Fasttrac Transportation, LLC v. Pedigree Technologies, LLC

Filing 15

ORDER by Chief Judge Peter D. Welte granting in part and denying in part 5 Motion to Dismiss; denying 7 Motion for More Definite Statement (JS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
FastTrac Transportation, LLC,
Plaintiff,
vs.

ORDER
Case No. 3:22-cv-53

Pedigree Technologies, LLC,
Defendant.
Before the Court is Defendant Pedigree Technologies, LLC’s (“Pedigree”) motion to
dismiss Plaintiff FastTrac Transportation, LLC’s (“FastTrac”) complaint for failure to state a claim
upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the
alternative, a more definite statement filed on May 9, 2022. Doc. Nos. 5-7. FastTrac filed a
response on May 26, 2022 (Doc. No. 10), and Pedigree filed its reply on June 9, 2022. Doc.
No. 11. FastTrac then filed a surreply on June 27, 2022. Doc. No. 14. For the reasons set forth
below, Pedigree’s motion to dismiss is granted in part and denied in part, and the motion for a
more definite statement is denied.
I.

BACKGROUND
The factual background, which the Court must accept as true for the purposes of this

motion, is taken from FastTrac’s complaint. Doc. No. 1. This case centers on a dispute over a
contract and its terms and warranties. Attached to the complaint is a copy of the OneView Contract
Agreement (the “Agreement”) between FastTrac and Pedigree. Doc. No. 1-1. On or about June 19,
2019, Pedigree and FastTrac entered into the Agreement. Id. Per the Agreement, Pedigree agreed
to provide FastTrac with a total of 750 units of their forward-facing dash camera and 750 units of
their Cab-Mate One electronic touchscreen tablet. Id. In addition to receiving Pedigree’s dash cams

and tablets, FastTrac also gained access to Pedigree’s OneView web-based platform. Id. FastTrac
further agreed to pay Pedigree a recurring monthly fee for a term of 36 months. Id.
In its complaint, FastTrac alleges the purchased products did not perform as Pedigree
represented, and as a result, FastTrac needed to purchase replacement products. FastTrac asserts
four separate causes of action against Pedigree. Doc. No. 1, ¶¶ 23-46. Specifically, FastTrac asserts
claims of breach of contract, breach of express and implied warranties, fraud and fraudulent
misrepresentation, and products liability. Id. All claims are brought under North Dakota law as
required by the Agreement. Doc. No. 1-1.
II.

LAW AND ANALYSIS
Pedigree moves for dismissal of FastTrac’s complaint for failure to state a claim upon

which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative,
Pedigree argues FastTrac should be ordered to provide a more definite statement under Federal
Rule of Civil Procedure 12(e). FastTrac responds that the complaint sufficiently pleads all claims
against Pedigree and that there is no need to provide a more definite statement.
A.

Relevant Rule 12 Standards.

Federal Rule of Civil Procedure 8(a) requires a pleading only to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Nevertheless, a complaint
may be dismissed for “failure to state a claim upon which relief can be granted,” and a party may
raise that defense by motion. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a
complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must show that
success on the merits is more than a “sheer possibility.” Id.

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Plausibility is established when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Threadbare recitals supported by conclusory statements,
however, do not suffice to meet the plausibility requirement.
Brookins Hybrid Drive Sys., LLC v. M.A.C., Inc., 3:12-CV-101, 2013 WL 12086636, at *2
(D.N.D. May 2, 2013). A complaint does not need detailed factual allegations, but it must contain
more than labels and conclusions. Bell Atl. Corp. v. Twombly, 551 U.S. 544, 555 (2007).
As noted above, the Court must accept all factual allegations in the complaint as true,
except for legal conclusions or “formulaic recitation of the elements of a cause of action.” Iqbal,
556 U.S. at 681. The determination of whether a complaint states a claim upon which relief can be
granted is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. “[T]he complaint should be read as a whole, not parsed
piece by piece to determine whether each allegation, in isolation, is plausible.” Wilson v. Ark.
Dep’t of Hum. Servs., 850 F.3d 368, 371-72 (8th Cir. 2017). The burden is on the moving party to
prove that no legally cognizable claim for relief exists.
Rule 12(e) of the Federal Rules of Civil Procedure provides that a party may move for a
more definite statement if the pleading “is so vague or ambiguous that the party cannot reasonably
prepare a response.” Motions for a more definite statement are generally disfavored considering
the liberal discovery available under the federal rules, and such motions are granted only when a
party is unable to determine the issues requiring a response. Shaffer v. Eden, 209 F.R.D. 460, 464
(D. Kan. 2002) (citing Resolution Trust Corp. v. Thomas, 837 F. Supp. 354, 355 (D. Kan. 1993)).
A motion for a more definite statement must be balanced with the requirement in Rule 8(a) of the
Federal Rules of Civil Procedure that the pleading be “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Jackson Nat’l Life Ins. Co. v. Gofen & Glossberg,
Inc., 882 F. Supp. 713, 726 (N.D. Ill. 1995). “Rule 12(e) provides a remedy for unintelligible

