United States District Court, N.D. California
ORDER REGARDING MOTION TO DISMISS AND MOTION TO
STRIKE RE: DKT. NOS. 69, 70
WILLIAM H. ORRICK United States District Judge.
fourth time, defendants Windsor Surry Company, d/b/a
WindsorONE, and Windsor Willits Company, d/b/a Windsor Mill
(collectively "Windsor") move to dismiss plaintiff
McLane Cover's complaint alleging misrepresentations
regarding WindsorONE trim board, a housing trim product. In
response to an earlier motion, I conducted an extensive
choice of law analysis and determined that Rhode Island law
applies to Cover's claims. Cover's third amended
complaint ("TAC") both adds to and changes prior
allegations, asserting that Cover is resident of
Massachusetts and not Rhode Island and that he reviewed
Windsor's marketing materials from his home in
Massachusetts. Even considering Cover's newly alleged
facts, Rhode Island law applies to his claims. His California
and Massachusetts law claims are dismissed. Additionally, his
Rhode Island consumer protection claim falls under an
exemption to the statute and is dismissed. His remaining
claims for breach of express warranty and implied warranty of
merchantability are plausibly pleaded. Windsor's motion
to dismiss is GRANTED IN PART and DENIED IN PART.
Windsor's motion to strike is DENIED because it is
premature with respect to some issues and unnecessary with
respect to others.
background of this case has been described in previous
orders. Dkt. Nos. 37, 67. In short, Windsor manufactures
WindsorONE trim board. TAC ¶ 1 [Dkt. No. 68]. Trim
boards are a finger jointed product, meaning that each board
is made of several shorter boards that are joined together
using finger joints and adhesive. Id. ¶ 28.
Cover bought and installed WindsorONE trim board on the
exterior of his home in Rhode Island. Id. ¶ 72.
He alleges that Windsor made misrepresentations about its
trim board in advertising and marketing materials, including
statements about its wood quality and performance.
Id. ¶¶ 30-38.
alleges that prior to installation and purchase, he relied on
the recommendations of his architect, contractor, and
carpenter, all of whom were familiar with the product,
including its "marketing material and warranty."
Id. ¶ 66. His architect and master carpenter
provided him with a compact disc ("CD") containing
interactive information regarding WindsorONE products.
Id. ¶¶ 67-70. He reviewed the CD from his
home in Massachusetts. Id. ¶ 66. "The
marketing material [on the CD] is what led the architect and
carpenter to recommend the product to [Cover] for his use and
purchase, and plaintiff relied upon those materials to make
his purchase." Id. ¶ 68. He contends that
contrary to Windsor's representations, the trim board is
made with "low performance" pine, the adhesive is
non-waterproof, and the product began to rot "well
before its represented useful or warranted life."
Id. ¶¶ 40, 42, 47. These defects caused
"premature decay, rotting, splitting, warping, and
discoloration damage" to the trim board installed on his
home. Id. ¶ 49.
alleges five causes of action: (1) violation of Rhode
Island's Deceptive Trade Practices Act, or in the
alternative, violation of the Massachusetts Consumer
Protection Act; (2) breach of express warranty; (3) breach of
implied warranty of merchantability; (4) negligence (asserted
under both Rhode Island and California law); and (5)
declaratory relief. Cover seeks to represent a nationwide
class either defined as "All persons and entities in the
United States that own or owned homes, apartments, office
buildings or other structures in which Trim Board is or was
installed, " or a more limited class encompassing
"All persons and entities in Rhode Island or
Massachusetts who own or owned homes, apartments, office
buildings or other structures in which Trim Board is or was
installed." Id. ¶¶ 14, 17.
filed a motion to dismiss all but the declaratory relief
claim. Dkt. No. 69. [Mot.]. It also filed a motion to strike
references to California law, injunctive relief, and
Cover's nationwide and Massachusetts class allegations.
Dkt. No. 70. I heard argument on May 18, 2016.
MOTION TO DISMISS
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) tests the legal sufficiency
of a complaint. Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001). A complaint "must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). A claim is facially plausible when it
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. In considering whether the complaint is
sufficient to state a claim, the court accepts as true all
factual allegations contained in the complaint. Id.
However, the court need not accept as true "allegations
that contradict matters properly subject to judicial
notice." In re Gilead Scis. Sec. Litig., 536
F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks
omitted). "Nor is the court required to accept as true
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences."
Id. "[I]t is within [the court's]
wheelhouse to reject, as implausible, allegations that are
too speculative to warrant further factual development."
Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir.
HEIGHTENED PLEADING STANDARD FOR FRAUD OR MISTAKE
sounding in fraud or mistake are subject to the heightened
pleading standard of Federal Rule of Civil Procedure 9(b),
which requires that such claims "state with
particularity the circumstances constituting fraud or
mistake." Fed.R.Civ.P. 9(b). To satisfy this standard, a
plaintiff must identify "the time, place, and content of
[the] alleged misrepresentation [s], " as well as the
"circumstances indicating falseness" or
"manner in which the representations at issue were false
and misleading." In re GlenFed, Inc. Sec.
