Case Information
*1 Before: BOGGS, SUTTON, and COOK, Circuit Judges. _________________
COUNSEL ARGUED: Timothy H. McCarthy, Jr., Okemos, Michigan, for Appellant. Aaron M. Panner, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, Washington, D.C., for Appellees. ON BRIEF: Timothy H. McCarthy, Jr., Okemos, Michigan, for Appellant. Aaron M. Panner, Caitlin Hall, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, Washington, D.C., Dean N. Panos, Thalia L. Myrianthopoulos, JENNER & BLOCK LLP, Chicago, Illinois, for Appellees.
1
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OPINION
_________________
COOK, Circuit Judge. Plaintiff Pamella Montgomery bought a Tassimo, a single-cup coffee brewer manufactured by Kraft Foods, expecting it to brew Starbucks coffee. After the purchase, however, she struggled to find Starbucks T-Discs—single-cup coffee pods compatible with the brewer. In fact, the Starbucks T-Disc supply eventually disappeared as Kraft’s business relationship with Starbucks soured. Disappointed with her purchase, Montgomery sued Kraft and Starbucks (Defendants) on behalf of a class for violations of various Michigan laws. After dismissing several claims and denying class certification on the rest, the district court entered judgment in Montgomery’s favor when she accepted Defendants’ joint offer of judgment under Federal Rule of Civil Procedure 68. Montgomery now appeals the dismissal of her claims for breach of express and implied warranties, the denial of class certification on her consumer- protection claims, and the attorney’s fees the district court awarded as part of the Rule 68 settlement. We AFFIRM the district court’s dismissal of the warranty claims, DISMISS the class-certification appeal as moot, and AFFIRM the attorney’s-fees award.
I.
Montgomery purchased a Tassimo from her local grocery store that bore a sticker
reading: “Featuring Starbucks® Coffee.” But as Starbucks T-Discs became “increasingly
difficult and [later] impossible to find,” she learned that Starbucks had announced its plan to
terminate its distribution agreement with Kraft and that the two companies were embroiled in
arbitration over the contract.
See Kraft Foods Global, Inc. v. Starbucks Corp.
,
Defendants each moved to dismiss the complaint for failure to state a claim, and the district court, having first found the innocent misrepresentation claim abandoned, granted the motions as to the claims for breach of express warranties, breach of implied warranty, and breach of contract, but denied the motion as to several MCPA claims. Montgomery then requested class certification on those remaining claims, which the district court denied. Seeking a resolution— encouraged by the district court—Defendants submitted a joint Rule 68 offer of judgment, agreeing to pay MCPA statutory damages of $250, Mich. Comp. Laws § 445.911(2), plus reasonable attorney’s fees and costs to be determined by the court. Montgomery accepted the offer of judgment, and requested $174,786.50 in attorney’s fees plus $5,183.56 in costs. Viewing that amount as unreasonable, the district court instead ordered Defendants to pay Montgomery $6,767 in fees and costs. She appeals the dismissal of her warranty claims, the denial of class certification, and the attorney’s-fees award.
II.
A. Jurisdiction over the Warranty-Claim Appeal
We first respond to Defendants’ position that Montgomery’s agreement to settle her
individual consumer-protection claims divests this court of jurisdiction to consider her challenge
to the interlocutory dismissal of her warranty claims. But a confession of judgment by
defendants on fewer than all claims moots only the claims resolved in the plaintiff’s favor by the
agreed judgment; other issues remaining in the case may be appealed.
See Deposit Guar. Nat’l
Bank v. Roper
,
We read the record as showing that Montgomery settled only her individual consumer- protection claims. Defendants’ Rule 68 offer of judgment reads:
[Defendants] offer to allow judgment to be taken against them under Plaintiff’s First Amended Class Action Complaint and in favor of:
Plaintiff in the amount of $250.00, inclusive of all damages that may be assessed against Defendants under the Michigan Consumer Protection Act, M.C.L. § 445.911(2), plus reasonable attorneys’ fees and costs actually incurred and attributable to the prosecution of Plaintiff’s individual claims, as determined by the Court under applicable law.
