Lewis v. Pella Corporation
Filing
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ORDER granting 18 Motion to Dismiss for Failure to State a Claim Signed by Honorable David C Norton on 12/17/2014.(cahe, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
RANDY LEWIS, on behalf of himself
and all others similarly situated,
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Plaintiff,
vs.
PELLA CORPORATION,
Defendant.
No. 2:14-mn-00001-DCN
No. 2:14-cv-00549-DCN
ORDER
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This matter is before the court on a motion to dismiss brought by defendant Pella
Corporation (“Pella”). For the reasons set forth below, the court grants Pella’s motion
and dismisses all of plaintiff’s causes of action.
I. BACKGROUND
Plaintiff Randy Lewis (“Lewis”) purchased Pella Designer Series windows in the
summer of 2006 to install in his home in Festus, Missouri. Compl. ¶ 22. The following
winter, Lewis “began experiencing fog and moisture on the interior of the window,
including freezing, as well as water infiltration, swelling, bowing, and warping.” Id. He
contacted Pella “repeatedly” over the next several years because of these problems, but
claims that the alleged “defects were repeatedly denied and concealed.” Id. In May
2010, Pella replaced the glass in eleven windows and the backdoor. Id. In May 2012,
Pella replaced the front door because the front exterior separated from the main door
frame. Id. At some point in 2013, Lewis alleges that he “again experienced freezing and
ice on the interior of the window, as well as water infiltration, air leakage, swelling,
bowing, warping, and sagging,” and contacted Pella regarding these issues. Id.
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Lewis alleges that the windows suffer from a defect in the “design of the sill
extrusion and sill nailing fin attachment as well as a defect in the design of allowing a
gap between the jamb gasket and the sill gasket.” Id. ¶ 36. Lewis alleges that due to
these design defects, water leaks through the windows and can become trapped between
the cladding and the operable wood frame, causing damage to the windows and “other
property within the home as well.” Id. Lewis further alleges that Pella knew of the
defect when it shipped the windows. Id. ¶ 52.
On January 17, 2014, Lewis filed a class action complaint against Pella in the
United States District Court for the Eastern District of Missouri, asserting jurisdiction
based on diversity of citizenship. The complaint brings the following eight causes of
action: (1) violation of the Missouri Merchandising Practices Act (“MMPA”); (2)
negligence; (3) breach of express warranty; (4) breach of the implied warranty of
merchantability; (5) fraudulent concealment; (6) unjust enrichment; (7) violation of the
Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301, et seq.; and (8)
declaratory relief.
Pella filed the instant motion to dismiss on March 18, 2014. Lewis opposed the
motion on May 9, 2014, and Pella replied on May 23, 2014. On February 27, 2014, the
United States Judicial Panel on Multidistrict Litigation transferred Lewis’s case to this
court as part of the consolidated multidistrict litigation. Pella’s motion to dismiss has
been fully briefed and is now ripe for the court’s review.
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II. STANDARDS
A.
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. 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 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).
B.
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. Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1448 (2010) (citing Hanna
v. Plumer, 380 U.S. 460, 465 (1965)). “In multidistrict litigation, the law of the
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transferee circuit governs questions of federal law.” In re KBR, Inc., 736 F. Supp. 2d
954, 957 (D. Md. 2010) modified on reh’g sub nom. In re KBR, Inc., Burn Pit Litig., 925
F. Supp. 2d 752 (D. Md. 2013) vacated and remanded on other grounds, 744 F.3d 326
(4th Cir. 2014); see also In re Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907,
911 (8th Cir. 2004); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993); In re Korean
Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C. Cir. 1987); cf. Bradley v.
United States, 161 F.3d 777, 782 n.4 (4th Cir. 1998) (applying Fourth Circuit law to
questions of federal law in a case transferred from the Fifth Circuit). Therefore, this
court must apply Missouri substantive law and Fourth Circuit procedural law.
III. DISCUSSION
Pella Corp. asserts that all of Lewis’s claims should be dismissed. The court first
determines whether the applicable statutes of limitations are tolled by equitable tolling or
class action tolling. The court will then consider Pella’s arguments about each claim
individually.
A.
