Rawls, et al v. Associated Materials, LLC et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part defendant Associated Materials, LLC's 4 MOTION to Dismiss. Plaintiffs' claims for breach of implied warranties (Counts II & III) are DISMISSED with prejudice. Plaintiffs 39; claims for breach of implied warranties under the Magnuson-Moss Warranty Act (Count VI) are DISMISSED with prejudice. Plaintiffs' claim for unconscionability (Count X) is DISMISSED. The court DENIES defendant Associated Materials, LLC's motion to dismiss as to all other counts. Signed by Senior Judge David A. Faber on 8/1/2011. (cc: attys; any unrepresented party) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
LOUISE C. RAWLS, et al.,
CIVIL ACTION NO.: 1:10-cv-01272
ASSOCIATED MATERIALS, LLC, et al.,
MEMORANDUM OPINION AND ORDER
Before the court is defendants’ motion to dismiss
plaintiffs’ complaint (Doc. # 4).
For reasons more fully
expressed herein, the motion is GRANTED in part and DENIED in
I. Factual and Procedural History
Plaintiffs Louise and Merrill Rawls (collectively “the
plaintiffs”) brought suit against Associated Materials, LLC,
American Original Building Products, LLC, and John S. Melvin, in
the Circuit Court of Mercer County, West Virginia, on October 1,
The facts of the case relate to plaintiffs’ purchase of
siding for their home in Patrick County, Virginia from the
In their complaint, the plaintiffs allege that
sold and installed vinyl siding that did not
conform to express warranties. Moreover,
plaintiffs allege that defendants did not
honor their express warranties by ignoring
requests to do so and otherwise committing
willful and/or negligent acts to Plaintiff’s
State Court Complaint, filed as Exhibit 1 to Notice of Removal,
Specifically, plaintiffs complain of “an unusual and
somewhat uniform spotting” on the vinyl siding, “that appears to
be a manufacturing defect, which continues to worsen with the
passing of time.”
Id. at 7.
Plaintiffs plead eleven counts and
ask for numerous different forms of relief.
See id. at 5-15.
Defendants removed the case to this court on November 1,
2010, invoking the court’s diversity jurisdiction under 28 U.S.C.
One week later, on November 8, 2010, defendants filed
the instant motion to dismiss, setting forth numerous grounds for
The court will address each of defendants’
contentions in turn.
Defendants argue that this case was, from its inception,
improperly filed in West Virginia state court.
defendants maintain that venue in the Southern District of West
Virginia is also improper, pursuant to W. Va. Code § 56-1-1a.
Defendants state that “[t]his case should have been brought in a
Virginia court and this court should refuse to exercise
jurisdiction, instead dismissing the Complaint in its entirety
for improper venue.”
Memorandum in Support of Defendants’ Motion
to Dismiss, p. 3.
Once a case has been removed to federal court, venue is
fixed in “the federal district court embracing the place where
the action is pending.”
Comer v. ENSR Operations, No. 2:93-0317,
1993 U.S. Dist. LEXIS 21327, at *16 (S.D.W. Va. Nov. 17, 1993).
Further, the state court venue in which the case was originally
filed can no longer be challenged.
Hollis v. Fla. State Univ.,
259 F.3d 1295, 1300 (11th Cir. 2001) (“For our purposes it is
sufficient to recognize that, as a matter of law, § 1441(a)
establishes federal venue in the district where the state action
was pending, and it is immaterial that venue was improper under
state law when the action was originally filed.”);
Werst, No. 1:09-36, 2009 U.S. Dist. LEXIS 33356, at *2 (W.D. Va.
Apr. 15, 2009).
It is thus unavailing for defendants to argue at
this juncture that the Circuit Court of Mercer County, West
Virginia was an improper venue for plaintiffs to bring their
Plaintiffs could have requested that venue be transferred to
the Western District of Virginia under 28 U.S.C. § 1404.
plaintiffs did not make this request, however, the court will not
consider it at this juncture.
B. Claims barred by the statute of limitations
Defendants next argue that six of plaintiffs’ claims are
time-barred under W. Va. Code § 46-2-725, which provides for a
four-year statute of limitations for suits related to the “breach
of any contract for sale.”
The allegedly time-barred claims
encompass those for breach of warranty (Counts I, II and III);
for cancellation of the contract (Counts IV and V); and for
relief pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. §
2301, et seq. (Count VI).
