in the united states district court for the eastern ... · plaintiff alleges that he purchased a...

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

MILWAUKEE DIVISION

DALE KESSLER, individually and on )

behalf of all others similarly situated, )

)

Plaintiffs, )

)

v. ) No. 2:17-cv-00082-LA

)

SAMSUNG ELECTRONICS AMERICA, INC., )

)

Defendant. )

DEFENDANT SAMSUNG ELECTRONICS AMERICA, INC.’S

MEMORANDUM OF LAW IN SUPPORT OF

MOTION TO DISMISS COMPLAINT

Case 2:17-cv-00082-LA Filed 03/30/17 of 29 Document 7

i

TABLE OF CONTENTS

INTRODUCTION……………………………………………………………………………...1

BACKGROUND……………………………………………………………………………....2

LEGAL STANDARD……………………………………………………………………….....5

ARGUMENT………………………………………………………………………………......6

I. PLAINTIFF’S NJCFA CLAIM SHOULD BE DISMISSED………………………....7

A. Plaintiff Is Not Entitled to Sue under the NJCFA…………………………...…7

B. Even If Plaintiff Were Entitled to Assert an NJCFA Claim,

He Fails to State an NJCFA Claim upon Which Relief Could

Be Granted…………………………………………………………………..….9

1. Plaintiff Fails to Plausibly Plead Unlawful

Conduct……………………………………………………………....10

2. Plaintiff Fails to Plausibly Plead

Causation………………………………………………………….…..12

II. Plaintiff’s Breach of Warranty Claims Should Be Dismissed………………………..13

A. Plaintiff Failed to Give Adequate Pre-Suit Notice……………………………13

B. Plaintiffs Cannot State Express and Implied Warranty Claims

Because the Standard Limited Warranty Disclaimed Other Express

and Implied Warranties……………………………………………………….15

III. Plaintiff Fails to State a Magnuson-Moss Warranty Act Claim………………………17

IV. Plaintiff’s Unjust Enrichment Claims Should Be Dismissed…………………………19

V. Plaintiff Lacks Standing to Seek Injunctive Relief Because He Cannot Allege

Future Harm…………………………………………………………………………...20

CONCLUSION……………………………………………………………………………….21


ii

TABLE OF AUTHORITIES

Cases Page(s)

AEP Indus. Inc. v. Thiele Techs. Inc.,

No. 16-C-391, 2016 WL 4591902 (E.D. Wis. Sept. 2, 2016)..............................................6, 15

Am. Express Co. v. Italian Colors Rest.,

133 S.Ct. 2304 (2013) ................................................................................................................5

Anderson v. Gulf Stream Coach, Inc.,

662 F.3d 775 (7th Cir. 2011) ...................................................................................................17

Argabright v. Rheem Mfg. Co.,

201 F. Supp. 3d 578, 608 (D.N.J. 2016) ......................................................................10, 12, 13

Arlandson v. Hartz Mountain Corp.,

792 F. Supp. 2d 691 (D.N.J. 2011) ......................................................................................8, 12

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ...................................................................................................................6

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ...................................................................................................................5

Barden v. Hurd Millwork Co., Inc.,

No. 06-C-46, 2006 WL 2560109 (E.D. Wis. Sept. 5, 2006) (Adelman, J.) .............................14

Barlow v. DeVilbiss Co.,

214 F. Supp. 540 (E.D. Wis. 1963) ..........................................................................................14

Bearden v. Honeywell Int’l, Inc.,

720 F. Supp. 2d 932 (M.D. Tenn. 2010) ..................................................................................18

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ...................................................................................................................5

Camasta v. Jos. A. Bank Clothiers, Inc.,

761 F.3d 732 (7th Cir. 2014) ...................................................................................................20

Clark v. Prudential Ins. Co. of Am.,

No. 08-6197(DRD), 2009 WL 2959801 (D.N.J. Sept. 15, 2009) ............................................11

Consol. Papers, Inc. v. Dorr-Oliver, Inc.,

451 N.W.2d 456 (Wis. Ct. App. 1989) ....................................................................................17


iii

Cooper v. Samsung Elec. Am., Inc.,

374 F. App’x 250 (3d Cir. Mar. 30, 2010) .......................................................................7, 9, 12

Doster Lighting. Inc. v. E-Conolight, LLC,

No. 12-C-0023, 2015 WL 3776491 (E.D. Wis. June 17, 2015) ..................................11, 13, 17

Dzielak v. Whirlpool Corp.,

26 F. Supp. 3d 304, 332 (D.N.J. 2014) ......................................................................................8

Faulkenberg v. CB Tax Franchise Sys., LP,

637 F.3d 801 (7th Cir. 2011) ...................................................................................................13

In re Frito-Lay N. Am., Inc. All Nat. Litig.,

No. 12-MD-2413, 2013 WL 4647512 (E.D.N.Y. Aug. 29, 2013) ...........................................15

Garrison v. Whole Foods Mkt. Grp., Inc,

No. 13-cv-05222-VC, 2014 WL 2451290 (N.D. Cal. June 2, 2014) .......................................20

Glauberzon v. Pella Corp.,

No. 10-5929 (JLL), 2011 WL 1337509 (D.N.J. Apr. 7, 2011) ................................................12

Gray v. BMW of N. Am., LLC,

22 F. Supp. 3d 373, 380 (D.N.J. 2014) ....................................................................................12

Green v. Green Mountain Coffee Roasters, Inc.,

279 F.R.D. 275 (D.N.J. 2011) ..............................................................................................9, 10

Haertle v. Brennan Inv. Grp., LLC,

No. 14-CV-1347, 2017 WL 927617 (E.D. Wis. Mar. 8, 2017) ...............................................11

Hale v. Stryker Ortho.,

No. 08-3367(WJM), 2009 WL 321579 (D.N.J. Feb. 9, 2009) ...................................................9

Harper v. LG Elecs. USA, Inc.,

595 F. Supp. 2d 486 (D.N.J. 2009) ..........................................................................................12

Henderson v. U.S. Bank, N.A.,

615 F. Supp. 2d 804 (E.D. Wis. 2009) .....................................................................................11

Hughes v. Panasonic Consumer Elec. Co.,

No. 10-846 (SDW), 2011 WL 2976839 (D.N.J. July 21, 2011) ..............................................11

Kanter v. Barella,

489 F.3d 170 (3d Cir. 2007).....................................................................................................10

Lieberson v. Johnson & Johnson Consumer Co.,

865 F. Supp. 2d 529 (D.N.J. 2011) ..........................................................................................13


iv

Majdipour v. Jaguar Land Rover N. Am., LLC,

No. 2:12-cv-07849, 2013 WL 5574626 (D.N.J. Oct. 9, 2013) ................................................12

Maniscalco v. Brother Int’l (USA) Corp.,

709 F.3d 202 (3d Cir. 2013).......................................................................................................8

Martin v. Living Essentials, LLC,

160 F. Supp. 3d 1042, 1045 (N.D. Ill. 2016), aff’d, 653 F. App’x 482 (7th Cir.

2016) ..........................................................................................................................................6

McCauley v. City of Chicago,

671 F.3d 611 (7th Cir. 2011) .....................................................................................................6

McNair v. Synapse Grp. Inc.,

672 F.3d 213 (3d Cir. 2012).....................................................................................................21

In re Mercedez-Benz Tele Aid Contract Litig.,

257 F.R.D. 46 (D.N.J. 2009) ....................................................................................................12

