MILLER v. SAMSUNG ELECTRONICS AMERICA, INC.
Filing
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OPINION/ORDER granting in part and denying in part 16 Motion to Dismiss; terminating 8 Motion to Dismiss. Signed by Judge Esther Salas on 6/29/15. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SCOTT MILLER, on behalf of himself
and all others similarly situated,
Plaintiff,
v.
SAMSUNG ELECTRONICS
AMERICA, INC.,
Defendant.
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Civil Action No. 14-4076
OPINION AND ORDER
SALAS, DISTRICT JUDGE
Plaintiff Scott Miller (“Plaintiff”) brings this action on behalf of himself and similarly
situated individuals, alleging misrepresentations relating to Samsung’s Series 3 Chromebook
laptop (the “Chromebook”). (D.E. No. 15 (“Am. Compl.”)). Before the Court is a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) by Defendant Samsung Electronics
America, Inc. (“Samsung” or “Defendant”). (D.E. No. 16). The Court has considered the parties’
submissions and decides the matter without oral argument pursuant to Federal Rule of Civil
Procedure 78(b). For the reasons below, the Court grants in part and denies in part Samsung’s
motion to dismiss.
I.
JURISDICTION AND VENUE
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(a) because
this is a putative class action in which the amount in controversy exceeds five million dollars
(exclusive of interests and costs) and at least one defendant and one proposed class member are
citizens of different states. Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) because
Samsung’s corporate headquarters is located in this district.
II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a Florida resident who purchased a Chromebook on August 15, 2013. (Am.
Compl. ¶¶ 1, 38). Samsung is a New York corporation, with its principal place of business in New
Jersey. (Id. ¶ 2). Samsung “advertises, markets, sells, or offers for sale a variety of consumer
electronics,” including the Chromebook. (Id. ¶ 3).
Plaintiff alleges that “Samsung specifically marketed, advertised and represented to
consumers that its Series 3 Chromebook has a Universal Serial Bus (“USB”) 3.0 ‘SuperSpeed’
port” even though the Chromebook does not in fact have that port. (Id. at 2). Plaintiff alleges that,
as a result, the Chromebook “is incapable of achieving data transfer speeds anywhere near the
speeds required by the USB 3.0 specification.” (Id.).
According to Plaintiff, the USB specification “was developed by a number of companies
that collectively formed the USB Implementers Forum, Inc. (“Implementers Forum”), a non-profit
corporation organized for the purposes of developing and distributing specifications and other
documents that augment, enhance, or extend the USB specification.” (Id. ¶ 14). The Implementers
Forum released the original USB 1.0 specification in 1996, which included two data transmission
modes: “Low-Bandwidth” and “Full-Bandwidth.” (Id. ¶ 15). The USB 2.0 specification, released
in 2000, added a third data transmission mode: “Hi-Speed.” (Id. ¶ 16).
In 2008, the Implementers Forum released the current USB 3.0 specification, which added
a fourth data transmission mode: “SuperSpeed.” (Id. ¶ 17). The term “SuperSpeed” is defined by
the USB 3.0 specification as “USB operation at 5 Gbps.”1 (Id.). According to Plaintiff, the USB
1
The abbreviations “Gbps” and “Gbit/s” both refer to “Gigabits per second.”
2
3.0 specification requires that USB 3.0 ports for personal computers like the Chromebook “be
capable of transferring data at rates corresponding to all four data transfer modes, including
SuperSpeed.” (Id. ¶ 18). Products that comply with the USB 3.0 specification are permitted to
display the Implementer Forum’s copyrighted SuperSpeed Trident logo. (Id. ¶ 20).
Plaintiff alleges that Samsung advertises that the Chromebook has a USB 3.0 port in
various places, including Samsung’s website, the Chromebook specifications, the Chromebook
User Guide, and the Chromebook packaging. (Id. ¶¶ 22-25). He further alleges that Samsung
advertises that the Chromebook contains a USB 3.0 port by displaying the SuperSpeed USB
Trident logo on its website and the Chromebook itself. (Id. ¶¶ 25-26). Plaintiff alleges that
Samsung’s representations are made to retailers and consumers. (Id. ¶¶ 29-32).
Plaintiff purchased the Chromebook in August 2013 from a Best Buy store in Lakeland,
Florida. (Id. ¶ 38). He alleges that he relied on Samsung’s representations that the Chromebook
included a SuperSpeed USB 3.0 port when making his purchase. (Id. ¶¶ 35-38).
Following his purchase and use of the Chromebook, Plaintiff allegedly discovered that “the
Chromebook’s purported SuperSpeed port is incapable of achieving the data transfer rates required
by the USB 3.0 specification.” (Id. ¶ 39). Rather, he alleges that “he discovered that the purported
SuperSpeed port transfers data at only about 124 Mbit/s—far below the 5 Gbps speed required by
the USB 3.0 specification, and even far below the “Hi-Speed” mode required by the USB 2.0
specification.” (Id.).
Plaintiff alleges that he later discovered that other customers had complained about the
same problem with their Chromebooks. (Id. ¶ 41). He further alleges that he verified his discovery
about the transfer speed using an investigator who conducted numerous tests on a different Series
3 Chromebook. (Id. ¶¶ 43-51).
3
Plaintiff filed his original Complaint in this action on June 26, 2014. (D.E. No. 1, Compl.).
Samsung moved to dismiss on September 5, 2014, (D.E. No. 8), and Plaintiff subsequently filed
an Amended Complaint on October 22, 2014. (Am. Compl.). Samsung moved again to dismiss
on November 21, 2014. (D.E. No. 16). Plaintiff opposed the motion to dismiss on January 28,
2015, (D.E. No. 21), and Samsung replied on February 27, 2015, (D.E. No. 25).
Plaintiff’s Amended Complaint alleges seven causes of action: (1) violation of the New
Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. § 56:8–1 et seq., and in the alternative, the
Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201 et seq. and
Florida’s misleading advertising statute, Fla. Stat. § 817.41; (2) violation of the New Jersey Truth
in Consumer Contract, Warranty and Notice Act (“TCCWNA”), N.J.S.A. § 56:12–14 et seq.; (3)
common law fraud and misrepresentation; (4) breach of implied warranties in violation of N.J.S.A.
§ 12A:2–314 et seq., and in the alternative, Fla. Stat. § 672.314 et seq.; (5) declaratory judgment
under N.J.S.A. § 2A:16–51 et seq., and in the alternative, Fla. Stat. § 86.011 et seq.; (6) breach of
express warranty in violation of N.J.S.A. § 12A:2–313, and in the alternative, Fla. Stat. §
672.313(b); and (7) equitable class relief pursuant to Federal Rule of Civil Procedure 23(b)(2).
III.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to set forth “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
pleading standard announced by Rule 8 does not require detailed factual allegations; however, it
demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). In addition, the plaintiff’s short and plain
statement of the claim must “give the defendant fair notice of what the . . . claim is and the grounds
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upon which it rests . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)).
For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (citation omitted).
In evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual
allegations contained in the complaint as true and draw all reasonable inferences in favor of the
non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But “the
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions” and “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).
Finally, “if a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit
a curative amendment unless such an amendment would be inequitable or futile.” Phillips, 515
F.3d at 245.
IV.
DISCUSSON
A. Plaintiff’s Standing to Assert Violations of New Jersey Law
Defendant argues that Plaintiff “lacks constitutional standing to assert claims under New
Jersey laws” because “Plaintiff does not claim to reside in New Jersey or claim to have suffered
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any injury in New Jersey.” (D.E. No. 25, Reply Memorandum of Law in Support of Defendant
Samsung Electronics America, Inc.’s Motion to Dismiss the First Amended Class Action
Complaint (“Def. Rep. Br.”) at 3; D.E. No. 16-1, Memorandum of Law in Support of Defendant
Samsung Electronics America, Inc.’s Motion to Dismiss the First Amended Class Action
Complaint (“Def. Mov. Br.”) at 7). However, the question of whether an injured Plaintiff can
bring a claim under the laws of a state in which he does not reside is not a question of Article III
constitutional standing, but rather a non-jurisdictional question of statutory standing. See In re
Processed Egg Prods. Antitrust Litig., 851 F. Supp. 2d 867, 886 (E.D. Pa. 2012) (holding plaintiffs
may have lacked statutory standing to recover under out-of-state statutes, but met Article III
requirement “to establish a justiciable case or controversy within the jurisdiction of the federal
courts”).
Article III standing merely requires that a plaintiff (1) suffered an injury in fact, (2) that is
“fairly traceable” to the actions of the defendant, and (3) that is redressable by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The Supreme Court’s standing cases
“confirm that a plaintiff must demonstrate standing for each claim he seeks to press.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335, 352 (2006). The class-action nature of a suit
“adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must
allege and show that they personally have been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong and which they purport to represent.’”
Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 40 (1976) (quoting Warth v. Seldin, 422
U.S. 490, 502 (1975)).
Samsung has not argued that Plaintiff failed to meet any of the above requirements. Rather,
it argues that “because Plaintiff does not claim to reside in New Jersey or claim to have suffered
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injury in New Jersey, he lacks constitutional standing to assert claims under New Jersey laws.”
(Def. Opp. Br. at 7). Because Plaintiff has Article III standing, the Court declines to dismiss
Plaintiff’s New Jersey claims on this ground.
B. State Fraud Claims
Two counts of Plaintiff’s Amended Complaint sound in fraud. Count 1 alleges a violation
of the NJCFA, and in the alternative, the FDUTPA and Florida’s misleading advertising statute,
(Am. Compl. ¶¶ 70-105). Count 3 alleges common law fraud and misrepresentation. (Id. ¶¶ 107117).
1. Choice of Law for State Fraud Claims
The parties dispute which state law should apply to Plaintiff’s fraud claims.2 Samsung
argues that the Court should apply Florida law to Plaintiffs’ fraud claims. (Def. Mov. Br. at 7-12).
Plaintiff argues that New Jersey law applies. (D.E. No. 21, Plaintiff’s Memorandum of Law in
Opposition to Samsung’s Motion to Dismiss the First Amended Class Action Complaint (“Pl. Opp.
Br.”) at 7-8). For the reasons below, the Court will apply Florida law to both of Plaintiff’s fraud
claims.
A federal court sitting in diversity applies the forum state’s choice-of-law rules. Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). New Jersey has adopted the “most
significant relationship” test for analyzing choice of law, which is outlined in the Restatement
(Second) of Conflict of Laws (1971). Maniscalo v. Brother Int’l (USA) Corp., 709 F.3d 202, 20607 (3d Cir. 2013) (citing P.V. v. Camp Jaycee, 197 N.J. 132, 142–43 (2008)); see also Restatement
(Second) of Conflict of Laws § 148 (1971). This test requires a two-step analysis. P.V., 197 N.J.
2
The parties do not, however, appear to dispute that Florida law applies to Plaintiff’s claim under
Florida’s misleading advertising statute, Fla. Stat. § 817.41, and the Court agrees that Florida law governs
this claim.
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at 143. First, the Court must “determine whether an actual conflict” of law exists. Id. If no conflict
exists, the law of the forum state applies. Id. Second, if a conflict exists, “the Court must determine
which state has the ‘most significant relationship’ to the claim, by ‘weigh[ing] the factors set forth
in the Restatement section corresponding to the plaintiff’s cause of action.’” Snyder v. Farnam
Cos., 792 F. Supp. 2d 712, 717 (D.N.J. 2011) (quoting Nikolin v. Samsung Elecs. Am., Inc., No.
10-1456, 2010 WL 4116887, at *9 (D.N.J. Oct. 18, 2010)). Choice-of-law analysis is performed
on a claim-by-claim basis. Id.
Because weighing the Restatement factors requires a factual inquiry, some courts have held
that “it can be inappropriate or impossible for a court to conduct that analysis at the motion to
dismiss stage when little or no discovery has taken place.” In re Samsung DLP Television Class
Action Litig., No. 07–2141, 2009 WL 3584352, at *3 (D.N.J. Oct. 27, 2009). Accordingly, some
courts in this district have deferred choice of law analysis until the class certification stage, and
Plaintiff urges the Court to take this approach. (Pl. Opp. Br. at 9-10). However, “[s]ome choice
of law issues may not require a full factual record and may be amenable to resolution on a motion
to dismiss.” Harper v. LG Elecs. USA, Inc., 595 F. Supp. 2d 486, 491 (D.N.J. 2009); see also,
e.g., Cooper v. Samsung Elec. Am., Inc., 374 F. App’x 250, 255 n.5 (3d Cir. 2010); Arlandson v.
Hartz Mountain Corp., 792 F. Supp. 2d 691, 699–700 (D.N.J. 2011). Here, the Court will conduct
a choice of law analysis because its resolution does not require a full factual record.
The Court first considers whether Florida or New Jersey law governs Plaintiff’s statutory
fraud claim (Count 1). Under the first step of New Jersey’s choice of law analysis, the Court must
determine whether conflicts exist between the NJCFA and the FDUTPA. P.V., 197 N.J. at 143.
The Court determines that a conflict exists. Specifically, the NJCFA provides for treble damages,
N.J.S.A. § 56:8-19, whereas the FDUTPA only permits recovery of actual damages, Fla. Stat. Ann.
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§ 501.211(2). At least one court in this district has found this conflict between the damages
provisions of the NJCFA and the FDUTPA “on its own . . . sufficient to require a choice-of-law
analysis.” Dicuio v. Brother Int’l Corp., No. 11-1447, 2015 WL 3403144, at *30 (D.N.J. May 27,
2015). In addition, the statutes conflict because the NJCFA mandates recovery of attorneys’ fees
only for prevailing plaintiffs, N.J.S.A. § 56:8-19, whereas the FDUTPA permits either party to
recover attorneys’ fees, Fla. Stat. § 501.2105. Id. Because the above provisions yield an actual
conflict between the FDUTPA and the NJCFA, the Court does not reach parties’ dispute over
whether the statutes conflict regarding the reliance requirement.
