United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS 
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
filed a class-action complaint against Defendant Whirlpool
Corporation. The Plaintiffs allege causes of action related
to Whirlpool's "AquaLift" oven self-cleaning
technology. Whirlpool moved to dismiss some of the counts for
failure to state a claim. For the reasons stated below, the
Court will grant the motion in part and deny it in part.
people from six states brought suit against Whirlpool: Toby
Schechner and Barbara Barnes from Florida; Laura Bliss from
Michigan; Kathleen Jordan (she has already voluntarily
dismissed her case) and Louise Miljenovic from New Jersey;
Kathryn Limpede and Candace Oliarny from Idaho; Beverly
Simmons from New Mexico; and Richard Thome and Mary Ellen
Thome from Arizona. They allege 12 causes of action related
to Whirlpool's AquaLift system, that arise under (1)
Magnuson-Moss Warranty Act (MMWA) - Written Warranty, 15
U.S.C. § 2301; (2) MMWA - Implied Warranty, 15 U.S.C.
§ 2301; (3) Breach of Contract; (4) Breach of UCC
Express Warranty; (5) Breach of UCC Implied Warranty of
Merchantability; (6) Unjust Enrichment; (7) Michigan Consumer
Protection Act (MCPA), M.C.L.A. § 445.902; (8) Florida
Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat.
§ 501.204; (9) New Jersey's Consumer Fraud Act
(NJCFA), N.J.S.A. § 56:8-1; (10) Arizona Consumer Fraud
Act (ACFA), Ariz. Rev. Stat. § 44-1522; (11) Idaho
Consumer Fraud Act (ICFA), Idaho Code § 48-603; and (12)
New Mexico Unfair Trade Practices Act (NMUPA), New Mexico
Statute § 57-12-3. Whirlpool's motion to dismiss
Rule of Civil Procedure 12(b)(6) provides for dismissal of a
complaint that fails to state a claim upon which relief can
be granted. When evaluating a claim under Rule 12(b)(6), the
Court views the complaint in the light most favorable to the
plaintiff, presumes the truth of all well-pled factual
assertions, and draws every reasonable inference in favor of
the non-moving party. Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
But "the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The Court may only grant a 12(b)(6) motion
to dismiss if the allegations are not "sufficient
'to raise a right to relief above the speculative level,
' and to 'state a claim to relief that is plausible
on its face.'" Hensley Mfg. v. ProPride,
Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). If "a cause of action fails as a matter of law,
regardless of whether the plaintiff's factual allegations
are true or not, " then the Court must grant dismissal.
Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005
(6th Cir. 2009).
Breach of Contract Claim
outset, the Court must address a threshold question: whether
privity of contract exists between the Plaintiffs and
Whirlpool. A contract requires an "offer, acceptance,
consideration, and sufficient specification of essential
terms." See, e.g., St. Joe Corp. v.
McIver, 875 So.2d 375, 381 (Fla. 2004). Privity of
contract exists between contracting parties and intended
beneficiaries. See Montgomery v. Kraft Foods Glob.,
Inc., No. 1:12-CV-00149, 2012 WL 6084167, at *13 (W.D.
Mich. Dec. 6, 2012), aff'd, 822 F.3d 304 (6th
intent of the contracting parties determines whether a
third-party beneficiary is intended or incidental. See,
e.g., Schmalfeldt v. N. Pointe Ins. Co., 670
N.W.2d 651, 655 (Mich. 2003). If the contracting parties
"have undertaken to give or do something directly to or
for" a third party, then the third party becomes an
intended beneficiary. Montgomery, 2012 WL 6084167,
at *18. And if the contracting parties have not done so, then
the third party is an incidental beneficiary and lacks
privity of contract. Id. "It is axiomatic in
the law of contract that a person not in privity cannot sue
on a contract." DAFCO LLC v. Stewart Title Guar.
Co., 331 P.3d 491, 496 (Idaho 2014). Thus, "only
intended, rather than incidental, third-party beneficiaries
may sue when a contractual promise in their favor has been
breached." Montgomery, 2012 WL 6084167, at *18.
the complaint alleges no facts to show that Whirlpool formed
a contract with the Plaintiffs. Plaintiffs allege that they
bought their ovens from third-party retailers, not directly
from Whirlpool. Am. Compl. ¶¶ 14, 19, 24, 30, 37,
42, 48, 54, 58, ECF No. 5. Therefore "[n]o privity of
contract exists between [Plaintiffs], who [bought] from a
retailer, and [Whirlpool] who has not sold directly to the
consumer." See Montgomery, 2012 WL 6084167, at
contend, however, that they are the intended beneficiaries of
any contract between Whirlpool and its retailers. The
argument fails. Plaintiffs do not plead facts to identify the
specific contract to which they claim privity. And
Plaintiffs' allegations fail to show that Whirlpool and
the retailers "intended in entering their contract to
directly benefit" Plaintiffs. See Id. at
*13-14. Moreover, Plaintiffs muster no authority to support
the proposition that an end-user consumer is an intended
beneficiary to a contract between a remote manufacturer and a
Plaintiffs rely on a series of contradictory or inapposite
cases. See Resp. 34-35, ECF No. 23. The most
relevant case Plaintiffs cite to support their
intended-beneficiary theory, Caretta Trucking, Inc. v.
Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1030 (Fla.
Dist. Ct. App. 1994), involves a consumer who purchased a
yacht from a manufacturer. The purchaser sued the
manufacturer and a company that had been hired to paint the
yacht. Id. The purchaser alleged he was the intended
beneficiary of the contract between the manufacturer and
painting company. Id. The Caretta court
held that the purchaser lacked privity of contract with the
parties because the manufacturer and paint company had not
"expressly intended their contract benefit Caretta
directly." Id. Thus, the holding in
Caretta stands for the exact opposite proposition
asserted by Plaintiffs here.
Plaintiffs argue that a determination of privity is
premature. Plaintiffs cite three cases in which courts
declined to rule on privity in resolving motions to dismiss.
But each case is distinguishable. In Date, an
unresolved choice-of-law issue led to the court's
decision not to address privity. Date v. Sony Elecs.,
Inc., No. 07-CV-15474, 2010 WL 3702599, at *8 (E.D.
Mich. Sept. 16, 2010). The Date court had not yet
determined which state law governed-New York or California.
If New York law applied, then a lack of privity would have
been "fatal to Plaintiffs' express warranty
claims." Id. Under those uncertain
circumstances, the court declined to address privity.
Yvon, the court declined to address privity because
the complaint "[did] not state that either or both of
defendants actually sold [a] boat to plaintiff."
Yvon v. Baja Marine Corp., 495 F.Supp.2d 1179, 1183
(N.D. Fla. 2007). The Yvon court determined that
"whether there was or was not privity is a factual
question that cannot properly be resolved on the instant
motion to dismiss." Id. Similarly, in
Azek, the court declined to address privity because
the plaintiffs had "alleged sufficient facts to raise a
question of fact concerning whether Plaintiffs and Defendant
[were] in privity." In re AZEK Bldg. Prod., Inc.,
Mktg. & Sales Practices Litig., 82 F.Supp.3d 608,
618 (D.N.J. 2015).
though, unlike in Date, the Court faces no
unresolved choice-of-law issues to hamper the analysis of
privity. And no question of fact regarding privity exists.
Each Plaintiff alleges they bought their oven from a
third-party retailer, not from Whirlpool. Am. Compl.
¶¶ 14, 19, 24, 30, 37, 42, 48, 54, 58, ECF No. 5.
And no Plaintiff alleges a specific contract between
Whirlpool and the retailers with the express intent to
directly benefit Plaintiffs. Unlike in Yvon and
Azek, Plaintiffs here have not alleged a factual
question of privity; the Court may resolve the issue as a
matter of law. Because the Plaintiffs have pleaded
insufficient facts to establish privity of contract between
Whirlpool and the Plaintiffs, the Court will dismiss with
prejudice Plaintiffs' breach of contract claim.
allege-and Whirlpool moves to dismiss-four warranty-based
causes of action: breach of UCC express warranty, breach of
UCC implied warranty, breach of MMWA written warranty, and
breach of MMWA implied warranty.
UCC Warranty Claims
argues that the Court should dismiss the UCC express and
implied warranty claims of Barnes, Simmons, Oliarny, and the
Thomes for lack of pre-suit notice. State law governs
Plaintiffs' express and implied warranty claims. See
In re Ford Motor Co. Speed Control Deactivation Switch Prod.
Liab. Litig., No. MDL 1718, 2007 WL 2421480, at *6 (E.D.
Mich. Aug. 24, 2007) ("[W]arranty claims asserted by the
Florida, Texas and Illinois Plaintiffs are governed by those
states' UCC statutes."); see also Schultz v.
Tecumseh Prod., 310 F.2d 426, 428 (6th Cir. 1962)
(holding that under Michigan conflict-of-law rules, "the
law of the place of the sale determines the extent and effect
of the warranties which attend the sale"); UCC §
1-105 cmt. 2 (stating that the UCC "applies to any
transaction which takes place in its entirety in a state
which has enacted" the Code). As a result, the Court
will apply the law of the state where each Plaintiff
purchased her oven.
Florida, Arizona, Idaho, and New Mexico law, a buyer who
seeks to assert a warranty claim "must within a
reasonable time after he discovers or should have discovered
any breach notify the seller of breach or be barred from any
remedy." Fla. Stat. § 672.607(3)(a); Ariz. Rev.
Stat. § 47-2607(C)(1); Idaho Code § 28-2-607(3)(a);
N.M. Stat. § 55-2-607(3). Legally sufficient notice
"let[s] the seller know that the transaction is still
troublesome and must be watched." See U.C.C.
§ 2-607, cmt. 4; see, e.g., Malkamaki v.
Sea Ray Boats, Inc., 411 F.Supp.2d 737, 742 (N.D. Ohio
alleges she bought her Whirlpool oven in June 2013 and first
tried to use the self-clean feature on her appliance in
November 2013. Am. Compl. ¶¶ 118, 120, ECF No. 5.