Morlan v. Universal Guar. Life Ins. Co.,

298 F.3d 609 (7th Cir. 2002) .....................................................................................................9

Mross v. Gen. Motors Co., LLC,

No. 15-C-0435, 2016 WL 4497300 (E.D. Wis. Aug. 25, 2016) (Adelman, J.) .................16, 19

Murillo v. Kohl’s Corp.,

197 F. Supp. 3d 1119, 1132 (E.D. Wis. 2016) .........................................................................19

Murray v. Holiday Rambler, Inc.,

265 N.W.2d 513 (Wis. 1978) ...................................................................................................17

Nat’l Utility Serv. Inc. v. Chesapeake Corp.,

45 F. Supp. 2d 438 (D.N.J. 1999) ............................................................................................13

Nicosia v. Amazon.com, Inc.,

834 F.3d 220 (2d Cir. 2016).....................................................................................................21

Nirmul. v. BMW of N. Am., LLC,

No. 10-cv-5586, 2011 WL 5195801 (D.N.J. Oct. 31, 2011) .....................................................8

Office Supply Co. v. Basic/Four Corp.,

538 F. Supp. 776 (E.D. Wis. 1982) ..........................................................................................15

Paulson v. Olson Implement Co., Inc.,

319 N.W.2d 855 (Wis. 1982) ...................................................................................................14

Priority Int’l Animal Concepts, Inc. v. Bryk,

No. 12-C-0150, 2012 WL 1854121 (E.D. Wis. May 21, 2012) ..............................................11


v

U.S. ex rel. Roach Concrete, Inc. v. Veteran Pacific, JV,

787 F. Supp. 2d 851 (E.D. Wis. 2011) .....................................................................................19

Robins v. Settlement Funding, LLC,

No 09-CV-0930, 2010 WL 2490766 (E.D. Wis. June 16, 2010) ............................................20

Rosenblum v. Travelbyus.com Ltd.,

299 F.3d 657 (7th Cir. 2002) .....................................................................................................3

Scherr v. Marriott Int’l, Inc.,

703 F.3d 1069 (7th Cir. 2013) .................................................................................................20

Singleton v. Fifth Generation, Inc.,

No. 5:15-CV-474, 2016 WL 406295 (N.D.N.Y. Jan. 12, 2016) .............................................15

Smith v. Apple,

No. 08-AR-1498-S, 2009 WL 3958096 (N.D. Ala. Nov. 4, 2009) .........................................15

Snyder v. Farnam Co., Inc.,

792 F. Supp. 2d 712 (D.N.J. 2011) ..........................................................................................19

St. Paul Mercury Ins. Co. v. The Viking Corp.,

539 F.3d 623 (7th Cir. 2008) ...................................................................................................17

Stand. Fire Ins. Co. v. Knowles,

133 S.Ct. 1345 (2013) ................................................................................................................5

Stearns v. Select Comfort Retail Corp.,

No. 08-2746 JF (PVT), 2009 WL 4723366 (N.D. Cal. Dec. 4, 2009) .....................................18

Tasion Commc’ns, Inc. v. Ubiquiti Networks, Inc.,

No. C-13-1803 EMC, 2014 WL 2916472 (N.D. Cal. June 26, 2014) .....................................15

In re Toshiba Am. HD DVD Mktg. and Sales Practices Litig.,

No. 08-939(DRD), 2009 WL 2940081 (D.N.J. Sept. 11, 2009) ..............................................12

Virnich v. Vorwald,

664 F.3d 206 (7th Cir. 2011) .................................................................................................2, 5

Statutes

Magnuson-Moss Warranty Act ............................................................................7, 5, 13, 17, 18, 19

New Jersey Consumer Fraud Act ............................................................5, 6, 7, 8, 9, 10, 11, 12, 13

Wis. Stat. § 402.607 .......................................................................................................................13

Wis. Stat. § 402.316 .......................................................................................................................16


1

INTRODUCTION

In December 2016 Plaintiff Dale Kessler and Samsung Electronics America, Inc.

(“Samsung”) entered into an express written agreement regarding Plaintiff’s Samsung Galaxy S7

Edge (“Galaxy S7 Edge” or “smartphone”). Plaintiff alleges that, shortly after purchasing his

Galaxy S7 Edge, the glass on its outward-facing camera shattered. Plaintiff alleges that this

occurred, not as a result of external force, but due to an intentionally-concealed product defect,

and he has filed suit against Samsung on behalf of himself and a putative class, alleging

violations of the New Jersey Consumer Fraud Act (“NJCFA”) and the Magnuson-Moss

Warranty Act (“MMWA”) as well as common law claims for breach of express and implied

warranties and unjust enrichment. Even if Plaintiff’s allegations were remotely plausible (and

they are not, at a minimum because the complaint relies on a handful of anonymous online

complaints involving the Galaxy S7 Edge as evidence of a defect impacting millions of devices),

Plaintiff fails to state any claim against Samsung upon which relief could be granted.

First, Plaintiff is a Wisconsin resident, and he does not allege that he purchased his

smartphone outside his home state. Thus, Wisconsin is the state with the most significant

relationship to his claims, and its law applies. That means Plaintiff cannot assert an NJCFA

claim. Second, Plaintiff’s common law express and implied warranty claims fail because he did

not provide the requisite pre-suit notice to Samsung. In addition, the Limited Warranty (the

terms and conditions of which are part of Plaintiff’s agreement with Samsung regarding the

Galaxy S7 Edge1) expressly disclaims all other express and implied warranties. Third, an

MMWA claim is not available to Plaintiff because that statute only provides a cause of action

1 Plaintiff confirms as much. See Complaint (“Compl.”) (Dkt. No. 1) ¶ 30 (“Samsung provides

purchasers of the Galaxy S7 smartphones with an express Limited Warranty for one year from

the date of purchase.”).


2

for plaintiffs who can allege state common law warranty claims, which Plaintiff cannot. In any

event, Plaintiff has failed to comply with the statute’s notice requirement for suits on behalf of a

putative class, and he has also failed to comply with the statute’s 100-plaintiff requirement.

Finally, Plaintiff’s unjust enrichment claim should be dismissed because an unjust enrichment

claim cannot be asserted where, as here, there is an express contract covering the same alleged

conduct. The Complaint should, therefore, be dismissed in its entirety.

BACKGROUND2

Plaintiff alleges that he purchased a Samsung Galaxy S7 Edge on December 29, 2016.

Compl. ¶ 16.3 According to Plaintiff, one of his reasons for purchasing the Galaxy S7 Edge was

its “‘Dual Pixel Sensor’ technology . . . that would allow him to take clear and detailed photos.”

Id. at ¶ 17. He claims that, on January 6, 2017, he noticed the “glass covering the outward-

facing camera on his Galaxy S7 Edge was shattered.” Id. at ¶ 18. Plaintiff alleges that the

device was “resting on a counter” when he heard a “popping sound.” Id. Plaintiff claims he had

“not dropped the device or applied any external force to the glass cover.” Id.