Tolling
Pella argues that all of Lewis’s claims are barred by their respective statutes of
limitations. While the specific statute of limitations for each claim will be discussed
below, the parties argue about the application of two tolling doctrines to all of the statutes
of limitations: equitable estoppel and class action tolling. In considering these doctrines,
the court notes at the outset that it is well-settled under Missouri law that statutes of
limitations are favored and can be avoided only by strictly complying with specific
legislative exceptions, which courts cannot extend. Owen v. Gen. Motors Corp., 533
F.3d 913, 919 n.5 (8th Cir. 2008) (citing Neal v. Laclede Gas Co., 517 S.W.2d 716, 719
(Mo. Ct. App. 1974)).
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1.
Fraudulent Concealment
Lewis first argues that Pella is estopped from relying on any statute of limitations
defense because it fraudulently concealed that its windows were defective. Compl. ¶ 61;
Pl.’s Resp. 6.
Missouri law provides that “[i]f any person, by absconding or concealing himself,
or by any other improper act, prevent the commencement of an action, such action may
be commenced within the time herein limited, after the commencement of such action
shall have ceased to be so prevented.” Mo. Rev. Stat. § 516.280; see also Tilley v.
Franklin Life Ins. Co., 957 S.W.2d 349, 351 (Mo. Ct. App. 1997) (“If a party takes
affirmative action to conceal the fraud, the statute is tolled until the fraud is discovered.”
(citation omitted)). “To constitute concealment of a cause of action within the general
rule tolling the statute of limitations on that ground the concealment must be fraudulent
or intentional and, . . . there must be something of an affirmative nature designed to
prevent, and which does prevent, discovery of the cause of action.” Owen, 533 F.3d at
919-20 (quoting Hasenyager v. Bd. of Police Comm’rs of Kansas City, 606 S.W.2d 468,
471 (Mo. Ct. App. 1980)). To avoid the running of the statute of limitations, the
fraudulent concealment “must be something more than mere silence on defendant’s
part . . . ; usually the employment of some means or device to prevent discovery should
be shown.” Id. at 920 (quoting Gilliam v. Gohn, 303 S.W.2d 101, 107 (Mo. 1957)).
“Silence becomes misrepresentation only when there is a duty to speak, such as ‘when
one of the parties has superior knowledge or information not within the fair and
reasonable reach of the other party.’” Id. (quoting Bohac v. Walsh, 223 S.W.3d 858, 864
(Mo. Ct. App. 2007)).
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In determining whether there was fraudulent concealment which tolls the statute
of limitations, “a pivotal issue is when plaintiffs realized they had a cause of action.” M
& D Enterprises, Inc. v. Wolff, 923 S.W.2d 389, 400 (Mo. Ct. App. 1996) (citing
Tayborn v. Burstein, 748 S.W.2d 824, 826 (Mo. Ct. App. 1988)). Fraudulent
concealment is “inapplicable if a plaintiff knows or should have known he had a cause of
action.” Id. (citing Miller v. Guze, 820 S.W.2d 576, 578 (Mo. Ct. App. 1991)). In other
words, statutes of limitation will be tolled due to fraudulent concealment only until a
plaintiff “discover[s] the fraud or should have discovered it by the exercise of reasonable
diligence.” Summerhill v. Terminix, Inc., 637 F.3d 877, 881 (8th Cir. 2011).
Pella argues that by failing to allege when and how he discovered Pella’s alleged
fraud, Lewis has failed to meet his burden of sufficiently pleading that the doctrine of
fraudulent concealment saves his otherwise time-barred claims. See Summerhill, 637
F.3d at 881 (“By failing to allege when and how he discovered [defendant’s] alleged
fraud, [plaintiff] has failed to meet his burden of sufficiently pleading that the doctrine of
fraudulent concealment saves his otherwise time-barred claims.”); Charlotte Telecasters,
Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 574 (4th Cir. 1976) (“A complaint, (to avoid
the statute of limitations,) must state . . . distinct averments as to the time when the fraud,
mistake, concealment, or misrepresentation was discovered, and what the discovery is, so
that the court may clearly see, whether, by the exercise of ordinary diligence, the
discovery might not have been before made.” (citation omitted)); Bergen v. Rothschild,
648 F. Supp. 582, 587 (D.D.C. 1986) (“In general, courts read Rule 9(b) as requiring the
fraudulent concealment plaintiff to plead with as much particularity as possible . . . the
dates and circumstances of the eventual discovery of the underlying fraud.”); Stewart
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Coach Indus., Inc. v. Moore, 512 F. Supp. 879, 886 (S.D. Ohio 1981) (holding that a
plaintiff relying on the “discovery rule” must “affirmatively and particularly plead the
date of discovery . . . or face dismissal of the complaint”); 51 Am. Jur. 2d Limitation of
Actions § 163 (“One may not avoid the effect of the statute of limitations on the ground
of fraudulent concealment if he or she fails to plead or offer evidence as to when he or
she discovered the alleged fraud.”).
