Griffin v. Building Materials Corporation
Filing
33
ORDER AND OPINION granting in part and denying in part 22 Motion to Dismiss for Failure to State a Claim as set out. Signed by Honorable J Michelle Childs on 3/27/2013.(mbro)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
In re:
)
Building Materials Corporation of America )
Asphalt Roofing Shingle Products Liability )
Litigation,
)
____________________________________)
)
Tina Griffin, on behalf of herself
)
and all others similarly situated,
)
)
Plaintiff,
)
)
vs.
)
)
Building Materials Corporation of America, )
dba GAF Materials Corporation,
)
)
Defendant.
)
____________________________________)
MDL No.: 8:11-mn-02000-JMC
Civil Action No.: 8:12-cv-00082-JMC
ORDER AND OPINION
This matter is before the court on Defendant Building Materials Corporation of America,
doing business as GAF Materials Corporation’s (“GAF”), Motion to Dismiss the First Amended
Complaint for Failure to State a Claim Upon Which Relief Can be Granted [Dkt. No. 22].
Extensive memoranda in support of and in opposition to this motion have been filed by the
parties. Having considered the written arguments of the parties and the record before the court,
GAF’s motion is granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
GAF is a Delaware corporation with its principal place of business in Wayne, New
Jersey. It manufactures roofing materials, including asphalt roofing shingles marketed under the
Timberline® brand name, in facilities located across the United States and sells these shingles
nationwide. Plaintiff Tina Griffin (“Griffin”) is a homeowner in Bellingham, Massachusetts,
1
who owns a home roofed with Timberline Ultra shingles. Griffin does not specify when she
purchased the shingles, but her complaint alleges that she “did not discover that her GAF
shingles were cracked and cracking until 2007, less than 12 years after installation.” Amended
Complaint, at ¶128 [Dkt. No. 17]. Griffin further alleges that she filed a warranty claim, which
GAF accepted. However, GAF disputes having any record of the warranty claim. In purchasing
the shingles, Griffin contends that she relied on certain representations made by GAF and its
agents including, but not limited to, promotional statements marketing the shingles as having
superior durability qualities and expressly warranting on the shingle packaging that the product
complied with ASTM International (“ASTM”) industrial standard D3462. She further alleges
that the shingles installed on her roof were manufactured and sold to her with a latent defect that
causes the shingles to prematurely crack, of which GAF was aware but intentionally failed to
disclose to Griffin and other consumers. Griffin brings this putative class action against GAF
asserting claims for breach of express and implied warranties (counts I and II); negligence and
negligent failure to instruct or to warn (counts III and IV) (together, the Tort Claims); violation
of the New Jersey Consumer Fraud Act (“NJCFA”) (count V); violation of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) (count VI);1 unjust
enrichment (Count VII); declaratory and injunctive relief (count VIII); and fraudulent
concealment/equitable tolling (count IX); arising from GAF’s sale of the allegedly defective
roofing shingles.
LEGAL STANDARD
Standard of Review
To survive a motion to dismiss, the Federal Rules of Civil Procedure require that a
1
In her Response memorandum to GAF’s Motion to Dismiss, Griffin acknowledges that the
consumer fraud claim under the UTPCPL should be dismissed. Therefore, the court dismisses
Count VI of the Amended Complaint.
2
complaint contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”
FED. R. CIV. P. 8(a)(2).
Although Rule 8(a) does not require “detailed factual
allegations,” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555-57 (2007)), in order to “give the defendant fair notice . . . of what the claim is and
the grounds upon which it rests,” Twombly, 550 U.S. at 555 (citations omitted).
Stated
otherwise, “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 claim is facially plausible “when the plaintiff pleads factual content that allows the court
to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Twombly, 550 U.S. at 556). A complaint alleging facts that are “merely consistent with
a defendant’s liability . . . stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557) (quotation marks omitted).
In evaluating a motion to dismiss, a plaintiff’s well-pled allegations are taken as true, and
the complaint, including all reasonable inferences therefrom, is liberally construed in the
plaintiff’s favor. McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4th Cir. 1996). The
court may consider only the facts alleged in the complaint, which may include any documents
either attached to or incorporated in the complaint, and matters of which the court may take
judicial notice.
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Although the court must accept the plaintiff’s factual allegations as true, any conclusory
allegations are not entitled to an assumption of truth, and even those allegations pled with factual
support need only be accepted to the extent that “they plausibly give rise to an entitlement to
relief.” Iqbal, 556 U.S. at 679.
