Tincher, et al v. Apple, Inc.

Filing 98

OPINION AND ORDER DISMISSING as MOOT Apple's 84 Opposed MOTION to Strike Class Allegations; ORDER GRANTING Apple's 85 Opposed MOTION to Dismiss; ORDER GRANTING Apple's 88 Unopposed MOTION to Withdraw as Attorney Adam M. Seve ll and Katherine F. Murray as Counsel of Record; ORDER Granting Plainitffs' 89 Unopposed MOTION to Withdraw as Attorney as to Carlos Hernandez, Jr.; ORDER DENYING Plaintiff's 93 Opposed MOTION to Strike; ORDER DENYING Plaintiff's 94 Opposed MOTION to Strike. Signed by Judge Sam Sparks. (klw)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

20i3

OCT 31

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TEXAS
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DAVID R. DEBURRO and CINDY TINCHER,
on behalf of themselves and all others similarly

situated,
Plaintiffs,
Case No. A-13-CA-784-SS

-vs-

APPLE, INC.,

Defendant.

ORDER
BE IT REMEMBERED on the 15th of October, 2013, the Court called a hearing in the

above-styled cause, and the parties appeared by and through counsel. Before the Court are Defendant
Apple, Inc.'s Motion to Strike Class Allegations [#84], and Plaintiffs David Deburro and Cindy

Tincher's Response [#90]; Apple's Motion to Dismiss [#85], and Plaintiffs' Response [#97];
Unopposed Motions to Withdraw by certain counsel for Apple [#88] and Plaintiffs [#89];' and

Plaintiffs' Motions to Strike Apple's Pending Motions [##93, 94], and Apple's consolidated
Response [#96]. Having reviewed the documents, the governing law, the arguments of the parties
at the hearing, and the file as a whole, the Court now enters the following opinion and orders.

Background
This is a putative class action alleging two of Apple's laptop computer

MacBook and the MacBook

Proare defective. More

modelsthe

specifically, Plaintiffs allege the laptops

These motions concern additional attorneys of record who are no longer working on the case. Lead counsel
for both parties remain engaged in this matter.

/

contain faulty motherboards, referred to by Apple as "logic boards." The logic board holds the bulk

of the internal components of the computers, and contains various connection ports such as the
standard Universal Serial Bus (USB) port. According to Plaintiffs, Apple's defective logic boards

result in USB ports not functioning, or in the laptop itself being rendered unusable.
Plaintiffs Deburro and Tincher purchased their MacBook Pro computers in July and August
2007, respectively, and complain the logic boards caused the laptops to cease functioning in July and

February 2012, respectively. Both plaintiffs brought their laptops to an Apple Store and paid roughly
$310.00 for replacement logic boards. Plaintiffs filed this suit in August 2012 in the United States
District Court Southern District of Texas.2 The case was eventually transferred to this Court on

September 6, 2013.

Analysis
I.

Plaintiffs' Motions to Strike
This case was previously transferred to this Court from the Southern District of Texas. At

the time of the transfer, Apple had pending a motion to dismiss and motion to strike class

allegations. As is the standard practice in this Court, those motions were not transferred to this

docket as active motions. Apple conferred with Plaintiffs' counsel and ultimately re-filed the two
motions after conforming the motions to the Local Rules of this Court.

The lead named plaintiff in the original complaint was Omar Rosales, Plaintiffs' counsel. Rosales eventually
dismissed himself from the suit when Apple pohted out the obvious conflict of interest Rosales faced in his dual role
as plaintiffattorney. See Matassarin v. Lynch, 174 F.3 d 549, 559 (5th Cir. 1999) (affirming district court's holding the
named plaintiff "could not serve as both the representative plaintiff and the class attorney; her duty to represent class
interests would impermissibly conflict with her chance to gain financially from an award of attorneys' fees");see also
Zyistra v. Safeway Stores, Inc., 578 F.2d 102, 104 (5th Cir. 1978) ("{A]ttorneys who. . . themselves are members ofthe
class of plaintiffs should be subject to a per se rule of disqualification under Canon 9 [of the Code of Professional
Responsibility] and should not be permitted to serve as counsel for the class.").
2

-2-

Plaintiffs now cry foul, claiming the motions are substantively different than the motions
filed in the Southern District and untimely filed. However, Plaintiffs do not identify any specific
arguments or authorities they deem to be new. Other than being (ever-so-slightly) shorter, both

motions are essentially the same as the motions previously filed. Plaintiffs' motions are DENIED.
Alternatively, even if Plaintiffs were correct and the re-filed motions were untimely, this Court
would grant Apple leave to re-file the motions out of time because Plaintiffs cannot be prejudiced
by the re-filing of unresolved motions they already responded to in one court, and have responded

to again in this Court.