Under the second step of the choice-of-law analysis, the Court determines that Florida has
the most significant relationship to Plaintiff’s statutory fraud claim. To assess which state has the
most significant relationship to this claim, the Court must weigh the following factors:
(a) the place, or places, where the plaintiff acted in reliance upon
the defendant’s representations,
(b) the place where the plaintiff received the representations,
(c) the place where the defendant made the representations,
(d) the domicil, residence, nationality, place of incorporation and
place of business of the parties,
(e) the place where a tangible thing which is the subject of the
transaction between the parties was situated at the time, and
(f) the place where the plaintiff is to render performance under a
contract which he has been induced to enter by the false
representations of the defendant.
Restatement (Second) Conflict of Laws § 148(2). Here, factors (a), (b), and (e) unambiguously
favor the application of Florida law over New Jersey law. Plaintiff resides in Florida and
purchased his Chromebook at a Best Buy in Florida. (Am. Compl. ¶¶ 1, 38). Therefore, Florida
is the place where Plaintiff allegedly received and relied on Samsung’s representations. See
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Grandalski v. Quest Diagnostics Inc., 767 F.3d 175, 182 (3d Cir. 2014) (“[F]actors (a) and (b),
where the plaintiff acted in reliance and where he received the representations, weigh in favor of
applying the laws of putative class members’ home states.”). It is also the place where Plaintiff’s
Chromebook was situated at the time of the transaction. In addition, though the parties’ have
different domiciles, factor (d) also weighs slightly in favor of applying Florida law because “in
cases of pecuniary loss . . . [t]he domicil, residence and place of business of the plaintiff are more
important than are similar contacts on the part of the defendant.” See Maniscalo, 709 F.3d at 208.
(internal quotation marks omitted).
The only factor weighing toward the application of New Jersey law is factor (c), as
Samsung’s headquarters is located in New Jersey and therefore it made its alleged
misrepresentations in that state. (Am. Compl. ¶ 6).3 However, the Third Circuit has held that the
“fortuitous location” of a Defendant’s New Jersey headquarters alone “does not warrant applying
New Jersey law.” Id. In so holding, the Third Circuit noted that its decision aligned with “the
overwhelming majority of courts’ application of New Jersey choice-of-law rules under similar
circumstances.” Id. at 209 (collecting cases); see also Cooper, 374 F. App’x at 255 (“The
transaction in question bears no relationship to New Jersey other than the location of Samsung’s
headquarters. [Plaintiff’s] claim bears the most significant relationship with Arizona, the state in
which the television was marketed, purchased, and used.”); Montich v. Miele USA, Inc., 849 F.
Supp. 2d 439, 449 (D.N.J. 2012) (“A majority of courts in this District have held that the mere fact
that a company is headquartered in New Jersey or that unlawful conduct emanated from New
Jersey will not supersede the numerous contacts with the consumer’s home state for purposes of
determining which state has the most significant relationship under Restatement § 148(2).”
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Factor (f) is inapplicable because there is no contract under which Plaintiff is obligated to render
performance. See Grandalski, 767 F.3d at 182.
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(internal quotation marks omitted)). Accordingly, the Restatement factors weigh toward the
application of Florida law to Count 1 of Plaintiff’s Amended Complaint.
Next, the Court considers whether New Jersey or Florida governs Plaintiff’s common law
fraud claim (Count 3). As a preliminary matter, the Court agrees with several courts in this district
that a conflict exists between New Jersey and Florida common law fraud. See Majdipour v. Jaguar
Land Rover N. Am., LLC, No. 12-7849, 2015 WL 1270958, at *11 (D.N.J. Mar. 18, 2015) (holding
“that the states’ contradictory statutes of limitations create an actual conflict of law”); see also
Mendez v. Avis Budget Grp., Inc., No. 11-6537, 2012 WL 1964502, at *2 (D.N.J. May 31, 2012).
Because a conflict exists, the Court must consider which state bears the most significant
relationship to Plaintiff’s common law fraud claim. For the reasons stated above regarding
Plaintiff’s statutory fraud claim, the Court determines that the Restatement factors weigh toward
applying Florida law to Count 3 of Plaintiff’s Amended Complaint.
Finally, the Court is not persuaded by Plaintiff’s argument that the Terms of Use on
Samsung’s website governs the choice-of-law analysis in this case.4 Specifically, Plaintiff cites to
a section of the Terms of Use titled “Violation of the Terms of this Site,” which contains the
following provision:
Any action related to these Terms will be governed by New Jersey
Law and controlling U.S. Law without regard to the choice or
conflicts of law provisions of any jurisdiction. You agree to the
jurisdiction of the courts located in Bergen County, New Jersey for
the resolution of all disputes arising from or related to these Terms
and/or your use of the site.
4
Though the Court is generally confined to considering the complaint’s allegations on a motion to
dismiss, it may also consider a document that is integral to or explicitly relied on in the complaint without
converting the motion to dismiss into a motion for summary judgment. In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Because the Terms of Use is cited and relied on in
Plaintiff’s Amended Complaint, (Am. Compl. ¶¶ 8-10), it is appropriate for the Court to consider it on
Defendant’s motion to dismiss.
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(D.E. No. 16-3, Terms of Use at 3). Plaintiff argues in a footnote that his claim is “related to” the
Terms of Use because the Terms of Use “discuss[es] ‘Materials,’ which include the misleading
information regarding the Chromebook’s USB port that Samsung posted on its website and that
Plaintiff viewed.” (Pl. Opp. Br. at 8 n.2). Plaintiff’s interpretation of the Terms of Use is
unreasonably broad. The Terms of Use governs users’ interactions with Samsung’s website,
including use of trademarks and logos, solicited and unsolicited submissions, and liability for thirdparty content. (See Terms of Use). Plaintiff’s claim is not related to any of the above, and therefore
the choice-of-law provision in the Terms of Use does not govern.
In sum, the Court will apply Florida law to the Plaintiff’s fraud claims, Counts 1 and 3 of
the Amended Complaint. As a result, it will consider whether Plaintiff has adequately stated a
claim under the FDUTPA and Florida common law fraud.5
2. The FDUTPA
A claim under the FDUTPA has three elements: “(1) a deceptive act or unfair practice; (2)
causation; and (3) actual damages.” Kenneth F. Hackett & Assocs., Inc. v. GE Capital Info. Tech.
Solutions, Inc., 744 F. Supp. 2d 1305, 1312 (S.D. Fla. 2010) (internal quotation marks omitted).
Samsung argues that “Plaintiff’s FDUTPA claim fails because he does not adequately
allege that Samsung engaged in an unfair or deceptive practice.” (Def. Mov. Br. at 16). Though
Samsung “does not dispute that a reasonable consumer, in viewing Samsung’s packaging and
advertisements for the Chromebook, would believe that the Chromebook contains a port that meets
the requirements set forth in the USB 3.0 specification,” it argues that Plaintiff has not “plausibly
alleged that the Chromebook’s USB 3.0 fails to meet those requirements.” (Id.).
