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Cortinas v. Behr Process Corp.

United States District Court, E.D. Missouri, Eastern Division

June 5, 2017

RUDY CORTINAS, Plaintiff,
v.
BEHR PROCESS CORPORATION, Defendant.

          MEMORANDUM AND ORDER.

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the defendant's motion to dismiss for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has responded in opposition and the matter is fully briefed.

         I. Background

         Plaintiff initiated this action in a Missouri state court, asserting violation of the Missouri Merchandising Practices Act (MMPA) (Count I) and breach of express and/or implied warranty (Count II). The action was removed to this Court, pursuant to 28 U.S.C. §§ 1332 and 1441.

         According to the amended complaint, plaintiff purchased the defendant's Premium DeckOver Coating in 2013 in order to refinish a deck at his home. Plaintiff alleges that, in purchasing the product, he relied on certain representations and warranties made by defendant with respect to the suitability and durability of the product. Plaintiff further alleges that the product did not conform to the representations and warranties and that his property was damaged as a result. Plaintiff seeks an award of actual and punitive damages.

         II. Legal Standard

         The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. Fed.R.Civ.P. 12(b)(6). The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, “even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (stating that a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Scheuer, 416 U.S. at 236. A viable complaint must include “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Id. at 563 (stating that the “no set of facts” language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), “has earned its retirement”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-84 (2009) (holding that the pleading standard set forth in Twombly applies to all civil actions). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

         III. Discussion

         A. Count I: Missouri Merchandising Practices Act

         The MMPA, Mo. Rev. Stat. § 407.025, makes unlawful “[t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce[.]” Mo. Rev. Stat. § 407.020.1. The MMPA bars an “assertion that is not in accord with the facts” and deceptions in advertising that have a tendency “to create a false impression.” Mo. Code Regs. Ann. tit. 15, § 60-9.070. In the amended complaint, plaintiff alleges twelve separate misrepresentations made by defendant in connection with the purchase of the product at issue. Defendant argues that the alleged misrepresentations are insufficient to support an MMPA claim because they do not qualify as an unfair practice.

         In order to state a claim under the MMPA, a plaintiff must show (1) that he purchased the merchandise in question; (2) that he purchased the merchandise for personal, family, or household use; (3) that he suffered an ascertainable loss; and (4) that the ascertainable loss was the result of an unfair practice. Polk v. KV Pharm. Co., No. 4:09-CV-00588 SNLJ, 2011 WL 6257466, at *4 (E.D. Mo. Dec. 15, 2011) (citing Mo. Ann. Stat. § 407.025(1)). The first three factors are not disputed.

         As to the fourth element, “plaintiff must allege that defendant ‘used or employed a deception, fraud, false pretense, false promise, misrepresentation, unfair practice, concealment, suppression, or omission in connection with the purchase of the product or service at issue.'” Mo. Rev. Stat. § 407.020; see also Stephens v. Arctic Cat Inc., No. 4:09CV02131 AGF, 2012 WL 628867, at *4 (E.D. Mo. Feb. 27, 2012) (citing Scanio v. Zale Delaware, Inc., No. 4:12CV37CDP, 2012 WL 368741, at *2 (E.D.Mo. Feb. 3, 2012)). Defendant argues that plaintiff does little more than allege that he purchased a product that did not live up to his expectations. However, plaintiff specifically alleges that defendant made false promises, representations, and guarantees based upon specific statements made to him while determining whether to purchase the product.

         Defendant argues that a number of representations detailed by plaintiff are “mere puffery, ” which cannot serve as the basis for a claim under the MMPA. Wright v. Bath & Body Works Direct, Inc., No. 12-00099-CV-W-DW, 2012 WL 12088132, at *2 (W.D. Mo. Oct. 17, 2012) (citing VTEC Techs., LLC v. David A. Richard, Inc., No. 07-CV-45-MLM, 2008 WL 948283, at *2 (E.D.Mo. Apr. 4, 2008). Puffery has been defined as “exaggerated statements of bluster or boast upon which no reasonable consumer would rely” or “vague or highly subjective claims of product superiority.” Id. (citing Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 390-91 (8th Cir.2004)). Comparative claims, often involving large numbers, have been held to constitute puffery “because a consumer cannot reasonably believe that there is a test behind the claim.” In re Gen. Motors Corp. Anti-Lock Brake Prods. Liab. Litig., 966 F.Supp. 1525, 1531 (E.D. Mo. 1997), aff'd 172 F.3d 623 (8th Cir. 1999). On the other hand, “[i]f a statement is a specific, measurable claim or can be reasonably interpreted as being a factual claim, i.e., one capable of verification, the statement is one of fact” and is actionable. Am. Italian Pasta Co., at 391.

         Defendant contends that the following alleged representations in ¶6 of the amended complaint fall within the ...


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