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pleadings; it is not intended to correct a claimed lack of detail.” Ransom v. VFS, Inc., 918 F. Supp.
2d 888, 900 (D. Minn. 2013). “[W]hen examining whether a more definite statement is required
under Rule 12(e), the only question is whether it is possible to frame a response to the pleading.”
Id.
B.

Breach of Contract

FastTrac’s first claim against Pedigree is for breach of contract. Specifically, the complaint
provides:
Pedigree has breached the Agreement by failing to comply with its obligations
under the Agreement and by manifesting through its express words and actions an
absolute repudiation of its obligations under the Agreement, for which it has no
excuse.
Doc. No. 1, ¶ 25. Pedigree argues that this is too general an allegation to survive a motion to
dismiss and that FastTrac must identify any specific provision of the Agreement they are asserting
was breached. FastTrac argues that the standard is not as rigid as Pedigree contends, and that when
their factual allegations are compared to the Agreement, a plausible claim for breach of contract
has been stated.
A breach of contract is the nonperformance of a contractual duty when it is due. Bakke v.
Magi-Touch Carpet One Floor & Home, Inc., 2018 ND 273, ¶ 13, 920 N.W.2d 726, 731 (citing
Restatement (Second) of Contracts § 235(2) (1981)). The elements of a prima facie case for breach
of contract are: (1) the existence of a contract; (2) breach of the contract; and (3) damages which
flow from the breach. Serv. Oil, Inc. v. Gjestvang, 2015 ND 77, ¶ 15, 861 N.W.2d 490, 496.
Here, the factual allegations in the complaint are sufficient to plausibly allege a breach of
contract claim against Pedigree. Doc No. 1, ¶¶ 7-22. Specific to existence of the contract, the
complaint alleges the following:

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Pedigree represented to FastTrac the Pedigree System would provide continuous
recording from and access to the Dash Cams. Based on the express representations
of and inducement by Pedigree that the Pedigree System would perform as
promised, on or about May 30, 2019, FastTrac and Pedigree entered into the
OneView Contract Agreement (the “Agreement”). A copy of the Agreement is
attached as Exhibit “A.” Based upon the promises and representations of Pedigree,
FastTrac paid Pedigree monthly payments for use of the Pedigree System starting
May 30, 2019. Since the inception of the Agreement, Pedigree has been paid
$714,018.69 pursuant to the Agreement.
Id. ¶ 12. FastTrac asserts that it contracted with Pedigree for a number of dash cams and the
Pedigree OneView web platform. A copy of the Agreement at issue was attached to the complaint.
FastTrac also alleges several ways in which the Pedigree products did not meet or satisfy certain
provisions of the Agreement. And FastTrac asserts that it has been forced to purchase replacement
products at a substantial cost. Id. ¶ 22. While the complaint does not cite an express promise to
provide goods that work as expected,
Promises may be inferred from the general terms or nature of a contract, though not
expressly stated, and if a contract cannot be performed according to its proper
interpretation unless there is some act or forbearance by one of the parties a promise
may often be inferred so to act or forbear.
Restatement (First) of Contracts § 314 (1932). This is an agreement that would make little sense
if Pedigree was not required to provide FastTrac with dash cams that worked properly. Moreover,
FastTrac alleges that Pedigree breached section 5.4 of the Agreement (promise to provide
maintenance and repair if the product is not in good working order), and that Pedigree did not
comply with section 6.1 of the Agreement regarding technological support.
Put simply, FastTrac has alleged that Pedigree did not provide dash cams that complied
with the certain provisions of the Agreement, that Pedigree refused to correct the issues with their
products as promised in the Agreement, and as a result, it was forced to purchase replacement
goods. This is sufficient factual matter, accepted as true, to state a claim for breach of contract
under North Dakota law, and the Court denies Pedigree’s motion to dismiss as to this claim.

