MEMORANDUM OPINION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
Plаintiff Robert Johnson, owner of a snow removal business, brings this action against Defendant Bobcat Company (“Bobcat”), a skid-loader manufacturer, alleging breach of warranty, breach of contract, negligence, negligent misrepresentation, fraud by omission, fraudulent inducement, unjust enrichment, and violations of various statutory consumer protection laws. Johnson’s claims stem from allegations that Bobcat misrepresented the true fuel tank capacity of a skid-loader that he purchased. Johnson further alleges that the loader had a defective coating and failed to reach the advertised top speed. Johnson brings claims individually and on behalf of a putative nationwide class, seeking damages, costs and attorney fees, and injunc-tive relief to prevent Bobcat from continuing to disseminate misleading promotional materials. Bobcat now moves to dismiss the action in its entirety.
The Court will grant Bobcat’s motion with respect to Johnson’s claims for in-junctive relief because Johnson has not alleged irreparable injury or threat of future harm. The Court will also grant the motion with respect to Johnson’s negligence and negligent misrepresentation claims because those claims are barred by Minnesota’s economic loss doctrine. However, the Court will deny the motion in all other respects. Johnson’s other claims are plausible and Bobcat’s pre-litigation refund offer did not deprive him of Article III standing.
BACKGROUND
Johnson is a Minnesota resident who owns and operates a snow removal business called Robert Gordon Homes, Inc. (Compl. ¶ 4, Apr. 23, 2015, Docket No. 1.) Johnson’s business serves over 100 customers. (Id. ¶22.) Bobcat is a Delaware corporation with its principal place of business in North Dakota. (Id. ¶ 5.) Bobcat manufactures and sells compact skid-steer loaders, a product that can be used for plowing and removing snow. (Id. ¶¶ 12, 20.)
' On October 13, 2014, Johnson purchased a new Bobcat S650 Compact Skid-Steer Loader from Lano Equipment, Inc., an
Johnson purchased the new loader because of Bobcat’s various advertisements, representations, and affirmations regarding its qualities, characteristics, and capabilities. (Id. ¶¶ 1-2.) Bobcat’s promotional materials — including its brochures, website, information packets, product specification sheets, and warranties — advertised that “the new loader had a fuel tank capacity of somewhere between 27.2 and 27.5 gallons. (Id. ¶ 15-16, 18-19.) Johnson’s old loader, by comparison, had an advertised fuel tank capacity of only 25 gallons. (Id. ¶24.) The larger fuel tank appealed to Johnson because it would allow him to travel further on a single tank of fuel and therefore serve more customers “in a timely fashion.” (Id. ¶ 23.) The new loader was also advertised as having a “2-speed option,” which allowed it to reach a top speed of 12.3 mph. (Id. ¶ 15-16, 18-19.) Johnson relied on these upgrades in deciding to purchase the new loader — by serving more customers, he would be able to grow his company and successfully compete with other snоw removal businesses. (Id. ¶¶ 23, 42.)
After the purchase, however, Johnson discovered that his new loader had “three significant defects. First, he discovered that the fuel tank had a capacity of only 19.5 gallons rather than 27.2 to 27.5 gallons as advertised, a difference of approximately 8 gallons. (Id. ¶¶ 26-28.) The tank’s true capacity was 24 gallons, and because the fuel suction tube did not reach the bottom of the tank, the capacity was diminished by an additional 4.5 gallons. (Id.) Johnson contacted Lano Equipment immediately upon discovering this defect, and after several attempts, Lano was able to install a “piece together” suction tube that reached the bottom of the tank. (Id. ¶¶ 26-28.) Even with this repair, however, the fuel tank still held 3.2 to 3.5 less gallons than advertised. (Id. ¶ 28.)
Johnson next discovered that his new loader’s top speed was not 12.3 mph аs advertised, but rather, approximately half of that. (Id. ¶ 37.) Because the loader moved slower than expected, Johnson found that it took him “upwards of twice the amount” of time to remove snow than it would have if the loader had “been able to reach the advertised top speed,” causing him to incur “increased fuel and labor costs.” (Id. ¶ 38.)
