# May v. Makita U.S.A., Inc.

> District Court, E.D. Missouri · May 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10238768

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** May 24, 2023
- **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/10238768

## How later opinions describe it (automated extraction)

- finding standing for injunctive relief when plaintiff pled an ongoing injury of an unfulfilled desire to buy more of defendant’s raisins in the future if defendant were to put more raisins in the raisin boxes or otherwise reduce the size of the boxes

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

THOMAS MAY, on behalf of himself )
and all others similarly situated, )
)
Plaintiff(s), )
)
v. ) Case No. 1:22-CV-79-SNLJ
)
MAKITA U.S.A., INC., )
)
Defendant. )

MEMORANDUM AND ORDER
Plaintiff Thomas May is suing defendant Makita U.S.A., Inc. for allegedly failing
to put an expiration date label on its product, a type of organic bonded abrasive wheel used
to cut metal and concrete. [Doc. 32.] The Court dismissed Counts I, III, IV, V, VI, and
VII plaintiff’s original petition [Doc. 29], but granted plaintiff leave to file an amended
complaint. Plaintiff filed his First Amended Complaint (FAC) [Doc. 32], in which he
repleads two of his previously-dismissed claims and amends his claim under the Missouri
Merchandising Practices Act. Defendant moves for dismissal of all plaintiff’s claims in
the FAC under Federal Rules of Civil Procedure 12(b)(6) (failure to state a claim) and
12(b)(1) (lack of subject-matter jurisdiction).1 For the reasons discussed below,
defendant’s motion will be granted in part and denied in part.

1 All rule references are to the Federal Rules of Civil Procedure unless otherwise stated.
I. Factual Background
Plaintiff’s FAC includes an amended count for a violation of the Missouri

Merchandising Practice Act (Count I), and the FAC has repleaded counts for breach of
implied warranty (Count II) and violations of the California Consumer Legal Remedies
Act (Count III). The facts come from plaintiff’s FAC. For the purposes of this motion to
dismiss, all of plaintiff’s facts are accepted as true. Trooien v. Mansour, 608 F.3d 1020,
1026 (8th Cir. 2010).
Plaintiff is a citizen of Illinois. FAC at ¶ 26. Defendant is a corporation

incorporated in the state of California with its principal place of business in La Mirada,
California. Id. at ¶ 32. Defendant makes and sells organic bonded abrasive wheels
(“wheel” or “wheels”) used to cut metal and concrete. The wheels get attached to power
tools that spin at blistering speeds. Id. at ¶ 38. Thus, if a wheel broke while in use, it could
cause serious injuries. Id. at ¶ 16. Plaintiff purchased one or more of defendant’s wheels

within the last five years at a Tractor Supply Company store in Cape Girardeau, Missouri.
Id. at ¶ 29. Plaintiff brings a class action claim “arising from the deceptive business
practices of Defendant in the advertising, packaging, and labeling of a bonded abrasive
wheel product . . . that was manufactured, produced, distributed, and/or sold by
Defendant.” Id. at ¶ 1.

Plaintiff thought he was buying a wheel that did not expire because the wheel’s
packaging did not have a clearly-printed label that warned of the wheel’s expiration date.
Id. at ¶¶ 1 n.1, 4–6. But in fact, the wheels have an expiration date of three years, and it is
an industry standard in the United States to include a three-year expiration date for such
wheels. Id. at ¶¶ 6, 8–11. After the three-year expiration date, the wheels become too
brittle or weak to use safely and reliably. Id. at ¶ 6. Likewise, several other leading organic

bonded abrasive wheel manufactures put expiration dates on their wheels. Id. at ¶¶ 11–13.
Thus, after three years, the wheels are useless because of an unacceptable risk that they
may break while in use, which could cause serious injuries to the user or bystanders. Id. at
¶¶ 16, 71, 90.
Plaintiff’s complaint is that defendant failed to properly label its wheels with a
clearly-printed expiration date informing buyers of when the wheels should no longer be

used. Id. at ¶ 20. Because of the omission of a clearly-printed expiration date, plaintiff
and other consumers suffer out-of-pocket damages by either purchasing worthless wheels
that already expired or wheels that are worthless (or worth less) because there is no way
for a reasonable consumer to tell when the product expires, thus rendering them unsafe to
use. Id. at ¶¶ 22–23.