II.

Apple's Motion to Dismiss

A.

Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain

statement of the claim showing that the pleader is entitled to relief"

FED.

R. Civ. P. 8(a)(2). A

motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be granted."

FED.

R. Civ. P. 12(b)(6). The plaintiff

must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v.
U.S. 662, 678 (2009);

Bell At!. Corp.

v.

Twombly, 550

Iqbal,

556

U.S. 544, 570 (2007). "A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at 678. Although
a plaintiffs factual allegations need not establish that the defendant is probably liable, they must

establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining
plausibility is a "context-specific task," and must be performed in light of a court's "judicial
experience and common sense." Id. at 679.
-3-

In deciding a motion to dismiss under Rule 1 2(b)(6), a court generally accepts as true all

factual allegations contained within the complaint. Leatherman

v.

Tarrant Cnly. Narcotics

intelligence & Coordination Unit, 507 U.S. 163, 164(1993). However, a court is not bound to accept
legal conclusions couched as factual allegations. Papasan

v.

Allain, 478 U.S. 265, 286 (1986).

Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead
"specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061,
1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the complaint, as well

as other sources such as documents incorporated into the complaint by reference, and matters of

which a court may take judicial notice. Tellabs, Inc.

v.

Makor Issues & Rights, Ltd., 551 U.S. 308,

322 (2007).
B.

Application
Plaintiffs' Second Amended Complaint asserts the following causes of action: (1) common

law fraud; (2) violations of the Texas Deceptive Trade Practices Act (DTPA); (3) violations of the

Magnuson-Moss Warranty Act; (4) breach of implied warranty of fitness for a particular purpose;
(5) breach of implied warranty of merchantability; (6) negligence; (7) money had and received; and
(8) unjust enrichment. Apple moves to dismiss all claims in their entirety.

Although Plaintiffs filed a Response to the Motion to Dismiss, they largely do not engage
with Apple's arguments. In fact, Plaintiffs' Response to the Motion to Dismiss is nearly identical to

their Response to the Motion to Strike Class Allegations, focusing on Rule 23's requirements and
issues like predominance. Plaintiffs appear to have the mistaken impression they can insulate their

claims from Rule 12 review by labeling the suit as a class action. See Pl.'s Resp. [#97], at 18 ("The

focus of Defendant's wide-ranging Motion to Dismiss is improper. The correct focus at this stage

of litigation, is whether or not Plaintiffs can certify a class.")
Plaintiffs are mistaken. The authorities Plaintiffs cite in support of their argument discuss the
irrelevance of merits-based inquiries when ruling on a class certification motion. See Erica P. John
Fund, Inc.

v.

Halliburton Co., 131 S. Ct. 2179, 2183-84 (2011) (reviewing denial of class

certification motion filed after an unsuccessful motion to dismiss); Behrend v. Comcast Corp., 655
F.3d 182, 188 (3d Cir. 2011), rev'd, 133 S. Ct. 1426 (2013) (Rule 23(f) appeal from class
certification order); In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 608 (8th Cir. 2011)
(appeal of class certification order); Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221,
229 (5th Cir. 2009) (citing the advisory committee's notes concerning Rule 23 for the proposition

"an evaluation of the probable outcome on the merits is not properly part of the certUlcation
decision" (emphasis

added)).3

There is no motion for class certification pending before this Court. Plaintiffs are not entitled

to proceed directly with class-based discovery on meritless claims simply because they have filed
a class action lawsuit. Rule 12 gives Apple the right to test the viability of Plaintiffs' substantive

causes of action even before the class certification stage. The Court now turns to those causes of
action.
1.

