Before the Court is Defendant Fluid-master’s motion to dismiss [136]. For the
I. Background
This multi-district litigation relates to an allegedly faulty plumbing product designed and manufactured by Defendant Fluidmas-ter, Inc., a California company. The part in question is a called a NO-BURST water supply line, which is a short (usually 12‘ or 20‘ in length), flexible hose used to connect water piping to plumbing fixtures (e.g., toilets, faucets, etc.). Plaintiffs allege -two faults in these NO-BURST water supply lines: (1) that.poor material selection and a defective design cause many of the supply lines to burst, resulting in flooding, and (2) that a plastic coupling nut used on a particular type of water supply line (ie., a toilet connector) is uniformly defective in its design and labeling, causing the coupling nut to fracture, resulting in flooding. Plaintiffs in this MDL include (1) individuals who incurred damages from fractured water supply lines, (2) individuals who have these allegedly faulty products in their homes where the product has yet to fail, and (3) subrogated insurers who paid claims to individuals who suffered damage due to supply line failures.
To streamline the adjudication of the common-liability claims in this MDL proceeding, the Court accepted Plaintiffs’ proposal to file a consolidated class action complaint combining the claims as presented in six pre-existing class action lawsuits that had been transferred to this Court as part of this multi-district litigation;
II. Legal Standard
A. Rule 12(b)(1)
The standard that the Court applies to a Rulé 12(b)(1) motion to dismiss for lack of subject matter jurisdiction depends on the purpose of the motion. See Apex Digital, Inc. v. Sears, Roebuck & Co.,
B. Rule 12(b)(6)
In reviewing the sufficiency of a complaint, a district court must accept all
C. Rule 12(f)
Under Federal Rule of Civil Procedure 12(f) “the court may strike from a pleading, an insufficient defense or any redundant, immaterial, impertinent,, or scandalous matter,” Fed. R., Civ. P. 12(f). Motions to strike are generally disfavored but may be used to , expedite a case by “re-mov[ing] unnecessary clutter.” Heller Fin., Inc. v. Midwhey Powder Co., Inc.,
III. Analysis
A. Plaintiff Smith and the California Subclass
In Plaintiffs’ consolidated class action complaint, in addition to consolidating the claims of the 13 named Plaintiffs in the underlying class action cases (Rensel, Kirsch, Sullivan, Rhyne, Ellefson, Eisen, Elder, Naef, Hardwick, Hungerman, San-born, Wyble, and Larson), Plaintiffs also brought claims on behalf of a fourteenth individual, Kevin Smith, representing a putative subclass of California residents. [127, ¶¶ 88-95.] Defendant moved to strike any mention of Plaintiff Smith and the California subclass from the complaint, arguing that Plaintiffs failed to follow the proper procedures for incorporating Mr. ■Smith and the subclass into this multi-district litigation.
During the parties’ oral argument before the Court on December 1, 2015, Plaintiffs concedéd that they did not comply with formal requirements for adding Plaintiff Smith into this case, and represented to the Court that they were in the process of determining the best methodology for doing so. Accordingly, the Court issued an order stating' that, “as discussed on the record, in order to expedite the issues surrounding Plaintiffs’ addition of named Plaintiff Kevin Smith' into their First Consolidated Class Action Complaint [127], the Court hereby strikes any mention of Plaintiff Kevin Smith from that complaint without prejudice.”
But the Court did not rule on Defendant’s related motion to strike any mention; of the California subclass as .well, That motion is denied.
