Begley v. Windsor Willits Company et al

Filing 41

///ORDER granting in part and denying in part 23 Motion to Dismiss for Failure to State a Claim; denying without prejudice 24 Motion to Strike. The motion to dismiss (doc. no. 23) is granted to the extent it seeks dismiss al of the implied-warranty claim and request for punitive damages, and is otherwise denied. Defendants' motion to strike (doc. no. 24) is denied without prejudice to raising their argument on a motion for class certification. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Brian Begley
v.

Civil No. 17-cv-317-LM
Opinion No. 2018 DNH 057

Windsor Surry Company
d/b/a WindsorONE, & Windsor
Willits Company d/b/a Windsor Mill
O R D E R
Plaintiff Brian Begley brings this action against
defendants Windsor Surry Company d/b/a WindsorONE and Windsor
Willits Company d/b/a Windsor Mill.

Begley raises a number of

claims relating to allegedly defective wood products that
defendants manufacture and sell.

Begley brings this action

individually and on behalf of a putative class of New Hampshire
consumers.

Defendants move to dismiss the amended complaint and

to strike the class allegations.
motions.

Begley objects to both

For the following reasons, the motion to dismiss is

granted in part and denied in part, and the motion to strike is
denied.
Background
The following facts are taken from Begley’s amended
complaint, unless otherwise noted.

This action relates to

certain wood products that defendants manufacture and sell: the

“WindsorONE line of pre-primed trim board products.”
17 at 14.

Doc. no.

Since 1996, defendants have manufactured and sold

these trim boards for exterior construction—as fascia, soffit,
rake board, corner board, and window trim—as well as for
interior applications.
WindsorONE trim board is made from Radiata Pine wood.
Begley alleges that “nearly all” of the Radiata Pine that
defendants use is sapwood, which is the outer portion of the
tree stem.

Id. at 15.

Radiata Pine sapwood has no inherent rot

resistance.
To manufacture a board, defendants first cut wood from
juvenile Radiata Pine trees.

They cut a number of smaller

boards in a manner so as to remove knots and other imperfections
from the wood, and then glue these boards together with an
adhesive to make a single, “finger-jointed” board.

Id. at 14.

“[E]xterior-grade primer” is applied on the trim board before it
is delivered to distributors.

Id. at 15.

Defendants marketed and advertised the boards as suitable
for exterior application on buildings and other wood structures.
Defendants stated that, as a result of its manufacturing
process, WindsorONE trim board could be thought of as “turbo
wood,” because it “benefits from structural stability, decreased
cupping, warping or twisting” and because it is “defect free.”
Id. at 19.

Defendants advertised the board as providing
2

consumers with “the durability and long term performance [they]
require in a finger joint Trim Board—free of defects.”

Id.

Defendants also stated that the joints connecting the smaller
pieces of the board together “are stronger than the wood itself,
and waterproof.”

Id.

Defendants advertised WindsorONE as

superior to wood products made from other trees like cedar,
redwood, pine, and fir.

Defendants represented that they “use

the highest quality materials to produce the highest quality
products.”

Id. at 21 (bolding omitted).

Defendants provide a ten-year warranty for their end and
edge gluing, and a five-year warranty for their primer.

On

their website, defendants state that they “will replace, without
charge, any WindsorONE product that installed [sic] according to
directions and fails to meet” the warranties.

Id. at 28.

Further, “[s]uch replacement is the exclusive remedy for breach
of warranty,” and “[t]here are no warranties, expressed or
implied, including merchantability,” beyond the glue and primer
warranties.

Id.

Begley alleges that, contrary to defendants’ marketing,
neither the adhesive glue nor the wood itself can withstand
normal outdoor weather conditions.

The adhesive glue, while

water resistant, is not actually waterproof and therefore breaks
down through exposure to rain, snow, and other conditions.

This

allows water to penetrate the pieces of the board, which—because
3

it has no resistance to rot—decays, rots, warps, and splits
prematurely.

The deterioration of the board can then cause

deleterious effects on the underlying structure.

Begley notes

that treating the boards with a wood preservative could
ameliorate this issue, but WindsorONE boards are not treated
with any preservatives.

Begley claims that WindsorONE board is

thus of lower quality than boards made with cedar, redwood,
Douglas fir, or eastern white pine wood, which are naturally rot
resistant.

Begley also alleges that defendants have known about

these problems “for decades” but have nonetheless continued to
market WindsorONE board as suitable for exterior applications.
Id. at 3.
Begley’s experience with defendants and WindsorONE trim
board began in 2004.

In that year, Begley started construction

on his new home in New Hampshire.
build the home.

He hired Paul Vandenberg to

In August 2004, Vandenberg purchased WindsorONE

trim boards through a local distributor and installed them
throughout the exterior of the home.

In total, 9,712 linear

feet of WindsorONE trim board were used on the home.
Before Vandenberg purchased the trim board, the local
distributor told him that WindsorONE “was great for exterior
use” and “was the best trim board product on the market for
exterior use.”

Id. at 27.

In addition, the distributor

provided Vandenberg with WindsorONE marketing materials, product
4

brochures, and information regarding the product warranties.
Vandenberg relayed the information he learned from these sources
to Begley.

They decided to purchase WindsorONE trim boards

“based on the information Vandenberg received . . . and
thereafter communicated to [Begley].”

Id.

Vandenberg completed construction in February 2005, after
which Begley and his wife moved into the home.

In spring 2007,

Begley noticed that some pieces of the trim board were rotting,
deteriorating, or crippling at the ends.