Fraud
"The elements of fraud in Texas are (1) the defendant made a representation to the plaintiff;

(2) the representation was material; (3) the representation was false; (4) when the defendant made

Like the defendants in Erica P. John Fund, the defendants in Alaska Electrical moved to dismiss under Rule
12 before the certification motion was filed, just as Apple has done here. Alaska Elc., 572 F.3 d at 226. It was the district
court's denial of the Rule 12 motions which allowed Alaska to later move for class certification.Id.

-5-

the representation the defendant knew it was false or made the representation recklessly and without

knowledge of its truth; (5) the defendant made the representation with the intent that the plaintiff act
on it; (6) the plaintiff relied on the representation; and (7) the representation caused the plaintiff

injury." Shandong Yinguang C/'zem. Indus. Joint Stock Co.

v.

Potter, 607 F.3d 1029, 1032-33 (5th

Cir. 2010). Federal Rule of Civil Procedure 9(b) requires fraud to be pleaded with particularity. FED.
R. Civ. P. 9(b). The Fifth Circuit interprets Rule 9(b) to require "the plaintiff to specify the

statements contended to be fraudulent, identify the speaker, state when and where the statements
were made, and explain why the statements were fraudulent." Flaherly & Crumrine Preferred
Income Fund, Inc.

v.

TXU Corp., 565 F.3d 200, 207 (5th Cir. 2009) (internal quotation marks

omitted).

Plaintiffs argue Apple committed fraud by representing its laptops "were functional and
suitable for sale." 2d Am. Compl. [#5 8] ¶ 50. Plaintiffs also allege Apple knew of the defective logic
boards but sold the laptops anyway, and Plaintiffs relied on Apple's "statements of suitability" in

purchasing their MacBook Pro computers. Id. Apple argues these allegations are insufficient under
Federal Rule of Civil Procedure 9(b) and Texas law. For a number of reasons, Apple has the better
argument.
First, Plaintiffs have failed to identify any representations Apple made related to the logic
boards. Instead, Plaintiffs point to various Apple press releases making generic comments about

MacBook laptops. E.g., 2d Am. Compl. [#5 8] ¶ 18 ("State of the Art, Breakthrough, Easy Access
to Connections and Ports"); id. ¶ 19 ("The new MacBook is faster, has even more memory and

storage, and is an ideal notebook for customers' growing library of digital music, photos and

movies."); Id. ¶ 22 ("portable powerhouses for creative and professional users"). Plaintiffs have not

identified any representation Apple made about the logic boards or even the life expectancy of the
laptops generally.
Second, even if Apple did make relevant representations, and assuming those representations
were material, Plaintiffs have not identified a singlefalse representation. Many of the representations

identified by Plaintiffs are mere puffery, incapable of being labeled true or false (e.g., "state of the
art," "breakthrough"). Those representations which do state actual facts about the product do not

relate to the logic boards, and thus are not false even assuming Plaintiffs' theory of defectiveness.

For example, Apple represented users could "Connect a modem, iPod, iPhone, mouse, keyboard,

printer, disk drive, digital camera, joystick, and more to your MacBook." 2d Am. Compi. [#58] ¶ 21.
This is undeniably true: users can connect those devices. It would be false to represent the MacBook
has USB ports when it does not have USB ports. It is not false to represent the MacBook has USB
ports when it in fact has them, even if those ports may cease to function several years after the

product's warranty has expired. Describing the functions of a product does not amount to a promise
the product will never malfunction, degrade, or break down. Looking to another example, Plaintiffs
also allege Apple claimed the MacBook was "faster" and had "more memory and storage" than

previous laptops. Id. ¶ 19. Plaintiffs do not even allege these statements were false.
Third, Plaintiffs cannot argue Apple made any representations in 2007the time Plaintiffs

purchased their MacBook Pro

laptopswith knowledge the logic boards were defective,

and

therefore knowledge those representations were false. This is because Plaintiffs' own pleading

admits Apple had no knowledge of the defective logic boards until at least 2010. Id. ¶ 26 (alleging
"Apple has been aware of these defects for nearly three years," and pointing to "December 2010"