In the consolidated class action complaint, Plaintiffs define their putative state subclasses as “individuals and entities residing in each of the states in which a named Plaintiff resides and each of the states where the laws are similar to each of the statés in which a named Plaintiff
Perhaps the bigger question here is how a California subclass can be part of this MDL when there is no such putative class mentioned in any of, the underlying complaints that compose this consolidated MDL proceeding.' The answer to that question lies in the fact that the consolidated class action complaint herd is a superseding complaint (as Opposed to an administrative one). To explain further, as one court recently put it, “[l]ike snowflakes, no two MDLs are exactly alike and, no doubt, whether to require the filing of a consolidated complaint and, if so, whether to treat such a complaint as'‘administrative’ or ‘superseding’ will depend on' the particulars of a given MDL. Thus, it is critical that the parties and. the court make clear what species of pleadings are being used.” In re General Motors LLC Ignition Switch Litig.,
Because each transferred case [in an MDL] comes with its own pleadings, a multidistrict transfer threatens to submerge the transferee district court in paper. A common solution to this difficulty, one adopted in this case, is for the plaintiffs to assemble a “master complaint” that reflects all of their allegations. In many cases, the master complaint is not meant to be a pleading with legal effect but only an administrative summary of the claims brought by all the plaintiffs. When plaintiffs file a master complaint of this variety, each individual complaint retains its separate legal existence. See, e.g., In re Nuvaring Prods. Liab. Litig.,2009 WL 2425391 , at *2 (E.D.Mo. Aug. 6, 2009) (“[T]he filing of the master consolidated complaint in this action was simply meant to be an administrative tool to place in one document all of the claims at issue in this litigation. Neither •Plaintiffs * ** nor I * * * contemplated that Rule 12(b) motion practice- would be pursued * * * against the master complaint.”); In re Propulsid Prods. Liab. Litig.,208 F.R.D. 133 , 142 (E.D.La.2002) (“[T]he master complaint [filed in 'this case] .should not be given the same effect.as an ordinary complaint. Instead, it should be' considered as only an administrative device to aid efficiency and economy.”). But, in other cases, the court and the parties go further. They treat the master complaint as an operative pleading ' that supersedes the individual complaints. The master complaint,' not the individual complaints, is served on defendants. The master complaint is usedto calculate deadlines for defendants to file their answers. And the master complaint is examined for its sufficiency when the defendants file a motion to dismiss. See, e.g., In re Katrina Canal Breaches Litig., 309 Fed.Appx. 836 , 838 (5th Cir.2009) (“[The plaintiffs] individual complaint was superseded, and * * * any arguments or claims that appear in [the] individual complaint but not in the Master Complaint were waived.”); In re Zimmer Nexgen Knee Implant Prods. Liab. Litig., No. MDL 2272,2012 WL 3582708 , at *4 (N.D.Ill. Aug. 16, 2012) (“MDL courts have entertained motions to dismiss ‘master’ or ‘consolidated’ complaints * * *.”); see generally Diana E. Murphy, Unified and Consolidated Complaints in Multidistrict Litigation,132 F.R.D. 597 (1991).
The use of one term to describe two different types of pleadings leads to confusion. Just so here. Plaintiffs often file something labeled a “master complaint” without saying whether they mean to file an operative pleading or an administrative summary, prompting satellite litigation about the status of the documents submitted to the court. See, e.g., Nuvaring,2009 WL 2425391 , at *1-2; Propulsid,208 F.R.D. at 140-42 . To ward off confusion, lawyers might do well to make plain what they have in mind when they use the label “master complaint.” One option is to use “administrative complaint” and “administrative answer” for legally inert summaries of pleadings, and to use “consolidated complaint” and “consolidated answer” for pleadings meant to have legal effect.
In re Refrigerant Compressors Antitrust Litig.,
Here, whether it was expressly stated or not, the consolidated complaint is a superseding complaint with its own legal effect; merger has occurred. Evidence of this comes from the fact that the parties have now fully briefed Rule 12(b) motions to dismiss portions of the consolidated complaint without any objection as to the propriety of such motions (i.e., Rule 12(b) motions are improper when dealing with an “administrative” consolidated complaint).
Shifting back to the question at hand, although the exercise of consolidation implies a gathering of existing claims, the fact that the consolidated complaint is not a perfect reflection of the underlying claims does not offend the consolidation process, nor does it unduly prejudice or benefit any party to this litigation. The complained-of additions here (i.e., the addition of one putative state subclass and, as discussed below, an expansion in the number of Plaintiffs raising claims brought under California consumer protection laws) are not bad-faith attempts to refocus the litigation or to otherwise avoid some necessary procedural framework as was the case with Plaintiffs’ attempt to add Plaintiff Smith; they are minor reworkings of existing claims amongst existing parties that reflect the natural evolution of claims in an MDL proceeding, and allowing these changes will assist in the efficient litigation of this consolidated proceeding.
Thus, without prejudging the certifiability of Plaintiffs’ putative California subclass (whether “headless” or not, as Defendant would say), the Court concludes that the inclusion of the California subclass is not a “redundant, immaterial, impertinent, or scandalous matter,” and thus striking this subclass pursuant to Rule 12(f) is not appropriate at this time.
Plaintiffs’ first cause of action in their consolidated class action complaint alleges a violation of the California Consumers Legal Remedies Act (“CLRA”), Cal; Civ. Code § 1750 et seq., brought on behalf of the putative nationwide class and, alternatively, on behalf of the California subclass. First, Defendant argues that the CLRA claim brought on behalf of the California subclass should be dismissed because Plaintiff Smith failed to comply with the Act’s notice provisions. Second, Defendant argues that the CLRA claim should be dismissed in its entirety because Plaintiff’s lack statutory standing to bring such a claim as they are not “consumers” who “transacted” business with Fluidmaster. Third, Defendant argues that Plaintiffs’ CLRA claim (and California Unfair Competition Law (“UCL”) claim) should be stricken as to all Plaintiffs exCept for Ren-sel and Kirsch because the remaining Plaintiffs did -not raise these claims in their underlying complaints. The Court addresses each argument in turn.
1. Notice under the CLRA
Defendant argues that even if the Court does not strike the California subclass, it nonetheless should dismiss Plaintiffs’ CLRA claim brought on behalf of that putative subclass because Plaintiff Smith failed to comply with the CLRA’s notice procedures prior to raising this claim in the consolidated class action complaint.