Plaintiff claims that defendant, based on well-known and then-existing industry
standards, knew that the wheels had an expiration date but failed to disclose these details
to customers. Id. at ¶ 47. Because plaintiff thought he was buying one thing (a wheel that
never expired) but instead received another (a wheel that expired after three years),
plaintiff—and other class members—overpaid for the wheels. Id. at ¶¶ 44–46, 61. Despite

defendant’s past misrepresentations, plaintiff pleads that he would buy more of its wheels
if defendant put a clear expiration date on them. Id. at ¶ 51. Until that time, plaintiff will
not buy any more of defendant’s wheels because he has no way of knowing when the
wheels expire. Id
II. Motion to Dismiss for Lack of Jurisdiction
A. Defendant’s Attack on Plaintiff’s Article III Standing

Defendant again seeks dismissal under Federal Rule of Civil Procedure 12(b)(1),
arguing that plaintiff completely lacks Article III standing to pursue either monetary or
injunctive relief. “Article III standing must be decided first by the court and presents a
question of justiciability; if it is lacking, a federal court has no subject-matter jurisdiction
over the claim.” Miller v. Redwood Toxicology Lab’y, Inc., 688 F.3d 928, 934 (8th Cir.
2012). The Court assumes this is a facial attack on plaintiff’s Article III standing, so

plaintiff is entitled to the same procedural safeguards as a 12(b)(6) motion to dismiss.
Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016).
Rule 12(b)(6) requires plaintiffs to allege enough facts that demonstrate a plausible
basis for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The Court accepts all facts alleged in the complaint

as true. Trooien v. Mansour, 608 F.3d 1020, 1026 (8th Cir. 2010). But the Court is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555). “And, of course, a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of those facts is improbable,
and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556 (quoting

Scheuer v. Rhodes, 416 U.S. 232 (1974)).
A plaintiff’s access to federal court depends on having Article III standing. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 (1992). Article III standing is a
federal question and does not depend on whether a party would have standing in a state
court. Miller, 688 F.3d at 933. This “irreducible constitutional minimum of standing” has
three elements: an injury in fact, a causal connection between the injury and the conduct

complained of, and the likelihood that the injury can be redressed by favorable decision.
Lujan, 504 U.S. at 560–61. Defendants argue that plaintiff lacks the injury-in-fact
requirement.
An injury in fact requires a showing of a “concrete and particularized” harm that is
“actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 578 U.S.
330, 339. For an injury to be particularized, it must affect the plaintiff in a personal and

individual way. Id. at 339 (citing cases). A concrete injury must be de facto, the injury
must exist in reality, not the abstract. See Id. at 340. In conducting this analysis, “it is
crucial not to conflate Article III’s requirement of injury in fact with a plaintiff’s potential
causes of action, for the concepts are not coextensive.” Carlsen, 833 F.3d at 909 (cleaned
up).

B. Plaintiff’s Standing for Past Economic Damages
First, defendant argues that plaintiff lacks standing to pursue monetary damages,
reiterating its belief that the Eighth Circuit’s manifest defect rule applies to bar suits of this
type, wherein plaintiff complains of a product defect but does not allege that his product

suffered the complained of defect. See Johannessohn v. Polaris Indus. Inc., 9 F.4th 981,
987 (8th Cir. 2021); May v. Makita U.S.A., Inc., No. 1:22-CV-79-SNLJ, 2023 WL 417487,
at *2–3 (E.D. Mo. Jan. 26, 2023) (discussing application of manifest defects rule).
As the Court explained in its previous order, [Doc. 29 at 4–6] this is not a defective
products case, so the manifest defect rule does not apply. Here, plaintiff’s alleged injury