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Because the Court determines that Florida law applies to Plaintiff’s fraud claims, it does not assess
whether Plaintiff has statutory standing to assert a claim under New Jersey’s fraud statute.
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The Court disagrees.
Plaintiff’s Amended Complaint sets forth numerous, specific
allegations that the Chromebook does not meet the requirements of the USB 3.0 specification. For
example, Plaintiff specifically alleges that he “discovered that the [Chromebook’s] purported
SuperSpeed port is incapable of achieving the data transfer rates required by the USB 3.0
specification.” (Am. Compl. ¶ 39). He further alleges that “he discovered that the purported
SuperSpeed port transfers data at only 124 Mbit/s—far below the 5 Gbps speed required by the
USB 3.0 specification.” (Id.). As factual support for these allegations, Plaintiff alleges that an
investigator “independently verified” that the Chromebook transferred files at a speed below the
USB 3.0 specification by performing “multiple” tests in January and February 2014. (Id. ¶¶ 4351).
Samsung contends that these allegations are insufficient because they are based on the
flawed premise that a SuperSpeed port must transfer data at a rate of 5 Gbit/s. (Def. Mov. Br. at
1, 17). It argues that compliance with the USB 3.0 specification cannot be determined by reference
to a data transfer speed, but rather must be determined by reference to the Implementers Forum
standardized testing criteria. (Id. at 1). Samsung argues that, as a result, Plaintiff “had no
‘reasonable expectation’ that the Chromebook’s USB 3.0 port . . . would transfer data at a speed
of 5 Gbit/s.” (Id. at 17). The standard for compliance with the USB 3.0 specification is a factual
question that the Court declines to address at this stage. See Flora v. Cnty. of Luzerne, 776 F.3d
169, 175 (3d Cir. 2015) (holding that on a motion to dismiss, “[t]he district court may not make
findings of fact and, insofar as there is a factual dispute, the court may not resolve it”). Samsung
admits that it represented that the Chromebook has a USB 3.0 SuperSpeed port, and Plaintiff has
alleged that this representation led him to reasonably expect that the port would transfer data at
certain speeds consistent with the USB 3.0 specification. (Am. Compl. ¶ 94). For the purposes of
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a motion to dismiss, Plaintiff’s detailed allegations that the USB 3.0 specification is not met are
sufficient. The Court denies Samsung’s motion to dismiss Plaintiff’s FDUTPA claim.
3. Common Law Fraud
Count 3 of Plaintiff’s Amended Complaint alleges fraud and misrepresentation. (Am.
Compl. ¶¶ 109-17). Defendant argues that Plaintiff’s common law fraud claim is barred by the
economic-loss rule and that Plaintiff fails to plead fraud with sufficient particularity. (Def. Mov.
Br. at 18-23). Plaintiff responds that the economic-loss rule does not bar his claim and argues that
he pled fraud with sufficient particularity. (Pl. Opp. Br. at 15-19).
The parties do not dispute that Florida recognizes an economic-loss rule, but they disagree
about its breadth.6 The economic-loss rule “sets forth the circumstances under which a tort action
is prohibited if the only damages suffered are economic losses.” Tiara Condo Ass’n v. Marsh &
McLennan Cos., 110 So.3d 399, 401 (Fla. 2013). Economic loss consists of “damages for
inadequate value, costs of repair and replacement of the defective product, or consequent loss of
profits—without any claim of personal injury or damage to the other property.” Id. Defendant
argues that Florida’s economic-loss rule applies to claims of fraudulent inducement and
misrepresentation, thus barring Plaintiff’s claim in this case. (Def. Mov. Br. at 19). Plaintiff, by
contrast, argues that the economic-loss doctrine does not bar such claims. (Pl. Opp. Br. at 16).
The Florida Supreme Court recently revisited the scope of its economic-loss doctrine. See
Tiara, 110 So.3d at 403-07. In that case, Tiara, a condominium association, retained an insurance
broker to secure condominium insurance coverage. Id. at 400. The broker secured a windstorm
policy that contained a loss limit of approximately fifty million dollars, but assured Tiara that the
6
The Court notes at the outset that Florida’s economic-loss doctrine does not bar a claim under the
FDUTPA. Delgado v. J.W. Courtesy Pontiac GMC-Truck, 693 So.2d 602, 609-11 (Fla. Dist. Ct. App.
1997).
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loss limits coverage was “per occurrence,” rather than in the aggregate. Id. When Tiara sustained
damage from two separate hurricanes and sought to recover over one hundred million dollars, the
insurance company claimed that the fifty-million-dollar-aggregate-loss limit applied. Id. Tiara
settled with the insurance company for eighty nine million dollars, but sued the insurance broker
for the excess amount it spent. Id. The Eleventh Circuit certified to the Florida Supreme Court
the question of whether the economic-loss rule prohibited recovery, or whether an insurance broker
falls within the “professional services” exception to the economic-loss rule, which would permit
Tiara to proceed with its claims. Id. at 401. The Florida Supreme Court narrowed the scope of
the economic-loss doctrine, holding that “the economic loss rule applies only in the products
liability context” and that it therefore did not even need to consider the scope of the professional
services exception. Id. at 407.
Relying on two supporting cases, Defendant argues that “Florida district courts have
interpreted the Florida Supreme Court’s decision in Tiara as eliminating any exceptions to the
economic loss rule for fraudulent inducement and misrepresentation claims.” (Def. Mov. Br. at
19). First, Defendant cites Aprigliano v. American Honda Motor Co., 979 F. Supp. 2d 1331, 133739 (S.D. Fla. 2013). (Id.). There, the court held that Plaintiff’s negligent misrepresentation claim
was barred by the economic-loss doctrine because it “is dependent on the same fundamental
allegations contained in the breach of warranty claim—specifically, that [defendant] breached the
terms of its Warranties by providing Plaintiffs with defective motorcycles.” Aprigliano, 979 F.
Supp. 2d at 1338. Defendant also relies on Burns v. Winnebago Industries, Inc., No. 13-1427,
2013 WL 4437246, at *1-4 (M.D. Fla. Aug. 16, 2013), in which the court applied the economicloss doctrine to claims for negligent misrepresentation and fraudulent concealment. (Def. Mov.
Br. at 19). In Burns, the court accepted the defendant’s argument that the plaintiff’s claims were
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“simply product liability claims re-titled as claims for negligent misrepresentation and fraudulent
concealment.” Burns, 2013 WL 4437246. at *3. The court appeared to acknowledge that
exceptions to the economic-loss rule for fraudulent inducement and negligent misrepresentation
could apply, but held that they did not apply “under the facts alleged” because the claims were
essentially products liability claims in disguise. Id. It noted that “[t]o hold otherwise would allow
the economic loss rule to be manipulated such that any time a purchaser received a defective
product that did not cause any injuries or damage to other property, such a purchaser could assert
claims for negligent and fraudulent concealment regarding the defect to avoid the economic loss
rule.” Id. at *4.