The CLRA — which makes unlawful various unfair methods of competition and unfair or deceptive acts or practices regarding the sale of goods to consumers — requires potential plaintiffs to provide notice -to the offending party of a CLRA violation by certified or registered mail 30 days or more prior to commencing an action for damages. See Cal. Civ. Code §§■ 1770(a), 1782(a). The notice requirement “exists in order to allow a defendant to avoid liability for damages if the defendant corrects the alleged wrongs within 30 days after notice, or indicates within that 30-day period that, it will correct those wrongs, within a.reasonable time. Morgan v. AT&T Wireless Servs.,
The California--Supreme Court has not interpreted the notice provision of the CLRA, or the question of whether failure to provide formal notice requires dismissal with prejudice.
But the tide turned in 2009 when — nearly a quarter century after Outboard Marine — the, California Court of Appeal addressed the issue head-on, holding that “[a] dismissal with prejudice of a damages claim filed without the requisite notice is not required to satisfy [the purpose of the notice requirement]. Instead, the claim must simply be dismissed until 30 days or more after the plaintiff complies with the notice requirements.” Morgan,. 99 Cal.Rptr,3d at 789. In other words, failure to provide notice is grounds-for dismissal, but such a failure is curable. See, e.g., Kanfer,
In its brief, Defendant attempted to sweep these on-poirit cases under the rug by ignoring them. At oral. argument, Defendant ■ tried to distinguish Morgan by noting that the plaintiffs only sought in-junctive relief under the CLRA in their original and first amended complaints (for which the CLRA does not require pre-suit notice), and that it wasn’t until their second amended complaint that plaintiffs sought monetary damages on their CLRA claim. But the. -plaintiffs in M°Wan did not provide formal notice until four months before filing their third amended complaint, making Morgan, factually comparable to the situation here. In this case, Plaintiff Smith filed his CLRA claim seeking monetary damages, then he provided formal notice (on September 15, 2015 [see 148-1, ¶ .2]), and then he was dismissed from the case. Any re-insertion of Plaintiff Smith into the consolidated class action complaint (which inevitably would involve an amendment occurring more than 30 days after formal service), would satisfy the CLRA notice requirement as explained in Morgan.
For these reasons, the Court dismisses, without prejudice, Plaintiffs’ CLRA claim brought on behalf of the putative California subclass.
2. Statutory Standing under the CLRA
The CLRA proscribes various unfair acts and practices “undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” Cal. Civ. Code § 1770(a) (emphasis added). Defendant argues that (1) Plaintiffs’ CLRA claim should be dismissed because Plaintiffs never “transacted” business with Defendant as required by the statute and, alternatively, that (2) Plaintiffs’ CLRA claim should" be dismissed as to nine of the named Plaintiffs who do not qualify as “consumers” under the statute.
With this in mind, there are essentially two separate issues here. First, whether Plaintiffs actually purchased Defendant’s product (the “consumer” inquiry) and, if so; whether they purchased the product from the correct entity (the “transaction” inquiry).
a. Consumer
As to the “consumer” inquiry, Defendant argues that the CLRA claims of nine of the named Plaintiffs should .be dismissed because those individuals did not purchase Defendant’s product and thus are not consumers under .the CLRA.
As an initial matter, the Court will not look to deposition testimony or other extrinsic evidence in considering whether Plaintiffs have pled statutory standing. Questions of statutory standing are reviewed under Rule 12(b)(6), not Rule 12(b)(1), and the Court’s inquiry into statutory standing at the motion to dismiss stage is limited to the pleadings. Wright v. Assoc. Ins. Comps. Inc.,
Here, Defendant relies exclusively on the deposition transcripts of Plaintiffs Elder, Kirsch, Rhyne, Eisen, Hungerman, Sanborn, and Wyble in support of its argument that these individuals are not “consumers” under the CLRA. The Court will exclude Defendant’s references to those Plaintiffs’ depositions and consider Defendant’s motion based solely on the allega
Beginning with the plain language of the statute, in order to establish that one is a consumer, one .must allege that he or she “acquire[d], by purchase or lease, any goods or services for personal, family, or household purpose.” Cal. Civ. Code § 1761(d). According to the complaint, Plaintiff Hardwick “purchased a home in which a Fluidmaster NO-BURST Line was installed,” and Plaintiff Sullivan “purchased a home in which a * * * Fluidmas-ter NO-BURST Line (B1F20) was installed.” [127, ¶¶ 17, 57.] The complaint also says that Plaintiffs “are consumers who purchased Defendant’s water supply lines for personal, family, or household purposes.” [127, ¶ 197.] Thus, both individuals acquired their water supply lines in conjunction with purchasing their homes. These allegations ' satisfy the plain language of the statute.
