Jones v. Lubrizol Advanced Materials, Inc.

Full title: Kevin JONES, et al., Plaintiffs, v. LUBRIZOL ADVANCED MATERIALS, INC., et…

Court: United States District Court, N.D. Ohio, Eastern Division.

Date published: Sep 8, 2021

559 F. Supp. 3d 569 (N.D. Ohio 2021)

Opinion

Case No. 1:20-cv-00511

2021-09-08

Kevin JONES, et al., Plaintiffs, v. LUBRIZOL ADVANCED MATERIALS, INC., et al., Defendants.

Beau D. Hollowell, Daniel R. Karon, Law Office of Daniel R. Karon, Cleveland, OH, Brendan S. Thompson, Charles J. LaDuca, Cuneo, Gilbert & LaDuca, Washington, DC, Jacob M. Polakoff, Berger Montague, Philadelphia, PA, Robert K. Shelquist, Lockridge Grindal Nauen, Minneapolis, MN, for Plaintiffs. Lawrence Deutsch, Berger & Montague, Philadelphia, PA, for Plaintiffs Kevin Jones, Janet Jones, Douglas Cochrane, Catherine Martin. Jeffrey J. Lauderdale, Nada G. Faddoul, Lubrizol, Wickliffe, OH, for Defendants Lubrizol Advanced Materials, Inc., Lubrizol Corporation. Bradley R. Kutrow, Abigail A. Golden, Robert K. Warren, McGuire Woods, Charlotte, NC, Carolyn M. Cole, Kip T. Bollin, Thompson Hine, Cleveland, OH, for Defendant Charlotte Pipe & Foundry Co. Carolyn M. Cole, Kip T. Bollin, Thompson Hine, Cleveland, OH, for Defendant Cresline Plastic Pipe Co. Inc.

J. Philip Calabrese, United States District Judge

Beau D. Hollowell, Daniel R. Karon, Law Office of Daniel R. Karon, Cleveland, OH, Brendan S. Thompson, Charles J. LaDuca, Cuneo, Gilbert & LaDuca, Washington, DC, Jacob M. Polakoff, Berger Montague, Philadelphia, PA, Robert K. Shelquist, Lockridge Grindal Nauen, Minneapolis, MN, for Plaintiffs.

Lawrence Deutsch, Berger & Montague, Philadelphia, PA, for Plaintiffs Kevin Jones, Janet Jones, Douglas Cochrane, Catherine Martin.

Jeffrey J. Lauderdale, Nada G. Faddoul, Lubrizol, Wickliffe, OH, for Defendants Lubrizol Advanced Materials, Inc., Lubrizol Corporation.

Bradley R. Kutrow, Abigail A. Golden, Robert K. Warren, McGuire Woods, Charlotte, NC, Carolyn M. Cole, Kip T. Bollin, Thompson Hine, Cleveland, OH, for Defendant Charlotte Pipe & Foundry Co.

Carolyn M. Cole, Kip T. Bollin, Thompson Hine, Cleveland, OH, for Defendant Cresline Plastic Pipe Co. Inc.

OPINION AND ORDER

J. Philip Calabrese, United States District Judge

Plaintiffs Kevin and Janet Jones, Douglas Cochrane, Donna Baker, and Catherine Martin own houses in which allegedly defective plastic pipes and fittings were installed from January 1, 1991 to the present. Plaintiffs proceed both on behalf of themselves and a putative nationwide class and four State classes of those similarly situated. They assert various claims under the laws of four different States against the manufacturers of the chlorinated polyvinyl chloride pipes, marketed under the FlowGuard Gold brand. As Defendants, Plaintiffs name (1) Lubrizol Corporation and Lubrizol Advanced Materials, Inc., which developed FlowGuard Gold, supplies chemicals for use in downstream manufacturing processes, and licenses the trade name to others; (2) Cresline Plastic Pipe Co. Inc., which extrudes and molds FlowGuard Gold pipes and fittings; and (3) Charlotte Pipe and Foundry Co., which acquired Thompson Plastics, Inc., including its FlowGuard Gold line of products. Each Defendant moves to dismiss the consolidated amended complaint. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART each motion.

STATEMENT OF FACTS

Taking the facts alleged in the consolidated amended complaint as true and construing them in Plaintiffs’ favor, as the Court must on a motion to dismiss, Plaintiffs base their claims in this putative class action on the following facts.

A. FlowGuard Gold

FlowGuard Gold is a brand of non-metallic piping product made from a type of plastic known chemically as chlorinated polyvinylchloride ("CPVC"). (ECF No. 17, ¶¶ 1, 3, PageID #181.) Lubrizol Advanced Materials, Inc. and The Lubrizol Corporation, which for now the Court will treat as a single entity, are Ohio businesses that manufacture "chlorinated polyvinyl chloride (CPVC) resins and compounds." (ECF No. 17, ¶¶ 14–15, PageID #183.) They "designed, developed and marketed FlowGuard Gold" (id. , ¶ 16) and supply the compounds to the other Defendants, who use them to make CPVC pipes and fittings under the FlowGuard Gold brand name (id. , ¶ 74, PageID #201).

Charlotte Pipe and Foundry Company, located in North Carolina, was "involved in, the development, manufacture, marketing, sales, warranting and distribution of FlowGuard Gold." (Id. , ¶ 17, PageID #183–84.) In 2004, Charlotte Pipe acquired Thompson Plastics, Inc., another manufacturer of FlowGuard Gold. (Id. ) Since the acquisition, Charlotte Pipe continues to operate Thompson Plastics’ plant using Lubrizol's resins and compounds in the manufacture of FlowGuard Gold products. (Id. ) Plaintiffs allege Charlotte Pipe has successor liability for the actions of Thompson Plastics related to FlowGuard Gold. (Id. )

Cresline Plastic Pipe Co., Inc., an Indiana company, develops, manufactures, markets, sells, warrants, or distributed FlowGuard Gold. (Id. , ¶ 18.)

B. Installation of FlowGuard Gold in Plaintiffs’ Homes

FlowGuard Gold pipes were installed in Plaintiffs’ houses. Essentially, Plaintiffs allege that these pipes failed prematurely and contrary to the representations made regarding the product's performance, resulting in damage to their properties.

B.1. The Joneses of Arizona

Plaintiffs Kevin and Janet Jones live in Arizona. (ECF No. 17, ¶ 10, PageID #183.) In 1999, they constructed a new home and installed FlowGuard Gold pipes. (ECF No. 17, ¶ 21, PageID #185.) Ten years later, in October 2019, the pipes leaked, eventually causing the ceiling of one of the bedrooms to cave in. (Id. , ¶ 22.) When they first discovered the leak, they turned off the water to their house and put a bucket under the leak. (Id. , ¶ 23.) They called a contractor to repair the leak, and the contractor told them the leaky pipe was brittle. (Id. ) Later, another leak occurred in the ceiling above the home's kitchen and front bathroom, damaging those areas of the home. (Id. , ¶ 24.) Due to the leaks and the pipes’ alleged brittleness, the Joneses replumbed their house, at a cost in excess of $11,000 apart from incidental hotel bills totaling more than $2,000. (Id. , ¶ 27, PageID #186.) The Jones's insurance only covered part of those claimed damages. (Id. , ¶ 25.)

Mrs. Jones contacted Charlotte Pipe to make a warranty claim. (Id. , ¶ 28.) She spoke with a company representative, but claims Charlotte Pipe never sent her the form required to process her claim. (Id. , ¶¶ 29–30.) The consolidated amended complaint includes photos of the Jones's allegedly defective FlowGuard Gold pipes. (Id. , ¶ 32, PageID #187–88.)

B.2. Mr. Cochrane of Massachusetts

Plaintiff Douglas Cochrane lives in Massachusetts. (ECF No. 17, ¶ 11, PageID #183.) In 2008, he built his home with FlowGuard Gold pipes and fittings designed by Lubrizol and Charlotte Pipe. (Id. , ¶ 34, PageID #188.) He claims his FlowGuard Gold pipes first leaked in June 2019. (Id. , ¶ 35.) That leak flooded his basement, damaged his ceiling tiles, trim, carpet and furniture, and caused his insurance company to drop him. (Id. , ¶¶ 35–36.) Between August 2019 and May 2020, he claims further leaks damaged his house. (Id. , ¶ 37, PageID #189.)

He contacted Charlotte Pipe and initiated a warranty claim. (Id. , ¶ 38.) He sent Charlotte Pipe photos and a sample of the failed FlowGuard Gold fitting. (Id. ) Two months later, Charlotte Pipe sent him an email and report concluding that the pipe and fitting was not defectively manufactured and failed "due to environmental stress cracking caused by exposure on the exterior to incompatible plasticizers and nonionic surfactants[.]" (Id. , ¶ 39.) Accordingly, Charlotte Pipe rejected his claim. (Id. , ¶ 40.)

His house continues to experience leaks, and Mr. Cochrane believes his pipes will have to be replaced. (Id. , ¶ 41–42, PageID #189–90.) He claims he would not have purchased a house with FlowGuard Gold pipes and fittings had he known the pipes would fail. (Id. , ¶ 45, PageID #190.) The consolidated amended complaint includes photos of the allegedly defective FlowGuard Gold pipes and fittings from his house. (Id. , ¶ 46, PageID #191.)

On May 4, 2020, Mr. Cochrane's counsel sent a letter to Lubrizol and Charlotte Pipe, notifying them of alleged violations of Massachusetts laws and demanded relief for himself and a putative Massachusetts class against Charlotte Pipe. (Id. , ¶ 43, PageID #190.) According to the consolidated amended complaint, a month later, Lubrizol and Charlotte Pipe failed to offer any "fair and reasonable" relief. (Id. , ¶ 44.)

B.3. Ms. Baker of Washington

Plaintiff Donna Baker lives in Washington. (ECF No. 17, ¶ 12, PageID #183.) During construction of her home in 2004, FlowGuard Gold pipes and fittings designed and manufactured by Lubrizol, Charlotte Pipe, and Thompson Plastics were installed. (Id. , ¶ 48, PageID #192.) Pipes in her living room wall leaked in November 2018 and damaged the wall, requiring it to be cut open to replace the failed piping. (Id. , ¶ 49.) In July 2020, Ms. Baker discovered mold in her spare bedroom. (Id. , ¶ 50, PageID #192–93.) A mold remediation company discovered a leak in the bedroom wall and elsewhere, so Ms. Baker had the FlowGuard Gold pipes in the bedroom wall replaced. (Id. , PageID #193.) Ms. Baker's insurance company did not cover the damage leaks from the FlowGuard Gold pipes allegedly caused. (Id. , ¶ 51.)

After the bedroom leak, Ms. Baker initiated a warranty claim with Charlotte Pipe, complete with photos of the failed product. (Id. , ¶ 52.) Charlotte Pipe denied the claim, explaining that Thompson Plastics manufactured Ms. Baker's piping, not Charlotte Plastics. (Id. , ¶ 53.) The consolidated amended complaint includes photos of both leaks. (Id. , ¶¶ 56–57, PageID #194–97.)

B.4. Ms. Martin of Michigan

Plaintiff Catherine Martin lives in Michigan. (ECF No. 17, ¶ 13, PageID #183.) In 1997, construction of her house used FlowGuard Gold pipes Lubrizol and Cresline Plastic manufactured. (Id. , ¶ 59, PageID #197.) During replacement of a bathroom vanity in March 2019, a FlowGuard Gold pipe broke and leaked, causing the kitchen ceiling beneath to sag, which required replacement and repainting. (Id. , ¶ 60.) About a year later, in February 2020, a FlowGuard Gold pipe broke behind Ms. Martin's laundry room wall after a flooring installer turned off the water to her washing machine. (Id. , ¶ 61.) As a result, the laundry room, basement, and ductwork flooded and required the removal and replacement of drywall. (Id. ) The next day, a FlowGuard Gold pipe broke and flooded Ms. Martin's basement. (Id. , ¶ 62, PageID #198.) During the repairs, a plumber told Ms. Martin the FlowGuard Gold pipe was brittle and difficult to cut. (Id. , ¶ 63.)

Ms. Martin submitted a warranty claim to Cresline Plastic on March 4, 2020. She included details of the problems FlowGuard Gold had caused and included photographs and a piece of the FlowGuard Gold pipe that had leaked or was adjacent to the leaks. (Id. , ¶ 64.) Three weeks later, Cresline Plastic responded by email that it inspected the samples Ms. Martin submitted and found them "free of manufacturing defects." (Id. , ¶ 65.) Ms. Martin included photos of the allegedly defective pipe in the consolidated amended complaint. (Id. , ¶ 71, PageID #200.)

C. Representations and Warranties

Various of Plaintiffs’ claims relate to warranties of FlowGuard Gold products Charlotte Pipe and Cresline Plastic offered or representations Defendants made about the products when marketing them. Notably, the consolidated amended complaint contains no allegation that any Plaintiff purchased a FlowGuard Gold product from any Defendant.