Defendants argue that under § 46-2-725, a cause of action
for breach of warranty under West Virginia law accrues at the
time the product complained of is delivered.
Va. Code § 46-2-725(2)).
Id. at 4 (citing W.
As the plaintiffs’ siding was installed
in July 2005, and since plaintiffs brought the instant action on
October 1, 2010, defendants assert that plaintiffs are outside
the statutory four year period in which they may bring their six
claims listed above.
In their response to defendants’ motion to dismiss,
plaintiffs respond by citing the “future performance exception”
language of § 46-2-725(2):
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.
Plaintiffs argue that since defendants provided
them with a lifetime warranty for the siding, at least some of
their claims benefit from § 46-2-725(2)’s future performance
exception, and are therefore not time-barred.
Plaintiffs submitted a copy of the lifetime express warranty
that defendants allegedly gave to plaintiffs.
See Exhibit B to
Plaintiffs’ Memorandum in Opposition to Defendants’ Motion to
Given plaintiffs’ submission, the court cannot conclude
that the plaintiffs’ claim in Count I is time-barred, as the
lifetime warranty explicitly lengthens the warranty period as
required under the “future performance exception” of
Counts II & III
The court DISMISSES, with prejudice, plaintiffs’ claim for
breach of implied warranty of merchantability (Count II), and
plaintiffs’ claim for implied warranty of fitness (Count III).
Since the implied warranty claims were brought more than four
years after defendants delivered the vinyl siding to plaintiffs,
they are time-barred under § 46-2-725(2).
Crucially, claims for
breach of implied warranties cannot benefit from § 46-2-725(2)’s
future performance exception to the four year statute of
St. Paul Fire & Marine Ins. Co. v. Emerson Network
Power, No. 2:09-cv-234, 2010 U.S. Dist. LEXIS 110240, at *6-7
As the claims are time-barred, and because no exception
would apply to them, the court dismisses these claims with
prejudice. See McLean v. United States, 566 F.3d 391, 400 (4th
Cir. 2009) ("Courts, including this one, have held that when a
complaint is incurable through amendment, dismissal is properly
rendered with prejudice and without leave to amend.").
(S.D.W. Va. Oct. 15, 2010) (applying § 46-2-725(2)'s four year
statute of limitations to claims for breach of implied warranty
of merchantability, and dismissing claim when untimely);
Health Sys. v. Cummins Inc., No. 08-3192, 2010 U.S. Dist. LEXIS
133745, at *14 (D.N.J. 2010) (“Implied warranties, by their very
nature, cannot extend to future performance because such an
extension must be explicit and an implied warranty cannot
explicitly state anything.”);
Woods v. Maytag Co., No. 10-cv-
559, 2010 U.S. Dist. LEXIS 116595, at *6-7 (E.D.N.Y. 2010)
(holding that § 2-725(2)'s future performance exception “does not
apply to the Plaintiff's causes of action for breach of the
implied warranty of fitness and the implied warranty of
merchantability” because neither are express warranties, as
required for the exception to apply);
Fritchie v. Alumax Inc.,
931 F. Supp. 662, 672 (D. Neb. 1996) (“implied warranties do not
trigger the UCC § 2-725(2) exception”); Providence & W. R. Co. v.
Sargent & Greenleaf, Inc., 802 F. Supp. 680, 689 (D.R.I. 1992)
(“By definition, implied warranties cannot explicitly extend to
Western Recreational Vehicles v. Swift Adhesives,
23 F.3d 1547, 1550 (9th Cir. 1994) (noting that “the majority
rule” holds that no implied warranty can meet the requirements of
the future performance exception).
Defendants claim that plaintiffs’ attempt to cancel the
contract for the purchase of the vinyl siding by rejection is
similarly time-barred under § 46-2-725(2).
authority for this assertion.
Defendants cite no
Any relevant time limitations for
an attempted rejection appear to be governed instead by language
from § 46-2-602, which states that “Rejection of goods must be
within a reasonable time after their delivery or tender.”
defendants have presented no argument related to the
reasonableness of plaintiffs’ timing in their attempt to reject
the contract in their motion to dismiss, the court will not make
a determination at this stage.