Plaintiff alleges that, the following day, he went to the store of his carrier, U.S. Cellular,

“to show them the device and find out what could be done to solve the problem.” Id. at ¶ 19. He

also alleges that he called Samsung twice—once when he returned from the U.S. Cellular store

and again on January 10, 2017. Id. at ¶¶ 20, 22. During the second call, the Samsung

“representative informed Plaintiff that the broken lens cover was Plaintiff’s fault and that

2 On a motion to dismiss, the Court must accept the factual allegations in the Complaint as true.

See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011), as amended, (Jan. 3, 2012). Samsung

provides a brief recitation of the allegations in Plaintiff’s Complaint but does not accept their

validity for any purpose beyond this motion. Should this action continue, Samsung intends to

vigorously dispute these allegations at the appropriate time. 3 Although Plaintiff does not provide the store name or location where he purchased his Galaxy

S7 Edge, he does allege that “a substantial portion of the events giving rise to the claims alleged

in this Complaint took place within this District.” Compl. ¶ 15.


3

therefore the damage was not covered under his warranty.” Id. at ¶ 22. Plaintiff alleges that “his

only option was to go through his insurance and pay the $175 deductible for a replacement.” Id.

at ¶ 23. Plaintiff does not state whether he returned the phone to Samsung under the Limited

Warranty, whether he bought a replacement, or whether he paid his insurance deductible for a

replacement. Without even waiting long enough for Samsung to consider a submitted claim

under the Limited Warranty, he filed this class action suit on January 19, 2017, just nine days

after the second call. See Complaint.

The box containing Plaintiff’s Galaxy S7 Edge included the Samsung Mobile Phone

Health & Safety and Warranty Guide, setting forth applicable terms and conditions of use (the

“Warranty Guide”). See Declaration of Joy McBeth in Support of Motion to Dismiss (“McBeth

Decl.”), Exhibit (“Ex.”) B.4 The Warranty Guide’s title page states that “[t]his document

contains important terms and conditions with respect to your device. By using this device, you

accept those terms and conditions.” Id. at 1.5 The next page of the Warranty Guide identifies a

Limited Warranty and directs the consumer to the “detailed information about the warranty and

obtaining service” available on the device and online at www.samsung.com/us/Legal/Phone-

HSGuide. Id. at 2.

The legal disclosure, located on two pages later in the Warranty Guide, before the Table

of Contents, provides:

4 It is well settled that “documents attached to a motion to dismiss are considered part of the

pleadings if they are referred to in the plaintiff’s complaint and are central to his claim,” and

such documents may be considered in their entirety by a district court in ruling on the motion to

dismiss. Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002) (quotation marks

and citation omitted). “The court is not bound to accept the pleader’s allegations as to the effect

of the exhibit, but can independently examine the document and form its own conclusions as to

the proper construction and meaning to be given the material.” Id. (quotation marks and citation

omitted). The court’s consideration of the materials in this instance does not convert the motion

to dismiss into a motion for summary judgment under Federal Rule of Civil Procedure 12(d). 5 All page numbers refer to the PDF page number.


4

Disclaimer of Warranties; Exclusion of Liability

EXCEPT AS SET FORTH IN THE EXPRESS WARRANTY CONTAINED ON

THE WARRANTY PAGE ENCLOSED WITH THE PRODUCT, THE

PURCHASER TAKES THE PRODUCT “AS IS”, AND SAMSUNG MAKES

NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER

WITH RESPECT TO THE PRODUCT, INCLUDING BUT NOT LIMITED TO

THE MERCHANTABILITY OF THE PRODUCT OR ITS FITNESS FOR

ANY PARTICULAR PURPOSE OR USE; THE DESIGN, CONDITION OR

QUALITY OF THE PRODUCT; THE PERFORMANCE OF THE PRODUCT;

THE WORKMANSHIP OF THE PRODUCT OR THE COMPONENTS

CONTAINED THEREIN . . . .

McBeth Decl., Ex. B at 5-6. The document further contains a disclaimer of express and implied

warranties:

NOTHING CONTAINED IN THE INSTRUCTION MANUAL SHALL BE

CONSTRUED TO CREATE AN EXPRESS OR IMPLIED WARRANTY OF

ANY KIND WHATSOEVER WITH RESPECT TO THE PRODUCT. IN

ADDITION, SAMSUNG SHALL NOT BE LIABLE FOR ANY DAMAGES OF

ANY KIND RESULTING FROM THE PURCHASE OR USE OF THE

PRODUCT OR ARISING FROM THE BREACH OF THE EXPRESS

WARRANTY, INCLUDING INCIDENTAL, SPECIAL OR CONSEQUENTIAL

DAMAGES, OR LOSS OF ANTICIPATED PROFITS OR BENEFITS.

Id.

Under “Online Legal Information,” the Warranty Guide states that Samsung “warrants

that SAMSUNG’s devices and accessories (“Products”) are free from defects in material and

workmanship under normal use and service.” Id. at 26. The Limited Warranty states that

Samsung provides a one year limited warranty for a device that “is conditioned upon proper use

of the Product.” McBeth Decl., Ex. C [http://www.samsung.com/us/Legal/Phone-HSGuide/];

see also Compl. ¶¶ 30-31. The Limited Warranty contains further exclusions for misuse.

Provided a device is returned to Samsung in accordance with the terms, “SAMSUNG will repair

or replace the Product, at SAMSUNG’s sole option, without charge.” McBeth Decl., Ex. C; see


5

also Compl. ¶ 30. To obtain the warranty service, the purchaser must “return the Product to an

authorized phone service facility. . . .” McBeth Decl., Ex. C.

Plaintiff has filed claims against Samsung alleging: (i) violation of the NJCFA, N.J.S.A.

§ 56:8-1 et seq.; (ii) violation of the MMWA, 15 U.S.C. §§ 2301-2312; (iii) breach of express

warranty; (iv) breach of implied warranty of merchantability; and (v) unjust enrichment. Id. at

¶¶ 44-90. Although Plaintiff’s contract documents contain an Arbitration Agreement under

which class actions are waived,6 he purports to bring his claims, not only on behalf of himself,

but also on behalf of “[a]ll persons and entities in the United States who purchased or leased a

Samsung Galaxy S7, Galaxy S7 Edge, or Galaxy S7 Active.” Id. at ¶ 36. Given the class action

waiver, Plaintiff’s attempt to assert claims on behalf of a putative class is improper.

LEGAL STANDARD

A motion to dismiss should be granted where a plaintiff fails to allege “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Fed. R. Civ. P. 12(b)(6). “In reviewing a plaintiff's claim, the court must

construe all of the plaintiff's factual allegations as true, and must draw all reasonable inferences

in the plaintiff’s favor. However, legal conclusions and conclusory allegations merely reciting

the elements of the claim are not entitled to this presumption.” Virnich v. Vorwald, 664 F.3d

6 The Arbitration Agreement contained in the Limited Warranty to which Plaintiff agreed

includes an “opt out” provision. Although, in an email to Samsung dated January 13, 2017,

Plaintiff opted out of arbitration, that opt-out is only effective as to him. Plaintiff’s action of

opting out cannot bind putative class members. See Stand. Fire Ins. Co. v. Knowles, 133 S.Ct.

1345, 1349 (2013) (“[A] plaintiff who files a proposed class action cannot legally bind members

of the proposed class before the class is certified.”) (citations omitted). The Arbitration

Agreement specifies that no claim can be combined with a dispute by another person, and case

law clearly provides that a contractual class action waiver should be upheld. See Am. Express

Co. v. Italian Colors Rest., 133 S.Ct. 2304 (2013); AT&T Mobility LLC v. Concepcion, 563 U.S.