C.1. Lubrizol

Plaintiffs do not allege that Lubrizol provides a written warranty for any FlowGuard Gold product, but make a general claim that Lubrizol warranted the product through "brochures, catalogs, websites and marketing materials." (Id. , ¶ 200, PageID #230.) To support this allegation, the consolidated amended complaint points to various representations the company makes about the product. For example, Lubrizol touts that "FlowGuard Gold piping systems are backed by a nearly 60-year track record and provide long-term reliability and performance. The systems are durable and will not degrade, pit or scale, even when in contact with high chlorine levels." (Id. , ¶ 78, PageID #202.) Further, Lubrizol claims that the product is "100% immune to corrosion or degradation cause by chlorinated water and will never fail due to contact with normal drinking water." (Id. , ¶ 79.) Additionally, Lubrizol boasts that "FlowGuard Gold pipe and fittings are designed for a 50-year service life." (Id. )

C.2. Charlotte Pipe

In 1999, Charlotte Pipe's written warranty provided that the pipes and fittings would "be free from manufacturing defects and conform to currently applicable ASTM standards under normal use and service for as long as the single family residential dwelling is owned and occupied by the original owner." (Id. , ¶ 99, PageID #206.) Charlotte Pipe modified its warranty four times between 1997 and 2009. (See ECF No. 30-2, PageID #493.) Charlotte Pipe attached copies of the relevant warranties to its motion to dismiss. (ECF Nos. 30-3, 30-4, 30-5 & 30-6.) In addition, Plaintiffs allege that Charlotte Pipe created express warranties for FlowGuard Gold products through "brochures, catalogs, websites and marketing materials." (Id. , ¶ 200, PageID #230.)

C.2.a. 1999 Limited Warranty

Charlotte Pipe's 1999 Limited Warranty was effective when the Joneses contracted to have their home built and

warrants to the original owner and occupant of the residential dwelling in which its CPVC-CTS FlowGuard Gold Pipe and Fittings (the "Products") have been installed that the Products will be free of defects in material and workmanship under normal use and service for as long as the residential dwelling is owned and occupied by the original owner.

(ECF No. 30-3, PageID #495.) If any FlowGuard Gold products "fail during the warranty period due to defects in materials or workmanship," the warranty promises that Charlotte Pipe will "replace the defective pipe or fitting at its expense and after inspection and determination that the Product is defective." (Id. )

This 1999 warranty also includes exclusions and limitations. (See generally id. ) It excludes liability for incidental and consequential damages to the extent State law permits. Further, it excludes liability for "other damage including, without limitation, costs of removal and reinstallation of the product. Loss of use. Loss of profits or personal injuries or property damage whether arising out of breach of warranty, breach of contract or otherwise." (Id. ) Also, the 1999 warranty limits the implied warranties of merchantability and fitness for a particular purpose to the "time that the residential dwelling in which the Products have been installed is owned and occupied by the original owner or five (5) years from the date of purchase of said product, whichever is less." (Id. ) Like the damages exclusion, these limitations only apply to the extent State law permits. (Id. ) Additionally, the 1999 warranty lists five circumstances under which the warranty will not apply, none of which is relevant to resolving Charlotte Pipe's motion to dismiss.

Finally, Charlotte Pipe's 1999 warranty provides that it "will not apply to any Products for which a defect is claimed unless written notice is mailed to Charlotte within 30 days after the date of the discovery of any such defect" at a specific address. (Id. )

C.2.b. Other Limited Warranties

Over the years, Charlotte Pipe issued other limited warranties with various changes from the 1999 warranty. (See ECF No. 30-2.) In addition to the 1999 warranty, Charlotte identifies three other written limited warranties it deems relevant. (Id. ) The other warranties were effective March 16, 2000 through February 2, 2002 (ECF No. 30-4); January 25, 2005 through March 23, 2008 (ECF No. 30-5); and March 24, 2008 through October 16, 2009 (ECF No. 30-6). The March 2000 limited warranty changes "free of defects in material and workmanship" to "free from manufacturing defects" and adds that FlowGuard Gold will "conform to currently applicable ASTM standards." (ECF No. 30-3, PageID #495; ECF No. 30-4, PageID #497.) The January 2005 limited warranty does not include any material changes. The March 2008 limited warranty changed the warranty period, as compared to the 1999 limited warranty, from "for as long as the residential dwelling is owned and occupied by the original owner" to "a period of ten years." (ECF No. 30-3, PageID #495; ECF No. 30-6, PageID #501.)

C.3. Cresline Plastic

Cresline Plastic attached a copy of one of its warranties to its motion to dismiss (ECF No. 28-1), but identified the warranties applicable to Ms. Martin's claims in its reply brief (ECF Nos. 37; 37-1 & 37-2). Cresline Plastic provided two statements of express warranty dating from 1997, when Ms. Martin's home was built. First, the terms and conditions provided to the purchaser warranted that the product "shall be free of ... any and all defects in material and workmanship" and limited liability to replacement of any defective pipes and fittings. (ECF No. 37-1, PageID #770.) In its entirety, the provision states:

2. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS—Seller represents and warrants that each item of merchandise shall be free of rot, rust, electrolytic corrosion and any and all defects in material and workmanship for the Seller's applicable limited warranty period, if any, as provided for in Seller's product literature. The Seller's complete responsibility for its warranty is limited to the furnishing of sufficient plastic pipe and fittings to replace defective materials. SELLER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. SELLER HEREBY DISCLAIMS ALL INDEMNITIES AND PROVISIONS FOR ASSESSMENT OF ATTORNEY FEES AND EXPENSES.

(Id. )

Second, accompanying its terms and conditions, Cresline Plastic included similar language:

LIMITED WARRANTY

CRESLINE PIPE IS GUARANTEED AGAINST ROT, RUST, AND ELECTROLYTIC CORROSION, AND TO BE FREE FROM DEFECTS IN MATERIAL

AND WORKMANSHIP. THE MANUFACTURER'S COMPLETE RESPONSIBILITY IS LIMITED TO THE FURNISHING OF SUFFICIENT PLASTIC PIPE AND FITTINGS TO REPLACE MATERIALS ACKNOWLEDGED BY IT TO BE DEFECTIVE.

In addition, Plaintiffs allege Cresline Plastic created express warranties for FlowGuard Gold products through "brochures, catalogs, websites and marketing materials." (Id. , ¶ 200, PageID #230.)

D. Plaintiffs’ Claims

Plaintiffs claim that FlowGuard Gold is "prone to cause catastrophic damage" to homes and business and that Defendants concealed or failed to disclose the defective nature of FlowGuard Gold products. (Id. , ¶ 75, PageID #201–02.) They allege that Defendants falsely represent FlowGuard Gold products as a quality, reliable plumbing system that meets industry standards designed with a 50-year service life. (See id. , ¶¶ 76–96, PageID #202–05.) Further, Plaintiffs claim that Defendants concealed latent defects of FlowGuard Gold products, primarily that pipes allegedly become brittle after installation, making them susceptible to cracking, shattering, and leaking. (Id. , ¶¶ 116 & 121, PageID #212 & 213.)

Plaintiffs allege that Defendants knew FlowGuard Gold was defective based on warranty claims customers (including Plaintiffs) submitted and various online postings that discuss customers’ problematic experiences with FlowGuard Gold products between 2011 and 2019. (Id. , ¶¶ 109–10, PageID #208–11.) In addition, they claim that Defendants’ websites acknowledge FlowGuard Gold is susceptible to repair problems due to expansion and contraction. (Id. , ¶ 110, PageID #208.) Further, Lubrizol's website includes a page titled "Handling Aged Pipe," which warns that ratchet or scissors-style cutters should never be used to cut the pipes, but only a fine-toothed saw—content which Plaintiffs say evidences Lubrizol's knowledge of failures involving FlowGuard Gold. (Id. , ¶ 111, PageID #211.) Charlotte Pipe's installation instructions, however, state a ratchet cutter or fine-tooth saw may be used to cut FlowGuard Gold. (Id. , ¶ 112, PageID #212.)

STATEMENT OF THE CASE

On these allegations, Plaintiffs raise claims on behalf of themselves and five putative classes, namely (1) a nationwide class; (2) an Arizona class against Charlotte Pipe; (3) a Massachusetts class against Charlotte Pipe; (4) a Washington class against Charlotte Pipe, and (5) a Michigan class against Cresline Plastic. (Id. , ¶ 132, PageID #216–17.) Each putative class includes individuals or entities who own or owned houses or other structures in which FlowGuard Gold CPVC one of the Defendants sold is or was installed from January 1, 1991 to the present. (See id. )

Plaintiffs bring 16 claims. To try to make analysis of these claims easier, the Court will use the same numbering here and when discussing each claim. Plaintiffs’ claims are as follows:

I. Negligence

The Joneses, Mr. Cochrane, and Ms. Martin bring the first cause of action against all Defendants. Specifically, they proceed individually and on behalf of a nationwide class as well as on behalf of an Arizona class against Charlotte Pipe, a Massachusetts class against Charlotte Pipe, and a Michigan class against Cresline Plastic. (Id. , ¶¶ 141–49, PageID #221–22.)

II. Negligent Failure to Warn.

The Joneses, Mr. Cochrane, and Ms. Martin bring the second cause of action against all Defendants. Specifically, they proceed individually and on behalf of a nationwide class as well as on behalf of an Arizona class against Charlotte Pipe, a Massachusetts class against Charlotte Pipe, and a Michigan class against Cresline Plastic. (Id. , ¶¶ 150–61, PageID #222–24.)

III. Strict Liability—Design Defect

The Joneses bring the third cause of action against Lubrizol and Charlotte Pipe, both individually and on behalf of a nationwide class and an Arizona class against Charlotte Pipe. (Id. , ¶¶ 162–72, PageID #224–26.)

IV. Strict Liability—Manufacturing Defect

The Joneses bring the fourth cause of action against Charlotte Pipe, both individually and on behalf of a nationwide class and an Arizona class. (Id. , ¶¶ 173–81, PageID #226–27.)

V. Strict Liability—Failure to Warn

The Joneses bring the fifth cause of action against Lubrizol and Charlotte Pipe, both individually and on behalf of a nationwide class and an Arizona class against Charlotte Pipe. (Id. , ¶¶ 182–92, PageID #227–28.)

VI. Breach of Express Warranty

The Joneses, Mr. Cochrane, Ms. Baker, and Ms. Martin bring the sixth cause of action against all Defendants. Specifically, they proceed individually and on behalf of a nationwide class as well as on behalf of an Arizona class against Charlotte Pipe, a Massachusetts class against Charlotte Pipe, and a Michigan class against Cresline Plastic. (Id. , ¶¶ 193–222, PageID #229–33.)

VII. Breach of the Implied Warranty of Merchantability

Mr. Cochrane, Ms. Baker, and Ms. Martin bring the seventh cause of action against Charlotte Pipe and Cresline Plastic. Specifically, they proceed individually and on behalf of a nationwide class as well as on behalf of a Massachusetts class against Charlotte Pipe, a Washington class against Charlotte Pipe, and a Michigan class against Cresline Plastic. (Id. , ¶¶ 223–35, PageID #233–35.)

VIII. Magnuson-Moss Warranty Act

The Joneses, Mr. Cochrane, and Ms. Martin bring the eighth cause of action against Charlotte Pipe and Cresline Plastic. Specifically, they proceed individually and on behalf of a nationwide class as well as on behalf of an Arizona class against Charlotte Pipe, a Massachusetts class against Charlotte Pipe, and a Michigan class against Cresline Plastic. (Id. , ¶¶ 236–46, PageID #235–37.)

IX. Washington Products Liability Act

Ms. Baker brings the ninth cause of action against Lubrizol and Charlotte Pipe both individually and on behalf of a nationwide class as well as a Washington class against Charlotte Pipe. (Id. , ¶¶ 247–57, PageID #237–38.)

X. Unjust Enrichment

The Joneses, Mr. Cochrane, Ms. Baker, and Ms. Martin bring the tenth cause of action against all Defendants. Specifically, they proceed individually and on behalf of a nationwide class as well as an Arizona class against Charlotte Pipe, a Massachusetts class against Charlotte Pipe, a Washington class against Charlotte Pipe, and a Michigan class against Cresline Plastic. (Id. , ¶¶ 258–64, PageID #238–39.)

XI. Fraudulent Concealment

The Joneses, Mr. Cochrane, Ms. Baker, and Ms. Martin bring the eleventh cause of action against all Defendants. Specifically, they proceed individually and on behalf of a nationwide class as well as an Arizona class against Charlotte Pipe, a Massachusetts class against Charlotte Pipe, a Washington class against Charlotte Pipe, and a Michigan class against Cresline Plastic. (Id. , ¶¶ 265–74, PageID #239–41.)

XII. Arizona Consumer Fraud Act

The Joneses bring the twelfth cause of action against Lubrizol and Charlotte Pipe, both individually and on behalf of an Arizona class against Charlotte Pipe. (Id. , ¶¶ 275–83, PageID #241–43.)

XIII. Massachusetts Statutory Violations

Mr. Cochrane brings the thirteenth cause of action against Lubrizol and Charlotte Pipe, both individually and on behalf of a Massachusetts class against Charlotte Pipe. (Id. , ¶¶ 284–94, PageID #243–45.)

XIV. Washington Consumer Protection Act

Ms. Baker brings the fourteenth cause of action against Lubrizol and Charlotte Pipe, both individually and on behalf of a Washington class against Charlotte Pipe. (Id. , ¶¶ 295–304, PageID #246–47.)

XV. Michigan Consumer Protection Act

Ms. Martin brings the fifteenth cause of action against Lubrizol and Cresline Plastic, both individually and on behalf of a Michigan class against Cresline Plastic. (Id. , ¶¶ 305–14, PageID #247–49.)

XVI. Declaratory Judgment and Injunctive Relief

The Joneses, Mr. Cochrane, Ms. Baker, and Ms. Martin bring the sixteenth cause of action against all Defendants. Specifically, they proceed individually and on behalf of a nationwide class as well as an Arizona class against Charlotte Pipe, a Massachusetts class against Charlotte Pipe, a Washington class against Charlotte Pipe, and a Michigan class against Cresline Plastic. (Id. , ¶¶ 315–23, PageID #249–51.)

