Vivar v. Apple Inc.

Filing 27

ORDER: For the reasons stated above, it is hereby ORDERED that the motion (Dkt. No. 23-1) filed by defendant Apple Inc. to dismiss the amended complaint (Dkt. No. 22), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is GRANTE D with prejudice to leave to amend. The Clerk of Court is respectfully directed to close this case and terminate any pending motions. SO ORDERED. (Signed by Judge Victor Marrero on 6/6/2023) (rro) Transmission to Orders and Judgments Clerk for processing.

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 1 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
6/5/2023
ALEJANDRO VIVAR, individually and on
behalf of all others similarly
situated,

22 Civ. 0347 (VM)
DECISION AND ORDER

Plaintiffs,
- against APPLE INC.,
Defendant.
VICTOR MARRERO, United States District Judge.

Plaintiff

Alejandro

Vivar

(“Vivar”),

on

behalf

of

himself and all others similarly situated (together with
Vivar, “Plaintiffs”), brings this action against Apple Inc.
(“Apple”), alleging that Apple’s representations about the
battery life of one of its products, Powerbeats Pro wireless
headphones (“Powerbeats”), are materially misleading. (See
“Amended Complaint,” Dkt. No. 22.)
Vivar

asserts

seven

causes

of

action

on

behalf

of

Plaintiffs: (1) violation of New York General Business Law
(“NY GBL”) Section 349; (2) violation of NY GBL Section 350;
(3) violation of the consumer fraud acts of the states in
which the remaining Plaintiffs reside, specifically Michigan,
Montana, Rhode Island, Georgia, North Dakota, South Dakota,
and Oklahoma (the “Non-New York Class”); (4) breach of express

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 2 of 14

warranty; (5) breach of implied warranty of merchantability;
(6) violation of the Magnuson Moss Warranty Act, 15 U.S.C.
Sections 2301, et seq.; and (7) unjust enrichment.
Now before the Court is Apple’s motion to dismiss the
Amended Complaint in its entirety pursuant to Rules 12(b)(6)
and 12(b)(2) of the Federal Rules of Civil Procedure. 1 (See
“Memorandum and Motion” or “Motion,” Dkt. No. 23-1.) For the
reasons

stated

below,

Apple’s

Motion

is

GRANTED

with

prejudice to leave to amend.
I.

BACKGROUND

The background of this case was previously set forth in
the

Court’s

September

12,

2022

Decision

and

Order

(the

“September 12 Order”, Dkt. No. 21), which dismissed Vivar’s
original complaint (see “Original Complaint,” Dkt. No. 1)
without prejudice to leave to amend. The Court held that the
Original Complaint’s claims that Apple misrepresented that
the Powerbeats would be “defect-free” and “charge equally and
consistently” failed because the Original Complaint did not
contain any facts to substantiate that Apple had made such
representations. (See September 12 Order at 14-16.)

Vivar’s request for injunctive relief in the Amended Complaint was made
in error and so the Court need not address Apple’s corresponding Rule
12(b)(1) argument. (See “Opposition,” Dkt. No. 23-2, at 1 n.1; Memorandum
and Motion at 3.)
1

2

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 3 of 14

Following the issuance of the September 12 Order, Vivar
filed the Amended Complaint, adding the advertisement below,
which allegedly contains the misrepresentations Vivar relied
upon regarding the Powerbeats’ battery life. The Amended
Complaint otherwise made minimal alterations to the Original
Complaint.

(Amended Complaint ¶ 2.)
The

parties

anticipation

of

then
Apple

exchanged
moving

to

pre-motion
dismiss

letters
the

in

Amended

Complaint, and the parties consented to the Court deeming
Apple’s motion to dismiss as fully briefed and submitted based
on the parties’ respective pre-motion letters. (See Dkt. Nos.
23, 23-1, 23-2, 26.)
II.

LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
3

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 4 of 14

to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). This standard is met “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. In other words, a complaint
should

not

be

dismissed

when

the

factual

allegations

sufficiently “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
In resolving a Rule 12(b)(6) motion, the Court’s task is
“to assess the legal feasibility of the complaint, not to
assay the weight of the evidence which might be offered in
support thereof.” In re Initial Pub. Offering Sec. Litig.,
383 F. Supp. 2d 566, 574 (S.D.N.Y. 2005) (internal quotation
marks omitted), aff’d sub nom. Tenney v. Credit Suisse First
Boston Corp., No. 05 Civ. 3430, 2006 WL 1423785 (2d Cir. May
19, 2006); accord In re MF Glob. Holdings Ltd. Sec. Litig.,
982 F. Supp. 2d 277, 302 (S.D.N.Y. 2013). In this context,
the Court must construe the complaint liberally, “accepting
all factual allegations in the complaint as true, and drawing
all reasonable inferences in the plaintiff’s favor.” See
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002).

