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Livingston v. Trane Inc.

United States District Court, D. New Jersey

January 31, 2019

LOUISE LIVINGSTON, MELISSA RAINEY, DAVID SMITH, RAYMOND SABBATINE, PETER GOLDIS, and BILL COLBERT, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
TRANE INC., Defendant.

          OPINION

          ESTHER SALAS, U.S.D.J.

         Before the Court is Defendant Trane Inc.'s (“Defendant's” or “Trane's”) motion to dismiss the Complaint of Plaintiffs Louise Livingston, Melissa Rainey, David Smith, Raymond Sabbatine, Peter Goldis, and Bill Colbert (collectively, “Plaintiffs”) under Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6). (D.E. No. 14). The Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1332(d). After considering the parties' submissions, [1] the Court reaches its decision without oral argument. See D.N.J. Civ. R. 78.1(b). For the following reasons, the Court GRANTS-in-part and DENIES-in-part Defendant's motion to dismiss.

         I. Background

         Plaintiffs bring this putative class action to recover damages arising from Defendant's allegedly defective HVAC systems, including air conditioners and heat pumps (“systems”). (D.E. No. 1, Complaint (“Compl.”) ¶ 1). The Court will “set out facts as they appear in the Complaint . . . .” See Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012). According to the Complaint, Defendant's systems contain defective thermal expansion valves (“TXVs”). (Compl. ¶ 1). The defect arises from a chemical rust inhibitor, Ryconox, used in manufacturing by one of Trane's suppliers from mid-2013 through at least late 2014. (Id.). Ryconox “is incompatible with the oil and/or refrigerants used in the . . . systems and creates a sticky substance that collects on the TXV, leading to degraded performance and . . . failure of [the systems].” (Id.).

         Plaintiffs assert that Defendant “discovered the defect by the early summer of 2014 (and likely much earlier) and quickly determined that the root cause was the rust inhibitor.” (Id. ¶ 2). Nevertheless, Defendant “continued to sell [the] . . . systems containing the rust inhibitor without disclosing it so that Trane could offload its inventory . . . onto unsuspecting consumers.” (Id.). “Thousands of . . . systems failed within months or just a few years of purchase due to this undisclosed defect, and tens of thousands of the systems contain the defect, which will impact their performance and value for years to come.” (Id. ¶ 3). Furthermore, “[e]ven where the contamination has not yet resulted in a complete TXV or system failure, this known defect is likely to cause a failure to some point in the future.” (Id. ¶ 5).

         As the basis for their legal claims, Plaintiffs allege that Defendant extended an express “limited warranty against manufacturing defects” with respect to “all parts” in its systems. (Id. ¶¶ 34 & 135). Plaintiffs also allege that Defendant expressly warranted that it would “provide adequate repairs, ” such as by “replac[ing] . . . parts, ” required as a result of manufacturing defects. (Id. ¶¶ 4 & 6). Both of these alleged promises are rooted in a written warranty agreement issued to Plaintiffs (the “Express Warranty”).[2] Defendant, Plaintiffs allege, has not complied with its obligations under the Express Warranty. (See, e.g., id. ¶ 4). Instead, for instance, Defendant “has been instructing service personnel to inject the defective systems” with a harmful chemical called MJ-X. (Id.). MJ-X is “highly acidic, ” “causes premature wear, ” and “damages and devalues the . . . systems.” (Id.). In contrast, “[a]n adequate repair” of the defective systems would “require[] at least replacing the contaminated oil, TXV, and filters . . . and in some cases may require replacing the entire compressor, ” all “as required by” the Express Warranty. (Id. ¶¶ 33-35). (“Injecting MJ-X is far simpler and cheaper than performing an adequate warranty repair.” (Id.).)

         Consequently, Plaintiffs bring this lawsuit on behalf of themselves and all similarly-situated individuals. (Id. ¶ 84). Generally, Plaintiffs bring state statutory and common-law claims for breach of warranty, fraud, and unjust enrichment; and a federal claim based on the state-law claims for breach of warranty. (See generally Id. ¶¶ 96-334). Plaintiffs seek to certify a nationwide class for their claims under the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. (Id. ¶ 85). Plaintiffs also seek to certify subclasses (“State Sub-Classes”) for their common-law and state-statutory claims under North Carolina, Pennsylvania, Wisconsin, Illinois, Massachusetts, and Kentucky law. (Id. ¶ 86). The individual plaintiffs representing those classes are described below in the context of their respective warranty claims. Plaintiffs “seek all remedies as allowed by law.” (Id. ¶ 140).