The following chart lays out the claims each individual Plaintiff raises, setting aside the class allegations involved in each count:As noted above, Plaintiffs do not bring each claim against each Defendant. To aid the discussion of each Plaintiff's claims against Defendants, the Court provides the following tables. First, Ms. Martin brings her claims under Michigan law against Defendants as follows:The Joneses bring their claims under Arizona law against Defendants as follows:Ms. Baker brings her claims under Washington law against Defendants as follows:Finally, Mr. Cochrane brings the following claims under Massachusetts law against the following Defendants:Separately, Defendants move to dismiss the claims against them. The Court will address the claims of each Plaintiff in turn, taking care to analyze issues particular to specific Defendants where necessary.

LEGAL STANDARD

At the motion to dismiss stage, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A complaint "states a claim for relief that is plausible, when measured against the elements" of the cause of action asserted. Darby v. Childvine, Inc. , 964 F.3d 440, 444 (6th Cir. 2020) (citing Binno v. American Bar Ass'n , 826 F.3d 338, 345–46 (6th Cir. 2016) ). To meet Rule 8's pleading standard, a complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). To state a claim, a complaint must "raise a right to relief above the speculative level" into the "realm of plausible liability." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

In assessing plausibility, the Court construes factual allegations in the complaint in the light most favorable to the plaintiff, accepts the factual allegations of the complaint as true, and draws all reasonable inferences in the plaintiff's favor. Wilburn v. United States , 616 F. App'x 848, 852 (6th Cir. 2015). In reviewing a motion to dismiss, the Court distinguishes between "well-pled factual allegations," which it must treat as true, and "naked assertions," which it need not. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. The Court will also not accept as true "[c]onclusory allegations or legal conclusions masquerading as factual allegations[.]" Eidson v. Tennessee Dep't of Children's Servs. , 510 F.3d 631, 634 (6th Cir. 2007).

In addition to the allegations in the complaint, courts "may consider exhibits attached to the complaint, public records, items appearing in the record of the case, and exhibits attached to defendant's motion to dismiss, so long as they are referred to in the complaint and are central to the claims contained therein." DeShetler v. FCA US LLC , No. 3:18 CV 78, 2018 WL 6257377, at *4 (N.D. Ohio Nov. 30, 2018) (quoting Gavitt v. Born , 835 F.3d 623, 640 (6th Cir. 2016) ). Before taking up the motions against the backdrop of this familiar legal standard, the Court first addresses one threshold issue.

CHOICE OF LAW

Where, as here, the underlying basis for jurisdiction under the Class Action Fairness Act rests on diversity of citizenship, the forum State's choice-of-law rules apply. Savedoff v. Access Group, Inc. , 524 F.3d 754, 760 n.5, 762 (6th Cir. 2008) (applying forum State's choice-of-law rules where, as here, federal jurisdiction was premised on 28 U.S.C. § 1332(d)(2)(A) ); Turnage v. Oldham , 346 F. Supp. 3d 1141, 1150 (W.D. Tenn. 2018). Where an actual conflict of substantive law exists between States, Ohio's choice-of-law rules require the Court to apply the substantive law of the State where the injury occurred, unless another State has a "more significant relationship to the lawsuit." Morgan v. Biro Mfg. Co. , 15 Ohio St. 3d 339, 474 N.E.2d 286, 288–89 (Ohio 1984) ; see also American Interstate Ins. Co. v. G & H Serv. Ctr. , 112 Ohio St. 3d 521, 2007-Ohio-608, 861 N.E.2d 524, ¶¶ 7–8 (noting that the Ohio Supreme Court has adopted the Restatement in its entirety to govern choice-of-law analysis); Restatement (Second) of Conflict of Laws §§ 145, 188 (2d 1988). The parties, and the Court, agree that the substantive law of each Plaintiff's home State generally governs their respective claims. (ECF No. 27, PageID #307; ECF No. 28, PageID #404–05; ECF No. 30, PageID #451; ECF No. 33, PageID #609.)

MS. MARTIN'S CLAIMS UNDER MICHIGAN LAW

Plaintiff Catherine Martin alleges Lubrizol and Cresline Plastic designed and manufactured the FlowGuard Gold in her home. (ECF No. 17, ¶ 59, PageID #197.) The Court construes the consolidated amended complaint as asserting claims against those two Defendants, with the exception of her claim under the Magnuson-Moss Warranty Act, which she does not bring against Lubrizol.

I. Negligence (Lubrizol and Cresline Plastic)

Plaintiff alleges Lubrizol and Cresline Plastic breached their duty not to put defective products on the market. (ECF No. 17, ¶ 143, PageID #221–22.) Lubrizol and Cresline Plastic argue Michigan's economic-loss rule bars Plaintiff's negligence claim. (ECF No. 27, PageID #307–08; ECF No. 28, PageID #420–21.) Generally, the economic-loss rule polices the boundary between tort and contract law and prevents "contract law [from] drown[ing] in a sea of tort." East River S.S. Corp. v. Transamerica Delaval, Inc. , 476 U.S. 858, 866, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986).

"Michigan's economic-loss doctrine prohibits buyers from bringing tort suits against sellers for economic losses arising from the product that the parties exchanged in a commercial context." Crossing at Eagle Pond Apartments, LLC v. Lubrizol Corp. , 790 F. App'x 775, 777 (6th Cir. 2019) (citing Neibarger v. Universal Coops., Inc. , 439 Mich. 512, 486 N.W.2d 612, 615 (1992) ). "The phrase ‘economic loss’ generally refers to non-physical commercial losses (like the money spent on a faulty product or the lost sales caused by its poor performance) in contrast to the injuries that have long been the central domain of tort law: physical injuries to the plaintiff's person or property (property other than the product itself)." Id. at 777.

Michigan's economic loss rule is expansive. It "bars tort claims that seek to recover not just for losses to the product itself but also for foreseeable losses to other property." Id. at 778 (citing Neibarger , 486 N.W.2d at 619–20 ). And it bars tort claims "against a product manufacturer even though the plaintiff did not directly contract with the manufacturer." Id. at 778–79 (collecting cases). In other words, Michigan does not require contractual privity to invoke the economic-loss doctrine. Murphy v. P&G Co. , 695 F. Supp. 2d 600, 606–07 (E.D. Mich. 2010) (analyzing Michigan cases), adopted by Murphy v. P&G , 695 F. Supp. 2d 600, 602 (E.D. Mich. 2010).

Plaintiff argues the economic-loss rule does not bar her consumer claims because Michigan law limits the doctrine's reach to commercial transactions. (ECF No. 33, PageID #609–10; ECF No. 34, PageID #639.) The Michigan Supreme Court has not ruled on whether the economic-loss doctrine applies to downstream transactions involving consumers. In support of her position, Plaintiff directs the Court to River House at Bridgewater Place Condominium Association v. Condos , No. 14-03282, 2014 Mich. Cir. LEXIS 157 (Mich. Cir. Ct. Dec. 12, 2014), an unpublished trial court opinion in which the court held the economic loss doctrine did not bar individual condominium owners’ tort claims against Charlotte Pipe (the same Defendant here) when the condominiums’ plumbing pipes Charlotte Pipe manufactured caused flooding. Id. at *7. The court reasoned that the product liability claims survived the economic-loss doctrine because the condominium owners did not have the opportunity to negotiate with the defendant plumbing company that installed the CPVC plumbing system and because they could not have brought any contract claims. Id. at *5–6. Unlike the condominium owners in River House , Ms. Martin contracted for the construction of her home (ECF No. 17, ¶ 59, PageID #197) and had the opportunity to negotiate the risks and benefits of constructing a new home with the builder.

Further, in Sherman v. Sea Ray Boats , 251 Mich.App. 41, 649 N.W.2d 783 (2002), the Michigan Court of Appeals determined that the consumer-commercial distinction in River House on which Plaintiff relies does not bar application of the economic-loss rule where the parties could have negotiated and allocated risk by contract. There, the plaintiff purchased a boat from the defendant manufacturer, which she sued when the wood decayed 12 years later. She argued her tort claims survived the economic-loss doctrine because she bought the boat as an individual consumer rather than a commercial entity. Id. at 788. Based on a lengthy review of application of the economic-loss doctrine in Michigan, the court declined to hold "that the economic loss doctrine applies only to ‘commercial’ or ‘non-consumer’ transactions...." Id. Instead, the court rejected a consumer-commercial distinction, determining that a consumer can still engage in a commercial transaction despite having lesser knowledge or bargaining power. Id. at 787 ; see also Farm Bureau Ins. v. Deere Co. , 1:08-CV-922, 2009 WL 104139, *2 (W.D. Mich. 2009) (" Sherman makes clear that whether the purchaser is a commercial entity is irrelevant.").

In addition, the Sixth Circuit's decision in Crossing at Eagle Pond Apartments suggests Michigan courts will not conclude that the economic-loss doctrine bars claims based on a consumer-commercial distinction. According to the Sixth Circuit, the more relevant inquiry is whether "each party in the distribution chain could have protected itself through contract." Eagle Pond at 780 (citing Cincinnati Ins. Co. v. Butler Mfg. Co. , No. 240463, 2003 WL 22204763, at *1 (Mich. Ct. App. Sept. 23, 2003) (per curiam)). Eagle Pond, River View , and Sherman show that the distinction that matters is not whether the buyer is a commercial enterprise or an individual consumer, but whether the buyer had the opportunity to allocate risk by contract, which Ms. Martin did. (ECF No. 17, ¶¶ 59 & 159, PageID #197 & 224.)

Ms. Martin had the opportunity to negotiate with the builders of her home, who presumably purchased the FlowGuard Gold pipes and fittings before or during construction. Moreover, Plaintiff alleges she "would have negotiated additional warranty coverage, would have negotiated a lower price to reflect the risk, or simply would have avoided the risk all together by purchasing a different plumbing system or different home" if she knew about the alleged defects. (ECF No. 17, ¶¶ 159 & 271, PageID #224 & 240.) These allegations confirm Ms. Martin could have allocated the risk.

Next, Ms. Martin apparently concedes she may not pursue tort damages for harm to the pipes and fittings themselves, but claims she can recover in tort for damage to other property. (ECF No. 33, PageID #611–12; ECF No. 34, PageID #641.) The Michigan Supreme Court has determined that foreseeable damages to property other than the product itself are not recoverable where, as here, the economic-loss doctrine applies. Detroit Edison Co. v. Nabco, Inc. , 872 F. Supp. 371, 376 (E.D. Mich. 1992) (citing Neibarger , 486 N.W.2d at 620 ). In Neibarger , the Michigan Supreme Court held that the economic-loss doctrine barred recovery for damage to milking cows that became ill because of defective equipment. Neibarger , 486 N.W.2d at 621. Apart from replacing the FlowGuard Gold pipes and fittings, Ms. Martin alleges the leaky pipes caused her kitchen ceiling to sag and her laundry room and basement to flood. (ECF No. 17, ¶¶ 60–62, PageID #197–98.) This is the type of foreseeable damage brittle or leaky pipes might cause. Accordingly, Michigan's "severely limited" exception allowing recovery for damage to other property does not save Plaintiff's claims from the bar of the economic-loss rule. Detroit Edison , 872 F. Supp. at 376.

II. Negligent Failure to Warn (Lubrizol and Cresline Plastic)

Plaintiff claims Cresline Plastic and Lubrizol knew FlowGuard Gold might be "harmful or injurious," but failed to warn her and others of that potential for harm. (ECF No. 17, ¶ 155, PageID #223.) She seeks to recover damages that relate to FlowGuard Gold itself and foreseeable losses to other property. (Id. at ¶¶ 60–62 & 159, PageID #197–98 & 224.) For the same reasons the economic-loss doctrine bars Plaintiff's negligence claim under Michigan law, it also bars this claim.

VI. Breach of Express Warranty (Lubrizol and Cresline Plastic)

Plaintiff alleges Lubrizol and Cresline Plastic breached express warranties. (ECF No. 17, ¶¶ 193–222, PageID #229–33.) Under Section 440.2313(1) of the Michigan Compiled Laws, a seller can create an express warranty in three ways, two of which are potentially relevant here:

(a) An affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) A description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

Against Cresline Plastic, Plaintiff claims the company "expressly warranted in writing that FlowGuard Gold is well-suited as plumbing material with a useful life matching the lifetime of the structure in which the FlowGuard Gold pipes and fittings are installed ...." (ECF No. 17, ¶ 196, PageID #229.) The applicable written warranties provide two express warranties.

First , Cresline Plastic expressly warranted that the product "shall be free of ... any and all defects in material and workmanship" and conspicuously disclaims other warranties. (ECF No. 37-1, PageID #770.) It provides:

2. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS – Seller represents and warrants that each item of merchandise shall be free of rot, rust, electrolytic corrosion and any and all defects in material and workmanship for the Seller's applicable limited warranty period, if any, as provided for in Seller's product literature. The Seller's complete responsibility for its warranty is limited to the furnishing of sufficient plastic pipe and fittings to replace defective materials. SELLER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. SELLER HEREBY DISCLAIMS ALL INDEMNITIES AND PROVISIONS FOR ASSESSMENT OF ATTORNEY FEES AND EXPENSES.

(Id. )

Second , Cresline Plastic guaranteed its pipe is "free from defects in material and workmanship" and limited remedies to replacement of defective pipe and fittings:

LIMITED WARRANTY

Cresline pipe is guaranteed against rot, rust, and electrolytic corrosion, and to be free from defects in material and workmanship. The manufacturer's complete responsibility is limited to the furnishing of sufficient plastic pipe and fittings to replace materials acknowledged by it to be defective.

