Ragan v. Building Materials Corporation of America
Filing
30
ORDER AND OPINION granting in part and denying in part 20 Motion to Dismiss for Failure to State a Claim as set out. Signed by Honorable J Michelle Childs on 4/30/2013.(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,
)
____________________________________)
)
Michael Ragan, on behalf of himself
)
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-00095-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. 20].
Extensive memoranda in support of and in opposition to these motions 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 Michael Ragan (“Ragan”) is a homeowner in Espyville, Pennsylvania, who
1
alleges that he arranged for the purchase and installation of Timberline shingles on the roof of his
home in October 1999.
In purchasing the shingles, Ragan contends that he and his installing
contractor 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. He further alleges that the shingles installed
on his roof were manufactured and sold to him with a latent defect that causes the shingles to
prematurely crack, of which GAF was aware but intentionally failed to disclose to Ragan and
other consumers. Ragan 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
warn (counts III and IV); violation of the New Jersey Consumer Fraud Act (“NJCFA”) (count
V); violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
(“PUTRCPL”) (count VI); fraudulent concealment/equitable tolling (count VIII); and declaratory
and injunctive relief (count VII) 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
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
2
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.
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,
3
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 Western District of Pennsylvania. Therefore, Pennsylvania’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); Gen.
Star Nat'l Ins. Co. v. Liberty Mut. Ins. Co., 960 F.2d 377, 379 (3d Cir. 1992). Courts applying
Pennsylvania law have found it appropriate to resolve choice of law issues on a motion to
dismiss. See, e.g, Hanover Ins. Co. v. Ryan, 619 F. Supp. 2d 127, 136-38 (E.D. Pa. 2007)
(finding it appropriate to determine choice of law issues on a motion to dismiss where further
inquiry into the facts of the case is unnecessary for resolution of the issue).
Ragan has essentially conceded the applicability of Pennsylvania law in all claims except
the NJCFA claim as he primarily relies on law from the United States Court of Appeals for the
Third Circuit, the United States District Courts in Pennsylvania, and Pennsylvania state law
throughout his 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.
DISCUSSION
Timeliness of Legal Action
GAF contends that Ragan’s warranty claims fail because the statute of limitations expired
before he commenced his action against GAF.
GAF asserts that the Pennsylvania’s four-year statute of limitations for breach of
warranty in the sale of goods applies to this action. See 13 Pa. Cons. Stat. § 2725(a) (1980).
4
A cause of action [for breach of warranty] 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.
13 Pa. Cons. Stat. § 2725(b). Warranties extending to future performance must expressly refer
to the future. See Antz v. GAF Materials Corp., 719 A.2d 758, 760-61 (Pa. Super. Ct. 1998)
(finding that an express warranty providing thirty-year limited warranty coverage explicitly
extended to future performance).
“Implied warranties of merchantability and fitness for a
particular purpose cannot explicitly extend to future performance. Therefore, claims for such
warranties must be commenced within four years from tender of delivery.” Id. at 760.
Ragan, relying solely on Plaintiffs’ Omnibus Memorandum, argues that his 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. Ragan additionally contends that, regardless of the court’s interpretation of the
warranty as one for future performance, his claim is still timely filed because the statute of
limitations was equitably tolled by GAF’s acts of fraudulent concealment.
Under Pennsylvania law, the doctrine of fraudulent concealment may toll the statute of
limitations. Baselice v. Franciscan Friars Assumption BVM Province, Inc., 879 A.2d 270, 278
(Pa. Super. Ct. 2005).
Where, through fraud or concealment, the defendant causes the plaintiff to relax
his vigilance or deviate from his right of inquiry, the defendant is estopped from
invoking the bar of the statute of limitations. The defendant's conduct need not
rise to fraud or concealment in the strictest sense, that is, with an intent to
deceive; unintentional fraud or concealment is sufficient ... mere mistake,
misunderstanding or lack of knowledge is insufficient however, and the burden of
proving such fraud or concealment, by evidence which is clear, precise and
convincing, is upon the asserting party.
5
Id.
In his Amended Complaint, Ragan 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
Complaint. Ragan further alleges that, due to the latent nature of the alleged defect, he had no
reasonable method of discovering his cause of action until the product began to manifest an issue
which would have prompted some manner of inquiry as to the source of the problem. Id. Ragan
alleges that he did not become aware of any defect until May 2011, and Ragan further alleges
that he notified GAF of his discovery in October 2011. Based on the Amended Complaint, the
court finds that Ragan has sufficiently alleged fraudulent concealment/equitable tolling to
survive GAF’s efforts to dismiss his warranty claims based on the statute of limitations.