Defendant relies" primarily on Schauer v. Mandarin Gems of California, Inc.,
The court’s conclusion in Schauer was a straightforward application of the plain language of 1 the statute — because the plaintiff did not “purchase or lease” the engagement' ring (i.e., her flaneé purchased it and gifted it to her), she lacked statutory standing. Here, Plaintiffs Hard-wick and. Sullivan purchased- their water supply lines in conjunction with purchasing their homes.
Perhaps the bigger question is whether a subsequent purchaser of a product can be considered a consumer for purposes of establishing standing under the CLRA, or whether the claim lives and dies with the initial purchaser. For example, if the original ring purchaser in Schauer had sold that ring to his neighbor (instead of gifting it to his fiancée), would the neighbor be considered a consumer? And, relatedly, would the original purchaser then cease to be a consumer, or would both individuals retain consumer status under the statute? Neithér the statute nor the cases cited by the parties address these questions. At a minimum, Schauer confirms that one can gain consumer status through assignment, which means that standing can extend be
b. Transaction
As to the “transaction” inquiry, Defendant argues that because Plaintiffs did not transact any business with Fluid-master, their CLRA claims must be dismissed. [See, e.g., 175, at 12 (“There are no allegations in the Consolidated Complaint that any of the Plaintiffs transacted business with. Fluidmaster. Accordingly, lacking an essential element of their purported CLRA claim, these claims must be dismissed in their entirety.”).] As a reminder, the CLRA proscribes certain acts and practices “undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” Cal. Civ. Code § 1770(a). The CLRA defines a transaction as “an agreement between a consumer and another person.” Cal. Civ. Code § 1761(e). For purposes of Defendant’s motion to dismiss, the relevant question whether this ‘other person' must be Defendant.
According to the complaint, Plaintiffs purchased their supply lines from home improvement stores (Rensel, Rhyne), from a plumber (Wyble), or in conjunction with purchasing a home (Kirsch, Sullivan, Hardwick). For certain Plaintiffs (Ellefson, Eisen, Elder, Naef, Smith, Larson), the complaint says generally that they purchased a water supply line or had the water supply line installed in their home without providing any further details about the underlying • transaction. Nonetheless, each Plaintiff alleged that he or she made an agreement with a “person”
Defendant relies heavily on Green v. Canidae Corp.,
But while the Court confidently can reject Defendant’s “direct-transaction” argument, there still remains a question regarding which indirect transactions are sufficient to establish statutory standing under the CLRA. Insight into this question can be gleaned from Chamberlan v. Ford Motor Co.,
Defendant interprets Chamberlan narrowly, arguing that it only extends statutory standing to instances where , the transaction in question occurs with an authorized agent, and there is no allegation that retailers and plumbing companies are authorized agents of Fluidmaster. In other words, under Defendant’s reading of the statute, only the direct purchasers of Fluidmaster’s products . (e.g., retailers, plumbing supply companies, etc.), not individual consumers, would have standing to sue Defendant under the CLRA
The Court is not convinced. Despite the fact that Chamberlan involved a transaction with the manufacturer’s authorized dealership, the court clearly stated that the relevant inquiry is whether the manufacturer intended its products to be sold at the consumer level. Chamberlan,
Perhaps the strongest language on the issue comes from Rossi v. Whirlpool Corp.,
Here, despite conceding that they did not purchase their water supply lines directly from Defendant Fluidmaster (which does not sell directly to consumers anyway), Plaintiffs do allege that they purchased Defendant’s products from a “person,” and that Defendant “possessed exclusive knowledge of the defects and quality control issues” that rendered the supply lines faulty, but' nonetheless distributed their products with the intention that they would be sold to consumers. [127, ¶¶ 196-203, 269-70.] Defendant has not cited any authority where a similar claim was. dismissed at the pleading stage. While Plaintiffs will need to-prove much more than this to succeed on their CLRA claim, Defendant has not - convinced the Court that dismissal is appropriate at this time. Defendant’s motion to dismiss Plaintiffs’ CLRA claim is denied.
3. CLRA and UCL Claims by Plaintiffs other than Kirsch and Rensel
Defendant moves under Rule 12(f) to strike from Plaintiffs’ consolidated complaint all references to the CLRA and California’s Unfair Competition Law (“UCL”) brought by named Plaintiffs other than Rensel and Kirsch (specifically, [127, ¶¶ 196, 211-12]), arguing that the other Plaintiffs did not include such claims in their pre-MDL complaints, thus making it inappropriate to include such claims in the consolidated class action complaint. Defendant’s motion is denied.
Plaintiffs bring Counts One (CLRA) and Two (UCL) on behalf of (1) a nationwide class and, alternatively, (2) a California subclass. Plaintiffs Rensel and Kirsch are the only Plaintiffs who raised CLRA and UCL claims in their underlying complaint. In other words, if Plaintiffs’ consolidated complaint were a fully accurate reflection of the claims in the underlying complaints, the CLRA,and UCL claims would still be present, but only Plaintiffs Rensel and Kirsch would bring those claims on behalf of the putative nationwide class.