3
Choice of 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. For diversity cases that are
transferred in a [multi-district litigation], the law of the transferor district follows the case to the
transferee district.” In re MI Windows and Doors, Inc. Prod. Liab. Litig., Nos. 2:12–mn–00001,
2:12–cv–01256–DCN, 2012 WL 4846987, at *1 (D.S.C. Oct. 11, 2012) (citing Santa's Best
Craft, LLC v. St. Paul Fire & Marine Ins. Co., 611 F.3d 339, 345 (7th Cir. 2010) and Manual for
Complex Litigation Fourth § 20.132). This case was originally filed in the United States District
Court for the District of Massachusetts. Therefore, Massachusetts’s choice-of-law rules apply in
this case. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941); Colgan Air,
Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 275 (4th Cir. 2007) (per curiam); In re Neurontin
Mktg. & Sales Practices Litig., 2011 WL 3852254 (D. Mass. Aug. 31, 2011). The court may
appropriately undertake a choice of law analysis at the motion to dismiss stage. See Dean ex rel.
Estate of Dean v. Raytheon Corp., 399 F. Supp. 2d 27, 33 (D. Mass. 2005) (granting defendant’s
motion to dismiss after conducting a choice-of-law analysis); Gonzalez v. Johnson, 918 N.E.2d
481 (Mass. App. Ct. 2009) (affirming lower court’s decision to dismiss after it conducted a
choice-of-law analysis).
Griffin has essentially conceded the applicability of Massachusetts law in all claims
except the NJCFA claim as she primarily relies on law from the United States Court of Appeals
for the First Circuit, the United States District Court in Massachusetts, and Massachusetts state
law throughout her response memorandum and only challenges the choice of law issue as it
applies to the NJCFA claim. Accordingly, the court will focus its analysis of the choice of law
issue on the NJCFA claim.
4
DISCUSSION
Statute of Limitations on Griffin’s Warranty Claims
GAF contends that Griffin’s warranty claims are barred because the statute of limitations
expired before she commenced her action against GAF. GAF asserts that the Massachusetts
four-year statue of limitations for breach of warranty in the sale of goods applies to this action. 2
See Mass. Gen. Laws Ann. ch. 106, § 2-725 (1).
A cause of action accrues when the breach occurs, regardless of the aggrieved
party's lack of knowledge of the breach. A breach of warranty occurs when
tender of delivery is made, except that where a warranty explicitly extends to
future performance of the goods and discovery of the breach must await the time
of such performance the cause of action accrues when the breach is or should
have been discovered.
Mass. Gen. Laws Ann. ch. 106, § 2-725 (2).
The First Circuit Court of Appeals, interpreting § 2-275(2) has stated: “[t]o determine
whether a warranty is one of future performance, we must look to the language of the warranty
itself to determine whether it explicitly guarantees the future performance of the goods.” TransSpec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 323 (1st Cir. 2008) (emphasis in
original). Further, a warranty that includes a promise to repair “does not explicitly guarantee the
future performance of the goods,” but merely “warrants the future performance of the
warrantor.” Id. (citations omitted).
Griffin, relying solely on Plaintiffs’ Omnibus Memorandum, vigorously argues that her
warranty claims should survive because GAF’s alleged marketing and advertising
representations that the shingles would last a certain number of years was sufficient to constitute
a warranty for future performance under Mass. Gen. Laws Ann. ch. 106, § 2-725 (2). However,
2
Griffin does not dispute the application of the four-year statute of limitations pursuant to Mass.
Gen. Laws Ann. ch. 106, § 2-725 (1) in this case. Therefore, the court will assume without
deciding that the warranty claims are subject to this statute of limitations and not any other.
5
Griffin’s Amended Complaint does not allege that GAF specifically and expressly warranted the
future performance of the shingles. Instead, the Smart Choice Warranty affixed to the shingle
packaging simply provided for contribution to the repair or replacement of the shingles in the
event the shingles manifested a defect or failed to perform within certain limitations over a
specified number of years. See Smart Choice Warranty [Dkt. Nos. 22-7 – 22-17]. Therefore, the
court does not find that Griffin has sufficiently pled factual allegations to support a claim that
GAF extended a warranty for future performance.