333 (2011). Accordingly, to the extent Plaintiff’s Complaint survives this motion, Samsung

expressly reserves, and does not waive, the right to compel arbitration of any absent class

members’ claims at the appropriate time.


6

206, 212 (7th Cir. 2011), as amended Jan. 3, 2012 (citing Ashcroft v. Iqbal, 556 U.S. 662

(2009)); see also AEP Indus. Inc. v. Thiele Techs. Inc., No. 16-C-391, 2016 WL 4591902, at *3

(E.D. Wis. Sept. 2, 2016) (“[P]laintiff is obligated to provide more than labels and conclusions

and a formulaic recitation of the elements of a cause of action will not do.”) (quoting Twombly,

550 U.S. at 555) (internal quotation marks and citation omitted). Conclusory allegations “are not

entitled to [a] presumption of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.

2011).

Moreover, “where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not show[n]—that the

pleader is entitled to relief’ under Rule 8.” Martin v. Living Essentials, LLC, 160 F. Supp. 3d

1042, 1045 (N.D. Ill. 2016), aff’d, 653 F. App’x 482 (7th Cir. 2016); see also Fed. R. Civ. P.

8(a)(2) (complaint must contain enough to “show[] that the pleader is entitled to relief”). Thus,

the pleader must “allege more by way of factual content to ‘nudg[e]’ his claim” of unlawful

action “‘across the line from conceivable to plausible.’” Iqbal, 556 U.S. at 683 (quoting

Twombly, 550 U.S. at 570). Moreover, “[d]etermining whether a complaint states a plausible

claim for relief . . . requires the reviewing court to draw on its judicial experience and common

sense.” Id. at 679. Additionally, allegations of fraud (e.g., those made in an NJCFA claim) are

subject to a heightened pleading requirement, and a plaintiff “must state with particularity the

circumstances constituting fraud.” Fed. R. Civ. P. 9(b).

ARGUMENT

As detailed below, the Complaint in this case contains nothing but “legal conclusions and

conclusory allegations [that] merely recit[e] the elements of the claim[s].” McCauley, 671 F.3d

at 616; see also Ashcroft, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff


7

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”). Thus, Plaintiff’s claims should be dismissed.

I. PLAINTIFF’S NJCFA CLAIM SHOULD BE DISMISSED

Plaintiff is not entitled to bring an NJCFA claim because New Jersey law does not apply

to his claims. But even if he had the ability to do so, he fails to allege a plausible NJCFA claim

against Samsung. Accordingly, his NJCFA claim should be dismissed with prejudice.

A. Plaintiff Is Not Entitled to Sue under the NJCFA

When an out-of-state plaintiff attempts to sue under the NJCFA, the court must conduct a

choice of law analysis to determine whether New Jersey has the most significant contacts to the

transaction in question.7 See Cooper v. Samsung Elecs. Am., Inc., 374 F. App’x 250, 255 (3d

7

In Wisconsin, the “first rule” of choice of law “is that the law of the forum should

presumptively apply unless it becomes clear that nonforum contacts are of the greater

significance.” Henderson v. U.S. Bank, N.A., 615 F. Supp. 2d 804, 808 (E.D. Wis. 2009)

(quotation marks and citation omitted); see also Haertle v. Brennan Inv. Grp., LLC, No. 14-CV-

1347, 2017 WL 927617, at *6 (E.D. Wis. Mar. 8, 2017) (same); Priority Int’l Animal Concepts,

Inc. v. Bryk, No. 12-C-0150, 2012 WL 1854121, at *7 (E.D. Wis. May 21, 2012) (same). For

tort claims that are tied to contract claims, Wisconsin courts consider where the injurious

conduct and injury occurred, in addition to the same factors that apply to determine the choice-

of-law rules for contracts. Doster Lighting. Inc. v. E-Conolight, LLC, No. 12-C-0023, 2015 WL

3776491, at *11 (E.D. Wis. June 17, 2015) (citing NCR Corp. v. Transp. Ins. Co., 823 N.W.2d

532, 535-36 (Wis. Ct. App. 2012)). Specifically, Wisconsin courts apply the “grouping of

contacts” rule and qualitatively “evaluate[] five factors to determine which state has the most

significant contacts with the case: (1) the place of contracting; (2) the place of negotiating of the

contract; (3) the place of performance; (4) the place the contract subject matter is situated; and

(5) the domicile, residence, nationality, place of incorporation and place of business of the

parties.” Id. In New Jersey, where a plaintiff pleads a fraud claim and the alleged false

representations were made in a state other than where the plaintiff’s action in reliance took place,

courts analyze the choice of law for NJCFA claims using the following six considerations: “(1)

the places, or places, where the plaintiff acted in reliance upon the defendant’s representations;

(2) the place where the plaintiff received the representations; (3) the place where the defendant

made the representations; (4) the domicile, residence, nationality, place of incorporation and

place of business of the parties; (5) the place where a tangible thing which is the subject of the

transaction between the parties was situated at the time; and (6) the place where the plaintiff is to

render performance under a contract which he has been induced to enter by the false

representations of the defendant.” Clark v. Prudential Ins. Co. of Am., No. 08-6197(DRD), 2009


8

Cir. Mar. 30, 2010) (granting Samsung’s motion to dismiss class action claim arising under the

NJCFA for alleged defects in television because plaintiff, “who purchased the television in his

home state [outside New Jersey], is not entitled to sue under the New Jersey consumer fraud

statute,” and because “[t]he transaction in question bears no relationship to New Jersey other

than the location of [defendant’s] headquarters”); Nirmul. v. BMW of N. Am., LLC, No. 10-cv-

5586, 2011 WL 5195801, at *4 (D.N.J. Oct. 31, 2011) (same); see also Dzielak v. Whirlpool

Corp., 26 F. Supp. 3d 304, 332 (D.N.J. 2014) (citing Cooper and holding that a plaintiff “may

bring state law [consumer fraud] claims only under the law of the state where he or she lived and

the alleged injury occurred”); Maniscalco v. Brother Int’l (USA) Corp., 709 F.3d 202, 208-10

(3d Cir. 2013) (where plaintiffs were South Carolina and California residents, defendant was a

Delaware company with a principal place of business and headquarters in New Jersey and its

parent corporation in Japan, court dismissed NJCFA claims, finding that South Carolina had the

most significant relationship to plaintiff’s claims). Where alleged misrepresentations were

received by plaintiffs in their home states and the transactions at issue took place in their home

states, courts find the plaintiffs’ home state to have the most significant relationship to an

NJCFA claim, even if the defendant is located in New Jersey. Arlandson v. Hartz Mountain

Corp., 792 F. Supp. 2d 691, 709 (D.N.J. 2011) (“Since the Court has determined that Plaintiffs’

WL 2959801, at *7 (D.N.J. Sept. 15, 2009); see also In re Mercedez-Benz Tele Aid Contract

Litig., 257 F.R.D. 46, 64-65 (D.N.J. 2009). The courts in the Third Circuit frequently determine

choice-of-law questions at the motion to dismiss phase. Gray v. BMW of N. Am., LLC, 22 F.

Supp. 3d 373, 380 (D.N.J. 2014); Arlandson v. Hartz Mountain Corp., 792 F. Supp. 2d 691, 699-

700 (D.N.J. 2011); Harper v. LG Elecs. USA, Inc., 595 F. Supp. 2d 486, 491 (D.N.J. 2009).

