United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION TO DISMISS
HONORABLE RONALD B. LEIGHTON JUDGE
MATTER is before the Court on Defendant Benjamin Moore's
Motion to Dismiss [Dkt. # 19]. Plaintiff Poole claims
Benjamin Moore misrepresented the environmentally friendly or
“green” features of its “Natura”
paint, promising (in advertising and on the can itself) that
it was “emission free” and contained “Zero
V.O.C.s.” The FTC investigated and in a 2017 draft
complaint concluded that those claims were not true. Benjamin
Moore has since voluntarily (but perhaps temporarily,
depending on the final outcome of the FTC investigation)
changed its advertising.
paid a premium for Natura over other Benjamin Moore paints.
She asserts on her own behalf and as the representative of a
putative class claims for breach of express warranty,
violations of the Magnuson Moss Warranty Act, violations of
multiple states' Consumer Protection Acts, and unjust
enrichment. She seeks damages resulting from the
Moore moves to dismiss. It argues that Poole has not alleged
that she saw or was aware of its “green promise”
before she purchased, or that she relied on any
representations in purchasing; it speculates that her
attorneys told her about the statements after she purchased.
It claims that these failures are “fatal” to her
Washington (UCC) and Magnuson Moss warranty claims. It also
argues these claims fail as a matter of law because Poole
cannot establish privity of contract with Benjamin Moore; she
(like any consumer) purchased through an independent dealer.
And it claims her “inability” to allege she even
saw the representations at issue, or that they influenced her
purchase decision, is fatal to her CPA claims. Finally,
Benjamin Moore argues that because Poole has pled
(defectively, it claims) a breach of contract claim, she
cannot maintain a quasi-contractual unjust enrichment claim.
Fed.R.Civ.P. 12(b)(6) Standard.
under Fed.R.Civ.P. 12(b)(6) may be based on either the lack
of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). A plaintiff's complaint must allege facts to
state a claim for relief that is plausible on its face.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim has “facial plausibility” when the party
seeking relief “pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Although the court must accept as true the Complaint's
well-pled facts, conclusory allegations of law and
unwarranted inferences will not defeat an otherwise proper
12(b)(6) motion to dismiss. Vazquez v. Los Angeles
Cty., 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell
v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 556 U.S. at 678 (citing Twombly).
12(b)(6) motion, “a district court should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Cook,
Perkiss & Liehe v. N. Cal. Collection Serv., 911
F.2d 242, 247 (9th Cir. 1990). However, where the facts are
not in dispute, and the sole issue is whether there is
liability as a matter of substantive law, the court may deny
leave to amend. Albrecht v. Lund, 845 F.2d 193,
195-96 (9th Cir. 1988).
short, a defective claim that cannot be fixed should be
dismissed with prejudice and without leave to amend. But if
the claim could be made plausible by alleging additional
facts, the pleader should be permitted to amend her complaint
in lieu of dismissal. Dismissal without prejudice (the
outcome Benjamin Moore seeks here) is rarely warranted.
Breach of Warranty Claims.
Moore argues that Poole has not alleged that she was in
contractual privity with Benjamin Moore-like all consumers
she purchased from an independent dealer, not from Benjamin
Moore-and without privity, she cannot plausibly assert a UCC
or MMA warranty claim. It is of course true that a lack of
privity has historically been a defense to breach of warranty
claims. See Tex Enters., Inc. v. Brockway Standard,
Inc., 149 Wash.2d 204, 209 (2003). But as Benjamin Moore
acknowledges, this requirement is “relaxed” where
the manufacturer makes express representations and the
purchaser is aware of them at the time of purchase.
complaint is replete with examples of Benjamin Moore's
express representations about Natura's
environmentally-friendly properties, including the
“Green Promise” made right on the label. She
argues persuasively that there is no “knowledge [or
awareness] requirement for breach of a clearly labeled
express warranty.” See Baughn v. Honda Motor
Co., 107 Wash.2d 127, 151 (1986); In re Myford Touch
Consumer Litig., 2015 WL 5118308 (N.D. Cal., August 31,
also argues that even if she was required to allege she was
aware of the warranty, she has adequately done so: she pled
that she was “deceived by” the statements made in
the Green Promise, and it necessarily follows that the
statements could not deceive her if she was not aware of
them. In any event, though she does not need to, Poole
clearly could amend her complaint to remedy the
“defect” upon which Benjamin Moore relies. The
claimed defect, then, would lead to not dismissal, but to
amendment. This is an evidentiary challenge, not a pleading
one. The motion to dismiss Poole's warranty claims for
lack of awareness of the warranty is DENIED.
Moore similarly claims that Poole has not plausibly pled that
its Green Promise was a “basis of the bargain.”
The gist of this claim is that despite its advertising,
website and label representations, Poole does not (and
cannot) allege ...