TAYLOR v. CARRIER GLOBAL CORPORATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JANET TAYLOR and JAMES )

NEWLANDS, individually and on )

behalf of all others similarly )

situated, )

)

Plaintiffs, )

)

v. ) 1:21CV839

)

WALTER KIDDE PORTABLE )

EQUIPMENT, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is a Motion to Dismiss Plaintiffs’ First

Amended Class-Action Complaint filed by Defendant Walter Kidde

Portable Equipment, Inc. (Doc. 21.) Plaintiffs Janet Taylor and

James Newlands (together, “Plaintiffs”) oppose the motion.

(Doc. 23.) This court will grant in part and deny in part the

motion. The motion is denied as to Plaintiff Taylor’s Song-

Beverly Act implied warranty claim (Count III), Plaintiff

Newland’s Florida implied warranty claim (Count VI), and

Plaintiffs’ Magnuson-Moss Warranty Act (“MMWA”) claim (Count

XIX). All other claims will be dismissed without prejudice.

I. FACTUAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint.” Ray v.

Roane, 948 F.3d 222, 226 (4th Cir. 2020) (internal quotation

marks omitted) (quoting King v. Rubenstein, 825 F.3d 206, 212

(4th Cir. 2016)). The facts, accepted as true as alleged in the

First Amended Complaint, taken in the light most favorable to

Plaintiffs, are as follows.

Defendant is a corporation headquartered in Mebane, North

Carolina, that manufactures and distributes fire extinguishers.

(First Am. Class Action Compl. (“FAC”) (Doc. 20) ¶ 11.) In a

variety of different marketing materials, Defendant has claimed

that its fire extinguishers are high quality. (See, e.g., id.

¶¶ 15–27.) Contrary to those representations, many of

Defendant’s fire extinguishers had a significant defect

“involving the tendency of their nozzles to frequently become

detached, clogged, or require excessive force to discharge

causing a failure to activate during a fire emergency.” (Id.

¶ 32.) Defendant knew of this defect as early as 2005 but did

not fully disclose it to federal regulators until August 2017.1

(See id. ¶¶ 3, 52.) In November 2017, Defendant issued a

1 In 2021, Defendant was ordered to pay a $12 million civil

penalty for failing to timely inform federal regulators about

the defect. (See FAC (Doc. 20) ¶ 54.)

comprehensive recall for fire extinguishers containing the

defect. (See, e.g., id. ¶ 101.) The recall included nearly 38

million units, among them H110G models.2 (Id. ¶ 40, 54.) The

recall program is flawed because many consumers have (1) not

heard of it, (2) were unable to establish contact with

Defendant, (3) experienced delays in securing replacement

products, or (4) received inadequate replacements. (See, e.g.,

id. ¶ 56–57, 66, 75.)

Plaintiff Taylor lives in California and in 2016 purchased

one of Defendant’s H110G models from Walmart. (Id. ¶ 8.) She did

not hear of the recall until sometime in 2021. (Id. ¶ 9.) In the

spring of 2021, a fire broke out in her garage. (Id.) She

followed the instructions of how to use her H110G fire

extinguisher, but when she squeezed the handle, only a small

drizzle of spray came out. (Id.) She eventually extinguished the

fire by other means and does not allege the fire caused any

physical injury or property damage. (See id.)

Plaintiff Newlands lives in Florida and in 2012 purchased

two H110G fire extinguishers from Lowe’s. (Id. ¶ 10.) They were

2 In 2015, Defendant had instituted a smaller recall for

nearly 4.6 million units. (FAC (Doc. 20) ¶ 44.) Demonstrated by

the need for the much larger 2017 recall, Defendant’s 2015

recall was far too narrow. (Id. ¶ 51.)

defective. (Id.) He did not hear of the recall until sometime in

2021. (Id.)

II. PROCEDURAL HISTORY

Plaintiffs filed their original complaint in October 2021.

(Doc. 1.) Defendant moved to dismiss the complaint. (Doc. 16.)

Plaintiffs then, pursuant to Federal Rule of Civil Procedure

15(a)(1), filed their First Amended Class Action Complaint

(“FAC”).3 (See FAC (Doc. 20).) The FAC seeks class certification

and asserts nineteen counts:

3 Because the FAC supersedes Plaintiffs’ original complaint,

(Doc. 1), Defendant’s motion to dismiss the original complaint,

(Doc. 16), will be denied as moot, see Shoe Show, Inc. v. One-

Gateway Assocs., LLC, No. 1:14CV434, 2015 WL 1128016, at *2

(M.D.N.C. Mar. 12, 2015) (“[T]he Court notes that after

Defendant filed its first Motion to Dismiss, Plaintiff filed an

Amended Complaint. As such, Defendant’s Motion to Dismiss

Plaintiff’s Original Complaint will be denied as moot because

the Original Complaint is ‘superseded’ by Plaintiff’s Amended

Complaint.” (quoting Hill v. Spartanburg Reg’l Health Servs.

Dist., Inc., Civil Action No. 7:13–271–MGL, 2013 WL 2395186, at

*3 (D.S.C. May 31, 2013))).

Count Cause of Action Asserted

I California Consumers Legal Remedies Act (“CLRA”)

II California Unfair Competition Law

III Implied Warranty under California Song-Beverly Act

and California Commercial Code

IV California False Advertising Law

V Florida Deceptive and Unfair Trade Practices Act

VI Florida Implied Warranty

VII North Carolina Unfair and Deceptive Trade Practices

Act (“NCUDTPA”)

VIII North Carolina Implied Warranty

IX Fraud

X Constructive Fraud

XI Fraudulent Inducement

XII Money Had and Received

XIII Fraudulent Concealment or Omission

XIV Fraudulent Misrepresentation

XV Negligent Misrepresentation

XVI Quasi-Contract/Unjust Enrichment

XVII Negligent Failure to Warn or to Instruct

XVIII Negligent Design Defect

XIX Magnuson-Moss Warranty Act (“MMWA”)

(Id. ¶¶ 126–329.) The California statutory claims, Counts I–IV,

are advanced by Plaintiff Taylor. (Id. ¶¶ 126–75.) The Florida

statutory claims, Counts V–VI, are advanced by Plaintiff

Newlands. (Id. ¶¶ 176–208.) The North Carolina statutory claims,

Counts VII–VIII, are advanced by both Plaintiffs, (id. ¶¶ 209–

31), as are the common law claims, Counts IX–XVII, and the

federal law claim, Count XIX, (id. ¶¶ 232–329). Most of the

common law claims are pled alternatively under North Carolina

law and the laws of the state where each Plaintiff lives or

purchased their fire extinguishers. (See id. ¶¶ 233, 242, 253,

263, 267, 275, 288, 313, 233.) Two of the common law claims are

pled under both North Carolina law and the laws of the state

where each Plaintiff lives. (See id. ¶¶ 296, 304.)

Defendant moved to dismiss the FAC, (Def.’s Mot. to Dismiss

Pls.’ First Am. Class-Action Compl. (“Mot.”) (Doc. 21)), and

filed a brief in support, (Def.’s Mem. in Supp. of Mot. to

Dismiss Pls.’ First Am. Class-Action Compl. (“Def.’s Br.”)

(Doc. 22)). Plaintiffs responded in opposition, (Pls.’ Opp’n to

Def.’s Mot. to Dismiss Pls.’ First Am. Class-Action Compl.

(“Pls.’ Resp.”) (Doc. 23)), and Defendant replied. (Def.’s Reply

in Supp. of Mot. to Dismiss Pls.’ First Am. Class-Action Compl.

(“Def.’s Reply”) (Doc. 24)).4 Defendant’s motion is now ripe for

adjudication.

III. STANDARD OF REVIEW

Defendant’s motion is made pursuant to Federal Rules of

Civil Procedure 9(b), 12(b)(1), and 12(b)(6). (Mot. (Doc. 21) at

1.)5

Under Rule 12(b)(1), a plaintiff must prove by a

preponderance of the evidence the existence of subject matter

4 This court notes that the parties sought and received

permission to file briefs significantly longer than the standard

word limit. (See Text Order 12/27/2021; Doc. 8; Doc. 19; Text

Order 02/24/2022.)