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Similarly, because the Court can decipher the required elements of the breach of contract claim
(and the factual allegations supporting that claim), the claim is not so vague or ambiguous that
Pedigree cannot reasonably prepare a response under Rule 12(e). Accordingly, the Court denies
Pedigree’s motion for a more definitive statement on this claim as well.
C.

Breach of Warranties.

In addition to its breach of contract claim, FastTrac alleges breaches of express and implied
warranties against Pedigree. Pedigree argues that FastTrac cannot establish breach of any express
or implied warranty, and even if a warranty did exist, it has been disclaimed. “A party alleging a
breach of warranty has the burden of establishing the existence of a warranty, a breach of warranty,
and that the breach of warranty proximately caused the damages alleged.” Eggl v. Letvin Equip.
Co., 632 N.W.2d 435, 438 (N.D. 2001). The Court finds FastTrac properly alleged the breach of
express warranty claim, but that any implied warranties have been effectively disclaimed.
Express Warranties
FastTrac alleges Pedigree made certain representations about the purchased products that
became part of the basis of the bargain (and thus express warranties), including (1) the product
would help FastTrac with electronic management of its vehicles and automation of driver logbook
entries; (2) the product would provide FastTrac with real-time data regarding the location and
activities of its vehicles and drivers; (3) the product would comply with federal regulations
requiring electronic logging devices (“ELD’s”) in commercial trucking vehicles; (4) the product
would provide continuous recording from and access to the Dash Cams; the product would
accurately and reliably provide data from FastTrac vehicles to the Dash Cams; (6) the product
would properly report the “status” of FastTrac’s drivers; and (7) that the Dash Cams complied with
federal regulations for ELD’s. Doc. No. 10 ¶ 17.

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Under North Dakota law, an express warranty is created through:
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.

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.

c.

Any sample or model which is made part of the basis of the bargain
creates an express warranty that the whole of the goods shall
conform to the sample or model.

N.D. Cent. Code § 41-02-30 (emphasis added). In turn, to support a claim for breach of express
warranties, the plaintiff must plausibly allege “an affirmation of fact or promise made,” a
“description of the goods,” or a “sample or model” communicated by the seller. Id. The
affirmation, description, or sample must also be part of the basis of the bargain. Id. However, to
be considered part of the bargain, the alleged express warranty must be communicated in the
contract. See Fleck v. Jacques Seed Co., Prescott, Wisconsin, 445 N.W.2d 649, 654 (N.D. 1989);
see also Evenson v. Quantum Indus., Inc., 2004 ND 178, ¶ 11, 687 N.W.2d 241 (“All preliminary
negotiations, conversations, and verbal agreements are merged into and superseded by the
subsequent written contract.”).
Here, the Agreement does not contain any of the representations noted above, and as a
result, those representations cannot support a claim for breach of express warranties. Any claims
regarding statements made by Pedigree prior to the Agreement are more appropriately considered
under the fraudulent misrepresentation count, not as an express warranty. See e.g., Golden Eye
Res., LLC v. Ganske, 2014 ND 179, ¶ 18, 853 N.W.2d 544, 551 (oral representations prior to
contracting considered with regard to fraud, but not to contradict or supplement terms of the
contract).

