United States District Court, D. Oregon
DON NGUYEN, individually and on behalf of all others similarly situated, Plaintiff,
CREE, INC., Defendant.
OPINION AND ORDER
MICHAEL MOSMAN Chief United States District Judge.
November 6, 2019, Magistrate Judge Stacie F. Beckerman issued
her Findings and Recommendation ("F&R") ,
recommending that Defendants' Motion to Dismiss  be
denied in part and granted in part and that Defendant's
Request for Judicial Notice  be granted. Defendants
objected , and Plaintiff filed a response to the
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an objection
is made. 28 U.S.C. § 636(b)(1)(C). However, the court is
not required to review, de novo or under any other standard,
the factual or legal conclusions of the magistrate judge as
to those portions of the F&R to which no objections are
addressed. See Thomas v. Am, 474 U.S. 140, 149
(1985); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). While the level of scrutiny under which
I am required to review the F&R depends on whether or not
objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C.
Beckerman recommended that Defendant's motion be denied
in part and granted in part. F&R  at 1. Specifically,
she recommended that this court should grant the motion and
dismiss Plaintiffs claims based on alleged misrepresentations
regarding the minimum estimated lifespan of Defendant's
bulbs as being preempted by federal law, Plaintiffs unjust
enrichment claim, and Plaintiffs breach of implied warranty
claim. Id. at 18. She recommended the motion be
denied as to Plaintiffs claims for violations of the Oregon
Unlawful Trade Practices Act (UTPA), his claim for fraudulent
representation and concealment, and his claim for breach of
express warranty. Id. at 13, 16, 18. She also
recommended that this court deny Defendant's motion on
standing and preemption grounds. Id. at 7, 11.
disagree with one aspect of Judge Beckerman's
recommendations. Judge Beckerman recommended that
Defendant's motion be denied as it relates to Plaintiffs
claim for breach of express warranty. F&R  at 18. She
reasoned that Plaintiffs complaint allowed an inference that
Defendant had not "repaired, replaced, or refunded the
bulbs at issue here." Id. I disagree.
Plaintiffs complaint does not allege that he sought a repair,
replacement, or refund, nor does it actually allege that
Defendant breached any warranty. Plaintiffs argument as to
his fourth claim for relief (breach of express and implied
warranties) alleges that defendant made warranties to
consumers by way of its packaging, that the products were
defective, and that this defect constitutes a breach. Compl.
[ECF 1] at 24-25. As Judge Beckerman correctly found,
alleging a defect is not sufficient to allege a breach of
express warranty. F&R  at 18 (citing Young v.
Cree, Inc., 2018 WL 1710181, at *9 (N.D. Cal. Apr. 9,
2018)). I therefore GRANT Defendant's motion to dismiss
on this ground as well, and Plaintiffs claim for breach of
express warranty is DISMISSED without prejudice.
otherwise adopt Judge Beckerman's recommendations, but I
do not wholly adopt her reasoning as to the issue of
standing. I deny Defendant's motion on standing grounds
only because a disconnect between the complaint and
Plaintiffs briefing gives rise to an apparent fact dispute.
Plaintiff alleged in his complaint that he purchased four
100-watt bulbs made by Defendant in October 2015. Compl. 
¶ 38. He alleged that those four bulbs burned out within
two years. Id. ¶ 39.
then produced, in a declaration attached to the motion to
dismiss, a record that indicates Plaintiff submitted a
warranty request for four 100-watt bulbs in October 2017.
Williams Decl. [ECF 7-1] at 1. This warranty claim appears to
fit the description for the four bulbs that Plaintiff alleges
he purchased. In addition, Defendant also produced a record
that shows that Plaintiff made two other warranty claims, one
for six bulbs, Williams Decl. [ECF 7-2] at 1, and one for
three bulbs. Williams Decl. [ECF 7-3] at 1. In total, the
warranty claims appear to document that Plaintiff
purchased-and had replaced-thirteen bulbs. That accounts for
more lightbulbs than Plaintiff has alleged he purchased.
Plaintiffs briefing remains ambiguous on this point. First,
in his complaint, Plaintiff states that he "attempted to
contact Cree to request replacement but was unsuccessful in
contacting Cree through their website." Compl.  at
¶ 39. Later, in briefing, Plaintiff argues that
"[t]he fact that Plaintiff may have purchased more bulbs
that he received replacements for prior to filing [this] suit
does not mean Plaintiff cannot establish standing .. .."
Pl's Opp. to Mot. for Summary J. [ECF 25] at 16. Those
statements are incompatible. Either Plaintiff was
unsuccessful in filing a warranty claim or not. Second, as
noted above, Plaintiffs complaint alleges only that he bought
four bulbs, which appear to be the same bulbs Cree has shown
that it replaced. In briefing, however, Plaintiff alleges he
bought some number of other bulbs that were not replaced
through Defendant's warranty program. Id. This
ambiguity gives rise to a possibility that Plaintiff has
purchased some bulbs that he has not received a remedy for,
which would convey him standing. See Hamilton v. General
Mills, Inc., 2016 WL 4060310 at *5 (D. Or. July 27,
2018) (holding that failure to show injury beyond the one
already cured by virtue of a refund prevents a plaintiff from
stating an injury that would confer standing to sue).
for the sake of clarity, my reading of Hamilton is
somewhat broader than Judge Beckerman's. If Plaintiff has
received replacement bulbs for every bulb that he purchased,
this is sufficient to satisfy Hamilton and eliminate
standing. It is immaterial whether Plaintiff received a
refund or a replacement. It is also my position that standing
is eliminated if Plaintiff was offered replacement bulbs
through the warranty program but refused to mitigate his
damages, which was also the case in Hamilton. Id. at
*5. Unless Plaintiff can show that (1) he purchased bulbs
from Defendant that have not been replaced through the
warranty program, and (2) that the warranty program is, in
some way, a mere facade, he cannot show that he has standing.
review, I agree with Judge Beckerman's recommendation and
I ADOPT the F&R . I GRANT Defendant's Request for
Judicial Notice , and I GRANT in part and DENY in part
Defendant's Motion to Dismiss for Failure to State a
Claim . Plaintiffs claims for alleged misrepresentations
regarding the minimum estimated lifespan of Defendant's
bulbs as being preempted by federal law, unjust enrichment,
and breach of express ...