Discovery is not necessary where, as here, even accepting as true what the discovery would

reveal, the Court would conclude that the balance of factors weighs clearly in favor of applying

non-New Jersey consumer fraud law. Cooper v. Samsung Elec. Am., Inc., 374 F. App’x 250, 255

n.5 (3d Cir. Mar. 30, 2010); Majdipour v. Jaguar Land Rover N. Am., LLC, No. 2:12-cv-07849,

2013 WL 5574626, at *9 (D.N.J. Oct. 9, 2013).


9

consumer fraud claims must be brought under their home states’ laws, only New Jersey Plaintiffs

may state an NJCFA claim.”).8

Plaintiff, a Wisconsin resident, commenced this action in Wisconsin, where he

acknowledges “a substantial portion of the events giving rise to the claims alleged in the

Complaint took place.” Compl. ¶ 15. Although Plaintiff does not specifically state where he

purchased his smartphone, he alleges no facts from which it could be inferred that it was not

purchased in Wisconsin. Plaintiff nonetheless asserts that he is entitled to bring an NJCFA claim

because Samsung’s corporate headquarters are located in New Jersey and that, from that

location, Samsung made “decisions, including the decisions as to how to advertise, promote, and

sell the Galaxy S7 series.” Compl. ¶ 56. NJCFA case law is clear that this is not a sufficient

contact with New Jersey to allow Plaintiff to bring an NJCFA claim, and thus Plaintiff’s NJCFA

claim should be dismissed on this ground alone. See Cooper, 374 F. App’x at 255.

B. Even If Plaintiff Were Entitled to Assert an NJCFA Claim, He Fails to State

an NJCFA Claim upon Which Relief Could Be Granted

“To state a private cause of action under the [NJ]CFA, ‘a plaintiff must allege each of

three elements: (1) unlawful conduct by the defendants; (2) an ascertainable loss on the part of

the plaintiff; and (3) a causal relationship between the defendants’ unlawful conduct and the

plaintiff’s ascertainable loss.’” Green v. Green Mountain Coffee Roasters, Inc., 279 F.R.D. 275,

280 (D.N.J. 2011). NJCFA claims are also subject to the heightened pleading requirement of

8 The fact that this case is styled as a class action does not change the analysis as, unless and

until a class has been certified, a plaintiff may only state claims on his/her own behalf. See Hale

v. Stryker Ortho., No. 08-3367(WJM), 2009 WL 321579, at *6 (D.N.J. Feb. 9, 2009) (“Until the

putative class is certified, the action is one between the [named plaintiffs] and the defendants.”)

(quoting Rola v. City Inv. Co. v. Liquidating Trust, 155 F.3d 644, 659 (3d Cir. 1998) (quotation

marks omitted)); see also Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609, 616 (7th Cir.

2002) (“[U]ntil certification there is no class action but merely the prospect of one; the only

action is the suit by the named plaintiffs.”).


10

Federal Rule of Civil Procedure 9(b). See id. at 279 (NJCFA claim requires plaintiffs to “state

with particularity the circumstances constituting fraud”); see also Kanter v. Barella, 489 F.3d

170, 175 (3d Cir. 2007) (to plead fraud, plaintiff must state “the ‘who, what, when, where, and

how of the events at issue’”). Plaintiff fails to plausibly allege either unlawful conduct by

Samsung or any causal relationship between Samsung’s alleged conduct and his alleged loss.

Thus, even if Plaintiff could avail himself of the NJCFA, he is unable to state an NJCFA claim

upon which relief could be granted.

1. Plaintiff Fails to Plausibly Plead Any Unlawful Conduct

The Complaint alleges conclusorily that Samsung “made uniform representations that the

Galaxy S7 was of a particular standard, quality or grade when it was not” and avers that

Samsung made “false and/or misleading statements regarding the capacity and characteristics” of

the product. Compl. ¶ 49. Plaintiff pleads no facts to show the “who, what, when, where, and

how” of the allegedly fraudulent misrepresentation. Nor does Plaintiff identify any particular

statement or representation that he claims to have seen prior to purchasing the phone. See id. at ¶

16. General claims such as the product is “top-quality,” “innovative,” “dependable,” or with

“great warranties” are not measurable or concrete, and cannot constitute a misrepresentation of

material fact. See Argabright v. Rheem Mfg. Co., 201 F. Supp. 3d 578, 608 (D.N.J. 2016)

(finding on a motion to dismiss that plaintiffs failed to state a claim for relief under the NJCFA).

Such statements are mere “puffery” and thus cannot be the basis for a fraud claim. Id.

(“[S]tatements that are conclusory, or that constitute merely vague and ill-defined opinions or

puffery are not assurances of fact and thus do not constitute misrepresentations.”) (quotation

marks and citation omitted). Likewise, statements that “products are routinely tested and

certified” or “meet and exceed rigorous industry and regulatory standards,” are “too vague to


11

mislead the consumer.” Id. at 609. Plaintiff improperly attempts to cast an alleged warranty

statement as a misrepresentation subject to the NJCFA. But a breach of warranty, by itself, does

not violate the NJCFA. Id. (citing Cox v. Sears Roebuck & Co., 647 A.2d 454, 462 (N.J. 1994)

(a breach of warranty or any breach of contract is “‘not per se unfair or unconscionable’” and

does not violate NJCFA)).

Plaintiff also fails to plead a knowing omission, which requires pleading with

particularity that defendant acted with knowledge and intent. See Hughes v. Panasonic

Consumer Elec. Co., No. 10-846 (SDW), 2011 WL 2976839, at *12 (D.N.J. July 21, 2011)

(citing Cox, 647 A.2d at 462 (while intent is not an essential element when a plaintiff pleads an

affirmative act, if the plaintiff asserts an omission, then plaintiff must prove intent)). The

Complaint’s blanket recitation that Samsung “intentionally concealed and/or failed to disclose”

the alleged defect (Compl. at ¶ 50) and “had exclusive knowledge” of the alleged defect (id. at ¶

51) is the very definition of conclusory and falls far short of pleading facts that could support

bare averments. Indeed, the implausible nature of Plaintiff’s allegations concerning Samsung’s

supposedly unlawful conduct is apparent on the face of the Complaint. While conceding that

Samsung has sold “millions” of Galaxy S7 smartphones in the United States alone (id. at ¶ 38),

the Complaint identifies only four anonymous internet complaints about the smartphones, which

only discussed individual user’s phones, and cannot constitute a knowing omission by Samsung.

See id. at ¶ 25. These conclusory allegations do not come close to satisfying the “who, what,

when, where, and how” requirements of Rule 9(b). See, e.g., Hughes, 2011 WL 2976839, at *14

(allegations that Panasonic “knew ‘or should have known’” of product defect, with “no

additional facts explaining how or why Panasonic had knowledge of the Defect,” were “merely

conclusory assertions” that failed “to raise any plausible inference that Panasonic knowingly


12

concealed the Defect with the intent that consumers and industry experts would rely upon the

concealment”); see also Glauberzon v. Pella Corp., No. 10-5929 (JLL), 2011 WL 1337509, at *9

(D.N.J. Apr. 7, 2011) (dismissing NJCFA claim under Rule 9(b) because, inter alia, “Plaintiffs

do not identify . . . when or how the decision was made to conceal the defect from its

customers”); In re Toshiba Am. HD DVD Mktg. and Sales Practices Litig., No. 08-939(DRD),

2009 WL 2940081, at **11-13 (D.N.J. Sept. 11, 2009) (plaintiffs failed to plead sufficient facts

to support allegations of omissions by Toshiba). Plaintiff’s NJCFA claim should thus be

dismissed for failure to allege unlawful conduct with specificity required by Rule 9(b).

