United States District Court, D. Minnesota
DEAN R. ANDERSON and DEBBIJ. ANDERSON, Plaintiffs,
1399557 ONTARIO LTD.,  a/k/a Fibertec Windows & Doors, Mfg., a/k/a Fibertec, Inc.; ABOVE AND BEYOND CONSTRUCTION INC.; ARLO COOK; and E SHIP ONE INC., Defendants.
W. Anderson, PARKER & WENNER, P.A., for plaintiffs.
R. Battina and Nicholas N. Sperling, TREPANIER MACGILLIS
BATTINA, P.A., for defendant 1399557 Ontario LTD.
M. Mitchell and Kayla J. Giese, HELLMUTH & JOHNSON, PLLC,
for defendants Above and Beyond Construction Inc. and Arlo
Patrick J. Schiltz United States District Judge
Dean and Debbi Anderson bought nearly $100, 000 worth of
windows from defendant Arlo Cook and his company, defendant
Above and Beyond Construction ("Above &
Beyond"). The windows were manufactured by defendant
1399557 Ontario Ltd. ("Fibertec") and were
advertised to include a "Lifetime Warranty." Over
three-and-a-half years after the windows were installed, the
Andersons noticed a problem with the windows'
transparency. The problem persisted, and eventually the
Andersons complained to Fibertec. Relying on the terms of its
"Limited Lifetime Warranty," Fibertec offered to
replace the glass in the windows, but refused to pay shipping
or installation costs. This did not satisfy the Andersons, so
they filed this lawsuit. Fibertec, Above & Beyond, and
Cook now move for judgment on the pleadings as to all claims
brought against them.
the Andersons have taken a kitchen-sink approach in pursuing
this case. See Gurman v. Metro Hous. & Redevelopment
Auth., 842 F.Supp.2d 1151, 1153 (D. Minn. 2011)
("This Court has repeatedly criticized the filing of
'kitchen-sink' or 'shotgun'
complaints-complaints in which a plaintiff brings every
conceivable claim against every conceivable
defendant."). In their amended complaint, the Andersons
asserted multiple breach-of-warranty and fraud claims-some
borderline frivolous -against each of the defendants. They
attempted to add more theories in their brief. And they
attempted to add yet more theories at oral argument. What the
Andersons have failed to do is to plead a single viable claim
against any of the defendants. Thus, the Court dismisses all
of the Andersons' claims, most with prejudice, but some
Andersons' amended complaint alleges the following:
summer of 2010, the Andersons began designing a lake home to
be built in Alexandria, Minnesota. ECF No. 22 at ¶ 12.
The home was designed so that a "majority of the windows
would provide scenic views, including a two-story vista at
the center of the house with a grand bank of windows facing
southeast." Id. at ¶ 14. The Andersons
wanted all of the windows to have "good insulation"
and the windows on the south side of the home to have
"the ability to let in solar heat in the winter."
Id. at ¶ 15. While the Andersons were designing
their new home, they attended the Minneapolis Home and Garden
Show. Id. at ¶ 18. At the Home and Garden Show,
the Andersons stopped at a booth belonging to Above &
Beyond and talked to Arlo Cook. See Id. at
¶¶ 9, 19.
informed the Andersons that Above & Beyond was "the
exclusive distributor" in the area for windows
manufactured by Fibertec. ECF No. 22 at ¶ 20. He gave
the Andersons "glowing reports" about "the
integrity of Fibertec" and "the quality of their
product," and "assured" the Andersons
"that Fibertec had been a fantastic company to work
with." Id. at ¶ 21. Cook also told the
• Fibertec windows have "high value and quality . .
. fiberglass frames/' and an "amazing seal and low
air infiltration qualities." Id. at ¶ 22.
• "[T]est results" showed that Fibertec
windows "have excellent insulation
'U-value'" and "have the ability to take in
radiant solar heat in the winter while blocking the UV rays
which cause fading of fabrics, flooring, and rugs inside
the Home." Id. at ¶ 24.
• "[T]he 'e coatings' that Fibertec ha[s]
on their window[s]" will "prolong the life and
quality of the windows and give great energy effeciency
[sic]." Id. at ¶ 26.