Though Defendants now argue that the settlement merged all of Montgomery’s claims, when responding to her attorney’s-fees request at the district court, Defendants actually distinguished among them , noting that “the great majority of Plaintiff’s claims were dismissed by the Court” and that Montgomery “agreed to settle her remaining claims for $250.” Thus, because both parties viewed the offer as extinguishing only Montgomery’s consumer-protection claims, we maintain jurisdiction over her appeal of the warranty claims’ dismissal.
B. Dismissal of Warranty Claims
We review the district court’s dismissal of Montgomery’s warranty claims under Federal
Rule of Civil Procedure 12(b)(6) de novo, looking for a “short and plain statement . . . showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
see also Ctr. for Bio-Ethical
Reform, Inc. v. Napolitano
,
Montgomery alleges that Defendants breached express warranties and the implied warranty of merchantability under the Michigan Uniform Commercial Code. Mich. Comp. Laws §§ 440.2313, 2314. We examine each claim in turn.
1. Express Warranty
Montgomery claims that Defendants made and breached several express warranties: (1) The Tassimo afforded customers the “present and continued availability” of compatible Starbucks T-Discs, (2) the Tassimo was “designed for use” with the Starbucks T-Discs, and (3) Starbucks T-Discs were “designed for use” with the Tassimo. Kraft moved to dismiss the express-warranty claim because Montgomery failed to plead that she was in privity of contract with Defendants, and Montgomery countered that, as a third-party beneficiary of the Kraft- Starbucks distribution agreement, she met the privity requirement. The district court rejected Montgomery’s assertion of third-party-beneficiary status and dismissed the express-warranty claim against both Defendants on privity grounds.
None of Montgomery’s arguments persuade us that the district court erred in its
dismissal. Though the Michigan Supreme Court has yet to rule on the privity issue regarding
express-warranty claims, a Michigan Court of Appeals concluded that, because an express
warranty constitutes a specific contract term, “privity of contract
is
necessary for a remote
purchaser to enforce a manufacturer’s express warranty.”
Heritage Res., Inc. v. Caterpillar Fin.
Servs. Corp.
,
Montgomery insists, however, that no privity requirement exists for express-warranty
claims under Michigan law, relying on our statement in
Pack v. Damon Corp.
,
To properly plead a breach-of-express-warranty claim then, Montgomery needed to
allege that she was in privity with Defendants. She didn’t; her complaint acknowledged that she
bought her Tassimo from a Fred Meijer grocery store, not directly from Defendants. And
Montgomery’s appeal abandons the third-party-beneficiary theory she pressed before the district
court.
See Dixon v. Ashcroft
,
2. Implied Warranty of Merchantability
Montgomery also claims that Defendants breached the implied warranty of
merchantability. Under Michigan law, every seller warrants, among other things, that the sold
goods (1) “are fit for the ordinary purposes for which [the] goods are used” and (2) “conform to
the promises or affirmations of fact made on the container or label if any.” Mich. Comp. Laws
§ 440.2314(2)(c), (f). The goods must have been “defective when they left the possession of the
manufacturer or seller” for a plaintiff to succeed on a breach-of-implied-warranty claim.
Guaranteed Constr. Co. v. Gold Bond Prods.
, 395 N.W.2d 332, 336 (Mich. Ct. App. 1986)
(citing
Kupkowski v. Avis Ford, Inc.
,
In
Pack
, we explained that “Michigan has abandoned the privity requirement for implied-
warranty claims,”
Yet her claim falls short for other reasons. First, Montgomery’s complaint failed to
allege that the Tassimo was unfit for its ordinary purpose. “Merchantable is not a synonym for
perfect,”
Guaranteed Constr. Co.
,
Nor did she plausibly allege that the goods failed to conform to the promises or
affirmations of fact made on the Tassimo’s container or label. Montgomery directs us to the
photographs of the Tassimo packaging she attached to her response to Starbucks’s motion to
dismiss. The complaint referred to these packaging-label photos, making them a cognizable part
of the record.
See Bassett v. Nat’l Collegiate Athletic Ass’n
,
Montgomery now contends that she meant to say she was unable to brew Starbucks
coffee at the time of her purchase. But she neither sought to amend her complaint in that manner
nor did she make this argument below. We therefore decline to consider it.
See Scottsdale Ins.