(ECF No. 37-2, PageID #773 & 774.) The Court will refer to these two documents as the Cresline Written Warranties. Additionally, Plaintiff alleges Lubrizol and Cresline Plastic "created additional express warranties ... through their sales brochures, catalogs, websites and marketing materials." (Id. , ¶ 200, PageID #230.) With respect to Cresline Plastic, the Court will refer to these materials as the Cresline Additional Warranties. Against Lubrizol, Plaintiff alleges breach of the express warranty these materials created by providing defective FlowGuard Gold. She alleges Cresline Plastic breached the Cresline Additional Warranties by providing defective pipes and fittings and the Cresline Written Warranties by wrongly denying Ms. Martin's warranty claim and refusing to repair and replace defective pipes. (Id. , ¶¶ 202, 205, 207, PageID #230–31.)

VI.A. Statute of Limitations

Cresline Plastic and Lubrizol argue Ohio's statute of limitations bars Plaintiff's claim for breach of express warranty. (ECF No. 27, PageID #319; ECF No. 28, PageID #407.) Ohio's statute of limitations provides the governing rule of decision because the State characterizes limitations periods as procedural, and the forum State's procedural rules apply in choice-of-law analysis. See Phelps v. McClellan , 30 F.3d 658, 661 (6th Cir. 1994). Therefore, the Court applies Ohio's statute of limitations to Plaintiffs’ claims even though the substantive laws of other States otherwise provide the rules of decision. Schwartz v. Cincinnati Museum Ass'n , 35 F. App'x 128, 131 (6th Cir. 2002) (quoting Charash v. Oberlin College , 14 F.3d 291, 299 (6th Cir. 1994) ); Alropa Corp. v. Kirchwehm , 138 Ohio St. 30, 34, 33 N.E.2d 655, 657 (1941).

Notwithstanding this choice-of-law rule, Ohio has a borrowing statute that directs the use of another State's law to determine the applicable limitations period in certain circumstances. That statute provides:

No civil action that is based upon a cause of action that accrued in any other state ... may be commenced and maintained in this state if the period of limitation that applies to that action under the laws of that other state ... has expired or the period of limitation that applies to that action under the laws of this state has expired.

Ohio Rev. Code § 2305.03(B). "In other words, at least as to statutes of limitations, the rule in Ohio is that, if another state's substantive law applies to the underlying claim, then Ohio courts must use the shorter limitations period, as between Ohio's and that of the other state." Rose v. Bersa , No. 1:17-cv-252, 2020 U.S. Dist. LEXIS 157715, at *29–31, 2020 WL 5210913, at *8 (S.D. Ohio Aug. 31, 2020). Accordingly, if any of Plaintiffs’ claims are time-barred by the respective statutes of limitations of Michigan, Arizona, Massachusetts, or Washington, as the case may be, the Court will apply the other State's statute of limitations rather than Ohio's.

Ohio and Michigan each have a four-year statute of limitations for express warranty claims. Ohio Rev. Code § 1302.98 ; Mich. Comp. Laws § 440.2725. Therefore, the Court applies the Ohio statute of limitations, which usually begins to run at delivery. Ohio Rev. Code § 1302.98(B). Cresline Plastic and Lubrizol argue Plaintiff's breach of express warranty claim expired in 2001, because FlowGuard Gold pipes were installed in her home in 1997.

"When it affirmatively appears from the face of the complaint that the time for bringing the claim has passed," the plaintiff "cannot escape the statute by saying nothing" and should " ‘come forward with allegations explaining why the statute of limitations should be tolled.’ " Bishop v. Lucent Techs., Inc. , 520 F.3d 516, 520 (6th Cir. 2008) (quoting Hoover v. Langston Equip. Assoc., Inc. , 958 F.2d 742, 744–45 (6th Cir. 1992) ). "To avoid dismissal, plaintiffs’ complaint must simply assert facts showing that it is plausible that their claims are timely or that the statute of limitations was tolled." Grover v. BMW of N. Am., LLC , 434 F. Supp. 3d 617, 630 (N.D. Ohio 2020) (citation omitted). Accordingly, absent any exception to the general rule, Plaintiff's express warranty claim is time-barred because she did not bring her claim until 2020, although the limitations period expired in 2001.

Plaintiff argues either the future-performance exception or equitable estoppel saves her claim. The Court addresses each in turn.

VI.A.1. Future Performance

The future-performance exception may delay the time when the statute of limitations for a breach of warranty claim begins to run. Allen v. Andersen Windows, Inc. , 913 F. Supp. 2d 490, 500–01 (S.D. Ohio 2012). Under this exception, the statute of limitations for a breach of warranty begins to run when the breach is discovered, rather than on delivery of the good. Id. But the exception only applies where the warranty at issue "explicitly extends to future performance of the goods ...." Allen at 500 (quoting Ohio Rev. Code § 1302.98(B) ). "Most courts have been very harsh in determining whether a warranty explicitly extends to future performance .... As a result of this harsh construction, most express warranties cannot meet the test and no implied warranties can since, by their very nature, they never ‘explicitly extend to future performance.’ " Standard All. Indus., Inc. v. Black Clawson Co. , 587 F.2d 813, 820 (6th Cir. 1978) (collecting cases). Accordingly, the exception is "extremely limited." Allen , 913 F. Supp. 2d at 503.

Recently, the Court discussed a conflict of authority regarding the future-performance exception. Timken Co. v. MTS Sys. Corp. , 539 F. Supp. 3d 770, 789–91 (N.D. Ohio 2021) (discussing Standard Alliance and Allis-Chalmers Credit Corp. v. Herbolt , 17 Ohio App. 3d 230, 236, 479 N.E.2d 293, 300 (Ohio Ct. App. 1984) (per curiam)). While the Sixth Circuit in Standard Alliance concluded that the future-performance exception applies where the parties have an express warranty for a specified period of time, the Ohio Appellate Court in Allis-Chalmers later determined that a promise to repair and replace defective goods does not implicate the future performance exception. Timken , 539 F. Supp. 3d at 790. Considering the weight of authority since those two case, the Court determined that " Allis-Chalmers provides the better rule," and now adheres to that view, and applies that rule here. Id.

VI.A.1.a. Application of the Exception

The future performance exception does not save Plaintiff's express warranty claim under the Cresline Written Warranties, which provide that Cresline Plastic's pipe will be free from defects in material and workmanship and limit the remedy to replacement of the defective materials. (ECF No. 37-1, PageID #770; ECF No. 37-2, PageID #773 & 774.) The Cresline Written Warranties mention an obligation to repair or replace defective pipes, but do not guarantee the future performance of the product. Such a provision "does not guarantee future performance free of defect" to "trigger the ‘future performance’ exception." Allen , 913 F. Supp. 2d at 502–03.

In contrast, the future-performance exception did affect the statute of limitations in Siriano v. Goodman Manufacturing Co. , No. 2:14-cv-1131, 2015 WL 12748033, at *7 (S.D. Ohio Aug. 18, 2015), where the defendant provided a repair-or-replace limitation and warranted the product for five years into the future, which Cresline's Written Warranties do not. Accordingly, to the extent Plaintiff bases her claim under Cresline's Written Warranties on delivery of a defective product, the statute of limitations bars Plaintiff's express warranty claim.

Plaintiff also alleges Cresline Plastic "created additional express warranties for FlowGuard Gold through their sales brochures, catalogs, websites and marketing materials." (ECF No. 33, PageID #599 (citing ECF No. 17, ¶ 200, PageID #230).) It is not clear whether the Cresline Additional Warranties, assuming they constitute express warranties, include a provision that would satisfy the future-performance exception. Without specific language, the Court cannot determine whether the alleged breach of the Cresline Additional Warranties occurred at the time of delivery or the time of discovery. Therefore, the Court denies Cresline Plastic's motion to dismiss with respect to the breach of express warranty claim based on providing an allegedly defective product under the Cresline Additional Warranties. See Grover , 434 F. Supp. 3d at 632 (denying motion to dismiss breach of express warranty claim where the court did not have the precise warranty language to determine whether the future performance exception applied).

Similarly, Plaintiff argues the future-performance exception saves her express warranty claim against Lubrizol from the four-year limitations period. (ECF No. 34, PageID #654–56.) She does not base her claim against Lubrizol on a specific warranty document, but on various alleged promises made "through sales brochures, catalogs, websites, and marketing materials, representing that ‘FlowGuard Gold pipe and fittings are designed for a 50-year service life’ ...." (ECF No. 34, PageID #655 (citing ECF No. 17, ¶¶ 4, 79, 101, 196–97, & 200).) Construing the "50-year service life" representation as an express warranty, the future-performance exception applies and, at this stage in the proceedings, saves Plaintiff's express warranty claim against Lubrizol from dismissal.

VI.A.1.b. Failure to Repair or Replace

Plaintiff also argues the statute of limitations began to run upon discovery of the defect, not delivery, because she alleges Cresline Plastic breached its warranty by failing to repair or replace the leaky FlowGuard Gold. (ECF No. 33, PageID #600; ECF No. 17, ¶ 207, PageID #231.) The Court construes this theory as a breach of the Cresline Written Warranties because Plaintiffs do not allege Cresline's Additional Warranties include a repair-or-replace provision.

"[W]here a complaint alleges a breach of warranty based upon the failure to repair or replace—rather than based upon the condition of the product when tendered—the promise to repair is an independent obligation that is breached when the warrantor fails to repair." Grover , 434 F. Supp. 3d at 631 (citing Allen , 913 F. Supp. 2d at 496 ). However, "as a general rule, repair-or-replace clauses themselves do not qualify as warranties extending to future performance of goods." Siriano , 2015 WL 12748033, at *7 (collecting Ohio cases) ; see also Keller Logistics Grp. v. Navistar, Inc. , No. 3:19 CV 735, 2020 WL 4597283, at *3 (N.D. Ohio Mar. 20, 2020) (citing Allis-Chalmers , 17 Ohio App. 3d at 236, 479 N.E.2d at 300 ).

According to the consolidated amended complaint, the earliest Ms. Martin discovered that Cresline Plastic denied her warranty claim and refused to repair and replace her FlowGuard Gold was March 25, 2020, when she received an email from Cresline Plastic's representative informing her that the samples she sent in with her warranty claim "were free of manufacturing defects." (ECF No. 17, ¶ 65, PageID #198.) She brought this lawsuit within the year. Under the future-performance exception, Plaintiff's express warranty claim against Cresline Piping may proceed, despite the statute of limitations, on the theory that Cresline breached its promise in the Written Warranties to repair-and-replace defective FlowGuard Gold.

VI.A.2. Equitable Estoppel

Because the Court determines that Plaintiff's express warranty claim against Cresline Plastic is untimely to the extent it is premised on the tender of defective goods under the Cresline Written Warranties, the Court next considers whether equitable estoppel allows the claim to proceed on this theory. "Ohio law also recognizes that equitable estoppel may be employed to prevent a defendant from asserting a limitations defense." Walburn v. Lockheed Martin Util. Servs. , 443 F. App'x 43, 47 (6th Cir. 2011) (citations omitted). "The party relying on equitable estoppel bears the burden to establish that the requirements for equitable estoppel have been met." Id. To benefit from equitable estoppel, Plaintiffs must plead facts that, if proved, demonstrate the defendant made efforts to prevent the filing of a lawsuit. Doe v. Archdiocese of Cincinnati , 116 Ohio St. 3d 538, 2008-Ohio-67, 880 N.E.2d 892, ¶ 8.

Generally, Plaintiff alleges that "Defendants are estopped from pleading any statute of limitations defense" because they "actively concealed and misrepresented to Plaintiffs and the Class Members facts that were essential to understanding that Plaintiffs and the Class Members had claims against Defendants, and thus, Defendants have acted to prevent Plaintiffs and the Class Members from learning that they possessed claims against Defendants." (ECF No. 17, ¶ 129, PageID #215.) In other words, Plaintiff alleges Defendants concealed the alleged defects, which prevented Plaintiffs from filing suit earlier.

But concealing defects does not qualify as an act or misrepresentation that induced Plaintiff to forgo filing suit. Allen , 913 F. Supp. 2d at 511 (failure to disclose defect in windows was not a basis for applying equitable estoppel because it was not "calculated to induce a plaintiff to forgo the right to sue") (quotation and citation omitted); see also Lottridge v. Gahanna-Creekside Invs., LLC , 2015-Ohio-2168, 36 N.E.3d 744, ¶¶ 17 & 27 (Ohio Ct. App.) (equitable estoppel did not apply where the plaintiff argued "the defendants misled her into believing that she suffered no injury as a result of their negligence, but led her to believing [sic] that her issues were because her building was old and had drainage issues"). Even construing the facts alleged in the consolidated amended complaint in the light most favorable to Plaintiff, she has not carried her burden of establishing that Cresline Plastic "did anything that was designed to prevent [her] from filing suit." Doe , 2008-Ohio-67, ¶ 8, 116 Ohio St.3d 538, 880 N.E.2d 892. Accordingly, Plaintiff's claim that Cresline Plastic breached the Cresline Written Warranties by tendering defective goods remains untimely and is barred.

* * *

To summarize, the Court determines that Plaintiff's express warranty claim against Cresline Plastic is time-barred to the extent she alleges Cresline Plastic breached the Cresline Written Warranties by providing defective goods. Neither the future-performance exception nor equitable estoppel saves that claim. However, Plaintiff's express warranty claim against Cresline Plastic may proceed on two theories: (1) the failure to repair and replace the allegedly defective pipes under the Cresline Written Warranties; and (2) providing a defective product under the Cresline Additional Warranties. As for Lubrizol, the future-performance exception permits Plaintiff's claim to proceed notwithstanding expiration of the statute of limitations.

