Dineen et al v. Pella Corporation

Filing 31

ORDER granting in part and denying in part 16 Motion to Dismiss for Failure to State a Claim Signed by Honorable David C Norton on 10/30/2015.(rweh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
MARTIN DINEEN and MARIANNE
DINEEN, on behalf of themselves and all
others similarly situated,
Plaintiffs,
vs.
PELLA CORPORATION,
Defendant.

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No. 2:14-mn-00001-DCN
No. 2:14-cv-03479-DCN

ORDER

This matter is before the court on a motion to dismiss filed by defendant Pella
Corporation (“Pella”). The court grants in part and denies in part Pella’s motion as set
forth below.
I. BACKGROUND
Plaintiffs Martin and Marianne Dineen (“the Dineens”) began building their home
in Ormond Beach, Florida in 2002. Compl. ¶ 3, 53. The Dineens purchased Pella
Architect and Designer Series windows from a Pella distributor for installation in their
home in 2003. Id. ¶ 53. The windows were installed in or about 2004. Id. In April
2005, the Dineens purchased additional windows from Pella which were delivered on
July 11, 2005. Id. ¶ 54. In or about 2006, the Dineens noticed that the bottom of one of
their windows was rotting. Id. ¶ 60. A Pella representative inspected the window and
informed them that the sash seal had failed and agreed to replace the window but charged
the Dineens for labor. Id. On other occasions, the Dineens informed Pella about water
intrusion issues. Id. ¶ 61. Pella replaced some of the sashes, and the Dineens paid

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installation charges. Id. Several of the Dineens’ windows are currently experiencing
problems with water intrusion and wood rot. Id. ¶ 62.
The Dineens contend that the windows suffer from various design deficiencies,
including “a defect in the glazing pocket, the aluminum cladding, the crank hardware and
the frame to sash joint.” Id. ¶ 35. They allege that due to these design defects, water is
permitted to be trapped between the aluminum and the operable wood frame. Id. This
causes damage to the windows and other property within the home, and permits leaks.
Id. The Dineens further allege that Pella knew, or but for its negligence should have been
aware, of the defect when it shipped the windows. Id. ¶ 45.
On August 13, 2014, the Dineens filed a class action complaint against Pella in
the United States District Court for the Middle District of Florida, alleging jurisdiction
based on diversity of citizenship. The complaint brings the following ten causes of
action: (1) violation of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”); (2) negligence; (3) negligent misrepresentation; (4) breach of implied
warranty of merchantability; (5) breach of implied warranty of fitness for a particular
purpose; (6) breach of express warranty; (7) fraud; (8) fraudulent concealment; (9) unjust
enrichment; and (10) declaratory relief.
On August 28, 2014, the United States Judicial Panel on Multidistrict Litigation
transferred the Dineens’ case to this court as part of the consolidated multidistrict
litigation. Pella filed the instant motion to dismiss on October 14, 2014. The Dineens
opposed the motion on November 4, 2014, and Pella replied on November 24, 2014. The
motion has been fully briefed and is 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[] all well-pleaded allegations in the
plaintiff’s complaint as true and draw[] all reasonable factual inferences from those facts
in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.
1999). 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
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

Because this case was filed in federal court and predicated on diversity
jurisdiction, it is governed by state substantive law and federal procedural law. Gasperini

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v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). “In multidistrict litigation, the law
of the 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 Florida substantive law and Fourth Circuit procedural law.
III. DISCUSSION
Pella contends that the Dineens’ claims should be dismissed in their entirety,
arguing that they are barred by their respective statutes of limitations and that they are
inadequately pleaded. The court will first address issues regarding the statute of
limitations applicable to each claim. To the extent necessary, the court will then consider
arguments regarding the substance of the claims.
A.

Statute of Limitations
1.

Tolling

Pella contends that all of the Dineens’ claims are barred by their respective
statutes of limitations. While the specific statute of limitations for each claim will be
discussed below, the court first addresses three doctrines which the Dineens argue toll, or
otherwise preclude the application of, all relevant statutes of limitations: class action
tolling, fraudulent concealment, and equitable estoppel.

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a.

Class Action Tolling

The Dineens argue that the filing of a previous class action in a separate federal
court, Saltzman v. Pella Corporation (N.D. Ill. No. 06-4481), tolled all relevant statutes of
limitations during the pendency of that action.
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
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).
The American Pipe decision, 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. at
552–53); 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

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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 Florida law would toll the statutes of
limitations during the pendency of the Saltzman federal class action. As an initial matter,
Fla. Stat. § 95.051 appears to preclude the application of class action tolling. This statute
“delineates an exclusive list of conditions that can ‘toll’ the running of the statute of
limitations.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1075 (Fla. 2001).
“Implicit in the court’s holding [in Major League Baseball] is the conclusion that in order
for a doctrine to ‘toll’ the statute of limitations, it must be included in the exclusive list of
conditions set forth in section 95.051(1).” HCA Health Servs. of Fla., Inc. v. Hillman,
906 So. 2d 1094, 1100 (Fla. Dist. Ct. App. 2004). The commencement of a class action
is not included among the tolling conditions listed in § 95.051. This omission strongly
suggests that class action tolling is not recognized under Florida law, especially in light
of the statutory language following § 95.051(1), which states: “[a] disability or other
reason does not toll the running of any statute of limitations except those specified in this
section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.” Fla. Stat.
§ 95.051(2).
Furhter, other courts have interpreted § 95.051 to preclude the use of class action
tolling. In Becnel v. Deutsche Bank, AG, the Second Circuit applied § 95.051 and
determined that “Florida does not allow tolling during the pendency of class action
lawsuits no matter where they are filed.” 507 F. App’x 71, 73 (2d Cir. 2013). The
Second Circuit declined one party’s request to certify the question to the Florida Supreme
Court, noting that the “Florida statute seems quite clear.” Id. at 73 n.1. The D.C. Circuit