stems from his overpaying for a product due to defendant’s alleged fraudulent
misrepresentations. Thus, his claims are not fundamentally based on a product defect, they
are fundamentally based on fraud. “In short, plaintiff pleads economic injury in fact in that
1) defendant intended to misrepresent to buyers that its wheels did not expire by
intentionally omitting an expiration date on its wheels; 2) plaintiff relied on that
representation in buying defendant’s wheels; and 3) that he would not have paid the

purchase price—or take the risk of using a wheel without an expiration date—if he knew
that the wheels did expire.” [Doc. 29 at 6.] Therefore, plaintiff’s alleged overpayment is
an Article III injury in fact for his past wheel purchases.

C. Plaintiff’s Standing for Injunctive Relief

Plaintiff amended his request for injunctive relief, which defendant seeks to dismiss
for lack of standing. To obtain injunctive relief, plaintiffs are required to plead that there
is a real and immediate threat that they will suffer a similar injury in the future. See
Harmon v. City of Kansas City, 197 F.3d 321, 327 (8th Cir. 1999). “Some day intentions,”
without any concrete plans or specification of when the “some day” will be, do not satisfy

the actual-or-imminent injury requirement. Frost v. Sioux City, 920 F.3d 1158, 1161 (8th
Cir. 2019) (quoting Lujan, 504 U.S. at 564). Here, plaintiff pleads he would buy more of
defendant’s wheels if they had a clearly-printed expiration date:
Despite being misled by Defendant’s deceptive advertising, packaging, and
labeling, Plaintiff wishes to continue purchasing the Defective Product due
to, among other considerations, convenience, and availability. Plaintiff
affirmatively states that he would purchase the products again in the future
if Defendant were to put a clear expiration date on them. . . Absent injunctive
relief . . . Plaintiff and the class members will still have no way of knowing
when the product expires. Thus, Plaintiff and the class members face a real,
concrete, and immediate threat that they will again suffer similar economic
injury in the future.

[Doc. 32 at ¶ 51] (emphasis added). Despite plaintiff’s say so, this amended
pleading does not show how he will personally suffer an economic injury absent injunctive
relief. First, plaintiff does not plead that his inability to purchase defendant’s wheels leads
to any economic injury. Nor is plaintiff at risk of defendant allegedly misleading plaintiff
again through deceptive packaging because he pleads that he will not buy another wheel
unless there is an expiration date on it. His past exposure to potentially illegal conduct
does not justify injunctive relief because he cannot show any continuing, present adverse
effects. Park v. Forest Serv. of U.S., 205 F.3d 1034, 1037 (8th Cir. 2000) (quoting O'Shea
v. Littleton, 414 U.S. 488, 495–96 (1974)).
Plaintiff fails to meet the standing requirements as laid out by Park and other cases.
As previously explained, “[p]laintiff can no longer claim to be misled by defendant’s
omission of an expiration date because he now knows of the product defects he complains
of and can elect to not buy the product. In other words, plaintiff’s knowledge of the
misrepresentation precludes his reliance on the misrepresentation, thus there is no cause of
action, much less an Article III injury.” [Doc. 29 at 7.] Even if plaintiff were to buy
another of defendant’s wheels, he would make his purchase fully informed of the risks
associated with the wheels, and he would, as a reasonable consumer, factor those risks into
his purchasing decision, thereby receiving the full “benefit of the bargain” of his purchase.
In short, plaintiff’s pleading is devoid of any impending personal economic injury from

defendant’s ongoing sale of the wheels as they are.
Of note, plaintiff cites no mandatory authority on this issue, either from this Circuit
or the United States Supreme Court. Instead, he relies on district court cases to support his
theory of Article III injury, but those cases do not justify his theory that he personally
suffers ongoing economic injury from the mere fact that he will not purchase any of
defendant’s wheels until they have expiration dates. First, plaintiff cites to Browning v.