As explained above, Plaintiffs’ consolidated complaint supersedes the underlying complaints- for purposes of this MDL. Plaintiffs’ discretion in adjusting pre-exist-ing claims in formulating its “consolidated” complaint is not as restricted as Defendant insists, especially considering that these minor changes do not alter the scope of the issues to be decided in this MDL proceeding or unduly benefit or prejudice any parties. Had Plaintiffs wished to add an entirely, new claim, such an addition would require leave of Court under Federal Rule of Civil Procedure 15(a). But for efficiency reasons, the Court concludes that such formal procedures are not necessary here, and Defendant’s motion .to strike is therefore denied.
Defendant has also moved under Rule 12(b)(1) to dismiss all of Plaintiffs’ claims for injunctive relief, arguing that Plaintiffs have not pled (nor could they plead, based on facts alleged in the complaint and in Plaintiffs’ depositions) any threat of injury sufficient to establish Article III standing for such claims. A plaintiff “bears the burden of showing that he has standing for each type of relief sought.” Summers v. Earth Island Inst.,
Defendant objects to the following six requests for injunctive relief in Plaintiffs’ consolidated class action complaint:
1.A general statement at the outset of Plaintiffs’ consolidated complaint that “Plaintiffs also seek injunctive relief requiring Fluidmaster to modify its unfair and fraudulent practices so as . to uniformly provide relief in accordance with its obligations under the law.” [127, ¶ 12.]
2. As part of Plaintiffs’ first cause of action under the CLRA, Plaintiffs request, “[p]ursuant to Cal. Civ. Code § 1780(a)(2), (3), and (5), * * * an order for declaratory, equitable and/or injunctive relief prohibiting Fluidmaster from continuing to engage in the methods, acts, or practices alleged herein.” Plaintiffs also request “an order requiring Fluid-master to notify consumers who paid for the defective water supply lines that Fluidmaster has remediated and changed the design because of the latent defects.” [127, ¶ 208.]
3. As part of Plaintiffs’ second cause of action under the California UCL, Plaintiffs request “declaratory, equitable, and/or injunctive relief requiring Fluidmaster to stop their unlawful, deceptive, and unfair conduct, prohibiting Fluidmaster from continuing to sell the defective water supply lines; requiring notice to the public at-large of the design defects associated with these water supply lines and of the availability of a remediated product, and all other relief the Court deems just and equitable.” [127, ¶ 222.]
4. As part of Plaintiffs’ fifteenth cause of action under the Illinois Uniform Deceptive Trade Practices Act, “Plaintiff Sullivan and the Illinois Subclass members seek injunctive relief against Defendant Fluidmaster based upon the vast market share which Fluid-master claims to have for replacement plumbing parts and the extremely high likelihood that the Plaintiff Sullivan and the Illinois Subclass members may personally suffer’ future harm to their real and personal property from the failure of Fluidmaster water supply lines in their homes, business, and rental properties.” [127, ¶ 386.]
5.' As part of Plaintiffs’ sixteenth cause of action under the Georgia Uniform Deceptive ’ Trade Practices Act, “Plaintiff Eisen and the Georgia Subclass members * * * seek appropriate injunctive relief to remedy [Defen-' dant’s] misconduct, along with other remedies or damages available under 0.C.G.A. § 10-1-371, et seq.” [127, ¶ 391.]
6. As part of Plaintiffs’ seventeenth cause of action under the Alabama Extended Manufacturer’s Liability Doctrine, “Plaintiff Naef and the Alabama Subclass members * * * seek appropriate injunctive relief to remedy [Defendant’s] misconduct, along with all other remedies or damages available.” [127, ¶ 403.]
The Court will address each request in turn.
1. Plaintiffs’ General Request That Defendant Modify Its Practices
At the outset of the consolidated complaint, Plaintiffs provide an overview of their various claims, wherein, they state their request for “injunctive relief requiring Fluidmaster to modify its unfair and fraudulent practices so as to uniformly provide relief in accordance with its obligations under the law.” [127, ¶ 12.] Because this statement is part of the intró-duction to the complaint and not a part of any of the 19 causes of action, the Court does not interpret it as a separate claim for relief. Defendant’s request to dismiss this “claim” is denied as moot.
2.Injunctive Relief Under the CLRA
Under the CLRA, any consumer who suffers damage as a result of a violation of that Act can sue to obtain, among other things, “[a]n order enjoining the methods, acts, or practices” in question. Cal. Civ. Code § 1780(a)(2). From a statutory standing perspective, one need only “suffer[] any damage” in order to bring a claim for prospective injunctive relief. But Defendant argues that because Plaintiffs have already replaced their allegedly faulty water-supply lines and because they have not alleged any desire to purchase Defendant’s products again in the future, Plaintiffs have not pled a sufficient likelihood of future -harm to justify Article III standing for the requested injunctive relief.