Similarly, defendants fail to cite any authority for their
assertion that plaintiffs’ attempt to cancel their contract with
defendants by revocation of acceptance is time-barred under §
The court notes that, in this instance as well, the
timeliness of plaintiffs’ attempt to revoke acceptance appears to
be governed by a different statutory provision.
See W. Va. Code
As defendants have presented no argument on this
issue, the court will not make a determination at this juncture.
Defendants maintain that plaintiffs’ claims under the
Magnuson-Moss Warranty Act (“MMWA”) are also time-barred,
pursuant to § 46-2-725(2).
“Because the MMWA itself does not
contain a statute of limitations, courts have consistently
applied the default limitations period found in the Uniform
Commercial Code.” Merricks v. Monaco Coach Corp., No. 3:08-cv-47,
2008 U.S. Dist. LEXIS 100906, at *10-11 (W.D. Va. Dec. 15, 2008);
see also Hillery v. Georgie Boy Mfg., 341 F. Supp. 2d 1112, 1114
(D. Ariz. 2004) (“The Magnuson-Moss Warranty Act contains no
express statute of limitations.
Thus, the court must look to the
most analogous state statute to determine what statute of
limitations to apply to plaintiff's claim. . . .”).
the court applied § 2-725 of Virginia’s adopted version of the
Uniform Commercial Code to determine the timeliness of
plaintiffs’ MMWA claims for breach of warranty.
Sea-Alis, LLC v. Porter, Inc., No. 09-cv-1883, 2011 U.S. Dist.
LEXIS 12998, at *11 (D. Colo. Jan. 28, 2011) (applying § 2-725's
four-year statute of limitations to claims for breach of warranty
related to a defective yacht).
As plaintiffs do not dispute that
§ 46-2-725 provides the applicable statute of limitations for
their state law breach of warranty claims, and argue only that
the future performance exception should apply, this court finds
that § 46-2-725's statute of limitations should be applied to
plaintiffs’ MMWA claims as well.
In their Complaint, plaintiffs assert that they are seeking
relief under the MMWA for breaches of both express and implied
As the court has already found plaintiffs’ claim for
breach of express warranty timely, the court finds this same
claim similarly timely when brought under the MMWA.
v. Marvin Lumber & Cedar Co., 458 F. Supp. 2d 545, 551-52 (N.D.
Ohio 2006) (ruling the same way on the timeliness of an express
warranty claim where the claim was first made as a freestanding
claim and where it was later brought under the MMWA).
With respect to plaintiffs’ claims for breach of implied
warranties, the court DISMISSES these, with prejudice, for the
same reason expressed earlier in this Opinion.
See Mitchell v.
Skyline Homes, No. CIV S-09-2241 KJM, 2010 U.S. Dist. LEXIS
54257, at *4-5 (E.D. Cal. May 3, 2010) (holding plaintiff’s claim
for breach of implied warranty pursuant to MMWA time-barred,
where the underlying implied warranty claim was not brought
within § 2-725's statute of limitations); see supra, pp. 7-8.
C. Fraud claims are time-barred and pleaded with insufficient
Defendants next assert that plaintiffs’ claims for fraud and
misrepresentation are time-barred and pleaded with insufficient
Timeliness of Claim
In West Virginia, a claim for fraud or misrepresentation
must be brought within two years of the discovery of the
defendant’s tortious conduct.
Dunn v. Rockwell, 225 W. Va. 43,
61 (W. Va. 2009);
Trafalgar House Constr. v. Zmm, Inc., 211 W.
Va. 578, 583 (W. Va. 2002).
Plaintiffs’ argument appears to be
that defendants’ representations that they would repair certain
types of damage to the vinyl siding constituted fraud or
misrepresentation, as these statements later turned out to be
untrue when plaintiffs requested that defendants make the
This being the plaintiffs’ asserted theory of
fraud and misrepresentation, the court must next determine the
time at which the plaintiffs discovered the fraud or
Plaintiffs’ Complaint states that they began
to notice the spotting on the vinyl siding in July 2008.
Complaint also states that plaintiffs contacted defendants to ask
for repairs, but it makes no mention of when that contact was
Logically, the defendants’ fraud or misrepresentation
would have become apparent to plaintiffs some time after they
discovered that defendants were unwilling to honor their former
promise to make repairs.
It would have been at this time that
the falsity of defendants’ prior warranties became evident.
Plaintiffs filed their Complaint on October 1, 2010,
approximately two years and three months after they began to
notice the spotting on the vinyl siding.