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interpreted § 95.051 similarly, finding that “[t]he Florida legislature has enumerated eight
scenarios in which the applicable statute of limitations is tolled, and a pending class
action is not one of them.” In re Vitamins Antitrust Litig., 183 F. App’x 1, 2 (D.C. Cir.
2006).
The Dineens argue that § 95.051 does not bar the application of class action
tolling because at least one Florida court has applied American Pipe tolling to Florida
cases. See City of St. Petersburg v. Dayco Products, Inc., 2008 WL 5428172, at *3 (S.D.
Fla. Dec. 30, 2008) (finding a genuine issue of fact as to whether the plaintiffs’ claims
were tolled under American Pipe). However, St. Petersberg is not controlling because it
contains no discussion of whether Florida law contains an analogue to American Pipe but
instead appears to hold that American Pipe directly applies to the state law claims.1 See
id. at *2–3 (“Plaintiffs, in turn, argue that all of their claims are tolled under [American
Pipe] by the pendency of . . . a putative nationwide class action [filed in Alabama state
court].”). This is contrary to Fourth Circuit precedent, which requires courts to look to a
state law analogue, rather than American Pipe itself, to toll state law claims. Wade, 182
F.3d at 288–289 (holding that Virginia’s law on equitable tolling, not American Pipe,
applied to plaintiff’s state law claims).
The Dineens also cite Sacred Heart Health System, Inc. v. Humana Military
Healthcare Services, Inc., a Florida district court opinion in which the court, after
analyzing two Florida Supreme Court cases, held that while neither case “expressly used
the term ‘equitable tolling’ nor cited American Pipe, the effect of [their holdings] was to
equitably toll the statute of limitations so that the putative class members could pursue

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The court also notes that the St. Petersburg court did not address whether § 95.051 precluded the
application of American Pipe tolling.

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individual claims in spite of § 95.051.” 2008 WL 2385506, at *2 (N.D. Fla. June 9,
2008). However, the two cases on which the court relied in Sacred Heart—Engle v.
Liggett Grp., Inc., 945 So. 2d 1246, 1277 (Fla. 2006), and Lance v. Wade, 457 So. 2d
1008, 1011 (Fla. 1984)—do not discuss class action tolling or § 95.051. The cases
simply allowed putative class members to file their individual state law claims within a
certain period following the dissolution of a class action. Engle, 945 So. 2d at 1277;
Lance, 457 So.2d at 1011. Moreover, even if the courts in Engle and Lance adopted class
action tolling, they certainly did not adopt cross-jurisdictional class action tolling, which
would be required to toll the statutes of limitations in this case given that the Saltzman
action was filed in the Northern District of Illinois. The Sacred Heart court even
acknowledged that “[c]ases involving cross-jurisdictional tolling provide less justification
for tolling.” Sacred Heart, 2008 WL 2385506, at *3 n.9.
Therefore, the court finds that Florida law does not allow for cross-jurisdictional
class action tolling, and that the statutes of limitations for the Dineens’ claims were not
tolled by the pendency of Saltzman.
b.

Fraudulent Concealment2

The Dineens also argue that the statutes of limitations are tolled by Pella’s
fraudulent concealment of the defect.
“Fraudulent concealment can toll the running of a statute of limitations when the
fraud perpetrated upon the injured party places him in ignorance of his right to sue.”
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The court notes that, like class action tolling, fraudulent concealment does not fit within one of the
categories enumerated in § 95.051(1). Nevertheless, in Major League Baseball, the Florida Supreme Court
determined that “the overwhelming weight of legal authority supports the conclusion that section 95.051
does not trump the doctrine of equitable estoppel” and that equitable estoppel, including fraudulent
concealment, is not a tolling doctrine, and therefore not within the scope of § 95.051. Major League
Baseball, 790 So. 2d at 1078–80. Thus, while certain courts appear to dispute the application of the word
“toll,” Florida law clearly recognizes that fraudulent concealment, and equitable estoppel generally, prevent
the running of a statute of limitations.

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Wirt v. Cent. Life Assur., Co., 613 So. 2d 478, 479 (Fla. Dist. Ct. App. 1992) (citing
Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976)). “Fraudulent concealment requires the
defendants to engage in the willful concealment of the cause of action using fraudulent
means to achieve that concealment.” Raie v. Cheminova, Inc., 336 F.3d 1278, 1282 n.1
(11th Cir. 2003) (citing Berisford v. Jack Eckerd Corp., 667 So. 2d 809, 811 (Fla. Dist.
Ct. App. 1995)). To establish fraudulent concealment, a claimant must allege and
establish: “(1) successful concealment of the cause of action; (2) fraudulent means to
achieve that concealment; and (3) [that the] plaintiff exercised reasonable care and
diligence in seeking to discover the facts that form the basis of his claim.” Burr v. Philip
Morris USA Inc., 2012 WL 5290164 (M.D. Fla. Sept. 28, 2012) (citing Berisford, 667
So. 2d at 811–12). The “fraudulent means” alleged must go beyond mere non-disclosure
and must constitute active and willful concealment. Raie, 336 F.3d at 1282 n. 1;
Nardone, 333 So. 2d at 39; Licul v. Volkswagen Grp. of Am., Inc., 2013 WL 6328734, at
*6 (S.D. Fla. Dec. 5, 2013) (holding that allegations that defendant had not warned its
consumers or plaintiffs of a defect were “wholly insufficient to supply the affirmative
steps taken to prevent [p]laintiffs from discovering the basis of their claims that would be
necessary before tolling based on fraudulent concealment becomes appropriate”).
The Dineens point to Philip Morris USA, Inc. v. Naugle, 103 So. 3d 944, 947
(Fla. Dist. Ct. App. 2012) to show that fraudulent concealment may be established
through “statements or omissions.” However, in Naugle the plaintiff alleged that the
defendant’s initial omission of material information was followed by years of public
statements which concealed the material information. See Naugle, 103 So. 3d at 947 n.4,
948 (finding a jury issue as to whether plaintiff justifiably relied on the false controversy

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created by the tobacco industry). Thus, Naugle does not disturb the conclusion that “a
claim of mere ‘nondisclosure’” is “legally insufficient to toll the statute of limitations
[under Florida law].” Speier-Roche v. Volksw Agen Grp. of Am. Inc., 2014 WL
1745050, at *7 (S.D. Fla. Apr. 30, 2014) (citing Licul, 2013 WL 6328734, at *17–18).
The complaint does not sufficiently allege that Pella took any “affirmative steps to
prevent [the Dineens] from discovering the basis of their claims.” See Licul, 2013 WL
6328734, at *6. To be sure, the complaint contains a number of conclusory assertions to
that effect.3 Compl. ¶¶ 198–99, 204–05. However, the only specific fact alleged in
connection with such conclusions is that the Dineens are unaware of anything “in Pella’s
advertising, publicity or marketing materials that disclosed [the defect].” Id. ¶ 204. Such
non-disclosures do not constitute the “fraudulent means” required to establish fraudulent
concealment. See Licul, 2013 WL 6328734, at *6.
Therefore, the court finds that the Dineens have failed to plead facts necessary to
show that the relevant statutes of limitations were tolled by Pella’s fraudulent
concealment.
c.