He also saw that there

were splits, warping, and fungi growing out of some of the wood.
The next year, in spring 2008, Begley noticed that the
damage he had observed previously was spreading to other areas
of his home—in total, 384 linear feet were affected.
contacted Vandenberg, who conducted an inspection.

He

Vandenberg

confirmed that it was WindsorONE trim board that was
deteriorating, and, on Begley’s behalf, he filed a warranty
claim with defendants for the 384 linear feet of deteriorated
trim board.

Vandenberg also requested that defendants send a

representative to inspect Begley’s home.
Defendants sent an agent from Norcon Forestry Ltd.
(“Norcon”) to inspect the property.

After inspecting the

property, the agent sent Vandenberg a report dated July 12,
2008.

In the report, the agent concluded, “[A]lmost all of the

damage to the trim boards may be attributed to poor design or
5

construction practices over which Windsor had no control.

As

the observed damage is design or installation related, Windsor
does not have practical responsibility.”

Id. at 29.

In August, Norcon sent a letter to Vandenberg, which was
addressed to Vandenberg, Begley, and Mrs. Begley.

At the top of

the letter is the following disclaimer: “OFFER OF SETTLEMENT
MADE ON A WITHOUT PREJUDICE BASIS.”

Doc. no. 17-1 at 2.

Enclosed with the letter is a release (“2008 Release”).

The

letter informs Vandenberg and the Begleys that Windsor Mill
would supply 400 linear feet of new WindsorONE+ trim board1 in
exchange for the execution of the release.

The letter states,

“This commitment is not an admission of liability by Windsor
Mill, is made without prejudice to any of Windsor Mill’s legal
rights and is done solely in the interests of achieving an
amicable settlement.”

Id.

The attached release provides as

follows:
In consideration of Windsor Mill providing the following
WindsoOne+ [sic] Protected Trim Boards . . . Mr. and
Mrs.
Begley
(“Homeowners”),
and
Mr.
Vandenberg
(“Builder”), as “Releasors” herein, . . . hereby
releases and forever discharges Windsor Mill . . . and
its affiliates, agents, successors and assigns from all
claims, debts, causes of action, agreements and
liabilities of whatever kind or nature, which they now
have, may have or ever had, whether presently known or
unknown to them, including any claims arising from any
WindsorONE+ trim board is a separate wood product
manufactured by defendants. The material difference between
WindsorONE and WindsorONE+ is that the latter is treated with a
wood preservative that reduces the wood’s susceptibility to rot.
1

6

purchase or installation of materials made or supplied
by Windsor Mill for house construction at [Begley’s
property].
Doc. 17-2 at 2 (emphasis added).

Vandenberg told the Begleys

that they could receive credit with the local distributor for
the 400 feet of trim board, but only if they signed the release.
The Begleys and Vandenberg then executed the release, and Begley
used the credit to purchase a different trim board product.
Begley alleges that, in fact, defendants’ warranty-claim
process is an artifice, as defendants have “no intention of
providing the services set forth in their warranties.”
17 at 2.

Doc. no.

Defendants allegedly deny warranty claims based on

improper installation despite the fact that “no method of
installation would avoid or cure the inherently defective nature
of [d]efendants’ design.”

Id. at 45.

Regardless, seven years later, in 2015, Mrs. Begley noticed
additional deterioration of other WindsorONE trim boards on the
home.

She filed a second warranty claim with defendants.

Norcon, again acting as defendants’ agent, communicated with
Mrs. Begley in spring 2016 to resolve her claim.

As in 2008,

Norcon sent another release for the Begleys to sign.

In

exchange for the second release, the Begleys would receive
another 400 linear feet of WindsorONE+ trim board.

Because the

offered trim board would only cover a small portion of the

7

deteriorating wood they had discovered, the Begleys declined to
sign the second release.
In July 2017, Begley filed the present action, both on his
own behalf and as a class action.

In his amended complaint,

Begley raises the following claims: (1) breach of express
warranty; (2) breach of the implied warranty of merchantability;
(3) negligence; and (4) declaratory and injunctive relief.2
Begley defines the putative class as “[a]ll persons and entities
in . . . New Hampshire who own or owned homes, apartments,
office buildings, or other structures in which WindsorONE trim
board is or was installed, from 2001 to the present.”

Id. at

34.
Discussion
Defendants have filed a motion to dismiss and a motion to
strike the class allegations from Begley’s complaint.

The court

addresses each motion below.
I.

Motion to Dismiss
In support of their motion to dismiss, defendants argue:

(A) the 2008 Release bars all of Begley’s claims; (B) the

The amended complaint also contains a count for violation of
the New Hampshire Consumer Protection Act, but Begley indicates
that he “has withdrawn his consumer protection claim.” Doc. no.
27-1 at 13 n.2. Therefore, with respect to that claim,
defendants’ motion to dismiss is denied as moot.
2

8

statute of limitations bars all of Begley’s claims; (C) the
claim for breach of express warranty fails because the complaint
does not sufficiently allege any representation that became the
basis of the bargain; (D) the claims for declaratory and
injunctive relief are inappropriate because Begley has adequate
remedies at law, and Begley had no standing to seek injunctive
relief; and (E) Begley is not entitled to seek punitive damages
under New Hampshire law.

After summarizing the standard of

review, the court examines each argument in turn.
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set forth a
plausible claim upon which relief may be granted.”

Foley v.

Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(internal quotation marks omitted).

A claim is facially

plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
662, 678 (2009).

Ashcroft v. Iqbal, 556 U.S.

In addition, “[e]xhibits attached to the

complaint are properly considered part of the pleading for all
purposes, including Rule 12(b)(6).”

