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Podpeskar v. Makita U.S.A. Inc.

United States District Court, D. Minnesota

March 28, 2017

SEAN PODPESKAR, on behalf of himself and all others similarly situated, Plaintiff,
MAKITA U.S.A. INC., Defendant.

          Amy Elizabeth Boyle and Melissa W. Wolchansky, HALUNEN LAW, for plaintiff.

          Isaac W. Messmore and Nathan J. Marcusen, BOWMAN & BROOKE LLP, for defendant.


         Plaintiff Sean Podpeskar brings this action based on alleged design defects in batteries manufactured by Defendant Makita U.S.A. Inc. (“Makita”). Podpeskar alleges the following claims: violation of the Minnesota Unlawful Trade Practices Act (“UTPA”); violation of the Minnesota False Statements in Advertising Act (“FSAA”); breach of an express warranty and the implied warranty of merchantability and fitness; fraudulent misrepresentation, concealment, and failure to disclose; declaratory and injunctive relief; and unjust enrichment.

         Makita moves to dismiss all claims. Because Podpeskar sufficiently pleaded notice and unconscionability, the Court will deny Makita’s motion with regard to Podpeskar’s express warranty claim. The Court also finds Podpeskar pleaded his fraud claims with sufficient particularity and properly pleaded an unjust enrichment claim in the alternative, and therefore, the Court will deny Makita’s motion with regard to those claims. But, because Podpeskar’s declaratory and injunctive relief claims are remedies rather than stand-alone claims, the Court will grant Makita’s motion on those claims.


         Makita “design[s], manufacture[s], market[s] and s[ells ] power tools featuring lithium-ion batteries that have been sold throughout the United States.” (Am. Compl. at 4, Jan. 29, 2016, Docket No. 29.)[1] Podpeskar bought a “Makita Cordless Drill Combo Set” from a retailer in Duluth, Minnesota, in summer 2013. (Id. at 13.) The set contained “a small impact drill and full-sized variable speed drill” as well as a “BL1815 18V rechargeable lithium ion [b]attery.” (Id.) Podpeskar alleges that the “charger indicat[ed] the [b]attery was locked and therefore unusable” after “approximately two years” and “only a handful of uses.” (Id. at 14.) Podpeskar asserts that “he contacted Makita in 2015,” but that “Makita informed him that his [b]attery was no longer covered by the warranty and it refused to replace the defective [b]attery.” (Id. at 8.) Podpeskar chose to purchase a new drill set for $270 rather than replace the battery for $120. (Id. at 14.)

         Podpeskar contends that the batteries at issue are defective in design because they “rely solely upon the first cell for power.” (Id. at 5.) Podpeskar alleges that this design causes the battery to fail prematurely, and renders it unusable, stating:

Because power is used even when the [b]attery is not in use, the power in the first cell of the [b]attery is depleted. This essentially causes the chip to believe that the cell has shorted out. If a consumer attempts to charge the [b]attery three times in this state the charger will believe the [b]attery is not functional and will no longer charge it.

(Id.) Makita later introduced new batteries with “Star Protection Computer Controls which draw power from all cells of the battery,” and which Podpeskar refers to as a “corrective measure.” (Id. at 1-2.) Podpeskar cites reviews of as a “sampling” of the complaints Makita received, many dated between 2010 and 2012.[2](See Id. at 8-12.)

         Podpeskar alleges that Makita “advertised and expressly warranted” that the batteries were “thoroughly inspected and tested before leaving the factory,” and “free of defects.” (Id. at 5 (citation omitted).) Podpeskar asserts that Makita “advertise[d] that the [b]atteries retain optimal battery life based on the built-in chip,” by stating that: the battery and charger combination “optimize[d] battery life by actively controlling current, voltage and temperature;” the built-in fan cooled the battery, “which help[ed] produce more lifetime work;” the specific battery resulted in an “even longer run time;” the battery and charger combination “maximize[d] battery life” and took “only 30 minutes to charge.” (Id. at 5-6 (citation omitted).) Podpeskar also contends that on “information and belief, [Makita] and its agents would represent that the [b]atteries should last approximately 1,000 charges.” (Id. at 6.) Podpeskar alleges that “Makita . . .

represented, through its omissions, that the [b]atteries were free of defects and would function properly.” (Id. at 7.) Podpeskar also asserts that Makita negligently, knowingly and intentionally concealed, and has failed to disclose that . . . its [b]atteries routinely fail well short of their usable life and are not receiving maximize battery life or any benefit based on the built-in chip . . . . Indeed, [Makita’s] [b]atteries have deteriorated and will continue to deteriorate at a rate demonstrating their lack of durability and resiliency.

(Id. at 7 (emphasis added).)

         Makita has since extended its express warranty on the batteries from one year to three years;[3] however, Podpeskar contends that “no reasonable customer would know he or she should make a warranty claim when a warranty claim was already denied or the product is outside of the original warranty period.” (Id. at 7.)

         Podpeskar filed his initial complaint on October 22, 2015, alleging a UTPA claim, an FSAA claim, express and implied warranty claims, and claims based on fraudulent misrepresentation, concealment, and failure to disclose. Podpeskar also requested declaratory and injunctive relief, and pleaded a claim of unjust enrichment in the alternative. The claims remain the same in Podpeskar’s Amended Complaint. Podpeskar brings his claims as a purported class action on behalf of “a class of all others similarly situated.” (Id. at 1.) Podpeskar defines the national class as:

All individuals and entities in the United States that purchased [b]atteries, or devices sold with [b]atteries, on or after October 2009. Excluded from the Class are Defendant, any entity in which Defendant has a controlling interest or which has a controlling interest in Defendant, and Defendant’s legal representatives, assigns and successors. Also excluded are the judge to whom this case is assigned and any member of the judge’s immediate family.

(Id. at 15.) In the alternative, Podpeskar defines a “Minnesota class” the same, except restricted to the state. (Id. at 16.)

         Makita initially moved to dismiss Podpeskar’s complaint on January 8, 2016. Podpeskar responded by amending the complaint on January 29, 2016. Makita brought the current motion to dismiss on March 18, 2016.



         In reviewing a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), the Court considers all facts alleged in the complaint as true to determine if the complaint “state[s] a claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, a complaint must provide more than “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the Court accepts a complaint’s factual allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “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. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility,’” and therefore must be dismissed. Id. (quoting Twombly, 550 U.S. at 557).


         Podpeskar brings claims for both breach of express warranty and breach of the implied warranty of merchantability and fitness based on the allegedly defective battery design, which resulted in a shorter battery life than expected. Makita argues Podpeskar’s warranty claims must be dismissed on various grounds that are addressed, in turn, below.

         A. Pre-Lawsuit Notice

         First, Makita argues that the Court should dismiss both the express and implied warranty claims because Podpeskar did not provide pre-lawsuit notice of a breach of warranty. Podpeskar alleges that he contacted Makita; Makita stated the warranty period had lapsed; and, Podpeskar chose to buy a new product. Podpeskar ...

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