-7-

as the earliest time Apple had knowledge

of the alleged defect). Plaintiffs have pleaded their own

fraud claim out of court.
Fourth, Plaintiffs have not pleaded reliance upon any representations made by Apple with
sufficient particularity. Plaintiffs merely assert, in conclusory fashion, "Plaintiffs relied upon Apple's

statements of suitability." Id. ¶ 50. In addition to being wholly generic (what statement? suitability
for what purpose? for how long?), this statement is precisely the kind of "formulaic recitation of the
elements of a cause of action" the United States Supreme Court found insufficient under Rule 8,

much less under the stricter standards of Rule 9(b). See Twombly, 550 U.S. at 555. Plaintiffs do not
plead they personally saw any of the press releases quoted in the Second Amended Complaint, or
spoke to any Apple employees or representatives who made representations to them about the

MacBook Pro. Plaintiffs are obviously dissatisfied customers who feel their laptops should have
lasted more than five years without repair,4 and now seek to claim they were defrauded six years ago
when they made their purchases.

For all of these reasons, Plaintiffs have failed to plead a viable common law fraud claim.
Moreover, Plaintiffs offer no defense of their fraud claims in their Response. In fact, Plaintiffs'

Response makes clear Plaintiffs seek to chart an expedition into Apple's waters in hopes of catching
a fraudulent fish. See P1.'s Resp. [#97], at 16 ("is it more likely that Apple was ignorant of any type

of defect? Or is more [sic] likely that Apple chose to hide this information, not disclose these
problems, and continue to sell laptops? This will be determined during Discovery and depositions

of Senior Apple management."). Apple's motion to dismiss the fraud claim is GRANTED.

At the hearing, this was, in essence, Plaintiffs' counsel's argument: Apple products are expensive, and
should last longer than these laptops lasted. Regardless of whether this is true, it is irrelevant to a fraud claim,
therefore
particularly when Plaintiffs do not even allege Apple made any representations about how long its laptops would last.
'F

2.

DTPA
The DTPA allows

consumers5

to sue when any "false, misleading, or deceptive act or

practice" mentioned in the statute is relied upon by the consumer and is a producing cause of the

consumer's damages. TEx.

Bus. & C0M. CODE §

17.50(a)(1); Doe v. Boys

Clubs of Greater

Dali.,

Inc., 907 S.W.2d 472, 478 (Tex. 1995). The statute contains a "laundry list" of "false, misleading,
or deceptive acts or practices," including the following categories of acts alleged by Plaintiffs here:
(1) representing a good has characteristics or benefits it does not have; (2) representing a good is of
a particular quality when it is not; (3) advertising a good "with intent not to sell [it] as advertised,"

and (4) failing to disclose known information about a good with intent to induce a consumer into a

transaction they otherwise would not have entered into. TEx. Bus. & COM. CODE

§

1

7.46(b)(5), (7),

(9), (24).

The first three of Plaintiffs' claims, regarding affirmative representations made about the

MacBook Pro, encounter the same problems as their fraud claims. See Boys

Clubs,

907 S.W.2d at

479-80 (DTPA misrepresentation claims must be based on actionable, false representations). As
discussed in more detail above, Plaintiffs have not pleaded any specific representations made by
Apple about its logic boards. The representations Plaintiffs do allege are either irrelevant, because
they deal with aspects of the product not challenged in this suit (e.g., storage capacity), or are simple

The statute is directed at Texas consumers. See TEx. Bus. & COM. CODE § 17.45(6) (defining statutory terms
"trade" and "commerce" in terms of activity "directly or indirectly affecting the people of this state"); Bass v. Hendrix,
931 F. Supp. 523, 536 (S.D. Tex. 1996) (DTPA does not apply to activities which "took place in New York or
Connecticut and were not directed toward a Texas resident"); Birdsong v. Toyota Motor Credit Corp., No. 2000-Cl06279, 2002 WL 32830975, at *4 (Tex. Dist. May 15, 2002) ("The DTPA does not extraterritorially apply to acts
occurring outside of Texas."). Deburro, a resident of Massachusetts, does not allege he purchased his MacBook Pro in
Texas, or is in any way connected to the state of Texas. Deburro cannot invoke the DTPA to sue for conduct which
occurred outside of Texas and did not affect him as a Texas resident. Deburro' s claims must be dismissed for this reason
alone, but the merits of the DTPA analysis alternatively justify dismissal.

puffery (e.g., "state of the art"). See Autohaus, Inc.

v.

Aguilar, 794 S.W.2d 459, 462 (Tex.