VI.B. Failure to Attach Cresline Plastic's Warranties

Cresline Plastic argues that Plaintiff's failure to attach the warranties at issue to the consolidated amended complaint provides grounds for dismissal where she also failed to identify specific warranty language. (ECF No. 28, PageID #410–11.) This argument is not well-taken. First, Cresline Plastic identified two express warranties "that co-existed and were provided to purchasers in 1997, when Martin's home was built" and attached them to its reply brief. (ECF No. 37, PageID #754–55; ECF No. 37-1; ECF No. 37-2.) Ordinarily, courts may not consider documents beyond the pleadings on a motion to dismiss without converting the motion to one for summary judgment. Fed. R. Civ. P. 12(d). However, the Court "may consider exhibits attached to the complaint, public records, items appearing in the record of the case, and exhibits attached to defendant's motion to dismiss, so long as they are referred to in the complaint and are central to the claims contained therein." DeShetler v. FCA US LLC , No. 3:18 CV 78, 2018 WL 6257377, at *4 (N.D. Ohio Nov. 30, 2018) (quoting Gavitt v. Born , 835 F.3d 623, 640 (6th Cir. 2016) ). Such is the case here.

Second, even if Cresline Plastic had not placed these materials into the record, Plaintiff alleges that "Cresline's written lifetime warranty warrants that its FlowGuard Gold pipes and fittings ‘are free from defects in material and workmanship and conform to ASTM standards.’ The warranty provides relief for defective FlowGuard Gold ‘for as long as the original owner owns the property.’ " (ECF No. 17, ¶ 100, PageID #206.) Further, the consolidated amended complaint identifies allegedly unconscionable terms in Cresline Plastic's warranties. (Id. , ¶ 104, PageID #207.) Accordingly, Plaintiff places specific warranty language in dispute, and this argument does not provide grounds for dismissal.

VI.C. Terms of the Express Warranty

Cresline's Written Warranties refer to defects in "materials and workmanship." (ECF Nos. 37-1 & 37-2.) Based on that language, Cresline Plastic argues that Plaintiff's express warranty claim should be dismissed because she has failed to allege manufacturing defects. (ECF No. 37, PageID #756.) The Court addresses this argument only with respect to the theories that Cresline Plastic breached the Cresline Additional Warranties by providing a defective product or breached the Cresline Written Warranties by refusing to repair and replace a defective product.

Throughout the consolidated amended complaint, Plaintiff alleges facts that support the claim that FlowGuard Gold was defectively manufactured. In particular, Ms. Martin alleges her pipes leaked on two occasions, which provides a plausible basis to infer the pipes contained defects in materials and workmanship. (ECF No. 17, ¶¶ 60–61, PageID #197.) Also, she alleges that Lubrizol and Cresline Plastic designed and manufactured the FlowGuard Gold pipes and fittings used in her home. (Id. , ¶ 59, PageID #197.) At this stage in the proceedings, it is plausible that Ms. Martin's pipes failed because of a manufacturing defect and that Cresline Plastic breached the Cresline Additional Warranties by manufacturing the defective pipes and the Cresline Written Warranties by failing to repair and replace them. For these reasons, Cresline Plastic's argument is not well-taken. VI.D. Additional Warranties

Cresline Plastic argues that Plaintiff's express warranty claims fail because the alleged representations that make up the Cresline Additional Warranties amount to mere puffery and because Ms. Martin does not allege that she saw or relied on them before purchasing her home. (ECF No. 28, PageID #414–15 & 415–16.) Lubrizol make similar arguments. (ECF No. 27, PageID #319–21.)

VI.D.1. Mere Puffery

"[G]eneralized expressions of opinion and praise of a party's own products do not create an express warranty; rather they constitute nothing more than trade puffing." Weber Mfg. Techs., Inc. v. Plasan Carbon Composites, Inc. , No. 14-cv-12488, 2016 WL 4073545, at *5 (E.D. Mich. Aug. 1, 2016) (collecting cases). Claims like "world class," "quality," and "perfect" are not specific enough to create a warranty and amount to mere puffery. Id.

Here, Plaintiff's allegations include that Cresline Plastic represented that FlowGuard Gold would be "rigid," "non-corrosive," "lightweight," and "high-quality," and have "excellent insulation properties," and "high-water temperature resistance." (ECF No. 17, ¶ 91–92, PageID #205.) According to the consolidated amended complaint, Lubrizol warranted that FlowGuard Gold piping "systems are durable and will not degrade, pit or scale, even when in contact with high chlorine levels"; "is 100% immune to corrosion or degradation caused by chlorinated water and will never fail due to contact with normal drinking water"; "are designed for a 50-year service life" and have "a life expectancy similar to copper," among other things. (ECF No. 17, ¶¶ 78–79, PageID #202.) Further, Plaintiffs allege Defendants advertised that FlowGuard Gold meets certain, specific industry standards. (Id. , ¶¶ 93 & 95, PageID #205.) These alleged representations are sufficiently specific to avoid dismissal as puffery.

VI.D.2. Reliance

Cresline Plastic maintains that Plaintiff's express warranty claim based on the Cresline Additional Warranties fails because she does not allege she saw them before purchasing her home. (ECF No. 28, PageID #414–15.) Lubrizol argues the same, pointing out that the alleged warranties are based on language that appears on Lubrizol's website, which did not exist when Plaintiffs purchased their homes. (ECF No. 27, PageID #319–20.)

Cresline Plastic relies on Best Way Expediting, LLC v. Navistar, Inc. , No. 335085, 2018 WL 2067789, at *6-7, 2018 Mich. App. LEXIS 2077, at *17 (Mich. Ct. App. May 3, 2018), which disposed of a breach of express warranty claim where there was evidence the purchaser did not see the express warranty before purchasing the product. However, the court decided that issue on summary judgment. At the motion to dismiss stage, the Court considers what Plaintiff alleges, not what the evidence may or may not show.

Plaintiff alleges the pipes and fittings "were defective and did not conform to the representations" Defendants made. (ECF No. 17, ¶ 202, PageID #230.) Further, she alleges Lubrizol and the other Defendants "created additional express warranties for FlowGuard Gold through their sales brochures, catalogs, websites, and marketing materials." (ECF No. 17, ¶ 200, PageID #230.) Finally, with respect to the element of reliance in particular, Plaintiff alleges she "relied on Defendants’ express warranties to [her] detriment." (Id. , ¶ 221, PageID #233.) As for Lubrizol specifically, the consolidated amended complaint quotes statements from Lubrizol's 2020 website, but Lubrizol claims its website did not exist until 2016. (ECF No. 17, ¶¶ 77–82, PageID #202–03; ECF No. 27, PageID #319.) At this stage of the proceedings, no evidence shows when the website and various statements existed or were printed; therefore, the Court will not look beyond the pleadings to consider this argument.

Even on a generous reading of Plaintiff's allegations, the consolidated amended complaint does not allege specific facts explaining when or how Ms. Martin saw Cresline's Additional Warranties or Lubrizol's representations. Instead, the allegations maintain Defendants created warranties through "their sales brochures, catalogs, websites, and marketing materials" (ECF No. 17, ¶ 200, PageID #230) and contain the conclusory allegation that Plaintiff relied on these (and other) warranties" (id. , ¶ 221, PageID #233). These allegations are perilously thin, close to the type of naked allegations the Rule 8 standard does not countenance. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). At the pleading stage, however, construing the allegations in favor of Plaintiff as the Court must, the facts pled in the consolidated amended complaint give rise to an inference that Plaintiff or those acting on her behalf saw and relied on the representations and marketing materials identified in her pleading. These allegations together support an inference that Ms. Martin relied on the representations she contends amount to warranties. See Chapman v. Tristar Prods. , No. 16-cv-1114, 2016 WL 6216135, at *4, 2016 U.S. Dist. LEXIS 147474 (N.D. Ohio Oct. 25, 2016).

VI.E. Unconscionability

Plaintiffs argue Cresline's Written Warranties are unconscionable. (ECF No. 33, PageID #600–601.) The Court need not address unconscionability at this time. Ms. Martin's defective goods theory is time-barred and cannot be saved by claims of unconscionability. Her claim will proceed based on the other two theories.

VI.F. Statute of Frauds

Lubrizol argues the statute of frauds bars Plaintiff's claims. (ECF No. 27, PageID #314.) Under the statute of frauds, all promises that cannot be performed within one year must be reduced to writing to be enforceable. Mich. Comp. Laws § 566.132(1)(a). They argue Plaintiffs premise their claims on the "allegation that the Lubrizol Defendants somehow implicitly warranted that pipes and fittings made from Lubrizol Advanced's compounds, without qualification, would last for many decades." (Id. ) Contrary to Lubrizol's argument, Plaintiff alleges the existence of several writings on which she bases her express warranty claim against Lubrizol. (See, e.g. , ECF No. 17, ¶¶ 77–82, PageID #202–03.) She does not pursue implied warranty claims that might trigger the statute of frauds. (ECF No. 34, PageID #649.)

VII. Implied Warranty of Merchantability (Cresline Plastic)

Ms. Martin alleges Lubrizol and Cresline Plastic breached the implied warranty of merchantability. (ECF No. 17, ¶¶ 223–35, PageID #233–35.) Plaintiff concedes this claim and does not pursue it against Cresline Plastic or Lubrizol. (ECF No. 33, PageID #608 n.9; ECF No. 34, PageID #649.) Therefore, it is dismissed.

VIII. Violation of the Magnuson-Moss Warranty Act (Cresline Plastic)

Plaintiff asserts a claim against Cresline Plastic for violation of the Magnuson-Moss Warranty Act. (ECF No. 17, ¶¶ 236–46, PageID #235–37.) She does not raise this claim against Lubrizol. Specifically, Plaintiff claims Cresline Plastic violated 15 U.S.C. § 2310(d)(1) by breaching its express warranties. (Id. , ¶ 243, PageID #236.) This federal statutory claim requires a viably pleaded warranty claim under State law. Francis v. GM, LLC , No. 19-11044, 2020 WL 7042935, at *12–13 (E.D. Mich. Nov. 30, 2020). Accordingly, the Court considers Cresline Plastic's arguments for dismissal in light of the express warranty claims that survive.

Cresline Plastic argues Plaintiff's claim fails because plumbing is not a consumer product. (ECF No. 28, PageID #418–19.) "To establish a Magnuson-Moss claim, a plaintiff must show that the item at issue was a ‘consumer product.’ " Gentek Bldg. Prods. v. Sherwin-Williams Co. , 491 F.3d 320, 331 (6th Cir. 2007) (citing 15 U.S.C. § 2301(1) ). The Act defines a "consumer product" as "tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed)." 15 U.S.C. § 2301(1). Further, the regulations governing the Act provide that consumer products are limited to personal property and exclude "wiring, plumbing, ducts, and other items which are integral component parts of [a] structure." 16 C.F.R. § 700.1(c) & (d). Also, "plumbing ... and other structural components of a dwelling are not consumer products when they are sold as part of real estate covered by a written warranty." Id. at § 700.1(e).

Ms. Martin contracted to have her home built and FlowGuard Gold pipes and fittings were installed during the construction of her home. (ECF No. 17, ¶ 59, PageID #197.) Although the statutory language appears to define plumbing as a consumer product, Plaintiff's position ignores the regulatory definition excluding plumbing from the reach of the Act. Plaintiff offers no explanation why the Court should disregard this refinement. Based on the regulations under the Act, the Court dismisses Plaintiff's claim under the Magnuson-Moss Warranty Act.

X. Unjust Enrichment (Lubrizol and Cresline Plastic)

Plaintiff alleges Cresline Plastic and Lubrizol unjustly benefitted from her purchase of FlowGuard Gold because she did not receive a product "of the quality, nature, fitness or value that had been represented by Defendants ... and that Plaintiffs and the Class, as reasonable consumers, expected." (ECF No. 17, ¶ 261, PageID #239.) Cresline Plastic and Lubrizol argue the statute of limitations bars Plaintiff's unjust enrichment claim, which expired in 2003. (ECF No. 27, PageID #321–22; ECF No. 28, PageID #406–07.)

The parties agree that Ohio's statute of limitations for an unjust enrichment claim is six years. Ohio Rev. Code § 2305.07. "A cause of action for unjust enrichment accrues from the date that the money is retained under circumstances where it would be unjust to do so." Palm Beach Co. v. Dun & Bradstreet , 106 Ohio App. 3d 167, 175, 665 N.E.2d 718, 723 (Ohio Ct. App. 1995) (citation omitted); State ex rel. County of Cuyahoga v. Jones Lang Lasalle Great Lakes Co. , No. 104157, 2017-Ohio-7727, ¶ 118 (Ohio Ct. App.) (same). Ohio courts do not apply the discovery rule to toll the statute, Bank of America, N.A. v. Darkadakis , 2016-Ohio-7694, 76 N.E.3d 577, ¶ 42 (Ohio Ct. App.) (collecting cases), and the parties do not argue otherwise. Cresline Plastic and Plaintiff agree that the statute of limitations begins to run on an unjust enrichment claim at "the last point in time that the plaintiff conferred, and a defendant unjustly received, a benefit." (ECF No. 28, PageID #406; ECF No. 33, PageID #609) (both citing Starkey v. JPMorgan Chase Bank, N.A. , 573 Fed. App'x 444, 449 (6th Cir. 2014).)

