Meifert et al v. MI Windows and Doors Inc

Filing 55

ORDER granting in part and denying in part 44 Motion to Dismiss for Failure to State a Claim. Signed by Honorable David C Norton on 12/21/12. (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-DCN

No. 2:12-cv-01256-DCN

ORDER

This matter is before the court on defendant MI Windows and Doors, Inc.’s
(MIWD) motion to dismiss plaintiffs Mike and Janeen Meifert’s (the Meiferts) second
amended complaint. This court previously granted in part and denied in part a motion to
dismiss the Meiferts’ first amended complaint. In that order, entered on October 11,
2012, the court dismissed in part without prejudice the Meiferts’ claim for negligence and
dismissed without prejudice the Meiferts’ claims for breach of express warranty and
declaratory relief.1 The court also denied a motion to strike.
As permitted by the court’s October 11, 2012 order, the Meiferts filed a second
amended complaint on October 25, 2012. On November 21, 2012, MIWD filed a motion
to dismiss the second amended complaint. The Meiferts have not filed a response in

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At the hearing on the first motion to dismiss, the Meiferts moved to dismiss without prejudice
their claim under the Wisconsin Deceptive Trade Practices Act.

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opposition to the motion, but their counsel was advised at the status conference held on
November 29, 2012 that this motion would be decided without oral argument.
In their second amended complaint, the Meiferts assert claims for negligence and
breach of express warranty. They additionally plead that MIWD “is estopped from
relying on any statutes of limitation or repose by virtue of its acts of fraudulent
concealment.” Second Am. Compl. ¶ 49.
MIWD first contends that the Meiferts’ claim for negligence in the second
amended complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6).
In ruling on the first motion to dismiss, the court previously decided that the economic
loss doctrine, as applied in Wisconsin, barred recovery for damage to the allegedly
defective windows at issue in this case, as well as recovery for damage to the finishes,
walls, and floors of the Meiferts’ home, replacement cost of the windows, and diminution
in value of the home. See Meifert v. MI Windows & Doors, Inc., No. 12-1256, 2012 WL
4846987, at *4 (D.S.C. Oct. 11, 2012). However, the court additionally held that the
Meiferts had sufficiently stated a claim for damage to “other personal property.” Finally,
while recognizing that a claim for personal injury would be cognizable, the court found
that such a claim was not actually stated in the amended complaint.
In their second amended complaint, the Meiferts continue to assert damages to
“other personal property.” These claims remain sufficient. In addition, the Meiferts have
chosen not to assert a claim for personal injury arising from the alleged moisture
intrusion, mineral deposits, and mold in their home. See Second Am. Compl. ¶ 24. The
only lingering problem is the Meiferts’ continued assertion that their windows allegedly
designed, manufactured, and sold by MIWD caused direct economic loss to the windows

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and other property in the home and consequential economic loss, for which recovery
would be barred by the economic loss doctrine. For the reasons stated in this court’s
previous order, the court again dismisses “the portion of the Meiferts’ negligence claim
that relates to damages to the home itself.” Meifert, No. 12-1256, 2012 WL 4846987, at
*4.
Second, MIWD asserts that the Meiferts’ claim for breach of express warranty in
the second amended complaint should be dismissed under Rule 12(b)(6). In the previous
ruling, the court determined that the Meiferts had not plausibly alleged that an express
warranty supplied by MIWD formed a basis of the Meiferts’ bargain in purchasing their
home containing MIWD windows. See id. at *5. In their second amended complaint, the
Meiferts state,
At the time they purchased their home, Plaintiffs understood and were
aware that certain of its features were covered by a manufacturer’s
warranty. With respect to the Windows, they understood at the time of
purchase that the Windows were covered by a manufacturer’s warranty.
The fact that the Windows were covered by a warranty was material to
Plaintiffs at the time of their home purchase. Had the Windows not been
covered by a manufacturer’s warranty, they would not have purchased
[their] home, or would have paid less for the home.
Second Am. Compl. ¶ 11. The Meiferts’ amended pleadings are sufficient to survive
dismissal. MIWD contends these allegations do not pinpoint a specific-enough promise,
but that is generally a question of fact. See Ewers v. Eisenzopf, 276 N.W.2d 802, 805
(Wis. 1979).
MIWD also argues the breach of express warranty claim should be dismissed
under Rule 12(b)(6) for lack of privity, since the Meiferts did not purchase the windows
directly from MIWD. This court already noted that Wisconsin courts have recognized
the extension of express warranties to remote purchasers. See, e.g., Lamount v.
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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.”).
Based on these and similar statements of law, the court finds the Meiferts’ claim for
breach of express warranty to be sufficiently plausible to survive dismissal.
Finally, MIWD argues that the allegations regarding estoppel from relying on a
statute of limitations defense should be stricken from the second amended complaint. In
lieu of flaying a prostrate equine, the court refers MIWD to the previous ruling on this
issue, which remains the court’s position.2 See Meifert, No. 12-1256, 2012 WL 4846987,
at *6 (“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.”).
Based on the foregoing, the court GRANTS IN PART AND DENIES IN PART
defendant’s motion to dismiss.
AND IT IS SO ORDERED.

2
As has been said many times in many courts, “Don’t confuse me with the facts, my mind’s
made up.”

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_________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

December 21, 2012
Charleston, South Carolina

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