MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
Jonathan and Fredrick Nieberding bring this putative class action lawsuit against Barrette Outdoor Living, Inc., Home Depot U.S.A., Inc. and John Doe defendants 1-5 for damages and injunctive relief based on injuries arising out of the failure of a vinyl railing that Barrette manufactured and Home Depot sold. John Doe defendants 1-5 are individuals partnerships and/or corporations who are or were engaged in the business of testing, developing, manufacturing, labeling, marketing, distributing, promoting, supplying and/or selling, either directly or indirectly, through third parties or related entities, the defective railing system. Plaintiffs allege breach of warranty (Count I); deceptive or unconscionable acts or practices in violation of the Kansas Consumer Protection Act ("KCPA"), K.S.A. § 50-623
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief.
The Court does not accept as true those allegations which state only legal conclusions.
In accordance with Federal Rule of Civil Procedure 9(b), plaintiffs must plead with particularity allegations of deceptive or unconscionable acts or practices under the KCPA.
On June 19, 2012, Jonathan Nieberding filed a
On August 31, 2012, Jonathan Nieberding filed a
In light of plaintiffs' second amended complaint, Home Depot abandoned its request to dismiss plaintiffs' KCPA at this time, but reasserted its motion to dismiss plaintiffs' unjust enrichment claim (Count III) because plaintiffs have an adequate legal remedy.
With respect to plaintiffs' KCPA and unjust enrichment claims, the second amended complaint alleges the following facts:
In June of 2010, plaintiffs purchased a Williamsburg vinyl railing system from Home Depot in Manhattan, Kansas. Barrette manufactured the railing system. Defendants designed, manufactured, distributed, tested, sold, applied, used and/or supplied the Traditional and Williamsburg railing products in the ordinary course of their businesses. Following the instructions that Barrette provided, plaintiffs installed the railing system on a second story balcony of their home.
On or about June 9, 2011, the railing system gave way, cracked, split and failed. As a result, Jonathan Nieberding fell from the second story balcony and, among other injuries, suffered a scaphoid fracture on his left wrist. Specifically, the vinyl post jacket and/or vinyl insert that connects and holds the steel railing to the post, warped, cracked, split and otherwise failed. Nothing, other than the vinyl jacket/insert, held the steel railing in place.
Defendants have engaged in acts and practices which are "deceptive" and "unconscionable" as those terms are described in the KCPA, K.S.A. §§ 50-626 and 50-627. Among other things, defendants sold products to plaintiffs and other consumers that when used as reasonably anticipated give way, crack, split and fail. At the time of design, manufacture, sale, testing, transportation, distribution, supply and use of the vinyl railing, defendants knew or should have known the dangerous nature of the railing system and the likelihood that it would fail and cause injury. Defendants willfully failed to disclose to plaintiffs and other consumers such fact, which was material to the consumer transactions. Through advertising, defendants misrepresented that their railing products were "safe and secure," will "keep your family and guests safe" and that the "vinyl railings will require very little maintenance and will not warp, crack, splinter, peel or ever need painting."
As a result of defendants' unfair trade practices, plaintiffs and putative class members have suffered damages and are entitled to recover those damages and all costs of this action, including attorney fees and costs, under the KCPA, K.S.A. §§ 50-623,
Plaintiffs and class members purchased defendants' products, which they would not have purchased had they known that the products, when used as anticipated, give way, crack, split and fail. As a result, defendants were unjustly enriched at the expense of and to the detriment of plaintiffs and the class. Plaintiffs and the class are therefore entitled to restitution and an order requiring defendants to disgorge all profits, benefits and other compensation they obtained from the sale of these products.
As discussed above, Home Depot moves to dismiss plaintiffs' unjust enrichment claim (Count III) because plaintiffs have available legal remedies. Barrette moves to dismiss plaintiffs' KCPA claims (Count II) because (1) plaintiffs did not plead the claims with particularity in accordance with Federal Rule of Civil Procedure 9(b), (2) plaintiffs did not plead facts that constitute an unconscionable act or practice and (3) under the KCPA, the damages that plaintiffs seek are not recoverable in a class action.
I. Home Depot Motion To Dismiss
Home Depot asks the Court to dismiss plaintiffs' claim for unjust enrichment (Count III). It argues that plaintiffs' legal claims for breach of warranty (Count I) and violation of the KCPA (Count II) displace plaintiffs' equitable claim for unjust enrichment. Because unjust enrichment claims are equitable, generally they are not available when an adequate remedy exists under a legal claim.