         As noted above, Defendant has moved to dismiss the Complaint under Rules 8(a), 9(b), and 12(b)(6) of the Federal Rules of Civil Procedure. (See D.E. No. 14). The Court addresses Defendant's arguments in the analysis of Plaintiffs' claims below.

         II. Legal Standards

         A. Federal Rule of Civil Procedure 12(b)(6)

         Federal Rule of Civil Procedure 8(a)(2) requires that a plaintiff's complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” But in order to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff's complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556).

         Pursuant to the pleading regime established by Twombly and Iqbal, the Court of Appeals for this Circuit has promulgated a three-pronged test of the sufficiency of a complaint. See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the Court considers “the elements a Plaintiff must plead to state a claim.” Id. Second, the Court abstracts from mere legal conclusions contained in the complaint, which “are not entitled to an assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 664). That is, a complaint's “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” Iqbal, 556 U.S. at 678, cannot “nudge[] [a plaintiff's] claims across the line from conceivable to plausible, ” Twombly, 550 U.S. at 570. Finally, the Court considers the complaint's remaining well-pleaded factual allegations and “determines whether they plausibly give rise to an entitlement for relief.” Santiago, 629 F.3d at 130 (quoting Iqbal, 556 U.S. at 679). Throughout this process, the Court is “required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant.” See, e.g., McDermott v. Clondalkin Grp., Inc., 649 Fed.Appx. 263, 266 (3d Cir. 2016).

         B. Federal Rule of Civil Procedure 9(b)

         Federal Rule of Civil Procedure 9(b) (“Rule 9(b)”) states that when “alleging fraud . . . a party must state with particularity the circumstances constituting fraud . . . .” “In order to satisfy Rule 9(b), a complaint must provide all of the essential factual background that would accompany the first paragraph of any newspaper story-that is, the who, what, when, where and how of the events at issue.” United States v. Eastwick Coll., 657 Fed.Appx. 89, 93 (3d Cir. 2016) (quoting In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 217 (3d Cir. 2002)) (emphasis added) (internal quotation marks omitted). In other words, a complaint “must state the circumstances of . . . alleged fraud with sufficient particularity to place the defendant on notice of the ‘precise misconduct with which [it is] charged.'” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (quoting Lum v. Bank of Am., 361 F.3d 217, 223-224 (3d Cir. 2004)) (emphasis added).

         To exactly which claims Rule 9(b) applies is not conclusively settled. See, e.g., In re: Elk Cross Timbers Decking Mktg., No. 15-0018, 2015 WL 6467730, at *9 (D.N.J. Oct. 26, 2015). The Court will address this issue in the context of the relevant counts, below.

         III. Discussion

         A. Count I: Violation of the Magnuson-Moss Warranty Act

         Plaintiffs bring a claim under the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. (“MMWA”), on behalf of themselves, the nationwide Class, and the State Sub-Classes. (Compl. ¶¶ 96-107). The MMWA “provides a private right of action in federal court for consumers who are ‘damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation . . . under a written . . . [or] implied warranty.'” Argabright v. Rheem Mfg. Co., 201 F.Supp.3d 578, 600 (D.N.J. 2016) (quoting 15 U.S.C. § 2310(d)(1)). MMWA “claims based on breaches of express and implied warranties under state law depend upon those state law claims.” Avram v. Samsung Elecs. Am., Inc., No. 11-6973, 2013 WL 3654090, at *14 (D.N.J. July 11, 2013) (quoting Cooper v. Samsung Elecs. Am., Inc., No. 07-3853, 2008 WL 4513924, at *6 (D.N.J. Sept. 30, 2008)); see also Cooper v. Samsung Elecs. Am., Inc., 374 Fed.Appx. 250, 254 (3d Cir. 2010).

         Plaintiffs' MMWA claim is based on Defendant's alleged breaches of express and implied warranties under state law. (See, e.g., Compl. ¶¶ 101-105). Plaintiffs have complied with the notice requirement of the MMWA and have adequately stated claims for many of those alleged breaches of express and implied warranties. (See infra, sections III.M-III.V). Plaintiffs' MMWA claim, therefore, may proceed to that extent. See, e.g., Granillo v. FCA U.S. LLC, No. 16-0153, 2016 WL 9405772, at *16 (D.N.J. Aug. 29, 2016) (permitting state-law breach-of-warranty claims to proceed under the MMWA); Morris v. BMW of Am., LLC, No. 13-4980, 2014 WL 793550, at *11 (D.N.J. Feb. 26, 2014) (same); Avram, 2013 WL 3654090, at *14 (same).