The

requirement

that

a
4

court

accept

the

factual

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 5 of 14

allegations in the complaint as true does not, however, extend
to legal conclusions. See Iqbal, 556 U.S. at 678.
A district court must confine its consideration “to
facts stated on the face of the complaint, in documents
appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be
taken.” Leonard F. v. Israel Disc. Bank of New York, 199 F.3d
99, 107 (2d Cir. 1999) (internal quotation marks omitted).
III. DISCUSSION
A.

THE GENERAL BUSINESS LAW CLAIMS
As the Court previously observed in its September 12

Order, “[i]t is well settled that a court may determine as a
matter of law that an allegedly deceptive advertisement would
not have misled a reasonable consumer.” Fink v. Time Warner
Cable, 714 F.3d 739, 741 (2d Cir. 2013). Determining whether
a

product

label

or

advertisement

is

misleading

is

an

“objective” test, and thus liability is “limited to those
[representations] likely to mislead a reasonable consumer
acting reasonably under the circumstances.” Oswego Laborers’
Local 214 Pension Fund v. Marine Midland Bank, 647 N.E.2d
741, 745 (N.Y. 1995); see also Fink, 714 F.3d at 741.
As an initial matter, as was the case with the Original
Complaint,

the

Amended

Complaint
5

entirely

fails

to

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 6 of 14

“substantiate that Apple conveyed in writing and promised
Powerbeats

would

be

defect-free

and

made

representations

affirming and promising that the Product would maintain its
charge equally and consistently.” (September 12 Order at 1415 (alterations and internal quotation marks omitted).) 2 Thus,
Vivar’s claims under NY GBL Sections 349 and 350 fail because
Vivar has not identified either the supposed “deceptive acts
or practices” or the “false advertising.” See McVetty v.
Tomtom North America, Inc., No. 19 Civ. 4908, 2022 WL 2789760,
at *3-4 (S.D.N.Y. July 15, 2022) (describing the elements of
NY GBL Sections 349 and 350).
Accordingly,

for

the

reasons

stated

above,

Apple’s

Motion to dismiss Vivar’s GBL Section 349 and 350 claims is
GRANTED.
B.

THE NON-NEW YORK CLASS CLAIMS
In light of Vivar’s failure to provide a copy of the

allegedly

misleading

advertisements,

Apple’s

Motion

to

As the Court noted in its September 12 Order, though the Court could
arguably read the pleadings to mean that the crux of Vivar’s claims is
that Apple misrepresented the Powerbeats’ capability of holding a charge
“up to” a certain number of hours, Vivar previously notified the Court in
his opposition to Apple’s motion to dismiss the Original Complaint that
his claims were not simply based on Apple’s “up to” representations, but
instead on Apple’s representations that the Powerbeats would be “defect
free” and “charge equally and consistently.” (September 12 Order at 1314; Dkt. No. 11-2, at 2 (stating that “the Complaint is based on the
defective design and manufacture of the Product’s case,” and “Defendant
‘promised [the Product] would be defect-free’” (alterations in
original)).)
2

6

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 7 of 14

dismiss the Non-New York Class claims, which are also premised
on the allegedly misleading advertisements, is GRANTED.
C.

THE EXPRESS WARRANTY, IMPLIED WARRANTY, AND MAGNUSONMOSS WARRANTY ACT CLAIMS
Similarly, Vivar’s claim for breach of express warranty

fails because Vivar has not identified the “affirmation of
fact or promise made by the seller to the buyer which relates
to the goods and bec[ame] part of the basis of the bargain”
or a “description of the goods” that has been breached, which
is required to state a claim for breach of express warranty
under New York Uniform Commercial Code Section 2-313(1).
Vivar’s claim for breach of express warranty, as well as
his

implied

warranty

claim,

fails

for

the

separate

and

independent reason that Vivar has not plausibly alleged that
he provided Apple with pre-suit notice for breach of warranty,
as required by New York Uniform Commercial Code Section
2-607(3)(a). See Gordon v. Target Corporation, No. 20 Civ.
9589,

2022

(explaining

WL

836773,

pre-suit

at

*14

notice

(S.D.N.Y.

requirements

Mar.