App.Dallas 1990, writ denied) (puffery not actionable under DTPA). Additionally, Plaintiffs have
not pleaded reliance, as neither Plaintiff claims to have seen any of the representations listed in the
Second Amended Complaint prior to purchasing a MacBook Pro, nor have Plaintiffs alleged such

representations actually induced them to purchase the product. See TEx.
§

Bus.

&

C0M. CODE

17.50(a)(1)(B) (laundry list violation requires reliance "by a consumer to the consumer's

detriment"); McLaughlin, Inc.

App.San Antonio, no pet.)

v.

Northstar Drilling Techs., Inc., 138 S.W.3d 24, 30 (Tex.

(same).6

Plaintiffs' fourth claim, regarding failure to disclose, also fails to state a claim. Such claims
plainly require the seller to have knowledge of the withheld information at the time of sale. TEX.

17.46(b)(24) (concerning information "which was known at the time of the

Bus. & C0M. CODE

§

transaction"); Boys

Clubs,

907 S.W.3d at 479 ("To be actionable under the DTPA, a failure to

disclose material information necessarily requires that the defendant have known the information and
have failed to bring it to the plaintiffs attention."). As with Plaintiffs' fraud claims, Plaintiffs have

again pleaded themselves out of court by alleging Apple did not know about the defective logic
boards until at least 2010.

For all of these reasons, Apple's motion to dismiss Plaintiffs' DTPA claims is GRANTED.

There are additional DTPA causes of action which do not require reliance, such as "breach of an express or
implied warranty." TEX. Bus. & COM. CODE § 17.50(a)(2). However, Plaintiffs expressly pleaded only "laundry list"
DTPA claims. 2d Am. Compl. [#58] ¶ 56.
6

-10-

Warranty Claims

3.

Apple challenges Plaintiffs' implied warranty claims, and related Magnuson-Moss claim, on
the grounds Apple expressly disclaimed all implied warranties, or at least limited their duration to
one year. Additionally, Apple contends Plaintiffs have failed to adequately plead any implied

warranty claims. Plaintiffs offer no substantive defense of their warranty claims.

Texas law allows sellers to disclaim (or "exclude") implied warranties. To disclaim the
implied warranty of merchantability, the disclaimer "must mention merchantability and in case of
a writing must be conspicuous." TEX. Bus. & C0M. CODE § 2.316(b); Womco, Inc.

Corp., 84 S.W.3d 272, 279 (Tex.

v.

Navistar Int'l

App.Tyler 2002, no pet.). To disclaim the implied warranty of

fitness, "the exclusion must be by a writing and conspicuous." TEx. Bus. & C0M. CoDE § 2.3 16(b);
Womco, 84 S.W.3d at 279. A disclaimer is "conspicuous"

if a reasonable person "ought to have

noticed it," as evidenced by features like contrasting type or font size.
§

TEx.

Bus. & C0M. CODE

1.201(10). "Whether a term is 'conspicuous' or not is a decision for the court." Id.

Apple includes a Limited Warranty with all of its products, including MacBook and
MacBook Pro laptops. Apple provided such a warranty to all purchasers of MacBook Pro laptops
in 2007 (i.e., Plaintiffs). Apple has provided a copy of the Limited Warranty supported by a business

record affidavit. Mot. Dism. [#85-2], Ex. A. The Court considers the Limited Warranty because it
is "referred to in the

plaintiffs complaint and

[is] central to [their] claim[s]." Collins

v.

Morgan

Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000) (internal quotation marks omitted); see also
Id.

(consideration of such documents attached to a motion to dismiss "merely assists.

.

.

the court

in making the elementary determination of whether a claim has been stated"). Plaintiffs have also

not objected to consideration of the Limited Warranty.
-11-

Apple's Limited Warranty covered the MacBook Pro for a period of one year from the date

of the retail purchase. Mot. Dism. [85-2], Ex. A, at

1.

Within that year, Apple would repair or

replace any covered hardware defect, or refund the purchase price of the laptop. Id. The Limited

Warranty also contains a section labeled "EXCLUSIONS AND LIMITATIONS," which contains
an all-caps disclaimer of "any and all statutory or implied warranties, including, without limitation,

warranties of merchantability and fitness for a particular purpose and warranties against hidden or
latent defects." Id. In the alternative, the Limited Warranty limits any warranties which could not be

lawfully disclaimed to "the duration ofthe express warranty." Id. The Court finds this disclaimer was
conspicuous, and Plaintiffs ought to have noticed it.