         Accordingly, the Court DENIES Defendant's motion to dismiss Count I to the extent detailed below. (See infra, sections III.M-III.V).

         B. Count II: Negligent Misrepresentation

         Plaintiffs bring negligent misrepresentation claims on behalf of themselves and their respective State Sub-Classes. (Compl. ¶¶ 108-16). They allege that “Defendant ha[d] and continue[s] to have a duty to disclose . . . the actual quality of [the] systems and the defect alleged herein” but that “Defendant negligently and/or recklessly misrepresented, omitted and concealed from Plaintiffs and their respective State Sub-Classes material facts relating to the quality of [the] systems.” (Id. ¶¶ 110-11). Defendant contends that Count II should be dismissed for failure to comply with Rule 9(b). (See Def. Mov. Br. at 29-34). The Court concurs.

         As suggested above, it is not conclusively settled whether “the Third Circuit . . . would apply Rule 9(b) to all . . . negligent misrepresentation causes of action.” See In re Elk Cross Timbers, 2015 WL 6467730, at *9 (emphasis added). But the weight of legal authority makes clear that Rule 9(b) applies to at least some negligent misrepresentation claims. See, e.g., Travelers Indem. Co. v. Cephalon, Inc., 620 Fed.Appx. 82, 86 n.3 (3d Cir. 2015) (“[The] claims for intentional and negligent misrepresentation . . . must be pled with sufficient particularity under Rule 9(b).”); Lawmen Supply Co. of N.J., Inc. v. Glock, Inc., No. 17-6166, 2018 WL 3201790, at *16 (D.N.J. June 29, 2018) (dismissing a negligent misrepresentation claim for failure to comply with Rule 9(b)); Semeran v. Blackberry Corp., No. 15-0750, 2016 WL 406339, at *5 (D.N.J. Feb. 2, 2016) (same); Inventory Recovery Corp. v. Gabriel, No. 11-1604, 2012 WL 2990693, at *6 (D.N.J. July 20, 2012) (same). But see, e.g., Beals v. Bank of Am., No. 10-5427, 2011 WL 5415174, at *13 (D.N.J. Nov. 4, 2011) (“Negligent misrepresentation does not have a heightened pleading standard.”).

         Regarding Rule 9(b)'s application to negligent misrepresentation claims, the Court of Appeals has observed that “the reputational concerns that animate Rule 9(b) with respect to a defendant accused of fraud are not implicated when a defendant stands accused of nothing more than negligence.” In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256, 274 (3d Cir. 2006) (emphases added). And “where the plaintiff has exercised care in differentiating asserted negligence claims from fraud claims and in delineating the allegations that support the negligence cause of action as distinct from the fraud, the determination [whether Rule 9(b) applies] is straightforward.” Id. at 273 (emphases added).

         Here, in Count II, Plaintiffs alternatively allege reckless misrepresentation and accuse Defendant of “concealments” and having “concealed from Plaintiffs.” (See Compl. ¶¶ 111-12). And they “repeat and reallege the allegations contained above” in the Complaint. (Id. ¶ 108). Those allegations include, for instance, that Defendant “knowingly sold . . . defective systems” and “foisted significant repair costs onto consumers.” (Id. ¶ 3 (emphasis added)). These allegations do not amount to “nothing more” than negligence-they “sound[] in fraud, ” see Travelers Indem. Co., 620 Fed.Appx. at 85-and Count II does not “delineat[e] the allegations that support the negligence cause of action as distinct from the [alleged] fraud.” See Suprema Specialties, 438 F.3d at 274. The Court, therefore, rules that Rule 9(b) applies to Count II. See, e.g., Dist. 1199P Health & Welfare Plan v. Janssen, L.P., 784 F.Supp.2d 508, 532 (D.N.J. 2011).