Anheuser-Busch, LLC, 539 F. Supp. 3d 965 (W.D. Mo. 2021) (“Browning”), but the Court
is not bound by that case, nor does the Court find it persuasive. As noted by the Browning
court, injunctive relief is for preventing a future injury of the kind plaintiff complains of.
Id. at 976–77. Here, plaintiff’s alleged injury is economic injury from overpaying for
wheels due to deceptive practices, yet he does not plead how he is at a future risk of being

deceived again, or how he is at risk of overpaying for wheels that he will not buy unless
they have an expiration date.
Plaintiff’s case also differs factually from Browning, justifying a different result
even if that case correctly applied Article III standing. Browning concerned a lawsuit over
the formulation of a consumable alcoholic beverage and the precise ingredients of those

drinks. The Browning plaintiffs pled they “lack personal knowledge as to Defendant's
specific business practices, leaving doubt in their minds as to the possibility that at some
point in the future the Products could contain distilled liquors or wine.” Id. at 976. In this
case, plaintiff does not face the same uncertainty. He would be able to tell whether
defendant’s wheels have a clearly-printed expiration date or not. Finally, plaintiff insists
he will not purchase more of defendant’s wheels unless it has an expiration date. [Doc. 32

at ¶ 51.] Therefore, plaintiff is in no danger of injury from any of defendant’s ongoing
alleged deception.
Plaintiffs other relied-upon cases reiterate Browning’s legal reasoning, which is
unconvincing as applied to the facts of this case, and the Court similarly finds those cases
to be unpersuasive. See Early v. Henry Thayer Co., Inc., No. 4:20-CV-1678 RLW, 2021
WL 3089025, at &16–17 (E.D. Mo. July 22, 2021) (relying, in part, on Browning to find

standing for injunctive relief when plaintiff pled an ongoing injury of an unfulfilled desire
to buy defendant’s product in the future if defendant’s properly labeled its product);
Hawkins v. Nestle U.S.A. Inc., 309 F. Supp. 3d 696, 706–08 (E.D. Mo. 2018) (finding
standing for injunctive relief when plaintiff pled an ongoing injury of an unfulfilled desire
to buy more of defendant’s raisins in the future if defendant were to put more raisins in the

raisin boxes or otherwise reduce the size of the boxes).
The Early and Hawkins courts cited to a popular refrain from the case of Chester v.
TJX Companies, Inc.:
It is inconceivable to think prospective relief in the false advertising context
is bound by the rules of “fool me once, shame on you; fool me twice shame
on me.” The Court is unwilling to play Defendants' game, and refuses to find
that, once a plaintiff has alleged that she was deceived, she likely will not
voluntarily be deceived again—and thus no court can enjoin deceptive
practices without ignoring Article III's standing requirements.

No. 5:15-CV-1437-ODW (DTB), 2016 WL 4414768, at *8 (C.D. Cal. Aug. 18, 2016).
Likewise, this Court endorses that language—simply because plaintiffs are fooled once by
a defendant does not mean they will never be deceived again by that defendant under
similar circumstances. Article III injury exists every time a seller—through

misrepresentation or omission of material facts on a product’s packaging—deceives a
buyer into overpaying for that product. But in this case, it just so happens plaintiff pleads
no facts showing there is the possibility of him being fooled twice. He was deceived once,
he now knows of defendant’s tricks, and he has pled nothing to suggest he will be deceived
“twice” again. See Darisee v. Nest Labs, Inc., No. 5:14-CV-01363-BLF, 2016 WL
4385849, at *4 (N.D. Cal. Aug. 15, 2016) (holding that plaintiff lacked standing for

injunctive relief because he was “not going to trust what [defendant company] says now,”
and thus faced no threat of future injury). Even if defendant’s practices be unlawful, they
do not pose a particularized, personal threat of future injury to plaintiff.
Plaintiff does not plead or brief any theory of Article III standing for injunctive relief
other than his own personal standing, which he lacks. Therefore, plaintiff does not have

personal Article III standing to seek injunctive relief, but the Court abstains from deciding
whether a class, once formed, would have standing to pursue injunctive relief for
defendant’s deceptive practices.