Therefore, the court denies GAF’s request to dismiss Ragan’s express warranty claims on this
basis. However, because Ragan’s implied warranty claims may not be extended to future
performance and Ragan failed to bring his implied warranty claims within the statute of
limitations period, the court must dismiss the implied warranty claims with prejudice.
Warranty Disclaimer
GAF contends that the court should dismiss Ragan’s warranty claims because GAF
effectively disclaimed all express and implied warranties except as set forth in GAF’s Smart
Choice Shingle Limited Warranty (“Smart Choice Warranty”).1 See [Dkt. No. 20-7].
1
The GAF Smart Choice Shingle Limited Warranty is attached as Exhibit A to the Affidavit of
Linda Marion submitted by GAF in support of its motion. Ragan has not disputed the
authenticity of the document and has referred to GAF’s warranty in its Complaint. Therefore,
the court finds that it may consider the Smart Choice Warranty in assessing GAF’s motion. See
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)
(noting that a court may consider documents attached to a motion to dismiss if such documents
are integral to or explicitly relied on by the plaintiff in the complaint, provided that the plaintiff
does not dispute the authenticity of the documents).
6
Pennsylvania statutory law allows for the exclusion or modification of warranties. 13 Pa.
Cons. Stat. § 2316 provides, in part,
(a) Words or conduct relevant to the creation of an express warranty and words or
conduct tending to negate or limit warranty shall be construed wherever
reasonable as consistent with each other; but subject to the provisions of this
division on parol or extrinsic evidence (section 2202) negation or limitation is
inoperative to the extent that such construction is unreasonable.
(b) Subject to subsection (c), to exclude or modify the implied warranty of
merchantability or any part of it the language must mention merchantability and
in case of a writing must be conspicuous, and to exclude or modify any implied
warranty of fitness the exclusion must be by a writing and conspicuous. Language
to exclude all implied warranties of fitness is sufficient if it states, for example,
that “There are no warranties which extend beyond the description on the face
hereof.”
(c) Notwithstanding subsection (b): (1) Unless the circumstances indicate
otherwise, all implied warranties are excluded by expressions like “as is,” “with
all faults” or other language which in common understanding calls the attention of
the buyer to the exclusion of warranties and makes plain that there is no implied
warranty.. . . .
In his Amended Complaint, Ragan specifically alleges that he and the installing
contractor, “when purchasing GAF Timberline shingles, . . . relied on the accuracy of the
designations affixed to the shingles and their packaging.” Amended Complaint, at ¶ 120. As
represented by Linda Marion, the Smart Choice Warranty was also affixed to every package of
GAF shingles. See Affidavit of Linda Marion [Dkt. No. 20-6]. The Smart Choice Warranty
explicitly limits coverage and provides for a “Sole and Exclusive Warranty” that is
“EXCLUSIVE AND REPLACES ALL OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND
FITNESS FOR A PARTICULAR PURPOSE.” [Dkt. No. 20-7]. (emphasis in original).
Upon review of the disclaimer in the Smart Choice Warranty document that GAF
contends was affixed to the packaging of the shingles, which Ragan does not dispute, the court
7
finds that the disclaimer complies with the statute allowing exclusion or modification of
warranties. Specifically, the disclaimer appears in all capital letters directly below a heading
captioned in bold type. Indeed, Ragan does not even refute GAF’s argument that the disclaimer
complies with the statutory requirements. Instead, Ragan argues that GAF’s disclaimer and
efforts to limit its express warranties fail because the Smart Choice Warranty is unconscionable.
Incorporating the arguments from Plaintiffs’ Omnibus Memorandum, Ragan contends
that the warranty disclaimers and remedial limitations found in GAF’s Smart Choice Warranty
are unconscionable and unenforceable against him and members of the purported class because
GAF knew of the alleged defects in the shingles when it sold them and concealed the defects
from consumers to induce sales and avoid its obligations under its warranty.
The Pennsylvania Supreme Court “has found that the common-law application of the
doctrine of unconscionability is largely consonant with Section 208 of the Second Restatement
of Contracts.” Bayne v. Smith, 965 A.2d 265, 267 (Pa. Super. Ct. 2009).