• Fibertec windows' "triple pane glass"
design has "great benefits/' and Fibertec windows
are "the type of windows [that the Andersons] need to
meet their needs." Id. at ¶ 25.
• Fibertec "had an excellent reputation when it
came to replacement of broken or failed sealed glass units
even replacing a unit or two at no charge if they were
accidently [sic] broken during installation."
Id. at ¶ 27.
also provided the Andersons with the following one-page
ECF No. 22 at ¶ 37; ECF No. 22-1.
winter of 2011, the Andersons placed an order with Above
& Beyond for $97, 738.43 worth of Fibertec windows. ECF
No. 22 at ¶¶ 29, 48, 115. The Andersons hand
delivered a check to Cook, but Cook did not provide them with
a written contract or a copy of Fibertec's Limited
Lifetime Warranty. Id. at ¶¶ 31-32.
Instead, the Andersons were given a copy of the order form
that Above & Beyond sent to Fibertec. Id. at
¶ 33. That form simply listed the windows'
specifications, such as "the size, e- glass treatments,
[and] design and product information." Id. The
Andersons' windows were delivered and installed in April
2011. Id. at ¶ 39.
November 2014-more than three-and-a-half years later-the
Andersons "first noticed . . . that the windows appeared
to be either cloudy or dirty." ECF No. 22 at ¶ 40.
The Andersons "had the windows professionally cleaned,
which improved the [problem]." Id. at ¶
41. Still, over the next couple of years, the Andersons
continued to notice problems with the windows'
transparency, and twice more had them professionally cleaned.
Id. at ¶¶ 42-45. During the final cleaning
(in July 2016), "the professional window washer
indicated that he was positive that the window units were
failing," pointing out "that the clouding and
condensation was in fact between the panes of glass."
Id. at ¶ 45.
prompted Dean Anderson to contact Fibertec. ECF No. 22 at
¶¶ 45-46. Anderson initially spoke to Marcia
Brooks, who was apparently a customer-service representative.
Id. at ¶ 46. Brooks advised Anderson that
Fibertec had become aware of a problem with the seals of
windows produced during the "time-frame" in which
the Andersons purchased their windows. Id. at ¶
48. She explained that Fibertec would fabricate replacement
windows for the Andersons, but she made no representations
regarding shipping or installation costs. Id. at
¶ 51. Brooks also explained that because the replacement
windows needed to be manufactured-and because the replacement
windows could not be installed in temperatures below 50
degrees (and autumn was fast approaching)-it was unlikely
that the replacement windows could be installed before
spring. Id. at ¶ 52. The Andersons agreed to
wait until spring. Id. at ¶ 53.
in the spring or summer of 2017, Brooks arranged a call
between Anderson and Zion Knafo (the General Manager of
Fibertec). See ECF No. 22 at ¶ 60. Knafo
informed Anderson that Fibertec would provide replacement
glass for all of the Andersons' windows under
Fibertec's Limited Lifetime Warranty. Id. at
¶ 62. But, said Knafo, under the terms of that warranty,
shipping and installation costs were no longer included, as
those expenses were covered for only two years after
delivery, and as the Andersons' windows had been
delivered six years earlier. Id. at ¶¶
62-63; ECF No. 22-2. The Andersons had never been given a
copy of the Limited Lifetime Warranty and saw it for the
first time on July 11, 2017, when Cook emailed a copy. ECF
No. 22 at ¶ 68.
that July, the Andersons made arrangements with Fibertec to
have their glass replaced under the Limited Lifetime
Warranty. ECF No. 22 at ¶ 70. Fibertec told the
Andersons that it would take four to six weeks to deliver the
new glass-meaning that delivery would likely occur in August
2017. Id. at ¶ 72. August came and went, as did
September, and finally in October Fibertec notified the
Andersons that the replacement glass was ready to ship.
Id. at ¶ 77. But because the glass
could not be installed in temperatures below 50 degrees, the
Andersons informed Fibertec that it should not deliver the
glass until spring. Id. at ¶¶ 76, 78-79.
24, 2018, the replacement glass was delivered to the
Andersons' home by defendant E Ship One. ECF No. 22 at
¶ 103. When the glass arrived, though, "over 15% of
the . . . units were visibly damaged." Id. at
¶ 106. The Andersons notified Fibertec that, because
some of the units were defective, they were rejecting all of
the units. Id. at ¶ 112. About three weeks
later, the Andersons filed this action. See ECF No.