         For at least two reasons, the Court will dismiss Count II under Rule 9(b). First, “[i]n order to satisfy Rule 9(b), a complaint must provide . . . the . . . when . . . of the events at issue.” Eastwick, 657 Fed.Appx. at 93 (emphases added) (quoting Rockefeller, 311 F.3d at 217). Here, Plaintiffs never allege when Defendant “negligently and/or recklessly misrepresented . . . and concealed . . . facts relating to the quality of [the] systems” or when it “had a duty to disclose . . . the defect alleged.” (See Compl. ¶¶ 110-11).[3] The timing is crucial to Count II-which affirmatively alleges that Defendant “concealed” (see Id. ¶ 111)-because Plaintiffs also allege that Defendant only discovered the defect “by the early summer of 2014” (see Id. ¶ 2). The Complaint does not, for instance, allege “with particularity” that Defendant had knowledge of the defect at the time Plaintiffs Colbert, Goldis, Rainey, and Sabbatine purchased their systems before or during summer 2014. See Fed. R. Civ. P. 9(b); (Compl. ¶¶ 65, 71, 75 & 79). And the Court, anyway, cannot credit the allegation that Defendant had knowledge of the defect “by the early summer of 2014” (see Compl. ¶ 4) because the Complaint does not “set[] forth the facts upon which th[at] belief is founded.” See Zavala v. Wal-Mart Stores, Inc., 393 F.Supp.2d 295, 313 (D.N.J. 2005), aff'd sub nom. Zavala v. Wal Mart Stores Inc., 691 F.3d 527 (3d Cir. 2012).[4] Therefore, the “Complaint does not sufficiently allege facts showing that [Defendant] was aware of the alleged defects prior to the sales at issue in this litigation.” See Fishman v. Gen. Elec. Co., No. 12-0585, 2014 WL 1628369, at *4 (D.N.J. Apr. 23, 2014).[5]

         Second, “[i]n order to satisfy Rule 9(b), a complaint must provide . . . the . . . what. . . of the events at issue.” See Eastwick, 657 Fed.Appx. at 93 (emphases added). Plaintiffs assert that Defendant “concealed . . . material facts” and “failed to disclose the existence of the defect, ” yet do not specify which “material facts” or what “defect” they attempt to reference in those allegations. (See Compl. ¶¶ 111 & 114; see also Compl. ¶¶ 108-16).[6] The Complaint thus “fails to identify what [mis]representations were made”-and thus “how th[ose] alleged misrepresentations were material.” See Inventory Recovery Corp., 2012 WL 2990693, at *6 (emphasis added).

         Accordingly, the Court DISMISSES Count II as to Plaintiffs Colbert, Goldis, Rainey, and Sabbatine without prejudice. See, e.g., Lawmen Supply, 2018 WL 3201790, at *16 (dismissing a negligent misrepresentation claim for failure to comply with Rule 9(b)); Semeran, 2016 WL 406339, at *5 (same); Inventory Recovery Corp., 2012 WL 2990693, at *6 (same).

         Separately, “Plaintiffs concede” that “the Economic Loss Doctrine precludes Plaintiff Smith's and Plaintiff Livingston's negligent misrepresentation claim[s].” (See Pl. Opp. Br. at 20 n.19). Accordingly, the Court DISMISSES Count II as to Plaintiffs Smith and Livingston with prejudice.

         C. Count III: Unjust Enrichment

         Plaintiffs bring unjust enrichment claims on behalf of themselves and their respective State Sub-Classes, alleging that Defendant “should be required to pay restitution.” (Compl. ¶¶ 117- 21). Generally, unjust enrichment is an “equitable remedy.” Powers v. Lycoming Engines, 328 Fed.Appx. 121, 126 (3d Cir. 2009). Under the law of North Carolina, Pennsylvania, Illinois, and Massachusetts, that equitable remedy is not available to plaintiffs who have an adequate remedy at law. See, e.g., Embree Constr. Grp., Inc. v. Rafcor, Inc., 411 S.E.2d 916, 920 ( N.C. 1992) (quoting Jefferson Standard Life Ins. Co. v. Guilford Cty, S.E.2d 430, 434 ( N.C. 1945)); Vista Healthplan, Inc. v. Cephalon, Inc., No. 06-1833, 2015 WL 3623005, at *28 (E.D. Pa. June 10, 2015) (citing Meehan v. Cheltenham Twp., 189 A.2d 593, 595 (Pa. 1963)) (“[U]njust enrichment is not available where an adequate remedy at law exists.”); Nesby v. Country Mut. Ins. Co., 805 N.E.2d 241, 243 (Ill.App.Ct. 2004) (citing Season Comfort Corp. v. Ben A. Borenstein Co., 655 N.E.2d 1065, 1071 (Ill.App.Ct. 1995)) (“Because it is an equitable remedy, unjust enrichment is only available when there is no adequate remedy at law.”); Morrissey v. New England Deaconess Ass'n-Abundant Life Cmtys, Inc., 57 N.E.3d 1066, at *5 (Mass. App. Ct. 2016) (citing Santagate v. Tower, 64 Mass.App.Ct. 324, 329 (2005)).