2. Plaintiff Fails to Plausibly Plead Causation

The NJCFA “require[s] the plaintiff to establish a ‘causal connection between some

injury to the plaintiff[] and some misrepresentation made by the defendant.’” Argabright, 201 F.

Supp. 3d at 610 (citing Bosland v. Warnock Dodge, Inc., 964 A.2d 741, 749 (N.J. 2009)

(requiring a “causal relationship between the unlawful conduct and the ascertainable loss”)). To

allege causation, “a plaintiff must state in his complaint that he has seen the misleading

statements of which he complains before he came into possession of the products he purchased.”

Id. at 611 (internal quotation omitted). There is “no connection between the deceptive act and

the plaintiff’s injury” if the plaintiff did not see, and rely upon, the statements before purchase.

Id. (internal quotation and citation omitted).

Here, Plaintiff does not allege any causal connection between his alleged injury—the

shattered glass on the camera lens of his smartphone — and some alleged misrepresentation or

omission by Samsung. Plaintiff’s complete failure to connect the dots does not satisfy the more

lenient standards of Rule 8, much less the stricter requirements of Rule 9(b) that apply to NJCFA

claims. Stated differently, because the Complaint omits any factual allegations that could create


13

an inference that, at the time of his purchase, Plaintiff relied on any alleged misrepresentations

before purchasing the Galaxy S7 Edge, then, as a matter of law, Plaintiff fails to allege any injury

as a result of the alleged misrepresentation or omission. See Argabright, 201 F. Supp. 3d at 611

(dismissing NJCFA claim in a class action suit because the complaint did not contain any facts

which would create an inference that plaintiffs were aware of the allegedly false advertising

claims before they purchased the HVAC units); see also Lieberson v. Johnson & Johnson

Consumer Co., 865 F. Supp. 2d 529, 539 (D.N.J. 2011) (finding plaintiff did not satisfy Rule 9(b)

where plaintiff did not identify whether and when plaintiff actually viewed the alleged

misrepresentation). Plaintiff’s NJCFA claim should be dismissed for failure to allege causation.

II. PLAINTIFF’S BREACH OF WARRANTY CLAIMS SHOULD BE DISMISSED

A. Plaintiff Failed to Give Adequate Pre-Suit Notice

In Wisconsin, a buyer must give the seller notice of an alleged breach of warranty to be

eligible for any relief.9 See Wis. Stat. § 402.607(3)(a) (“The buyer must within a reasonable time

after the buyer discovers or should have discovered any breach notify the seller of breach or be

barred from any remedy. . . .”). To survive a motion to dismiss under Rule 12(b)(6), therefore,

Plaintiff, as buyer, must plead that he provided the requisite notice to Samsung, the seller. See

9

In Wisconsin, “the claims of a MMWA violation, breach of the implied warranty of

merchantability, and [claims] regarding written warranty all involve Wisconsin’s choice-of-law

rules for contracts.” Doster Lighting, 2015 WL 3776491, at *11. As discussed in Section II, n.7,

supra, under Wisconsin’s choice-of-law rules for contracts, Wisconsin has the most significant

contacts to Plaintiff’s warranty claims, and thus, applies for purposes of this motion to dismiss.

Id.; see also Nat’l Utility Serv. Inc. v. Chesapeake Corp., 45 F. Supp. 2d 438, 446-47 (D.N.J.

1999) (considering the same five factors). In addition, we note that the parties agreed that the

laws of the State of Texas would apply to interpretation of the Limited Warranty, see McBeth

Decl., Ex. B at 26 [Warranty Guide]. Therefore, to the extent that Plaintiffs’ claims survive this

motion to dismiss, which they should not, Samsung reserves the right to apply Texas state law to

all subsequent questions of contract interpretation. See Faulkenberg v. CB Tax Franchise Sys.,

LP, 637 F.3d 801, 809 (7th Cir. 2011) (“[W]e would normally respect the law chosen in the . . .

agreement” unless the parties fail to mention that choice of law directs otherwise).


14

Barlow v. DeVilbiss Co., 214 F. Supp. 540, 544 (E.D. Wis. 1963) (“[N]otice is a condition

precedent to a right of recovery.”). Cf. Barden v. Hurd Millwork Co., Inc., No. 06-C-46, 2006

WL 2560109, at *3 (E.D. Wis. Sept. 5, 2006) (Adelman, J.) (finding “sufficient notice to recover

under Wisconsin law is not a pleading issue but an evidentiary one, which is appropriately

addressed at a later stage of the proceedings”).

Plaintiff’s breach of express warranty claim (Count III) alleges that “Samsung [] received

sufficient and timely notice of the breaches of warranty” but does not specify how such alleged

notice was provided. See Compl. ¶ 70. Likewise, Plaintiff’s implied warranty claim (Count IV)

alleges that “sufficient and timely notice” was provided but does not describe the notice. See id.

at ¶ 83. Plaintiff alleges that he had two phone conversations with Samsung representatives, but

he does not allege that he returned the phone to an authorized phone service facility as required

to obtain warranty service under the Limited Warranty. See McBeth Decl., Ex. C

[http://www.samsung.com/us/Legal/Phone-HSGuide/]. Plaintiff’s phone call was not sufficient

notice of a breach of warranty, as it did not allow Samsung sufficient time to cure the alleged

problem where Plaintiff filed his class action suit only nine days later. See Compl. [1/19/2017].

See also Paulson v. Olson Implement Co., Inc., 319 N.W.2d 855, 862 (Wis. 1982) (concluding

that the purpose of the notice provision to enable seller to cure defect is effected where plaintiffs

commenced action after seller proved unable to repair defect despite multiple opportunities to do

so). Plaintiff asserts that “Samsung has received hundreds, if not thousands, of complaints and

other notices from consumers advising them of the defective camera lens cover in the Galaxy S7

smartphone” (id. at ¶¶ 71, 84), but he does not identify the source of the “hundreds” or

“thousands” of alleged complaints, nor does he explain how Samsung would have been provided


15

notice. The “Factual Background” section of the Complaint refers to just four posts in an online

forum by anonymous users. See id. at ¶ 25.

Courts take notice requirements for warranty claims seriously. General allegations that a

defendant had knowledge of the alleged breach are insufficient to satisfy a warranty notice

requirement. See Smith v. Apple, No. 08-AR-1498-S, 2009 WL 3958096, at *2 (N.D. Ala. Nov.

4, 2009) (“[A] general awareness on Apple’s part of alleged defects in its iPhone does not

extinguish the purposes of the notice requirement, nor does it substitute for that requirement

under Alabama law”); Tasion Commc’ns, Inc. v. Ubiquiti Networks, Inc., No. C-13-1803 EMC,

2014 WL 2916472, at *11 (N.D. Cal. June 26, 2014) (“[C]ourts have interpreted the UCC’s

notice provision as requiring notice even where the seller has knowledge of the defect”). Courts

also do not permit plaintiffs to allege a general awareness of a potential breach of warranty claim

as a substitute for actual notice. See Singleton v. Fifth Generation, Inc., No. 5:15-CV-474

(BKS/TWD), 2016 WL 406295, at *12 (N.D.N.Y. Jan. 12, 2016) (“Here, the fact that Defendant

may have been aware of similar claims involving [the product’s] labels did not put Defendant on

notice of Plaintiff’s particular claims.”); see also In re Frito-Lay N. Am., Inc. All Nat. Litig., No.

