Meifert et al v. MI Windows and Doors Inc

Filing 39

ORDER granting in part and denying in part 14 Motion to Dismiss. The court dismisses in part without prejudice plaintiffs' claim for negligence and dismisses without prejudice plaintiffs' claims for violation of the Wisconsin Deceptive Trade Practices Act, breach of express warranty, and declaratory judgment. The court further denies defendant's motion to strike. Signed by Honorable David C Norton on 10/11/12. (juwo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
IN RE: MI WINDOWS AND DOORS,
INC. PRODUCTS LIABILITY
LITIGATION

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MIKE MEIFERT AND JANEEN
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MEIFERT, individually and on behalf of all )
others similarly situated,
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Plaintiffs,
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vs.
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MI WINDOWS AND DOORS, INC.
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Defendant.
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MDL No. 2333
No. 2:12-mn-00001

No. 2:12-cv-01256-DCN

ORDER

This matter is before the court on defendant’s motion to dismiss all four counts of
plaintiffs’ amended complaint and to strike plaintiffs’ request for equitable tolling of the
statute of limitations. The court grants in part and denies in part the motion to dismiss
and denies the request to strike.
I. BACKGROUND

On December 6, 2011, plaintiffs Mike and Janeen Meifert (the Meiferts) filed a

class action complaint in the United States District Court for the Eastern District of
Wisconsin against defendant MI Windows and Doors, Inc. (MIWD). MIWD moved to
dismiss the complaint on January 23, 2012. In response to the motion to dismiss, on
March 12, 2012 the Meiferts filed an amended complaint. MIWD moved to dismiss the
amended complaint on March 26, 2012. On April 23, 2012, this and other cases were
transferred to this court by the Judicial Panel on Multidistrict Litigation for consolidated

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pretrial proceedings. The court held a hearing on the second motion to dismiss on
September 18, 2012.
In their amended complaint, the Meiferts bring claims for negligence, violation of
the Wisconsin Deceptive Trade Practices Act, breach of express warranty, and
declaratory relief. The Meiferts allege that they purchased their home in 2004 directly
from the builder and were the first and only owners of the home. Am. Compl. ¶ 11. The
home contains windows manufactured by MIWD. Id. ¶ 10. MIWD allegedly designed,
manufactured, marketed, advertised, warranted, and sold certain windows—those from
its 3500, 4300, and 8500 series—that it knew or should have known were defective in
design and not fit for their ordinary purpose. Id. ¶¶ 2-3. The Meiferts specifically claim
that the windows in their home contain a defect that resulted in the loss of seal along the
bottom of the glass and led to moisture and water intrusion into their home. Id. ¶ 4. This
water intrusion allegedly caused “damage to property other than the Windows
themselves,” id., including damage to “adjoining finishes, walls and other personal
property.” Id. ¶ 6. The Meiferts state that they filed warranty claims with MIWD but
were informed that they could not recover under the express warranty as subsequent
owners of the home. Id. ¶ 11. The Meiferts seek to recover damages both individually
and on behalf of two classes of persons owning structures in Wisconsin in which
MIWD’s 3500, 4300, and 8500 series of windows were installed. Id. ¶ 13. Finally, the
Meiferts allege that MIWD should be estopped from relying on a statute of limitations
defense since MIWD knew of the defect for years but failed to disclose it to the Meiferts
and purported class members. Id. ¶¶ 44-45.

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II. STANDARDS
A. Applicable Law
This case is predicated on diversity jurisdiction and was filed in federal court, so
it is governed by state substantive law and federal procedural law. Santa’s Best Craft,
LLC v. St. Paul Fire & Marine Ins. Co., 611 F.3d 339, 345 (7th Cir. 2010). For diversity
cases that are transferred in a MDL, “the law of the transferor district follows the case to
the transferee district.” Manual for Complex Litigation Fourth § 20.132. Therefore, this
court must apply Wisconsin substantive law and federal procedural law.
B. Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for
“failure to state a claim upon which relief can be granted.” When considering a Rule
12(b)(6) motion to dismiss, the court must accept the plaintiff’s factual allegations as true
and draw all reasonable inferences in the plaintiff’s favor. See E.I. du Pont de Nemours
& Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On a motion to dismiss, the court’s task is limited to determining whether the
complaint states a “plausible claim for relief.” Id. at 679. A complaint must contain
sufficient factual allegations in addition to legal conclusions. Although Rule 8(a)(2)
requires only a “short and plain statement of the claim showing that the pleader is entitled
to relief,” “a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “Facts pled that are
‘merely consistent with’ liability are not sufficient.” A Soc’y Without a Name v.
Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).
III. DISCUSSION

