# Brown v. Western Digital Corporation > District Court, N.D. California · May 27, 2021 URL: https://www.frixlaw.com/law-library/cases/10067868 ## Case - **Court:** District Court, N.D. California - **Decided:** May 27, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10067868 ## How later opinions describe it (automated extraction) - holding that 14 adoption of an objective standard, decidable on a motion to dismiss, was intended to avoid 15 “a tidal wave of litigation against businesses that was not intended by the Legislature” ## Opinion text 1 *NOT FOR PUBLICATION* 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 EDWARD TROMBLE, ET AL., Case No. 4:20-cv-08102-YGR 7 Plaintiffs, ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 8 v. 9 WESTERN DIGITAL CORPORATION, Re: Dkt. Nos. 62, 63 Defendant. 10 11 12 Before the Court is defendant Western Digital Corporation’s motion to dismiss the 13 operative first amended class action complaint filed by plaintiff Edward Tromble. (Dkt. Nos. 62 14 (mistaken filing), 63 (motion to dismiss).) Tromble brings four counts against Western Digital, 15 which manufactures hard drives, based on an alleged failure to disclose that its hard drives utilize 16 Shingle Magnetic Recording (“SMR”) technology instead of Conventional Magnetic Recording 17 (“CMR”) technology. These four counts include violation of (1) N.Y. Gen. Bus. Law (“GBL”) 18 § 349 (for a New York subclass); (2) N.Y. GBL § 350 (for a New York subclass); (3) fraudulent 19 concealment (for a nationwide class); and (4) unjust enrichment (for a nationwide class). 20 Having reviewed the motion to dismiss and the parties’ briefing, the Court GRANTS the 21 motion to dismiss.1 Because the Court has determined that it is appropriate to provide leave to 22 amend, the Court issues this summary order in lieu of a comprehensive order. Thus:2 23 24 1 The motion hearing set for June 1, 2021 is VACATED. 25 2 The Court GRANTS Tromble’s unopposed request for judicial notice of Western Digital’s webpages. See Erickson v. Nebraska Mach. Co., 2015 WL 4089849, at *1 (N.D. Cal. July 6, 26 2015) (“Courts have taken judicial notice of the contents of web pages available through the Wayback Machine as facts that can be accurately and readily determined from sources whose 27 accuracy cannot reasonably be questioned … and the Court does so here.”) (internal citations 1 The standards for a motion to dismiss brought under Rules 12(b)(1) and 12(b)(6) are well 2 known and not in dispute. 3 N.Y. GBL 349 and 350 4  These claims are DISMISSED WITH LEAVE TO AMEND. 5  In general, a viable claim under GBL Sections 349 or 350 requires that a plaintiff “‘allege 6 that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially 7 misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or 8 practice.’” Clark v. Hershey Co., No. C 18-06113 WHA, 2019 WL 913603, at *5 (N.D. 9 Cal. Feb. 25, 2019) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 967 10 (2012)); see also Heskiaoff v. Sling Media, Inc., 719 F. App’x 28, 31 (2d Cir. 2017). Such 11 claims may be based on either a misrepresentation or omission, but an omission is 12 actionable only if it is “materially misleading” to a reasonable consumer. Nick’s Garage, 13 Inc. v. Progressive Casualty Ins. Co., 875 F.3d 107, 124 (2d. Cir. 2017) (holding that 14 adoption of an objective standard, decidable on a motion to dismiss, was intended to avoid 15 “a tidal wave of litigation against businesses that was not intended by the Legislature”) 16 (quoting Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 17 N.Y.2d 20, 25 (1995)). A plaintiff must allege facts that plausibly show that a “significant 18 portion of the general consuming public or of targeted consumers, acting reasonably in the 19 circumstances, could be misled by the relevant statements[]’ or omissions.” Rothschild v. 20 GM LLC, 2020 U.S. Dist. LEXIS 187300, *34 (E.D.N.Y. Sept. 30, 2020) (citations 21 omitted). Under the analogous California state law, a change in components does not 22 support a product defect action. See, e.g., Bardin v. DaimlerChrysler Corp., 136 Cal. App. 23 4th 1255, 1270 (2006) (failure to disclose the use of less expensive and less durable 24 materials in the manufacture of vehicles alone does not give rise to a consumer protection 25 claim). 