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Klinge v. GEM Shopping Network, Inc.

United States District Court, D. Minnesota

December 31, 2014

Ann Klinge, an individual, Plaintiff,
Gem Shopping Network, Inc., a Georgia Corporation, Defendant.


JOAN N. ERICKSEN, District Judge.

Plaintiff Ann Klinge is a Minnesota resident who purchased goods from Defendant Gem Shopping Network, Inc. (GSN), a Georgia corporation with its principal place of business in Georgia that sells gemstones and jewelry through its 24-hour television channel. Klinge alleges that GSN violated several Minnesota consumer protection and trade practices statutes and committed intentional and negligent misrepresentation. This matter is before the Court on Defendant's motion for summary judgment.


Klinge began watching and purchasing items from GSN in July 2009. In the fall of 2009, Klinge spoke with Kenny Brown, a customer service representative for GSN. Brown told Klinge about a customer who bought gemstones from GSN and later, after losing a job, began selling them "a stone here and a stone there" to "stay afloat." Klinge decided to form a business in which she would purchase items from GSN and resell them. Klinge formed Ann Michele's Jewelry and Gemstones, LLC in January 2010. Klinge attended a trade show in Tucson, Arizona in February 2010 to learn how to sell jewelry. At the show, a vendor told Klinge that she had paid too much for some gems and that some of GSN's appraisals were too high. Klinge attended a second trade show in Phoenix in April 2010, where she sold one item. Klinge continued to purchase items from GSN until July 2010, though she never attempted to sell her items after the Phoenix trade show. From July 2009 to July 2010, Klinge purchased and kept approximately $675, 334 worth of gemstones and jewelry from GSN. She purchased and periodically returned other gems under GSN's thirty-day, no questions asked return policy.

Klinge filed this lawsuit on September 17, 2012 and an amended complaint on March 6, 2013. GSN moved for summary judgment on October 10, 2014. For the reasons set forth below, Defendant's motion for summary judgment is granted and Plaintiff's claims are dismissed.


The standards applicable to summary judgment are well established and well known. Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To support an assertion that a fact cannot be or is genuinely disputed, a party must cite "to particular parts of materials in the record, " show "that the materials cited do not establish the absence or presence of a genuine dispute, " or show "that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). "The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). In determining whether summary judgment is appropriate, a court must view facts that the parties genuinely dispute in the light most favorable to the nonmovant, Ricci v. DeStefano, 557 U.S. 557, 586 (2009), and draw all justifiable inferences from the evidence in the nonmovant's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


The first four counts in the amended complaint are for violations of Minnesota's consumer protection and trade practices laws. Counts five and six are for intentional and negligent misrepresentation.

A. Count I-Unfair Trade Practices

Plaintiff alleges that Defendant violated the Minnesota Unfair Trade Practices Act (MUPTA), Minn. Stat. § 325D.09 et seq, by holding itself out as a retailer that sells items at approximately wholesale prices or less than usual retail prices. MUPTA states:

(1) No person engaged in the sale of merchandise at retail shall, in connection with such business, misrepresent the true nature of such business, either by use of the words manufacturer, wholesaler, broker, or any derivative thereof.... (2) No person shall, in connection with the sale of merchandise at retail misrepresent, directly or indirectly, that the price at which such merchandise is sold is an approximately wholesale price, or is less than the usual retail price[.] Minn. Stat. § 325D.12

MUPTA defines "sale of merchandise at retail" to include "any sale except (1) A sale for the purpose of resale." Minn. Stat. § 325D.10(d). While Plaintiff purchased some items for personal use, this action only concerns items that she purchased for the purpose of resale. When asked at deposition whether "all of the claims in the case, all the stones that you're complaining about in the case are the ones that you purchased for resell [sic] through your business, " Plaintiff replied "yes." Thus the transactions at issue were not in connection with sales of merchandise at retail under the statute, and Plaintiff's claim under MUPTA fails.

B. Count II-Deceptive Trade Practices

Plaintiff alleges a violation of the Minnesota Deceptive Trade Practices Act (DTPA), Minn. Stat. § 325D.43 et seq. The DTPA provides: "A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable." Minn. Stat. § 325D.45. The "sole statutory remedy for deceptive trade practices is injunctive relief, " and the statute "provides relief from future damage, not past damage." Gardner v. First Am. Title Ins. Co., 296 F.Supp.2d 1011, 1020 (D. Minn. 2003) (quotation marks omitted). The future harm must ...

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