5 All citations in this Memorandum Opinion and Order to page

numbers of documents filed with the court refer to the page

numbers located at the bottom right-hand corner of the documents

as they appear on CM/ECF.

jurisdiction. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d

337, 347-48 (4th Cir. 2009). A defendant may challenge subject

matter jurisdiction facially or factually. See Kerns v. United

States, 585 F.3d 187, 192 (4th Cir. 2009). In a facial

challenge, a defendant asserts that the allegations, taken as

true, are insufficient to establish subject matter jurisdiction.

Id. The court then effectively affords a plaintiff “the same

procedural protection as he would receive under a Rule 12(b)(6)

consideration,” taking the facts as true and denying the Rule

12(b)(1) motion if the complaint “alleges sufficient facts to

invoke subject matter jurisdiction.” Id.

“To survive a [Rule 12(b)(6)] motion to dismiss, a

complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is plausible on its face “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged” and

demonstrates “more than a sheer possibility that a defendant has

acted unlawfully.” Id. When ruling on a motion to dismiss, this

court accepts the complaint’s factual allegations as true, id.,

and is required to “draw all reasonable inferences in favor of

the plaintiff,” King v. Rubenstein, 825 F.3d 206, 212 (4th Cir.

2016). This court does not, however, accept legal conclusions as

true, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678.

In addition to the normal pleading requirements of Rule

12(b)(6), claims of fraud must satisfy Rule 9(b)’s heightened

pleading standard. See United States ex rel. Grant v. United

Airlines Inc., 912 F.3d 190, 196 (4th Cir. 2018). “In alleging

fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person’s mind may be

alleged generally.” Fed. R. Civ. P. 9(b). Rule 9(b) exists to

give “defendants notice of their alleged misconduct, prevent[]

frivolous suits, and eliminat[e] fraud actions in which all the

facts are learned after discovery . . . .” Grant, 912 F.3d at

196; see also United States ex rel. Nathan v. Takeda Pharm. N.

Am., Inc., 707 F.3d 451, 456 (4th Cir. 2013).

IV. ANALYSIS

Defendant advances several reasons why all of Plaintiffs’

nineteen counts should be dismissed. (Def.’s Br. (Doc. 22) at

18.) These arguments will be addressed in turn.6

A. Article III Standing

Defendant’s first argument is that because Plaintiffs lack

Article III standing, their counts should be dismissed for lack

of subject matter jurisdiction pursuant to Federal Rule of Civil

Procedure 12(b)(1). (Def.’s Br. (Doc. 22) at 19–22; see also

Mot. (Doc. 21) at 1–2.)

To establish standing under Article III of the

Constitution, a plaintiff must show: “(1) an injury in fact;

(2) a sufficient causal connection between the injury and the

conduct complained of; and (3) a likelihood that the injury will

be redressed by a favorable decision.” Wikimedia Found. v. NSA,

857 F.3d 193, 207 (4th Cir. 2017). The second element is

oftentimes referred to as “traceability.” See id. at 213.

6 Because the relevant claims are dismissed on other

grounds, see infra Sections IV.B, D, this court does not address

Defendant’s final argument that “Plaintiffs’ equitable Unfair

Competition Law (UCL), False Advertising Law (FAL), money-had-

and-received, and unjust-enrichment claims fail under California

and Florida state law because plaintiffs fail to allege lack of

adequate legal remedy or a direct benefit to Kidde,” (Def.’s Br.

(Doc. 22) at 54–58).

Here, Defendant argues that the second element of Article

III is not met because Plaintiffs do not allege that they ever

sought new fire extinguishers through Defendant’s recall

program. (See Def.’s Br. (Doc. 22) at 20.) Defendant insists

that this severs the connection between its conduct and

Plaintiffs’ alleged injuries—by electing not to participate in

the recall program, any ongoing injury is not sufficiently

causally connected to Defendant’s conduct, but rather, due to

Plaintiffs’ own conduct. (See Def.’s Reply (Doc. 24) at 9.)

The primary case that Defendant relies on to support this

argument is Sugasawara v. Ford Motor Company, Case No. 18-CV-

06159-LHK, 2019 WL 3945105 (N.D. Cal. Aug. 21, 2019). In

Sugasawara, two F-150 truck owners filed a putative class action

against Ford, seeking damages for a defect in their vehicles

that could cause fires. Id. at *1–3. Prior to the lawsuit’s

commencement, Ford had instituted a recall program in which it

offered to fix the defects for free. Id. at 2–3. The complaint

was silent as to whether one of the plaintiffs received the

recall notice or participated in the recall program. Id. at 3.

The court dismissed the suit, without prejudice, for lack of

standing. Id. at *5–7. It held that because the complaint lacked

plausible allegations that the recall program would fail to cure

the defect, that one of the plaintiffs may have chosen to forgo

the program meant that any defect persisting in his F-150 was

traceable to his own conduct, not Ford’s. Id. at *6.

Plaintiffs’ FAC differs from the one in Sugaswara because

it affirmatively alleges that Plaintiffs were not timely

notified of the recall. Plaintiff Newlands purchased his two

H110G fire extinguishers in 2012. (FAC (Doc. 20) ¶ 10.)

Plaintiff Taylor purchased the same model in 2016. (Id. ¶ 8.)

That model was recalled in 2017. (Id. ¶ 40.) Nevertheless,

neither Plaintiff heard about the recall until 2021. (Id. ¶¶ 9–

10.) Considering the FAC’s emphatic allegations that Defendant’s

recall program has failed to notify all affected consumers,

(e.g., id. ¶ 40 (“Tens of thousands, if not hundreds of

thousands of consumers, have not been informed of Kidde’s

recalls.” (emphasis in original)), it is reasonable to infer

that the reason Plaintiffs did not hear about the recall until

years after it was declared is because they were never properly

notified by Defendant. Therefore, until 2021, when Plaintiffs

learned of the recall, the fact that they did not participate in

the recall program was seemingly due to Defendant’s failure to

notify them, rather than any independent choice by Plaintiffs

themselves. This suffices to establish a sufficient causal

connection between Plaintiffs injury and Defendant’s conduct,

the second element of standing.

In this regard, the instant case is less like Sugaswara and

more like Dukich v. IKEA US Retail LLC, CIVIL ACTION NO. 20-

2182, 2021 WL 1534520 (E.D. Pa. Apr. 19, 2021). In Dukich, ten

prospective plaintiffs alleged that they were not notified about

the recalls of their IKEA dressers and only learned about those

recalls when the lawsuit in which they sought to intervene was

filed. Id. at *3–4. The court rejected IKEA’s argument that the

prospective plaintiffs lacked standing because they could

“simply attempt to return their dressers now” under the recall

program. Id. at *4. The court held that the prospective

plaintiffs’ inability to avail themselves of the recall program

“was caused by the alleged failure of IKEA to notify the

prospective plaintiffs about the recalls. The prospective

plaintiffs have adequately pleaded causation.”7 Id.

Plaintiffs have sufficiently alleged that their economic

injuries were caused, inter alia, by Defendant’s failure to

properly notify them of the recall. This establishes causation

and defeats Defendant’s Article III standing challenge.

Defendant’s motion, insofar as it seeks dismissal pursuant to

7 Although IKEA’s recall program offered refunds, id. at *2,

which Defendant’s program does not generally offer, (see FAC

(Doc. 20) ¶ 300), the same overall logic from Dukich applies to

the instant case.

Rule 12(b)(1) for lack of subject matter jurisdiction, will thus

be denied.

B. Choice of Law

Defendant argues that all of Plaintiffs’ North Carolina law

claims—including the common law counts alternatively pled under

North Carolina law—should be dismissed because North Carolina

law does not apply under the relevant choice-of-law rules.

(Def.’s Br. (Doc. 22) at 22–27; see also (Doc. 24-1) at 3–5.)

Plaintiff responds that this argument is premature because it

raises fact-bound choice-of-law issues that should await

completion of discovery. (Pls.’ Resp. (Doc. 23) at 22–26.)