26  Here, Tromble’s allegations are deficient in establishing that the alleged omission 27 regarding the SMR and CMR technology at issue. As Western Digital correctly notes, 1 technology in its hard drives. Moreover, Tromble does not allege any reasonable 2 expectation by consumers generally as to the type of drive technology employed in hard 3 drives (e.g., whether a significant portion of the general consuming public would have had 4 any beliefs, at the time of purchase, about whether the drives they purchased used CMR 5 technology or did not). Tromble further does not allege any specific defect in the use of 6 SMR technology in the hard drives, other than to allege that they are inferior to CMR 7 technology. Finally, Tromble notably does not allege that he has experienced while using 8 Western Digital’s products any of the negatives he alleges which result from SMR 9 technology (e.g. slower performance, inferior stability, permanent data loss).3 10  The Court provides leave to amend to address the above deficient allegations. 11 Nationwide Claims (Fraudulent Concealment and Unjust Enrichment) 12  These claims are DISMISSED WITH LEAVE TO AMEND. 13  Here, Tromble has not sufficiently alleged the state laws in which the common law claims 14 are grounded. See Romero v. Flowers Bakeries, LLC, No. 14-CV-05189-BLF, 2016 WL 15 469370, at *12 (N.D. Cal. Feb. 8, 2016) (“[D]ue to variances among state laws, failure to 16 allege which state law governs a common law claim is grounds for dismissal.”).4 17 Moreover, as the Court reminded Tromble’s counsel in another consumer product class 18 action: “while the Court agrees that whether a nationwide class claim can be stated is 19 typically addressed during class certification, they have been routinely narrowed after the 20 Ninth Circuit’s ruling in Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (2012).” 21 Keller v. CamelBak Products, LLC, 4:20-cv-232-YGR, 2020 WL 2793894, at *3 n.2 (N.D. 22 3 The Court declines to consider Western Digital’s extended arguments at this time in this 23 summary order. Tromble is directed however to consider the arguments raised in Western Digital’s extended arguments as to these claims in drafting a second amended class action 24 complaint. 25 4 Tromble’s citation to In re: Lithium Ion Batteries Antitrust Litig., 13-MD-2420-YGR, 2016 WL 948874, at *4 (N.D. Cal. Mar. 14, 2016), does not persuade. In Lithium Ion, the parties 26 there identified “certain state” or “specified state law claims.” Id. Moreover, the Court required a plaintiff to be identified for every state represented. Id. Here, Tromble fails to identify which 27 state laws apply to the purported class action common law claims. Thus, Lithium Ion is ] Cal. May 29, 2020). Indeed, the Court recently granted a request to strike similar 2 nationwide class allegations of unjust enrichment in Pistacchio v. Apple Inc., 4:20-cv- 3 7034-YGR, 2021 WL 949422, at *3 (N.D. Cal. Mar. 11, 2021). In Pistacchio, the Court 4 stated: 5 Plaintiffs, though, cannot point to a single case in this Circuit to [certify a nationwide unjust enrichment class] since the Ninth 6 Circuit addressed the issue in Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 591 (9th Cir. 2012). This is unsurprising given 7 that, in Mazza, the Ninth Circuit unequivocally held that the “elements necessary to establish a claim for unjust enrichment ... 8 vary materially from state to state.” /d. It is hard to imagine a clearer 9 directive from our Circuit on this issue. Id. (citing Bias v. Wells Fargo & Company, 312 F.R.D. 528, 540 (N.D. Cal. 2015)). 10 e The Court provides leave to amend to address the above deficient allegations. Counsel is 1] reminded of their Rule 11 obligations in addressing the common law claims.° a 12 The Court provides leave to amend to Tromble to address the deficiencies in the operative 13 a first amended class action complaint, consistent with Tromble’s counsel’s Rule 11 obligations. 14 See Roney v. Miller, 705 F. App’x 670, 671 (9th Cir. 2017) (lower court erred by denying leave to amend after dismissing amended complaint); Fed. R. Civ. P. 15(a) (providing that a trial court 16 should “freely give leave when justice so requires”). Tromble shall file a second amended class vO 17 action complaint on or before June 22, 2021. A response from Western Digital shall be filed on Z 18 or before July 20, 2021. Assuming a renewed motion to dismiss is filed by Western Digital, it 19 shall follow the regular thirty-five (35) day period unless otherwise so stipulated by the parties. 20 This Order terminates docket numbers 62 and 63. 21 IT Is SO ORDERED. 22 Dated: May 27, 2021 24 YVONNE GONZALEZ ROGERS 5 UNITED STATES DISTRICT JUDGE 26 27 > Moreover, the Court cites to California law, but notes that New York law may control as 9g || plaintiff has not addressed which state law applies for these common law claims. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10067868. Public record. Not legal advice.