Equitable Estoppel

The Dineens also argue that equitable estoppel prevents their claims from being
barred by their respective statutes of limitations.
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The court notes that, apart from their substantive insufficiency, the Dineens’ claims also lack the
particularity required under Fed. R. Civ. P. 9(b). Fraudulent concealment claims are “subject to Fed. R.
Civ. P. 9(b)’s requirement that the circumstances constituting fraud shall be stated with particularity.
Under Rule 9(b), the circumstances of the fraud must be alleged with specificity, i.e. the ‘who, what, when,
where, and how’ of the alleged fraud.” Speier-Roche, 2014 WL 1745050, at *7 (S.D. Fla. Apr. 30, 2014)
(quoting Greenberg v. Miami Children’s Hosp. Research Inst., Inc., 264 F. Supp. 2d 1064, 1073 (S.D. Fla.
2003)). Thus, bare allegations that Pella fraudulently “concealed and/or intentionally failed to disclose”
material information are clearly insufficient to establish fraudulent concealment.
The Dineens’ allegation that “when questioned about wood rot, Pella would claim faulty
installation, excessive moisture in the home, or would deny the claims as ‘out of warranty’ without
disclosing the defect,” Comp. ¶ 24, comes somewhat closer to the mark. However, because the complaint
gives no indication as to who at Pella made such claims, when such claims were made, or how Pella knew
those claims were false, it is also lacks the particularity required to state a claim under Rule 9(b).

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Equitable estoppel only applies when a plaintiff is aware that he has a cause of
action during the limitations period, but forbears from bringing suit because of the
defendant's misrepresentations. Spadaro v. City of Miramar, 855 F. Supp. 2d 1317, 1329
(S.D. Fla. 2012); Black Diamond Props., Inc. v. Haines, 69 So. 3d 1090, 1093–94 (Fla.
Dist. Ct. App. 2011). “The doctrine of equitable estoppel is inapposite” when
“[p]laintiffs do not allege that they knew they had a cause of action, but failed to comply
with the statute of limitations because they relied on fraudulent representations made by
[d]efendants that led them to delay filing suit.” Black Diamond Properties, 69 So. 3d at
1094.
Here, the Dineens’ allegations of equitable estoppel are based on a failure to
disclose the alleged defect. See Compl. ¶ 72 (“Given Pella’s failure to disclose . . . the
defective nature of the [w]indows . . . Pella is estopped from relying on any exception
regarding any statutes of limitation.”). They do not allege that they knew about the
defect but delayed filing the suit due to Pella’s misrepresentations. See id. (admitting that
the Dineens “could not have known in the exercise of reasonable diligence that the
[w]indows were defective”).
Therefore, the court finds that equitable estoppel does not prevent the statutes of
limitations from running.
2.

Accrual

Having determined that the statutes of limitations for the Dineens’ claims were
not tolled by any of the doctrines discussed above, the court now turns to the question of
whether each claim’s specific statute of limitations has run.

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a.

Count I—FDUTPA Claim

“The statute of limitations on a FDUTPA claim expires four years from the date
of sale of the product at issue.” Licul, 2013 WL 6328734, at *6 (citing Fla. Stat. §
95.11(3)(f)). The Dineens purchased the last of their windows in 2005. Compl. ¶ 54.
Therefore, the statute of limitations expired in 2009, nearly five years before the plaintiffs
filed suit.
The Dineens argue that the court cannot measure the statute of limitations from
the time of the last window purchase, because the continuing tort doctrine applies to their
FDUTPA claim.4 Pls.’ Resp. 3–4.
Torts that are continuing in nature are subject to the continuing tort doctrine.
Seaboard Air Line R. Co. v. Holt, 92 So. 2d 169, 170 (Fla. 1956). “Where the
[continuing tort] doctrine applies, a plaintiff may recover damages for tortious acts
committed within the limitations period prior to the filing of suit.” Suarez v. City of
Tampa, 987 So.2d 681, 685 (Fla. Dist. Ct. App. 2008) (citations omitted). A continuing
tort is “established by continual tortious acts, not by continual harmful effects from an
original, completed act.” Id. at 686 (citing Horvath v. Delida, 540 N.W.2d 760, 763
(Mich. App. 1995)) (emphasis in original). “When a defendant’s damage-causing act is
completed, the existence of continuing damages to a plaintiff, even progressively
worsening damages, does not present successive causes of action accruing because of a
continuing tort.” Suarez, 987 So. 2d at 686 (quoting In re Medical Review Panel for
Claim of Moses, 788 So. 2d 1173, 1183 (La. 2001)).
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The Dineens also contend that the continuing tort doctrine applies to their negligence and
negligent misrepresentation claims, Pl.’s Resp. 3–4. However, because the court finds that the complaint
sufficiently alleges that these did not accrue until discovery and were therefore brought within their
respective statutes of limitations, the continuing tort doctrine is not dispositive as to such claims and will
therefore only be addressed in the FDUPTA context.

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The Dineens have not straightforwardly alleged FDUPTA violations that occurred
within the four years preceding the filing of this action. Instead, the Dineens contend that
Pella has “engaged in continuous and purposeful wrongdoing by acting to cover up
known defects in the [w]indows.” Compl. ¶ 101.
“Under section 501.211 of FDUPTA . . . a successful claimant is entitled only to
‘actual damages.’” Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1140 (Fla. Dist.
Ct. App. 2008). “FDUPTA ‘actual damages’ do not include consequential damages, such
as repair damages or resale damages.” Id. at 1140. Because the complaint indicates that
the Dineens last purchased Pella’s windows in 2005, the only damage caused by Pella’s
cover up would be consequential damages arising from the progressive wood rot, which
are not recoverable under FDUPTA. Compl. ¶ 17, 54. Thus, the last “damage-causing
act” recognized under FDUPTA occurred in 2005, and the continuing tort doctrine does
not apply.
Therefore, the court finds that the statute of limitations has run on the Dineens’
FDUPTA claim.
b.