Nowhere in Lewis’s complaint or response does he allege when he actually
discovered the alleged fraudulent concealment. Thus, the court has no indication when
any tolling of the statute of limitations should have ended. Therefore, Lewis is not
entitled to rely on fraudulent concealment to toll the statutes of limitations. Even if
fraudulent concealment did apply, Lewis bases his argument on Pella allegedly
concealing the fact that the windows are defective. Compl. ¶ 61. Lewis should have
been on notice that the windows were defective by early 2007 when he began to
experience various problems with his windows. Therefore, any equitable tolling would
cease by early 2007. As discussed below, even if the statutes of limitations were tolled
pursuant to fraudulent concealment until early 2007, Lewis’s claims would still be timebarred.
2.
Class Action Tolling
Lewis also contends that the filing of a previous class action in federal court in the
Northern District of Illinois, Saltzman v. Pella, tolled the statutes of limitation for his
claims. Pl.’s Resp. 11.
The doctrine of class action tolling was first announced in American Pipe &
Constr. Co. v. Utah, 414 U.S. 538 (1974). In American Pipe, the Supreme Court held
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that an applicable statute of limitations is tolled during the pendency of a class action for
putative class members who intervene after the denial of class certification – at least
where certification is denied for failure to meet the numerosity requirement of Federal
Rule of Civil Procedure 23. Id. at 552-53; see also id. at 554 ([T]he commencement of a
class action suspends the applicable statute of limitations as to all asserted members of
the class who would have been parties had the suit been permitted to continue as a class
action.”). The Supreme Court has extended the American Pipe rule to purported
members of the class who later file individual suits rather than intervene. Crown, Cork &
Seal Co. v. Parker, 462 U.S. 345, 350 (1983).
American Pipe tolling, however, applies only to a “subsequently filed federal
question action . . . during the pendency of a federal class action.” Wade v. Danek Med.,
Inc., 182 F.3d 281, 286 (4th Cir. 1999) (citing American Pipe, 414 U.S. 552-53)
(emphasis added); see also Vincent v. Money Store, 915 F. Supp. 2d 553, 560-61
(S.D.N.Y. 2013) (“The American Pipe case concerned the tolling of claims under a
federal statute, the Sherman Act. It did not purport to announce a rule that would apply
to state law claims. . . . The plaintiffs cannot rely on American Pipe to toll the statutes of
limitations for their state law claims. The plaintiffs must look to any state analogue to
American Pipe tolling rather than American Pipe itself.”).
Therefore, the court must determine whether Missouri law would toll the statutes
of limitations during the pendency of the Saltzman federal class action. Here, Missouri
law is clear. The Missouri Supreme Court recently considered whether the statute of
limitations at issue was tolled by a class action pending in state court in Ohio. Rolwing
v. Nestle Holdings, Inc., --- S.W.3d ----, 2014 WL 2583407, at *3 (Mo. June 10, 2014).
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The court reiterated that under Missouri law, a “statute of limitations may be suspended
or tolled only by specific disabilities or exceptions enacted by the Legislature and the
courts are not empowered to extend those exceptions.” Id. at *4 (citation omitted). The
court went on to note that beyond specific statutory exceptions, “the only equitable
tolling exceptions recognized by our Missouri courts are essentially where either pending
litigation elsewhere has prevented the plaintiff from bringing suit earlier, or where the
defendant himself has prevented the plaintiff from timely bringing suit.” Id. The court
determined that the filing of a class action did not trigger either of those tolling doctrines,
and therefore did not toll the statute of limitations under Missouri law. Id. at *5-*6.