“The court may appropriately undertake a choice of law

analysis at the motion to dismiss stage where the factual record

is sufficiently developed to facilitate the resolution of the

issue.” In re Bldg. Materials Corp. of Am. Asphalt Roofing

Shingle Prod. Liab. Litig., Civil Action No. 3:11-CV-02784-JMC,

2013 WL 1316562, at *2 (D.S.C. Mar. 27, 2013); see also, e.g.,

SmithKline Beecham Corp. v. Abbott Lab’ys, No. 1:15CV360, 2017

WL 1051123 (M.D.N.C. Mar. 20, 2017) (engaging in substantial

choice-of-law analysis at the Rule 12 dismissal stage). Cases

that are ripe for adjudication of choice-of-law issues pre-

discovery include those where “the complaint provides the

relevant factual information for the court’s evaluation of the

relevant factors.” Bldg. Materials, 2013 WL 1316562, at *2. This

contrasts with the typical case, where the court is “in a better

position to decide a choice of law issue after the parties have

developed the factual evidence through the process of

discovery.” Clean Earth of Md., Inc. v. Total Safety, Inc.,

Civil Action No. 2:10-CV-119, 2011 WL 1627995, at *4 (N.D.W. Va.

Apr. 28, 2011); see also Terry v. Swift Transp., 1:16cv256, 2017

WL 1013074, at *7 (M.D.N.C. Mar. 14, 2017), report and

recommendation adopted, 2017 WL 2881141 (M.D.N.C. July 6, 2017);

Canada Pipeline Accessories, Co. v. Canalta Controls, Ltd.,

Civil Action No. 3:12-8448, 2013 WL 3233464, at *8 (S.D.W. Va.

June 25, 2013) (“As courts in this circuit and others have

recognized, a choice-of-law analysis at the motion-to-dismiss

stage is often premature.”).

The parties agree that North Carolina choice-of-law rules

apply. (See Pls.’ Resp. (Doc. 23) at 26 (“There is no dispute

that North Carolina choice of law principles control.”); see

also Def.’s Br. (Doc. 22) at 9–14 (applying North Carolina

choice-of-law rules).) This court agrees because “when

exercising . . . jurisdiction over state-law claims, federal

courts apply the choice-of-law rules of the state in which they

sit.” Terry, 2017 WL 1013074, at *3. There are two choice-of-law

rules relevant here: (1) the “lex loci” rule, and (2) the “most

significant relationship” rule. The lex loci rule applies the

law of the state where the injury occurred. See, e.g., Harco

Nat’l Ins. Co. v. Grant Thornton LLP, 206 N.C. App. 687, 692,

698 S.E.2d 719, 722 (2010). The most significant relationship

rule applies the law of the state with the most significant

relationship to the case. See, e.g., id. at 692, 698 S.E.2d at

723.

This court can adjudicate choice-of-law issues at this time

because Plaintiffs have failed to identify any relevant facts

missing from the FAC or underdeveloped in the FAC that prevent

this court from applying the lex loci and most significant

relationship rules. Therefore, this case is unlike those cited

by Plaintiffs where “discovery is needed to iron out” “nebulous”

issues of fact relating to the choice-of-law analysis. See

Morris v. Bank of Am., N.A., No. 3:18-cv-00157-RJC-DSC, 2019 WL

1421166, at *4 (W.D.N.C. Mar. 29, 2019). In fact, Plaintiffs

themselves acknowledge that this case has “more extensive”

factual allegations than such cases. (Pls.’ Resp. (Doc. 23) at

23.) Taking the extensive facts alleged in Plaintiffs’ 107 page

and 329 paragraph FAC as true, sufficient facts have been

presented to adjudicate the choice-of-law issues.

This court begins with Plaintiffs’ non-warranty North

Carolina claims, which Defendant asserts should be dismissed

under the lex loci rule, and will then address Plaintiffs’ North

Carolina implied warranty claim, which Defendant asserts should

be dismissed under the most significant relationship rule. (See

Def.’s Br. (Doc. 22) at 23–27.)

1. Non-Warranty North Carolina Claims

As the parties appear to agree, the lex loci rule applies

to all of Plaintiffs’ common law claims. (Compare Pls.’ Resp.

(Doc. 23) at 26–30, with Def.’s Reply (Doc. 24) at 13.)8 However,

the parties disagree whether the lex loci rule also applies to

Plaintiffs’ statutory NCUDTPA count. (Compare Pls.’ Resp. (Doc.

23) at 26–27, with Def.’s Reply (Doc. 24) at 13.)

This court dealt with this exact issue in SmithKline

Beecham, 2017 WL 1051123, at *6–8, finding that “[t]he Supreme

8 This includes Plaintiffs’ fraud-and negligence-based

claims. See, e.g., M-Tek Kiosk, Inc. v. Clayton, No. 1:15CV886,

2016 WL 2997505, at *11 (M.D.N.C. May 23, 2016) (“North

Carolina’s Supreme Court has consistently adhered to the lex

loci rule in tort actions. Therefore, the lex loci rule will be

applied to [Plaintiff’s] claims of fraud, constructive fraud,

civil conspiracy, and negligent misrepresentation.” (cleaned up)

(quoting Boudreau v. Baughman, 322 N.C. 331, 335, 368 S.E.2d

849, 854 (1988))). It also includes Plaintiffs’ unjust

enrichment claim. See Arabian Am. Oil Co. v. Anderson, 873 F.2d

1437 (4th Cir. 1989) (table opinion) (citing Boudreau, 322 N.C.

331, 368 S.E.2d 849, for the conclusion that “the district court

was correct in applying lex loci” to an unjust enrichment

claim). Because lex loci applies to the unjust enrichment claim,

it is likely North Carolina courts would also apply the approach

to Plaintiffs’ money-had-and-received claim because the North

Carolina Supreme Court has described such claims as being “under

the doctrine of unjust enrichment.” See Dean v. Mattox, 250 N.C.

246, 251, 108 S.E.2d 541, 546 (1959).

Court of North Carolina has yet to address the proper test for

UDTPA claims, and there is a split of authority in the North

Carolina Court of Appeals on the appropriate rule to be

applied.” Id. at *6. This court then engaged in an analysis of

the applicable caselaw and emerged with a fairly clear rule: the

lex loci test should apply “unless its application does not

yield a clear answer and the place of injury is so open to

debate that application of the significant relationship test is

more appropriate.” Id. at *6–8. In the absence of persuasive

authority to the contrary, this court will apply the rules

described in SmithKline Beecham.

Plaintiffs insist that because they dispute the place of

injury, the issue remains “open to debate,” and the most

significant relationship test should be applied. (Pls.’ Resp.

(Doc. 23) at 27 (quoting SmithKline Beecham, 2017 WL 1051123, at

*7).) Plaintiffs maintain their injuries occurred in North

Carolina. (Id. at 23.) The key paragraph in the FAC that they

claim supports this position reads:

The Fire Extinguishers at issue are numerous.

Although sold under different brand names, these fire

extinguishers are substantially similar. They all

suffer from the same Defect involving the tendency of

their nozzles to frequently become detached, clogged,

or require excessive force to discharge causing a

failure to activate during a fire emergency. Each fire

extinguisher substitutes important metal components

such as the handle or push button with cheaper and

less reliable plastic handles or plastic push buttons.

Further, these fire extinguishers were sold for years

despite Kidde’s knowledge of the Defect, risking the

personal health and safety of the consumer for

corporate profits. And these fire extinguishers, as

discussed below, were subject to the same ineffective,

sham recalls that left consumers uninformed and

vulnerable. Because these decisions were all made from

North Carolina, which served as the nerve center of

Kidde’s business, as described above, Plaintiffs

suffered an injury in the state of North Carolina.

(FAC (Doc. 20) ¶ 32 (emphasis added).)

This court finds that Plaintiffs’ allegation that

“[b]ecause these decisions were all made from North Carolina

. . . Plaintiffs suffered an injury in the state of North

Carolina,” (id.), is a “legal conclusion couched as a factual

allegation,” which this court is “not bound to accept as true”

at the motion to dismiss stage, Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555). Hence, the issue of where Plaintiffs’

injuries occurred is not “so open to debate,” SmithKline

Beecham, 2017 WL 1051123, at *8, just because Plaintiffs have

alleged the injury occurred in North Carolina. “[W]hen

determining the legal sufficiency of” this allegation, this

court “need not accept as true unwarranted inferences,

unreasonable conclusions, or arguments.” Fessler v. IBM Corp.,

959 F.3d 146, 154 (4th Cir. 2020) (quoting E. Shore Markets,

Inc. v. J.D. Assocs., 213 F.3d 175, 180 (4th Cir. 2000)).