At the pleading stage, however, under Federal Rule of Civil Procedure 8(d), "[a] party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient." Although plaintiffs cannot take both their unjust enrichment and legal claims to judgment, at this time the Court declines to dismiss plaintiffs' unjust enrichment claim on the basis that legal claims for relief displace it.
II. Barrette Motion To Dismiss
Barrette asks the Court to dismiss plaintiffs' claims that it violated the KCPA by engaging in deceptive and/or unconscionable acts or practices. It argues that (1) in accordance with Federal Rule of Civil Procedure 9(b), plaintiffs did not plead with sufficient particularity claims for deceptive acts or practices under the KCPA, (2) plaintiffs did not plead facts that constitute an unconscionable act or practice and (3) under the KCPA, the damages plaintiffs seek are not recoverable in a class action.
A. Particularity Of KCPA Claims For Deceptive Acts Or Practices
The KCPA prohibits deceptive acts or practices in connection with a consumer transaction. K.S.A. § 50-626(a). Among other things, deceptive acts or practices include a wide variety of knowing misrepresentations,
Rule 9(b) provides that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." This means that plaintiffs must allege the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.
Barrette argues generally that plaintiffs' second amended complaint contains no allegations regarding the time frame in which Barrette committed the alleged deceptive and unconscionable acts. With respect to the alleged misrepresentations, Barrette more specifically argues that plaintiffs do not allege that it made the alleged misrepresentations about the Traditional and Williamsburg prebuilt vinyl railing products that plaintiffs purchased, and that plaintiffs do not specify who made the alleged misrepresentations, to whom they were made, or when and where they were made.
Plaintiffs allege that they purchased a Williamsburg vinyl railing system from Home Depot in Manhattan, Kansas in June of 2010; that Barrette designed, manufactured, distributed, tested, sold, applied, used and/or supplied the Traditional and Williamsburg railing products at issue; that at the time of design, manufacture, sale, testing, transportation, distribution, supply and use of the vinyl railing, Barrette knew or should have known the dangerous nature of the railing system and the likelihood that it would fail and cause injury; that nothing, other than the vinyl jacket/insert, held the steel railing in place; that Barrette willfully failed to disclose this fact; and that Barrette advertises that their products are designed to be "safe and secure," "keep your family and guests safe," and "vinyl railings will require very little maintenance and will not warp, crack, splinter, peel or ever need painting." Plaintiffs have therefore pled with sufficient particularity claims for deceptive acts or practices under the KCPA — they allege the who, what, where and when of the alleged act or practice.
B. Unconscionable Act Or Practice Claim
The KCPA prohibits suppliers from engaging in any unconscionable act or practice in connection with a consumer transaction. K.S.A. § 50-627(a). It requires courts to liberally construe the statute to promote the policy of protecting consumers from suppliers who commit deceptive and unconscionable practices. Kan. Stat. Ann. § 50-623(b). The KCPA does not specifically define unconscionable acts or practices, though it does provide the Court some guidance.
Under K.S.A. § 50-627(b)(6), plaintiffs cite Barrette's statements that its vinyl railings are designed to be "safe and secure," "keep your family and guests safe," and "vinyl railings will require very little maintenance and will not warp, crack, splinter, peel or ever need painting." Plaintiffs claim that the statements were misleading statements of opinion on which the consumer was likely to rely to the consumer's detriment. Barrette responds by arguing that (1) interpreting the KCPA so broadly as to prohibit actions that have the potential to mislead by implication could create absurd results and (2) plaintiffs have not alleged any deceptive bargaining practices required to state an unconscionability claim under the KCPA. The Court finds as follows: First, plaintiffs allege that Barrette made specific false statements about its vinyl railings with intent to mislead plaintiffs and other consumers as to their safety. The alleged statements involve more that the mere potential to mislead by implication, but rather a direct attempt to mislead by specific false statements. Second, on this record it is not clear that these alleged statements do not constitute a deceptive bargaining practice. The Court therefore declines to dismiss plaintiffs' unconscionability claim.
C. Damages In Class Action Under The KCPA
Barrette argues that plaintiffs improperly seek relief for damages both individually and on behalf of a class. Barrette's argument, however, does not address K.S.A. § 50-634(d), which allows a consumer who suffers loss as a result of a violation of the KCPA to bring a class action for damages caused by deceptive or unconscionable acts or practices. In any event, Barrette's argument about plaintiffs' ability to seek damages on behalf of the putative class is premature because the Court has not certified a class in this case.