Third and finally, Johnson discovered that the new loader had “a defective coating that fail[ed] to cover exposed metal, leading to premature rusting.” (Id. ¶44.) Johnson noticed that the loader “displayed rust from the moment it was delivered to his business.” (Id. ¶ 45.) When he contacted Bobcat about the problem, the company told him “that rust should be expected because the Loader is construction equipment.” (Id.)
In March 2014, Johnson contacted Tim Krahn, a district sales manager fоr Bobcat, to complain about the fuel tank capacity defect. (Id. ¶ 41.) Krahn offered to refund the full cost of the loader, but Johnson rejected the offer. (Id. ¶ 42.) Johnson subsequently commenced this action against Bobcat on April 23, 2015. In the complaint, Johnson alleges the following Minnesota state law causes of action:
• Violations of the Minnesota Consumer Frauc] Act (“MCFA”), Minn. Stat. § 325F.69
• Breach of Express Warranty
• Breach of Implied Warranties of Merchantability and Fitness for a Particular Purpose
• Violations of the Minnesota Unlawful Trade Practices Act (“MUTPA”), Minn. Stat, § 325D.13, and the Minnesota Deceptive Trade Practices Act (“MDTPA”), Minn. Stat. § 325D.44
• Violations of the Minnesota False Statement in Advertising Act (“MFSAA”), Minn. Stat. § 325F.67
• Negligence and Negligent Misrepresentation
• Unjust Enrichment
• Fraud by Omission
• Fraudulent Inducement
• Breach of Contract
Johnson asserts his claims individually and on behalf of a class of similarly situated individuals “who purchased a Bobcat S650 loader (or a model with the similar size and/or frame), through an authorized Bobcat dealership, from 2010 to the present.” (Id. ¶ 46.) Johnson contends that the three defects affecting his new loader are widespread. Johnson seeks damages, costs and attorney fees, and injunctive relief to prevent Bobcat continuing to disseminate misleading promotional materials.
Bobcat now moves to dismiss the action in its entirety based on two central arguments. First, Bobcat makes a facial attack on Johnson’s Article III standing under Federal Rule of Civil Procedure 12(b)(1). Second, Bobcat argues that Johnson has failed to state a claim, upon which relief can be granted pursuant to Rule 12(b)(6).
ANALYSIS
I. STANDARD OF REVIEW
When a defendant challenges the plaintiffs Article III standing under Rule 12(b)(1) based on a “deficiency in the pleadings” (called a “facial attack”), the Court’s standard of review is the same as a motion to dismiss brought under Rule 12(h)(6). Stalley v. Catholic Health Initiatives,
II. ARTICLE III STANDING
Article III, section 2 of the Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies.” U.S. Const, art. III, § 2, cl. 1, “ ‘One element of the case-or-controversy requirement’ is that plaintiffs ‘must establish that they have standing to sue.’” Clapper v. Amnesty Int’l U.S.A., - U.S. -,
Here, Bobcat argues that Johnson lacks Article III standing because Bobcat offеred to refund the full cost of the new loader prior to the commencement of this action. According to Bobcat, no ease or controversy remains for the Court to resolve — Johnson has not suffered an injury in fact because the refund offer equaled or exceeded his maximum legal recovery, the alleged injuries are traceable to Johnson’s own rejection of the refund offer and not to conduct by Bobcat, and a favorable decision by the Court would not redress Johnson’s injuries because he already turned down complete relief.