MIWD seeks to dismiss all four counts of the amended complaint. At the hearing

on the motion to dismiss, the Meiferts moved to dismiss without prejudice their claim
under the Wisconsin Deceptive Trade Practices Act1; therefore, the court only addresses
the motion to dismiss as to the remaining three counts of the amended complaint. See
Hr’g Tr. 32, Sept. 18, 2012, ECF No. 34.
A. Negligence
First, MIWD moves to dismiss the Meiferts’ negligence claim, arguing it is barred
by the economic loss doctrine and fails under Rule 12(b)(6).
1. Economic Loss Doctrine
The economic loss doctrine, adopted by the Wisconsin Supreme Court in
Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 437 N.W.2d 213 (Wis.
1989), “is a judicially created doctrine under which a purchaser of a product cannot
recover from a manufacturer on a tort theory for damages that are solely economic.” Bay
Breeze Condo. Ass’n v. Norco Windows, Inc., 651 N.W.2d 738, 741 (Wis. Ct. App.
2002). “Economic loss” includes damage to and loss in value of a product itself, but does

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As the court noted at the hearing, the Wisconsin Deceptive Trade Practices Act carries a three
year statute of limitations. Wis. Stat. Ann. § 100.18(11)(b)(3). This limitations period may not
be suspended or tolled. See Neuser v. Carrier Corp., No. 06-645, 2007 WL 484779, at *3 (W.D.
Wis. Feb. 9, 2007) (“Section 100.18(11)(b)(3) is a statute of repose, which requires the
commencement of an action within three years after defendant’s action which led to the injury,
regardless of whether plaintiff has discovered the injury or wrongdoing.”). Based on the
allegations of the amended complaint, it appears that the statute of limitations began to accrue in
2004 and expired in 2007. See Am. Compl. ¶¶ 10-11 (alleging that the home, which contained
windows manufactured by MIWD, was purchased “in or around 2004, directly from the builder”).