         Here, the Complaint does not allege that Plaintiffs do not have an equitable remedy at law and, in fact, has arguably suggested the opposite. (See, e.g., Compl. ¶ 1 (“This lawsuit seeks to recover damages . . . .); id. ¶ 115 (alleging that Plaintiffs have “suffer[ed] damages and economic loss in an amount to be proven at trial”); id. ¶ 137 (affirming that the Express Warranty “is a contract” under which Plaintiffs seek to recover damages)); see also, e.g., SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prod., LLC, 137 S.Ct. 954, 964 (2017) (distinguishing a “remedy of damages, ” which “seeks to compensate the victim for its loss, ” from “disgorgement of ill-gotten profits, ” an equitable remedy). Nor does the Complaint appear to “to assert claims in the alternative for unjust enrichment.” (See Pl. Opp. Br. at 40). Apparently to the contrary, each Count, including Count III, “repeat[s] and reallege[s] the allegations contained above.” (See, e.g., Compl. ¶ 117).[7]

         Similarly, under Wisconsin law, “[t]he doctrine of unjust enrichment does not apply where the parties have entered into a contract.” Cont'l Cas. Co. v. Wis. Patients Comp. Fund, 473 N.W.2d 584, 587 (Wis. Ct. App. 1991) (citing Watts v. Watts, 405 N.W.2d 303, 313 (Wis. 1987)). Here, Plaintiffs allege that the parties have entered into a contract-for instance, Plaintiffs cast their breach of express warranty claim under Count V as “Contract.” (See also, e.g., Compl. ¶¶ 1 & 137 (affirming that the Express Warranty “is a contract” under which Plaintiffs “seek[] to recover damages”); id. ¶ 6 (“Plaintiffs seek relief . . . for breach of contract . . . .”)). Therefore, Plaintiffs Colbert, Goldis, Livingston, Rainey and Smith have not stated a claim for which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

         Under Kentucky law, in contrast, the Court rules that Plaintiff Sabbatine has stated a claim. “To recover on a claim of unjust enrichment a plaintiff is required to prove following three elements: (1) benefit conferred upon [a] defendant at [a] plaintiff's expense; (2) a resulting appreciation of benefit by [the] defendant; and (3) inequitable retention of [that] benefit without payment for its value.” Superior Steel, Inc. v. Ascent at Roebling's Bridge, LLC, 540 S.W.3d 770, 777-78 (Ky. 2017) (internal quotation marks omitted).[8] First, Plaintiffs allege that they “confer[red] a direct benefit in the form of profits to [Defendant]” yet ended up with “defective systems.” (See Compl. ¶ 119). Second, Defendant “retained these benefits despite knowing the [systems] contained a material defect.” (Id.). Third, Defendant's continued “retention of the benefit . . . would be unjust and inequitable” (see Id. ¶ 121) because Defendant “kn[ew] the . . . systems purchased by Plaintiffs and Class members contained a material defect” (see Id. ¶ 119). Drawing “all reasonable inferences” in favor of, and construing the Complaint “in the light most favorable” to, Plaintiffs, see McDermott, 649 Fed.Appx. at 266, Plaintiffs' allegations “plausibly give rise to an entitlement for relief, ” see Iqbal, 556 U.S. at 679, under Kentucky law. See Superior Steel, 540 S.W.3d at 777-78.

         Accordingly, the Court DENIES Defendant's Motion to Dismiss Count III as to Plaintiff Sabbatine. And the Court GRANTS Defendant's Motion to Dismiss Count III as to Plaintiffs Colbert, Goldis, Livingston, Rainey and Smith without prejudice.

         D. Count IV: Breach of Implied Warranty of Merchantability

         Plaintiffs Colbert, Livingston, Rainey, Sabbatine, and Smith bring claims for breach of the implied warranty of merchantability on behalf of themselves and their respective State SubClasses. (Compl. ¶¶ 122-32).[9] For the reasons discussed below (see infra, sections III.M-III.V), the Court rules that Plaintiffs Colbert, Rainey, and Smith have stated a claim for breach of the implied warranty of merchantability under their respective states' laws and DENIES Defendant's Motion to Dismiss Count IV accordingly.