Trans-Spec Truck Serv.,

Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008)
(internal quotation marks omitted).
9

A. 2008 Release
A release may bar a subsequent action if it applies to the
defendant, encompasses the claims asserted in the subsequent
action, and is legally enforceable.

See Bourne v. Town of

Madison, 494 F. Supp. 2d 80, 96 (D.N.H. 2007).

Defendants argue

that the 2008 Release is enforceable and unambiguously covers
the claims that Begley raises in this action.

Defendants

broadly interpret the 2008 Release to cover “all claims (present
and future, known and unknown) against [defendants] regarding
any materials made or supplied by Windsor Mill.”

Doc. no. 23-1

at 12.
Begley responds that the 2008 Release is ambiguous and
that, considering the circumstances surrounding its execution
and the parties’ subsequent conduct, the 2008 Release should be
interpreted to cover only claims “relating to the 384 linear
feet of trim that failed as of the date of the Release.”
no. 27-1 at 8.

Doc.

In the alternative, Begley contends the 2008

Release is unconscionable and therefore unenforceable.
The court concludes that the 2008 Release unambiguously
covers Begley’s present claims, but that Begley has plausibly
alleged that the 2008 Release is unconscionable.

10

1. Interpretation of the 2008 Release
Both parties rely on New Hampshire law in interpreting and
assessing the enforceability of the 2008 Release.

When

interpreting a contract under New Hampshire law, the court must
“give the language used by the parties its reasonable meaning,
considering the circumstances and the context in which the
agreement was negotiated, and reading the document as a whole.”
Camden Nat’l Bank v. Greystone Select Holdings, LLC, No. 17-cv272-JL, 2017 WL 5146166, at *2 (D.N.H. Nov. 3, 2017) (quoting In
re Liquidation of Home Ins. Co., 166 N.H. 84, 88 (2014)).

“The

language of a contract is ambiguous if the parties to the
contract could reasonably disagree as to the meaning of that
language.”

Id. (quoting Found. for Seacoast Health v. Hosp.

Corp. of Am., 165 N.H. 168, 172 (2013)).

“Absent ambiguity, the

parties' intent will be determined from the plain meaning of the
language used in the contract.”
omitted).

Id. (internal quotation marks

“The interpretation of a contract, including whether

a contract term is ambiguous, is ultimately a question of law
for [the] court to decide.”

Birch Broad., Inc. v. Capitol

Broad. Corp., Inc., 161 N.H. 192, 196 (2010).
In this case, Begley does not argue that any particular
term of the 2008 Release is ambiguous.

Rather, Begley contends

that the scope of the 2008 Release becomes ambiguous in light of
the surrounding circumstances, the parties’ subsequent conduct,
11

and the parties’ subjective intent.

For example, Begley

contends that the 2008 Release must be understood with reference
to the warranty claim which Begley had filed with defendants.
In Begley’s view, the warranty allowed him to make a claim only
on “failed portion[s] of the trim,” and he believed that the
2008 Release merely resolved his warranty claim to that extent.
Doc. no. 27-1 at 7.

For that reason, he “interpreted the

language [in the 2008 Release] as applying only to future claims
relating to the 384 linear feet of trim that failed as of the
date of the Release.”

Id. at 8.

Begley asserts that his

interpretation is reasonable given that later, when his wife
filed a second warranty claim, defendants did not take the
position that the 2008 Release barred the claim but instead
worked with Begley and Mrs. Begley to resolve the new claim.
The court is not persuaded.

The language of the 2008

Release is unambiguous: Begley released defendants3 from “all
claims . . . of whatever kind or nature,” which expressly
included “any claims arising from any purchase or installation
of materials made or supplied by Windsor Mill” for the

The 2008 Release applies to defendant Windsor Mill as well
as its “affiliates, agents, successors and assigns.” Doc. no.
17-2 at 2. Defendant argues, and Begley does not dispute, that
as a result, the 2008 Release also extends to defendant Windsor
Surry.
3

12

construction of his home.

Doc. no. 17-2 at 2 (emphasis added).

Begley identifies nothing in this language that is ambiguous.
Furthermore, the court declines to introduce ambiguity into
the 2008 Release by considering the extrinsic facts cited by
Begley.

The New Hampshire Supreme Court has stated that, while

“[e]xtrinsic evidence is admissible when it serves to aid in
interpretation, or to clarify an ambiguity,” it may not be used
to “contradict unambiguous terms of a written agreement.”
Behrens v. S.P. Constr. Co., Inc., 153 N.H. 498, 501 (2006)
(quoting Ouellette v. Butler, 125 N.H. 184, 187-88 (1984)); see
also Clearview Software Int’l, Inc. v. Kfoury, No. 2015-0682,
2016 WL 5723948, at *2 (N.H. Aug. 18, 2016) (unpublished
opinion) (concluding that, because contract was unambiguous,
trial court did not err when it declined to consider the context
in which the contract was executed).
In short, Begley’s present claims, which arise from the
purchase of Windsor Mill materials for the construction of his
home, unambiguously fall within the scope of the 2008 Release.
2. Unconscionability of the 2008 Release
Turning to Begley’s second argument, the court concludes
that the complaint gives rise to a plausible claim that the 2008
Release is unconscionable.

The parties do not appear to dispute

that RSA 382-A:2-302 governs the question of unconscionability

13

with respect to the 2008 Release.

Under that statute, a court

may determine whether a contract is unconscionable, and, if so,
the court may refuse to enforce the contract, strike the
unconscionable clause, or limit the application of the
unconscionable clause “as to avoid any unconscionable result.”
RSA 382-A:2-302(1).