There is a split among district courts as to whether plaintiffs ’can pursue injunctive relief on consumer'protection claims where the plaintiffs face no threat of future harm (e.g., where the consumer is already aware of the allegedly deceptive advertising, where the consumer has already replaced the allegedly faulty product, etc.). Compare Koehler v. Litehouse, Inc.,
- The Court agrees with the Mason and Richardson cases, which say that plaintiffs in federal court must establish Article III standing in order to pursue injunctive relief, regardless of whether the plaintiffs are raising consumer protection claims. But to be clear, as Judge Bates noted in Richardson, “finding that plaintiffs who will never purchase the product in the future do not have standing to obtain injunctive relief [does] not thwart consumer fraud statutes” because plaintiffs may be able to bring .such claims in state court, and there are also various state and federal regulatory , agencies that can be solicited to tajee action on consumers’ behalf to police such wrongdoings. Richardson,
Here, several named Plaintiffs allege a threat of future injury. [See 127, § 333 (“Plaintiffs Rensel and Wyble and the Arizona Subclass members * * * paid for water supply lines that pose an immediate safety risk And will have to be repaired or replaced); id. § 363 (“Plaintiff Sullivan and the Illinois Subclass members * * * paid for water supply lines that pose immediate safety risks and will have to be repaired or replaced); id, § 386 (referencing the “extremely high likelihood” that “Plaintiff Sullivan and .the Illinois Subclass members * * * may personally suffer future harm”); id. § 423 (“Plaintiff Hardwick and the New Hampshire Subclass members * * * paid for water supply lines that pose an immediate safety risk and will have to be repaired or replaced.”).] In addition, Plaintiff Larson alleges that, he has two Fluid-master water supply lines installed in his home and that those supply lines suffer from inherent defects (ie., a threat of future harm from product failure). [127, ¶ 87.]
Generally speaking, “even a small probability of injury is sufficient to create a case or controversy.” Vill. of Elk Grove Vill. v. Evans,
Plaintiffs do not dispute that they all (except for Plaintiff Larson) have mitigated their damages by replacing the allegedly faulty water lines, but instead argue that “the vast majority” of the class members “presumably do not know that their Fluidmaster NO-BURST lines and toilet connectors are defective.” [148, at 26.] However, • Plaintiffs in a class action cannot rely on unnamed plaintiffs to satis
Plaintiffs also point to Plaintiff Larson, who has not mitigated his potential damages (ie., he still has the allegedly faulty water lines installed in his home), and argue that “[i]n a class action, standing, is satisfied if at least one of the named plaintiffs] meets the requirements.” [148, at 24 n.15 (quoting Ries v. Az. Beverages USA LLC,
3. Injunctive Relief Under the UCL
As part of Plaintiffs’ second cause of action under the California UCL, Plaintiffs request “declaratory, equitable, and/or in-junctive relief requiring Fluidmaster to stop their unlawful,.deceptive, and unfair conduct, prohibiting Fluidmaster from continuing to sell the defective water supply lines; requiring notice to the. public at-large of the design defects associated with these water supply lines and of the availability . of a ■ remediated product, and ¡all other relief the Court deems just and equitable.” [127, ¶ 222.]
For the same reasons discussed above in .relation to Plaintiffs’ request for injunctive relief under their CLRA claim, Plaintiffs (including Plaintiff Larson) have failed to allege a threat of future harm that could be remedied by the requested relief. Thus, Defendant’s request to dismiss this claim
4.Injunctive Relief Under the IUDTPA
As part of Plaintiffs’ fifteenth cause of action under the Illinois Uniform Deceptive Trade Practices Act (which allows private suits for injunctive relief), “Plaintiff Sullivan and the Illinois Subclass members seek injunctive relief against Defendant Fluidmaster based upon the vast market share which Fluidmaster claims to have for replacement plumbing parts and the extremely high likelihood that the Plaintiff Sullivan and the Illinois Subclass members may personally suffer future harm to their real and personal property from the failure of Fluidmaster water supply lines in their homes, business, and rental properties.” [127, ¶ 386.] Plaintiff Sullivan does not dispute that he has replaced the allegedly faulty water lines in his home, and he offers no other explanation of why he faces an “extremely high likelihood” of future harm. At this time, Sullivan’s allegation of future harm is both conclusoi'y and implausible. Moreover, absent any credible allegation of a threat of future harm, the Court is unable to determine whether the requested relief would remedy Plaintiff Sullivan’s complaint. For these réasons, Defendant’s request to dismiss this claim is granted, and the claim is dismissed without prejudice.
5.Injunctive Relief Under GUDTPA
As part of Plaintiffs’ sixteenth cause of action under the Georgia Uniform Deceptive Trade Practices Act, “Plaintiff Eisen and the Georgia Subclass members * * * seek appropriate injunctive relief to remedy [Defendant’s] misconduct, along with other remedies or damages available under O.C.G.A. § 10-1-371, et seq.” [127, ¶ 391.] Plaintiff Eisen does not allege any threat of future harm, plausible or otherwise, and thus lacks Article III standing to pursue a claim for injunctive relief. Defendant’s request to dismiss this claim is granted, and the claim is dismissed without prejudice.