As the parties have
failed to provide the court with a date indicating when precisely
plaintiffs discovered the falsity of defendants’ prior
warranties, the court is left to speculate as to when that moment
The United States Court of Appeals for the Fourth Circuit
has held that a district court may address an affirmative defense
on a 12(b)(6) motion to dismiss, but only “if all facts necessary
to the affirmative defense ‘clearly appear on the face of the
Goodman, 494 F.3d, at 464 (4th Cir. 2007) (quoting
Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250
(4th Cir. 1993)).
Since the court is missing crucial information
related to the timing of plaintiffs’ discovery of the fraud or
misrepresentations, the court finds that a determination of
timeliness is best left to a later date, once the facts of the
case are better developed.
Sufficiency of Particularity
Under Federal Rules of Civil Procedure 9(b), “a party must
state with particularity the circumstances constituting fraud or
Malice, intent, knowledge, and other conditions of a
person's mind may be alleged generally.”
To satisfy the 9(b)
standard, a plaintiff "must, at a minimum, describe the time,
place and contents of the false representations, as well as the
identity of the person making the misrepresentation and what he
United States ex rel. Wilson v. Kellogg Brown
& Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008) (quoting Harrison
v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.
1999)) (internal quotation marks omitted).
"These facts are
often referred to as the who, what, when, where, and how of the
Id. (internal quotation marks omitted).
The court finds that plaintiffs have met the required
pleading standard for describing the alleged fraud and
The court is able to discern which of the
defendants’ representations the plaintiffs allege to be
Plaintiffs have also plead with requisite
particularity the time frame during which the fraudulent
statements were made, by referencing the purchase and
installation of the vinyl siding in July 2005.
They have also
reasonably identified which defendants are responsible for the
fraud or misrepresentation.
Lastly, the court is able to infer
the gain that would accrue to defendants were they not required
to pay for the damaged vinyl siding.
D. Standing to assert claim under the WVCCPA
Defendants argue that the plaintiffs, as Virginia residents,
cannot assert a claim under the West Virginia Consumer Credit and
Protection Act (“WVCCPA”).
Defendants maintain that only West
Virginia residents have standing to bring suit under the WVCCPA.
As this court has already determined, “the exclusions to the
WVCCPA are clearly identified in § 105 and those exclusions do
not limit the Act only to West Virginia residents.”
Polis v. Am.
Liberty Fin., Inc., 237 F. Supp. 2d 681, 686 (S.D.W. Va. 2002).
Consequently, plaintiffs have standing to bring their WVCCPA
Lastly, defendants assert that by failing to plead facts
sufficient to show “gross inadequacy of bargaining power and
terms unreasonably favorable to the stronger party,” Adkins v.
Labor Ready, Inc., 303 F.3d 496, 502 (4th Cir. 2001), plaintiffs
have failed to plead a cause of action for unconscionability
under West Virginia law.
In order to survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”
Iqbal, 129 S. Ct. 1937, 1949 (2009); Acorn Land, LLC v. Baltimore
Cnty., Maryland, 2010 U.S. App. LEXIS 19582, at *17-18 (2010).
Under Iqbal’s exacting standards, “[a] pleading that offers
labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if
it tenders naked assertions devoid of further factual
Iqbal, 129 S. Ct. at 1949.
Given that plaintiffs have not even alleged inadequacy of
bargaining power or terms of the contract unreasonably favorable
to the defendants, the court finds that plaintiffs have failed to
plead a claim for unconscionability.
Accordingly, Count X of
plaintiffs’ Complaint is DISMISSED, without prejudice, and
plaintiffs may file an amended complaint setting forth facts
sufficient to state a claim for unconscionability, if they so
In view of the foregoing, the court partially GRANTS
defendants’ motion to dismiss, and
DISMISSES, with prejudice, plaintiffs’ claims for breach of
implied warranties (Counts II & III);
DISMISSES, with prejudice, plaintiffs’ claims for breach of
implied warranties under the Magnuson-Moss Warranty Act
(Count VI); and
DISMISSES plaintiffs’ claim for unconscionability (Count X).
The court DENIES defendants’ motion to dismiss as to all other
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to all counsel of record.
It is SO ORDERED this 1st day of August, 2011.
David A. Faber
Senior United States District Judge
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