This court rejects Plaintiffs’ allegation that the injury

occurred in North Carolina as an “unwarranted inference[]” and

“unreasonable conclusion[].” See id. “The injury location is

often easy to determine . . . . [It] is the state in which the

injury itself was felt, rather than the state in which the

injurious act occurred.” Wiener v. AXA Equitable Life Ins., No.

3:18-cv-00106-RJC-DSC, 2021 WL 665112, at *4 (W.D.N.C. Feb. 19,

2021) (“Courts have also found that the place of injury in

fraudulent misrepresentation cases is the place in which the

misrepresentation was heard and relied upon—that is, not

necessarily where the fraudulent statement was spoken, but where

the Court determines the injurious effect occurred.”).

[A] significant number of cases exist where a

plaintiff has clearly suffered its pecuniary loss in a

particular state . . . . In those cases, the lex loci

test requires application of the law of the state

where the plaintiff has actually suffered harm.

Therefore, it must be determined whether the record in

the instant case sufficiently indicates the state

where plaintiff suffered the injury that gave rise to

its claims.

Harco, 206 N.C. App. at 697, 698 S.E.2d at 726. “[T]he state

where the injury or harm was sustained or suffered . . . is,

ordinarily, the state where the last event necessary to make the

actor liable [occurred].” SciGrip, Inc. v. Osae, 373 N.C. 409,

420, 838 S.E.2d 334, 343 (2020) (cleaned up) (quoting Harco, 206

N.C. App. at 695, 698 S.E.2d at 724).

Rather than being open to debate, this is one of a “number

of cases” where the record sufficiently establishes the states

where Plaintiffs actually suffered harm and pecuniary loss—in

other words, the states where the injuries themselves were felt.

Those states are California and Florida, where Plaintiffs

purchased their defective fire extinguishers—the last event

necessary to make Defendant liable—and suffered their “economic

injuries.” (See FAC (Doc. 20) ¶¶ 8–10.) Whether the “last act”

is the purchase of the fire extinguishers or the failure to

notify buyers of a recall, it is not North Carolina where

Defendant engaged in its injurious acts and decisions. (See,

e.g., id. ¶ 32.)

Defendant’s statements in separate litigation in the

Northern District of California, see, e.g., Onn v. Walter Kidde

Portable Equip., Inc., No. 4:21-cv-02188-HSG (N.D. Cal. July 22,

2021) (Doc. 27),9 do not compel a different result because those

statements were made in the context of a motion to transfer

venue, see Richards v. United States, 369 U.S. 1, 9 n.20 (1962)

(“[The] considerations underlying the problem of venue are

substantially different from those determining applicable

9 This court can, and does, take judicial notice of these

statements because they are matters of public record. See Mobley

v. Estes, 1:17CV114, 2018 WL 704900, at *4 (M.D.N.C. Feb. 2,

2018) (taking judicial notice of certified court documents at

the motion to dismiss stage); see also Goldfarb v. Mayor & City

Council of Bal., 791 F.3d 500, 508–09 (4th Cir. 2015).

law.”). They do not address the key issue here: the location of

Plaintiffs’ injuries.

Therefore, this court finds that the place of injury is not

so open to debate; rather, application of the lex loci test

yields a clear answer. Accordingly, the lex loci rule applies to

not only Plaintiffs’ common law counts, but also to Plaintiffs’

NCUDTPA count—Count VII. Applying that rule requires that Count

VII be dismissed in its entirety because Plaintiffs’ injuries

occurred in California and Florida, respectively, and therefore

those states’ laws apply. Applying the lex loci rule to

Plaintiffs’ North Carolina common law claims, contained in

Counts IX–XVIII, requires the same result. Those counts will be

dismissed insofar as they assert causes of action under North

Carolina law.

2. North Carolina Implied Warranty Count

The most significant relationship rule, not lex loci,

applies to Plaintiffs’ North Carolina implied warranty count.

See Harco, 206 N.C. App. at 692, 698 S.E.2d at 723 (“[T]he

choice of law that applies to warranty claims is determined by

the most significant relationship test.”). The parties agree

that this is the applicable rule but disagree as to the outcome

it requires. (Compare Def.’s Br. (Doc. 22) at 25–27, with Pls.’

Resp. (Doc. 23) at 30–32.)

“The most significant relationship test . . . provides for

the use of the substantive law of the state with the most

significant relationship to the claim in question.” SciGrip, 373

N.C. at 420, 838 S.E.2d at 343. In Boudreau, one of the most

frequently cited North Carolina choice-of-law cases, “a North

Carolina furniture manufacturer . . . manufactured [a] chair and

sold it to a furniture store in Florida, which in turn sold it

to” Florida consumers. 322 N.C. at 334, 368 S.E.2d at 853. The

plaintiff was then injured by the chair in Florida. Id. at 333,

368 S.E.2d at 852. In its choice-of-law analysis, the North

Carolina Supreme Court applied the most significant relationship

test and decided that Florida law, not North Carolina law,

applied. Id. at 338–39, 368 S.E.2d at 855–56. The court examined

“the place of sale, distribution, delivery, and use of the

product, as well as the place of injury.” Id. at 338, 368 S.E.2d

at 855–56. It noted that “the law of the place of distribution

should be supreme in products liability cases,” especially “with

respect to breach of warranty claims.” Id. at 338–39, 368 S.E.2d

at 856. This is because “[a] state’s interest in enforcing

warranties involves protection of its citizens from commercial

movement of defective goods into that state.” Id. at 339, 368

S.E.2d at 856. The court also commented that the place of sale

was important because “[t]he state in which a sales contract is

consummated has a significant interest in applying the social

and economic policies embodied in its own law of warranty.” Id.

Applying Boudreau’s most significant relationship analysis

here dictates that California and Florida law must apply. Those

are the states where the sale was consummated for Plaintiffs’

respective fire extinguishers. (FAC (Doc. 20) ¶¶ 8, 10.) Most

importantly, those states are also the place of distribution.

Although Plaintiffs argue that “it seems likely . . . that Kidde

distributed its fire extinguishers from North Carolina,” (Pls.’

Resp. (Doc. 23) at 31 (emphasis added)), Boudreau establishes

that what matters is not the state where the product was

distributed from, but rather the state where the product was

distributed into. See 322 N.C. at 338–39, 368 S.E.2d at 856

(“[T]he law of the place of distribution should be supreme in

products liability cases. This is particularly true with respect

to breach of warranty claims [because] [a] state’s interest in

enforcing warranties involves protection of its citizens from

commercial movement of defective goods into that state.”)

(emphasis added) (internal citations omitted). Moreover,

California and Florida are also where Plaintiffs’ injuries

occurred, see supra Section IV.B.1, and for Plaintiff Taylor,

California was where she (attempted) to use her defective fire

extinguisher, (FAC (Doc. 20) ¶ 9).

California and Florida law therefore apply to Plaintiffs’

implied warranty claims, and Count VIII, Plaintiffs’ North

Carolina implied warranty claim, will be dismissed.

C. Timeliness

Defendant argues that several counts should be dismissed as

time barred, (Def.’s Br. (Doc. 22) at 27–35), and that this

statute of limitations defense is “apparent on the face of the

complaint,” (id. at 27 (quoting Ott v. Md. Dep’t of Public

Safety, 909 F.3d 655, 658 (4th Cir. 2018)).)

“[A] motion to dismiss filed under Federal Rule of

Procedure 12(b)(6), which tests the sufficiency of the

complaint, generally cannot reach the merits of an affirmative

defense, such as the defense that the plaintiff’s claim is time-

barred.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.

2007) (en banc). The only exception to this general rule is “in

the relatively rare circumstances where facts sufficient to rule

on an affirmative defense . . . ‘clearly appear on the face of

the complaint.’” Id. (quoting Richmond, Fredericksburg & Potomac

R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)).

This court finds that this is not one of those rare cases

where the facts sufficient to rule on Defendant’s statute of

limitations defense clearly appear on the face of Plaintiffs’

FAC. In response to Defendant’s statute of limitations defense,

Plaintiffs assert that the fraudulent concealment doctrine and

the discovery rule render their claims timely. (See Pls.’ Resp.