The question, then, becomes when Cresline Plastic and Lubrizol last received a benefit under allegedly unjust circumstances. Cresline Plastic argues the latest such date occurred when Ms. Martin purchased her home in 1997. (ECF No. 28, PageID #406.) According to Cresline Plastic, her unjust enrichment claim expired six years later in 2003, but she did not sue until 2020 seventeen years later. (Id. ; ECF NO. 37, PageID #760.) Plaintiff counters that "Cresline, by extending its warranty into the future, continues to receive benefits of its bargain with the Plaintiff." (ECF No. 33, PageID #610.)

Cresline Plastic has the better of the arguments. Plaintiff offers no legal or factual support for her position. Nor does she identify any benefit Cresline Plastic continues to receive from Ms. Martin's purchase of her home in 1997. Plaintiff's unjust enrichment cause of action accrued by 1997, but she did not bring this lawsuit until well beyond the six-year limitations period.

Plaintiff maintains her unjust enrichment claim against Lubrizol did not accrue until the pipes failed because it did not become unjust for Lubrizol to retain any benefit until then. (ECF No. 34, PageID #658.) She directs the Court to Chaplain Kieffer Post 1081 v. Wayne County Veterans Association , No. 2358, 1988 WL 99188, 1988 Ohio App. LEXIS 3815 (Ohio Ct. App. Sept. 21, 1988). As Lubrizol points out, Chaplain Kieffer is a trust case in which the court found an unjust enrichment claim accrued when funds were misused, rather than when received because the trustee was obligated to receive the funds. Id. 1988 WL 99188 at *3, 1988 Ohio App. LEXIS 3815 at *8. For this reason, the Court agrees with Lubrizol that Chaplain Kieffer is inapposite here. Accordingly, the Court determines that Ohio's statute of limitations bars Plaintiff's unjust enrichment claim against Cresline Plastic and Lubrizol.

XI. Fraudulent Concealment (Lubrizol and Cresline Plastic)

Plaintiff alleges Cresline Plastic and Lubrizol "knowingly, intentionally, willfully, fraudulently and actively misrepresented, omitted and concealed from consumers material facts relating to the quality of FlowGuard Gold; specifically omitting that FlowGuard Gold was defective, did not meet industry standards, would prematurely fail, and otherwise was not as warranted and represented by Defendants and Thompson." (ECF No. 17, ¶ 27, PageID #240.) Had Defendants disclosed the alleged true quality of FlowGuard Gold, Ms. Martin "would not have purchased FlowGuard Gold or structures in which FlowGuard Gold was installed, would have negotiated additional warranty coverage, would have negotiated a lower price to reflect the risk, or simply would have avoided the risk all together by purchasing a different plumbing system or different home." (Id. , ¶ 271, PageID #240–41.) Alternatively, she "would have replaced the defective FlowGuard Gold pipes and fittings sooner, preventing damage to [her] home[ ]." (Id. )

Fraudulent concealment, also called silent fraud, "has long been recognized in Michigan." Titan Ins. Co. v. Hyten , 491 Mich. 547, 817 N.W.2d 562, 568 (2012). A claim of silent fraud requires a plaintiff to plead and prove that there was a suppression of material information where there was a legal or equitable duty of disclosure. United States Fid. & Guar. Co. v. Black , 412 Mich. 99, 313 N.W.2d 77, 88 (1981). In addition to a duty to disclose, there must be "some type of representation by words or actions that was false or misleading and was intended to deceive." Prudential Def. Sols., Inc. v. Graham , 498 F. Supp. 3d 928, 941 (E.D. Mich. 2020) (quoting Roberts v. Saffell , 280 Mich.App. 397, 760 N.W.2d 715, 719–20 (2008) ). Cresline Plastic and Lubrizol argue Plaintiff has failed to state a claim for fraudulent concealment. (ECF No. 27, PageID #330–35; ECF No. 28, PageID #423–25.)

XI.A. Pleading Standard

Rule 9 requires a party claiming fraud to "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). When read in connection with Rule 8's notice requirement, "the purpose of Rule 9 is not to reintroduce formalities to pleading, but is instead to provide defendants with a more specific form of notice as to the particulars of their alleged misconduct." United States ex rel. Bledsoe v. Community Health Sys., Inc. , 501 F.3d 493, 503 (6th Cir. 2007). "So long as [the plaintiff] pleads sufficient detail—in terms of time, place and content, the nature of a defendant's fraudulent scheme, and the injury resulting from the fraud—to allow the defendant to prepare a responsive pleading, the requirements of Rule 9(b) will generally be met." United States ex rel. SNAPP, Inc. v. Ford Motor Co. , 532 F.3d 496, 504 (6th Cir. 2008).

Under this heightened standard, a plaintiff pleading a fraudulent omission must allege "(1) precisely what was omitted; (2) who should have made a representation; (3) the content of the alleged omission and the manner in which the omission was misleading; and (4) what [defendant] obtained as a consequence of the alleged fraud." Republic Bank & Trust Co. v. Bear Stearns & Co., Inc. , 683 F.3d 239, 256 (6th Cir. 2012) (citation omitted). "To state a claim for fraudulent omission, a plaintiff must also establish a duty to disclose." Miller v. GM, LLC , No. 17-cv-14032, 2018 WL 2740240, at *11 (E.D. Mich. June 7, 2018) (citing MacDonald v. Thomas M. Cooley Law Sch. , 724 F.3d 654, 665 (6th Cir. 2013) ).

XI.B. Duty to Disclose

Cresline Plastic and Lubrizol argue they did not have a duty to disclose the alleged defects of FlowGuard Gold and that mere nondisclosure is insufficient to establish fraudulent concealment where there was no duty to disclose. (ECF No. 27, PageID #333–34; ECF No. 28, PageID #424.) Under Michigan law, there is no general duty to disclose defects. Prudential , 498 F. Supp. 3d at 941 (citing M&D, Inc. v. W.B. McConkey , 231 Mich.App. 22, 585 N.W.2d 33, 38 (1998) ). A duty to disclose may arise where a purchaser expresses a particular concern to a seller or makes a direct inquiry, the seller fails to fully disclose material facts related to the concern or inquiry, and the buyer relies on the seller's representation. Groening v. Opsata , 323 Mich. 73, 34 N.W.2d 560, 563 (1948). Or, a seller might have a duty to disclose where it subsequently acquires information that renders previous representations untrue. Black , 313 N.W.2d at 88. Both instances imply the seller must have known of a misrepresentation, which is consistent with the knowledge requirement for pleading fraudulent concealment under the Restatement (Second) of Torts. Smith v. GM LLC , 988 F.3d 873, 886 (6th Cir. 2021). Put another way, "[t]o support such a claim, a complaint must contain specific facts showing the manufacturer's knowledge of the defect that it allegedly fraudulently concealed." Id.

Plaintiff has not alleged facts supporting either theory. Because Michigan law does not impose a general duty of disclosure for an allegedly defective product, Plaintiff's arguments regarding the duty of a product manufacturer or seller are misplaced in a discussion of fraudulent concealment. See Genaw v. Garage Equip. Supply Co. , 856 F. App'x 23, 28 n.2 (6th Cir. 2021) (distinguishing fraudulent concealment from failure to warn). Plaintiff asserts that the alleged defects of FlowGuard Gold "are material to a reasonable consumer and Defendants had a duty to disclose these facts." (ECF No. 17, ¶ 117, PageID #213; see also id. , ¶¶ 128 & 268, PageID #215 & 240.) But the consolidated amended complaint does not plead any relationship or interaction between Ms. Martin and Lubrizol or Cresline Plastic that might give rise to a duty to disclose. There are no facts alleged suggesting that Ms. Martin asked Cresline Plastic or Lubrizol about the quality or durability of FlowGuard Gold. Further, nothing in the consolidated amended complaint suggests Ms. Martin ever interacted with Cresline Plastic or Lubrizol directly.

Perhaps for that reason, Plaintiff bases this claim on the theory that a duty arose through Defendants’ failure to correct prior misrepresentations regarding FlowGuard Gold. (ECF No. 33, PageID #615; ECF No. 34, PageID #667.) But the consolidated amended complaint also lacks allegations demonstrating a duty to correct previous misstatements. The amended complaint does not allege any pre-sale interaction between Ms. Martin and Defendants. Although Plaintiffs argue that Defendants "misguided everyone" (ECF No. 33, PageID #615), Michigan does not impose a general duty to disclose, see Prudential , 498 F. Supp. 3d at 941 (citing M&D, Inc. v. W.B. McConkey , 231 Mich.App. 22, 585 N.W.2d 33, 38 (1998) ). Accordingly, the allegations in the consolidated amended complaint that Defendants owed Plaintiff a duty to disclose are conclusory, both as a matter of law and on the facts as pleaded, and do not suffice to state a claim. Therefore, the Court need not analyze this claim further.

XV. Michigan Consumer Protection Act (Lubrizol and Cresline Plastic)

Plaintiff alleges that Lubrizol and Cresline Plastic violated the Michigan Consumer Protection Act by making misrepresentations about FlowGuard Gold and by breaching their warranties. (See ECF No. 17, ¶ 310, PageID #248.) The Michigan Consumer Protection Act protects against unfair, unconscionable, deceptive methods, acts, or practices. Mich. Comp. Laws § 445.903(1). Plaintiff alleges Defendants violated the following provisions of the Act:

(c) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he or she does not have.

* * *

(e) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.

* * *

(g) Advertising or representing goods or services with intent not to dispose of those goods or services as advertised or represented.

* * *

(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.

* * *

(bb) Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is.

* * *

(cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner.

Id. To the extent Plaintiff premises this claim on the same theory as her fraudulent concealment claim, it is barred. See Miller , 2018 WL 2740240, at *15 (dismissing statutory consumer protection claim supported by the same allegations underlying the insufficient fraudulent concealment claim). That leaves the theory that Defendants violated the Act by improperly denying Plaintiff's warranty claim. (ECF No. 17, ¶ 310, PageID #248.)

XV.A. Statute of Limitations

Lubrizol argues Ohio's two-year statute of limitations bars Plaintiff's consumer protection claims. (ECF No. 27, PageID #323.) Plaintiff counters that the limitations period does not run from the date of the underlying transaction, but from each violation. (ECF No. 34, PageID #660.) She argues that her claim is timely because "Lubrizol takes an active role in Charlotte's ... warranty claim processing, making reports and other communications that often provide specious excuses for FlowGuard Gold's failure." (Id. (citing ECF No. 17, ¶ 105, PageID #207).) The consolidated amended complaint, however, does not support Plaintiff's theory.

A claim under Michigan's Consumer Protection Act must be brought within six years after the occurrence of the incident that is the subject of the action or within one year after the last payment in a transaction. Mich. Comp. Laws § 445.911(9). Ohio's relevant statute of limitations under the Ohio Consumer Sales Protection Act is two years "after the occurrence of the violation which is the subject of the suit ...." Ohio Rev. Code § 1345.10(C). Ohio's statute governs because it provides the shorter limitations period. Rose , No. 1:17-cv-252, 2020 WL 5210913, at *8. Ohio does not recognize a discovery rule for consumer claims for damages. Rosenow v. Shutrump & Assocs. , 2005-Ohio-5313, 163 Ohio App.3d 500, 839 N.E.2d 82, ¶¶ 16–17 (2005).

Notwithstanding Plaintiff's allegation that Lubrizol plays an active role in the warranty process, the consolidated amended complaint contains no allegations that Lubrizol was involved in the denial of Ms. Martin's warranty claim. (See id. , ¶¶ 64–67, PageID #198–99.) To the contrary, the basis for alleging Lubrizol plays an active role in Cresline Plastic's warranty process is that it provides reports to Cresline Plastic, but Plaintiff alleges "Cresline did not provide Martin with a formal report in response to her warranty claim," and there is no indication Lubrizol did either. (Id. , ¶ 68, PageID #199.)

Additionally, the consumer protection violations Plaintiff alleges involve pre-sale representations and occurred before or during the purchase of FlowGuard Gold. Accordingly, Ms. Martin's claim is time-barred because her home was built with FlowGuard Gold in 1997, and she did not bring her claim until 2020, well outside Ohio's two-year limitations period for statutory consumer protection claims. For this reason, and because she alleges no factual basis to support a claim under the Act based on breach of warranty, the Court dismisses this claim as to Lubrizol.

XV.B. Failure to State a Claim

Cresline Plastic argues that Plaintiff's statutory consumer protection claim must be dismissed absent an actionable underlying State warranty claim. (ECF No. 28, PageID #425–26.) That may be correct, but Plaintiff does have actionable State warranty claims against Cresline Plastic. Next, Cresline Plastic argues the claim fails because the Act only covers goods purchased for personal or household use. (Id. , PageID #426–27.) Cresline Plastic posits that Ms. Martin does not allege she herself purchased FlowGuard Gold and infers that the homebuilders she contracted with must have purchased FlowGuard Gold for the commercial purpose of building her home. (Id. )

In response, Plaintiffs direct the Court to Safeco Insurance Company of America v. CPI Plastics Group, Ltd. , 625 F. Supp. 2d 508 (E.D. Mich. 2008). (ECF No. 33, PageID #616.) There, the plaintiff had standing to assert a claim against the manufacturer of deck materials under the Act as the subrogee of the homeowners who purchased the materials from a hardware store. Id. at 512. Plaintiff argues that Ms. Martin need not have purchased FlowGuard Gold directly from Cresline to maintain her claim because the plaintiff in Safeco Insurance purchased the materials from a hardware store rather than the defendant manufacturer. Cresline Plastic correctly notes that the Act does not apply to business purchases. Progressive Distribution Servs. v. UPS , 186 F. Supp. 3d 741, 756 (W.D. Mich. 2016). But "the proper focus of the MCPA is the use to which goods or services are put." Id. (citing Zine v. Chrysler Corp. , 236 Mich.App. 261, 600 N.W.2d 384, 393–94 (1999) ). Based on the allegations in the consolidated amended complaint, Ms. Martin has stated a claim that she used FlowGuard Gold for personal use in her own home as the Act contemplates. Accordingly, the Court does not dismiss her claim under Rule 12(b)(6).

