United States District Court, E.D. Michigan, Southern Division
OPNION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS (DOC. 11)
CARAM STEEH UNITED STATES DISTRICT JUDGE.
the court is Defendant's motion to dismiss
Plaintiff's amended complaint. The court heard oral
argument on May 20, 2019, and took the matter under
advisement. For the reasons stated below, Defendant's
motion is denied.
Advanced Laparoscopic Surgery, P.C. (“ALS”), is a
medical practice in Troy, Michigan, that specializes in
surgery for weight loss, hernia, reflux, and gallbladder
conditions. Plaintiff is run by David M. Chengelis, M.D., a
board-certified surgeon. Defendant Cynosure, Inc., develops
and markets medical devices.
summer of 2018, Cynosure approached ALS to pitch its
SculpSure device, which was marketed as a painless
fat-reducing procedure. Doc. 9 at ¶¶ 24-25.
Cynosure's representative told Dr. Chengelis that
SculpSure offered a one-time, twenty-five-minute procedure
that would reduce fat by 24%. Id. Cynosure's
representative stated that Cynosure “had a robust
marketing program that would drive patient leads to
ALS.” Id. at ¶ 26. The representative
also told Dr. Chengelis that ALS would be the only practice
“in the area” with a SculpSure device.
Id. at ¶ 27. According to Cynosure, the device
would “pay for itself quickly because SculpSure would
provide 4-5 leads per month and that within six months, ALS
would want an additional SculpSure device.”
Id. at ¶ 28.
13, 2018, ALS purchased a SculpSure device for $175, 750. ALS
attached the purchase agreement, a one-page document, to the
complaint. See Doc. 9 at ¶ 30.
alleges that after it received the SculpSure device,
“interest in the procedure was absolutely
non-existent.” Id. at ¶ 32. ALS contends
that Cynosure never hosted a SculpSure “kick-off
party” at ALS as promised, nor did it direct patients
to ALS. Id. at ¶¶ 33-34. ALS further
alleges that Cynosure sold SculpSure devices to at least
eight medical practices in area communities such as Berkley,
Birmingham, Troy, and Southfield. Id. at ¶ 35.
Chengelis and members of his staff tested the SculpSure by
undergoing the procedure. Dr. Chengelis found the procedure
to be “excruciatingly painful, ” as did his staff
members. Doc. 9 at ¶¶ 37-39. ALS alleges that no
one who underwent the SculpSure procedure experienced any fat
loss. Id. at ¶ 42. Given the level of pain he
experienced, as well as the lack of results, Dr. Chengelis
alleges that he cannot ethically recommend that his patients
undergo the SculpSure procedure. Id. at ¶ 43.
ALS sought to return the SculpSure device and obtain a
refund, but Cynosure refused.
filed its complaint against Cynosure in state court on
December 7, 2018. Cynosure removed the case based upon
diversity jurisdiction. In its complaint, ALS alleges the
following causes of action: Count I, breach of express and
implied warranty; Count II, revocation of acceptance; and
Count III, fraud in the inducement. Doc. 9 (amended
complaint). Cynosure seeks dismissal of ALS's amended
complaint pursuant to Federal Rule of Civil Procedure
Standard of Review
survive a motion to dismiss, the plaintiff must allege facts
that, if accepted as true, are sufficient “to raise a
right to relief above the speculative level” and to
“state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). See also Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949-50 (2009). “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.”
Id. at 1949. See also Hensley Manuf. v.
Propride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).
Breach of Warranty and Revocation of Acceptance
contends that ALS's breach of warranty and revocation of
acceptance claims must fail because Cynosure disclaimed all
warranties in the purchase agreement. See M.C.L.
§ 440.2316. Under Michigan law, a seller may disclaim
implied warranties if the disclaimer is in writing and is
conspicuous. Id. A buyer may revoke acceptance of a
“unit whose nonconformity substantially impairs its
value to him.” M.C.L. § 440.2608. Revocation of
acceptance is a remedy for breach of warranty ...