However, Griffin additionally contends that her claim is still timely filed because the
statute of limitations was equitably tolled by GAF’s acts of fraudulent concealment. “Under the
doctrine of fraudulent concealment, a plaintiff's fraud claims are tolled until the fraud is
discovered.” In re New England Mut. Life Ins. Co. Sales Practices Litig., 236 F. Supp. 2d 69, 78
(D. Mass. 2002) aff'd sub nom. In re New England Life Ins. Co. Sales Practices Litig., 346 F.3d
218 (1st Cir. 2003) (citations omitted). Equitable tolling on the basis of fraudulent concealment
is expressly provided for by statute in Massachusetts. Sousa v. BP Oil, Inc., 1995 WL 842003
(D. Mass. Sept. 12, 1995) aff'd in part, dismissed in part, 98 F.3d 1357 (Fed. Cir. 1996).
If a person liable to a personal action fraudulently conceals the cause of such
action from the knowledge of the person entitled to bring it, the period prior to the
discovery of his cause of action by the person so entitled shall be excluded in
determining the time limited for the commencement of the action.
Mass. Gen. Laws Ann. ch. 260, § 12. A party seeking to toll the statute of limitations “must
show something of an affirmative nature designed to prevent, and which does prevent, discovery
of the cause of action.” In re New England Mut. Life, 236 F. Supp. 2d at 78 (citations omitted).
In her Amended Complaint, Griffin alleges that GAF affirmatively misrepresented the
quality of its product by marketing and labeling its shingles as ASTM and code compliant
despite GAF’s alleged knowledge that such representations were false. See generally, Amended
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Complaint. Griffin further alleges that, due to the latent nature of the alleged defect, she had no
reasonable method of discovering her cause of action until the product began to manifest an issue
that would have prompted some manner of inquiry as to the source of the problem. Id. The court
finds that Griffin has sufficiently alleged fraudulent concealment/equitable tolling to survive
GAF’s efforts to dismiss her warranty claims based on the statute of limitations. Therefore, the
court denies GAF’s request to dismiss Griffin’s warranty claims on this basis.
Statute of Limitations on Griffin’s Tort Claims
GAF contends that Griffin’s negligence and negligent failure to warn claims are timebarred by the three-year statute of limitations applicable to negligence causes of action in
Massachusetts. See Mass. Gen. Laws Ann. ch. 260, § 2A3 (“Except as otherwise provided,
actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall
be commenced only within three years next after the cause of action accrues.”) See also Fidler
v. Eastman Kodak Co., 714 F.2d 192, 196 (1st Cir. 1983) (finding negligent failure to give
adequate warning and instructions subject to statute of limitations in § 2A). “Massachusetts
courts apply the ‘discovery rule’ in both negligence and products liability actions.” Lareau v.
Page, 840 F. Supp. 920, 925 (D. Mass. 1993) aff'd, 39 F.3d 384 (1st Cir. 1994). Pursuant to the
discovery rule, “the plaintiff's cause of action does not accrue until she knows or reasonably
should have known that she was injured at the defendant's hands.” Id. Therefore, “the statute of
limitations begins to run when the injured person has notice of the claim. The ‘notice’ required
is not notice of every fact which must eventually be proved in support of the claim.” White v.
Peabody Const. Co., Inc., 434 N.E.2d 1015, 1020 (Mass. 1982).
3
Griffin does not dispute the application of the three-year statute of limitations pursuant to Mass.
Gen. Laws Ann. ch. 260, § 2A in this case. Therefore, the court will assume without deciding,
that the negligence claims are subject to this statute of limitations.
7
Griffin’s complaint alleges that she “did not discover that her GAF shingles were cracked
and cracking until 2007.” Amended Complaint, at ¶128. Assuming that her cause of action
accrued at the latest on December 31, 2007, she was required to bring suit by December 31,
2010. Plaintiff did not file her complaint until December 9, 2011. Accordingly, Griffin’s tort
claims are barred by the statute of limitations.
The Economic Loss Rule
Alternatively, GAF argues that Massachusetts law also recognizes that the economic loss
rule may bar claims for breach of implied warranty. See Everett J. Prescott, Inc. v. Nat'l Grange
Ins. Co., 923047, 1993 WL 818680 (Mass. Super. Dec. 1, 1993).
“[T]he theory of breach of
implied warranty is essentially the same as strict liability in tort. Accordingly, unless the
plaintiffs are able to show that they sustained personal injury or damage to other property, the
economic loss doctrine bars their claims for negligence and breach of implied warranties.”