Plaintiff argues that neither Aprigliano nor Burns held that Tiara eliminated the exception
to the economic-loss rule for fraudulent inducement—rather, each court held that the exception
did not apply in that specific case. (Pl. Opp. Br. at 17). Plaintiff urges the Court to rely instead
on In re MyFord Touch Consumer Litigation, 46 F. Supp. 3d 936, 965 (N.D. Cal. 2014). (Id.).
Applying Florida law, the court in In re MyFord held that the plaintiff’s claims under Florida’s
consumer protection statute and fraudulent concealment were not barred by the economic-loss
doctrine because they were “based on a duty independent of any contract—i.e., a statutory duty, a
duty not to fraudulently induce another to enter a contract, and a duty to disclose.” 46 F. Supp. 3d
at 964. The court relied on Tiara and noted that Burns “made no ruling that all claims for fraud
are necessarily barred by the rule.” Id. at 965.
Based on the above, it appears that Defendant’s contention that Tiara eliminated any
exception to the economic-loss doctrine for claims of fraudulent inducement or misrepresentation
is not supported by the relevant law. However, such claims may be barred by the economic-loss
doctrine when they sound in products liability. See Burns, 2013 WL 4437246, at *2-4. The court
16
in Aprigliano recognized this, as it characterized Burns as “holding the exceptions to the economic
loss rule for fraudulent inducement and negligent misrepresentation did not apply in the products
liability context post-Tiara.” Aprigliano, 979 F. Supp. 2d at 1338 (emphasis added). Thus, the
operative question is whether Plaintiff’s common law fraud claim arises “in the products liability
context.” See id. at 1336.
The Court concludes Plaintiff’s common law fraud claim arises outside of the products
liability context, and therefore is not barred by the economic-loss doctrine. Tiara reaffirmed that
the “products liability context” refers to “cases involving a product which damages itself by reason
of a defect in the product.” Tiara, 110 So.3d at 407. Plaintiff’s allegation is not that the
Chromebook suffers a defect—whether in design, manufacturing, or otherwise. Rather, Plaintiff
alleges that “Samsung specifically marketed, advertised and represented to consumers” that the
Chromebook contains a USB port that it does not have. (Am. Compl. at 2). This case is therefore
distinguishable from Burns, where the plaintiff discovered dangerous corrosion on his RV, see
2013 WL 4437246, at *1, and Aprigliano, where the plaintiffs alleged dangerously “defective
design and machining,” see 979 F. Supp. 2d at 1333. Because the Court determines that this action
sounds in consumer fraud—and not in products liability—Florida’s economic-loss doctrine does
not bar Plaintiff’s common law fraud claim.
Samsung also argues that Plaintiff’s common law fraud claim is not pled with sufficient
particularity. (Def. Mov. Br. at 20). Under Florida common law, a plaintiff pleading fraudulent
inducement must allege that: “(a) the representor made a misrepresentation of a material fact; (b)
the representor knew or should have known of the falsity of the statement; (c) the representor
intended that the representation would induce another to rely and act on it; and (d) the plaintiff
17
suffered injury in justifiable reliance on the representation.” Joseph v. Liberty Nat’l Bank, 873
So.2d 384, 388 (Fl. Dist. Ct. App. 2004).
The Court determines that Plaintiff has adequately stated a claim for fraud. First, Plaintiff
alleges that Samsung made a misrepresentation of fact by advertising that the Chromebook
contains a 3.0 USB SuperSpeed port. (Am. Compl. ¶ 72). As discussed above with respect to
Plaintiff’s FDUTPA claim, see supra Section IV.B.2, this allegation is sufficient to survive a
motion to dismiss. Second, Plaintiff alleged that Samsung knew or should have known the falsity
of this statement. (Id. ¶¶ 84-88). Though Defendant argues that Plaintiff’s allegations of
knowledge are insufficient, the Court disagrees. Plaintiff specifically alleged that Samsung
received numerous complaints about the 3.0 USB port speed directly from customers and that it
knew of online technical reviews criticizing the Chromebook for that reason.
(Id. ¶ 88).
Furthermore, Plaintiff alleges that Samsung “had actually tested the USB 3.0 port before releasing
the Chromebook, as required by the USB Implementer’s Forum.” (Id.). This allegation that
Defendant was required to test the product distinguishes this case from those cited by Defendant,
where there were mere allegations, without factual support, that a defendant had tested the product.
See, e.g., Morris v. BMW of N. Am., LLC, No. 13-4980, 2014 WL 793550, at *7 (D.N.J. Feb. 26,
2014). Third, Plaintiff alleged that Samsung intended that its representations would induce
reliance and actions by consumers, (Am. Compl. ¶ 89). And finally, Plaintiff alleges that he
suffered an injury in justifiable reliance on the representation. (Id. ¶¶ 95-99). Accordingly,
Plaintiff has sufficiently pled common law fraud, and Defendant’s motion to dismiss Count 3 of
Plaintiff’s Amended Complaint is denied.
4. Florida’s Misleading Advertising Statute7
7
The Court notes that, as with the FDUTPA, Florida’s economic-loss rule cannot bar a claim under the
state’s misleading advertising statute. The economic-loss rule “does not bar statutory causes of action,
particularly when the statutory language providing the cause of action makes clear that the remedy is in
18
Count 1 of Plaintiff’s Amended Complaint also pleads a violation of Florida’s misleading
advertising statute, which provides:
It shall be unlawful for any person to make or disseminate or cause
to be made or disseminated before the general public of the state, or
any portion thereof, any misleading advertisement. Such making or
dissemination of misleading advertising shall constitute and is
hereby declared to be fraudulent and unlawful, designed and
intended for obtaining money or property under false pretenses.
Fla. Stat. § 817.41(1). In addition, “[a]lthough the statute does not say it, the case law that has
developed since the adoption of section 817.41(1) requires one seeking to maintain a civil action
for violation of the statute to prove each of the elements of common law fraud in the inducement,
including reliance and detriment, in order to recover damages.” Joseph, 873 So.2d at 388. Thus,
to state a claim under the statute, a plaintiff must allege the elements of common law fraud plus
reliance on the alleged advertising. Black Diamond Props., Inc. v. Haines, 69 So.3d 1090, 109495 (Fla. Dist. Ct. App. 2011).
The parties agree that Plaintiff’s claim under Florida’s misleading advertising statute rises
and falls with Plaintiff’s common law fraud claim. (Def. Mov. Br. at 18; Pl. Opp. Br. at 15). As
discussed above, see supra Section IV.B.3, Plaintiff has alleged each of the elements of common
law fraud in the inducement. In addition, Plaintiff has alleged that he relied on the misleading
advertising. (Am. Compl. ¶¶ 33-38). As a result, Defendant’s motion to dismiss Plaintiff’s claim
under Florida’s misleading advertising statute is denied.
addition to other available remedies.” Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489,
499 (Fla. Dist. Ct. App. 2001) (internal citations omitted). Florida’s misleading advertising statute
explicitly states that “[t]his provision is in addition to any other remedies prescribed by law.” Fla. Stat §
817.41(6).