[A] contract or term is unconscionable, and therefore avoidable, where there was
a lack of meaningful choice in the acceptance of the challenged provision and the
provision unreasonably favors the party asserting it. The aspects entailing lack of
meaningful choice and unreasonableness have been termed procedural and
substantive unconscionability, respectively. The burden of proof generally
concerning both elements has been allocated to the party challenging the
agreement, and the ultimate determination of unconscionability is for the courts.
Id. (internal citations omitted).
In the Amended Complaint, Ragan makes several allegations regarding GAF’s
knowledge concerning the alleged defective condition of the shingles. See generally, Amended
Complaint. However, the court finds that Ragan’s unconscionability arguments concerning the
Smart Choice Warranty or any other warranty purportedly provided by GAF are not adequately
alleged in the Amended Complaint and may not be considered in determining this motion to
8
dismiss. Consequently, based on the the court’s findings on GAF’s arguments addressed above,
the court will dismiss Ragan’s breach of implied warranty claims. To the extent that Ragan
alleges that GAF made express warranties which were not disclaimed, his breach of express
warranty claims will survive this motion.
Effect of Economic Loss Doctrine on Tort and Fraud Claims
A. Negligence Claims
GAF further contends that Ragan’s claims of negligence are barred by Pennsylvania’s
economic loss rule and, therefore, the court should dismiss all negligence based causes of action.
Under Pennsylvania law, “no cause of action exists for negligence that results solely in
economic damages unaccompanied by physical injury or property damage.” Adams v. Copper
Beach Townhome Communities, L.P., 816 A.2d 301, 305 (Pa. Super. 2003).
Economic losses are defined as damages for inadequate value, costs of repair and
replacement of the defective product, or consequential loss of property, without
any claim of personal injury or damage to other property. To avoid application of
the economic loss doctrine, plaintiffs must articulate harm that is distinct from the
disappointed expectations evolving solely from an agreement.
Fleisher v. Fiber Composites, LLC, Civil Action No. 12–1326, 2012 WL 5381381, at *9 (E.D.
Pa. Nov. 2, 2012) (citations and quotation marks omitted).
Here, the parties dispute whether Ragan has adequately alleged damage to “other
property” to survive dismissal.
GAF vigorously contends that Ragan has not alleged any
damages related to the purported defect associated with the ASTM representation. First, GAF
notes that Ragan fails to allege anywhere in the Amended Complaint any specific damage to
property other than the shingles on his roof. In support of its argument, GAF directs the court to
several allegations in the Amended Complaint where Ragan alleges in a conclusory manner,
without any factual support, that he has a “real and present injury in that he owns a home with
9
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,” as well as “the cost of repairing the damage to . . . other property
that was caused by GAF’s sale of defective shingles.” Amended Complaint, at ¶130. Other
allegations in the Amended Complaint generally refer to “damage to property other than the
GAF shingles, consequential, and incidental damages.” Id. at ¶ 131.
Other than conclusory statements concerning speculative and hypothetical damage to
Ragan’s property and that of the putative class members, the court finds that Ragan 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, Ragan has presented the court with tort actions merely
sounding in negligence which fall squarely within the parameters of those actions barred by
Pennsylvania law. Accordingly, the negligence claims must be dismissed.
B. Fraud Claims
GAF additionally asserts that Ragan’s fraud claims under Pennsylvania law are also
barred by the economic loss doctrine.
Pennsylvania state courts have not settled whether fraud and unfair and deceptive trade
practices claims are barred by the economic loss rule. However, the United States Court of
Appeals for the Third Circuit has found such claims barred, noting that
The economic loss doctrine is designed to place a check on limitless liability for
manufacturers and establish clear boundaries between tort and contract law.
Carving out an exception for intentional fraud would eliminate that check on
liability and blur the boundaries between the two areas of law, thus exposing
manufacturers to substantially greater liability.
10
Werwinski v. Ford Motor Co., 286 F.3d 661, 680-81 (3rd Cir. 2002).
The Third Circuit
acknowledged the limited exception to the economic loss rule for those claims of fraud which
arise independently and apart from the alleged contractual obligations. Id. at 676.
