United States District Court, D. Oregon
MICHAEL HARNEY and OZZIE GILBERT, individually and on behalf of all others similarly situated, Plaintiffs,
ASSOCIATED MATERIALS, LLC, dba AMI, a Delaware limited liability company, and ASSOCIATED MATERIALS INCORPORATED, dba AMI, a Delaware corporation, Defendants.
W. Wilkinson and Anthony T. Blake, Ball Janik, LLP, 101 SW
Main Street, Suite 1100, Portland, OR 97204; Alex M. Nelson
and Michael J. Lowder, Benson, Kerrane, Storz & Nelson,
PC, 110 N. Rubey Drive, Suite 2000, Golden, CO 80403. Of
Attorneys for Plaintiffs.
M. Sands, Lane Powell, PC, 601 SW Second Avenue, Suite 2100,
Portland, OR 97204; Michael K. Farrell, Sam A. Camardo, and
Daniel M. Kavouras, Baker Hostetler LLP, 127 Public Square
Suite 2000, Cleveland, OH 44114. Of Attorneys for Defendants.
OPINION AND ORDER
Michael H. Simon, District Judge.
Michael Harney and Ozzie Gilbert (collectively,
“Plaintiffs”), bring this putative class action
against Defendants Associated Materials, LLC, dba AMI
Building Products, Inc., and Associated Materials
Incorporated, dba AMI Building Products, dba Gentek Building
Products, Inc. (collectively, “AMI” or
“Defendants”). Both Defendants manufacture vinyl
siding. Plaintiffs allege that Defendants' siding on
Plaintiffs' homes deformed under normal conditions,
resulting in damage to Plaintiffs' homes. Before the
Court is AMI's motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons that follow, AMI's motion is granted in part and
denied in part.
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may
not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). All reasonable inferences from the
factual allegations must be drawn in favor of the plaintiff.
Newcal Indus. v. Ikon Office Solution, 513 F.3d
1038, 1043 n.2 (9th Cir. 2008). The court need not, however,
credit the plaintiff's legal conclusions that are couched
as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
complaint must contain sufficient factual allegations to
“plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr, 652 F.3d at 1216. “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.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
alleged in the Second Amended Complaint, AMI sells and
distributes vinyl siding (“the Siding”)
throughout the United States for installation on homes and
commercial buildings. Named Plaintiff Michael Harney is a
resident of Beaverton, Oregon and lived in a house clad with
AMI's vinyl siding. While preparing his house for sale,
Mr. Harney found blistering and distortion problems with the
Siding. Mr. Harney completed a Warranty Inquiry Packet to
make a claim for repair, refinishing, or replacement of the
siding. AMI denied Mr. Harney's claim stating,
“[o]ur findings conclude that your particular concern
is not the result of a manufacturing defect covered by the
warranty.” ECF 52 ¶ 11. In discussions with AMI
over the denial of his warranty claim, AMI told Mr. Harney
that a representative visited his property to inspect it
before denying the claim. Later, AMI informed Mr. Harney that
AMI had only inspected his home using Google Earth satellite
imagery and had denied his claim because the siding had
“sun solarization, ” which AMI stated was not
covered under its express warranty. “Sun solarization,
” however, was not an expressly identified exclusion in
the then-applicable AMI warranty. Mr. Harney replaced the
siding himself and, in the process, discovered that the
building paper beneath the Siding was also damaged and needed
to be replaced.
Plaintiff Ozzie Gilbert owns a home in Austell, Georgia. Ms.
Gilbert purchased AMI's vinyl siding from a dealer or
contractor engaged in door-to-door sales on AMI's behalf.
She had the siding installed in 2000. In 2014, Ms. Gilbert
noticed warping, deformation, and buckling of a significant
portion of the siding. Ms. Gilbert submitted a warranty claim
to AMI. AMI denied Ms. Gilbert's without inspecting her
home to determine the cause of the damage. Ms. Gilbert's
siding has not been repaired or replaced.
“Vinyl Siding Lifetime Limited Warranty” (the
“Warranty”) in effect in 2003 was for the natural
life of an original owner, or for 50 years if the property
were sold. The Warranty purported to exclude “damages
or material failure including, but not limited to, normal
weathering, oxidation, Acts of God, fire, flood, impact from
foreign objects, chemical pollutants, mildew, structural
defects, negligent maintenance or abuse.” Id.
¶ 4. The Warranty also provided that “[i]f [AMI]
determines that a claim is valid in accordance with the terms
of this Warranty, [AMI] agrees, at its sole option, to
repair, refinish, or replace only the defective siding panels
and assume 100% of the cost of material and labor to the
Property Owner.” Id. On the back of the
Warranty, which is contained on a pamphlet, AMI also states
that its vinyl siding is “no ordinary siding. It is the
result of years of intensive research and development, giving
you a vinyl siding of the highest standards.”
Id. ¶ 23.
allege that AMI has received numerous warranty claims
alleging a manufacturing or design defect in the Siding.