(Doc. 23) at 34–41; see also FAC (Doc. 20) ¶¶ 109–14.) There are

facts absent from the FAC’s face that are necessary to determine

whether fraudulent concealment and/or the discovery rule apply

to prevent Plaintiffs’ claims from being time-barred.10 Whichever

jurisdiction’s statute of limitations, claim accrual, and

tolling rules apply,11 more face development is needed to

evaluate Plaintiffs’ factual and legal contention that even

“through the exercise of reasonable diligence” they “could not

10 Defendant argues that as a matter of law neither

fraudulent concealment nor the discovery rule apply to Plaintiff

Newlands’s FDUPTA and Florida unjust enrichment claims. (See

Def.’s Reply (Doc. 24) at 19.) To the contrary, many of the

cases that Defendant itself raises suggest that—depending on the

facts alleged—fraudulent concealment may properly be applied to

FDUTPA claims. (See Def.’s Br. (Doc. 22) at 31–32 (discussing

Padilla v. Porsche Cars N. Am., Inc., 391 F. Supp. 3d 1108,

1112–15 (S.D. Fla. 2019); Fisher v. Harley-Davidson Motor Grp.,

LLC, No. 2:19-CV-14154-ROSENBERG/MAYNARD, 2019 WL 8014364, at

*2–3 (S.D. Fla. Oct. 18, 2019); Speier-Roche v. Volkswagen Grp.

of Am., Inc., No. 14-20107-CIV, 2014 WL 1745050, at *6–7 (S.D.

Fla. Apr. 30, 2014)).) Moreover, the discovery rule may apply to

Plaintiff Newlands’s unjust enrichment claim because, inter

alia, even under Florida’s version of the rule, delayed

discovery postpones accrual of products liability actions and

actions founded on fraud. See Davis v. Monahan, 832 So. 2d 708,

709—10 (2002) (“[F]or claims of fraud and products liability . .

. the accrual of the causes of action is delayed until the

plaintiff either knows or should know that the last element of

the cause of action occurred.”).

11 The parties dispute the applicability of North Carolina’s

statute of limitations borrowing provision. (Compare Def.’s Br.

(Doc. 22) at 27–28, with Pls.’ Resp. (Doc. 23) at 32–33.)

reasonably discover . . . the Fire Extinguisher Defect prior to

[2021],” (FAC (Doc. 20) ¶ 110). This contention will be better

adjudicated on a more developed record. See Edmonson v. Eagle

Nat’l Bank, 922 F.3d 535, 555, 558 (4th Cir. 2019) (reversing

grant of a motion to dismiss for failure to establish fraudulent

concealment’s applicability and stating that “adequacy of a

plaintiff’s diligence is generally not amenable to resolution on

the pleadings”); see also Jones v. BMW of N. Am., LLC, No. 1:20-

cv-00057, 2020 WL 5752808, at *10 (M.D.N.C. Sept. 25, 2020)

(“Although Jones must also ultimately show that he was unable to

discover the defect through his own reasonable diligence, this

issue is not well-suited for determination at the motion to

dismiss stage.”).

Therefore, at this early juncture, where the necessary

facts have not been fully established, this court defers ruling

on the timeliness of Plaintiffs’ claims. See Fed. R. Civ. P.

12(i) (allowing courts to defer ruling on issues raised in Rule

12 motions).

D. Rule 9(b)’s Particularity Requirement

Defendant argues that thirteen of Plaintiffs’ claims must

be dismissed for failure to satisfy Federal Rule of Civil

Procedure 9(b)’s particularity requirement. (Def.’s Br.

(Doc. 22) at 35–40.) Defendant argues that these claims are

based on affirmative misrepresentations but do not “state with

particularity the circumstances constituting fraud or mistake.”

(Id. at 35 (quoting Fed. R. Civ. P. 9(b)).) Defendant further

insists that the only misrepresentations Plaintiffs pleaded “are

nonactionable puffery.” (Id.) Plaintiffs do not dispute that

Rule 9(b) applies to any of the thirteen claims; instead, they

insist they have pled the claims with particularity and dispute

Defendant’s puffery assertion. (See Pls.’ Resp. (Doc. 23) at 42–

45.)

To meet Rule 9(b)’s heightened standard, “the plaintiff

must sufficiently describe ‘the time, place, and contents of the

false representations, as well as the identity of the person

making the misrepresentation and what he obtained thereby.’ This

minimum factual description is ‘often referred to as the who,

what, when, where, and how of the alleged fraud.’” Topshelf

Mgmt., Inc. v. Campbell-Ewald Co., 117 F. Supp. 3d 722, 725

(M.D.N.C. 2015) (quoting U.S. ex rel. Wilson v. Kellogg Brown &

Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008)). In Xia Bi v.

McAuliffe, the Fourth Circuit affirmed the trial court’s

dismissal of the plaintiffs’ fraud claims for failure to plead

those claims with particularity. 927 F.3d 177, 182–87 (4th Cir.

2019). In that case, the plaintiffs alleged they relied on

various misrepresentations made by the defendants “during

roadshows, in interviews, and in written materials” before

transferring money to the defendants. Id. at 185. The Fourth

Circuit concluded that the plaintiffs’ allegations were “general

and conclusory” and did not satisfy Rule 9(b) because, inter

alia, they did “not state which of the named plaintiffs claims

to have relied on each statement.” Id. (approvingly quoting the

trial court).

Here, the FAC states that “[n]umerous” “materials

Plaintiff[s] . . . reviewed and relied upon prior to purchase

are identified below and include the labeling, packaging, and

marketing materials for the H110G fire extinguisher.” (FAC

(Doc. 20) ¶¶ 8, 10.) The FAC then proceeds to list in fourteen

numbered paragraphs a series of marketing materials and

statements made by Defendant. (See id. ¶¶ 15–28.)

This approach does not satisfy Rule 9(b)’s particularity

requirement. As in Xia Bi, Plaintiffs’ allegations do “not state

which of the named plaintiffs claims to have relied on each

statement . . . or whether any plaintiff even relied on a given

misstatement at all.” 927 F.3d at 185. This court will therefore

dismiss all thirteen of Plaintiffs’ counts to which it is

uncontested that Rule 9(b) applies. Those are Counts I—II, IV–V,

VII,12 IX-XV, and XVI. (See Def.’s Br. (Doc. 22) at 36.)

E. Economic-Loss Rule

Defendant argues that Plaintiffs’ failure to warn and

negligent design defect claims should be dismissed under the

economic-loss rule.13 (Def.’s Br. (Doc. 22) at 40–42.)

The economic-loss rule generally holds that “[i]n actions

for negligence, a manufacturer’s liability is limited to damages

for physical injuries; no recovery is allowed for economic loss

alone.” Aas v. Superior Court, 12 P.3d 1125, 1130–31 (2000); see

also Tiara Condo. Ass’n v. Marsh & McLennan Co., 110 So. 3d 399,

401 (2013) (“Simply put, the economic loss rule is a judicially

created doctrine that sets forth the circumstances under which a

tort action is prohibited if the only damages suffered are

economic losses.”). This means that normally “[d]amages

available under strict products liability do not include

economic loss, which includes damages for inadequate value,

costs of repair and replacement of the defective product or

12 This claim must also be dismissed on choice-of-law

grounds. Supra Section IV.B.1.

13 Defendant similarly argues that the economic-loss rule

requires dismissal of many of Plaintiffs’ fraud claims, (Def.’s

Br. (Doc. 22) at 42–44), but that argument need not be addressed

because those claims must be dismissed under Rule 9(b), see

supra Section IV.D.

consequent loss of profits—without any claim of personal injury

or damages to other property.” Jimenez v. Superior Court, 58

P.3d 450, 482 (2002) (internal quotation marks omitted).

Here, there are no allegations that either Plaintiff

suffered physical harm. The only allegations of physical injury

or property damage concern other individuals—not the named

Plaintiffs. (See, e.g., FAC (Doc. 20) ¶¶ 34–39.) The FAC never

alleges that Plaintiff Newlands attempted to use his fire

extinguisher, let alone that it caused him physical injury or

damaged his property. (See id. ¶ 10.) Plaintiff Taylor alleges

more, but still no physical injury. (Id. ¶¶ 8–9.) Taylor alleges

that her fire extinguisher failed when she attempted to use it

to put out a fire in her garage. (Id. ¶ 9.) But eventually, the

fire was put out by other means, and the FAC conspicuously fails

to allege the fire caused any physical damage to anyone or

anything. (See id. ¶ 9.)

Therefore, this court will dismiss Plaintiffs’ negligent

failure-to-warn and design defect counts, Counts XVII–XVIII.