Cruickshank v. Clean Seas Co., 346 B.R. 571, 582 (D. Mass. 2006).
Under Massachusetts law, “purely economic losses are unrecoverable in tort and strict
liability actions in the absence of personal injury or property damage.” FMR Corp. v. Boston
Edison Co., 613 N.E.2d 902, 903 (Mass. 1993). Such purely economic losses may include
“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.”
Sebago, Inc. v. Beazer E., Inc., 18 F. Supp. 2d 70, 89 (D. Mass. 1998) (citations omitted). The
economic loss rule “reflects certain underlying policy rationales that are applicable to cases
involving the sale of an allegedly defective product, including the rationale that where a
commercial product injures itself and nothing or no one else, there is no need to create a product
liability cause of action independent of contract obligation.” Cruickshank, 346 B.R. at 582
8
(quotation marks omitted).
Therefore, “when a commercial product fails without harming
persons or other property, the resulting loss due to repair costs, decreased value, and lost profits
is essentially the failure of the purchaser to receive the benefit of its bargain — traditionally the
core concern of contract law.” Rule v. Fort Dodge Animal Hosp., Inc., 604 F. Supp. 2d 288, 293
(D. Mass. 2009) (citations and quotation marks omitted).
Here, the parties dispute whether Griffin has adequately alleged damage to “other
property” to survive dismissal. GAF contends that Griffin has not alleged any damages related
to the purported defect associated with the ASTM representation. First, GAF notes that Griffin
fails to allege any damage to property other than the shingles on her roof. In support of its
argument, GAF directs the court to several allegations in the Amended Complaint where Griffin
alleges in a conclusory manner, without any factual support, that she has a “real and present
injury in that she owns a home with substandard and damaged shingles that do not comply with
ASTM D3462,” and that the damage “includes the cost to replace the shingles to become code
compliant and to avoid further damage to other parts of the structure caused by defective and
cracking shingles.” Amended Complaint, at ¶137. Griffin further alleges that the “degradation
and failure of the GAF shingles causes damage to property other than the shingles themselves
both while in use and during the removal and reinstallation process” though she does not point to
specific damage caused by these processes. Id. at ¶ 180.
Further, Griffin alleges that the
cracked shingles can cause damage to “other roofing material, the roof itself, structural elements,
interior walls and ceilings and building contents,” but she does not allege that this has actually
occurred. Id. at ¶ 78. Other allegations in the Amended Complaint generally refer to “damage to
property other than the GAF shingles, consequential, and incidental damages.” Id. at ¶ 181.
9
Other than conclusory statements concerning speculative and hypothetical damage to
Griffin’s property and that of the putative class members, the court finds that Griffin has failed to
sufficiently allege any damage to “other property.” Additionally, it is undisputed that this case
does not involve any allegations of personal injury. Without any allegation of actual injury to
property other than the defective product itself and the consequential damages resulting from the
replacement of the defective product, Griffin has presented the court with actions merely
sounding in tort, which would generally bar her claim for breach of an implied warranty.
However, Griffin urges the court to apply the fraud exception to the economic loss rule
such that her claim for breach of implied warranty is not barred by that rule. Massachusetts law
recognizes such an exception where negligent misrepresentation has occurred. Nota Const.
Corp. v. Keyes Associates, Inc., 694 N.E.2d 401, 405 (Mass. App. Ct. 1998). To recover for
negligent misrepresentation, “a plaintiff must prove that the defendant (1) in the course of his
business, (2) supplies false information for the guidance of others (3) in their business
transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable
reliance upon the information, and (6) with failure to exercise reasonable care or competence in
obtaining or communicating the information.” Id. at 405.
Here, Griffin has alleged that GAF knowingly or negligently supplied false information
in its packaging of the Timberline shingles, upon which Plaintiff and the putative class members
justifiably relied, which further caused Plaintiff and the putative class members pecuniary loss.
See generally, Amended Complaint. Therefore, she has adequately alleged negligent
misrepresentation such that her claim is not automatically barred by the economic loss doctrine.
Accordingly, the court will not dismiss Griffin’s breach of implied warranty claim on the basis of
the economic loss doctrine.
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Fraud Claims
GAF seeks dismissal of all claims contained in Griffin’s Amended Complaint, which are
based on allegations of fraudulent conduct (i.e., violation of the New Jersey Consumer Fraud Act
(“NJCFA”) (count V) and fraudulent concealment/equitable tolling (count IX)4).
