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David Fleisher, Michael Clime, Gary Ippolito, Robert L. v. Fiber Composites

November 2, 2012

DAVID FLEISHER, MICHAEL CLIME, GARY IPPOLITO, ROBERT L. LIVINGSTON, AND DAVID TAILLON, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
v.
FIBER COMPOSITES, LLC



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

Plaintiffs bring this putative class action for breach of warranty and other claims arising out of Defendant Fiber Composites, LLC‟s ("Fiber") sale of defective deck materials to named Plaintiffs in Pennsylvania, New Jersey, New York, and Massachusetts. Presently before the Court is Fiber‟s Motion to Dismiss. For the reasons that follow, we grant the Motion in part and deny it in part.

I. BACKGROUND

A. Introduction

The First Amended Complaint ("FAC") alleges the following facts. Defendant Fiber manufactured, advertised, and sold Portico Series Decking products, including Portico Advantage and Eclipse composite decking (collectively "Portico") to consumers throughout the United States. (FAC ¶ 1.) Unlike natural wood decking products, Portico is made up of a composite material comprised of equal parts of wood fiber and polyethylene, a thermoplastic material. (Id. ¶ 40.) Portico is manufactured by direct extrusion, a process by which polyethylene and wood fibers are mixed together and melted in an extruder, then forced through a die to form a finished structural part. (Id. ¶ 41.) This process is designed to completely encapsulate the wood fibers in the polyethylene, rendering them virtually moisture proof. (Id.) Portico products were sold at nearly double the price of natural wood products. (Id. ¶ 50.)

Fiber expressly warranted Portico for a twenty-year period, guaranteeing that "the Decking & Railing will not check, splinter, peel, rot, or suffer structural damage from fungal decay." (FAC Ex. A, "Limited Warranty.") This warranty was limited by the following disclaimer:

THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES WITH RESPECT TO Portico FIBER COMPOSITE MATERIAL. WARRANTOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Purchaser‟s sole remedy for any claim whatsoever arising out of the purchase, use, storage, or possession of Portico Fiber Composite Material (whether such claim arises is contract, warranty, tort, strict liability or otherwise) including without limitation any claim that Portico Fiber Composite Material failed to perform as warranted above, shall be replaced with new Portico Fiber Composite Material in an amount equal to the volume of defective material as scheduled on the prorated warranty schedule. (Id.)

Fiber made the following representations regarding Portico that appeared on its website and on contractors‟ websites: Portico is unlike "[t]raditional wood decking [that] fades, molds, cracks, splinters, and needs to be treated and sealed regularly for the deck to maintain its original look and feel" (id. ¶ 51); "Portico Eclipse is slip resistant, has a quality surface finish that reduces dirt and mold buildup and will not check, split, or warp" (id. ¶ 49); Portico has "just about eliminated the problems associated with typical wood decking" (id. ¶ 51); Portico is "able to resist moisture penetration and degradation from fungal rot as the plastic encapsulates and binds the wood together" (id. ¶ 46); "[l]ong after installation, [Portico] . . . will stay beautiful and provide you with years of outdoor enjoyment" (id. ¶ 56); and Portico has "consistent color throughout the board" (id. ¶ 57).

The named Plaintiffs are consumers from Pennsylvania, New Jersey, New York, and Massachusetts, who purchased Portico decking materials. (Id. ¶¶ 9, 15, 21, 27, 31.) Soon after installation, Plaintiffs noticed dark spotting on the surface of their decks (id. ¶¶ 10, 16, 22, 28,

32), which has been determined to be extensive mold, mildew, and/or fungal growth ("fungal growth") resulting in discoloration of the deck surface. (Id. ¶ 5.) The fungal growth is due to a uniform latent defect in Portico that occurs regardless of proper installation, maintenance, and cleaning, and cannot be prevented or remediated. (Id.) The Portico manufacturing process causes this latent defect because it does not result in complete encapsulation of the wood fibers, making Portico susceptible to moisture and microbe penetration to the internal wood fibers. (Id. ¶ 42.) This moisture and microbe penetration is the foundation for the fungal growth that caused the dark spotting on Plaintiffs‟ decks. (Id. ¶ 43.) In addition, Portico was manufactured with Micro-DOME technology, which creates an embossed surface on the boards which collects standing water and promotes fungal growth. (Id. ¶ 45.) Fiber failed to inform customers that moisture would immediately invade Portico and the decking surface would be enveloped with irremediable dark spotting caused by fungal growth. (Id. ¶ 65.)