Bobcat concedes that neither the Eighth Circuit nor a court in this district has addressed the standing argument it now makes. Instead, Bobcat relies on a series of out-of-circuit cases, all of which stand for the same general proposition: when a defendant offers a plaintiff a full refund for all of its alleged loss prior to the commencement of litigation, this refund offer deprives the plaintiff of Article III standing because the plaintiff cannot establish an injury in fact. See, e.g., Epstein v. JPMorgan Chase & Co., No. 13-4744,
Although the Court is persuaded that a pre-litigation refund offer for.complete relief could potentially deprive a plaintiff of Article III standing, the Court finds — based on the facts alleged in the complaint — that no such offer was made here. Johnson sought reimbursement not only for the cost of the new loader, but also for all consequential
Bobcat raises several counterarguments, but all are inapposite. First, Bobcat argues that consequential and incidental damages are not recoverable under any of Johnson’s causes of action. But this is inaccurate — they are recoverable under several causes of action, including Johnson’s breach of warranty and fraud claims. See, e.g., Melford Olsen Honey, Inc. v. Adee,
Bobcat also argues that consequential and incidental damages were excluded by a limitation on damages clause included in the formal warranty covering the loader.
Bobcat next argues that even if Johnson was entitled to consequential or incidental damages, its refund offer exceeded any amount of damages that Johnson could hope to recover. Yet this argument is purely speculative — the amount of damages is a question to be resolved by the trier of fact, and not this Court on a motion to dismiss. Melford Olsen Honey,
Bobcat lastly argues that Johnson did not properly allege consequential or incidental damages, but Johnson’s complaint suggests otherwise. To recover consequential damages under Minnesota law, a plaintiff must establish that such damages were foreseeable to the defendant at time of contracting or аt the time of the fraud. See Simeone v. First Bank Nat. Ass’n,
Although Johnson’s complaint does not include allegations reciting these exact standards, the Court nevertheless finds that he has satisfied his pleading burden. Johnson alleges numerous consequential and incidental damages resulting' from Bobcat’s purported misconduct. {See, e.g., Compl. ¶¶ 1, 23, 38, 43.) He further alleges that Bobcat marketed the loader “for use in snow removal,” advertised the loader as having a particular fuel tank capacity, and claimed that the “[increased fuel capacity” would give users “more time on the job without stopping to fill up.”,(M ¶2, 17-18.) Assuming these allegations to be true, Bobcat either knew or should have known that snow-removal business owners who purchased the loader would suffer harm as a result of having to stop and re-fill the skid-loader’s fuel tank more frequently. The complaint moreover includes plausible allegations that Johnson took steps to prevent loss, including reporting the defect to Lano Equipment and Bobcat’s district sales manager, Tim Krahn. And although Johnson only explicitly requests consequential and incidental damages under his FSAA cause of action, the Court finds that they are not limited to that claim. Johnson’s prayer for relief requests, “with respect to all counts,” that the Court grant “compensatory and all other damages allowed by law.” {Id. at 34 ¶2 (emphasis added).) Given that Johnson has pleaded sufficient facts showing entitlement to consequential and incidental damages, the Court will construe this prayer-for-relief language as sufficient to authorize their award for his other causes of action under which they are permitted. See Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”)
In sum, the Court finds that Johnson has Article III standing — he alleges that he suffered consequential and incidental damages, and Bobcat’s refund offer only encompassed the cost of the loader.
III. FAILURE TO STATE A CLAIM
Having determined that Johnson has Article III standing, the Court turns its attention to Bobcat’s Rule 12(b)(6) motion to dismiss for failure to state a claim.
A. Statutory Consumer Protection Claims
Johnson brings claims under four Minnesota consumer protection statutes:
A plaintiff suing for a violation of the MUTPA, on the other hand, has two options. Because the MUTPA provides a private àause of action, a plaintiff may pursue ielief directly under the statute. Minn. Stat. § 325D.15 ("Any person damaged by reason of a violation of [the MUT-PA] shall be entitled to sue for .. injunc-tive relief ... and ... actual damages.") In addition, a plaintiff may also seek relief under the Private AG Statute, as described above. Id. § 8.31, subdivs. 1, 3a. Tinder both routes, a plaintiff may pursue money damages and injunctive relief; however, only the Private AG Statute provides for costs and attorney fees. Compare Id. § 8.31, subdiv. 3a, with, id. § 325D.15. Here, the Court finds that Johnson has alleged his MUTPA claims pursuant to both theories of recovery-the private cause of action contained in § 325D.15
Finally, “under Minnesota law, the sole statutory remedy for [Johnson’s MDTPA claim] is injunctive relief.” Damon v. Groteboer,
Bobcat moves to dismiss all of Johnson’s statutory consumer protection claims on two grounds. First, Bobcat argues that Johnson has failed to state any claims for injunctive relief. Second, it argues that Johnson’s claims that rely on the Private AG Statute fail as a matter of law because Johnson has not alleged a public benefit.