Federal Rule of Civil Procedure 9(b) requires that, “[i]n alleging fraud or mistake, a
party must state with particularity the circumstances constituting fraud or mistake.” The United
States Court of Appeals for the First Circuit has stated that this “heightened pleading standard is
satisfied by an averment of “the who, what, where, and when of the allegedly false or fraudulent
representation.” Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir.
2004). “The requirement that supporting facts be pleaded applies even when the fraud relates to
matters peculiarly within the knowledge of the opposing party.” Wayne Inv., Inc. v. Gulf Oil
Corp., 739 F.2d 11, 14 (1st Cir. 1984).
This special pleading requirement “provides the
defendant with notice of the grounds on which plaintiff's fraud claim rests.” Id.
Upon review of the Amended Complaint, the court finds that the majority of Griffin’s
claims of fraudulent conduct do not meet the heightened standard of Rule 9(b). Although
Griffin’s Amended Complaint contains copious allegations concerning GAF’s advertising,
marketing, and fraudulent concealment of information, Griffin fails to specify the time, place, or
manner of these alleged fraudulent activities.
4
In fact, Griffin’s Amended Complaint
GAF correctly notes that under Massachusetts law, there is no independent cause of action for
fraudulent concealment. See Baldyga v. Town of Dudley, 2009 WL 323384 (Mass. Supp. Jan. 13,
2009). Rather, fraudulent concealment “provides a possible tolling of the running of the Statute
of Limitations against the plaintiff during the period that the cause of action was found to have
been fraudulently concealed.” Id. Defendant does not dispute this point. Fraudulent
concealment saved Griffin’s warranty claims, as noted above, but it has no application to
Griffin’s claim under the NJCFA. Further, because fraudulent concealment is not a separate
cause of action, the court dismisses Count IX.
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predominantly rests on broad assertions regarding GAF’s conduct in other litigation. Griffin’s
allegations against GAF regarding its alleged statements in brochures, on websites, in
advertising, or in sales presentations fail the pleading standard of Rule 9(b) and cannot support
Griffin’s fraud based causes of action.
However, Griffin has not made any independent claim for common law fraud. Therefore,
Griffin need plead only one allegation of fraudulent conduct with sufficient particularity to
survive dismissal, which the court finds that Griffin has sufficiently provided here. Specifically,
Griffin claims that she and anyone purchasing the shingles on her behalf relied on the written
representations regarding the ASTM standards and code compliance affixed to the shingles
packaging purchased and installed on Griffin’s home in Massachusetts.
See Amended
Complaint, at ¶¶ 117-122. This allegation supplies the necessary who, what, when, and where to
meet the Rule 9(b) pleading standard. Therefore, the court will not base its dismissal of Griffin’s
fraud based claims on this argument, to the extent the fraud claims could have been supported by
her allegations concerning the representations affixed to the shingle packaging purchased and
installed on her home.
New Jersey Consumer Fraud Act
GAF further argues that the court should dismiss Griffin’s NJCFA claim because she is
not entitled to any relief under the statute.
Specifically, GAF asserts that Griffin is a
Massachusetts resident and the home on which the shingles were installed is located in
Bellingham, Massachusetts. Further, GAF notes that the instant action was originally filed in
Massachusetts and that as a result, Massachusetts choice-of-law rules apply.
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A. Existence of Actual Conflict
To determine whether Griffin may proceed with her cause of action under the NJCFA,
this court must first evaluate whether there is an actual conflict between the consumer protection
laws of Massachusetts and New Jersey. Although neither party expressly addressed this
threshold issue in their briefing, the court presumes that the parties intended to aver the existence
of an actual conflict between the laws of the two jurisdictions concerning misleading advertising
because in the absence of a conflict, Massachusetts law would necessarily apply and it would
have been unnecessary for Griffin to argue New Jersey’s interests in the choice-of-law analysis.
The NJCFA, see N.J. Stat. § 56:8-1 et seq., “is designed to address ‘sharp practices and
dealings . . . whereby the consumer could be victimized by being lured into a purchase through
fraudulent, deceptive or other similar kind of selling or advertising practices.’” Smajlaj v.