Counts II–VIII—Negligence, Negligent
Misrepresentation, All Warranty Claims, and All
Fraud-Based Claims

The Dineens’ negligence, negligent misrepresentation, warranty, and fraud-based
claims are all governed under either a four- or five-year statute of limitations. Fla. Stat.
Ann. § 95.031(2)(b); Fla. Stat. Ann. § 95.031(3)(a); Fla. Stat. Ann. § 95.031(3)(c); Fla.
Stat. Ann. § 95.031(3)(j). Most importantly, each of these statutes of limitations runs
“from the date that the facts giving rise to the cause of action were discovered, or should
have been discovered with the exercise of due diligence.” Fla. Stat. Ann. § 95.031(2)(a)–
(b). Therefore, the court must determine when the Dineens became aware of the facts
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giving rise to each claim. Since each claim is premised upon Pella’s sale of defective
windows, this inquiry focuses on when the Dineens discovered, or should have
discovered, that their windows were defective.
The Dineens noticed damage to one of their windows in 2006. Compl. ¶ 60.
Around that time, a Pella representative inspected the window and informed the Dineens
that the sash seal had failed. Id. Pella contends that because the Dineens were told that
the sash seal failed on the damaged window in 2006, they have been aware of the defect
since at least that time. Def.’s Reply 4. For the window that was damaged in 2006, the
statute of limitations has clearly run for each of the Dineens’ claims. However, the
Dineens contend that the failure of a single window was not sufficient to put them on
notice of a design defect affecting the entire supply of windows. Hr’g Tr. 35:11–36:20.
Florida courts have held that “where the manifestation [of the defect] is not
obvious but could be due to causes other than an actionable defect, notice as a matter of
law may not be inferred.” Snyder v. Wernecke, 813 So. 2d 213, 217 (Fla. Dist. Ct. App.
2002) (quoting Performing Arts Ctr. Auth. v. Clark Const. Grp., Inc., 789 So. 2d 392, 394
(Fla. Dist. Ct. App. 2001)). For the purposes of this motion to dismiss, where the court
must draw all reasonable factual inferences in the Dineens’ favor, there is no reason to
think the failure of a single sash seal should have led the Dineens to suspect, much less
discover, a product-wide design defect. Pella argues that the Dineens should have
realized the nature of the defect based on Pella’s replacement of the window under the
express limited warranty in 2006 because that warranty does not cover “extraneous
causes of window failure,” such as improper installation. Def.’s Reply 4. However, the
fact that the limited warranty only covers defects in “materials or workmanship,” Def.’s

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Mot. Ex. 3, does not necessarily show that the Dineens should have realized the scope of
the defect in 2006. Based on the facts alleged in the complaint, the Dineens could have
reasonably thought that their 2006 window damage was the result of an isolated defect.
Therefore, the court finds that the Dineens’ negligence, negligent
misrepresentation, warranty, and fraud-based claims are not barred by their respective
statutes of limitations.
c.

Count IX—Unjust Enrichment

Under Florida law, a claim for unjust enrichment is subject to a four-year statute
of limitations. Fla. Stat. 95.11(3)(k). “[U]njust enrichment claims accrue at the time the
alleged benefit is conferred by the plaintiff on the defendant and the defendant accepts
such benefit.” Merle Wood & Assocs. Inc. v. Trinity Yachts, LLC, 2011 WL 845825, at
*6 (S.D. Fla. Mar. 7, 2011) (citations omitted).
The Dineens allege that they “conferred a benefit on [Pella] when they purchased
the [w]indows,” Compl. ¶ 212, and failed to provide further information on the statute of
limitations argument in their response.
Therefore, the court finds that the Dineens’ unjust enrichment claim is barred by
the statute of limitations.
B.

Negligence

Pella argues that the Dineens’ negligence claim fails because it violates the
economic loss rule. Def.’s Mot. 22.
Florida recognizes the economic loss rule, “a judicially created doctrine that sets
forth the circumstances under which a tort action is prohibited if the only damages
suffered are economic losses.” Tiara Condo. Ass'n, Inc. v. Marsh & McLennan

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Companies, Inc., 110 So. 3d 399, 401 (Fla. 2013). Economic losses are defined as
“damages for inadequate value, costs of repair and replacement of the defective product,
or consequent loss of profits—without any claim of personal injury or damage to other
property.” Id.
The Dineens contend that the economic loss rule does not apply to their claim
because they have alleged damage to other property, such as “the structure of their home,
wall cavity, adjoining finishes and walls[,] and [] other personal property within the
home.” Compl. ¶ 58. Pella argues that the Dineens’ allegation of damage to “other
personal property” is conclusory and insufficient to plead around the economic loss
doctrine. Def.’s Mot. 22.
Pella relies on In re Bldg. Materials Corp. of Am. Asphalt Roofing Shingle
Products Liab. Litig., No. 8:11-cv-02785, 2013 WL 139520 (D.S.C. Jan. 10, 2013) to
support its argument. In Building Materials Corp., the plaintiff alleged that:
Cracked shingles cause water to leak past the shingles, which in turn
causes damage to property owned by [p]laintiff and class members other
than the shingles themselves (including other roofing material, the roof
itself, structural elements, interior walls and ceilings, and building
contents).
Id. at *5. The court characterized this and similar allegations as “conclusory statements
concerning speculative and hypothetical damage,” and found that “[w]ithout any
allegation of actual injury to property” the plaintiff’s claims were barred by the economic
loss rule. Id.
Thus, the allegations in Building Materials Supply were not simply vague, but
also unduly speculative. This speculative element distinguishes the Building Materials
Supply case from the case at hand. The Dineens’ complaint, though certainly vague,
does allege that actual damages have occurred. See Compl. ¶ 58 (“The [w]indows
16

allowed water to intrude into [p]laintiff’s [sic] home resulting in other property
damage . . . such as . . . [damage to] other personal property within the home.”). This
courts has found similarly vague allegations to be sufficient, as long as they “sufficiently
notify [the defendant] as to the specific category of loss allegedly suffered by the
plaintiffs.” See In re: MI Windows & Doors, Inc. Products Liab. Litig., 908 F. Supp. 2d
720, 725 n.2 (D.S.C. 2012) (recognizing In re MI Windows & Doors, Inc. Products Liab.
Litig., No. 2:12-cv-02238, 2012 WL 4761435, at *3 (D.S.C. Oct. 3, 2012) and In re MI
Windows & Doors, Inc. Products Liab. Litig., No. 2:12-cv-01256, 2012 WL 4846987, at
*5 (D.S.C. Oct. 11, 2012), in which complaints alleging damage to “personal property”
were found sufficient to avoid the economic loss rule).
Therefore, the court finds that the Dineens’ allegation of damage to “other
personal property” is sufficient to avoid the economic loss rule and survive the instant
motion to dismiss.5 The court notes, however, that the claim fails to the extent the
Dineens seek recovery in negligence for damage to the windows themselves.
C.