19
C. TCCWNA
Count 2 of the Amended Complaint alleges a violation of the New Jersey TCCWNA. (Am.
Compl. ¶¶ 106-08). Under the TCCWNA, a seller cannot offer or enter into any “written contract”
that “violates any clearly established legal right of a consumer.” N.J.S.A. § 56:12-15. The statute
provides in relevant part:
No seller, lessor, creditor, lender or bailee shall in the course of his
business offer to any consumer or prospective consumer or enter
into any written consumer contract or give or display any written
consumer warranty, notice or sign after the effective date of this act
which includes any provision that violates any clearly established
legal right of a consumer or responsibility of a seller, lessor, creditor,
lender or bailee as established by State or Federal law at the time the
offer is made or the consumer contract is signed or the warranty,
notice or sign is given or displayed.
Id.
Samsung argues that “New Jersey’s choice-of-law principles also prevent Plaintiff from
asserting a claim under the TCCWNA.” (Def. Mov. Br. at 12). It argues that an “actual conflict”
exists between New Jersey and Florida law regarding this claim “because Florida does not have a
comparable consumer protection statute.” (Id. at 13). Plaintiff does not directly address this
argument, but appears to acknowledge that the Court should only consider the merits of the claim
“if New Jersey law applies.” (Pl. Opp. Br. at 10).
Because Florida does not have a statute that is comparable to the TCCWNA, an actual
conflict exists between Florida and New Jersey law regarding this claim. To determine which state
bears the most significant relationship to this claim, the Court must consider the factors in the
Restatement (Second) of Conflict of Laws § 188, which governs conflict-of-law analysis for
contract claims. Feldman v. Mercedes-Benz USA, LLC, No. 11-0984, 2012 WL 6596830, at *7-8
(D.N.J. Dec. 18, 2012). This section requires courts to consider: “(1) the place of contracting, (2)
the place of negotiation of the contract, (3) the place of performance, (4) the location of the subject
20
matter of the contract, and (5) the domicile, residence, nationality, place of incorporation and place
of business of the parties.” Restatement (Second) of Conflict of Laws § 188; see also Feldman,
2012 WL 6596830, at *8.
Based on these factors, Florida bears the most significant relationship to Plaintiff’s
TCCWNA claim. As discussed in detail above, see supra Section IV.B.1, with respect to Factors
1 and 3, Florida is alleged place of contracting and performance. With respect to Factor 4, Florida
is also the location of the subject matter of the alleged contract, Plaintiff’s Chromebook. Factor 2
is inapplicable because no alleged negotiation occurred. Thus, only factor 5 does not clearly weigh
toward applying Florida law because Samsung is located in New Jersey. However, this is not
sufficient to outweigh the remaining factors, and therefore the Court determines that Florida bears
the most significant relationship to this claim. As a result, Plaintiff’s TCCWNA claim must be
dismissed.
D. Breach of Implied Warranty
Count 4 of the Amended Complaint alleges breach of implied warranties in violation of
N.J.S.A. § 12A:2-314 et seq. and, in the alternative, Fla. Stat. § 672.314 et seq. (Am. Compl. ¶¶
118-41).
1. Choice of Law for Breach of Implied Warranty
Defendant argues that Florida law should apply to Plaintiff’s implied warranty claim. (Def.
Mov. Br. at 19). As discussed above, the Court must consider first whether a conflict exists and,
if yes, which state bears the most significant relationship to Plaintiff’s claim. P.V., 197 N.J. at
143. First, the Court determines that a conflict exists between New Jersey and Florida law with
respect to the implied warranty of merchantability because Florida law requires privity of contract
and New Jersey law does not. See Dzielak v. Whirlpool Corp., 26 F. Supp. 3d 304, 327-28 (D.N.J.
21
2014) (distinguishing breach of implied warranty under New Jersey law from Ohio, California,
and Florida law); see also Morano v. BMW of N. Am., 928 F. Supp. 2d 826, 835-38 (D.N.J. 2013)
(discussing privity requirement for breach of implied warranty under Florida law). Accordingly,
the Court must consider which state bears the most significant relationship to Plaintiff’s claim
under the factors in the Restatement (Second) of Conflict of Laws § 188, which applies to implied
warranty claims.
As with Plaintiff’s TCCWNA claim, Florida bears the most significant
relationship to Plaintiff’s breach of implied warranty claim. Florida is the location where the
warranty was contracted and performed. It is also the location of the subject matter of the implied
warranty and Plaintiff’s domicile. Thus, the Restatement factors favor the application of Florida
law to this claim.
2. Analysis of Breach of Implied Warranty Claim
Defendant argues that Plaintiff’s implied warranty claim fails because he lacks privity and
because he has not alleged that the Chromebook is not merchantable. (Def. Mov. Br. at 25-27).
Plaintiff responds that Defendant mischaracterizes the “merchantability” requirement and that
privity is met. (Pl. Opp. Br. 19-22). He does not dispute that privity is a requirement under Florida
law. For the reasons below, the Court agrees with Defendant that Plaintiff’s implied warranty
claim fails for lack of privity.
Defendant argues that Plaintiff’s implied warranty claim fails for lack of privity because
Plaintiff purchased his Chromebook from Best Buy—not Samsung directly—and therefore privity
does not exist. (Def. Mov. Br. at 25). Plaintiff responds that “Plaintiff has pled privity of contract
by alleging facts sufficient to satisfy the agency doctrine.” (Pl. Opp. Br. at 22). Plaintiff points to
his allegations that Best Buy and other retailers are agents of Samsung, as well as his allegations
that representations made by these retailers about the Chromebook were directed and authorized
22
by Samsung. (Pl. Opp. Br. at 22); see also Am. Compl. ¶¶ 29-31, 81, 125-27). Plaintiff proceeds
to argue that warranty claims “will not be dismissed under Florida law where the consumer
purchased from the defendant’s agent.” (Pl. Opp. Br. at 22).
However, the case that Plaintiff relies on to support this argument, Bland v. Freightliner,
206 F. Supp. 2d 1202 (M.D. Fla. 2002), does not support finding privity via agency in this case.
As an initial matter, the Court notes that Bland did not consider privity in the breach of implied
warranty context.
Nevertheless, the court in Bland found privity between plaintiffs and a
defendant manufacturer where there was a sufficient “relation” between the parties, even though
the plaintiffs did not purchase the product at issue from the manufacturer itself. Bland, 206 F.
Supp. 2d at 1207. For example, the Bland plaintiffs’ sales contract with the dealer identified the
defendant and required a signature from the defendant or an authorized representative. Id. In
addition, portions of the warranty in Bland used the defendant’s name interchangeably with the
agent, and the court noted that plaintiffs suggested that, without the defendant, the agent would
cease to exist. Id. Plaintiff has pled no such facts here, and has pointed to no case where a court
has found privity in situations where a plaintiff purchased the product at issue at a commercial
store like Best Buy. As Defendant notes, at least one Florida court found no privity between
plaintiffs and a defendant authorized dealer where the manufacturer exercised significantly more
control over the dealer than Samsung allegedly exercised over Best Buy. See, e.g., Ocana v. Ford
Motor Co., 992 So.2d 319, 327 (Fla. Dist. Ct. App. 2008). As a result, Plaintiff’s argument that
privity exists because Best Buy is Samsung’s agent is unavailing, and therefore Plaintiff has not
adequately stated a claim for breach of implied warranty of merchantability under Florida law.