She was dissatisfied with the results because "the
AquaLift did not effectively loosen the hardened debris,
stains and cooking grease[.]" Id. ¶ 120.
Yet she did not submit an online complaint to Whirlpool until
June 2016-two and a half years after she first noticed a
problem. Id. ¶ 123. The oven's written
warranty provided that both the express and implied
warranties expired one year from purchase. See Def.
Exh. 2(B), ECF No. 11-3.
courts generally require a buyer to provide notice of a
product defect within 18 months of discovering the defect.
See In Re Vincent, 10 B.R. 549, 553 (Bankr. M.D. Fla
1981). Barnes provided notice two and a half years after she
noticed a problem and three years after she purchased the
oven. After taking the facts Barnes asserts as true, her
claim cannot succeed as a matter of law due to untimely
notice. The Court will dismiss without prejudice Barnes's
express and implied UCC warranty claims.
bought her oven on August 5, 2015, Am. Compl. ¶ 160, ECF
No. 5, and first noticed a problem with the self-cleaning
technology "within a few weeks of purchase."
Id. ¶ 163. Simmons does not allege she provided
any individual notice to Whirlpool of the defect in the
self-cleaning oven. Id. ¶¶ 160-66.
Accordingly, the Court will dismiss without prejudice
Simmons's express and implied UCC warranty claims.
first noticed a problem with her oven's self-cleaning
system "[i]n or around March 2016." Id.
¶ 156. She alleges that she "tried to have the oven
serviced" in or around April 22, 2016, "[i]n
accordance with the terms of Whirlpool's 'One Year
Limited Warranty." Id. ¶ 157. And again in
August, 2016, another service company "paid a visit to
Ms. Oliarny's home to address the inoperable Aqualift
issue." Id. ¶ 158.
alleges that she sought warranty service, but appears to have
contacted the retailer or another service company, not
Whirlpool. She does not allege that she provided individual
notice to Whirlpool or that she requested warranty service
from Whirlpool. Plaintiffs' general assertion that
"repair attempts by an authorized dealer fall within the
realm of proper notice, " Mountain-Aire
Refrigeration & Air Conditioning Co. v. Gen. Elec.
Co., 703 P.2d 577, 580 (Ariz.Ct.App. 1985), is
unavailing because Oliarny does not allege that the service
companies were Whirlpool's authorized agents and, in any
event, Idaho law applies to Oliarny's claim, not Arizona
law. As a result, the Court will dismiss without prejudice
Oliarny's express and implied UCC warranty claims.
Thomes first noticed a problem with the self-clean feature on
their oven in November 2014. Am. Compl. ¶ 140, ECF No.
5. But the Thomes fail to allege that they provided any
individual notice to Whirlpool that the product was
troublesome. See Id. ¶¶ 138-44. Although
in Arizona filing a lawsuit can-by itself-serve as notice,
the Thomes's suit provided insufficient notice because 18
months had elapsed from the time they discovered the defect
to when they filed the suit. Under Arizona law, this is an
unreasonable delay. See Burge v. Freelife Int'l,
Inc., No. CV09-1159-PHX-JAT, 2009 WL 3872343, at *6 (D.
Ariz. Nov. 18, 2009) (dismissing buyer's warranty claim
because plaintiff waited 17 months to provide notice after
discovering defect because "such delays are unreasonable
as a matter of law."). The Court will dismiss without
prejudice the Thomes's express and implied UCC warranty
argue that-regardless of whether they provided individualized
notice-Whirlpool had actual notice that the AquaLift system
was troublesome. According to Plaintiffs, the demand letter
sent to Whirlpool three months before filing suit served as
notice for the entire class. Plaintiffs cite to Seroyer
v. Pfizer, Inc., 991 F.Supp. 1308, 1314-15 (M.D. Ala
1997) to support their position. But Seroyer does
not bear the weight of Plaintiffs' argument. The
Seroyer court noted only that plaintiffs intended
their demand letter to serve as pre-suit notice. Id.
The court did not, however, address the question of whether
plaintiffs' demand letter actually satisfied the legal
requirement of notice, nor was that question before the
court. The notice requirement creates "individualized
questions of fact" that cannot be met by a class-action
demand letter. Cohen v. Implant Innovations, Inc.,
259 F.R.D. 617, 642 (S.D. Fla. 2008) ("The buyer must
notify the seller that the goods are nonconforming in order
to recover damages for breach of either an express or implied
warranty."). Plaintiffs' pre-suit demand letter
failed to provide individualized notice and thus failed to
provide sufficient legal notice to Whirlpool.
also argue that Whirlpool received notice from
"countless dissatisfied consumers [who] complained
directly to Whirlpool." Resp. 31, ECF No 23. The
argument is without merit. The notice requirement is "a
highly individualized factual determination" that cannot
be established by pointing to complaints from other
customers. See, e.g., Cohen, 259 F.R.D. at
642 (holding that, to meet the notice requirement, "each
putative class member would have to show that he or she gave
the defendant notice within a reasonable time").
UCC Express ...