The statute is intended to prevent unfair

surprise and oppression, not to disturb the allocation of risks
resulting from superior bargaining power.

See Colonial Life

Ins. Co. of Am. v. Elec. Data Sys. Corp., 817 F. Supp. 235, 241
(D.N.H. 1993).
the court.

Unconscionability presents a question of law for

See RSA 382-A:2-302(1) & cmt. 1; Zapatha v. Dairy

Mart, Inc., 408 N.E.2d 1370, 1375 (Mass. 1980) (discussing
Massachusetts analogue to RSA 382-A:2-302).
The New Hampshire Supreme Court has recognized that
unconscionability generally includes “an absence of meaningful
choice on the part of one of the parties together with contract
terms which are unreasonably favorable to the other party.”
Pittsfield Weaving Co., Inc. v. Grove Textiles, Inc., 121 N.H.
344, 346 (1981).

In deciding whether a party lacks a meaningful

choice, courts consider, among other things, the existence of a
gross inequality of bargaining power, the absence of negotiation
(“take it or leave it”), a disparity in the relative experience
of the parties, and other facts indicative of coercion or unfair
surprise.

See id. at 347-48; see also United States v. Berry,
14

No. 06-cv-211-JD, 2008 WL 4526178, at *5-6 (D.N.H. Oct. 2,
2008); State Farm Mut. Auto. Ins. Co. v. Koshy, 995 A.2d 651,
668-69 (Me. 2010) (applying New Hampshire law).

When deciding

whether a contract is unreasonably favorable to another party,
“courts have focused on matters such as the commercial
reasonableness of the contract terms, the purpose and effect of
the terms, the allocation of the risks between the parties, and
similar public policy concerns.”

63 Am. Jur. 2d Products

Liability § 742; see also Am. Home Improvement, Inc. v. MacIver,
105 N.H. 435, 439 (1964).
Here, construing all reasonable inferences in Begley’s
favor, the terms of the 2008 Release are disproportionately
favorable to defendants.

As defendants acknowledge, the 2008

Release absolves them of all liability for “all claims (present
and future, known and unknown),” of apparently any variety.
Doc. no. 23-1 at 12.

The 2008 Release thus not only allocates

all of the risk relating to the trim boards to Begley, but it
purports to do so as to all future claims against defendants.
Begley alleges that, in exchange, he received about as much
replacement trim board as he was already entitled to under the
warranty.

These allegations, viewed favorably to Begley,

support a claim that the terms of the 2008 Release are
unreasonably favorable to defendants.

Cf. MacIver, 105 N.H. at

439 (concluding that contract for home improvements was
15

unconscionable given disparity between what homeowners paid and
what they received under arrangement).
Similarly, taking the allegations as true and construing
all reasonable inferences in Begley’s favor, the complaint
plausibly alleges that Begley lacked a meaningful choice when he
executed the release.

The critical allegation is that Begley

was only given the 2008 Release to sign after he had been
falsely informed that poor installation—and not a defect covered
by the warranty—was to blame for the deterioration of the
WindsorONE boards.

With no apparent basis to insist upon the

original terms of the warranty, Begley’s only choice was to
accept the new terms offered by defendants: receive replacement
boards in exchange for the execution of the 2008 Release.

Thus,

to the extent that Begley otherwise had a choice in deciding
whether to execute the 2008 Release, defendants arguably
restricted that choice by misrepresenting that Begley had no
valid warranty claim and, by implication, no other recourse
should he decline to accept it.

Cf. Ting v. AT&T, 319 F.3d

1126, 1149 (9th Cir. 2003) (finding arbitration agreement
procedurally unconscionable where company intentionally
dissuaded customers from switching to competitor that did not
require arbitration agreement).
To be sure, there are facts suggesting that defendants did
not coerce or unfairly surprise Begley.
16

Begley received the

settlement offer by letter, he had a few weeks to consider its
terms, and the 2008 Release is itself short and unambiguous.

In

addition, in 2016, when offered more replacement boards in
exchange for a second release, Begley appears to have felt free
to decline the offer and instead pursue litigation.
Nevertheless, the court declines to resolve these questions
at present.

Although one of law, the question of

unconscionability is a “fact-laden” determination.
A.2d at 669.

Koshy, 995

Indeed, RSA 382-A:2-302 contemplates that the

court will not resolve the issue at this early stage: “When it
is claimed or appears to the court that the contract or any
clause thereof may be unconscionable the parties shall be
afforded a reasonable opportunity to present evidence as to its
commercial setting, purpose and effect to aid the court in
making the determination.”

RSA 382-A:2-302(2).

Therefore, in light of Begley’s plausible claim that the
2008 Release is unconscionable, the court declines to grant the
motion to dismiss on the basis of the 2008 Release.
B. Statute of Limitations
Defendants next argue that each claim is barred by its
respective statute of limitations.

Before addressing these

arguments, it will be helpful to restate the relevant dates
alleged in the complaint.

In spring 2007, Begley first

17

discovered rotting on some pieces of WindsorONE trim board on
his home (approximately ten years before the filing of the
complaint).

In spring 2008, Begley noticed deterioration on

additional trim boards, and Vandenberg filed a warranty claim
with defendants (nine years before complaint).

In July 2008,

Norcon sent the purportedly false inspection report to
Vandenberg (nine years before complaint).

“At some point in

2015,” Mrs. Begley noticed further rotting and deterioration on
WindsorONE trim board installed on the home, and she filed a
second warranty claim (approximately two years before
complaint).

Doc. no. 17 at 31.