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That being said, FastTrac does allege that Pedigree breached the hardware warranty
contained in section 5.3 of the Agreement. The provision reads as follows:
5.3 Hardware Warranty. Pedigree shall provide a limited warranty on new
Hardware provided to the Client by Pedigree, for a Warranty Period of one (1) year
from date of Shipment to Client’s shipping address. During the Warranty Period,
the Hardware shall be repaired by Pedigree (or its third party vendor) due to issues
related to materially defective materials, materially faulty workmanship, or
incapability of connecting to Communications Networks. These obligations shall
not apply to: (i) hardware normally consumed in operation such as fuses, cables,
antennae or mounting brackets; or (ii) defects which, due to no fault of Pedigree,
are the result of: (a) Client’s unauthorized or improper use of the Hardware
(improper operation and/or use with other equipment); (b) detrimental exposure to
weather, water, and/or fire; (c) involvement in any accident, explosion, or Act of
God; (d) tampering, alteration or repair by any party other than Pedigree or its
authorized installers without Pedigree's prior written consent; or (e) broken seal,
improper storage, installation or implementation, alteration to external antenna by
Client.
In Paragraph 17 of the complaint FastTrac alleges:
FastTrac has repeatedly sought technical assistance from Pedigree to find a remedy
for the flaws in the Pedigree System. Instead of correcting the issues with the
Pedigree System, Pedigree has failed to provide any meaningful response.
Pedigree’s technical support is unavailable during crucial hours of the day, its
responses to requests from FastTrac have been insufficient, and Pedigree’s own
management has refused or is unwilling to take any corrective action. Pedigree
failed to timely respond to service requests and often failed to respond at all.
Further, paragraphs 20 and 21 of the complaint allege:
After numerous attempts to work through the issues in good faith with Pedigree,
FastTrac sent Pedigree a demand to cure on August 13, 2021.
Not only did Pedigree fail to cure its own defects, but it also attempted to foist the
blame on FastTrac citing unsubstantiated claims of lack of “product training” and
recommending “effective change management.”
While paragraphs 17, 20, and 21 of the complaint do not reference the hardware warranty, there
are sufficient facts, when taken with section 5.3 of the Agreement, for the Court to conclude that
a plausible breach of express warranty claim is alleged.

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Even so, Pedigree argues it effectively disclaimed that warranty. Under the North Dakota
Uniform Commercial Code (“UCC”), all warranties can be excluded or modified. N.D. Cent. Code
§ 41–02–33. The disclaimer language of the contract that applies to the hardware warranty is as
follows:
PEDIGREE EXPRESSLY DISCLAIMS ANY AND ALL OTHER PROMISES
OR REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE
WHETHER EXPRESS [OR] IMPLIED
***
PEDIGREE DOES NOT WARRANT THAT THE LICENSED TECHNOLOGY
OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY, OR
SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT’S
REQUIREMENTS OR THAT THE OPERATIONS THEREOF WILL BE
UNINTERRUPTED OR ERROR-FREE
While any warranty may be disclaimed or modified, this authority is not without limitation. Along
those lines, North Dakota Century Code section 41-02-33 provides:
Words or conduct relevant to the creation of an express warranty and words or
conduct tending to negate or limit warranty shall be construed whenever reasonable
as consistent with each other; but subject to the provisions of this chapter on parol
or extrinsic evidence (section 41-02-09), negation or limitation is inoperative to the
extent that such construction is unreasonable.
In other words, an express warranty and a limitation or negation of said warranty can only co-exist
to the extent such as construction is reasonable. The Court cannot reconcile as reasonable a contract
that provides a warranty to repair hardware that then purports to effectively eliminate any duty to
repair faulty hardware, as Pedigree suggests. When a warranty and disclaimer cannot be reasonably
reconciled, the language of the express warranty controls. See DJ Coleman, Inc. v. Nufarm
Americas, Inc., 693 F. Supp. 2d 1055, 1067 (D.N.D. 2010). Accordingly, at this stage, and
accepting FastTrac’s allegations true, FastTrac has plausibly alleged a breach of express warranty

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claim as to the hardware warranty, and the Court denies Pedigree’s motion to dismiss as to the
express warranties claim.
Implied Warranties
Pedigree next moves to dismiss the FastTrac’s breach of implied warranties claim, arguing
there are no allegations of a sale or that Pedigree is a merchant with respect to the goods sold. In
its response, FastTrac opposed dismissal of their implied warranty claim, but provided no analysis
of how it had plausibly stated a claim for breach of implied warranties. Count II of the complaint
provides that “[d]ue to failures of the Pedigree System, Pedigree has breached [an implied]
warrant[y] that the Pedigree System is fit for its intended purposes.” Doc. No. 1 ¶ 27.
North Dakota codified the UCC’s implied warranties—the warranty of merchantability and
warranty of fitness for a particular purpose—in North Dakota Century Code sections 41-02-31 and
41-02-32. These statutes provide in relevant part:
1.