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not include “personal injury or damage to other property.” 1325 N. Van Buren, LLC v.
T-3 Grp., Ltd., 716 N.W.2d 822, 831 (Wis. 2006) (internal quotation marks omitted); Bay
Breeze, 651 N.W.2d at 742 (“The economic loss doctrine does not apply, however, if the
damage is to property other than the defective product itself; in that case, a complainant
may pursue an action in tort.”).
To recover for damage to “other property,” the property allegedly damaged must
be sufficiently distinguishable from the product that caused the damage. When a
component of an integrated system causes damage to either the system as a whole or to
other component parts, courts in Wisconsin have held that the economic loss doctrine
bars recovery. See Wausau Tile, Inc. v. Cnty. Concrete Corp., 593 N.W.2d 445, 452
(Wis. 1999) (discussing this “integrated system” rule).
Wisconsin courts have likened windows to “ingredients” of a home, such that the
windows and home are together an “integrated system.” Thus, the economic loss rule
typically bars recovery in tort for damage to a home caused by a defect in windows. See
Midland Builders, Inc. v. Semling-Menke Co., 703 N.W.2d 383 (Wis. Ct. App. 2005)
(table) (“[T]he crux of Midland’s claim for repair costs here is that the homes were
damaged because an ingredient, Semco windows, was of insufficient quality and did not
work for Midland’s intended purpose. Accordingly, these costs are the ‘essence of a
claim for economic loss,’ and Wausau Tile precludes Midland from seeking to recover
such losses through its negligence . . . claim[].”). The Wisconsin Court of Appeals in
Selzer v. Brunsell Bros., in applying the “integrated system” rule, held:
We cannot discern a meaningful analytical difference between a window
in a house, a gear in a printing press, a generator connected to a turbine, or
a drive system in a helicopter. In each of these examples, the window, the
gear, the generator, and the drive system are integral parts of a greater
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whole; none of the integral parts serve an independent purpose. Thus, just
as the damage to the printing press, the turbine, and the helicopter caused
by their integral parts constituted damage to the products themselves, so
too did the damage to Selzer's home caused by the windows constitute
damage to the product itself, and not damage to “other property” for
purposes of the economic loss doctrine.
652 N.W.2d 806, 835 (Wis. Ct. App. 2002). Similarly, the Wisconsin Court of Appeals
in Bay Breeze wrote,
Generally, house buyers have little or no interest in how or where the
individual components of a house are obtained. They are content to let the
builder produce the finished product, i.e., a house. These homeowners
bought finished products—dwellings—not the individual components of
those dwellings. They bargained for the finished products, not their
various components. . . . Here, . . . the homeowners purchased a finished
product, their condominium units, the quality of which fell below
expectations. While the Association argues that the defective windows
caused damage to interior and exterior walls and casements, these are but
other component parts in a finished product. Because of the integral
relationship between the windows, the casements and the surrounding
walls, the windows are simply a part of a single system or structure,
having no function apart from the buildings for which they were
manufactured. Although the condominium units may have suffered
incidental damage as a result of the failed windows, this does not take a
commercial dispute outside the economic loss doctrine.
651 N.W.2d at 745-46 (internal citations and quotation marks omitted).
Here, in their amended complaint, the Meiferts allege the following types of
harm: damage to “the interior of the residence[],” including damage to “adjoining
finishes, walls and other personal property,” Am. Compl. ¶ 6; damage to “flooring and
other property below and around the Windows,” id. ¶ 10; that the window defects “allow
for water to cause damage to other property within the home,” id. ¶ 23; that the “value of
structures containing the Windows has diminished as a result of the defect,” id. ¶ 40; that
the Meiferts have been “forced to pay for installation of new replacement windows,” id. ¶
7; and that the Windows have caused damage to other property within the[] home[],” id. ¶
7, including water leaks that “drip onto Plaintiffs’ . . . walls and floors,” id. ¶ 41.
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The “product” purchased by the Meiferts was not the windows but the home, in
which the windows were already installed. The allegations of the amended complaint
largely amount to claims for damage to the product—the home—caused by an ingredient
or component of that product—the windows manufactured by MIWD. Under Wisconsin
law, recovery for such damage, including damage to the finishes, walls, and floors in the
home, the replacement cost of the windows, and the diminution in value of the home, is
barred by the economic loss doctrine. See Daanen & Janssen, Inc. v. Cedarapids, Inc.,
573 N.W.2d 842, 845 (Wis. 1998) (noting that economic loss “includes both direct
economic loss and consequential economic loss”). The court dismisses without prejudice
the portion of the Meiferts’ negligence claim that relates to damages to the home itself.
2. Dismissal Under Rule 12(b)(6)
The Meiferts’ amended complaint also states that the defective windows caused
damage to “other property” within the home, Am. Compl. ¶ 7, including damage to
“other personal property.” Id. ¶ 6. Damage to personal property would be recoverable
under Wisconsin law if the Meiferts can prove their negligence claim. While additional
factual allegations would benefit MIWD and the court, viewing the allegations in the
light most favorable to the Meiferts, the court finds they have sufficiently stated a claim
for recovery of damage to “other personal property.” This portion of the negligence
claim will survive the instant motion to dismiss. See Def.’s Reply 2-3 (“To the extent
Plaintiffs can establish that they have suffered damages to ‘other property’ caused by the
windows, only that portion of their tort claim would survive.”).
The Meiferts also argue that they have stated a claim for personal injury that is
not barred by the economic loss doctrine. However, while the Meiferts allege that the

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water intrusion into their home led to mineral deposits and mold, they do not actually
complain of any resulting personal injury. See Am. Compl. ¶ 23. The court need not
dismiss any claim for personal injury because it has not been sufficiently stated in the
first place.
In summary, the court dismisses the negligence claim to the extent that the
Meiferts seeks to recover damages that are barred by the economic loss doctrine and to
the extent the Meiferts have failed to set forth sufficient allegations, but allows their
claim for damage to “other personal property” to proceed.
B. Breach of Express Warranty
Second, MIWD moves to dismiss the Meiferts’ claim for breach of express
warranty, arguing that the Meiferts cannot establish that the warranty formed part of the
basis of any bargain as required by Wisconsin law.
The “basis of the bargain” requirement of an express warranty claim is codified at
Wis. Stat. § 402.313, which provides that an express warranty is created by an
“affirmation of fact or promise” or a “description of the goods” that becomes “part of the
basis of the bargain.” Id. § 402.313(1)(a)-(b). The Commentary to § 402.313 states that
the “precise time when words of description or affirmation are made . . . is not material . .
. . If language is used after the closing of the deal . . ., the warranty becomes a
modification.” Id. Commentary Note 7. The Wisconsin Supreme Court has elaborated
that the affirmation of fact made by the seller does not have to be “the sole basis for the
sale, only that it is a factor in the purchase.” Ewers v. Eisenzopf, 276 N.W.2d 802, 805
(Wis. 1979).