1. Injunctive Relief
In order to state a claim for injunctive relief under the Private AG Statute, a plaintiff must allege an “irreparable injury.” Buetow v. A.L.S. Enter., Inc.,
Johnson’s claims for injunctive relief fail for the simple reason that he does not make any allegations regarding irreparable injury or threat of future harm. Although Johnson makes reference to the cost of a new Bobcat loader and a bare request for an injunction “prohibiting [Bobcat] from falsely advertising the qualities, characteristics, and capabilities of the [l]oaders,” he does not assert that he intends to purchase another Bobcat loader in the future. (Compl. ¶¶ 42,102.) All of Johnson’s claims are instead grounded in past damage, which is not a proper basis for injunctive relief. See Buetow,
The closest that Johnson comes to meeting his pleading burden is by alleging that Bobcat’s “unlawful conduct is continuing.” (Compl. ¶¶ 99, 102.) But that allegation, in and of itself, is insufficient to rescue his claims. Johnson must allege irreparable injury or threat of future harm to himself, which he has not done. See Buetow,
Johnson cites only one case in support of his claim for injunctive relief: Wildlife Research Center, Inc. v. Robinson Outdoors, Inc.,
2. Public Benefit
A plaintiff pursuing relief under the Private ÁG Statute must “demonstrate that their cause of action benefits the public.” In re Levaquin,
' In determining whether an action benefits the public, courts consider “the degree to which the defendants’ alleged misrepresentations affected the public; the form of the alleged representation; the. kind of relief sought; and whether the alleged misrepresentations are ongoing.” Khoday v. Symantec Corp.,
Applying this framework, the Court finds that Johnson has sufficiently alleged a public benefit. First, although Johnson’s claims are only for money damages (the Court has already found that Johnson is not entitled to injunctive relief), it is significant that the alleged misrepresentations were disseminated to the public at large. Johnson contends that Bobcat’s misleading promotional materials reached “consumers throughout the United States” and that “thousands” of consumers may have purchased loaders in reliance on those materials. (Compl. ¶¶ 15, 47.) These allegations establish that Johnson’s claims are not purely private or based solely on one-on-one misrepresentations. Moreover, Johnson alleges that the misrepresentations are ongoing&emdash;Bobcat purportedly has not corrected or updated- any of its pro- motional materials. (Id. ¶ 34.) Finally, money damages could have a deterrent effect on Bobcat. While Johnson’s individu- al claims may be modest, he рurports to a represent a class of thousands. Although it is uncertain whether Johnson will succeed in certifying the class, the specter of a class action may prompt Bobcat to alter its allegedly misleading activity (the Court ex- presses no opinion at this stage of the case as to whether Bobcat has actually engaged in misleading activity). And if Johnson and the purported class eventually prevail on the merits, money damages will “benefit will “benefit
B. Breach of Express Warranty
Johnson asserts a breach of express warranty claim bаsed on affirmations contained in Bobcat’s promotional materials. Bobcat moves to dismiss this claim on two grounds. First, it argues that its promotional materials did not create any express warranties. Alternatively, it argues that even if its promotional materials did create express warranties, those warranties were disclaimed by the formal warranty purportedly in effect at the time of sale. For the reasons that follow, the Court rejects Bobcats arguments.