Litig., 42 F.3d 1541, 1547-48 (9th Cir. 1994) (internal
quotation marks and modifications omitted). The allegations
"must be specific enough to give defendants notice of
the particular misconduct which is alleged to constitute the
fraud charged so that they can defend against the charge and
not just deny that they have done anything wrong."
Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.
MOTION TO STRIKE
Rule of Civil Procedure 12(f) provides that "[t] he
court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter." Fed.R.Civ.P. 12(f). "Motions to strike are
regarded with disfavor because they are often used as
delaying tactics and because of the limited importance of
pleadings in federal practice. The possibility that issues
will be unnecessarily complicated or that superfluous
pleadings will cause the trier of fact to draw unwarranted
inferences at trial is the type of prejudice that is
sufficient to support the granting of a motion to
strike." Ayat v. Societe Air France, No.
06-cv-01574, 2007 WL 1840923, at * 1 (N.D. Cal. June 27,
2007) (citations omitted).
MOTION TO DISMISS
Massachusetts and California Law Claims
response to Windsor's third motion to dismiss, I
conducted an extensive choice of law analysis, determined
that Rhode Island law applied to Cover's claims,
dismissed Cover's consumer protection claims based on
California law and provided him with leave to amend to add
parallel claims based on Rhode Island law. Dkt. No.
67 at 22 (specifying that Cover may amend to add any
"Rhode Island-specific claims, such as statutory
consumer protection claims"). Remarkably, the TAC
contains a Massachusetts Consumer Protection Act
("CPA") claim. TAC ¶¶ 97- 108.
are two reasons to dismiss this claim. First, pursuant to
Rule 15(a), a plaintiff may amend its complaint as matter of
course only within certain circumstances, none of which is
applicable to this case. Otherwise, plaintiff must seek leave
of the court or the opposing party's written consent.
"Only an amended complaint that is properly filed
pursuant to the requirements of Rule 15 requirements can
supersede the original." Taa v. Chase Home Finance,
LLC, No. 5:11-cv-00554-EJD, 2012 WL 507430 at *1 (N.D.
Cal., Feb. 15, 2012). An amended complaint that has been
filed without leave of court or consent of the defendants is
without legal effect.
district courts have occasionally considered new claims
submitted in an amended complaint where a previous dismissal
granted leave to amend without limitation. DeLeon v.
Wells Fargo Bank, N.A., No. 10-CV-01390-LHK,
2010 WL 4285006, at *3 (N.D. Cal. Oct. 22, 2010) (citing
cases). But in cases like this one, where "leave to
amend is given to cure deficiencies in certain specified
claims, courts have agreed that new claims alleged for the
first time in the amended pleading should be dismissed or
stricken." Id. Cover's Massachusetts CPA
claim exceeds the scope of allowable amendment under my
previous order. Because Cover failed to secure Windsor's
consent or seek leave of court to amend his pleadings,
Windsor's motion to dismiss this claim is GRANTED.
even if I considered Cover's new allegations they do not
change the result of the choice of law analysis that Rhode
Island law applies. Although Cover had alleged in his
previous complaint that he was a resident of Rhode Island, he
now asserts that he is a Massachusetts resident and that the
Rhode Island house at issue is simply a vacation home. TAC
¶ 6. Cover also alleges that he "received and
reviewed recommendations from his architect, contractor, and
carpenter and selected the faulty Trim Board from his home in
Massachusetts." Id. ¶ 66. In addition, the
TAC specifies that the architectural firm Cover employed is
headquartered in Massachusetts. Id. ¶ 34. The
TAC does not indicate the location from which the materials
were originally disseminated or communicated. Beyond a
tangential reference that the architectural firm he employed
is headquartered in Massachusetts, the operative complaint
contains no allegation that Windsor distributed or marketed
its materials in Massachusetts.
explained in my previous order, a choice of law analysis
involves a three-part "government interest" test.
McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 87-88
(2010) (internal citations and quotation marks omitted).
First, the court determines whether there are material
differences between the relevant law of each of the
potentially affected jurisdictions. Id. Second, if
there is a difference, the court examines the interests of
each jurisdiction in the application of its own law.
Id. Third, the court "evaluates and compares
the nature and strength of the interest of each jurisdiction
in the application of its own law to determine which
state's interest would be more impaired if its policy
were subordinated to the policy of the other state."
Id. Concerning California's choice of law rules,
the Ninth Circuit has said that "with respect to
regulating or affecting conduct within its borders, the place
of the wrong has the predominant interest." Mazza v.
Am. Honda Motor Co., 666 F.3d 581, 593 (9th Cir. 2012).
California considers the "place of the wrong" to be
the state where the last event necessary to liability
previously analyzed the material differences between
California and Rhode Island law relevant to Cover's
claims, including differences in privity requirements,
statutes of limitation, and available damages. Dkt. No. 67. I
examined each state's interest in applying its own laws
and determined that the application of Rhode Island law was
appropriate. I noted that pursuant to Mazza, the
last events necessary for triggering liability, in this case
"the communication of ...