XVI. Declaratory and Injunctive Relief (Lubrizol and Cresline Plastic)

Finally, Plaintiff seeks declaratory judgment and injunctive relief. (ECF No. 17, ¶¶ 315–23, PageID #249–51.) The Declaratory Judgment Act provides that, "[i]n a case of actual controversy within its jurisdiction ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). Lubrizol and Cresline Plastic urge the Court to dismiss this claim because her other claims fail. (ECF No. 27, PageID #330; ECF No. 28, PageID #427.) Because some of Ms. Martin's substantive claims survive dismissal, the Court declines to dismiss her claim for declaratory judgment.

In addition, Lubrizol argues Plaintiff's declaratory judgment claim fails because it is mere surplusage. (ECF No. 27, PageID #329.) Relying on World Shipping v. RMTS, LLC , No. 1:12 CV 3036, 2013 WL 774503, at *5, 2013 U.S. Dist. LEXIS 25996, at *14 (N.D. Ohio Feb. 22, 2013), Lubrizol seeks dismissal of Plaintiff's declaratory judgment claim on the ground that she simply seeks a declaration that she prevails on her other claims. (ECF No. 27, PageID #329.) That case involved an insurance dispute where the declaratory judgment count of the complaint simply raised the underlying breach of contract and bad faith claims. It has little application here, and the Court declines to dismiss the declaratory judgment count on its authority.

Also, Lubrizol and Cresline Plastic both argue that injunctive relief is a remedy and not a cause of action. (ECF No. 27, PageID #331 n.14; ECF No. 28, PageID #427.) They are correct as a matter of law. Allen , 913 F. Supp. 2d at 516 ("Injunctive relief is a remedy for a claim, not a cause of action unto itself."). Rather than dismiss this "claim," the Court construes any averments seeking injunctive relief as part of Plaintiff's prayer for relief. Id. Defendants further argue Plaintiff is not entitled to injunctive relief because she failed to allege future harm and a substantial risk the harm will occur. (ECF No. 27, PageID #331 n.14; ECF No. 28, PageID #428). At this stage of the proceedings, Plaintiff does not seek an injunction, which will ultimately depend on the proof of a claim and the requirements of Rule 65 entitling her to injunctive relief. As a potential remedy if she can prove her case, an injunction is a matter for another day. See Allen , 913 F. Supp. 2d at 516.

THE JONESES’ CLAIMS UNDER ARIZONA LAW

Plaintiffs Keith and Janet Jones allege that Lubrizol and Charlotte Pipe designed and manufactured the FlowGuard Gold pipes and fittings installed during the construction of their home in 1999. (ECF No. 17, ¶ 21, PageID #185.) The pipes leaked in October 2019 and damaged their home. (Id. , ¶ 22.)

As an initial matter, Charlotte Pipe argues the amended complaint fails to satisfy Rules 8(a) and 9(b). (ECF No. 30, PageID #452.) In particular, it argues Plaintiffs have engaged in shotgun pleading that fails to attribute alleged unlawful activity to specific Defendants. The Court addresses the pleading standard of Rule 9 in relevant portions of the opinion below. Under Rule 8, a complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Plaintiffs have done so. For example, they identify specific misrepresentations Charlotte Pipe allegedly made and base their claims on these statements. (ECF No. 17, ¶¶ 84–90, PageID #203–04.) With that, the Court turns to the specific claims the Joneses raise against Lubrizol and Charlotte Pipe.

I. Negligence (Lubrizol & Charlotte Pipe)

Plaintiffs allege Lubrizol and Charlotte Pipe were negligent by "designing, developing, formulating, testing, manufacturing, selling and warranting a defective product to Plaintiffs and the Class, and by failing to take those steps necessary to repair or otherwise discontinue selling a defective product to consumers." (ECF No. 17, ¶ 144, PageID #222.)

Lubrizol and Charlotte Pipe argue that Arizona's economic loss doctrine bars the Joneses’ tort claims. (ECF No. 34, PageID #647; ECF No. 30, PageID #473–74.) Arizona law applies the economic loss doctrine more narrowly than does Michigan law. Arizona defines the doctrine as "a common law rule limiting a contracting party to contractual remedies for the recovery of economic losses unaccompanied by physical injury to persons or other property." Flagstaff Affordable Hous. Ltd. P'ship v. Design All., Inc. , 223 Ariz. 320, 223 P.3d 664, 667 (2010). Rather than categorically bar tort recovery for economic losses, Arizona's narrow approach to the doctrine requires that "[e]ach case must be examined to determine whether the facts preponderate in favor of the application of tort law or commercial law exclusively or a combination of the two." Id. at 668 (quoting Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec. Corp. , 143 Ariz. 368, 694 P.2d 198, 210 (1984) ).

When deciding whether the economic loss doctrine should apply under Arizona law, courts "focus on whether the applicable substantive law allows liability in the particular context," id. at 671, and keep "in mind that tort law is designed to promote the safety of persons and property whereas contract law is designed to protect the parties’ expectations," Cook v. Orkin Exterminating Co. , 227 Ariz. 331, 258 P.3d 149, 152–53 (Ariz. Ct. App. 2011) (citing Salt River , 694 P.2d at 205–07 ). Courts analyze three interrelated factors to determine whether the "facts preponderate in favor of the application of tort law or commercial law": (1) "the nature of the product defect that caused the loss to the plaintiff"; (2) "the manner in which the loss occurred"; and (3) "the type of loss for which the plaintiff seeks redress." Salt River , 694 P.2d at 206. Here, Plaintiffs do not allege facts to support the product was dangerously defective. Nor do they allege facts to plausibly support the manner of loss was sudden or catastrophic. Accordingly, the economic loss doctrine bars Plaintiffs’ tort claims.

I.A. Nature of the Product Defect

Under Salt River , tort liability may be triggered where a defective product is unreasonably dangerous. 694 P.2d at 206. Plaintiffs allege that FlowGuard Gold or Lubrizol's CPVC compound are unreasonably dangerous. (ECF No. 17, ¶¶ 165, 176 & 186, PageID # 225–27.) Defendants argue that the allegedly defective pipes and fittings are not unreasonably dangerous because they failed over the fourteen years between the construction of the Joneses’ home in 1999 and the first leak in October 2019. At the motion to dismiss phase, Plaintiffs must allege facts to make that claim plausible, and they do not. Although they allege the leaking FlowGuard Gold caused their ceiling to cave in, among other damage to the home, they were able to manage the leak by putting a bucket underneath it and turning off the water until repairs could be made. (Id. , ¶ 23, PageID #185.) These sorts of facts do not present a product as unreasonably dangerous. Even construing all reasonable inferences in the Plaintiffs’ favor, they have not sufficiently alleged under Arizona law that the product—either Lubrizol's compound or the finished FlowGuard Gold pipes and fittings—was unreasonably dangerous. This factor favors application of the economic loss doctrine.

I.B. Manner of Loss

When analyzing the manner of loss, courts consider whether the loss was the result of a sudden accident or occurred over a period of time, the former more consistent with tort liability. Salt River , 694 P.2d at 207. Courts may consider whether loss is the result of "violence, fire, collision with external objects, or other calamity." Id. (quoting Northern Power & Engineering Corp. v. Caterpillar Tractor Co. , 623 P.2d 324, 329 (Alaska 1981) ). Defendants argue the pipes merely deteriorated over fourteen years and did not cause a calamitous event. As discussed, the Joneses managed the leak by turning off the water and placing a bucket beneath it until repairs could be made. These allegations, the Court agrees, do not support damage resulting from collision or calamity. This factor also supports applying the economic loss doctrine to the Joneses’ tort claims against Lubrizol and Charlotte Pipe.

I.C. Type of Loss

As for type of loss, courts examine the nature of the claimed loss and any other contemporaneous losses. Salt River , 694 P.2d at 209. Plaintiffs claim the brittle pipes required them to pay for a replumb, repairs to their office, kitchen, and bathroom, and other costs, like hotel bills. Whether these losses extend beyond the repair and replacement of the defective product, which would implicate the economic loss doctrine, depends on how the product is defined. Here, the product here could be the CPVC compound Lubrizol manufactured, the pipes Charlotte Pipe manufactured, or the house into which the pipes were integrated. But because the other two factors favor barring tort liability, the answer to this question is not determinative. See Valley Forge Ins. Co. v. Sam's Plumbing, Ltd. Liab. Co. , 220 Ariz. 512, 207 P.3d 765, 767 (Ariz. Ct. App. 2009) (citing Salt River , 694 P.2d at 209 ). "If damage occurs suddenly and accidentally and the defect poses an unreasonable risk of danger to people or other property, the claim will sound in tort, even if, as in Salt River , the only property damaged is the defective product itself." Id.

Because the first two factors weigh in favor of applying the economic loss doctrine, the Joneses’ tort claims are barred. Plaintiffs argue that the doctrine under Arizona law does not extend to non-contracting parties and does not apply because the Joneses allege more than economic loss. (ECF No. 34, PageID #647 & 648 n.10.) For the reasons explained below, neither argument saves Plaintiffs’ tort claims from application of the economic loss doctrine.

I.C.1. Non-Contracting Parties

Plaintiffs argue, at least as to Lubrizol, that they do not have a contract and, therefore, the economic loss doctrine does not apply. They direct the Court to Sullivan v. Pulte Home Corp. , 232 Ariz. 344, 306 P.3d 1 (2013). Indeed, after Salt River and Flagstaff , the Arizona Supreme Court expressly "decline[d] to extend the doctrine to non-contracting parties ...." Id. at 3 (declining to extend the economic loss doctrine to a claim for breach of implied warranty brought against a homebuilder by subsequent homeowners). The "Arizona Supreme Court has only ever held the [economic loss] doctrine to apply in two contexts: construction defects and strict products liability." Sidi Spaces LLC v. Aluminum Trailer Co. , No. CV-19-01476, 2020 WL 6799262, at *13-14, 2020 U.S. Dist. LEXIS 219297, at *37 (D. Ariz. Oct. 22, 2020) (citing Flagstaff , 223 P.3d at 667–68 ; Salt River , 694 P.2d at 205 ). Unlike Sullivan , which involved construction defects, Plaintiffs’ claims fall into the product liability context. They are not suing the homebuilders and do not allege that FlowGuard Gold was improperly installed or the like. Therefore, Sullivan is inapposite.

I.C.2. Damage to Other Property

Plaintiffs also argue that Arizona's economic loss rule does not apply because property other than the pipes and fittings was damaged. They argue the three-part Salt River test only applies where a plaintiff seeks to recover in tort for purely economic loss and that they are not seeking only economic loss because they allege that the leaky FlowGuard Gold damaged other property of the Joneses. (ECF No. 34, PageID #647–48 n.9; ECF No. 35, PageID #709.) This argument rings hollow. Salt River provides "a list of factors, not a bright-line test, for determining whether to apply tort or contract law to a given situation when property has been damaged." Valley Forge Ins. Co. , 207 P.3d at 768. Moreover, type of loss is one of the Salt River factors. Based on this analysis, Arizona law applies the economic loss doctrine to foreclose Plaintiffs’ tort claims.

II. Negligent Failure to Warn (Lubrizol and Charlotte Pipe)

Plaintiffs allege that Defendants Lubrizol and Charlotte Pipe breached their duty to warn the Joneses "of the true nature of the quality of FlowGuard Gold" (ECF No. 17, ¶ 159, PageID #224) and "the foreseeable risks associated with the use of FlowGuard Gold in homes and other structures" (id. , ¶ 154, PageID #223). Arizona's economic loss doctrine bars this claim for the same reasons it bars Plaintiffs’ negligence claim.

III. Strict Liability Design Defect (Lubrizol and Charlotte Pipe)

Plaintiffs allege that the design, formulation, and composition of FlowGuard Gold is defective and unreasonably dangerous. (ECF No. 17, ¶ 165, PageID #225.) Arizona's economic loss doctrine bars this claim for the same reasons it bars Plaintiffs’ negligence claim. Salt River , 694 P.2d at 210–11 (strict liability torts are not actionable under the economic loss doctrine).

IV. Strict Liability Manufacturing Defect (Charlotte Pipe)

Plaintiff allege that Charlotte Pipe (and Thompson Plastics) defectively manufactured FlowGuard Gold, making it unreasonably dangerous. (ECF No. 17, ¶¶ 175–77, PageID #226.) Arizona's economic loss doctrine bars this claim for the same reasons it bars Plaintiffs’ negligence and other tort claims.

V. Strict Liability Failure to Warn (Lubrizol and Charlotte Pipe)

Plaintiffs allege that Lubrizol and Charlotte Pipe are strictly liable for failing to provide adequate warnings about the nature of FlowGuard Gold. (ECF No. 17, ¶ 190, PageID #228.) Arizona's economic loss doctrine bars this claim for the same reasons it bars Plaintiffs’ negligence and other tort claims.