Unless excluded or modified (section 41-02-33), a warranty that the goods
shall be merchantable is implied in a contract for their sale if the seller is a
merchant with respect to goods of that kind[.]

***
If the seller at the time of contracting has reason to know any particular purpose for
which the goods are required and that the buyer is relying on the seller’s skill or
judgment to select or furnish suitable goods, there is unless excluded or modified
under the next section an implied warranty that the goods shall be fit for such
purpose.
N.D. Cent. Code §§ 41-02-31(1), 41-02-32 (emphasis added). To sustain a claim for breach of an
implied warranty, FastTrac must plausibly allege that Pedigree sold the goods in question and that
they are a merchant with respect to the goods. “A ‘Sale’ consists in the passing of title from the
seller to the buyer for a price. N.D. Cent. Code § 41-02-06(1)(d). A “merchant” is a party who
deals in goods of the kind or otherwise represents as having knowledge or skill peculiar to the
practices or goods involved in the transaction. N.D. Cent. Code § 41-02-04.

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As to the existence of a sale between Pedigree and FastTrac, the complaint alleges the
following:
Pedigree offered to sell FastTrac its dual-view CameraView Dash Cam system (the
“Dash Cam”), including licenses of its fleet management software system with
diagnostics.
FastTrac and Pedigree entered into the OneView Contract Agreement (the
“Agreement”). A copy of the Agreement is attached as Exhibit “A.” Based upon
the promises and representations of Pedigree, FastTrac paid Pedigree monthly
payments for use of the Pedigree System starting May 30, 2019. Since the inception
of the Agreement, Pedigree has been paid $714,018.69 pursuant to the Agreement.
Doc. No. 1, ¶¶ 9, 12. While the complaint does not literally state that a sale occurred, the
Agreement suggests otherwise, and because FastTrac alleges Pedigree offered to sell goods, there
was an agreement reached, and then provided money in exchange for the goods in question—the
Court concludes a sale has been plausibly alleged. As to whether Pedigree has been alleged to be
a merchant, the complaint alleges:
Pedigree is a provider of software and hardware solutions which Pedigree claims
(and regularly advertises) are designed to help companies track, monitor, and
diagnose high-value assets and collaborate with mobile workers through Pedigree’s
proprietary “OneView” platform. According to Pedigree’s website, the Pedigree
system provides companies with “complete visibility into their operations, allowing
them to make better business decisions.”
Doc. No. 1, ¶ 8. Again, while not stated precisely, there are factual allegations that Pedigree deals
in the specific goods that were sold to FastTrac, and that they have held themselves out to have
knowledge and skill specific to the goods sold. In turn, the Court concludes FastTrac has plausibly
alleged that Pedigree is a merchant.
However, the analysis does not end here. Pedigree goes on to argue that even if they
engaged in a sale and are technically a merchant, they have disclaimed any implied warranties.
North Dakota Century Code section 41-02-33 governs the exclusion or modification of warranties
and states:

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[T]o exclude or modify the implied warranty of merchantability or any part of it the
language must mention merchantability and in case of a writing must be
conspicuous, and to exclude or modify any implied warranty of fitness the
exclusion must be by a writing and conspicuous.
Conspicuous is defined as, “so written, displayed, or presented that a reasonable person against
which it is to operate ought to have noticed it.” N.D. Cent. Code § 41-01-09(2)(j). The relevant
statute also provides that conspicuous terms include the following:
(1)
A heading in capitals equal to or greater in size than the surrounding text,
or in contrasting type, font, or color to the surrounding text of the same or lesser
size;
and
(2)
Language in the body of a record or display in larger type than the
surrounding text, or in contrasting type, font, or color to the surrounding text of the
same size, or set off from surrounding text of the same size by symbols or other
marks that call attention to the language.
N.D. Cent. Code § 41-01-09(2)(j).
The relevant disclaimer provision in Agreement, which is attached to the complaint, reads
as follows:
8.1 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE HARDWARE, THE LICENSED TECHNOLOGY
AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES
PROVIDED BY PEDIGREE ARE PROVIDED “AS IS” AND “WITH ALL
FAULTS,” AND PEDIGREE EXPRESSLY DISCLAIMS ANY AND ALL
OTHER PROMISES, REPRESENTATIONS AND WARRANTIES OF ANY
KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
NON-INFRINGEMENT,
NON-INTERFERENCE,
VALUE
OR
ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF
MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A
PARTICULAR PURPOSE, FITNESS FOR USE FOR LIFE SUPPORT OR
EMERGENCY SITUATIONS OR THE ABSENCE OF ANY DEFECTS
THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE
BY PEDIGREE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING
OR COURSE OF PERFORMANCE. PEDIGREE DOES NOT WARRANT THAT
THE LICENSED TECHNOLOGY OR ANY OTHER INFORMATION,