III. Motion to Dismiss for Failure to State a Claim

Having established that plaintiff has standing to pursue claims for damages based
on his past purchases of defendant’s wheels, the Court turns to defendant’s motion to
dismiss plaintiff’s remaining counts. Each are discussed in turn.
A. Count I: Violations of the Missouri Merchandising Practice Act (MMPA)
Defendant moves to dismiss plaintiff’s MMPA for lack of standing under Rule

12(b)(1) and for failure to state a claim under Rule 12(b)(6). As discussed in this and prior
orders, plaintiff has Article III standing for past economic damages. The Court now turns
to the familiar standards of a Rule 12(b)(6) motion to dismiss, discussed supra.
Contrary to defendant’s suggestion, this Court’s prior order indeed granted plaintiff
leave to file an amended complaint, as well as to replead any dismissed counts. [Doc. 29
at 14.] In his FAC, plaintiff has chosen to amend his prior MMPA claim from his original

complaint, [Doc. 1], the only count to survive defendant’s first motion to dismiss for failure
to state a claim. See [Doc. 29.] If anything, plaintiff’s FAC adds more detail and
particularity, especially on plaintiff’s proposed labeling standards, which he claims
defendant knew about. See FAC at ¶¶ 8–14. Nevertheless, defendant raises several
arguments as to why the Court should change its mind and now dismiss the MMPA claims.

For a claim under the MMPA, plaintiff must show that he 1) bought the wheels in
question, 2) for personal, family, or household use, 3) that he suffered an ascertainable loss,
and 4) 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 §
407.025.1(1), RSMo.). Because MMPA actions pertain to fraud, plaintiff must also meet

the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). Johnsen v.
Honeywell Int'l Inc., No. 4:14-CV-594-RLW, 2016 WL 1242545, at *2 (E.D. Mo. Mar. 29,
2016); Rule 9(b) (“In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”) “In other words, Rule 9(b) requires
plaintiffs to plead the who, what, when, where, and how: the first paragraph of any
newspaper story.” Summerhill v. Terminix, Inc., 637 F.3d 877, 880 (8th Cir. 2011) (cleaned

up).
First, defendant alleges that plaintiff failed to state the “when” requirement of Rule
9(b) with enough particularity in that plaintiff has more than doubled his original timeline
of events. In his original complaint, plaintiff pled that he purchased one or more of
defendant’s wheels within the past two years. [Doc. 1 at ¶ 7.] Now, plaintiff pleads he
purchased wheels within the past five years. FAC at ¶ 29. The Court agrees with defendant

that this is an eyebrow-raising change. Even though nearly a year has passed since plaintiff
originally filed his lawsuit, this does not account for tacking on three additional years to
plaintiff’s purchasing timeline. But this goes to plaintiff’s problem of eventually having
to prove that he actually purchased defendant’s products, which is a problem that does not
exist at the pleadings stage when all of plaintiff’s well-pled facts are taken as true.

Defendant points to no error in law from the Court’s prior order; this five-year time frame
(once a two-year time frame) is the class period and otherwise plaintiff sufficiently pleads
that he viewed the wheels’ label and then bought one or more within the past five years.
[Doc. 29 at 9–10.] Therefore, the Court’s decision remains the same. Plaintiff sufficiently
alleged the “when” of Rule 9(b).