         Separately, “Plaintiffs concede” that their implied warranty claims under Count IV “as to Plaintiffs Sabbatine . . . and Livingston . . . may be dismissed for lack of privity.” (Pl. Opp. Br. at 38 n.2). Accordingly, the Court GRANTS Defendant's Motion to Dismiss Count IV as to Plaintiffs Sabbatine and Livingston with prejudice.

         E. Count V: Breach of Express Warranty (Contract)

         Plaintiffs bring claims for breach of express warranty on behalf of themselves and their respective State Sub-Classes. (Compl. ¶¶ 133-42). For the reasons discussed below (see infra, sections III.M-III.V), the Court rules that Plaintiffs Colbert, Livingston, Rainey, Sabbatine, and Smith have stated claims for breach of express warranty under their respective states' laws and DENIES Defendant's Motion to Dismiss Count V.

         F. Count VI: Fraudulent Concealment

         Plaintiffs bring fraudulent concealment claims on behalf of themselves and their respective State Sub-Classes. (Compl. ¶¶ 143-54). “[A] plaintiff asserting a claim for fraudulent concealment must satisfy the heightened pleading standards under Federal Rule of Civil Procedure 9(b).” Anglin v. Anglin, No. 16-4049, 2018 WL 1278304, at *6 (D.N.J. Mar. 12, 2018). Like Count II, Count VI must be dismissed under Rule 9(b) for at least two reasons. First, Plaintiffs never allege when, see Eastwick, 657 Fed.Appx. at 93, Defendant “intentionally suppressed and concealed the defect” or “had a duty to disclose that its . . . systems were defective.” (See, e.g., Compl. ¶¶ 145 & 149; see also supra, Section III.B). The when is crucial to Plaintiffs' fraudulent concealment claim because Plaintiffs allege that Defendant only “discovered the defect by the early summer of 2014.” (See Compl. ¶ 4).[10] The complaint does not allege with particularity that Defendant had knowledge of the defect at the time Plaintiffs Colbert, Goldis, Rainey, and Sabbatine purchased their systems before or during summer 2014. (See Compl. ¶¶ 65, 71, 75 & 79); see also Silipena v. Am. Pulverizer Co., No. 16-0711, 2017 WL 1135600, at *3 (D.N.J. Mar. 27, 2017) (dismissing a fraudulent concealment claim that merely “state[d] in general terms that [the] [d]efendants ‘intentionally, willfully, and maliciously' concealed material defects”). Therefore, the “Complaint does not sufficiently allege facts showing that [Defendant] was aware of the alleged defects prior to the sales at issue in this litigation.” See Fishman, 2014 WL 1628369, at *4 (emphasis added); Weske v. Samsung Elecs. Am., Inc., No. 10-4811, 2012 WL 833003, at *5 (D.N.J. Mar. 12, 2012) (dismissing a fraudulent concealment claim because the “[p]laintiffs d[id] not provide sufficient factual allegations to establish [that the defendant] knew of [a] [d]efect prior to the sales at issue”).

         Second, “[i]n order to satisfy Rule 9(b), a complaint must provide . . . the . . . . what. . . of the events at issue.” Eastwick, 657 Fed.Appx. at 93 (emphases added). Plaintiffs assert that Defendant “intentionally suppressed and concealed the defect” and “Defendant knew or recklessly disregarded that its representations were false, ” yet do not specify what “defect” or which “representations” they are referring to in those allegations. (See Compl. ¶¶ 145 & 151; see also Compl. ¶¶ 143-54).[11] The Complaint thus “fails to identify what [mis]representations were made . . . and how th[ose] alleged misrepresentations were material.” See Inventory Recovery Corp., 2012 WL 2990693, at *6.

         Accordingly, the Court GRANTS Defendant's Motion to Dismiss Count VI as to Plaintiffs Colbert, Goldis, Rainey, and Sabbatine without prejudice. See, e.g., Anglin, 2018 WL 1278304, at *6 (dismissing a fraudulent concealment claim for failure to comply with Rule 9(b)); Plonka v. H&M Int'l Transp., No. 16-9539, 2017 WL 4516474, at *3 (D.N.J. Oct. 10, 2017) (same); Weske, 2012 WL 833003, at *5 (same).