Lewis argues that Rowling has not been published and is therefore not
precedential. Pl.’s Resp. 11. Lewis instead contends that Hyatt Corp. v. Occidental Fire
& Cas. Co. of N.C., 801 S.W.2d 382 (Mo. Ct. App. 1990), permits class action tolling
under Missouri law. In Hyatt, the court held that “class action complaints tolled the
statute of limitations on behalf of all putative [members of the class], including those who
subsequently filed their own actions or settled individual claims during the pendency of
the Jacob class action.” Id. at 389 (citing Crown, Cork & Seal, 462 U.S. at 353-54;
American Pipe, 414 U.S. at 553) (emphasis in original).
As an initial matter, it is not clear that Hyatt dealt with cross-jurisdictional tolling.
The Fourth Circuit has been reluctant to read cross-jurisdictional tolling into state law
where it is otherwise silent. Wade, 182 F.3d 281, 287 (4th Cir. 1999) (applying Virginia
law); see also Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008)
(declining to import a cross-jurisdictional tolling rule into California law, which
otherwise does not have such a rule, and finding that “[t]he rule of American Pipe –
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which allows tolling within the federal court system in federal question class actions –
does not mandate cross-jurisdictional tolling as a matter of state procedure”). Moreover,
the cases cited by Hyatt are all federal cases; therefore, it is not clear that the court
considered class action tolling under Missouri law. The court is persuaded that the
Missouri Supreme Court’s recent analysis of the issue in Rowling is the right one.
Because Missouri law does not recognize cross-jurisdictional class action tolling,
the doctrine does not toll the statutes of limitations for Lewis’s claims.
B.
Counts I, II, & VI – Violation of the MMPA, Negligence, and Unjust
Enrichment
Pella contends that Lewis’s claims for violation of the MMPA, negligence, and
unjust enrichment are barred by the relevant statute of limitations. Def.’s Mot. 5-8.
Under Missouri law, claims for violation of the MMPA, negligence, and unjust
enrichment are all subject to a five-year statute of limitations. Mo. Rev. Stat. § 516.120;
see also Ball v. Friese Constr. Co., 348 S.W.3d 172, 176 (Mo. Ct. App. 2011); Ashford
Condo., Inc. v. Horner & Shifrin, Inc., 328 S.W.3d 714, 717-18 (Mo. Ct. App. 2010);
Royal Forest Condo. Owners’s Ass’n v. Kilgore, 416 S.W.3d 370, 373 (Mo. Ct. App.
2013). The statute is triggered when “damage is sustained and becomes capable of
ascertainment.” Mo. Rev. Stat. § 516.100.
The Missouri Supreme Court has interpreted the “capable of ascertainment”
standard as an objective standard and has held that “the statute of limitations begins to
run when the ‘evidence was such to place a reasonably prudent person on notice of a
potentially actionable injury.’” Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d
576, 582 (Mo. 2006) (quoting Business Men’s Assur. Co. of Am. v. Graham, 984 S.W.2d
501, 507 (Mo. 1999)) (emphasis omitted). The test to be applied is “when a reasonable
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person would have been put on notice that an injury and substantial damages may have
occurred and would have undertaken to ascertain the extent of the damages.” State ex
rel. Marianist Province of U.S. v. Ross, 258 S.W.3d 809, 811 (Mo. 2008) (citation
omitted). Thus, “[i]n order for the statute [of limitations] to accrue, plaintiff must have
knowledge of the wrong and at least nominal damage, or [knowledge] of something that
puts plaintiff on notice to inquire further.” Gaydos v. Imhoff, 245 S.W.3d 303, 307 (Mo.
Ct. App. 2008).
The Missouri Supreme Court has also explained that the phrase “capable of
ascertainment” refers to “the fact of damage, rather than to the exact amount of damage.”
Graham, 984 S.W.2d at 507 (citation omitted); see also Klemme v. Best, 941 S.W.2d
493, 497 (Mo. 1997) (“All possible damages do not have to be known, or even knowable,
before the statute accrues.”); Dixon v. Shafton, 649 S.W.2d 435, 438 (Mo. 1983) (“The
word ‘ascertain’ has always been read as referring to the fact of damage, rather than to
the precise amount.”). Thus, “[d]amages are ascertained when the fact of damage
appears, not when the extent or amount of damage is determined.” Kennedy v.