18,

under

2022)

New

York

Uniform Commercial Code Section 2-607(3)(a)); Campbell v.
Whole Foods Market Grp., Inc., 516 F. Supp. 3d 370, 391-92
(S.D.N.Y.
implied

2021)

warranty

(discussing

and

claims

failure

for

notice).
7

dismissing
to

express

provide

and

pre-suit

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 8 of 14

The Court rejects Vivar’s sweeping argument that the
pre-suit notice requirement for an express warranty claim has
“long been jettisoned in New York state for retail consumers.”
(Opposition at 2 (quoting Gavilanes v. Gerber Prods. Co., No.
20 Civ. 5558, 2021 WL 5052896, at *7 (E.D.N.Y. Nov. 1,
2023)).) At most, a minority of courts have recognized an
exception

to

the

pre-suit

notice

requirement

where

the

product is for human consumption and caused physical injury.
See Wheeler v. Topps Company, Inc., No. 22 Civ. 2264, 2023 WL
405015, at *5 (S.D.N.Y. Jan. 25, 2023) (analyzing the history
of the exception, noting its role as a minority view, and
collecting cases declining to apply it). Vivar has claimed no
such

injury,

so

his

reliance

on

any

such

exception

is

misplaced and ineffectual. Further, the vague and conclusory
notice allegations in the Amended Complaint are insufficient
to avoid dismissal of the express or implied warranty claims
because they do not allege that Vivar actually provided notice
as required under New York law. (See Amended Complaint ¶¶ 9193.) See, e.g., Gordon, 2022 WL 836773, at *14 (finding that
similar language failed to sufficiently allege that defendant
was provided pre-suit notice as required by New York Uniform
Commercial Code Section 2-607(3)(a)).

8

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 9 of 14

Vivar’s implied warranty claim also fails because Vivar
lacks

privity

with

Apple.

See

Turk

v.

Rubbermaid

Incorporated, No. 21 Civ. 0270, 2022 WL 836894, at *10-11
(S.D.N.Y. Mar. 21, 2022) (discussing the privity requirement
for implied warranty claims and dismissing implied warranty
claim

for

lack

of

privity).

As

alleged

in

the

Amended

Complaint, Vivar purchased the Powerbeats from Best Buy, not
directly from Apple. (See Amended Complaint ¶ 49.) As such,
no

privity

exists

between

Vivar

and

Apple,

and

Vivar’s

argument to the contrary 3 is meritless. (See Opposition at
3.)
Consequently,

Vivar’s

claim

for

violation

of

the

Magnuson Moss Warranty Act likewise fails because such a claim
requires a plaintiff to have adequately pled a cause of action
for breach of written or implied warranty under state law,
which Vivar has failed to do here. See 15 U.S.C. §2310(d)(1)
(limiting civil actions under the Magnuson Moss Warranty Act
to “a consumer who is damaged by the failure of a supplier,
warrantor,

or

service

contractor

to

comply

with

any

obligation under this chapter, or under a written warranty,

Vivar argues that “in a ‘world of advertising’ and ‘mass communications
media,’ ‘it is highly unrealistic to limit a purchaser’s protection to
warranties made directly to him by his immediate seller.’” (Opposition at
3.) Vivar provides no support for this position or a source for his
quotations.
3

9

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 10 of 14

implied warranty, or service contract”); see also Wheeler,
2023 WL 405015, at *5 (dismissing Magnuson Moss Warranty Act
claim for failure to plead a breach of warranty claim under
state law).
Accordingly,

for

the

reasons

stated

above,

Apple’s

Motion to dismiss Vivar’s express warranty, implied warranty
claim, and Magnuson Moss Warranty Act claim is GRANTED.
D.

THE UNJUST ENRICHMENT CLAIM
In New York, an unjust enrichment claim “require[s]

proof that (1) defendant was enriched, (2) at plaintiff's
expense, and (3) equity and good conscience militate against
permitting defendant to retain what plaintiff is seeking to
recover.” Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc.,
373 F.3d 296, 306 (2d Cir. 2004). Thus, unjust enrichment
“lies

as

a

quasi-contract

claim”

that

“contemplates

an

obligation imposed by equity to prevent injustice, in the
absence of an actual agreement between the parties.” Georgia
Malone & Co. v. Rieder, 973 N.E.2d 743, 746 (N.Y. 2012)
(internal quotation marks and citations omitted). An unjust
enrichment claim is “available only in unusual circumstances
when, though the defendant has not breached a contract nor
committed

a

recognized

equitable

obligation

tort,

running
10

circumstances

from

the

create

defendant

to

an
the

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 11 of 14

plaintiff.” Corsello v. Verizon N.Y., Inc., 967 N.E.2d 1177,
1185 (N.Y. 2012). Thus, an “unjust enrichment claim is not
available

where

it

simply

duplicates,

or

replaces,

a

conventional contract or tort claim.” Id.
Vivar’s claim for unjust enrichment fails for just that
reason: it simply duplicates Vivar’s conventional claims for
breach of warranty and deceptive practices, i.e., contract
and tort. Vivar’s unjust enrichment claim is premised on the
same factual allegations supporting his other claims, and he
has not alleged distinct damages. See NetJets Aviation, Inc.
v. LHC Commc’ns, LLC, 537 F.3d 168, 175 (2d Cir. 2008)
(explaining

how

under

New

York

law

“[t]wo

claims

are

duplicative of one another if they arise from the same facts
and do not allege distinct damages”); see also Gordon, 2022
WL