6.Injunctive Relief Under AEMLD
As part of Plaintiffs’ seventeenth cause of action under the Alabama Extended Manufacturer’s Liability Doctrine, “Plaintiff Naef and the Alabama Subclass members * * * seek appropriate injunctive relief to remedy [Defendant’s] misconduct, along with all other remedies or damages available.” [127, ¶ 403.] Plaintiff Naef does not allege any threat of future harm, plausible or otherwise, and thus lacks Article III standing to pursue a claim for injunc-tive relief. Defendant’s request to dismiss this claim is granted, and the claim is dismissed without prejudice,
D. Arizona Consumer. Fraud Act
Defendant moves to dismiss Plaintiffs’ twelfth claim — brought by Plaintiffs Rensel and Wyble on behalf of the Arizona subclass — arguing that there was no sale or transaction between Fluidmaster and Rensel or Wyble. The ACFA proscribes certain acts or practices made by any person “in connection with the sale or advertisement of any merchandise.” Ariz. Rev. Stat. Ann. § 44-1522. Plaintiff Rensel purchased his water supply line from a home improvement store, and Plaintiff Wyble purchased his as part of a service performed by a plumber. [127, ¶¶ 14, 81.]
Defendant relies on Sullivan v. Pulte Home Corp.,
Absent any on-point authority, the Court is not inclined to dismiss Plaintiffs’ claim under the ACFA. Defendant’s motion to dismiss this claim is therefore denied.
E. Illinois Uniform Deceptive Trade Practices Act
Defendant argues that Plaintiffs’ fifteenth claim, brought by Plaintiff Sullivan on behalf of the Illinois subclass, should be dismissed because Sullivan has not alleged that he is likely to be damaged in the future, as required by the IUDTPA. The Court already dismissed (without prejudice) Plaintiffs’ claim for injunctive relief under the IUDTPA pursuant to Rule 12(b)(1), and since the IUDTPA only allows individuals to sue for injunctive relief, any further analysis of statutory standing under Rule 12(b)(6) is not necessary: However, for the sake of completion, the Court will address the parties’ arguments.
The IUDTPA only allows consumers to sue for injunctive relief, and to state a claim under that Act, plaintiffs must allege a likelihood of future harm — ie., the Act applies only to persons “likely to be damaged by a deceptive trade practice of another.” 815 ILCS 510/3; Brennan v. AT & T Corp.,
Plaintiffs do not dispute their need to plead a likelihood of future harm. Instead, they argue that they accomplished that feat by raising their claim “based upon the
F. Georgia Unfair and Deceptive Trade Practices Act
Defendant also seeks dismissal under Rule 12(b)(6) of Plaintiffs’ sixteenth cause of- action under the GUDTPA, brought by Plaintiff Eisen on behalf of the Georgia subclass, on the grounds that Plaintiff Eisen has not alleged a harm that is likely to cause him damage in the future. This is another instance where the Court already dismissed pursuant to Rule 12(b)(1) Plaintiffs’ claim for injunctive relief under the GUDTPA, and because the GUDTPA-only allows claims for injunctive relief, see Iler Grp., Inc. v. Discrete Wireless, Inc.,
The GUDTPA only allows a cause of action for those “likely to be damaged by a deceptive trade practice.” Tri-State Consumer Ins. Co. v. LexisNexis Risk Solutions Inc.,
Here, Plaintiff Eisen alleges only past harm. [127, ¶ 390 (“Plaintiff Eisen and the Georgia Subclass members have suffered harm as a result of purchasing unsafe and defective water supply lines that were not merchantable.”).] Plaintiffs argue that their allegation is based on “Fluidmaster’s claim of a vast market share of replacement plumbing parts and the high likelihood that Plaintiff Eisen and other consumers will suffer future harm as'a result of this company’s deceptive and unfair practices.’-’ [148, at 23.] This argument is not persuasive. Even if Fluidmaster does have a vast market share of replacement plumbing parts, that in no way indicates a likelihood that Plaintiff Eisen is somehow going to be harmed by that market share. In order to state a claim under the GUDT-PA, Plaintiff Eisen must allege that, at some point in the future, he is likely to be damaged by Defendant’s deceptive trade practices. Plaintiff has failed to do. so, and thus .Plaintiffs’ GUDTPA claim is dismissed without prejudice.
G. Pennsylvania Unfair Trade Practices and Consumer Protection Law
In Plaintiffs’ nineteenth cause of action, they allege that. Defendant violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. § 201-1 et seq. [See 127, ¶¶ 428-40.] In response, Plaintiffs have voluntarily dismissed this cause of action. [148, at 21 n.17.] 'Accordingly, Plaintiffs’ nineteenth cause of action is dismissed.