Based on this conspicuous disclaimer of all implied warranties, and the provision of a one-

year express warranty, Plaintiffs breach of implied warranty claims fail. "Texas Courts have
consistently held that where there is an express written warranty, the seller will not be bound beyond

the terms of the warranty." Lankford

v.

Rogers Ford Sales, 478 S.W.2d 248, 250 (Tex. Civ.

App.El Paso 1972, writ ref'd n.r.e.). "It follows that where such express warranty provides, as the
one before us does, that it is given in lieu of any other express or implied warranty, including any

implied warranty of merchantability or fitness, the purchaser cannot rely upon breach of implied
warranties." Emmons v. Durable Mobile Homes, Inc., 521 S.W.2d 153, 154 (Tex. Civ. App.Dallas
1974, writ ref'd n.r.e.). Deburro's warranty expired in July 2008. Tincher's warranty expired in

August 2008. Both Plaintiffs do not complain of any defect or problem prior to 2012, nearly four
years after their warranties expired. 2d Am. Compl. ¶J 12, 13. Whether Apple disclaimed or merely

limited the implied warranties, Plaintiffs have not stated a claim for breach of any implied warranty,

-12-

and Apple's motion to dismiss the breach of implied warranty claims is GRANTED. Alternatively,

the Court will briefly address the merits of the claims assuming the warranties were not disclaimed.
With respect to Plaintiffs' implied warranty of merchantability claim, Apple's MacBook Pro
laptops were merchantable at the time they were purchased by Plaintiffs. To be merchantable, goods

must be, among other things, "fit for the ordinary purposes for which such goods are used." TEX.

Bus. & COM. CODE

§

2.31 4(b)(3). Plaintiffs claim their MacBook Pro laptops were not fit for use

because the logic boards failed five years after purchase. Plaintiffs lodge no complaints about the

computers prior to the alleged logic board failures. "A product which performs its ordinary function
adequately does not breach the implied warranty of merchantability merely because it does not
function as well as the buyer would like, or even as well as it could." Gen. Motors Corp.

v.

Brewer,

966 S.W.2d 56, 57 (Tex. 1998). Plaintiffs' products functioned adequately for nearly five times
longer than Apple warranted them to function. Plaintiffs believe their products should have lasted

even longer without repair, but there is no requirement goods must last forever in order to be

merchantable. Additionally, because the laptops functioned adequately for several years after leaving

Apple's control, and because Apple (by Plaintiffs' admission) had no knowledge of any defects in
2007, there is no indication the laptops were "defective at the time they left the manufacturer's or

seller's possession." Plas-Tex, Inc.

v.

US. Steel Corp., 772 S.W.2d 442, 444 (Tex. 1989). Apple's

motion to dismiss the breach of implied warranty of merchantability claim is GRANTED.
Turning to Plaintiffs' implied warranty of fitness for a particular purpose claim, Plaintiffs'
claim fails because they have not pleaded any particular purpose, other than ordinary use,

communicated to Apple at the time of sale. TEx. Bus. & C0M. CODE § 2.315 (requiring seller to have
"reason to know any particular purpose for which the goods are required and that the buyer is relying
-13-

on the seller's skill orjudgment to select or furnish suitable goods"); Chandler v. Gene Messer Ford,

Inc., 81 S.W.3d 493, 503 (Tex. App.Eastland 2002, pet. denied) ("The particular purpose must
be a particular non-ordinary purpose."). Apple's motion to dismiss the breach of implied warranty

of fitness for a particular purpose claim is GRANTED.
Lastly, the Magnuson-Moss Warranty Act "creates a statutory cause of action for consumers

'damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation
[imposed by the Act] or [established by] a written warranty, implied warranty, or service contract."
Walton
§

v.

Rose Mobile Homes LLC, 298 F.3d 470, 474 (5th Cir. 2002) (quoting 15

U.s.c.

2310(d)(l)). However, the Act "does not provide an independent basis for liability, but instead

provides a federal cause of action for state law express and implied warranty claims." Taliaferro v.