Begley claims that it was not

until the discovery of further rotting in 2015 that he had
“obtained the information essential to bringing suit.”
27-1 at 13.

Doc. no.

Begley filed this action in July 2017.
1. Negligence, Declaratory and Injunctive Relief

Defendants contend that Begley’s claims for negligence and
declaratory and injunctive relief are barred by the three-year
statute of limitations set forth in RSA 508:4, I.

Begley

asserts that his claims are timely under the discovery rule, as
well as under the doctrines of fraudulent concealment and
equitable tolling.
Under RSA 508:4, I, “all personal actions . . . may be
brought only within 3 years of the act or omission complained

18

of.”

However, the statute contains an exception known as the

discovery rule, which “tolls the limitations period until a
plaintiff discovers, or should reasonably have discovered, the
causal connection between the harm and the defendant’s negligent
or wrongful act.”

Beane v. Dana S. Beane & Co., P.C., 160 N.H.

708, 713 (2010); see also RSA 508:4, I.

“[A]pplication of the

discovery rule presents a question of fact.”

Gould v. N. Human

Servs., No. 2015-0698, 2016 WL 5831602, at *1 (N.H. Aug. 22,
2016) (unpublished opinion); see also Black Bear Lodge v.
Trillium Corp., 136 N.H. 635, 638 (1993).
Distinct from the discovery rule are the doctrines of
fraudulent concealment and equitable tolling.

The former

doctrine “states that when facts essential to the cause of
action are fraudulently concealed, the statute of limitations is
tolled until the plaintiff has discovered such facts or could
have done so in the exercise of reasonable diligence.”
160 N.H. at 714.

Beane,

Along similar lines, equitable tolling “allows

a plaintiff to initiate an action beyond the statute of
limitations deadline . . . [where] the claimant was prevented in
some extraordinary way from exercising his or her rights.”
Portsmouth Country Club v. Town of Greenland, 152 N.H. 617, 623
(2005).

Like the discovery rule and the doctrine of fraudulent

concealment, “equitable tolling is applicable only where the

19

prospective plaintiff did not have, and could not have had with
due diligence, the information essential to bringing suit.”

Id.

at 624.
Defendants argue that fraudulent concealment and equitable
tolling do not apply because the complaint does not sufficiently
allege any sort of wrongful conduct by defendants which would
trigger those doctrines.

Defendants also assert that Begley’s

claims for tolling under any theory must fail because Begley was
on notice of a potential claim by spring 2008, which is when
Begley filed his warranty claim with defendants.

Therefore,

defendants assert that the statute of limitations ran years
before Begley filed this action.
Taking the allegations in the light most favorable to
Begley, the complaint plausibly alleges that, as tolled,
Begley’s claims were timely filed.

There are sufficient

allegations supporting Begley’s arguments that defendants
actively thwarted his ability to discover essential information
and that he was not otherwise on notice of a claim until 2015.
Ultimately, the application of the above tolling doctrines will
turn on a number of factual issues, including the extent of
Begley’s knowledge of the defects in the trim boards, the degree
to which he participated in investigating and pursuing the 2008

20

warranty claim with Vandenberg,4 and the effect of the allegedly
false inspection report on Begley.

See Kelleher v. Marvin

Lumber & Cedar Co., 152 N.H. 813, 826 (2005) (noting that issue
of whether plaintiff should have known of connection between
window rot and defendant’s use of a defective preservative “is a
factual determination that necessarily turns upon an evaluation
of the evidence”).

Given these outstanding disputes of fact,

defendants are not entitled to dismissal under RSA 508:4 at this
juncture.
2. Breach of Express and Implied Warranties
Defendants assert that the claims for breach of express
warranty and breach of the implied warranty of merchantability
are barred by the four-year statute of limitations fixed by RSA
382-A:2-725.

See RSA 382-A:2-725(1), (2) (stating that, for

breach of warranty claim, action must be commenced within four
years of tender of delivery).

In other words, defendants argue

that because Begley received the product in 2004, the statute of
limitations ran in 2008, years before Begley filed the present
suit.

It is also worth noting that there are two separate
warranties at issue: the glue warranty and the primer warranty.
It is unclear from the complaint which type of warranty claim
Vandenberg filed on Begley’s behalf.
4

21

Begley argues that fraudulent concealment and equitable
tolling apply to render his warranty claims timely.5

Leaving

aside the arguments the court has already addressed in Section
I(B)(1), supra, defendants respond only that such doctrines do
not apply to statutory warranty claims.

Defendants cite

Lockheed Martin Corp. v. RFI Supply, Inc., 440 F.3d 549 (1st
Cir. 2006), as support for that proposition.
In Lockheed, the First Circuit reviewed the district
court’s conclusion that RSA 382-A:2-725 barred the plaintiff’s
implied-warranty claim.

Although the action was filed more than

four years after the plaintiff received the product, the
plaintiff argued that equitable tolling should apply to toll the
statute of limitations.

See Lockheed, 440 F.3d at 556-57.

The

First Circuit agreed with the district court that this argument
did not have merit because there were insufficient facts to
support a claim for equitable tolling.

Id. at 558.

In addition, however, the First Circuit concluded that
equitable tolling is inapplicable to implied-warranty claims
governed by RSA 382-A:2-725.

See id.

In reaching this

With respect to his breach-of-express-warranty claim, Begley
also contends that his claim falls under an exception to the
four-year rule for an express warranty that “explicitly extends
to future performance of the goods and discovery of the breach
must await the time of such performance.” RSA 382-A:2-725(2).
Given the court’s conclusion on the application of fraudulent
concealment and equitable tolling, the court need not address
this argument.
5

22

conclusion, the court noted that the statute of limitations for
implied-warranty claims begins to run at tender of delivery,
regardless of the aggrieved party’s lack of knowledge of the
breach.