12-MD-2413, 2013 WL 4647512, at *28 (E.D.N.Y. Aug. 29, 2013). Plaintiff’s breach of express

and implied warranty claims should thus be dismissed for failure to provide pre-suit notice.

B. Plaintiff Cannot State Express or Implied Warranty Claims Because the

Standard Limited Warranty Disclaimed Other Warranties

It is well established that “[e]xclusions or disclaimers of implied warranties are lawful

and must be given effect if they are in writing and conspicuous.” See AEP Indus. Inc., 2016 WL

4591902, at *5 (citing Wis. Stat. § 402.316(2)); Office Supply Co. v. Basic/Four Corp., 538 F.

Supp. 776, 783 (E.D. Wis. 1982) (under UCC, parties may offer a limited warranty and exclude

all implied warranties). The Limited Warranty, pleaded in Plaintiff’s Complaint, “contains


16

everything needed to show that the defendant must prevail on an affirmative defense,” because

the language could not be more explicit that all other express and implied warranties are

disclaimed. Cf. Mross v. Gen. Motors Co., LLC, No. 15-C-0435, 2016 WL 4497300, at *6 (E.D.

Wis. Aug. 25, 2016) (Adelman, J.); see also Wis. Stat. § 402.316(2) (language excluding implied

warranties “is sufficient if it states, for example, that ‘[t]here are no warranties which extend

beyond the description on the face hereof.’”). Even if Plaintiff had provided the required notice,

the Galaxy S7 Edge’s Limited Warranty disclaims any other express and implied warranties.

Plaintiff received notice of the terms and conditions of the Limited Warranty when he

purchased his smartphone. Indeed, Plaintiff is seeking to recover under the Limited Warranty.

See Compl. ¶ 30 (“Samsung provides purchasers of the Galaxy S7 smartphones with an express

Limited Warranty for one year from the date of purchase.”).10

As noted, the Limited Warranty’s

disclaimer of express and implied warranties was clear and unambiguous. See McBeth Decl.,

Ex. B at 5-6 (stating: “EXCEPT AS SET FORTH IN THE EXPRESS WARRANTY

CONTAINED ON THE WARRANTY PAGE ENCLOSED WITH THE PRODUCT, THE

PURCHASER TAKES THE PRODUCT “AS IS”, AND SAMSUNG MAKES NO EXPRESS

OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE

PRODUCT. . . .”). That means, except for the Limited Warranty, Plaintiff accepted the

smartphone “as is.” Id.; see also Wis. Stat. § 402.316(3)(a) (“[A]ll implied warranties are

excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common

10

Regardless of whether Plaintiff actually saw the Limited Warranty – and he clearly did based

on the fact that he opted out of the Arbitration Agreement contained within the warranty – notice

of the Limited Warranty was conspicuously and repeatedly provided to Plaintiff in several

formats, including but not limited to (i) the Warranty Guide, McBeth Decl., Ex. B; (ii)

Samsung’s website, id. at Ex. C; and (iii) the device itself. Samsung’s exterior packaging

expressly states that “[d]evice purchase [is] subject to additional Samsung terms and conditions.”

See id. at Ex. A [Exterior Packaging].


17

understanding calls the buyer’s attention to the exclusion of warranties and makes plain that

there is no implied warranty.”); Consol. Papers, Inc. v. Dorr-Oliver, Inc., 451 N.W.2d 456, 462

(Wis. Ct. App. 1989) (“Warranties whether express or implied shall be construed as consistent

with each other and as cumulative, but if such construction is unreasonable the intention of the

parties shall determine which warranty is dominant.”) (quoting Wis. Stat. § 402.317); Murray v.

Holiday Rambler, Inc., 265 N.W.2d 513, 517-18 (Wis. 1978) (“A disclaimer of warranties limits

the seller’s liability by reducing the number of circumstances in which the seller will be in

breach of the contract; it precludes the existence of a cause of action.”). Because the Limited

Warranty disclaimed all other express and implied warranties, Plaintiff’s breach of express and

implied warranty claims should be dismissed.11

III. PLAINTIFF FAILS TO STATE AN MMWA CLAIM

The MMWA “does not create any federal law of warranty but instead requires district

courts to apply the underlying state’s warranty law.” Doster Lighting, Inc. v. E-Conolight, LLC,

No. 12-C-0023, 2015 WL 3776491, at *10 n.6 (E.D. Wis. June 17, 2015) (citing Walsh v. Ford

Motor Co., 807 F.2d 1000, 1012 (7th Cir. 1986)); see Anderson v. Gulf Stream Coach, Inc., 662

F.3d 775, 781 (7th Cir. 2011) (enforcing a limited written warranty or implied warranty under

section 2310(d)(1) in federal court “borrow[s] state law causes of action” and “the consumer

must give the warrantor ‘a reasonable opportunity to cure’ its failure to comply with ‘an

11

The Limited Warranty pleaded in Plaintiff’s Complaint is part of a valid agreement between

Samsung and Plaintiff. Plaintiff’s express and implied warranty claims must be dismissed based

on the disclaimer in the Limited Warranty. See, e.g., Murray v. Holiday Rambler, Inc., 265

N.W.2d 513, 517-18 (Wis. 1978). If, however, the Court finds there is not a valid contract

between the parties, Plaintiff’s express and implied warranty claims still must fail because

Wisconsin law requires privity of contract for breach of warranty claims. See St. Paul Mercury

Ins. Co. v. The Viking Corp., 539 F.3d 623, 626-29 (7th Cir. 2008) (affirming the grant of

summary judgment in favor of defendant on breach of warranty claim because there was no

agreement between the parties at the time of purchase, and therefore, no privity of contract

existed).


18

obligation under any written or implied warranty”); see also 15 U.S.C §§ 2310(d)(1), 2310(e).

This means that a plaintiff who cannot state any state common law breach of warranty claim also

cannot state an MMWA claim. Because Plaintiff’s underlying common law claims for breach of

express and implied warranties fail (see Section II, supra), his MMWA claim must likewise be

dismissed.

Plaintiff also failed to give Samsung notice of his intent to file a class action, which, in

turn, deprived Samsung of a reasonable opportunity to cure any alleged failure to comply with

the purported warranty obligation. The MMWA provides:

No action . . . may be brought under subsection (d) of this section for failure to

comply with any obligation under any written or implied warranty . . . and a class

of consumers may not proceed in a class action under such subsection . . . unless

the [defendant] obligated under the warranty . . . is afforded a reasonable

opportunity to cure such failure to comply. In the case of such a class action . . .

such reasonable opportunity will be afforded by the named plaintiffs and they

shall at that time notify the defendant that they are acting on behalf of the

class. . . .