         Separately, “Plaintiffs concede that the [Economic Loss Doctrine] precludes” the claims of Plaintiffs Smith and Livingston.” (Pl. Opp. Br. at 20 n.19). Accordingly, the Court GRANTS Defendant's Motion to Dismiss Count VI as to Plaintiffs Livingston and Smith with prejudice.

         G. Count VII: Violation of the North Carolina Unfair and Deceptive Trade Practices Act

         Plaintiff Rainey brings a claim for violation of the North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. §§ 75-1.1, et seq., on behalf of herself and the North Carolina State Sub-Class. (Compl. ¶¶ 155-63). In Count VI, Plaintiffs “brought a fraud claim outright;” they also brought this “section 75-1.1 claim [apparently] predicated on precisely the same alleged misrepresentations.” See Topshelf Mgmt., Inc. v. Campbell-Ewald Co., 117 F.Supp.3d 722, 731 (M.D. N.C. 2015). (Compare, e.g., Compl. ¶ 149 (recounting fraudulent concealment allegations), with Id. ¶ 160 (recounting North Carolina Unfair and Deceptive Trade Practices Act allegations)). Moreover, Plaintiffs' Section 75-1.1 claim is explicitly based on Defendant's having “concealed and failed to disclose” an alleged defect, which Plaintiffs call “deceptive and unconscionable.” (See Compl. ¶¶ 160 & 163). And a paragraph supporting Count VII “repeat[s] and reallege[s] the allegations contained above” in the Complaint, which include, for instance, allegations of fraudulent concealment. (See, e.g., id. ¶¶ 143-55). As a result, “Rule 9(b) applies to [Plaintiffs'] section 75-1.1 claim, which is based on [Plaintiff Rainey's] detrimental reliance on [Defendants'] alleged misrepresentations.” See Topshelf, 117 F.Supp.3d at 731-32; (see also Id. ¶¶ 155-63).

         The Court must dismiss Count VII under Rule 9(b) for substantially the same reasons discussed above with respect to Counts II and VI-for instance, that Plaintiffs do not specify when Defendants “engaged in unfair or deceptive acts” with respect to each individual Plaintiff. See, e.g., Eastwick, 657 Fed.Appx. at 93; Inventory Recovery Corp., 2012 WL 2990693, at *6; (id. ¶ 160). Accordingly, the Court DISMISSES Count VII without prejudice.

         H. Count VIII: Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law

         Plaintiff Smith brings a claim for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Pa. Stat. Ann. § 201-1, et seq. (“UTPCPL”), on behalf of himself and the Pennsylvania State Sub-Class. (Compl. ¶¶ 164-72). “[A] UTPCPL claim based on deceptive conduct differs from a claim based on fraudulent conduct . . . .” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 498 n.33 (3d Cir. 2013). Here, Plaintiffs allege that that Defendant “advertis[ed] . . . with the intent not to sell . . . as advertised;” “actively conceal[ed]” and “[i]ntentionally concealed” alleged defects; and “purposefully with[eld] material facts” from Plaintiff Smith. (Compl. ¶¶ 166 & 168). And as with every Count, Plaintiffs also “repeat and reallege the allegations contained above, ” which include the fraudulent concealment allegations. (See Compl. ¶¶ 142-58 & 164). Thus Count VIII's “theory sounds in fraud, ” and the Court rules that Rule 9(b) applies to Count VIII. See, e.g., Travelers Indem. Co., 620 Fed.Appx. at 85.

         The Court must dismiss Count VIII for substantially the same reasons discussed above with respect to Counts II, VI, and VII-for instance, that Plaintiffs “failed to identify when certain allegedly false representations were made” and “do[] not sufficiently allege facts showing that [Defendant] was aware of the alleged defects prior to the sales at issue in this litigation.” See Fishman, 2014 WL 1628369, at *4; see also In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 548 (D.N.J. 2004) (dismissing a UTPCPL claim). Accordingly, the Court DISMISSES Count VIII, without prejudice.