Because Plaintiff’s implied warranty claim fails based on lack of privity, the Court does not address
23
Defendant’s argument regarding merchantability. Count 4 of Plaintiff’s Amended Complaint is
dismissed.
E. Breach of Express Warranty
Count 6 of Plaintiff’s Amended Complaint alleges breach of express warranty in violation
of N.J.S.A. § 12A:2-313 or, alternatively, Fla. Stat. § 672.313(b). (Am. Compl. ¶¶ 146-53).
1. Choice of Law for Breach of Express Warranty
Defendant does not urge the Court to apply either New Jersey or Florida law to Plaintiff’s
breach of express warranty claim. (See Def. Mov. Br. at 27-28). Plaintiff argues that he has stated
a claim under either state’s law. (Pl. Opp. Br. at 23). For the reasons below, the Court determines
that no conflict exists between the state’s laws, and therefore the law of the forum state, New
Jersey, will apply. P.V., 197 N.J. at 143.
To state a claim for breach of express warranty under New Jersey law, a plaintiff must
allege (1) an affirmation of fact, promise, or description about the product; (2) the affirmation of
fact, promise, or description became part of the basis of the bargain for the product; and (3) the
product ultimately did not conform to the affirmation of fact, promise, or description. In re
Avandia Mktg. Sales Practices & Prods. Liab. Litig., 588 F. App’x 171, 175 (3d Cir. 2014) (citing
N.J.S.A. § 12A:2–313). Moreover, New Jersey law requires that guarantees of future performance
be specific. Id. (citing Herbstman v. Eastman Kodak Co., 342 N.J. 1, 12 (N.J. 1975)). “[T]he
seller need not use formal words such as ‘warrant’ or ‘guarantee’ or have a specific intention to
make a warranty . . . . But that does not mean [that a plaintiff] is relieved from identifying the
affirmation of fact, promise, or description he contends constitutes the express warranty under
New Jersey law.” Id. (quoting N.J.S.A. § 12A:2–313). In addition, proximate cause and damages
are required. Marcus v. BMW of N. Am., 687 F.3d 583, 600 n.8 (3d Cir. 2012). Finally, New
24
Jersey has adopted the notice requirement of the Uniform Commercial Code (“UCC”), which
requires statutory notice to the seller as a “condition precedent to filing any suit for breach of
warranty.” Dicuio, 2012 WL 3278917, at *11 (citation omitted).
The Florida law governing express warranties provides that an express warranty is created
by “[a]ny 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.” Fla. Stat. § 672.313. The statute further provides that
“[it] is not necessary to the creation of an express warranty that the seller use formal words such
as ‘warrant’ or ‘guarantee’ or that the seller have a specific intention to make a warranty, but an
affirmation merely of the value of the goods or a statement purporting to be merely the seller's
opinion or commendation of the goods does not create a warranty.” Id. Accordingly, Florida
courts have interpreted the statute to require that a plaintiff pleading breach of express warranty
allege “(1) the sale of goods; (2) the express warranty; (3) breach of the warranty; (4) notice to
seller of the breach; and (5) the injuries sustained by the buyer as a result of the breach of the
express warranty.” Bohlke v. Shearer’s Foods, LLC, No. 14-80727, 2015 WL 249418, at *10
(S.D. Fla. Jan. 20, 2015) (internal citations and quotation marks omitted).
The Court determines that there is no actual conflict between Florida and New Jersey law
with respect to breach of express warranty. As a result, the Court will apply the law of the forum
state, New Jersey, to this claim.
2. Analysis of Breach of Express Warranty Claim
Defendant argues that Plaintiff’s breach of express warranty claim must be dismissed
because there is an express disclaimer in the Chromebook Limited Warranty and because Plaintiff
failed to provide pre-suit notice to Defendant as required by both the UCC and the Chromebook’s
25
limited warranty. (Def. Mov. Br. at 27-30). Plaintiff responds that Samsung did not effectively
disclaim its express warranty and that pre-suit notice was not required. (Pl. Opp. Br. at 24-25).
For the reasons below, the Court determines that Plaintiff’s breach of express warranty claim fails
because Plaintiff did not provide Samsung with the requisite pre-suit notice.
As discussed above, New Jersey has adopted the UCC’s notice requirement for express
warranty claims. Dicuio, 2012 WL 3278917, at *11; see also Luppino v. Mercedes-Benz USA,
LLC, No. 09-5582, 2011 WL 2470625, at *3 (D.N.J. June 20, 2011). The notice requirement
provides that “[w]here a tender has been accepted . . . the buyer must within a reasonable time
after he discovers or should have discovered any breach notify the seller of breach or be barred
from any remedy.” N.J.S.A. § 12A:2–607(3)(a). Plaintiff argues that he was not required to
provide Samsung with notice because “notice of breach of either express or implied warranty is
not required in an action against a remote manufacturer who is not the immediate seller of a
product.” (Pl. Opp. Br. at 25 (quoting Coyle v. Hornell Brewing Co., No. 08-2797, 2010 WL
2539386, at *6 (D.N.J. June 15, 2010)).
The parties do not dispute that Plaintiff purchased the product at issue from a retail store
and that the Chromebook’s Limited Warranty provides that “[t]o receive warranty service, you
must (1) first follow the procedures outlined below . . . and (2) if these procedures do not resolve
the problem, contact Samsung at the number provided below.” (See D.E. No. 16-4, Samsung
Mobile Computer Limited Warranty (“Limited Warranty”) at 1).8 Though Samsung argues that
8
As noted above, supra n. 4, a court reviewing a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) may consider only the allegations of the complaint, documents attached or specifically
referenced in the complaint if the claims are based on those documents, and matters of public record. See
in re Bayside Prison Litig., 190 F. Supp. 2d 755, 760 (D.N.J. 2002). Though Plaintiff did not attach the
Limited Warranty to the Amended Complaint, the Amended Complaint specifically references warranty
agreements and Plaintiff’s claims are based on it. Accordingly, it is appropriate for the Court to consider
the Limited Warranty in deciding Defendant’s motion to dismiss.
26
notice is not required because Plaintiff purchased the Chromebook at Best Buy and Samsung is
merely a remote manufacturer, this argument ignores that Third Circuit has expressly upheld the
notice requirement against a remote manufacturer where, as here, the warranty itself contains a
notice requirement. See Cooper, 374 F. App’x at 253. In Cooper, the plaintiff bought a Samsung
product in a retail store. Id. at 251. The warranty for the product at issue in Cooper stated that
“[t]o receive warranty service, the purchaser must contact SAMSUNG for a problem determination
and service procedures.” Id. at 253. The Third Circuit determined that because “it is undisputed
that Cooper failed to provide the requisite notice to Samsung within one year of the date of his
purchase of the 1090p television, Samsung is not obligated to perform under the Warranty.” Id.