Negligent Misrepresentation

Pella argues that the Dineens’ negligent misrepresentation claim fails because it
does not satisfy the requirements of Rule 9(b).6 Def.’s Mot. 25.

5

Pella also argues that the structure of the home, wall cavity, finishes, and walls do not constitute
“other property” under the economic loss rule. Def.’s Mot. 23. Because the court finds the allegation of
damage to “other personal property within the home” to be dispositive, the court does not address the
sufficiency of the Dineens’ allegations regarding other parts of the home.
6
While the court recognizes that federal courts in the transferor district regularly apply Rule 9(b) to
negligent misrepresentation claims under Florida law, see, e.g., Linville v. Ginn Real Estate Co., LLC, 697
F. Supp. 2d 1302, 1306 (M.D. Fla. 2010) (“Rule 9(b) applies to claims for negligent misrepresentation
under Florida law because negligent misrepresentation sounds in fraud.”), because “the law of the
transferee circuit governs questions of federal law,” In re KBR, Inc., 736 F. Supp. 2d 954, 957, the court
must determine whether the Fourth Circuit would also apply Rule 9(b) to such claims. Though the Fourth
Circuit declined to apply Rule 9(b) to a negligent misrepresentation claim under Maryland law in Baltimore
Cnty. v. Cigna Healthcare, that opinion was unpublished and is therefore not binding. 238 F. App’x 914,
921 (4th Cir. 2007). Prior to and following Cigna Healthcare, district courts have applied Rule 9(b) to
negligent misrepresentation claims arising under other states’ laws. See Topshelf Mgmt., Inc. v. Campbell-

17

Florida has adopted the Restatement (Second) of Torts’ formulation of negligent
misrepresentation, which states that:
One who, in the course of his business, profession or employment, or in
any other transaction in which he has a pecuniary interest, supplies false
information for the guidance of others in their business transactions, is
subject to liability for pecuniary loss caused to them by their justifiable
reliance upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.
Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334, 337 (Fla. 1997) (citing
Restatement (Second) of Torts § 552 (1977)); see also Baggett v. Electricians Local 915
Credit Union, 620 So.2d 784 (Fla. Dist. Ct. App. 1993) (listing the following elements of
a negligent misrepresentation claim: “(1) there was a misrepresentation of material fact;
(2) the representer either knew of the misrepresentation, made the misrepresentation
without knowledge of its truth or falsity, or should have known the representation was
false; (3) the representer intended to induce another to act on the misrepresentation; and
(4) injury resulted to a party acting in justifiable reliance upon the misrepresentation”).
Rule 9(b) provides that a party alleging fraud “must state with particularity the
circumstances constituting fraud.” See Linville, 697 F. Supp. 2d at 1306 (“Rule 9(b)
applies to claims for negligent misrepresentation under Florida law because negligent
misrepresentation sounds in fraud.”). This rule ensures that defendants have adequate
notice of the conduct complained of, protects them from frivolous suits, eliminates fraud

Ewald Co., 2015 WL 4621859, at *4–5 (M.D.N.C. Aug. 3, 2015) (applying the Rule 9(b) to negligent
misrepresentation claims arising under North Carolina law); Walters v. Pella Corp., No. 2:14-cv-00544,
2015 WL 2381335, at *9 (D.S.C. May 19, 2015) (applying Rule 9(b) to negligent misrepresentation claims
arising under Nevada law); Pitten v. Jacobs, 903 F. Supp. 937, 951 (D.S.C. 1995) (applying Rule 9(b) to
negligent misrepresentation claims arising under South Carolina law). The court also notes that the
Dineens do not dispute the applicability of Rule 9(b), but simply argue that they have satisfied its
requirements. Given the practice of courts in this circuit, the established position of other federal courts
that have addressed such claims, and the parties’ agreement on the issue, the court will assess the adequacy
of the Dineens’ negligent misrepresentation allegation under the standards required by Rule 9(b).

18

actions in which all the facts are learned after discovery, and protects defendants from
harm to their goodwill and reputation. Harrison v. Westinghouse Savannah River Co.,
176 F.3d 776, 784 (4th Cir.1999) (citation omitted). In order to satisfy Rule 9(b), the
complaint must allege the “who, what, when, where and how of the alleged fraud,” U.S.
ex rel. Ahumada v. NISH, 756 F.3d 268, 280 (4th Cir.2014), or the “first paragraph of
any newspaper story.” Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 995
(8th Cir. 2007); see also U.S. ex rel. Elms v. Accenture LLP, 341 F. App’x 869, 872 (4th
Cir. 2009) (holding Rule 9(b) requires a plaintiff to allege “the time, place, and contents
of the false representations, as well as the identity of the person making the
misrepresentation and what he obtained thereby”).
Here, the Dineens have not pleaded any affirmative misrepresentations with the
particularity required under Rule 9(b). Each of the Dineens’ allegations contend that
“Pella” made various “misrepresentations and omissions of material facts,” Compl. ¶¶ 29,
123, though the complaint indicates that the Dineens’ actual purchase was made on the
recommendation of their builder and made from Robert Hunt Corporation, a Pella
distributor. Id. ¶¶ 53, 55. This makes it unclear which party actually communicated the
alleged misrepresentations to the Dineens. Even assuming the alleged misrepresentations
were made by Pella, the complaint does not indicate which Pella employee or document
supplied the misrepresentations. Moreover, there is no indication of the time or place
where such misrepresentations were made. Id. ¶ 123. Therefore, to the extent the
Dineens’ negligent misrepresentation claim is premised on affirmative
misrepresentations, it is not pleaded with the specificity required under Rule 9(b).