F. Third-Party Beneficiary Privity Exception

Defendant argues that Plaintiffs’ California and Florida

Uniform Commercial Code implied warranty claims should be

dismissed because neither Plaintiff alleges vertical privity,

and the third-party beneficiary exception is inapplicable.14

(Def.’s Br. (Doc. 22) at 44–48.) Plaintiffs disagree, arguing

that “the weight of authority supports the third-party

beneficiary exception.”15 (Pls.’ Resp. (Doc. 23) at 47.)

Courts are split on the viability of the third-party

beneficiary exception under California and Florida law. Some

federal courts have declined to find such an exception under

California law because “no published decision of a California

court has applied this doctrine in the context of a consumer

claim against a product manufacturer.” Seagate Tech., 233 F.

Supp. 3d at 787; accord Corbett v. Pharmacare U.S., Inc., 544 F.

Supp. 3d 996, 1010–11 (S.D. Cal. 2021); see also Loomis v.

14 Defendant does not make this argument regarding Plaintiff

Taylor’s California implied warranty claim under the Song-

Beverly Act. (See Def.’s Br. (Doc. 22) at 44–48.) To do so would

be futile because that law’s plain language does not require

vertical privity. See Cal. Civ. Code § 1792 (“Unless disclaimed

in the manner prescribed by this chapter, every sale of consumer

goods that are sold at retail in this state shall be accompanied

by the manufacturer’s and the retail seller’s implied warranty

that the goods are merchantable.”); In re Seagate Tech. LLC

Litig., 233 F. Supp. 3d 776, 786 (N.D. Cal. 2017) (“[A]

California implied warranty claim under the Song–Beverly Act . .

. does not require privity.”).

15 Despite the FAC’s allegation that “Plaintiffs . . . had a

contract with Kidde,” (FAC (Doc. 20) ¶ 33), Plaintiffs only

assert the third-party beneficiary exception in their response,

(see Pls.’ Resp. (Doc. 23) at 47–49). Because of this, and that

this court presently finds the exception viable, whether

Plaintiffs themselves had a contract with Defendant will not be

addressed.

Slendertone Distrib., Inc., 420 F. Supp. 3d 1046, 1088-89 (S.D.

Cal. 2019); Xavier v. Philip Morris USA, Inc., 787 F. Supp. 2d

1075, 1083 (N.D. Cal. 2011). But, as recently as this year,

other federal courts have found the exception viable under

California law. E.g., Goldstein v. Gen. Motors LLC, No.

19cv1778-LL-AHG, 2022 WL 484995, at *10 (S.D. Cal. Feb. 16,

2022). These courts find a basis for the exception in a

published California appellate court decision. E.g., Zeiger v.

WellPet LLC, 304 F. Supp. 3d 837, 854 (N.D. Cal. 2018) (“Because

Gilbert [Fin. Corp. v. Steelform Contracting Co., 145 Cal.Rptr.

448 (1978)] provides the authority for plaintiffs to plead the

third-party beneficiary exception, I will allow them to proceed

on their implied warranty claim in the absence of privity.”).

Federal courts applying Florida law are likewise split as

to whether the third-party beneficiary exception applies to

implied warranty claims. Some have held that Florida allows a

plaintiff to “pursue a claim of breach of implied warranty

through third-party beneficiary law.” Sanchez-Knutson v. Ford

Motor Co., 52 F. Supp. 3d 1223, 1233–34 (S.D. Fla. 2014); see

also Pegasus Aviation IV, Inc. v. Aircraft Composite Techs.,

Inc., No. 1:16-cv-21255-UU, 2016 WL 3390122, at *5 (S.D. Fla.

June 17, 2016) (“Plaintiff can state a claim for . . . breach of

implied warranty of merchantability, even without direct

privity, as long [as] Plaintiff adequately alleges that it was a

third party beneficiary . . . . ”); Carder v. Graco Children’s

Prods., Inc., 558 F. Supp. 3d 1290, 1319 (N.D. Ga. 2021). Other

courts disagree and criticize these decisions for being

insufficiently grounded in Florida state court rulings. See

Johnson v. Nissan N. Am., Inc., No. 17-cv-00517-WHO, 2018 WL

905850, at *5 (N.D. Cal. Feb. 15, 2018) (rejecting and

criticizing the line of cases finding a third-party beneficiary

exception under Florida law as “relying on another federal case

from Louisiana that in turn cited a Florida case arising in a

different context”); In re Seagate Tech. LLC Litig., No. 16-cv-

00523-JCS, 2017 WL 3670779, at *9 (N.D. Cal. Aug. 25, 2017)

(“The district court’s decision in Sanchez-Knutson [fails to]

cite[] any Florida authority holding the third-party beneficiary

exception applicable in a consumer products context.”).

At this juncture, this court declines to definitively

conclude which line of cases in Florida and California is more

persuasive. That is because this argument is made pursuant to

Rule 12(b)(6), meaning “every doubt [is] resolved in the

pleader’s favor.” 5B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1357 (3d ed. 2022); see also,

e.g., Marietta Area Healthcare, Inc. v. King, Civil Action No.

5:21-CV-25, 2022 WL 1073335, at *2 (N.D.W. Va. Apr. 8, 2022)

(“When reviewing a motion to dismiss pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure, the Court must . . .

resolve all doubts . . . in favor of the plaintiff.”). This

court will therefore, at least at this time, find that

Plaintiffs’ third-party beneficiary theory may proceed.

Additionally, despite Defendant’s protestations to the

contrary, this court finds that Plaintiffs have pleaded

sufficient facts to invoke the exception. The FAC has stated

sufficient facts to plead the exception under California law

because it alleges that Plaintiff Taylor “is a third-party

beneficiary of Kidde’s contracts with wholesalers or retail

sellers” and that the fire extinguishers “were designed for the

benefit of the end-user and not for the benefit of a wholesaler

or retailer.” (FAC (Doc. 20) ¶ 156.) “Other courts have found

similar allegations sufficient to convey third-party beneficiary

status.” Goldstein, 2022 WL 484995, at *10 (collecting cases).

The FAC also states sufficient facts to plead the exception

under Florida law because it alleges the “when, how, and from

whom,” Carder, 558 F. Supp. 3d at 1319 (quoting Varner v.

Domestic Corp., Civil Action No. 16-22482-Civ-Scola, 2017 WL

3730618, at *12 (S.D. Fla. Feb. 7, 2017)), Plaintiff Newlands

purchased his fire extinguisher, (FAC (Doc. 20) ¶ 10 (“In 2012,

Plaintiff Newlands purchased two Kidde model H110G fire

extinguishers with plastic handles from a brick-and-mortar

Lowe’s located in Orlando, Florida.”). Moreover, the FAC makes

allegations regarding “the end-user” or “ultimate consumers of

the Fire Extinguishers,” (id. ¶¶ 195, 229), that are similar to

allegations made in cases where courts have found the third-

party beneficiary exception adequately pled under Florida law,

See Sanchez-Knutson, 52 F. Supp. 3d at 1234; accord Pegasus

Aviation, 2016 WL 3390122, at *5. Therefore, this court declines

to dismiss Plaintiffs’ UCC implied warranty claims on privity

grounds.

G. Pre-Suit Notice

Defendant argues that Plaintiff Taylor’s CLRA16 and

California implied warranty count, as well as Plaintiffs’ MMWA

count, should be dismissed for failure to provide the required

notice and opportunity to cure. (Def.’s Br. (Doc. 22) at 48–51.)

Plaintiffs respond that these claims should not be

dismissed for lack of notice because their counsel sent

Defendant a demand letter in February 2021. (See Pls.’ Resp.

(Doc. 23) at 49–51; see also FAC (Doc. 20) ¶¶ 107–08, 136.) That

letter was sent “pursuant to . . . the Consumers Legal Remedies

16 Although Federal Rule of Civil Procedure 9(b) provides

adequate grounds for dismissal of Plaintiff Taylor’s CLRA claim,

see supra Section IV.D, this court will nonetheless also address

whether she complied with the CLRA’s notice requirement.

Act, Civil Code § 1770 and U.C.C. § 2-607(3)(A) concerning

breaches of warranty.” (Id. ¶ 107 (alteration in original).)

However, it was not explicitly sent in the name of the

Plaintiffs in this case, rather it was sent “on behalf of . . .