Microsurgery & Brain Research Inst., 18 S.W.3d 39, 42 (Mo. Ct. App. 2000) (citation
omitted).
Where there is more than one item of damage, the cause of action does not accrue
until the last item of damage is sustained so that all damages may be recovered. Mo.
Rev. Stat. § 516.100. In order for there to be multiple items of damage, there must be
“new and distinct damages” of a different “nature and degree” from the original damage.
Ball, 348 S.W.3d at 178-79. On the other hand, in situations where “one wrong . . .
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results in continuing damage, . . . the cause of action accrues when that wrong is
committed and the damage sustained is capable of ascertainment.” Id. (citation omitted).
This case is analogous to Ball. In Ball, the plaintiff discovered cracking in his
basement floor shortly after his home was constructed in 2001. 348 S.W.3d at 174. The
plaintiff complained to the construction company and had two engineering reports
conducted in 2002 that indicated that the basement floor slab was heaving, possibly due
to water issues beneath the slab. Id. at 178. The plaintiff continued to experience similar
problems after remedial efforts were completed, but “neglected to employ additional
experts to ascertain the nature of his damages” until 2009. Id. The Ball court first
determined that the damages that were evident, combined with the engineering reports,
“would have put a reasonably prudent person on notice of a potentially actionable
injury.” Id. at 177. The court then found that the plaintiff’s “observations and
complaints of damages in 2001 and 2002 were of the same nature and degree as those of
which he complained in his 2010 petition, all the result of a single wrong,” and that the
plaintiff therefore did not sustain multiple items of injury. Id. 178-79.
Here, Lewis began experiencing problems with his windows by early 2007.
Comp. ¶ 22. Those problems “would have put a reasonably prudent person on notice of a
potentially actionable injury.” Ball, 348 S.W.3d at 177. Moreover, Lewis has not alleged
any damages of a different nature and degree than those he observed in 2007. Therefore,
the statute of limitations began to run in early 2007, at the latest, when he first noticed
issues with his windows. Because he did not file his complaint until early 2014, Lewis’s
MMPA, negligence, and unjust enrichment claims are time-barred.
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C.
Counts III, IV, and VII – Breach of Express Warranty, Breach of
Implied Warranty of Merchantability, and Violation of the MMWA
Pella next argues that Lewis’s breach of warranty claims are barred by the statute
of limitations. Def.’s Mot. 6.
Under Missouri law, breach of warranty claims are subject to a four-year statute
of limitations.1 Mo. Rev. Stat. § 400.2-725(1). The statute of limitations accrues upon
delivery unless the warranty “explicitly extends to future performance of the goods . . . .”
Id. § 400.2-725(2). Because the windows were delivered in 2006, Lewis’s warranty
claims are barred unless the warranties extend to future performance.
As an initial matter, “[b]y its very nature, an implied warranty of merchantability
does not warrant future performance of a product.” May v. AC & S, Inc., 812 F. Supp.
934, 944 (E.D. Mo. 1993) (applying Missouri law); see also Marvin Lumber & Cedar Co.
v. PPG Indus., Inc., 223 F.3d 873, 879 (8th Cir. 2000). Therefore, Lewis’s claim for
breach of the implied warranty of merchantability is time-barred.
The only remaining issue is whether Pella’s express warranties explicitly
extended to future performance. “To constitute a warranty for future performance, the
terms of the warranty must unambiguously indicate that the manufacturer is warranting
the future performance of the goods for a specified period of time.” Wienberg v.
Independence Lincoln-Mercury, Inc., 948 S.W.2d 685, 689 (Mo. Ct. App. 1997) (quoting
R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818, 823 (8th Cir. 1983)). A
warranty that a product is free from defect in quality or workmanship is a warranty for
1
The MMWA does not contain a statute of limitations, so courts have held such
claims are governed by the same limitations period that applies to the underlying state
law breach of warranty claims. See Highway Sales, Inc. v. Blue Bird Corp., 559 F.3d
782, 789 (8th Cir. 2009); Edwards v. Hyundai Motor Am., 163 S.W.3d 494, 501 (Mo. Ct.
App. 2005).