After discovering the fungal growth on their decks, four of the five named Plaintiffs complained to Fiber. (Id. ¶ 6.) Fiber refused to refund the named Plaintiffs for the costs of cleaning their decks or to replace their Portico under the Limited Warranty, but merely advised Plaintiffs to chemically clean their decks. (Id. ¶¶ 6-7.) Plaintiffs cleaned their decks as directed, but the chemical products only worked briefly, or failed to work altogether, resulting in recurrence of the fungal growth. (Id. ¶ 6.) To this day, Fiber has not provided any further relief. (Id. ¶ 62.)

Plaintiffs seek to bring this action on behalf of themselves and two sub-classes. The first Class is an Injunctive/Declaratory Relief Class pursuant to Federal Rule of Civil Procedure 23(b)(2), consisting of all persons in the United States who purchased Portico products. (Id. ¶ 74.) The Second Class is a Rule 23(b)(3) Class made up of five sub-classes: all persons who purchased Portico products in (1) Massachusetts, (2) Pennsylvania, (3) New Jersey, (4) New York, and (5) other states. (Id. ¶ 75.)

The FAC asserts the following causes of action: Violation of the Magnuson-Moss Consumer Products Warranties Act (all classes) (First Claim for Relief); Breach of Express Warranty (all classes) (Second Claim for Relief); Breach of Implied Warranty of Merchantability (all classes except the New York sub-class) (Third Claim for Relief); Violation of Pennsylvania‟s Unfair Trade Practices and Consumer Protection Law (the Pennsylvania subclass) (Fourth Claim for Relief); Violation of the Massachusetts Consumer Protection Act (the Massachusetts sub-class) (Fifth Claim for Relief); Violation of the New Jersey Consumer Fraud Act (the New Jersey sub-class) (Sixth Claim for Relief); Violation of the New York Consumer Protection Act (the New York sub-class) (Seventh Claim for Relief); Declaratory Relief (the Injunctive/Declaratory Relief Class) (Eighth Claim for Relief); and Unjust Enrichment (all classes) (Ninth Claim for Relief). Fiber has moved to dismiss all nine counts against it for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).

II. LEGAL STANDARD

In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court takes the factual allegations of the complaint as true and draws all reasonable inferences in favor of the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). Legal conclusions, however, receive no deference, and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with approval in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A plaintiff‟s pleading obligation is to set forth "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), which gives the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (quotation omitted) (alteration in original). The "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) (quoting Twombly, 550 U.S. at 570). "The plausibility standard is not akin to a "probability requirement,‟ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). In the end, we will dismiss a complaint if the factual allegations in the complaint are not sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004)).

III. DISCUSSION

A. Breach of Express Warranty*fn1

Fiber argues that Plaintiffs‟ breach of express warranty claim should be dismissed because: (1) the FAC does not allege a breach of a term in the Limited Warranty; (2) no other express warranties were created in Fiber‟s promotional materials; (3) if other express warranties were created, Fiber properly disclaimed them in its Limited Warranty; and (4) if any express warranties were created, they did not become part of the basis of the bargain in Plaintiffs‟ purchase of Portico.

Plaintiffs contend that the FAC contains allegations of fact that support a claim for breach of Fiber‟s Limited Warranty as well as breach of express warranties created by Fiber‟s representations in promotional materials describing Portico‟s quality and characteristics. An express warranty is "a promise . . . that a good will conform to a specific description." Knipe v. SmithKline Beecham, 583 F. Supp. 2d 602, 625 (E.D. Pa. 2008) (citation omitted). An express warranty is created by:

(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

(3) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model. 13 Pa. Cons. Stat. § 2313(a).*fn2 In order to survive a motion to dismiss, a complaint asserting a claim for breach of an express warranty must "provide more than "bald assertions,‟ and identify specific affirmations by Defendant that could be found to constitute an express warranty." Snyder v. Farnam Cos., Inc., 792 F. Supp. 2d 712, 722 (D.N.J. 2011) (listing cases).

1. The Limited Warranty

The Limited Warranty guarantees that Portico products "will not check, splinter, peel, rot, or suffer structural damage from fungal decay." (Limited Warranty.) Fiber argues that the FAC does not allege that any terms of the Limited Warranty were breached by Portico‟s latent defect that caused fungal growth, as the FAC does not allege that Plaintiffs‟ decks suffer "rot" or "structural damage from fungal decay." The FAC alleges that Plaintiffs suffered damage to their decks in the form of, inter alia, "incurable dark spotting" (FAC ¶ 4), "unsightly and extensive discoloration" (id. ¶ 5); "extensive discoloration in the form of unsightly black and gray spots" (id. ¶ 60); and "irremediable staining from fungal growth" (id. ¶ 106). The FAC does not allege, and Plaintiffs do not argue, that these damages constitute "rot" or ...


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