         I. Count IX: Violations of the Wisconsin Deceptive Trade Practices Act

         Plaintiff Livingston brings a claim for violations of the Wisconsin Deceptive Trade Practices Act, Wis.Stat. §§ 100.18, et seq. (“WDPTA”), on behalf of herself and the Wisconsin State Sub-Class. (Compl. ¶¶ 173-81). Count IX alleges that Defendant “knew about the defect;” “supplied false information;” and made “untrue, deceptive, and misleading assertions.” (Id. ¶¶ 176-78). Count IX also “repeat[s] and reallege[s] the allegations contained above, ” which include the fraudulent concealment allegations. (See Id. ¶¶ 142-58 & 173). Thus this “Wis. Stat. § 100.18 claim is subject to the heightened pleading standard of Rule 9(b).” Kisting v. Gregg Appliances, Inc., No. 16-141, 2016 WL 5875007, at *5 (E.D. Wis. Oct. 7, 2016); Miller v. Vonage Am., Inc., No. 14-379, 2015 WL 59361, at *5 (E.D. Wis. Jan. 5, 2015) (citing Pirelli Armstrong Tire Copr. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 446 (7th Cir. 2011)); Hackel v. Nat'l Feeds, Inc., 986 F.Supp.2d 963, 978 (W.D. Wis. 2013). For substantially the same reasons discussed above with respect to Counts II, VI, VII, and VIII, “Plaintiffs' allegations fall short of complying with Rule 9(b).” See Moscinski v. Bristol-Myers Squibb Co., No. 06-6055, 2009 WL 5216962, at *7 (D.N.J. Dec. 30, 2009). For instance, Plaintiffs failed to specify when Defendant “had a duty to disclose to Livingston and members of the Wisconsin Class the defect in its . . . systems” (see Compl. ¶ 179) and “do[] not sufficiently allege facts showing that [Defendant] was aware of the alleged defects prior to the sales at issue in this litigation.” See, e.g., Fishman, 2014 WL 1628369, at *4. Accordingly, the Court DISMISSES Count IX without prejudice.

         J. Count X: Violations of the Illinois Consumer Fraud Act

         Plaintiff Colbert brings a claim for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Stat. Ann. 505/1, et seq. (“ICFA”), on behalf of himself and the Illinois State Sub-Class. (Compl. ¶¶ 182-93). Count X alleges that Defendant “intended that Colbert and the Illinois Class members would rely on its deceptive acts;” Defendant made “deceptive misrepresentations, concealments, and omissions;” and Defendant's “conduct constituted consumer fraud.” (Id. ¶¶ 188, 189 & 193 (emphasis added)). Count X also “repeat[s] and reallege[s] the allegations contained above, ” which include the fraudulent concealment allegations. (See Id. ¶¶ 142-58 & 182). Like Counts II, VI, VII, VIII, and IX, the Court must “analyze ICFA claims of deception under the heightened pleading standard of Federal Rule of Civil Procedure 9(b), ” particularly because Count X “relies upon the same baseline allegation[s]” as Plaintiffs' fraudulent concealment claims. See Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 333 (7th Cir. 2018); Smith v. NVR, Inc., No. 17-8328, 2018 WL 2718038, at *2 (N.D. Ill. June 6, 2018); (compare Compl. ¶¶ 142-58, with Id. ¶¶ 182-93).

         For substantially the same reasons as Counts II, VI, VII, VIII, and IX, Plaintiffs' allegations in Count X “fall short of complying with Rule 9(b).” See, e.g., Moscinski, 2009 WL 5216962, at *7. Accordingly, the Court DISMISSES Count X without prejudice.

         K. Count XI: Violations of Massachusetts's Regulation of Business Practices for Consumer Protection

         Plaintiff Goldis brings a claim for violations of Massachusetts's Regulation of Business Practices for Consumer Protection, Mass. Gen. Laws, Ch. 93A, et seq., on behalf of himself and the Massachusetts State Sub-Class. (Compl. ¶¶ 194-205).

         Count XI alleges that Defendant engaged in “countless . . . deceptive acts” and a “deceptive scheme to mislead consumers;” and that such “violations of [law] were willful and knowing.” (Compl. ¶¶ 200 (emphasis added), 202). Count XI also “repeat[s] and reallege[s] the allegations contained above, ” which include the fraudulent concealment allegations. (See Id. ¶¶ 142-58 & 194). As Counts II, VI, VII, VIII, IX, and X, Count XI “is subject to the heightened pleading requirement.” See Mulder v. Koh's Dep't Stores, Inc., 865 F.3d 17, 22 (1st Cir. 2017); O'Hara v. Diageo-Guinness, USA, Inc., 306 F.Supp.3d 441, 450 (D. ...


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