Co. v. Flowers
,
C. Jurisdiction over the Class-Certification Appeal
Montgomery also appeals the district court order denying class certification of her consumer-protection claims. Defendants again claim that Montgomery’s acceptance of the Rule 68 offer of judgment foreclosed her appeal of this issue, and this time we agree.
Again, “[g]enerally speaking, settlement of a plaintiff’s claims moots an action,”
Pettrey
v. Enter. Title Agency Inc.
,
In
Roper
, the district court denied the plaintiffs’ motion for class certification before the
defendants made a Rule 68 offer of judgment that the plaintiffs refused.
After
Roper
and
Geraghty
, this court held in
Pettrey
that settlement of the plaintiffs’
individual claims foreclosed their class-certification appeal. 584 F.3d at 703–07. The
Pettrey
procedural events mimicked this case’s. Following the district court’s denial of class
certification, the
Pettrey
parties entered into a settlement agreement that obligated the defendants
to pay plaintiffs’ costs and attorney’s fees.
Id.
at 703. The plaintiffs then appealed the denial of
class certification.
Id.
We found the appeal moot, distinguishing
Roper
in two ways. First, no
“live controversy” existed because the plaintiffs “voluntarily relinquished” their individual
claims, whereas the
Roper
plaintiffs’ claims were “involuntarily terminated” by the district court.
Id.
at 705. Second, the plaintiffs lacked “personal stakes” in the outcome of the appeal because
the defendants, in the settlement, “agreed to pay all attorneys’ fees and costs.”
Id.
By contrast,
the district court’s judgment in
Roper
left the attorney’s-fee issue undecided, preserving
plaintiffs’ appellate fee-shifting interest.
See Roper
,
Attempting to sidestep
Pettrey
, Montgomery points out that Defendants offered costs and
fees she incurred in pursuing only her
individual
claims, whereas the
Pettrey
settlement provided
costs and fees “incurred by the plaintiffs in pursuing both their individual and
class
claims.”
Pettrey
,
Last, Montgomery presses her express reservation of her right to appeal the denial of
class certification. She also complains that Defendants have yet to pay the district court’s
judgment.
Pettrey
, as discussed above, answers this: Montgomery’s acceptance of the Rule 68
offer extinguished her continuing personal interest and rendered her class-certification appeal
moot.
D. Attorney’s Fees
Finally, Montgomery asks us to “reverse or vacate” the district court’s award of attorney’s fees and costs because the district court awarded only 3% of the amount requested. By positing only that the modest size of the award (as compared to the request) amounts to a “non-award,” she presents the court with a gripe, unaccompanied by legal reasoning in support of judicial relief. We therefore agree with Defendants that Montgomery forfeited this issue by inadequately briefing it. See McPherson v. Kelsey , 125 F.3d 989, 995–96 (6th Cir. 1997) 671–72 (2016) (quoting Fed. R. Civ. P. 68(b)). Because Montgomery accepted the Rule 68 offer, Campbell-Ewald provides little instruction. Moreover, the Court declined to discuss whether the plaintiff’s “claim for class relief prevent[ed] th[e] case from becoming moot.” See id. at 679 n.1 (Roberts, C.J., dissenting).
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument
in the most skeletal way, leaving the court to . . . put flesh on its bones.” (quoting
Citizens
Awareness Network, Inc. v. United States Nuclear Regulatory Comm’n
,
III.
We AFFIRM the district court’s dismissal of Montgomery’s claims for breach of express and implied warranties, DISMISS the class-certification appeal as moot, and AFFIRM the district court’s award of attorney’s fees.
Notes
[1] Montgomery brings no claim for breach of the warranty of fitness.
[2]
After
Roper
, the Supreme Court held that an “interest in attorney’s fees is . . . insufficient to create an
Article III case or controversy where none exists on the merits of the underlying claim.”
Lewis v. Continental Bank
Corp.
,
[3] The Supreme Court recently rejected a mootness challenge in the context of an unaccepted Rule 68 offer of judgment because such an offer “is considered withdrawn” if not accepted within 14 days, providing plaintiff no relief and leaving his personal stake in the litigation unchanged. Campbell-Ewald Co. v. Gomez , 136 S. Ct. 663,