See id.; RSA 382-A:2-725(2).

Further, the First

Circuit stated that, “[g]iven the fact that the New Hampshire
Supreme Court has recently stated that the discovery rule is not
applicable in implied warranties claims . . . it is likely that
the court would also find that equitable tolling is
inapplicable.”

Lockheed, 440 F.3d at 558.

Begley urges the court to refrain from applying Lockheed,
arguing that the First Circuit erred in its interpretation of
RSA 382-A:2-725.

However, in light of the First Circuit’s

decision and the absence of any intervening state authority to
the contrary, this court considers it appropriate to follow the
“Erie guess” of the First Circuit.

Potomac Ins. Co. v. Woods,

No. 1:95-cv-469, 1996 WL 450687, at *5 (E.D. Tex. July 22, 1996)
(“Adherence by a federal district court to a circuit court's
‘Erie guess’ is typically the norm.”); see Travelers Cas. &
Surety Co. v. Elkins Constructors, Inc., No. IP97-1807-C-T/G,
2000 WL 748091, at *6 (S.D. Ind. June 6, 2000).

Thus, based on

the First Circuit’s reasoning in Lockheed, the court concludes
that Begley cannot invoke equitable tolling or fraudulent
concealment to save his otherwise time-barred implied-warranty

23

claim.

Therefore, the court grants the motion to dismiss with

respect to that claim.
The same result does not obtain with respect to the
express-warranty claim.

Lockheed only concerned an implied-

warranty claim, and there is reason to conclude that the New
Hampshire Supreme Court would find fraudulent concealment and
equitable tolling applicable to express-warranty claims.

First,

RSA 382-A:2-725 expressly states that it does not “alter the law
on tolling of the statute of limitations,” RSA 382-A:2-725(4),
and other courts have interpreted that language to allow for
application of fraudulent concealment and equitable tolling,
see, e.g., JN Expl. & Prod. v. W. Gas Res., Inc., 153 F.3d 906,
914 (8th Cir. 1998); MRL Dev. I, LLC v. Whitecap Inv. Corp., No.
2013-48, 2014 WL 6461583, at *8-9 (D.V.I. Nov. 18, 2014).
Second, the New Hampshire Supreme Court has long found tolling
appropriate in cases of fraudulent concealment, so that the
wrongdoer does not receive “the advantage and benefit” of his
fraudulent conduct.

Lakeman v. La France, 102 N.H. 300, 303

(1959) (“It is well established that our courts will not
countenance fraudulent conduct.”).

Third, the New Hampshire

Supreme Court has applied other tolling principles to contract
actions.

See, e.g., Black Bear Lodge, 136 N.H. at 637

(discovery rule); A & B Lumber Co., LLC v. Vrusho, 151 N.H. 754,
756 (2005) (acknowledgement of debt); Chase Home for Children v.
24

N.H. Div. for Children, Youth, & Families, 162 N.H. 720, 729
(2011) (pending administrative proceedings).
For these reasons, with respect to his express-warranty
claim, Begley may rely on the doctrines of fraudulent
concealment and equitable tolling to resist defendants’ statuteof-limitations argument.

Because there are sufficient facts to

plausibly support such theories, see Section I(B)(1), supra, the
court declines to dismiss the express-warranty claim on the
basis of RSA 382-A:2-725.

As discussed, however, Begley’s

implied-warranty claim is dismissed.
C. Existence of Express Warranty
Defendants argue that the complaint does not sufficiently
allege that any representation by defendants became the basis of
the bargain, an essential requirement to create an express
warranty under RSA 382-A:2-313.

Begley counters that he has

adequately alleged the existence of express warranties for
purposes of RSA 382-A:2-313.

The court agrees with Begley.

RSA 382-A:2-313 provides:
(1)

Express warranties by the seller are created as
follows:
(a)

Any affirmation of fact or promise made by the
seller to the buyer which relates to the goods
and becomes part of the basis of the bargain
creates an express warranty that the goods
shall conform to the affirmation or promise.

25

(b)

Any description of the goods which is made
part of the basis of the bargain creates an
express warranty that the goods shall conform
to the description.

RSA 382-A:2-313(1)(a)-(b).

“To create an express warranty, the

seller is not required to use formal words, such as ‘warranty’
or ‘guarantee’ or have the specific intention to create a
warranty.”
313(2)).

Kelleher, 152 N.H. at 841 (citing RSA 382–A:2–
“Further, an affirmation of the value of the goods or

a statement of the seller’s opinion or commendation of the goods
does not create a warranty.”

Id. (citing RSA 382-A:2-313(2)).

“Therefore, to create an express warranty, the promise or
affirmation of fact must both relate to the goods and become
part of the basis of the contractual bargain.”

Id.

A guarantee, promise, or description “becomes part of the
basis of the bargain if it would naturally induce the purchase
of the product.”

Id. at 841.

The New Hampshire Supreme Court

has stated that “no particular reliance by the buyer on such
statement needs to be shown,” so long as the buyer has become
aware of the statement at some point in the bargaining process.
See id. at 841, 843-44.

Where the statement is made in

marketing materials, a buyer need only demonstrate that he
“read, heard, saw or was otherwise aware of the [statement] in

26

the catalog or brochure.”

Id. at 844.