Defendant then takes another stab at attacking the sufficiency of plaintiff’s other
allegations. For instance, defendant argues that plaintiff did not sufficiently plead which
of defendant’s products, if any, he purchased. But plaintiff specifically pleads that “what”
he purchased was a “Makita 4’’ cutting wheel and a 4½’’ grinding wheel. . . .” FAC at ¶
29. Defendant responds that plaintiff did not plead that these wheels are “organic bonded”
wheels that meet plaintiff’s own definition of a defective product, but plaintiff did. He

pleads that his purchased wheels were “Defective Products,” FAC at ¶ 29, and plaintiff
earlier defined “Defective Products” as “an organic bonded abrasive wheel.” FAC at ¶ 2.
Plaintiff re-alleged and incorporated these facts into his MMPA count. FAC at ¶ 67.
Therefore, plaintiff’s FAC, when read altogether, alleges that he purchased one of
defendant’s organic bonded wheels.
In its previous motion to dismiss, defendant argued that plaintiff’s pleaded “industry

standard”—that all organic bonded abrasive wheels bear a clearly-printed three-year
expiration date—did not exist in the United States, but the Court rejected that argument
because plaintiff pled enough facts that, when taken as true, would show that an industry
standard existed. [Doc. 29 at 10.] Now, defendant brings a new argument that plaintiff’s
pleadings are not sufficient to show how or when defendant became aware of this industry

standard such that defendant knowingly omitted material information from consumers.
This Court finds that the FAC pleads facts to suggest that this industry standard existed at
the time of plaintiff’s injury and that defendant knew or should have known about it.
For example, plaintiff pleads that this standard has existed for “decades,” FAC at ¶
9, and this standard has been followed by the Federation of European Producers of

Abrasives, Id. at ¶ 10; a worldwide trade organization, the Organization for the Safety of
Abrasives, FAC at ¶ 11; and multiple of defendant’s competitors. Id. at ¶¶ 12–13.
Whatever difficulty plaintiff may have in actually proving these facts, plaintiff pleads
enough facts to state a plausible claim that that this is industry standard in the United States
and that defendant knew or should have known about this standard but failed to follow it,
which deceived consumers into overpaying for defendant’s wheels. In sum, plaintiff

adequately pleads the details of defendant’s fraudulent acts, including when the acts
occurred (when he purchased the wheels at the store), who engaged in them (defendant),
and what was obtained as a result (plaintiff’s overpaying for wheels). See United States ex
rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 556 (8th Cir. 2006) (enumerating Rule
9(b)’s particularity requirements).
Finally, defendant alleges that plaintiff failed to plead two crucial elements of his

MMPA claim. First, that plaintiff failed to plead facts indicating that his purchase of the
wheels were for personal, family, or household use, as required by Sec. 407.025.1(1),
RSMo. Second, that plaintiff fails to plead “[i]ndividual damages with sufficiently
definitive and objective evidence to allow the loss to be calculated with a reasonable degree
of certainty.” § 407.025.1(1)(2)(c)

As to defendant’s first argument, the Court finds that plaintiff sufficiently pled he
purchased the wheels for personal, family, or household use. He pleads that he, a “person”,
went to a Tractor Supply Company store and purchased one or more of defendant’s wheels
for personal, family, or household use. FAC at ¶ 29. These facts indicate that plaintiff
acted as an individual consumer and that he bought the wheels for personal, family, or

household use. This is not the case where there is an obvious, alternative explanation for
plaintiff’s purchase that would require him to plead facts to rebut that explanation. See,
e.g., Noe v. Chastain, No. 6:19-CV-3030-SRB, 2019 WL 1560464, at *4 (W.D. Mo. Apr.
10, 2019) (plaintiff alleged that she entered the transaction at issue “on behalf of her
business,” which negated the MMPA requirement). Plaintiff need not plead his specific
purpose for purchasing the product to satisfy the MMPA’s “personal, family, or household