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The Wisconsin Supreme Court more recently held that “the burden is on buyers
(in the sale of goods or services) to prove their purchase was made based on the factual
representations.” Hocking v. City of Dodgeville, 785 N.W.2d 398, 405 (Wis. 2010). The
allegations of the amended complaint fail to meet this burden. When “there [is] no
written contract between the [parties], an express warranty could be created only if the
[plaintiffs] were induced to rely on the promises such that the express warranty was a
basis for a bargain.” Id. The amended complaint is devoid of factual allegations in
support of the bare legal assertion that “the warranty Defendant provided to Plaintiffs . . .
was an affirmation of fact which became part of the basis of the bargain.” Am. Compl. ¶
87. The Meiferts do not even point out what warranty, if any, was provided to them by
MIWD; instead, they attach a copy of an MIWD warranty to the amended complaint
without alleging, for example, that they actually saw this warranty or learned they would
be a third party beneficiary of this warranty. As a result, the amended complaint does not
show that MIWD’s express warranty or factual representations formed part of the basis of
the bargain in the Meiferts’ purchase of their home and acquisition of the windows.
Thus, the court dismisses without prejudice the claim for breach of express warranty.2

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MIWD also moves to dismiss the Meiferts’ claim for breach of express warranty on the basis
that the Meiferts cannot establish privity of contract, an issue the court need not decide based on
the above ruling. The court does note that while the Seventh Circuit has held that “Wisconsin law
requires privity of contract between the parties before liability can be founded on breach of
express or implied warranty,” St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th
Cir. 2008), Wisconsin courts have recognized the extension of express warranties to remote
purchasers. See Lamount v. Winnebago Indus., Inc., 569 F. Supp. 2d 806, 815 (E.D. Wis. 2008)
(“Winnebago is clearly mistaken in its contention that Wisconsin requires the purchaser to deal
directly with the manufacturer of a product in order to sue the manufacturer for breach of the
manufacturer’s express warranty.”); Ball v. Sony Elecs. Inc., No. 05-307, 2005 WL 2406145, at
*5 (W.D. Wis. Sept. 28, 2005) (“Other courts have recognized and enforced express warranties to
remote purchasers even in the absence of reliance based privity.”); Sunnyslope Grading, Inc. v.
Miller, Bradford & Risberg, Inc., 437 N.W.2d 213 (Wis. 1989) (holding that the ultimate
purchaser of a machine and the machine's manufacturer were parties to an enforceable warranty
even though the purchase was made through a dealer).

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C. Declaratory Judgment
Third, MIWD moves to dismiss the Meiferts’ claim for declaratory relief, arguing
that there is no basis to provide the relief requested. The Declaratory Judgment Act
allows courts to “declare the rights and other legal relations of any interested party
seeking [a] declaration, whether or not further relief is or could be sought.” 28 U.S.C.A.
§ 2201(a). Courts have “long recognized the discretion afforded to district courts in
determining whether to render declaratory relief.” Aetna Cas. & Sur. Co. v. Ind-Com
Elec. Co., 139 F.3d 419, 421-22 (4th Cir. 1998). The declaratory relief sought here is
based on the substantive claims in the amended complaint. Declaratory relief would be
inappropriate at this stage, as the merits of the Meiferts’ substantive claims have not been
adjudicated. Therefore, the court dismisses the declaratory judgment claim without
prejudice.
D. Fraudulent Concealment and Tolling of Statute of Limitations
Finally, MIWD moves to dismiss the Meiferts’ claim for fraudulent concealment
and request for equitable tolling of the statutes of limitation. In essence, this is a motion
to strike. Motions to strike are disfavored when allegations are not “actually prejudicial
to the defense.” Davis v. Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001). The court
finds it unnecessary to strike the allegations regarding equitable tolling from the amended
complaint. Rather, the better course is for the parties to proceed to discovery and, if
MIWD seeks dismissal based on the expiration of a statute of limitations in the future, the
Meiferts may contend that tolling is appropriate. At this time, the court denies MIWD’s
request to strike.

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IV. CONCLUSION
Based on the foregoing, the court GRANTS IN PART AND DENIES IN PART
defendant’s motion to dismiss; DISMISSES IN PART WITHOUT PREJUDICE
plaintiffs’ claim for negligence; and DISMISSES WITHOUT PREJUDICE plaintiffs’
claims for violation of the Wisconsin Deceptive Trade Practices Act, breach of express
warranty, and declaratory judgment. The court further DENIES defendant’s motion to
strike. Plaintiffs shall have leave to file a second amended complaint within 14 days of
the filing of this order.
AND IT IS SO ORDERED.

_________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

October 11, 2012
Charleston, South Carolina

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