836773,

at

*18

(collecting

cases

dismissing

unjust

enrichment claims as duplicative). Though Vivar is correct
that Federal Rule of Civil Procedure 8(e)(2) allows a party
to “plead two or more statements of a claim, even within the
same count, regardless of consistency,” it does not preclude
dismissal

of

unjust

enrichment

claims

that

“simply

duplicate[], or replace[], a conventional contract or tort
claim.” (See Opposition at 3 (citing Henry v. Daytop Village,
Inc., 42 F.3d 89, 95 (2d Cir. 1994))); Corsello, 967 N.E.2d
11

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 12 of 14

at 1185. Indeed, the Amended Complaint does not plausibly
allege

an

“unusual

situation”

where

“defendant

has

not

breached a contract nor committed a recognized tort,” but has
nonetheless created “an equitable obligation running from the
defendant to the plaintiff.” Corsello, 967 N.E.2d at 1185.
The allegations specific to Vivar’s unjust enrichment claim
in the Amended Complaint underscore that this claim has been
pled as a catchall, albeit one that fails to catch anything:
“Defendant obtained benefits and monies because the Product
was not as represented and expected, to the detriment and
impoverishment
restitution

of

plaintiff

and

and

disgorgement

class
of

members,

inequitably

who

seek

obtained

profits.” (Amended Complaint ¶ 98.) No claim for unjust
enrichment has been stated.
Accordingly,

for

the

reasons

stated

above,

Apple’s

Motion to dismiss Vivar’s unjust enrichment claim is GRANTED.
E.

LEAVE TO AMEND
Though Federal Rule of Civil Procedure 15(a) provides

that a court should freely grant leave to amend when justice
so requires, leave may be denied “for good reason, including
futility.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,
200 (2d Cir. 2007) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)). Here, the Court’s September 12 Order provided Vivar
12

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 13 of 14

with a simple and clear mandate of how to amend the Original
Complaint in order to support Vivar’s GBL Section 349, GBL
Section 350, and express warranty claims: Apple’s alleged
misrepresentations that the Powerbeats would be defect free
and would keep its charge equally and consistently. (See
September 12 Order at 14-15.)
Even with this clear mandate, the advertisement added in
the Amended Complaint contained no such representations, and
the Amended Complaint did not otherwise plausibly identify
another source of the alleged representations. 4 Vivar has
failed to provide a copy of these representations despite
having alleged that they were “conveyed in writing” and that
he relied on them. (Amended Complaint ¶ 86.) The Court thus
finds that granting Vivar leave to further amend the claims
reliant on these alleged representations, specifically the
GBL Section 349, GBL Section 350, and express warranty claims,
would be futile.
Moreover, granting Vivar leave to amend his implied
warranty claim would be futile because Vivar has already made

The advertisement also may be incomplete. (Compare Amended Complaint
¶ 2 with Memorandum and Motion Ex. A.) Because dismissal of Vivar’s claims
is warranted on other grounds, the Court need not address the effect of
the disclaimer language missing from the copy of the advertisement
presented in the Amended Complaint. The Court previously explained the
importance of presenting the advertisement at issue, and a complete copy
at that. (See September 12 Order at 15-16.)
4

13

Case 1:22-cv-00347-VM Document 27 Filed 06/06/23 Page 14 of 14

clear that any privity that exists regarding his purchase of
the Powerbeats lies with Best Buy and not with Apple. (Id. ¶
49.) Providing an opportunity to amend will not alter this
fact.
Lastly, the Court finds that granting Vivar leave to
amend his unjust enrichment claim would be futile given that
Vivar cannot identify the representations that the Powerbeats
allegedly failed to live up to, such that “equity and good
conscience” would deem Apple to have been unjustly enriched.
Corsello, 967 N.E.2d at 1185.
IV.

ORDER

For the reasons stated above, it is hereby
ORDERED

that

the

motion

(Dkt.

No.

23-1)

filed

by

defendant Apple Inc. to dismiss the amended complaint (Dkt.
No. 22), pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure is GRANTED with prejudice to leave to amend.
The Clerk of Court is respectfully directed to close this
case and terminate any pending motions.
SO ORDERED.
Dated:

New York, New York
6 June 2023
________________________
Victor Marrero
U.S.D.J.
14