Campbell Soup Co., 782 F. Supp. 2d 84, 97 (D.N.J. 2011) (quoting Daaleman v. Elizabethtown
Gas Co., 77 N.J. 267, 271, 390 A.2d 566 (1978)). To state a claim under the NJCFA, “a plaintiff
must demonstrate three elements: (1) unlawful conduct by the defendant; (2) an ascertainable
loss by the plaintiff; and (3) a causal connection between the defendant's unlawful conduct and
the plaintiff's ascertainable loss. A party need not plead reliance under the NJCFA.” Id. at 446.
Massachusetts’s consumer protection statute deems “unfair methods of competition and
unfair or deceptive acts or practices in the conduct of any trade or commerce” unlawful. Mass.
Gen. Laws ch. 93A, § 2(a). “Conduct is unfair or deceptive if it is ‘within at least the penumbra
of some common-law, statutory, or other established concept of unfairness or [is] immoral,
unethical, oppressive or unscrupulous.” Rodi v. S. New England Sch. of Law, 532 F.3d 11, 19
(1st Cir. 2008) (citations omitted). “[T]o recover under Chapter 93A based on [a] claim of
fraudulent misrepresentation, [the plaintiff] must prove reasonable reliance.” Id. Given that a
13
claim under the NJCFA does not include the element of reliance but similar claims under
Massachusetts laws do, there is a conflict of law.
Massachusetts state courts apply “a functional choice of law approach that responds to
the interests of the parties, the States involved, and the interstate system as a whole.” Reicher v.
Berkshire Life Ins. Co. of Am., 360 F.3d 1, 5 (1st Cir. 2004). This analysis is “explicitly guided
by the Restatement (Second) of Conflict of Laws (1971).” In re Neurontin Mktg. & Sales
Practices Litig., 2011 WL 3852254, at *52 (citations omitted). “Where a plaintiff raises claims
based on misrepresentation, Restatement Section 148 applies.” Id. Specifically, Section 148
provides:
(1) When the plaintiff has suffered pecuniary harm on account of his reliance on
the defendant's false representations and when the plaintiff's action in reliance
took place in the state where the false representations were made and received, the
local law of this state determines the rights and liabilities of the parties unless,
with respect to the particular issue, some other state has a more significant
relationship under the principles stated in § 6 to the occurrence and the parties, in
which event the local law of the other state will be applied.
(2) When the plaintiff's action in reliance took place in whole or in part in a state
other than that where the false representations were made, the forum will consider
such of the following contacts, among others, as may be present in the particular
case in determining the state which, with respect to the particular issue, has the
most significant relationship to the occurrence and the parties:
(a) the place, or places, where the plaintiff acted in reliance upon the
defendant's representations,
(b) the place where the plaintiff received the representations,
(c) the place where the defendant made the representations,
(d) the domicile, residence, nationality, place of incorporation and place of
business of the parties,
(e) the place where a tangible thing which is the subject of the transaction
between the parties was situated at the time, and
(f) the place where the plaintiff is to render performance under a contract
which he has been induced to enter by the false representations of the
defendant.
Restatement (Second) of Conflict of Laws § 148 (1971). Massachusetts’s courts also consider:
14
(a) the needs of the interstate and international systems, (b) the relevant policies
of the forum, (c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue, (d) the
protection of justified expectations, (e) the basic policies underlying the particular
field of law, (f) certainty, predictability, and uniformity of result, and (g) ease in
the determination and application of the law to be applied.
Reicher, 360 F.3d at 5 (quoting Restatement (Second) Conflict of Laws § 6 (1971)).
Taking the allegations of the Amended Complaint as true, it is apparent that subsection
(1) of section 148 is inapplicable here as Griffin alleges that GAF’s advertising and marketing
statements and representations were made or originated from GAF’s headquarters in New Jersey
but acknowledges that her exposure to the statements and representations was limited to her
review of the shingle packaging in Massachusetts. Accordingly, the court will apply the factors
specified in subsection (2) of Restatement Section 148.
Based on the allegations of the Amended Complaint, Griffin allegedly became aware of
and relied upon GAF’s representations in Massachusetts. Additionally, the Amended Complaint
alleges that the subject shingles were located in Massachusetts at all relevant times of Griffin’s
awareness and reliance on the representations.