Ragan disputes the authority of Werwinski and instead notes several cases that call its
holding into question. However, Ragan has cited no authority from the Pennsylvania Supreme
Court ruling contrarily on the issue or otherwise distinguishing his case from the Third Circuit’s
precedential ruling in Werwinski. Here, Ragan’s fraud claims are based on GAF’s selling
shingles that were defective and noncompliant with ASTM certifications, GAF knowingly
making and engaging in fraudulent, misleading, and deceptive statements and practices. Upon
review of the Amended Complaint, the court determines that Ragan relies upon the alleged
representations concerning the ASTM certification and the useful life of the shingles in such a
way that the fraud claims are intertwined similar to the relationship of the claims in Werwinski.
Accordingly, the court finds that Ragan’s Pensylvania law fraud based claims are also barred by
the economic loss doctrine and must be dismissed.
Sufficiency of Fraud Allegations Under Federal Rule of Civil Procedure 9
GAF seeks dismissal of all claims contained in Ragan’s Amended Complaint which are
based on allegations of fraudulent conduct (i.e., violation of the New Jersey Consumer Fraud Act
(“NJCFA”) (count V); violation of the Pennsylvania Unfair Trade Practices and Consumer
Protection Law (“PUTRCPL”) (count VI); and fraudulent concealment/equitable tolling (count
VIII)).
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.” In order to satisfy
Rule 9(b), plaintiffs must plead with particularity “the ‘circumstances' of the alleged fraud in
11
order to place the defendants on notice of the precise misconduct with which they are charged,
and to safeguard defendants against spurious charges of immoral and fraudulent behavior.” Lum
v. Bank of Am., 361 F.3d 217, 223–24 (3d Cir. 2004) (quoting Seville Indus. Mach. Corp. v.
Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984)), abrogated on other grounds by, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The United States Court of Appeals for the
Third Circuit has generally held that the standard is met where the plaintiff pleads or alleges “the
date, time and place of the alleged fraud or otherwise inject[s] precision or some measure of
substantiation into a fraud allegation.” Frederico v. Home Depot, 507 F.3d 188, 200 (3rd Cir.
2007) (citations and quotation marks omitted). The “[p]laintiff must also allege who made the
misrepresentation to whom and the general content of the misrepresentation.” Lum, 361 F.3d at
224.
Upon review of the Amended Complaint, the court finds that the majority of Ragan’s
claims of fraudulent conduct do not meet the heightened standard of Rule 9(b). Although
Ragan’s Amended Complaint contains copious allegations concerning GAF’s advertising,
marketing, and fraudulent concealment of information, Ragan fails to specify the time, place, or
manner of these alleged fraudulent activities.
In fact, Ragan’s Amended Complaint
predominantly rests on broad assertions regarding GAF’s conduct in other litigation. Ragan’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
Ragan’s fraud based causes of action.
However, Ragan has not made any independent claim for common law fraud. Therefore,
Ragan need plead only one allegation of fraudulent conduct with sufficient particularity to
survive dismissal, which the court finds that Ragan has sufficiently provided here. Specifically,
12
Ragan claims that he and anyone purchasing the shingles on his behalf relied on the written
representations regarding the ASTM standards and code compliance affixed to the shingles
packaging purchased and installed on Ragan’s home in Pennsyclvania in 1999. See Amended
Complaint, at ¶¶ 117-122. These allegations supply the necessary who, what, when, and where
to meet the Rule 9(b) pleading standard. Therefore, the court will not base its dismissal of
Ragan’s fraud based claims on this argument, to the extent the fraud claims could have been
supported by his allegations concerning the representations affixed to the shingle packaging
purchased and installed on his home.
Proximate Cause
GAF also contends that Ragan’s fraud based claims must be dismissed because he has
failed to allege that he has suffered a cognizable injury that was proximately caused by the
fraudulent conduct.
Specifically, GAF complains that the Amended Complaint contains
references to alleged representations and statements that purportedly occurred after Ragan’s
purchase of the subject shingles in 1999.
Liberally construing the Amended Complaint in favor of Ragan, as the court must at the
motion to dismiss stage of the litigation, GAF’s objections to the sufficiency of Ragan’s
allegations regarding proximate cause are misplaced. Ragan’s Amended Complaint contains
multiple allegations of injuries which he contends are proximately caused by GAF’s marketing
and selling of shingles which purportedly fail to comply with ASTM D3462; a representation
that Ragan alleges was attached to the packaging of the shingles and on which he relied.