To show that its promotional materials did not create any express warranties, Bobcat first relies on Masepohl v. American Tobacco Co.,
Bobcat also argues that it did not create express warranties because Minnesota law defines an “express warranty” as “a written statement arising out of a consumer sale pursuant to which the manufacturer, distributor, or retailer undertakes (1) to preserve or maintain the utility or performance of the goods or provide compensation or replacement if there is a failure in utility or performance.” Minn. Stat. § 325G.17, subdiv. 5. Bobcat contends that this definition does not encompass the statements it is alleged to have made in its promotional materials. Bobcat’s' recitation of the law, however, is inaccurate. The above definition comes from the Minnesota Consumer Protection Act, and only applies to a limited subset of sections within that act. Id. § 325G.17, subdiv. 1 (“As used in sections 325G.17 to 325G.20, the terms defined in this section have the meanings given them.”) Johnson’s breach of express warranty claim, by contrast, is brought under Minn. Stat. § 336.2A-210, Minnesota’s version of the UCC. An express warranty under that section is defined as “[a]ny affirmation of fact or promise ... which related to the goods” or “[a]ny description of the goods which is made part of the basis of the bargain.” Minn. Stat. § 336.2A-210(l)(a)-(b) (emphasis added). Johnson’s allegations comport with this definition.
Bobcat alternatively argues that even if its promotional materials did create
First, because the Court must accept the factual allegations in the complaint as true, Bobcat cannot yet rely on the disclaimer to avoid conflicting warranties it may have created through it promotional materials. Under Minnesota law, “a seller may disclaim express warranties.” Zutz,
Second, Johnson has argued that the disclaimer is unconscionable. Under Minnesota law, when a plaintiff challenges a disclaimer as unconscionable, the Court must allow the plaintiff “the opportunity to submit evidence regarding the disclaimer’s commercial setting, purpose, and effect.” In re Hardieplank,
Third, as discussed above, there is a factual dispute rеgarding whether Johnson actually received the formal warranty at the time of sale; this again precludes the Court from applying the disclaimer at this stage of the case. See Zutz,
Based on the above, the Court will deny Bobcat’s motion to dismiss , the breach of express warranty claim.
C, Breach of Implied Warranties
Johnson alleges that Bobcat breached the implied warranties of merchantability and fitness for a particular purpose by selling him a defective loader. Bobcat moves to dismiss these claims, again relying on the disclaimer in the formal warranty. For the reasons explained in the immediately preceding section, however, the Court will not apply the disclaimer at this stage of the litigation — Johnson has challenged the disclaimer as unconscionable and there arе unresolved factual questions regarding whether Johnson received the disclaimer at the time of sale.
D. Negligence and Negligent Misrepresentation
Bobcat argues that Johnson’s negligence and negligent misrepresentation claims are barred by the economic loss doctrine, and the Court concurs. The economic loss doctrine generally prohibits a plaintiff “from recovering purely economic losses in tort.” Thunanderv. Uponor, Inc.,
The statutory economic loss doctrine applies to only two types of claims: product defect tort claims and common law misrepresentation claims. See Minn. Stat. § 604.101, subdiv. 2. Under the statute, “a buyer may not bring a product defеct tort claim for compensatory damages unless the defect ‘caused harm to the buyer’s tangible personal property other than the goods or the buyer’s real property.’” Daigle v. Ford Motor Co.,
Here, because Johnson’s negligence and negligent misrepresentation claims relate to the allegedly defective loader, they fall within the purview of Minn. Stat. § 604.101. Johnson does not, however, allege that the loader harmed his “tangible personal property” or “real property.” Furthermore, he does not allege that the misrepresentation was intentional or reckless (nor could he, as his claim is one for negligеnt misrepresentation). Accordingly, the Court will dismiss these claims as barred by the economic loss doctrine.