The facts of Cooper align with the facts of this case, and Plaintiff has not directed the Court to any
case where notice was unnecessary even though the express warranty explicitly required it. Here,
the express warranty includes a notice requirement, (Limited Warranty at 1), and Plaintiff has not
alleged that he contacted Samsung prior to bringing his claim. As a result, Count 6 of Plaintiff’s
Amended Complaint is dismissed with prejudice, and the Court does not consider the parties’ other
arguments regarding this claim.
F. Declaratory Relief and Equitable Relief
Count 5 of Plaintiff’s Amended Complaint seeks declaratory judgment that the purported
USB 3.0 port in the Samsung Chromebooks at issue does not comply with the USB 3.0
specification. (Am. Compl. ¶¶ 142-45). Count 7 of the Amended Complaint seeks equitable class
relief pursuant to Fed. R. Civ. P. 23(b)(2). (Am. Compl. ¶¶ 154-58).
Samsung argues that Plaintiff cannot seek declaratory or injunctive relief because (1) he
has not adequately pled any underlying cause of action, and (2) Plaintiff “cannot show a likelihood
that he will suffer future injury from Samsung’s purported conduct [because] Plaintiff has not
27
alleged that he intends to purchase another Chromebook.” (Def. Mov. Br. at 30). Because Plaintiff
has adequately pled at least one underlying cause of action, it only addresses Defendant’s argument
that injunctive relief is barred because Plaintiff has not alleged the likelihood of future injury.9
Samsung’s argument relies on the Third Circuit’s opinion in McNair v. Synapse Group,
Inc., 672 F.3d 213, 222-27 (3d Cir. 2012). (Id.). In McNair, the Third Circuit held that when
“prospective relief is sought, the plaintiff must show that he is ‘likely to suffer future injury’ from
the defendant’s conduct.” 672 F.3d at 223 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983)). “In the class action context, that requirement must be satisfied by at least one named
plaintiff.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975)). Moreover, there must be a
real and immediate threat of injury, and “[p]ast exposure to illegal conduct does not in itself show
a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” Id. (internal citations and quotation marks omitted). Accordingly, in
McNair, the Third Circuit held that the named plaintiffs, former magazine subscribers, lacked
standing to sue for class-wide injunctive relief where there was no allegation that any named
plaintiff was likely to re-subscribe and consequently suffer the alleged injury again in the future.
Id. at 222-27.
Plaintiff attempts to distinguish McNair on two grounds. First, Plaintiff argues that, unlike
in McNair, Plaintiff has alleged a reasonable likelihood of future injury. (Pl. Opp. Br. at 27 (citing
Am. Compl. ¶ 55)). Second, Plaintiff argues that, unlike in McNair, Plaintiff is not a “former
customer,” but rather a present owner of a Samsung Chromebook and a “current recipient of
9
Though it is not entirely clear, the Court interprets Samsung’s brief as arguing that only injunctive relief
(and not declaratory relief) is barred by Plaintiff’s insufficient pleading regarding future conduct. (Def.
Mov. Br. at 30). Accordingly, Plaintiff’s claim for declaratory relief (Count 5) survives.
28
Samsung’s advertising campaign and representations regarding the USB capabilities of its
products.” (Id. (citing Am. Compl. ¶¶ 55, 101)).
Neither argument is meritorious. First, though Plaintiff argues in his brief that he has
alleged the likelihood of future injury, the allegation that Plaintiff relies on is inadequate. Plaintiff
alleges that “Plaintiff intends to purchase Samsung products in the future, and therefore is likely
to be deceived again by any misrepresentations with respect to the USB capabilities of such
Samsung products.” (Am. Compl. ¶ 55). However, this allegation merely states that Plaintiff
intends to purchase Samsung products generally in the future—not that Plaintiff intends to
purchase the Series 3 Chromebook in the future. As Defendant points out, Plaintiff’s allegation
that he intends to purchase Samsung products in the future “could include anything from
televisions and cell phones to washing machines.” (Def. Rep. Br. at 15). Plaintiff has not alleged
that he will be harmed a second time by the misrepresentation that the Series 3 Samsung
Chromebook contains a USB 3.0 port. His general allegation is insufficient to plead a recurrence
of the specific injury that Plaintiff has alleged.
Plaintiff’s second argument—that McNair is distinguishable because Plaintiff is a current
owner, not a former customer—is also unavailing. In Dicuio, 2012 WL 3278917, at *15, the court
held that “[w]hile McNair involved former customers, and the plaintiffs here still own and use
their printers, I find the circuit’s holding nonetheless dispositive here.” 2012 WL 3278917, at *15.
The Court agrees. “As framed by McNair, the standing question is whether a putative class
representative has alleged that he or she will be harmed, a second time, by the misrepresentation,
not whether he or she will be harmed by the operation of the product itself.” Id. There is no basis
for the Court to determine that Plaintiff will be harmed by continued exposure to the alleged
misrepresentations as a “current recipient of Samsung’s advertising campaign and representations
29
regarding the USB capabilities of its products.” (See Pl. Opp. Br. at 27); see also Robinson v.
Hornell Brewing Co., No. 11-2183, 2012 WL 1232188, at *5 (D.N.J. Apr. 11, 2012) (“merely
seeing a label that Plaintiff believes is incorrect or that he believes could be misleading to others
is not the kind of concrete adverse effect or injury necessary to create a cognizable case or
controversy required by Article III.”10)
As the Third Circuit held in McNair, “the law accords people the dignity of assuming that
they act rationally, in light of the information that they possess.” McNair, 672 F.3d at 225.
Accordingly, there is no reason for the Court to conclude—based on Plaintiff’s allegation or
anything else—that there is a reasonable likelihood that Plaintiff will suffer a future injury. As a
result, Plaintiff’s claim for injunctive relief (Count 7) must be dismissed.
V.
CONCLUSION
For the reasons above, it is on this 29th day of June 2015,
ORDERED that Samsung’s motion to dismiss Plaintiff’s Amended Complaint, (D.E. No.
16), is granted without prejudice with respect to Counts 2, 4, and 7; and it is further
ORDERED that Samsung’s motion to dismiss Plaintiff’s Amended Complaint, (D.E. No.
16), is granted with prejudice with respect to Count 6; and it is further
ORDERED that Samsung’s motion to dismiss Plaintiff’s Amended Complaint, (D.E. No.
16), is denied with respect to the remaining counts; and it is further
ORDERED that the Clerk of the Court shall terminate D.E. Nos. 8 and 16.
SO ORDERED.
/s Esther Salas
Esther Salas, U.S.D.J.
10
Though the plaintiff in Robinson was a former customer, the reasoning behind the court’s decision
applies here, where the alleged basis for a future injury was continued exposure to misrepresentations.
30
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