Once that is

demonstrated, it is presumed that the statement has become part
of the basis of the bargain, which presumption the seller may
overcome with evidence “that the resulting bargain did not rest
at all on the seller's statement[].”

Id. at 843.

In this case, there are sufficient allegations that Begley
became aware of defendants’ marketing materials during the
bargaining process.

Specifically, the complaint alleges that

Vandenberg “relayed to [Begley]” the information he learned in
defendants’ “marketing materials, product brochures, and product
warranty.”

Doc. no. 17 at 27.

The complaint further states

that Begley “chose to purchase WindsorONE trim board based on
the information Vandenberg received . . . and thereafter
communicated to [Begley].”

Id.

And, taking the allegations in

the light most favorable to Begley, the marketing materials on
which he and Vandenberg relied contained the particular
representations that underlie Begley’s express-warranty claim.6

Among these are that WindsorONE boards are “defect free,”
are “suitable for all . . . exterior applications,” provide
“durability and long-term performance,” are “superior to wood,”
and have joints that are waterproof. Doc. no. 17 at 43-44.
6

27

Thus, the complaint is sufficient, and the express-warranty
claim will not be dismissed on that ground.7
D. Declaratory and Injunctive Relief
On two grounds, defendants argue that Begley’s requests for
declaratory and injunctive relief fail as a matter of law: (1)
Begley’s other causes of action provide adequate remedies at
law, precluding equitable relief; and (2) Begley has no standing
to seek injunctive relief because he has failed to allege that
he is likely to purchase defendants’ products again.

Begley

responds that his requests for equitable relief are proposals
for relief on behalf of a possible 23(b)(2) class.
Defendants’ first argument does not justify dismissal of
Begley’s requests for declaratory and injunctive relief.

The

mere fact that Begley has pleaded claims for monetary relief
does not necessarily demonstrate that he has adequate remedies
at law.

A party may plead alternative, even inconsistent, forms

of relief.

See Fed. R. Civ. P. 8(d)(3).

Further, any searching

Defendants also suggest that Begley’s claims must fail
because defendants disclaimed all express warranties beyond
their glue and primer warranties. The court disagrees. Such a
disclaimer is not given effect when it is inconsistent with
language creating an express warranty. See RSA 382-A:2-316 cmt.
1; 1 White, Summers, & Hillman, Uniform Commercial Code § 13:2
(6th ed.) (noting that once a “fact finder determines that a
seller's statement created an express warranty, words
purportedly disclaiming that warranty” will be held
“inoperative”).
7

28

analysis into the merits of Begley’s requests for declaratory
and injunctive relief would be unnecessary and premature at this
stage.

See Upjohn Co. v. Mova Pharm. Corp., 899 F. Supp. 46, 48

(D.P.R. 1995); Degenhart v. AIU Holdings, Inc., No. C10-5172RBL,
2010 WL 4852200, at *3 (W.D. Wash. Nov. 26, 2010).
Nor is the court persuaded by defendants’ argument on
standing.

Although Begley may not wish to purchase WindsorONE

trim boards again, the complaint alleges that WindsorONE trim
boards are still installed on his home and are continuing to
deteriorate; defendants develop no argument as to why those
allegations do not suffice to show that Begley is “likely to
suffer future injury.”

Marradi v. K&W Realty Inv. LLC, 212 F.

Supp. 3d 239, 242 (D. Mass. 2016).
E. Punitive Damages
Defendants argue that New Hampshire law does not permit
punitive damages under these circumstances.

Begley does not

dispute, or even address, defendants’ contention.
Under RSA 507:16, “No punitive damages shall be awarded in
any action, unless otherwise provided by statute.”

Given that

Begley does not contest defendants’ argument, let alone identify
a source for punitive damages, the court grants defendants’
motion to dismiss Begley’s request for punitive damages.

29

F. Conclusion
In sum, the court grants the motion to dismiss only to the
extent it seeks dismissal of the implied-warranty claim and the
request for punitive damages.
II.

Motion to Strike Class Allegations
Defendants request that the court strike the class

allegations from the complaint.

They raise four grounds: (1)

the proposed class is overbroad and contains members who lack
standing; (2) Begley is an atypical and inadequate class
representative; (3) the proposed class is unascertainable and
cannot satisfy the numerosity requirement; and (4) the proposed
class cannot satisfy the superiority and predominance
requirements of Rule 23(b)(3).
As explained below, the court concludes that defendants’
objections to Begley’s proposed class action are premature, and
should be resolved at the class-certification phase.
A. Standard of Review
The First Circuit has held that district courts may “use
their authority under Federal Rule of Civil Procedure 12(f) to
delete the complaint's class allegations.”

Manning v. Boston

Med. Ctr. Corp., 725 F.3d 34, 59 (1st Cir. 2013).
courts must exercise caution in doing so.

See id.

Nevertheless,
The practice

is disfavored “because it requires a reviewing court to
30

preemptively terminate the class aspects of . . . litigation,
solely on the basis of what is alleged in the complaint, and
before plaintiffs are permitted to complete the discovery to
which they would otherwise be entitled on questions relevant to
class certification.”

Id. (quoting Mazzola v. Roomster Corp.,

849 F. Supp. 2d 395, 410 (S.D.N.Y. 2012)).

As a result, a

district court should only strike class allegations where “it is
obvious from the pleadings that the proceeding cannot possibly
move forward on a classwide basis.”

Id.

“To obtain class certification, the plaintiff must
establish the four elements of Rule 23(a) and one of several
elements of Rule 23(b).”

Smilow v. Southwestern Bell Mobile

Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003).

“The Rule 23(a)

elements are (1) numerosity, (2) commonality, (3) typicality,
and (4) adequacy of representation.”