19

The Dineens also allege that Pella negligently misrepresented material facts by
omission. Id. Negligent misrepresentation can occur through an omission of material
information, if the omitting party owes a duty of disclosure to the plaintiff. Kahama VI,
LLC v. HJH, LLC, 2013 WL 6511731, at *6 (M.D. Fla. Dec. 12, 2013). “A duty to
disclose arises when one party has information that the other party has a right to know
because of a fiduciary or other relation of confidence between them.” Id.
Rule 9(b) operates somewhat differently when evaluating claims based on
omissions. Breeden v. Richmond Cmty. Coll., 171 F.R.D. 189, 195 (M.D.N.C. 1997)
(recognizing that the usual Rule 9(b) requirements “work[] well for cases of affirmative
misrepresentations because such are discrete, observable events which can be
particularized,” while “fraud by omission . . . is by its very nature, difficult to plead with
particularity” (quoting Daher v. G.D. Searle & Co., 695 F.Supp. 436, 440 (D. Minn.
1988)). In order to plead fraud by omission in compliance with the pleading
requirements of Rule 9(b), “a plaintiff usually will be required to allege the following
with reasonable particularity:”
(1) the relationship or situation giving rise to the duty to speak, (2) the
event or events triggering the duty to speak, and/or the general time period
over which the relationship arose and the fraudulent conduct occurred, (3)
the general content of the information that was withheld and the reason for
its materiality, (4) the identity of those under a duty who failed to make
such disclosures, (5) what those defendant(s) gained by withholding
information, (6) why plaintiff's reliance on the omission was both
reasonable and detrimental, and (7) the damages proximately flowing from
such reliance.
Id.
The Dineens’ allegations satisfy the requirements of Rule 9(b) with respect to
their claims for negligent misrepresentation by omission. The complaint alleges that the
Dineens had a contractual relationship with Pella in which Pella “was in a position to
20

provide guidance . . . and acted in an advisory capacity regarding the quality, fitness and
usefulness of its windows.”7 Compl. ¶ 122. It is clear from this allegation regarding the
nature of Pella’s duty to speak that the Dineens contend this duty was created by the their
purchase of the windows. Despite this duty, the Dineens allege that Pella “took no action
to: (1) inform owners of the defects; (2) recall the [w]indows or (3) otherwise repair the
[w]indows.” Id. ¶ 26. The complaint also makes clear that the Dineens were likely to be
misled by the omission, as they had no reason to suspect such a defect and could not have
discovered it through reasonable inspection. Id. ¶¶ 18, 56. Finally, the complaint alleges
that, as a result of the alleged omissions, the Dineens were induced to purchase the
windows and where damaged thereby. Id. ¶¶ 129–31.
Therefore, the court finds that, to the extent the Dineens negligent
misrepresentation claim relies on Pella’s omissions, the Dineens have pleaded their claim
with sufficient particularity to satisfy Rule 9(b).
D.

Implied Warranty Claims

Pella argues that the Dineens’ implied warranty claims fail for a lack of privity.
Def.’s Mot. 26. It also argues that the claim for breach of the implied warranty of fitness
for a particular purpose should be dismissed because the windows were used for their
ordinary purpose. Id. at 27.

7

Under Florida law, a duty to speak “arises when one party has information that the other party has
a right to know because of a fiduciary or other relation of trust or confidence between them.” Kahama,
2013 WL 6511731, at *6. The requisite relationship may be “confidential, contractual, or fiduciary” in
nature. TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878, 880 (Fla. Dist. Ct. App. 2000). Drawing all
reasonable inferences in the Dineens’ favor, the court is satisfied that the Dineens have sufficiently alleged
that Pella had a duty to speak under Florida law.

21

1.

Privity

“Under Florida law, privity of contract is an essential element of a claim for
breach of implied warranty.” Bailey v. Monaco Coach Corp., 168 F. App’x 893, 894
(11th Cir. 2006) (citing Mesa v. BMW of N. Am., LLC, 904 So. 2d 450, 458 (Fla. Dist.
Ct. App. 2005)). Recently, a Florida district court determined that “[l]iteral privity can be
finessed by a proxy: direct beneficiary or third-party beneficiary status.” SanchezKnutson v. Ford Motor Co., 2014 WL 5139306, at *10 (S.D. Fla. Oct. 7, 2014) (citing In
re Masonite Corp. Hardboard Siding, 21 F. Supp. 2d 593, 599 (E.D. La. 1998); Warren v.
Monahan Beaches Jewelry Ctr., Inc., 548 So. 2d 870 (Fla. Dist. Ct. App. 1989)). The
Sanchez-Knutson court denied the defendant’s motion to dismiss based on the plaintiff’s
allegation that “[t]he dealers were not intended to be the ultimate consumers of the
subject vehicles, [the dealers] have no rights under the warranty agreements provided by
[the defendant,]” and “[defendant]’s warranties were designed for and intended to benefit
the consumers only.” Id.
Pella contests the application of Sanchez-Knutson under these circumstances,
because the Dineens did not purchase the windows directly from the Pella distributor
while the plaintiff in Sanchez-Knutson was the actual purchaser of the product from a
third-party dealer. Def.’s Reply 13; Id. at *1. Instead, the Dineens purchased a house,
and the builder of the house purchased the windows from the Pella distributor. Def.’s
Reply 13.
However, this distinction seems trivial as it does not undermine SanchezKnutson’s rationale that the ultimate consumer of the product is the intended beneficiary
of any implied warranties and should therefore be able to bring a claim for breach of such

22

warranties. See Sanchez-Knutson, 2014 WL 5139306, at *10 (denying motion to dismiss
where complaint alleged that plaintiff, not dealer, was intended to be the ultimate
consumer). Though the Dineens did not purchase their windows directly from the dealer,
they nevertheless acquired the windows through a purchase by their builder. The
Dineens were just as much third party beneficiaries to the contract between their builder
and the distributor as they were to any contract between Pella and its distributor. This
extra layer of “proxies” between the Dineens and Pella does not alter the rationale for
recognizing an implied warranty claim, because the Dineens were always the intended
consumers and, thus, ultimate beneficiaries of each proxy transaction.
Therefore, the court finds that the Dineens’ implied warranty claims do not fail
for lack of privity.
2.