use” requirement.
Finally, the Court again rejects defendant’s argument that plaintiff fails to plead
damages with enough specificity, and for the same reasons as the Court explained in its
prior order. “Plaintiff alleges that he overpaid for defendant’s wheels in that the fair market
value of the wheels was actually lower than what he bought them for. The difference
between the purchase price of the wheels and the actual value of the wheels is a value that

can ‘be calculated with a reasonable degree of certainty.’” [Doc. 29 at 10–11] (quoting §
407.025.1(2)(c), RSMo); see also Tucker v. Gen. Motors LLC, 58 F.4th 392, 397 (8th Cir.
2023). At the pleadings stage, plaintiff does not need to plead a specific dollar amount of
damages. Even so, plaintiff amended his pleadings to include a specific dollar amount.
FAC at ¶¶ 33, 61. The FAC alleges that the plaintiff’s wheels are worth at least ninety

percent less than what he paid for them because of the risk involved in using a product that
may or may not have expired. FAC at ¶ 61. Thus, a $3.00 wheel would be worth 30 cents,
if it has any value at all. Id.
Even if plaintiff’s math is debatable, he pleads sufficient facts to show that an
expiring wheel without a clearly-printed expiration date is objectively worth less than an

expiring wheel with a clearly-printed expiration date. Defendant’s citation to Briehl v.
Gen. Motors Corp. is inapposite because that case dealt with application of the Eighth
Circuit’s manifest defect rule to a defective products case, which, as discussed supra, this
case is not. 172 F.3d 623, 628 (8th Cir. 1999) (applying manifest defect rule to hold that
plaintiffs pled no basis for damages when they did not plead the purchased product
exhibited the complained-of defect). Accordingly, the Court will deny defendant’s motion

to dismiss Count I of plaintiff’s FAC.

B. Count II: Breach of Implied Warranty
The Court previously dismissed plaintiff’s breach of implied warranty claim for
failing to give the required pre-suit notice. [Doc. 29 at 13–14.] Missouri requires a plaintiff
to give pre-suit notice to either the immediate seller of a defective good or the manufacturer

or “be barred from any remedy. . . .” § 400.2-607(3)(a), RSMo; Ragland Mills, Inc., v.
General Motors Corp., 763 S.W.2d 357, 361 (Mo. App. S.D. 1989). Plaintiff filed his
complaint on June 10, 2023. Plaintiff pleads he gave statutory notice to defendant on June
13, 2022 and to Tractor Supply Company, the immediate seller of the wheel, on February
20, 2023. FAC at ¶ 84. Obviously, plaintiff’s provision of notice postdates his filing suit,

which does not satisfy a pre-suit notice requirement.
Alternatively, plaintiff argues that he did not need to give defendant pre-suit notice
because defendant had actual knowledge of the defect in the wheel’s labeling. FAC at ¶
47. In support of this position, plaintiff cites to a Seventh Circuit case interpreting Illinois
law, Arcor, Inc. v. Textron, Inc., 960 F.2d 710, 715 (7th. Cir 1992), but that case does not

shed light on how Missouri courts interpret its own Uniform Commercial Code statute.
Next, he cites to Jay V. Zimmerman Co. v. Gen. Mills, Inc., 327 F. Supp. 1198 (E.D. Mo.
1971), a case that concerned cross-suits for breach of contract relating to late delivery of
goods. In that case, the parties obviously negotiated for the delivery of goods by a certain
date, and so the delivering party (the plaintiff) had notice that it breached the contract when
it delivered those goods late. Id. at 1204. Importantly, the court found that the receiving

party (the defendant) gave the delivering party (the plaintiff) multiple pre-suit notices of
the breach: “numerous telephone discussions, beginning at least as early as mid-August
and continuing through November, 1969, were had relating to plaintiff's inability to meet
defendant's ‘tight timing schedule,’ and that in the course of these discussions, plaintiff
was ‘informed’ of its breach of contract.” Id. Finally, the defendant sent a letter to the
plaintiff after the late delivery, “explicitly stat[ing] that plaintiff had failed to achieve its