Id.

Further, in order to

certify a 23(b)(3) class, the court must find that “the
questions of law or fact common to class members predominate
over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.”

In re Nexium

Antitrust Litig., 777 F.3d 9, 18 (1st Cir. 2015) (quoting Fed.
R. Civ. P. 23(b)(3)).

31

B. Analysis
As a general matter, the issues raised by defendants are
more properly addressed on a motion for class certification,
rather than a motion to strike.

While the court must engage in

a “rigorous analysis” on a motion for class certification,
Gintis v. Bouchard Transp. Co., Inc., 596 F.3d 64, 66 (1st Cir.
2010),

the First Circuit has emphasized that the resolution of

class issues on a motion to strike is “rare” and “disfavored,”
Manning, 725 F.3d at 59 (“[A] court should typically await the
development of a factual record before determining whether the
case should move forward on a representative basis.”).
Defendants’ motion does not present the exceptional
circumstances that justify relief prior to the certification
phase.
First, defendants take issue with the class definition,
arguing that it is defective in a number of ways.

But at

present, the class definition set forth in the amended complaint
is “a proposal—and not by any means a certainty.”

Wirt v. Bon-

Ton Stores, Inc., 134 F. Supp. 3d 852, 862 (M.D. Pa. 2015).

To

the extent there are particular defects, they can be addressed
on a motion to certify, when the court has the discretion to
redefine or limit the class if necessary.

See Manning, 725 F.3d

at 60 (“[T]he district court has many tools at its disposal to
address concerns regarding the appropriate contours of the
32

putative class, including redefining the class during the
certification process or creating subclasses.”).

On its face,

the class definition is not so wholly implausible or defective
as to justify striking the class allegations.

Accord Guy v.

Toys R US, No. 16-CV-2224-AJB-JMA, 2017 WL 2230146, at *3 (S.D.
Cal. May 22, 2017) (noting potential problems with class
definition but declining to address on motion to strike); Wirt,
134 F. Supp. 3d at 861-62 (same).

But see Monteferrante v.

Williams-Sonoma, Inc., 241 F. Supp. 3d 264, 271-73 (D. Mass.
2017) (striking class definition that encompassed individuals
whose claims would be time-barred).
Second, defendants argue that Begley is an atypical and
inadequate class representative, because he is subject to a
number of unique defenses.

It is true that “[b]oth typicality

and adequacy may be defeated where the class representatives are
subject to unique defenses which threaten to become the focus of
the litigation.”

In re Credit Suisse-AOL Sec. Litig., 253

F.R.D. 17, 23 (D. Mass. 2008).

But without further development

of the factual record and the disputed legal issues that will
attend this litigation, the court is unable to assess the degree
to which any such defenses will become the focus of the
litigation.

See Smith v. Specialized Loan Servicing, LLC, No.

16cv2519-GPC, 2017 WL 4181395, at *2 (S.D. Cal. Sept. 21, 2017)

33

(concluding that motion to strike on basis of typicality and
adequacy requirements was premature).
Third, defendants assert that the proposed class is
unascertainable and cannot satisfy the numerosity requirement.
Defendants argue that because they do not sell WindsorONE boards
directly to consumers, the “identities of the members of [the]
alleged class” are unknown and cannot be uncovered through
discovery.

Doc. no. 24-1 at 13-14.

They point out that a

district court in the Northern District of California denied
class certification for a similar suit against defendants on
this basis.

See doc. no. 10-3 (copy of order).

not persuaded.

The court is

The California district court reached its

conclusion on a motion for class certification, after discovery
and with the benefit of a fully developed record.

Begley should

be entitled to the same opportunity.
Fourth, defendants contend that the proposed class cannot
meet the superiority and predominance requirements of Rule
23(b)(3).

To decide whether a class action is the superior

method for adjudicating the controversy, the court considers the
following factors:
(A)
(B)

the class members' interests in individually
controlling the prosecution or defense of separate
actions;
the extent and nature of any litigation concerning
the controversy already begun by or against class
members;

34

(C)
(D)

the desirability or undesirability of concentrating
the litigation of the claims in the particular
forum; and
the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3)(A)-(D).

For the predominance inquiry,

the court determines whether “there is reason to think that
individualized questions will overwhelm common ones and render
class certification inappropriate.”

In re Asacol Antitrust

Litig., No. 15-cv-12730-DJC, 2017 WL 5196381, at *22 (D. Mass.
Nov. 9, 2017) (quotation and internal brackets omitted).

In

doing so, the court must “formulate some prediction as to how
specific issues will play out in order to determine whether
common or individual issues predominate in a given case.”

Id.

(quoting Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288,
298 (1st Cir. 2000)).
The court is not in a position to properly assess and weigh
the considerations bearing on superiority and predominance.
Both involve a more expansive inquiry that would benefit from
full discovery and briefing.

See Murdock-Alexander v. Tempsnow

Emp’t, No. 16-cv-5182, 2016 WL 6833961, at *5 (N.D. Ill. Nov.
21, 2016) (noting that, generally, “some level of discovery is
essential” to evaluate the predominance requirement).
Accordingly, the court denies defendants’ motion to strike.
However, the court does so without prejudice to defendants
raising these arguments on a motion for class certification.
35

Conclusion
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 23) is granted to the extent it seeks dismissal of the
implied-warranty claim and request for punitive damages, and is
otherwise denied.

Defendants’ motion to strike (doc. no. 24) is

denied without prejudice to raising their arguments on a motion
for class certification.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
March 19, 2018
cc:

Counsel of Record

36