Defendant moves to dismiss Plaintiffs’ unjust enrichment claim brought under California law, arguing that California does not recognize a cause of action for' unjust enrichment.
In California, “there is not a standalone cause of action for ‘unjust enrichment’ ”— instead, that term “is synonymous with ‘restitution.’ ” Astiana v. Hain Celestial Group, Inc.,
One could' argue that Plaintiffs’ equitable claim of unjust enrichment should be dismissed, as duplicative of Plaintiffs breach of contract and fraud claims. But “there’s no rule against inconsistent pleadings in * * * a single suit.” Peterson v. McGladrey & Pullen, LLP,
Defendant’s motion to dismiss Plaintiffs’ claim of unjust enrichment under California based on its argument that California law does not recognize a cause of action for unjust enrichment is denied.
IV. Conclusion
. For the foregoing reasons, Defendant Fluidmaster’s motion to dismiss [136]. is granted in part and denied in part.
Notes
. The Court accepts as true the facts alleged In Plaintiffs’ complaint and makes all reasonable inferences in their favor. See McReynolds v. Merrill Lynch & Co.,
. Rensel v. Fluidmaster, Inc., No. 14-cv-0648 (C.D. Cal.); Sullivan v. Fluidmaster, Inc., No. (N.D. Ill.); Hardwick v. Fluidmaster, Inc., 14-cv-0363 (D.N.H.); Hungerman v. Fluidmaster, Inc., 14-cv-0994 (W.D. Pa.); Wyble v. Fluidmaster, Inc., 14-CV-1826 (D. Ariz.); Larson v. Fluidmaster, Inc., 14-cv-10222 (N.D. Ill.). Note that since- Plaintiffs filed their consolidated class action complaint, the MDL panel has transferred additional cases to this Court for coordinated or consolidated pretrial proceedings. Additional cases are expected.
. Plaintiff Smith ultimately elected to file a federal lawsuit in Central District of California, and that ease subsequently has been-transferred to this Court for coordinated pretrial proceedings as part of this MDL. See Smith v. Fluidmaster, Inc., Case 16-cv-0932 (N.D. Ill.) [33].
. This issue will become moot once Plaintiff Smith is formally added as a named Plaintiff in the consolidated class action complaint, which seems inevitable since he and his California subclass are now properly before this
. Defendant’s argument is. limited to the CLRA claim brought on behalf of the putative California subclass, not on behalf of the putative nationwide class, for which Plaintiffs Rensel and Kirsch did provide adequate notice. [See 127, ¶ 206; 127-1.] ,
. “In the absence of guiding decisions by the state’s highest court, [federal courts] consult and follow the decisions of intermediate [state] appellate courts unless there is a convincing reason to predict [that] the state’s highest court would disagree.” ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist.,
. As a procedural matter; Defendant brings its motion both- under ■ Rule 12(b)(1) and 12(b)(6). But the "transaction” and "consumer” requirements relate to-statutory standing, not Article III standing, and thus are properly considered ■ under a Rule 12(B)(6) motion to
. Plaintiffs note that "no additional facts would show that Plaintiffs Hungerman and Sanborn are ‘consumers' -under .the CLRA. . Thus Plaintiffs will voluntarily dismiss Hun-german and Sanborn's CLRA claims.” [148, ‘ 18 n.14.] Accordingly, the CLRA claims of Plaintiffs Hungerman and Sanborn are dismissed, The Court encourages Plaintiffs to continue to review the validity of their remaining claims as the facts of this case continue to develop.
. The complaint says only that Plaintiffs Hardwick and Sullivan purchased homes in which the Fluidmaster water supply lines were installed. The complaint does not shed any additional light on the chain of ownership preceding their respective purchases — a chain that could include suppliers, retailers, plumbers, and/or prior homeowners.
. The CLRA defines a "person-” as "an indi- ■ vidual, partnership, corporation, limited -lia-faility company, association, or other group, however organized, Cal. Civ. Code § -1761(c).
. As a technical matter, if the Court ultimately determines that there are issues of fact regarding Defendant’s liability on Plaintiffs’ CLRA and UCL claims and thus remands these claims to their transferor courts, all Plaintiffs other than Rensel and Kirsch will need to amend their underlying complaints to comport with the claims as they were presented in the superseding consolidated complaint.
. The Court offers no opinion at this time as to whether Plaintiff Larson's alleged future harm is "certainly impending,” ‘as would be necessary to establish Article III standing. Clapper v. Amnesty Int'l USA, — U.S. —,
. This outcome, while seemingly different from the fate of Plaintiffs' claims under the CLRA, stems from the difference in pulpóse of those two consumer protection statutes. Specifically, the CLRA includes a mandate stating that the provision is to be interpreted liberally in favor of consumers. Cal. Civ. Code § 1760. The ACFA, on the other hand, is meant “to provide injured consumers with a remedy to counteract the disproportionate bargaining power often present in consumer transactions.” Waste Mfg. & Leasing Corp. v. Hambicki,