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MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS
AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE
OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR
THAT ALL ERRORS WILL BE CORRECTED. CLIENT ACKNOWLEDGES
THAT PEDIGREE’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR
THE BENEFIT OF CLIENT ONLY.
Doc. No. 1-1. Here, the disclaimer provision is conspicuous. The provisions disclaiming warranties
and limiting liability are in capital letters, while the remainder of the Agreement is generally in
standard font. The “Disclaimer” heading is also in capital letters with boldface type. Further, above
the disclaimer provision is a heading that states, “DISCLAIMERS, EXCLUSIONS AND
LIMITATION OF LIABILITY.” This heading is also in boldface type and all capital letters.
The Court finds these actions are sufficient to put FastTrac on notice of Pedigree’s disclaimer of
warranties. See e.g., Everkrisp Vegetables Inc. v. Tobiason Potato Co., 870 F. Supp. 2d 745, 754
(D.N.D. 2012) (terms are sufficiently conspicuous to disclaim warranties when the nature of the
wording draws the reader’s attention to them).
To disclaim an implied warranty of merchantability, the disclaimer must specifically
mention “merchantability.” N.D. Cent. Code § 41–02–33(2). Here, the contractual provision
specifically notes it is disclaiming any warranty of merchantability. To disclaim an implied
warranty of fitness, the disclaimer must be in writing and conspicuous. Id. Here, as discussed, the
disclaimer provision was conspicuous. The disclaimer provision also mentioned disclaiming any
warranty of fitness. So, even accepting FastTrac’s allegations as true, on its face the complaint
fails to plausibly allege a breach of implied warranties claim, as those warranties were properly
disclaimed under North Dakota law. Accordingly, the Court grants Pedigree’s motion to dismiss
for failure to state a claim as to FastTrac’s breach of implied warranties claim.

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D.

Fraud/Fraudulent Misrepresentation.

Pedigree next moves to dismiss FastTrac’s claims for fraud and fraudulent
misrepresentation, arguing FastTrac has not satisfied the particularity requirement of Rule 9(b) of
the Federal Rules of Civil Procedure. FastTrac argues they have satisfied the particularity
requirement and have pleaded their fraud claims sufficiently. The Court agrees with Pedigree.
A party’s consent to a contract is not lawful if obtained through fraud. N.D. Cent. Code
§§ 9-03-01 and 9-03-03(3). In determining whether consent to a contract was obtained by fraud,
“actual fraud” means acts intended to deceive another party or to induce the other party to enter
into the contract, including the suggestion as a fact of that which is not true by one who does not
believe it to be true, the suppression of that which is true by one having knowledge or belief of the
fact, a promise made without any intention of performing it, or any other act fitted to deceive. N.D.
Cent. Code § 9-03-08. Constructive fraud is any situation where a party gains an advantage to the
person in fault or anyone claiming under that person, by misleading another to the other’s
prejudice, regardless of intent. N.D. Cent. Code § 9-03-09. “A party who has been induced to enter
a contract by fraudulent misrepresentations may elect to rescind the contract, or to affirm the
contract and recover damages.” Holverson v. Lundberg, 2016 ND 103, ¶ 15, 879 N.W.2d 718,
723.
A heightened pleading standard applies when a complaint alleges fraud. See Fed. R. Civ.
P. 9(b). Rule 9(b) requires a plaintiff to plead “such matters as the time, place and contents of false
representations, as well as the identity of the person making the misrepresentation and what was
obtained or given up thereby.” H & Q Props., Inc. v. Doll, 793 F.3d 852, 856 (8th Cir. 2015)
(citation omitted). To satisfy Rule 9(b), the party alleging fraud “must typically identify the ‘who,
what, where, when, and how’ of the alleged fraud.” BJC Health Sys. v. Columbia Cas. Co., 478