Samsung Telecomm. Am., LLC, No. 3:1 1-CV-1 1 19-D, 2012 WL 169704, at * 10 (N.D. Tex. Jan. 19,
2012). Plaintiffs' Magnuson-Moss claims are thus contingent upon their state law warranty claims,

and the failure of those state law claims requires dismissal of the federal claims as well. Id. at *11;
see also Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 n.3 (9th cir. 2008); Schimmer v.

Jaguar Cars, Inc., 384 F.3d 402, 405 (7th Cir. 2004). Apple's motion to dismiss the MagnusonMoss Warranty Act claims is GRANTED.
4.

Negligence
Apple contends Plaintiffs' negligence claim is barred by the economic loss doctrine. This

doctrine "has been applied to preclude tort claims brought to recover economic losses against the

manufacturer or seller of a defective product wheie the defect damages onlythe product and does
not cause personal injury or damage to other property." Pugh

5.W.3d 84, 91 (Tex.

v.

Gen. Terrazzo Supplies, Inc., 243

App.Houston [14th Dist.] 2007, pet. denied) (internal quotation marks
-14-

omitted); see also Am. Eagle Ins. Co.

v.

United Techs. Corp., 48 F.3d 142, 144 (5th Cir. 1995)

("Texas does not permit recovery under a negligence theory for economic loss resulting from damage
to a defective product."). At the hearing, Plaintiffs' counsel conceded the negligence claim is barred
by this rule. Apple's motion to dismiss the negligence claim is GRANTED.
5.

Equitable Relief
Plaintiffs have also alleged causes of action for unjust enrichment and money had and

received. These similar equitable remedies are unavailable when contractual obligations, such as the
Limited Warranty in this case, govern the parties' conduct. McAfee, Inc.

v.

Agilysys, Inc., 316

S.W.3d 820, 828 (Tex. App.Dallas 2010, no pet.) (warranty contract precluded recovery on unjust

enrichment, money had and received, and promissory estoppel claims); see also Taliaferro, 2012 WL
169704, at *9 (warranty precluded recovery under money had and received theory). Apple's motion
to dismiss these equitable claims is GRANTED.

III.

Apple's Motion to Strike Class Allegations
Because the Court finds the named Plaintiffs have failed to state any claim for which relief

can be granted, the Court need not consider whether Plaintiffs' class allegations survive.

Conclusion
Plaintiffs purchased laptops from Apple six years ago, and were disappointed when those
laptops malfunctioned and required repairs five years after they purchased them and four years after
the products' warranties had expired. As Plaintiffs' counsel expressed at the hearing, Plaintiffs

believe expensive Apple products should last longer. This sentiment is a fine basis for purchasing
an extended warranty from Apple, or from purchasing products from Apple's competitors in the
future. It is not a basis for a class action lawsuit against Apple. Plaintiffs have failed to state any
-15-

claim for which relief can be granted, and failed to show themselves entitled to any relief in either
law or equity.
This case has been pending for fourteen months, Plaintiffs have amended their complaint

multiple times, and the case still has progressed only to the Rule 12 stage. The Court finds granting
Plaintiffs leave to amend a third time would be futile, as Plaintiffs have consistently failed to allege
basic facts necessary to support their claims, even when Apple filed a motion to dismiss expressly

identifying facts needed to state viable claims ten months ago. See Mot. Dism. 1st Am. Compl. [#30]

(filed in the Southern District of Texas on December 12, 2012). The inescapable conclusion is
Plaintiffs cannot allege such facts (e.g., reliance on any particular representations made by Apple)
because there is no good faith basis for doing so. The Court therefore declines to grant leave to
amend yet again and dismisses the claims with prejudice.
Accordingly,
IT IS ORDERED that Defendant Apple, Inc.'s Motion to Strike Class Allegations
[#84] is DISMISSED AS MOOT;

IT IS FURTHER ORDERED that Apple's Motion to Dismiss [#85] is GRANTED;
IT IS FURTHER ORDERED that Plaintiffs' Motions to Strike Apple's Pending

Motions [##93, 94] are DENIED;
IT IS FINALLY ORDERED that the Unopposed Motions to Withdraw by counsel
for Apple [#88] and Plaintiffs [#89] are GRANTED.

SIGNED this the

0

day of October 2013.

SA27?'
UNITED STATES DISTRICT JUDGE

784 mtd ord kkt.frm

16-