Accordingly, the court finds GAF’s claims of insufficient allegations of proximate cause to be an
inadequate basis upon which to grant its motion.
13
New Jersey Consumer Fraud Act
GAF further argues that the court should dismiss Ragan’s NJCFA claim because he is not
entitled to any relief under the statute.
Specifically, GAF complains that Ragan is a
Pennsylvania resident, that he purchased and installed the subject shingles in Pennsylvania, and
was exposed to the allegedly fraudulent statements in Pennsylvania; therefore, Pennsylvania
substantive law applies to his claims in accordance with Pennsylvania’s choice of law rules.
“Pennsylvania applies the ... flexible, ‘interests/contacts' methodology to contract choiceof-law questions.” Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226-27 (3d Cir. 2007).
In
determining which jurisdictions’ laws will apply, the court must first consider whether there is an
actual, relevant conflict between the laws. Id. at 230. Where there is no conflict between the
laws, a choice of law analysis is unwarranted. Id.
If there are actual, relevant differences between the laws, then we “examine the
governmental policies underlying each law, and classify the conflict as a ‘true,’
‘false,’ or an ‘unprovided-for’ situation.” “A deeper choice of law analysis is
necessary only if both jurisdictions' interests would be impaired by the application
of the other's laws ( i.e., there is a true conflict).”
Pacific Employers Ins. Co. v. Global Reinsurance Corp. of America, 693 F.3d 417, 432 (3rd Cir.
2012) (quoting Hammersmith, 480 F.3d at 230).
If the court finds the existence of a true conflict, the final step in the choice of law
analysis requires an examination of which jurisdiction has the greatest interest in the application
of its laws. See id. at 436.
To do so, we use a methodology that combines the approaches of the Restatement
(Second) of Conflicts of Law and governmental interest analysis. We begin “the
analysis by assessing each state's contacts under the Second Restatement,” and
“turn to § 188(2) (the general provision governing contracts), which directs us to
take the following contacts into account: (1) the place of contracting; (2) the place
of negotiation of the contract; (3) the place of performance; (4) the location of the
subject matter of the contract; and (5) the domicile, residence, nationality, place
of incorporation and place of business of the parties.” This requires “more than a
14
mere counting of contacts.” Instead, “we must weigh the contacts on a qualitative
scale according to the policies and interests underlying the particular issue.”
Id. at 436 (quoting Hammersmith, 480 F.3d at 230).
In evaluating the first step of the choice of law analysis, courts have found an actual
conflict between the consumer protection and laws of Pennsylvania and New Jersey. See, e.g.,
Heindel v. Pfizer, Inc., 381 F. Supp. 2d 364, 373–74 (D.N.J.2004) (finding a conflict between
Pennsylvania's Unfair Trade Practices and Consumer Protection Law and New Jersey's
Consumer Fraud Act). Additionally, courts have determined that the governmental policies
underlying each jurisdictions’ laws are substantially similar. Id. Accordingly, focus of the
choice of law analysis lies in the determination of jurisdiction with the most substantial contacts
with the matter at issue. Here, the place of negotiating, contracting, and performance occurred in
Pennsylvania. The only relevant contact between the instant matter and New Jersey is GAF’s
principal place of business. The court finds that contact insufficient to warrant extension of the
NJCFA to Ragan’s claims. Therefore, the court dismisses Ragan’s NJCFA cause of action
against GAF with prejudice.
Declaratory and Injunctive Relief
Finally, GAF seeks dismissal of Ragan’s claims for a declaratory judgment and
injunctive relief on the basis that Ragan has only asserted remedies and not independent causes
of action.
It is well-established under Pennsylvania law that claims for declaratory and injunctive
relief are more in the nature of alternative remedies that may be awarded once a party prevails on
a proper cause of action, and not causes of action to be pursued independent of an underlying
claim. See Volunteer Firemen's Ins. Services, Inc. v. Fuller, Civil No. 1:12–CV–2016, 2012 WL
6681802, at *12 (M.D. Pa. Dec. 21, 2012). While Ragan may request declaratory and injunctive
15
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 Ragan’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. 20] as set forth herein. Plaintiff Michael
Ragan may amend his complaint to address the deficiencies noted by the court in this order in
support of his warranty, negligence, and claims under Pennsylvania law. 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
April 30, 2013
Greenville, South Carolina
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?