Rather than notify consumers about the defects, Plaintiffs
claim, AMI has “intentionally embarked on a campaign to
blame any distortion in the Siding on ‘external' or
‘unusual heat sources.'” Id. ¶
32. AMI also appears to apply its current warranty language,
terms, and exclusions to any and all claims, regardless of
the specific terms of the warranty issued to the owner making
the warranty claims.
bring five claims for relief against AMI: (1) breach of
express warranty; (2) breach of implied warranties; (3)
unjust enrichment; (4) unlawful trade practices; and (5)
declaratory judgment and injunctive relief. AMI moves to
dismiss each of these claims.
Identification of a Defect
argues that Plaintiffs have alleged only injury and have
failed to identify either a design or engineering defect.
Because each of Plaintiffs' claims rest upon an
allegation that AMI's Siding was defective, AMI argues,
insufficient description of the precise defect renders each
of Plaintiffs' claims insufficient under Rule 8(a) of the
Federal Rules of Civil Procedure. Plaintiffs respond that to
state a claim for breach of warranty, Plaintiffs need allege
only that the product did not perform as promised or, in the
case of implied warranty, failed of its essential purpose.
Plaintiffs further argue that they have sufficiently alleged
a defect in AMI's siding. Plaintiffs are correct.
rely on Yagman v. General Motors Co., 2014 WL
4177295 (C.D. Cal. Aug. 22, 2014), to support their argument
that Plaintiffs must identify a specific defect to
sufficiently state a claim for breach of warranty. In
Yagman, the court held that the fact that a car
engine stopped working gave rise to a reasonable inference of
a manufacturing defect, but fell “slightly short”
of alleging that a manufacturing defect was a plausible cause
of the injury. That the engine stopped working, the court
explained, was a symptom of a defect and not the defect
itself. Id. at *3. When challenging a “less
complex component, ” however, plaintiffs need not
“plead the mechanical details” of a defect.
DeCoteau v. FCA U.S. LLC, 2015 WL 6951296, at *3
(E.D. Cal. Nov. 10, 2015) (quoting Cholakyan v.
Mercedes-Benz USA, LLC, 796 F.Supp.2d 1220, 1237 n.60
(C.D. Cal. 2011) (quotation marks omitted).
alleging that the Siding became distorted and deformed, and
that siding should not become distorted and deformed when
exposed to normal weather conditions, Plaintiffs have
sufficiently alleged that AMI's product is defective. In
Force v. Wright Medical Technology., Inc., the court
granted a motion to dismiss because “[t]he Complaint
fail[ed] to allege any specifics about the alleged defects,
how the product deviated from requirements, what about it was
dangerous, or what about the warnings were inadequate.”
2012 WL 4897165, at *2 (W.D. Wash. Oct. 15, 2012). Defendants
also point to Corwin v. Connecticut Valley Arms,
Inc., in which the court granted a motion to dismiss a
complaint about an allegedly defective bullet because the
plaintiff made “no factual allegations that detail how
the bullet was defective . . . whether because of the
bullet's physical properties, its inherent design, or
otherwise.” 74 F.Supp.3d 883, 889 (N.D. Ill.
2014). In Corwin, however, the plaintiffs
were alleging that the bullet's defective design caused
pressure in the gun barrel to increase, which in turn
resulted in an explosion that injured the plaintiff. The
alleged defect was thus part of a more complex system that
gave rise to the injury, and plaintiffs had not sufficiently
alleged whether the defect was with the gun or the bullet.
Here, the distorted siding is not merely an injury, but
evidence of the defect itself. Plaintiffs have alleged
specifically that the Siding is prone to shrinkage at the
joints, that it blisters and flakes, and that these qualities
cause it to deviate from the basic requirements of vinyl
siding and AMI's express warranty that the Siding will
not become damaged under normal weather conditions. To
require a sophisticated statement of the mechanical or
chemical failings of the Siding would place a prohibitively
high burden on plaintiffs at the pleading stage, and would go
beyond the requirements of Rule 8(a).
Plaintiffs have alleged that AMI made certain assurances
about its product, including in the Warranty, “that the
Siding shall be free from blistering, corroding, flaking, and
peeling and is suitable for use as an exterior home
product.” Plaintiffs allege that the siding does not
comport with these assurances and “experiences
blistering, excessive shrinkage and expansion and long-term
material degradation.” Plaintiffs further claim that
AMI breached the Warranty by failing to repair, refinish, and
replace Plaintiffs' defective siding, despite the fact
that Plaintiffs had valid claims under the Warranty.
Plaintiffs specifically dispute that the nonconformities in
the Siding on their properties was caused by “unusual
heat sources.” For the purposes of a claim of breach of
express warranty, these allegations sufficiently allege that
the Siding is defective.
Breach of Implied Warranty
claim that the Siding failed its essential purpose and that
AMI breached the implied warranties of fitness and
merchantability. AMI moves to dismiss this claim on the bases
that Plaintiff Harney is not in privity with AMI and