obligation to meet defendant's tight timing schedule ‘by wide margin.’” Id.
Thus, plaintiff’s case is distinguishable from Jay V. Zimmerman. First, this is a
breach of warranty, not a breach of contract case. Second, it cannot be said that plaintiff’s
complained-of breach—an insufficiently labeled product—is as explicit and obvious to
both the individual buyer and seller as is a negotiated sales contract. After all, defendant

had no way of knowing that plaintiff, as a specific individual, was going to buy one of
defendant’s wheels and then sue, even if defendant figured that someone, somewhere, was
likely going to sue for breach. Third, unlike in Jay V. Zimmerman when the defendant
gave several pre-suit notices, here, plaintiff has not pled any facts to indicate he gave any
notice at all before filing suit. Therefore, plaintiff fails to plead any facts showing that he

complied with the notice requirements of Sec. 400.2-607(3), and the Court will grant
defendant’s motion to dismiss as to Count II.
C. Count III: Violation of the California Consumer Legal Remedies Act
(CLRA)

Plaintiff asks for damages and injunctive relief under the CLRA. FAC at ¶¶ 85–97.
He also seeks to form a nationwide class under this section. FAC at ¶ 53. Defendant argues
that plaintiff lacks standing to pursue either injunctive or monetary relief under the CLRA.
As stated, plaintiff does not have Article III standing for injunctive relief. The only
remaining question is whether plaintiff has pled enough to sue for damages under the
CLRA.
Defendant argues that plaintiff failed to give proper notice under the CLRA. Cal.
Civ. Code § 1782(a)(2). That provision says that, at least thirty days before seeking an
action for damages under the CLRA, the plaintiff must notify the person alleged to have

committed the unlawful acts and that “[t]he notice shall be in writing and shall be sent by
certified or registered mail . . . to the place where the transaction occurred or to the person’s
principal place of business within California.” Id. (emphasis added). A plaintiff’s failure
to follow the clear text of the statute and to send notice to the proper place is an
independently sufficient ground for granting a motion to dismiss. See Corbett v.

PharmaCare U.S., Inc., 567 F. Supp. 3d 1172, 1201 (S.D. Cal. 2021) (holding that
plaintiff’s service of notice to defendant’s registered agent in Delaware and not its principal
place of business in California warranted dismissal); Kandel v. Brother Int'l Corp., No. CV
08-1040 DSF (RCx), 2009 WL 10429764, at *3 (C.D. Cal. May 12, 2009) (noting the
CLRA’s “specific choices” for giving notice and the absence of a statutory provision that

“allows for notice in the manner likely to effectuate actual notice”).
Plaintiff did not send his complaint to defendant’s principal place of business in
California. Instead, plaintiff sent his complaint to defendant’s registered agent in Missouri.

See [Doc. 1 at ¶ 9.] From then on, plaintiff has only sent filings to defendant’s counsel,
who are also located in Missouri. Plaintiff has pled no facts indicating he sent notice to
defendant’s principal place of business in La Mirada, California. Plaintiff does plead that
he gave a notice of breach letter to the place where the transaction occurred, Tractor Supply
Company, but he pleads that was a “notice of breach letter” to meet the requirements of
Sec. 400.2-607(3)(a), RSMo, and not the CLRA. FAC at ¶ 84. Because plaintiff does not

have standing for injunctive relief and he failed to comply with the CLRA’s specific notice
requirements, plaintiff’s CLRA count must be dismissed. The Court does not reach
defendant’s other arguments for dismissal.

D. Class Certification

The Court defers ruling on class certification for plaintiff’s proposed Missouri sub-
class for his MMPA count until after the parties have had opportunity to be heard on the
issue.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion to dismiss plaintiff's First
Amended Complaint [Doc. 35] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERD that plaintiff's Count II and II are DISMISSED
without prejudice.

Dated this 24th day of May, 2023.

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STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10238768. Public record. Not legal advice.