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F.3d 908, 917 (8th Cir. 2007) (quoting United States ex rel. Costner v. URS Consultants, Inc., 317
F.3d 883, 888 (8th Cir. 2003)). The primary purpose of this particularity requirement is to
“facilitate a defendant’s ability to respond and to prepare a defense to charges of fraud.”
Commercial Prop. Invs., Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639, 644 (8th Cir. 1995). The
Court concludes FastTrac has not pleaded sufficient factual allegations for Pedigree to respond
and prepare a defense to a fraud claim.
The alleged fraudulent conduct specifically attributed to Pedigree reads as follows:
FastTrac and Pedigree entered into the Agreement, attached as Exhibit A.
Pedigree had a duty to accurately represent the functions of the Pedigree System
and the support that would be provided to FastTrac in exchange for FastTrac’s
monthly payment sunder the Agreement.
Prior to entering into the Agreement, Pedigree misrepresented the quality, usability,
effectiveness, viability, and ability of the Pedigree System.
FastTrac reasonably relied upon Pedigree’s misrepresentations as an inducement to
entering into the Agreement. Had FastTrac been aware that Pedigree’s
representations were false at the time they were made, FastTrac would not have
entered into the Agreement.
Pedigree’s misrepresentations are material because they relate to substantive
aspects of the Pedigree System that are critical to the successful operation of
FastTrac’s business and relationship with its clients.
Pedigree’s misrepresentations, even if believed to be accurate by Pedigree, were a
positive assertion, in a manner not warranted by the information of the person
making it, of that which is not true though he believes it to be true, constituting
fraud/misrepresentation under North Dakota law, including NDCC § 9-03-08(2).
In addition, upon information and belief, Pedigree knew of and actively concealed
a material defect in the Pedigree System from FastTrac whereby certain wireless
connections could not and would not work properly between the hardware and the
software, constituting fraud/misrepresentation under North Dakota law, including
NDCC § 9-03-08(3).
As a result of the Pedigree’s misrepresentations, FastTrac has been prejudiced and
continues to be financially damaged in an amount to be proven at trial.

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Doc. No. 1 ¶¶ 29-36. As Pedigree notes, these allegations contain no detail with respect to the
substance of the alleged misrepresentations. Standing alone, these assertions are conclusory and
insufficient to state a claim. However, the complaint also specifically alleged the following
misrepresentations in the background section of the complaint:
(1)

the product would help FastTrac with electronic management of its vehicles
and automation of driver logbook entries;

(2)

the product would provide FastTrac with real-time data regarding the
location and activities of its vehicles and drivers;

(3)

the product would comply with federal regulations requiring electronic
logging devices (“ELD’s”) in commercial trucking vehicles;

(4)

the product would provide continuous recording from and access to the
Dash Cams; the product would accurately and reliably provide data from
FastTrac vehicles to the Dash Cams;

(5)

the product would properly report the “status” of FastTrac’s drivers; and

(6)

that the Dash Cams complied with federal regulations for ELD’s.

Doc. No. 1 ¶ 17. Without question, FastTrac alleges that Pedigree made specific misrepresentations
regarding the quality and performance of their products. Nevertheless, these allegations are
insufficient to sustain a claim for fraud. While FastTrac has pleaded the substance of the alleged
statements, the complaint is silent as to the who, when, and where. When a fraudulent statement
is alleged, the specific representative of the company who made the claim should be named. See
Wivell v. Wells Fargo Bank, N.A., 773 F.3d 887, 898 (8th Cir. 2009); see also U.S. ex rel. Joshi,
441 F.3d at 556. Here, FastTrac has only alleged that Pedigree made the statement, which is
insufficient. Further, while the complaint indicates the alleged statements were made prior to
contracting, the time and place of the alleged statement must be provided. See Bennett v. Berg,
685 F.2d 1053, 1062 (8th Cir. 1982), on reh’g, 710 F.2d 1361 (8th Cir. 1983); see also Noble Sys.
Corp. v. ACI Telecentrics, Inc., No. CV 06-3470 (MJD/AJB), 2007 WL 9735468, at *6 (D. Minn.