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future performance of the product. Id. Where a warranty expressly extends to future
performance of the goods, repair or replacement language does not necessarily nullify the
future performance warranty, but instead limits the remedy for breach of the warranty of
future performance to repair or replacement. Id. at 690.
Even assuming that the express warranties here extend to future performance,
Lewis’s breach of express warranty claim accrued as soon as the alleged “breach is or
should have been discovered.” Mo. Ann. Stat. § 400.2-725(2). Lewis alleges that Pella
expressly warranted that the windows were free from defects and appropriate for their
intended use. Compl. ¶¶ 89, 92, and 94. Lewis claims that “Pella breached the express
warranty by selling Windows that were defective and not reasonably fit for their ordinary
and intended purpose.” Id. ¶ 100. As discussed above, Lewis began experiencing
problems with the windows in late 2006 or early 2007. Id. ¶ 22. At that time, he should
have discovered the alleged breach – that the windows were defective and not reasonably
fit for their ordinary and intended purpose. Because Lewis did not file this suit until
2014, his claims for breach of express warranty and violation of the MMWA are
dismissed as time-barred.2
D.
Count V – Fraudulent Concealment
Pella argues that Lewis’s fraudulent concealment claim is barred by the statute of
limitations. Def.’s Mot. 8.
2
Lewis’s claim is focused entirely on express warranties that the windows were
free of defects and appropriate for their intended use, Compl. ¶¶ 89, 92, and 94, and does
not base its claim on Pella’s failure to repair or replace the windows pursuant to the terms
of the 10-year limited warranty that shipped with the windows. Therefore, it is not
necessary for the court to consider whether an express warranty claim based on the
limited warranty to repair or replace would be timely under § 400.2-725(2).
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Missouri law provides that a claim based on fraud must be commenced within
five years, “the cause of action in such case to be deemed not to have accrued until the
discovery by the aggrieved party, at any time within ten years, of the facts constituting
the fraud.” Mo. Rev. Stat. § 516.120(5). Missouri courts have held that “discovery”
under this section occurs when the plaintiff actually discovers “or in the exercise of due
diligence, should have discovered the fraud.” Burr v. Nat’l Life and Accident Ins. Co.,
667 S.W.2d 5, 7 (Mo. Ct. App. 1984). In other words, “[t]he cause of action accrues
when a plaintiff has sufficient facts to inform a reasonable person that a fraud has been
committed.” Misischia v. St. John’s Mercy Med. Ctr., 30 S.W.3d 848, 867 (Mo. Ct. App.
2000) (citing Vogel v. A.G. Edwards & Sons, Inc., 801 S.W.2d 746, 755 (Mo. Ct. App.
1990)).
Lewis’s fraudulent concealment claim is based on Pella failing to disclose that the
windows were defective but instead “concealing the material defects.” Compl. ¶ 123. As
discussed above, Lewis began experiencing problems with the windows in late 2006 or
early 2007. Id. ¶ 22. At that time, he had knowledge of facts sufficient to inform a
reasonable person that Pella had concealed defects in the windows. Therefore, the statute
of limitations on his fraudulent concealment claim had run by early 2012, about two
years before he filed suit.
The court dismisses Lewis’s fraudulent concealment claim as time-barred.
E.
Count VIII – Declaratory Relief
Finally, Pella argues that Lewis’s claim for declaratory relief must be dismissed
because the Declaratory Judgment Act does not create an independent cause of action.
Def.’s Mot. 31.
The Declaratory Judgment Act states that
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[i]n a case of actual controversy within its jurisdiction . . . any court of the
United States, upon the filing of an appropriate pleading, may declare the
rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.
28 U.S.C.A. § 2201. The Declaratory Judgment Act is procedural only, Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (citing Aetna Life Ins. Co. v. Haworth,
300 U.S. 227, 240 (1937)), and “does not create an independent cause of action.”
Chevron Corp. v. Naranjo, 667 F.3d 232, 244 (2d Cir. 2012). Because the court
dismisses all of Lewis’s other claims against Pella, it also dismisses his declaratory
judgment claim.
IV. CONCLUSION
Based on the foregoing, the court GRANTS Pella’s motion to dismiss and
DISMISSES Lewis’s complaint without prejudice.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
December 17, 2014
Charleston, South Carolina
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