under the warranty provisions of the UCC. Wilbur Waggoner
Equipment & Excavating Co. v. Clark Equipment Co., 668 S.W.2d
601, 602 (Mo. App. 1984). The UCC recognizes that breach of
contract and breach of warranty are not the same cause of action. The
remedies for breach of contract are set forth in section 2-711 and are
available to a buyer “[w]here the seller fails to make delivery or
repudiates or the buyer rightfully rejects or justifiably revokes
acceptance.” [Mo. Rev. Stat.] § 400.2-711.1. The remedies for
breach of warranty are set forth in section 2-714 and are available to a
buyer who has finally accepted goods, but discovers that the goods are
defective in some manner. § 400.2-714; see also 1 White &
Summers, UCC 702–3 (“We believe that only buyers who have
accepted and neither rightfully rejected nor effectively revoked can
Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 130-31 (Mo.
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banc 2010), quoted approvingly in Nestlé Purina Petcare Co. v. Blue Buffalo Co.
Ltd., 181 F. Supp. 3d 618, 641-42 (E.D. Mo. 2016).2
Here, plaintiffs expressly and unequivocally assert in their amended
complaint that they “have never accepted Mark Andy’s defective Press” and that
throughout Mark’ Andy’s attempted repair process they “continu[ed] to advise
Mark Andy that they were not accepting the Press, or, alternatively, that they were
revoking acceptance of the Press.” (Am. Compl., ECF 20 at ¶¶ 15, 18.) Because
breach-of-warranty claims can be brought under Missouri law only by buyers who
have accepted the goods at issue and neither rightfully rejected nor effectively
revoked any acceptance, plaintiffs’ assertion of non-acceptance or revocation of
acceptance bars their breach-of warranty claims as a matter of law. Cf. Nestlé
Purina Petcare Co., 181 F. Supp. 3d at 642. Because the claims are barred as a
matter of law on the facts alleged, plaintiffs may not plead them in the alternative,
as they argue in opposition to dismissal. Id.
Plaintiffs argue that they should be permitted to proceed on their breach-of
warranty claims because the parties dispute whether plaintiffs actually accepted the
Press and that such a dispute is appropriately resolved at trial.3 But in determining
The Purchase Agreement contains a choice-of-law provision stating that Missouri law applies
to disputes arising out of or relating to the Agreement. (ECF 25-1, Domestic Purchase
Agreement at § 18.)
Plaintiffs contend that the amended complaint addresses this dispute by noting “Mark Andy’s
view that acceptance occurred.” (Resp. to Mot. Dis., ECF 28 at p. 3 n.2. (citing Am. Compl.,
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a Rule 12(b)(6) motion to dismiss, I look only to the allegations of the complaint
and assume them to be true. In assuming factual allegations to be true, there is no
dispute of facts to consider. Here, plaintiffs unequivocally state in their amended
complaint that they never accepted the Press or, alternatively, that they revoked
their acceptance. I must accept this to be true. Indeed, plaintiffs admit in response
to the motion to dismiss that the facts alleged in this action are that “they never
accepted the Press that Mark Andy provided (or alternatively, revoked
acceptance).” (Resp. to Mot. Dis., ECF 28 at p. 3.) And they aver that while the
original complaint adequately alleged these facts, the amended complaint
“clarify[ies] their allegations” in this regard. (Id.).
Accordingly, accepting the allegations in the amended complaint as true and
construing them in plaintiffs’ favor, I conclude that plaintiffs have failed to state a
claim of breach of express or implied warranty under Missouri law. Plaintiffs’
claims raised in Counts III-V of the amended complaint therefore fail as a matter
of law and are dismissed.
IT IS HEREBY ORDERED that defendant Mark’ Andy, Inc.’s Motion to
Dismiss  is GRANTED.
IT IS FURTHER ORDERED that Counts III, IV, and V of the amended
ECF 20 at ¶ 18).) But a review of the amended complaint in toto shows no reference at all to
Mark’ Andy’s position on acceptance.
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complaint are dismissed from this action. Defendant is reminded of its obligation
to answer Counts I and II of the amended complaint within the time set by the
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 16th day of September, 2022.
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