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Anderson v. 1399557 Ontario Ltd.

United States District Court, D. Minnesota

November 4, 2019

DEAN R. ANDERSON and DEBBIJ. ANDERSON, Plaintiffs,
v.
1399557 ONTARIO LTD., [1] 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.

          Jordan W. Anderson, PARKER & WENNER, P.A., for plaintiffs.

          Bryan R. Battina and Nicholas N. Sperling, TREPANIER MACGILLIS BATTINA, P.A., for defendant 1399557 Ontario LTD.

          Kurt M. Mitchell and Kayla J. Giese, HELLMUTH & JOHNSON, PLLC, for defendants Above and Beyond Construction Inc. and Arlo Cook.

          ORDER

          Patrick J. Schiltz United States District Judge

         Plaintiffs 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.[2]

         Unfortunately, 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 without.

         I. BACKGROUND

         The Andersons' amended complaint alleges the following:

         In the 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.

         Cook 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 Andersons that:

• 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.

         Cook also provided the Andersons with the following one-page promotional flyer:

         (Image Omitted)

ECF No. 22 at ¶ 37; ECF No. 22-1.

         In the 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.

         In 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.

         This 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.

         Sometime 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.

         Later 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.

         On May 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. 44.

         II. ANALYSIS

         A. Standard of Review

         In 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 omitted).

         Ordinarily, 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 Lifetime Warranty.

         B. Warranty Claims

         The Andersons bring various breach-of-warranty claims against various defendants.[3] 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.

         The 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.

         1. Magnuson-Moss Warranty Act: Breach of a "Written Warranty"

         The 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.

         Under 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. § 2301(6)(A)-(B).[4]

         The flyer that Cook provided to the Andersons makes two basic statements, neither of which meet the MMWA's definition of "written warranty":

         First, 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":

         As to 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 most ...


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