E. Fraud Claims
1. Lack of Particularity
Bobcat challenges all of Johnson’s claims sounding in fraud, arguing that they lack particularity as required by Federal Rule of Civil Procedure 9(b). As a threshold matter, Rule 9(b) applies not only to Johnson’s common law claims for fraudulent inducement and fraud by omission, but also to his surviving statutory consumer protection claims under the MCFA, MFSAA, and MUTPA. See ADT Sec. Servs., Inc. v. Swenson, No. 07-2983,
Rule 9(b) requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The Eighth,Circuit has interpreted the term “circumstances” of fraud to include “the time, place and contents of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.” Commercial Prop. Invs.,
Bobcat argues that Johnson’s claims lack particularity because they fail to identify the time, place, and contents of the alleged false representations, or any specific promotional materials that John
2. Fraud by Omission
Bobcat also argues that Johnson’s fraud by omission claim fails as a matter of law because the parties were not in a confidential or fiduciary relationship and it owed no disclosure duty to Johnson. But this argument misconstrues the law. It is true that under Minnesota law, “[f]or a nondisclosure to amount to a fraud, a party must first be under a duty to disclose information to another party.” Exeter Bancorporation, Inc. v. Kemper Sec. Grp., Inc.,
Here, the Court finds that Johnson’s complaint includes allegations sufficient to satisfy the second circumstance: that Bobcat had superior knowledge of material facts to which Johnson did not have access. Johnson alleges that Bobcat, as the manufacturer, was in “a superior position to know the true facts about their product [and] ... to know the actual design of the loader.” (Compl. ¶ 128.) He further alleges that he “could not reasonably have been expected to learn or discover” the misrepresentations at the time of purchase, in part because of “the manner in which the customers fill their fuel tanks.” (Id. ¶¶ 33, 128.) These allegations plausibly establish a duty of disclosure.
F. Causation
Bobcat lastly argues that all of Johnson’s causes of action fail to state a claim for relief because he has not alleged a causal connection between his injuries and Bobcat’s purported misconduct.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendant Bobcat Company’s motion to dismiss [Docket No. 21] is GRANTED in part and DENIED in part as follows:
1. The motion is GRANTED as to Johnson’s claims for injunctive relief, as alleged in Counts 1, 4, and 5 of the complaint under the MCFA, MUTPA, MDTPA, and MFSAA. These claims are DISMISSED with prejudice.
2. The motion is GRANTED as to Johnson’s claims for negligence and negligent misrepresentation, as alleged in Count 6 of the complaint. These claims are DISMISSED with prejudice.
3. The motion is DENIED in all other respects.
Notes
. For the purposes of this motion to dismiss, the Court takes Johnson's factual allegations as true. See Cormack v. Settle-Beshears,
. Bobcat also initially argued that Johnson's claims are moot because its refund offer is ongoing. See Arizonans for Official English v. Arizona,
. Consequential damages are damages "that 'do not arise directly according to the usual course of things from the breach of the contract itself, but are rather those which are the consequence of special circumstances known to or reasonably suрposed to have been contemplated by the parties when the contract was made.’ ” Kleven v. Geigy Agric. Chemicals,
.Incidental damages include any "reasonable expense incident to the ... breach.” Simeone v. First Bank Nat. Ass’n,
. The Court may consider the formal warranty because it is a "document[] necessarily embraced by the complaint.” Gorog v. Best Buy Co., Inc.,
. In rebuttal. Bobcat offers a copy of the loader delivery receipt, which Johnson signed. (Hulse Decl., Ex. 1 at 3 ("Delivery Receipt”).) Bobcat argues that this receipt proves that Johnson received the formal warranty — and thus the limitation — upon physical delivery; he checked a box indicating that the " 'Warranty Policy' and limitations” therein had been explained to him. (Id.) However, it is unclear whether the Court can even consider this document, as it appears to be a matter outside of the pleading. See Gorog,
. Johnson does not explicitly request relief under Minn. Stat. § 325D.15. However, in his prayer for relief, he requests, “with respect to all counts,” that the Court grant "compensatory and all other damages allowed by law” and "all other relief allowable at law or equi-tyl
. Bobcat contends that all ten causes of action require at least some showing of causation. The Court will assume, without deciding, that this is the case.