1. The Andersons bring various breach-of-warranty and fraud
claims against various defendants. See ECF No. 22.
Defendants Above & Beyond, Cook, and Fibertec move for
judgment on the pleadings on all claims. ECF No. 39; ECF No.
Standard of Review
reviewing a motion for judgment on the pleadings under
Fed.R.Civ.P. 12(c), a court applies the same standard used in
reviewing a motion to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b)(6). Ashley Cty. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009). Under this
standard, the court must accept as true all of the factual
allegations in the complaint and draw all reasonable
inferences in the plaintiffs' favor. Id.
Although the factual allegations in the complaint need not be
detailed, they must be sufficient "to raise a right to
relief above the speculative level. . . ." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
if the parties present, and the court considers, matters
outside of the pleadings, the motion must be treated as a
motion for summary judgment. Fed.R.Civ.P. 12(d). But the
court may consider materials that are necessarily embraced by
the complaint, as well as any exhibits attached to the
complaint, without converting the motion into one for summary
judgment. Mattes v. ABC Plastics, Inc., 323 F.3d
695, 697 n.4 (8th Cir. 2003). In this case, the Court will
consider two documents that are attached to the
Andersons' amended complaint and whose authenticity is
not disputed: the one-page promotional flyer that Cook gave
them at the Home and Garden Show and Fibertec's Limited
Andersons bring various breach-of-warranty claims against
various defendants. Notably, the Andersons do not
argue that Fibertec breached its Limited Lifetime Warranty.
Instead, the Andersons argue that they are protected by
additional warranties, and that defendants have
breached those warranties. In arguing that these additional
warranties exist, the Andersons rely on various statements
that Cook made to them at the Home and Garden Show and on the
one-page promotional flyer that Cook gave them. The Andersons
argue that Cook's oral statements and the flyer establish
a "full" warranty that entitles them to better
remedies than Fibertec's Limited Lifetime Warranty.
Specifically, the Andersons contend that: (1) the flyer is a
"written warranty" under the Magnuson-Moss Warranty
Act ("MMWA"); (2) the flyer and Cook's oral
statements are express warranties under state law; and (3)
various implied warranties automatically arose under state
law. According to the Andersons, every one of these many
warranties were breached by one or more defendants.
Court disagrees. For the reasons explained below, the Court
finds that neither Cook's statements nor the flyer
provide the Andersons with any relevant warranty.
Specifically, the flyer is not a written warranty under the
MMWA, and neither Cook's statements nor the flyer provide
any relevant express warranty under state law. Moreover,
although the Andersons may have had claims for breach of
implied warranties, those claims are now barred by the
statute of limitations. The Andersons are protected only by
the Limited Lifetime Warranty that Fibertec has not been
accused of breaching and that Fibertec continues to be
willing to honor.
Magnuson-Moss Warranty Act: Breach of a "Written
Andersons first argue that Fibertec and Above & Beyond
created and breached a "written warranty" under the
MMWA. Specifically, the Andersons claim that the one-page
promotional flyer that Cook handed to them at the Home and
Garden Show is a "written warranty" for purposes of
the MMWA, a warrantor creates a "written warranty"
when it provides a buyer with any of three things with
respect to a product: (1) a written affirmation or promise
that the product's "material or workmanship is
defect free"; (2) a written affirmation or promise that
the product "will meet a specified level of performance
over a specified period of time"; or (3) a written
undertaking "to refund, repair, replace, or take other
remedial action with respect to such product in the event
that such product fails to meet the specifications set forth
in the undertaking." See 15 U.S.C. §
flyer that Cook provided to the Andersons makes two basic
statements, neither of which meet the MMWA's definition
of "written warranty":
the flyer states that Fibertec "is committed to
manufacturing the most advanced window systems 'in the
world' at an affordable price." ECF No. 22-1. This
statement fails to satisfy any of the MMWA's three bases
for finding a "written warranty":
the first basis: The statement that Fibertec
"manufactur[es] the most advanced window systems 'in
the world'" does not guarantee a completely
defect-free product. After all, "the most advanced
window systems 'in the world'" could be like the