United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE
Agropur, Inc. (“Agropur”) sues Defendant The
Scoular Company (“Scoular”) for alleged breaches
of express warranty (Count I), implied warranties (Count II),
and contract (Count III) in connection with the manufacture
and sale of protein beverages that became moldy. See
Compl., Dkt. No. 1. Scoular moves for partial dismissal of
the Complaint pursuant to Federal Rule of Civil Procedure
12(b). Dkt. No. 20. Scoular also moves for an extension of
time to respond to the Complaint, requesting a deadline of 14
days after a ruling on the motion to dismiss. Id.
Motion to Dismiss
survive a motion to dismiss, a complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir.
2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “In a case involving a contract, the court may
examine the contract documents in deciding a motion to
dismiss.” Stahl v. U.S. Dep't of Agric.,
327 F.3d 697, 700 (8th Cir. 2003) (citation omitted); see
also Neubauer, 849 F.3d at 403.
moves to dismiss Count I “to the extent it depends upon
an extra-contractual email (see Compl. ¶¶
11, 37, 41) . . . .” Scoular Br. 13, Dkt. No. 22.
Agropur does not dispute the issue, conceding that the email
is not “independently actionable.” Agropur Opp.
17, 18 n.3, Dkt. No. 29. Scoular's narrow request to
dismiss part of Count I is therefore granted.
also moves to dismiss Count II, which alleges breach of
implied warranties, on the ground that the parties'
contract disclaimed all implied warranties. Agropur argues
that the contract's attempted disclaimer was ineffective
under Minnesota law.
Minnesota law incorporating the Uniform Commercial Code,
implied warranties of merchantability and fitness may be
excluded or modified from a contract for a sales transaction.
The statute provides in part:
(2) Subject to subsection (3), to exclude or modify the
implied warranty of merchantability or any part of it the
language must mention merchantability and in case of a
writing must be conspicuous, and to exclude or
modify any implied warranty of fitness the exclusion must be
by a writing and conspicuous. . . .
(3) Notwithstanding subsection (2)[, ]
(a) unless the circumstances indicate otherwise, all implied
warranties are excluded by expressions like “as is,
” “with all faults” or other language which
in common understanding calls the buyer's attention to
the exclusion of warranties and makes plain that there is no
implied warranty . . . .
Minn. Stat. § 336.2-316 (1986) (emphasis added). The
statute defines “conspicuous” as “so
written, displayed, or presented that a reasonable person
against which it is to operate ought to have noticed
it.” Id. § 336.1-201, subd. b(10). It
further provides that “[c]onspicuous terms include the
(A) a heading in capitals equal to or greater in size than
the surrounding text, or in contrasting type, font, or color
to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger
type than the surrounding text, or in contrasting type, font,
or color to the surrounding text of the same size, or set off
from surrounding text of the same size by symbols or other
marks that call attention to the language.
Id. Statutory commentary explains that “[t]his
definition states the general standard that to be conspicuous
a term ought to be noticed by a reasonable person.”
Minn. Stat. Ann. § 336.1-201, UCC Cmt. 10 (Westlaw
through laws of 2017 Reg. & 1st Special Sess.). The word
“conspicuous” is meant to express the requirement
that a term, to be effective, must be “sufficiently
prominent to attract attention to it.” Id.,
Cmt. to Subsection 1-201(10). The illustrations provided in
subsections (A) and (B) simply “set out several methods
for making a term conspicuous, ” which are not
exhaustive and should not displace the test of “whether
attention can reasonably be expected to be called to”
the disclaimer. Id., UCC Cmt. 10; see also
Agristor Leasing v. Guggisberg, 617 F.Supp. 902, 909 (D.
Minn. 1985). Commentary states that “[r]equiring that a
term be conspicuous blends a ...