United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER.
E. JACKSON UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
Count I: Missouri Merchandising Practices
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.
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.
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.
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.
contends that the following alleged representations in
¶6 of the amended complaint fall within the ...