Daniel Onn, and all other similarly situated purchasers.” (Id.

(emphasis omitted).) In March 2021, Mr. Onn filed a putative

class action against Defendant in the Northern District of

California, (id.), but in September 2021, he voluntarily

dismissed his suit without prejudice, Onn, No. 4:21-cv-02188-HSG

(Doc. 29).17 The FAC argues that based on the response to the

February 2021 letter on Mr. Onn’s behalf, “Kidde has

demonstrated that a demand letter sent on behalf of the present

Plaintiffs would have been futile. . . . Accordingly, Plaintiffs

brought suit on the basis that Kidde had already received

repeated notice and repeated its denials at every turn.” (FAC

(Doc. 20) ¶ 108.)

1. CLRA Claim

The CLRA requires that

[t]hirty days or more prior to commencing an

action for damages pursuant to [the CLRA], the

consumer must notify the prospective defendant of the

alleged violations . . . and “[d]emand that such

person correct, repair, replace or otherwise rectify

the goods or services alleged to be in violation”

thereof. If, within this 30-day period, the

17 This court takes judicial notice of this dismissal

because it is a public record. See supra note 7.

prospective defendant corrects the alleged wrongs, or

indicates that it will make such corrections within a

reasonable time, no cause of action for damages will

lie. This notice requirement need not be complied with

in order to bring an action for injunctive relief.

Kagan v. Gibraltar Sav. & Loan Assn., 676 P.2d 1060, 1063 (1984)

(internal citation omitted) (quoting Cal. Civ. Code

§ 1782(a)(2)). California courts have emphasized that “the

purpose of the [pre-suit notice] requirement is clear: ‘to give

the manufacturer or vendor sufficient notice of alleged defects

to permit appropriate corrections or replacements.’” Stickrath

v. Globalstar, Inc., 527 F. Supp. 2d 992, 1001 (N.D. Cal. 2007)

(quoting Outboard Marine Corp. v. Superior Court, 124 Cal. Rptr.

852, 858 (1975)).

This court finds that Plaintiffs have failed to allege

sufficient facts establishing their compliance with the CLRA’s

pre-suit notice requirement. They admit they did not send a pre-

suit letter on their own behalf. (See FAC (Doc. 20) ¶¶ 107–08.)

But problematically, the pre-suit letter on which they seek to

rely was sent by a plaintiff who voluntarily dismissed all his

claims against Defendant well over a month before Plaintiffs

filed suit. (Compare Onn, No. 4:21-cv-02188-HSG (Doc. 29), with

Doc. 1.) It would defeat the pre-suit notice requirement’s

purpose of allowing Defendant to correct or replace the

allegedly defective products if this court were to allow

Plaintiffs to rely on a CLRA notice sent in connection with a

different case by a claimant who withdrew his claims.

Lack of notice therefore provides additional grounds to

dismiss Plaintiff Taylor’s CLRA claim insofar as that claim

seeks damages.18 However, to the extent the CLRA claim seeks

injunctive relief, (see FAC (Doc. 20) ¶ 137), lack of notice

does not provide grounds for dismissal because such relief falls

outside of the CLRA’s pre-suit notice requirement, see Cal. Civ.

Code § 1782(d).

2. California Implied Warranty Claim

Plaintiff Taylor asserts an implied warranty claim in Count

III under two California statutes: California Commercial Code

Section 2314 and the Song-Beverly Act. (FAC (Doc. 20) ¶¶ 153–

166.) Plaintiffs do not dispute that Plaintiff Taylor’s

California Commercial Code Section 2314 implied warranty claim

should be dismissed for lack of pre-suit notice. (See Pls.’

Resp. (Doc. 23) at 49–51.) Considering this conspicuous non-

opposition and Plaintiffs’ express admission that they

18 This claim, like all other dismissed claims, will be

dismissed without prejudice. See infra Part V. As the California

courts have instructed, a CLRA claim dismissed for lack of

notice “must simply be dismissed until 30 days or more after the

plaintiff complies with the notice requirements.” Morgan v. AT&T

Wireless Servs., Inc., 99 Cal. Rptr. 3d 768, 789 (2009). But

“[i]f, before that 30–day period expires the defendant corrects

the alleged wrongs or indicates it will correct the wrongs, the

defendant cannot be held liable for damages.” Id.

themselves never gave pre-suit notice, this court will dismiss

Count III to the extent it alleges a claim under California

Commercial Code Section 2314.

Nevertheless, this court will not dismiss Plaintiff

Taylor’s Song-Beverly Act claim. Plaintiffs oppose dismissal of

that claim and advance the case of Mexia v. Rinker Boat Co., 95

Cal. Rptr. 3d 285 (2009). (Id. at 50–51.) Mexia establishes that

Plaintiff Taylor’s Song-Beverly Act claim is not subject to a

pre-suit notice requirement, “[n]or is there any requirement

that the buyer allow the seller or manufacturer an opportunity

to repair the product prior to bringing an action for breach of

the implied warranty of merchantability.” 95 Cal. Rptr. 3d at

293. Defendant’s statutory interpretation that would impose a

pre-suit notice requirement on the Song-Beverly Act, (see Def.’s

Br. (Doc. 22) at 50–51), directly conflicts with this holding,

and as the Ninth Circuit has held “[a]bsent convincing evidence

that the California Supreme Court would decide the issue in

Mexia differently, its rule . . . must be followed,” Daniel v.

Ford Motor Co., 806 F.3d 1217, 1223 (9th Cir. 2015). Defendant

also attempts to circumvent Mexia by arguing it only applies to

latent-defect cases, which it insists this case is not because

Plaintiff Taylor failed to notify Defendant even after she tried

to use her extinguisher and it failed to function properly.

(Def.’s Br. (Doc. 22) at 50.) But Taylor’s discovery of the

defect five years after purchasing her extinguisher does not

render the defect patent because “[i]n the case of a latent

defect, a product is rendered unmerchantable, and the warranty

of merchantability is breached, by the existence of the unseen

defect, not by its subsequent discovery.” Mexia, 95 Cal. Rptr.

3d at 291 (emphasis added).

3. MMWA Claim

This court finds the MMWA claim raises a complicated issue

the parties have not addressed. Therefore, this court does not

presently find that Plaintiffs’ MMWA claim must be dismissed for

lack of pre-suit notice. The MMWA states that

[n]o action (other than a class action . . .) may be

brought . . . and a class of consumers may not proceed

in a class action under such subsection with respect

to such a failure [to provide the required notice and

opportunity to cure] except to the extent the court

determines necessary to establish the representative

capacity of the named plaintiffs, unless the person

obligated under the warranty or service contract is

afforded a reasonable opportunity to cure such failure

to comply. In the case of such a class action . . .

such reasonable opportunity [to cure failure to

comply] will be afforded by the named plaintiffs and

they shall at that time notify the defendant that they

are acting on behalf of the class.

15 U.S.C. § 2310(e). As explained by In re Lumber Liquidators

Chinese-Manufactured Flooring Durability Marketing & Sales

Practices Litigation, courts are split as to whether this

provision allows

a plaintiff who has failed to adequately allege the

required notice under applicable state law for his own

claim [to] nevertheless prosecute warranty claims

under the MMWA as a class representative and, in that

capacity, provide the required notice and opportunity

to cure on behalf of the entire class, including,

presumably, himself. Some district courts have held

that MMWA claims by plaintiffs who have failed to

provide the required pre-suit notice under applicable

state law must be dismissed, even if those claims are

filed on behalf of a class.

. . . .

Other courts have held that the deferred notice

provisions allow for precisely that—deferred notice on

behalf of a class after the filing of suit by a class

representative, presumably even a representative

plaintiff whose own claim would be barred under

applicable state law for failure to provide pre-suit

notice.

MDL No. 1:16md2743 (AJT/TRJ), 2017 WL 2911681, at *15–16 (E.D.

Va. July 7, 2017). In this case, as in Lumber Liquidators,

“[n]either party has . . . briefed how the deferred notice

provisions of the MMWA should be applied in this litigation.”

Id. at *16. Considering this lack of briefing and uncertainty in

the law, this court will take the same approach as Lumber

Liquidators and address this issue “within the context of class

certification, where the Court will determine the suitability of

the particular Plaintiffs to serve as class representatives.”

Id.