Griffin further alleges that GAF made the
representations from its headquarters in New Jersey. Lastly, the contract performance obligation
factor has no application here, and the remaining factors have neutral application because each
party resides in their respective jurisdictions. In sum, three of the six factors of Section 148
weigh in favor of applying Massachusetts law. Viewing this in consideration of the general
conflict of law principles found in Restatement Section 6, the court finds that Massachusetts law
is applicable to Griffin’s claims and she may not recover under the NJCFA. This finding is
consistent with other courts’ evaluation of similar claims. See e.g., Montich v. Miele USA, Inc.,
849 F. Supp. 2d 439 (D.N.J. 2012) (“A majority of courts in this District have held that the mere
fact that a company is headquartered in New Jersey or ‘that unlawful conduct emanated from
15
New Jersey’ will not supersede the numerous contacts with the consumer's home state for
purposes of determining which state has the most significant relationship under Restatement §
148(2).”) (collecting cases). Therefore, the court dismisses Griffin’s NJCFA cause of action
against GAF with prejudice.
Unjust Enrichment
GAF contends that Griffin’s claim for unjust enrichment is precluded because GAF’s
limited warranty provides an adequate remedy at law. Under the doctrine of unjust enrichment,
“a plaintiff seeks restitution of a benefit conferred on another whose retention of the benefit at
plaintiff's expense would be unconscionable.” Smith v. Jenkins, 626 F. Supp. 2d 155, 170-71 (D.
Mass. 2009). To succeed on a cause of action for unjust enrichment, a plaintiff must show “(1)
an enrichment, (2) an impoverishment, (3) a relation between the enrichment and the
impoverishment, (4) the absence of justification and (5) the absence of a remedy provided by
law.” Id. (citations omitted).
Griffin argues that it is entitled to allege an unjust enrichment claim as an alternative
theory of recovery. A party may “allege different and even inconsistent theories of recovery” at
the pleading stage. Frontier Mgmt. Co., Inc. v. Balboa Ins. Co., 658 F. Supp. 987, 994 (D. Mass.
1986); see also Bunge Oils, Inc. v. M & F Mktg. Dev., LLC, 2005 WL 629489 (D. Mass. Mar.
15, 2005) (denying motion to dismiss unjust enrichment claim even where such claim relied on
the “same allegations that support the contract-based claims . . . but states an alternative
equitable theory of recovery if the contract claims prove insufficient.”). Such pleadings in the
alternative are a common practice in the early stages of litigation. See Smith, 626 F. Supp. 2d at
170-71.
Therefore, the claim may proceed, but Griffin must eventually make an election
between a remedy at law and one in equity.
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Declaratory and Injunctive Relief
Finally, GAF seeks dismissal of Griffin’s claims for a declaratory judgment and
injunctive relief on the basis that these are remedies and not independent causes of action.
“[I]njunctive relief is not a stand-alone cause of action under Massachusetts or federal law.”
Payton v. Wells Fargo Bank, N.A., 2013 WL 782601 (D. Mass. Feb. 28, 2013); See also Green v.
Parts Distribution Xpress, Inc., 2011 WL 5928580 (D. Mass. Nov. 29, 2011) (noting that
injunctive relief is a prayer for relief, not a free–standing claim); Unitrode Corp. v. Linear Tech.
Corp., 2000 WL 281688, at *5 (Mass. Super. Ct. Feb. 17, 2000) (dismissing a stand-alone count
for injunctive relief because it “states a claim for a remedy, not a cause of action” and adds
nothing to the complaint where injunctive relief is specified in the “prayers for relief” section of
the complaint).
While Griffin may request declaratory and injunctive relief as remedies where
appropriate based on properly stated causes of action, the court must conclude that the Amended
Complaint fails to state an independent basis for either declaratory or injunctive relief separate
and apart from the other causes of action asserted in the Amended Complaint. Therefore, the
court shall consider Griffin’s claims for injunctive and declaratory relief as alternative and/or
additional remedies for the causes of action already asserted but dismiss the claims as
independent causes of action.
CONCLUSION
For the foregoing reasons, the court GRANTS IN PART AND DENIES IN PART GAF
Materials Corporation’s Motion to Dismiss the First Amended Complaint for Failure to State a
Claim Upon Which Relief Can be Granted [Dkt. No. 22] as set forth herein. Plaintiff Tina
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Griffin may amend her complaint to address the deficiencies noted by the court in this order and
any such amended pleading must be filed within thirty (30) days of the date of this order.
IT IS SO ORDERED.
United States District Judge
March 27, 2013
Greenville, South Carolina
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