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Jan. 22, 2007). FastTrac’s complaint is silent as to the date and location of any alleged
misrepresentations. Accordingly, fraud has not been pleaded with the requisite particularity under
Federal Rule of Civil Procedure 9(b), and the Court grants Pedigree’s motion to dismiss the
fraud/fraudulent misrepresentation claim in count III.
E.

Products Liability

Finally, Pedigree moves to dismiss FastTrac’s products liability claim arguing the
complaint does not allege “personal injury, death, or property damage” as required by North
Dakota law. FastTrac responds and argues they have sufficiently pleaded the elements required to
sustain a claim for products liability. The Court again agrees with Pedigree.
North Dakota Century Code section 28-01.3-01(2) defines product liability action and
provides as follows:
“Product liability action” means any action brought against a manufacturer or seller
of a product, regardless of the substantive legal theory or theories upon which the
action is brought, for or on account of personal injury, death, or property damage .
...
N.D. Cent. Code § 28-01.3-01(2) (emphasis added). While neither party has specifically addressed
the economic loss doctrine, its theory underlies the statutory definition of a product liability action.
In Clarys v. Ford Motor Co., the North Dakota Supreme Court discussed the economic loss
doctrine as it applies to product liability actions and stated as follows:
The economic loss doctrine recognizes the distinction between the bargain
expectation interests protected by contract law under the Uniform Commercial
Code and the safety interests protected by tort law. The distinction applies to
consumer, as well as commercial, purchasers. When a defective product causes
damage to persons or other property, the interest at stake is health and safety,
irrespective of whether the initial purchase was a consumer or commercial
transaction. Those safety interests are protected under tort law, which allows
recovery by injured plaintiffs against a seller or manufacturer of an unreasonably
dangerous defective product. N.D.C.C. ch. 28-01.3. When, however, a product is
defective and damages only itself, the interest at stake is the purchaser’s expectation
of receiving the bargained-for product. That interest is protected by the remedies

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provided under Article 2 of the Uniform Commercial Code, N.D.C.C. ch. 41-02.
The Code provides a vast array of remedies, including recovery of consequential
damages, when a product fails to meet consumer expectations. See N.D.C.C. § 4102-94 (incidental and consequential damages recoverable from breaching seller).
1999 ND 72, ¶ 19, 592 N.W.2d 573, 578-79. In short, as stated in Clarys, “tort actions under the
[products liability] statute can be brought when a defective product causes damage to persons or
other property, but are not available to any plaintiff when only the defective product has been
damaged.” Id. ¶ 17.
Here, FastTrac has not alleged any damage to a person or property other than the alleged
defective product.1 The only damages specifically pleaded in the complaint are related to
replacement cost. There are no allegations in the complaint suggesting that deficiencies in
Pedigree’s products somehow damaged FastTrac property. Consequently, the complaint fails to
plead facts sufficient to plausibly allege a products liability claim under North Dakota law. As
such, the Court grants Pedigree’s motion to dismiss that claim.
III.

CONCLUSION
The Court has carefully reviewed the entire record, the parties’ filings, and the relevant

law. For the reasons set forth above, Pedigree’s motion to dismiss (Doc. No. 16) GRANTED IN
PART and DENEID IN PART. Pedigree’s motion to dismiss is granted, without prejudice, as to
the claims for breach of implied warranties, fraud/fraudulent misrepresentation, and products
liability. The motion is denied as to FastTrac’s claims for breach of contract and breach of express
warranties.

1

FastTrac cites to a number of cases from different jurisdictions, but notably, these cases each
involve an allegation of personal injury. Turnage v. Oldham, 346 F. Supp. 3d 1141 (W.D. Tenn.
2018) (unlawful detainment); Est. of Alex through Coker v. T-Mobile US, Inc., 313 F. Supp. 3d
723 (N.D. Tex. 2018) (death of an individual).
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IT IS SO ORDERED.
Dated this 1st day of August, 2022.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court

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