Particular Purpose

The implied warranty of fitness for a particular purpose arises “[w]here 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.” Fla. Stat. § 672.315.
A “particular purpose” differs from the ordinary purpose for which the
goods are used in that it envisages a specific use by the buyer which is
peculiar to the nature of his business whereas the ordinary purposes for
which goods are used are those envisaged in the concept of
merchantability and go to uses which are customarily made of the goods in
question. For example, shoes are generally used for the purpose of
walking upon ordinary ground, but a seller may know that a particular pair
was selected to be used for climbing mountains.
Id. cmt. 2.
Though the existence of a particular purpose is usually regarded as a “question of
fact to be determined by the circumstances of the contracting,” Fla. Stat. Ann. § 672.315
23

cmt. 1, courts have occasionally determined the absence of a particular purpose as a
matter of law. See Royal Typewriter Co., a Div. of Litton Bus. Sys. v. Xerographic
Supplies Corp., 719 F.2d 1092, 1100 (11th Cir. 1983) (holding as a matter of law that
leasing, as opposed to selling, copiers was not a particular purpose to which the
protections of § 672.315 attach).
In this case, the Dineens’ complaint alleges that the windows were “purchased for
the particular purpose of being installed at [p]laintiffs’ and the [c]lass [m]embers’
properties.” Compl. ¶ 142.8 Installing windows into buildings is not an especially
peculiar or particular use. To the contrary, it appears to be quite an ordinary use. Does
anyone connected to this litigation know of any other use for a window? Perhaps Pella
has a “Windows Hall of Fame” housing a collection of free standing windows, but the
court is unaware of such a tourist attraction. A review of the Dineens’ complaint
reinforces this finding. The court notes that the Dineens make no mention of how Pella
was alerted to this supposed “particular purpose.” See id. (simply stating that “Pella
knew and had reason to know that its [w]indows were being purchased for [a particular
purpose]”). Normally, how the seller learned of the buyer’s particular purpose is crucial
to a claim for breach of implied warranty of fitness for a particular purpose. See Pavletic
v. Bertram Yacht, Inc., 2011 WL 3475394, at *7 (S.D. Fla. Aug. 9, 2011) (“A plaintiff

8

In their response, the Dineens claim that their allegations relate to the windows’ “installation in
specific locations in their structures, in accordance with the specific building codes and standards
applicable thereto.” Pls.’ Resp. 26. However, this allegation never appears in their complaint, and “it is
axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”
Fieger v. Supreme Court of S.C., No. C/A 3:10-1038, 2010 WL 3521606, at *4 (D.S.C. Aug. 16, 2010)
(quoting Myland Labs., Inc. v. Akzo, 770 F. Supp. 1053, 1068 (D. Md. 1991)). Therefore, the court will
not formally consider this argument.
Nevertheless, the court notes that, because the Dineens have not indicated how Pella was informed
of the “specific locations” where its windows were used, it is doubtful that the court could find that the
Dineens sufficiently pleaded facts showing that Pella knew of their particular purpose “at the time the sale
was made.” See Pavletic, 2011 WL 3475394, at *7.

24

must prove that the defendant, at the time the sale was made, knew of a particular
purpose for which the goods were going to be used and that the plaintiff relied upon the
defendant's skill and judgment when purchasing said product.”). Here, it is of course
entirely plausible that Pella was aware that its customers intended to install the windows
into their properties, but this only proves the absence of a particular purpose. The very
fact that Pella did not need to be specifically informed that the windows were intended to
be used in buildings demonstrates that these are, in fact, ordinary purposes.
Therefore, the court finds that the complaint indicates that the windows were used
for their ordinary purpose, and the Dineens have failed to sufficiently plead a claim for
breach of the implied warranty of fitness for a particular purpose.
E.

Express Warranty Claim

Pella advances several arguments for why the Dineens’ express warranty claim
should be dismissed.
First, Pella argues that the Dineens fail to allege that they read any of the
statements in Pella’s promotional materials upon which the express warranty claim is
based. Def.’s Mot. 28. This argument is without merit. To plead a breach of express
warranty claim under Florida law, “a complaint must allege: (1) the sale of goods; (2) the
express warranty; (3) breach of the warranty; (4) notice to seller of the breach; and (5) the
injuries sustained by the buyer as a result of the breach of the express warranty.” Moss v.
Walgreen Co., 765 F. Supp. 2d 1363, 1368 (S.D. Fla. 2011). “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.” Fla. Stat. § 672.313(1)(a) (emphasis added). “Statements made

25

in promotional materials, advertisements, and brochures may be sufficient to create an
express warranty if the buyer relies on those statements in making his purchase.”
Aprigliano v. Am. Honda Motor Co., 979 F. Supp. 2d 1331, 1341 (S.D. Fla. 2013)
(emphasis added).
Pella does not cite to any Florida authority that requires a plaintiff to plead that
they read the warranties. Such a requirement is logically subsumed under the reliance
analysis because a plaintiff cannot rely on a warranty unless he had knowledge of it. The
Dineens allege that the representations became a basis of the bargain. Compl. ¶¶ 30–31,
55, 158–160. Therefore, the fact that the Dineens did not plead that they read any of the
promotional materials does not provide grounds for dismissing the express warranty
claim.
Pella next argues that the alleged statements from Pella’s Owners’ Manual,
Compl. ¶ 32, cannot constitute express warranties because the Owners’ Manual
accompanying the Dineens’ windows did not contain any such statements. Def.’s Mot.
30, Exs. 10, 11. Instead, Pella contends, these statements come from a 2012 Pella
brochure published years after the Dineens’ windows were purchased. Def.’s Mot. Ex.
12. The Dineens do not respond to this argument or dispute the authenticity of the
Owners’ Manual and 2012 brochure attached to Pella’s motion. Pl.’s Resp. 26–29. A
review of said attachments supports Pella’s argument.9 Therefore, the court finds that the
9

Courts may consider a document not included in the complaint at the Rule 12(b)(6) stage when: (i)
it was attached to the motion to dismiss, and is clearly integral to, and was relied upon in, the complaint;
and (ii) the plaintiff does not dispute its authenticity. Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th
Cir. 2006). Here, the alleged representations in the Owner’s Manual clearly form part of the basis of the
Dineen’s express warranty claim, as the Dineens have cited to such representations to support their
argument that their “express warranty claim fulfills all of the [required] elements, as it alleges that
[Pella] . . . expressly represented in various contexts that the [w]indows were appropriate for their intended
use, were free of defects, and complied with applicable building codes and industry standards.” Pl.’s Resp.
27 (citing Comp. ¶ 32).