15 U.S.C. § 2310(e) (emphasis added). A complaint is properly dismissed if it fails to allege that

plaintiff informed defendant prior to filing suit that plaintiff was acting on behalf of a class. See,

e.g., Bearden v. Honeywell Int’l, Inc., 720 F. Supp. 2d 932, 936-37 (M.D. Tenn. 2010)

(dismissing MMWA putative class action claim where named individual had informed defendant

that she would “begin looking for an attorney,” but did not provide notice “that she intended to

bring a class action”); Stearns v. Select Comfort Retail Corp., No. 08-2746 JF (PVT), 2009 WL

4723366, at **32-33 (N.D. Cal. Dec. 4, 2009) (“While the [second amended complaint] contains

allegations that the named Plaintiffs contacted Select Comfort about mold in their beds, Plaintiffs

once again have failed to allege that they provided adequate notice to Select Comfort that they

were acting on behalf of the class prior to filing suit.”).


19

Additionally, the MMWA prohibits class actions in federal court where there are fewer

than 100 named plaintiffs. See MMWA, § 2310(d)(3)(c); but see Mross, 2016 WL 4497300, at

*7. The Complaint in this case purports to be brought on behalf of a putative class, yet there is

only one named plaintiff: Dale Kessler. For all of these reasons, Plaintiff’s MMWA claim

should be dismissed.

IV. PLAINTIFF’S UNJUST ENRICHMENT CLAIM SHOULD BE DISMISSED

To recover under the theory of unjust enrichment, Plaintiff must prove “(1) conferral of a

benefit (2) with the knowledge of the party benefitted and (3) under circumstances where it is

inequitable to permit the party to retain the benefit without payment.” U.S. ex rel. Roach

Concrete, Inc. v. Veteran Pacific, JV, 787 F. Supp. 2d 851, 858 (E.D. Wis. 2011); accord,

Murillo v. Kohl’s Corp., 197 F. Supp. 3d 1119, 1132 (E.D. Wis. 2016).12

Unjust enrichment is

not available where, as here, there is an adequate remedy at law. See U.S. ex rel. Roach

Concrete, Inc., 787 F. Supp. 2d at 858 (“[C]laims for unjust enrichment and quantum meruit only

apply where the services performed were not covered by the parties’ contract, where the contract

is invalid or where the contract is unenforceable.”). Stated differently, unjust enrichment cannot

be pled where a valid contract covering the same subject matter exists. See id. at 859 (dismissing

unjust enrichment claim where plaintiff pleaded existence of a valid contract); Murillo, 197 F.

Supp. 3d at 1132 (unjust enrichment “can be invoked only in the absence of an enforceable

contract” and “[a] purchase transaction . . . forms a contract between the buyer and the seller.”).

Here, Plaintiff and Samsung entered into a valid contract when Plaintiff purchased the

smartphone. Plaintiff further acknowledges a written agreement with Samsung by pleading the

12

Although Wisconsin has the most significant contacts to Plaintiff’s claims and, thus,

Wisconsin’s law generally applies (see Section I, supra), New Jersey’s law governing unjust

enrichment claims does not conflict with Wisconsin’s. Cf. Snyder v. Farnam Co., Inc., 792 F.

Supp. 2d 712, 723-24 (D.N.J. 2011).


20

Limited Warranty in the Complaint. See, e.g., Compl. ¶¶ 30-31. Plaintiff’s unjust enrichment

claim should, therefore, be dismissed. See Robins v. Settlement Funding, LLC, No 09-CV-0930,

2010 WL 2490766, at *3 (E.D. Wis. June 16, 2010) (dismissing plaintiff’s unjust enrichment

claim “because the claim arises directly out of plaintiff’s contract with [defendant]”) (citing

Meyer v. The Laser Vision Inst., 714 N.W.2d 223, 230 (Wis. Ct. App. 2006) (stating that where

the parties’ rights are governed by a contract, equitable claims premised on the contractual

relationship are barred)).

V. PLAINTIFF LACKS STANDING TO SEEK INJUNCTIVE RELIEF BECAUSE

HE CANNOT ALLEGE FUTURE HARM

To establish Article III standing when seeking prospective injunctive relief, a plaintiff

“must allege a ‘real and immediate’ threat of future violations of [her] rights.” Scherr v.

Marriott Int’l, Inc., 703 F.3d 1069, 1074 (7th Cir. 2013). Plaintiff has not plausibly alleged that

he is likely to suffer future harm as a result of the glass on the camera of his Samsung Galaxy S7

Edge allegedly shattering. Even though Plaintiff does not allege ongoing harm to himself, he

requests “an order enjoining Samsung from continuing the unlawful, deceptive, and unfair

business practices alleged herein.” Compl. ¶ 55. This assertion is plainly contradicted by other

portions of the Complaint, which allege that the glass on the camera of Plaintiff’s Samsung

Galaxy S7 Edge has already shattered. Id. at ¶ 18. Having learned about the allegedly “defective

camera glass in the Galaxy S7 series smartphones,” there is “no danger that [Plaintiff] will be

misled in the future.” Garrison v. Whole Foods Mkt. Grp., Inc, No. 13-cv-05222-VC, 2014 WL

2451290, at *5 (N.D. Cal. June 2, 2014) (dismissing claim for injunctive relief where plaintiffs

could not plausibly allege a threat of future deception); see also Camasta v. Jos. A. Bank

Clothiers, Inc., 761 F.3d 732, 740-41 (7th Cir. 2014) (rejecting plaintiffs’ “speculative claim that

he will be harmed again” as implausible “[s]ince [plaintiff] is now aware of [defendant’s


21

allegedly misleading] sales practices”). Moreover, the Complaint alleges no likelihood that

Plaintiff will purchase another Galaxy S7 Edge in the future. See Nicosia v. Amazon.com, Inc.,

834 F.3d 220, 239 (2d Cir. 2016) (plaintiff did not establish a likelihood of future or continuing

harm where he did not allege a likelihood of further purchases); McNair v. Synapse Grp. Inc.,

672 F.3d 213, 224-26 (3d Cir. 2012) (affirming dismissal of claims for injunctive relief because

allegation that plaintiffs “may, one day, become Synapse customers once more” fails to

“establish[] any reasonable likelihood of future injury”; therefore, plaintiffs had “no basis for

seeking injunctive relief against” defendant).

CONCLUSION

For the foregoing reasons, Samsung respectfully requests that the Complaint be dismissed

in its entirety and with prejudice.


Dated: March 30, 2017

Respectfully submitted,

s/ David E. Sellinger

David E. Sellinger

500 Campus Drive, Suite 400

Florham Park, NJ 07932

Phone: (973) 360-7900

Fax: (973) 301-8410

[email protected]

Richard A. Edlin

MetLife Building

200 Park Avenue

New York, NY 10166

Phone: (212) 801-9200

Fax: (212) 801-6400

[email protected]

Francis A. Citera

Greenberg Traurig, LLP

77 West Wacker Drive, Suite 3100

Chicago, IL 60601

Phone: (312) 456-8400

Fax: (312) 456-8435

[email protected]

Attorneys for Defendant Samsung

Electronics America, Inc.


mailto:[email protected]



CERTIFICATE OF SERVICE

I hereby certify that on March 30, 2017, I electronically filed the foregoing Memorandum

of Law in Support of Samsung Electronics America Inc.’s Motion to Dismiss the Complaint with

the Clerk of Court for the United States District Court for the Eastern District of Wisconsin by

using the Electronic Court Filing System (“CM/ECF”). I certify that all participants in the case

are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

s/ David E. Sellinger

David E. Sellinger


in the united states district court for the eastern ... · plaintiff alleges that he purchased a...

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