H. Subject Matter Jurisdiction for the MMWA Claim

Defendant next argues that “this Court lacks subject-matter

jurisdiction over plaintiffs’ MMWA claims” because the

Plaintiffs have failed to meet the statute’s numerosity and

amount-in-controversy requirements. (Def.’s Br. (Doc. 22) at 51–

54.)

A plaintiff may file a MMWA claim in either state or

federal court. 15 U.S.C. § 2310(d)(1). Such a suit, however, is

not appropriately brought in a United States district court

(B) if the amount in controversy is less than the sum

or value of $50,000 (exclusive of interests and

costs) computed on the basis of all claims to be

determined in this suit; or

(C) if the action is brought as a class action, and

the number of named plaintiffs is less than one

hundred.

Id. § 2310(d)(3). This case only features two named plaintiffs,

far less than the required one hundred. Plaintiffs argue that

despite this shortcoming, this court still has subject matter

jurisdiction over their MMWA claim pursuant to the Class Action

Fairness Act (“CAFA”). (Pls.’ Resp. (Doc. 23) at 51–52.)

Defendant disagrees, arguing that Plaintiffs cannot avail

themselves of CAFA because that law did not repeal—implicitly or

otherwise—MMWA’s requirements. (Def.’s Reply (Doc. 24) at 29;

see also Def.’s Br. (Doc. 22) at 53–54.)

Courts are split on this issue. Compare Kuns v. Ford Motor

Co., 543 F. App’x. 572, 574 (6th Cir. 2013) (determining that

“CAFA effectively super[s]edes the MMWA’s more stringent

jurisdictional requirements” and “can render a district court a

‘court of competent jurisdiction’ and permit it to retain

jurisdiction where the CAFA requisites are met but the MMWA

requisites are not.” (quoting Kuns v. Ford Motor Co., 926 F.

Supp. 2d 976, 980 (N.D. Ohio 2013))), with Floyd v. Am. Honda

Motor Co., 966 F.3d 1027, 1035 (9th Cir. 2020) (“CAFA does not

demonstrate any intent by Congress to repeal or alter parts of

the MMWA’s jurisdictional requirements. Therefore, CAFA may not

be used to evade or override the MMWA’s specific numerosity

requirement[s].”). The Fourth Circuit does not appear to have

addressed this issue, but at least one Fourth Circuit district

court has. In Chavis v. Fidelity Warranty Services, Inc., the

court found that CAFA implicitly overrode MMWA’s stricter

requirements:

It is firmly entrenched that Congress is presumed

to enact legislation with knowledge of the law. Witt

v. United Cos. Lending Corp. (In re Witt), 113 F.3d

508, 513 (4th Cir. 1997) (citing United States v.

Langley, 62 F.3d 602, 605 (4th Cir. 1995) (en banc)).

The practical effect of this canon of statutory

interpretation is that “absent a clear manifestation

of contrary intent, a newly-enacted or revised statute

is presumed to be harmonious with existing law and its

judicial construction.” Id. (quoting Estate of Wood v.

C.I.R., 909 F.2d 1155, 1160 (8th Cir. 1990)).

CAFA was passed with the clear intention of

expanding “federal court jurisdiction over class

actions . . . .” S. Rep. No. 109–14 at 42 (2005), 2005

U.S.C.C.A.N. 3, 40. Under the established framework

for statutory interpretation, it is to be assumed that

Congress was aware of the Act’s strict provisions for

maintaining a class-action in federal court. Congress

was also presumed to be aware of section 2310(d)(1)(A)

of the M/M Act and its recognition that jurisdiction

is appropriate under the M/M Act “in any court of

competent jurisdiction in any State or the District of

Columbia.” 15 U.S.C. § 2310(d)(1)(A). Accordingly,

CAFA’s grant of federal jurisdiction over any class-

action in which the matter in controversy exceeds the

sum or value of $5,000,000 and where any member of a

class of plaintiffs is a citizen of a state different

from any defendant necessarily includes qualifying

class-actions filed pursuant to the M/M Act that fail

to meet the strict provisions of 15 U.S.C.

§ 2310(1)(B). CAFA provides an alternate basis by

which federal courts may become courts of “competent

jurisdiction” under 15 U.S.C. § 2310(d)(1)(A).

415 F. Supp. 2d 620, 626 (D.S.C. 2006) (omission in original).

Defendant has not provided any in-circuit authority to the

contrary.

In lieu of such authority, this court will not foreclose

CAFA as an avenue for Plaintiffs to avoid MMWA’s numerosity

requirement. Additionally, Plaintiffs have stated sufficient

facts to allege that they met CAFA’s amount in controversy

requirement. “[CAFA] tells the District Court to determine

whether it has jurisdiction by adding up the value of the claim

of each person who falls within the definition of [the

plaintiff’s] proposed class and determine whether the resulting

sum exceeds $5 million.” Standard Fire Ins. v. Knowles, 568 U.S.

588, 592 (2013). Here, the aggregate value of the claims of each

person in the proposed class allegedly exceed $5 million because

this proposed class action concerns “sale of over 40 million

plastic handle fire extinguishers” “sold at a price point of $12

to $200.” (FAC (Doc. 20) ¶¶ 6, 30.) Thus, that Plaintiffs have

failed to meet MMWA’s requirements does not deprive this court

of subject matter jurisdiction because they have met CAFA’s

requirements, which provides an alternate jurisdictional basis.

I. Prejudice and Leave to Amend

In summary, this court is dismissing all of Plaintiffs’

claims except for Plaintiff Taylor’s implied warranty Song-

Beverly Act claim (Count III), Plaintiff Newland’s Florida

implied warranty claim (Count VI), and Plaintiffs’ MMWA claim

(Count XIX). Plaintiff may proceed on these three remaining

claims. All other claims will be dismissed.

The dismissed claims will be dismissed without prejudice.

Whether to dismiss with or without prejudice rests in the “sound

discretion of the district court.” Adbul-Mumit v. Alexandria

Hyundai, LLC, 896 F.3d 278, 292 (4th Cir. 2018). Dismissal

without prejudice is appropriate here because this court

believes that some of Plaintiff’s dismissed claims (e.g.,

certain claims dismissed on Rule 9(b) or lack of notice grounds)

could conceivably be revived if deficiencies in the FAC are

cured.

Although in Plaintiffs’ response they request “leave to

replead” if certain claims are dismissed, (see, e.g., Pls.’

Resp. (Doc. 23) at 43), those requests are denied without

prejudice. This court is mindful of the Fourth Circuit’s recent

guidance in Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (en

banc), but notes that all “request[s] for a court order must be

made by a motion,” Fed. R. Civ. P. 7(b)(1). “A request for leave

to amend, in the event that any part of the complaint is

dismissed, at the end of a plaintiffs’ response brief opposing a

motion to dismiss is not a proper motion for leave to amend.”

Allen v. Rentgrow, Inc., No. 1:20cv256, 2020 WL 4368651, at *3

(M.D.N.C. July 30, 2020). Moreover, “this district’s local rules

require a proposed amended pleading to be attached to any motion

for leave to amend a pleading.” Id. (citing Local Rule 15.1).

“Because Plaintiffs have failed to comply with either of these

requirements, the appropriate course of action is to deny the

request without prejudice.” Bryant v. Woodall, No. 1:16CV1368,

2022 WL 3465380, at *4 (M.D.N.C. Aug. 17, 2022).

V. CONCLUSION

For the reasons stated herein, Defendant’s Motion to

Dismiss Plaintiffs’ First Amended Class-Action Complaint, (Doc.

21), will be granted in part and denied in part. Defendant’s

Motion to Dismiss Plaintiffs’ Class-Action Complaint, (Doc. 16),

will be denied as moot.

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss

Plaintiffs’ First Amended Class-Action Complaint, (Doc. 21), is

GRANTED IN PART and DENIED IN PART. The motion is granted as to

Counts I-II, IV-V, and VII-XVIII, which are all hereby dismissed

without prejudice. The motion is also granted as to Count III,

insofar as it asserts a claim under California Commercial Code

Section 2314, but denied to the extent it asserts a claim under

the Song-Beverly Act. The motion is fully denied as to Counts VI

and XIX.

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss

Plaintiffs’ Class-Action Complaint, (Doc. 16), is DENIED as

moot.

This the 23rd day of September, 2022.

Wy inset Gale Me

United States District Ju

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