26

Dineens have failed to state a plausible claim for relief with respect to the alleged
representations contained in the Owners’ Manual.
Pella also argues that the Dineens do not state a claim for relief because they do
not adequately allege that Pella breached the terms of the limited warranty that ships with
the windows. Def.’s Mot. 28. The Dineens concede that this is true, but clarify that their
express warranty claims are based on “separate affirmations” distinct from the limited
warranty. Pls.’ Resp. 29.
With respect to such “separate affirmations,” Pella argues that the Dineens have
not sufficiently pleaded the source and contents of the various representations giving rise
to the express warranties. Def.’s Mot. 28. The Dineens contend that they have
sufficiently pleaded such facts by alleging that Pella represented, “through its website,
brochures, marketing materials, and representatives,” that the windows were free from
defects. Compl. ¶ 157; Pl.’s Resp. 27 (citing Compl. ¶¶ 29, 32, 55, 151, 155–57).
As discussed above, to survive a motion to dismiss, a “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). A plaintiff is
required to provide the “‘grounds’ of his ‘entitlement to relief’” which requires more than
mere “labels and conclusions,” or “a formulaic recitation of the elements of a cause of
action.” Pegasus Imaging Corp. v. Allscripts Healthcare Solutions, Inc., 2009 WL
1767612, at *1 (M.D. Fla. June 23, 2009) (quoting Twombly, 550 U.S. at 545).
To state a claim for breach of warranty under Florida law, the plaintiff must
allege: “(1) facts in respect to the sale of the goods; (2) type of warranty created; (3) facts
in respect to the creation of that particular type of warranty; (4) facts of the breach of

27

warranty; (5) notice to seller of breach; and (6) injuries sustained by the buyer as a result
of the breach of warranty.” Pegasus Imaging, 2009 WL 1767612, at *2.
The Dineens’ allegation that Pella represented that the windows were free from
defects in their website and various marketing materials sufficiently indicates the type of
warranty created and the way in which it was created. Compl. ¶ 175. By indicating the
general nature and source of the alleged warranty, the Dineens have stated more than
mere “labels and conclusions.” See Bennett v. Skyline Corp., 2015 WL 1608848, at *3
(N.D.W. Va. Apr. 10, 2015) (denying motion to dismiss claim for breach of express
warranty where plaintiffs’ amended complaint alleged that “[defendant] warranted that
their home ‘would be delivered with the options, fixtures and components’ they had
selected or that were represented by [defendant]'s ‘models, advertisements, and
specifications’”); see also Pegasus Imaging, 2009 WL 1767612, at *2 (rejecting
plaintiff’s contention that defendants’ counterclaim failed to allege conduct and/or
circumstances that gave rise to implied warranties, where counterclaim alleged that
plaintiff’s offering and selling of product created implied warranty).
Therefore, the court finds that the Dineens have sufficiently pleaded a claim for
breach of express warranty.
F.

Fraud-based Claims

Pella argues that the Dineens’ claim for fraud and fraudulent concealment fail to
satisfy the pleading requirements of Rule 9(b), referring to its previous arguments used in
the context of negligent misrepresentation and fraudulent concealment based tolling.
Def.’s Mot. 31. Given the similarity between a claim for fraud and a claim for negligent
misrepresentation, see Drilling Consultants, Inc. v. First Montauk Sec. Corp., 806 F.

28

Supp. 2d 1228, 1236 (M.D. Fla. 2011) (outlining the elements of each claim), the court
finds the discussion in section III.C. equally applicable to the Dineens’ fraud-based
claims.
For the reasons outlined in that section, the court finds that the Dineens have
sufficiently stated claims for fraud and fraudulent concealment, but only to the extent
such claims are based on omissions of material fact.
G.

Declaratory Relief

Pella argues that the Dineens’ claim for declaratory relief fails because it lacks a
substantive foundation and because it is inappropriate at this time, as the merits of the
Dineens’ substantive claims have yet to be decided. Def.’s Mot. 33–34.
The Declaratory Judgment Act states that
In 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 intended to help parties resolve
legal disputes before either party can seek or has sought a coercive remedy through the
courts. 10B Charles Alan Wright & Arthur A. Miller, Federal Practice and Procedure §
2751 (3d ed. 1998). 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).
Declaratory relief is inappropriate at this stage, as the merits of the Dineens’
substantive claims have not been adjudicated. See Kennedy v. MI Windows & Doors,
Inc., No. 2:12-cv-2305, 2013 WL 267853, at *6 (D.S.C. Jan. 24, 2013); F.D.I.C. v.
OneBeacon Midwest Ins. Co., 883 F. Supp. 2d 754, 761–62 (N.D. Ill. 2012) (dismissing a
29

declaratory relief claim that raised the same issue as a substantive legal claim already
before the court); Vill. of Sugar Grove v. F.D.I.C., 2011 WL 3876935, at *9 (N.D. Ill.
Sept. 1, 2011) (“We have discretion to decline to hear a declaratory judgment action and
courts have exercised that discretion where a plaintiff seeks a declaratory judgment that
substantially overlaps it substantive claims”) (internal citations omitted); Monster Daddy
LLC v. Monster Cable Prods., Inc., No. 6:10-cv-1170, 2010 WL 4853661, at *6 (D.S.C.
Nov. 23, 2011) (dismissing three declaratory relief counterclaims because they “raise the
same legal issues that are already before the court”).
Therefore, the court dismisses the Dineens’ claim for declaratory relief.
IV. CONCLUSION
For the foregoing reasons the court GRANTS IN PART AND DENIES IN
PART Pella’s motion to dismiss and DISMISSES WITHOUT PREJUDICE the
Dineens’ claims for FUDTPA violations; unjust enrichment; breach of implied warranty
of fitness for a particular purpose; declaratory judgment; fraud-based claims to the extent
they rely on affirmative representations; and negligent misrepresentation claim to the
extent it relies on affirmative representations.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
October 30, 2015
Charleston, South Carolina
30