VI. Breach of Express Warranty (Lubrizol and Charlotte Pipe)

Plaintiffs bring breach of express warranty claims against Lubrizol and Charlotte Pipe. (ECF No. 17, ¶¶ 193–222, PageID #229–33.) In Arizona, express warranties can be created by any affirmation, promise, description, or sample that is related to the goods and that becomes part of the basis of the bargain. Ariz. Rev. Stat. § 47-2313. Plaintiffs bring an express warranty claim against Charlotte Pipe based on its written warranty in effect in 1999, when the Joneses’ home was built. (ECF No. 17, ¶ 99, PageID #206.) They also allege that Defendants "created additional express warranties for FlowGuard Gold through their sales brochures, catalogs, websites, and marketing materials." (Id. , ¶ 200, PageID #230.) Plaintiffs allege Lubrizol and Charlotte Pipe breached these warranties "because FlowGuard Gold does not perform as promised." (Id. , ¶ 205, PageID #231.) In addition, Plaintiffs allege Charlotte Pipe breached the warranties by failing to replace defective pipes. (Id. , ¶ 207, PageID #231.)

VI.A. Failure to Attach Warranties

Lubrizol argues that this cause of action fails to state a claim because Plaintiffs do not refer to Lubrizol or any warranty or affirmative misrepresentations Lubrizol made to Plaintiffs in the text of the count. (ECF No. 27, PageID #319.) Similarly, Charlotte Pipe argues that Plaintiffs’ express warranty claim fails because they did not attach the applicable Charlotte Pipe warranty to the amended complaint. (ECF No. 30, PageID #460.) Neither of these arguments calls for dismissal.

Regarding Lubrizol's argument, Plaintiffs allege throughout the consolidated amended complaint that Lubrizol made statements amounting to an express warranty. Based on the statutory definition of an express warranty under Arizona law, the Court will not restrict its understanding of Plaintiffs’ express warranty claim to the specific paragraphs under the "express warranty" heading, especially where Plaintiffs incorporated by reference all other allegations and identified several alleged misrepresentations they attribute to Lubrizol. (See, e.g. , ECF No. 17, ¶¶ 3, 73, 78–82, PageID #181, 201–03.) Accordingly, dismissal of Plaintiffs’ express warranty claim against Lubrizol is not warranted on this ground.

As for Charlotte Pipe, the Court determines that Plaintiffs, the Joneses included, have adequately put Charlotte Pipe on notice of their express warranty claim. The consolidated amended complaint avers that the Joneses contracted to build their home in 1999 and refers to Charlotte Pipe's written warranty language (see, e.g. , ECF No. 17, ¶¶ 99, 104, 196, 199, PageID #206, 207, 229, 230) and various other representations Charlotte Pipe allegedly made regarding FlowGuard Gold (see, e.g. , id. , ¶¶ 84–89, PageID #203–04). Although Plaintiffs did not attach the actual warranty to the consolidated amended complaint, Charlotte Pipe identified which of its limited warranties was in effect in 1999. (ECF No. 30-3.) And reference to the warranty in the consolidated amended complaint makes it a part of the pleadings. See DeShetler v. FCA US LLC , No. 3:18 CV 78, 2018 WL 6257377, at *4 (N.D. Ohio Nov. 30, 2018) (quoting Gavitt v. Born , 835 F.3d 623, 640 (6th Cir. 2016) ). Failure to attach the operative warranty at issue does not provide grounds for dismissal.

VI.B. Statute of Limitations

Charlotte Pipe and Lubrizol argue that the statute of limitations bars Plaintiffs’ express warranty claim. (ECF No. 27, PageID #319; ECF No. 30, PageID #456.) The applicable statute of limitations is four years. Ohio Rev. Code § 1302.98. For the reasons already discussed in relation to Ms. Martin's express warranty claim against Lubrizol, the Court rejects these arguments as they apply to Lubrizol, particularly in light of Arizona's statutory definition of what constitutes an express warranty. See supra , Ms. Martin's Claims Under Michigan Law § VI.A.1.a.

Applying the usual rule that the limitations period begins to run at delivery, Charlotte Pipe argues that the limitations period commenced in 1999 when FlowGuard Gold was installed during the construction of the Joneses’ home and expired four years later in 2003. Without question, Plaintiffs filed this lawsuit years after the limitations period expired. Accordingly, their express warranty claim against Charlotte Pipe is time-barred, unless the future performance exception or equitable estoppel applies.

VI.B.1. Future Performance Exception

Plaintiffs argue that the future performance exception saves their express warranty claim from a statute-of-limitations defense because Charlotte Pipe's warranty guaranteed relief for owners of defective FlowGuard Gold for as long as the original owner occupies the property. (ECF No. 35, PageID #694 (citing ECF No. 17, ¶ 99).) The 1999 limited warranty Charlotte Pipe provided in connection with its motion "warrants ... the Products will be free of defects in material and workmanship under normal use and service for as long as the residential dwelling is owned and occupied by the original owner." (ECF No. 30-3, PageID #495.) Charlotte Pipe maintains that the future performance exception does not apply. (ECF No. 30, PageID #456 n.12.)

Based on the Court's earlier discussion and analysis, see supra , Ms. Martin's Claims Under Michigan Law § VI.A.1, the limitations period begins to run at the discovery of the breach rather than delivery of the goods only if Charlotte Pipe's warranty "explicitly extends to future performance of the goods ...." Allen , 913, F. Supp. 2d at 500. But the future performance exception does not apply to promises to repair and replace defective goods. Timken , 539 F. Supp. 3d at 790.

Plaintiffs allege that Charlotte Pipe's written warranty promised FlowGuard Gold would "be free from manufacturing defects and conform to currently applicable ASTM standards under normal use and service for as long as the single family residential dwelling is owned and occupied by the original owner." (ECF No. 17, ¶ 99, PageID #200.) Similarly, the 1999 limited warranty Charlotte Pipe attached to its brief guarantees that the pipes "will be free of defects in material and workmanship under normal use and service for as long as the residential dwelling is owned and occupied by the original owner" and promises to replace defective pipe. (ECF No. 30-3, PageID #495.) This replace clause does not implicate the future performance exception. Neither does the guarantee that FlowGuard Gold is warranted "for as long as the residential dwelling is owned and occupied by the original owner." (Id. )

In Timken Co. v. MTS Systems Corp. , the Court analyzed application of the future performance exception to a particular warranty with ongoing quality commitments. That warranty provided that the seller "warrants for a period of twelve (12) months after Final Acceptance, ... [that t]he Merchandise shall perform in accordance with the requirements of the Purchase Order Documents and be fit for the use and purposes specified," that the product "would be free from ‘defects or deficiencies’ for ‘twelve (12) months," and "that the equipment they supply should not have any problem with the continuous and proper operation of the proposed test periods." Timken , 539 F. Supp. 3d at 789. The agreement there went on to limit remedies and disclaim any other express or implied warranties. Reading this contract as a whole, the Court held the future performance exception did not apply because the language at issue operated as a limitation of remedies, not as a warranty of future performance. Id. 539 F. Supp. 3d at 790.

In that respect, the Court distinguished Timken from the warranty language at issue in Siriano v. Goodman Manufacturing Co. , where the future performance exception did apply. In Siriano , the limited warranty provided both a repair and replace promise and a statement that "all parts (including the compressor) are warranted for a period of 5 years." Siriano , 2015 WL 12748033, at *6. Charlotte Pipe's 1999 limited warranty promises FlowGuard Gold will be free of defects "for as long as the residential dwelling is owned and occupied by the original owner" and promises to replace any defective pipes or fittings during that same period. (ECF No. 30-3, PageID #495.) Like the promise in Timken , when reading the warranty as a whole, Charlotte Pipe did not warrant future performance and instead limited remedies. Timken , 539 F. Supp. 3d at 790. Therefore, the future performance exception does not apply to Plaintiffs’ express warranty claim against Charlotte Pipe based on the 1999 limited warranty.

However, Plaintiffs’ claim may proceed against Charlotte Pipe on the theory that it breached the warranty by failing to replace defective FlowGuard Gold. Also, Plaintiffs may proceed on the theory that Charlotte Pipe breached additional express warranties because the Court cannot determine whether the future performance exception applies without the specific warranty language before it. See supra , Ms. Martin's Claims Under Michigan Law § VI.A.1.a.

VI.B.2. Equitable Estoppel

Charlotte Pipe argues that Plaintiffs failed adequately to plead equitable estoppel. (ECF No. 30, PageID #457.) Equitable estoppel may "prevent a defendant from asserting a limitations defense." Walburn , 443 F. App'x a 47. To benefit from this doctrine, Plaintiffs "must plead facts that, if proved, demonstrate the defendant made efforts to prevent the filing of a lawsuit." Id. The Court agrees that Plaintiffs have failed to plead equitable estoppel and may not avoid the statute of limitations on this basis for the same reasons discussed in connection with Ms. Martin's claim. See supra , Ms. Martin's Claims Under Michigan Law § VI.A.2.

* * * In sum, Plaintiffs’ express warranty claim is barred against Charlotte Pipe to the extent they allege Charlotte Pipe breached the 1999 limited warranty by providing defective goods. Plaintiffs’ express warranty claim may proceed on two theories: (1) Charlotte Pipe failed to replace the allegedly defective pipes and fittings under the 1999 limited warranty; and (2) Charlotte Pipe and Lubrizol provided defective products under the additional express warranties alleged.

VI.C. Notice Under Charlotte Pipe's 1999 Limited Warranty

Charlotte Pipe next argues that Plaintiffs’ express warranty claim fails because they did not take the specific steps required for making a warranty claim as set forth in the 1999 limited warranty. (ECF No. 30, PageID #462.) Specifically, Charlotte Pipe points out that Plaintiffs do not allege the Joneses mailed notice of the alleged defect within 30 days after the date of discovery. Plaintiffs’ potential noncompliance with the warranty's notice requirements present factual issues that cannot be resolved on a Rule 12(b) motion. For example, although Plaintiffs do not allege the Joneses mailed notice to Charlotte Pipe, they do allege that Mrs. Jones called Charlotte Pipe to initiate a warranty claim. (ECF No. 17, ¶¶ 28–30, PageID #186.) According to the consolidated amended complaint, a Charlotte Pipe representative advised Mrs. Jones that Charlotte Pipe would send her a product complaint form to process her claim. (Id. , ¶ 29.) But Charlotte Pipe never sent the form. (Id. , ¶ 30.)

Taking Plaintiffs’ allegations as true on a motion to dismiss, as the Court must, it is plausible that the Joneses complied with Charlotte Pipe's notice requirements or otherwise provided adequate notice, even in light of the notice requirement in the 1999 limited warranty. Nor do the cases on which Charlotte Pipe relies require dismissal. See M&I Bank, FSB v. Coughlin , No. CV 09–02282, 2012 WL 602365, at *5 (D. Ariz. Feb. 24, 2012), and Goelz v. Winnebago Indus., Inc. , No. CV-03-1290, 2005 WL 8160919, at *5 (D. Ariz. Aug. 2, 2005). Each presented distinguishable facts on a motion for summary judgment. Their procedural posture reinforces the determination that Charlotte Pipe's argument on this ground is premature.

VI.D. Failure to State a Claim Under the 1999 Limited Warranty

Charlotte Pipe argues that Plaintiffs failed to allege Charlotte Pipe breached any obligation under the 1999 limited warranty, which, Charlotte Pipe claims, did not extend to design defects. (ECF No. 30, PageID #463.) Charlotte Pipe correctly points out that a warranty pertaining only to defects in "workmanship or materials" may not support a breach of warranty claim for a design defect. Feuerstein v. Home Depot, U.S.A., Inc. , No. 2:12-cv-01062, 2014 WL 2557122, at *7, 2014 U.S. Dist. LEXIS 78131 (D. Ariz. June 6, 2014). However, the allegations in Feuerstein and Plaintiffs’ allegations differ markedly. In Feuerstein , the "[p]laintiffs only allege[d] defects in the ladder's design and warnings." Id. In contrast, Plaintiffs here allege that Charlotte Pipe breached its express warranty "by designing, manufacturing and selling FlowGuard Gold." (ECF No. 17, ¶ 202, PageID #230) (emphasis added). Plaintiffs’ allegation here goes beyond design to alleged defects in materials and workmanship.

Further, the consolidated amended complaint alleges that something about FlowGuard Gold causes it to become brittle, shatter, and crack. (See e.g., id. , ¶¶ 4, 23, 109, PageID #181, 185, 208.) At this stage, Plaintiffs need not identify the precise defect. Discovery may reveal a design defect to which the express warranty will not extend. But Plaintiffs state a claim for breach of the 1999 limited warranty based on alleged defects in materials and workmanship.

VI.E. Additional Express Warranties

Charlotte Pipe argues that Plaintiffs cannot bring an express warranty claim based on the additional warranties created through Charlotte Pipe's "sales brochures, catalogs, website, and marketing materials" because there are no allegations Charlotte directed these statements to Plaintiffs or that the Joneses saw and relied on them before purchasing FlowGuard Gold. (ECF No. 30, PageID #464–65 (quoting ECF No. 17, ¶ 200).) In the consolidated amended complaint, Plaintiffs allege that they relied on the express warranties at issue. (ECF No. 17, ¶ 221, PageID #233.) Although the allegation is thin, one may infer from it that the Joneses relied on the warranty at issue. See supra , Ms. Martin's Claims Under Michigan Law § VI.E. Therefore, the Court will not dismiss on these grounds.

VI.F. Unconscionability

Charlotte Pipe argues that Plaintiffs’ claim for consequential and incidental damages fall outside the terms of its limited warranties and should be dismissed as a matter of law. (ECF No. 30, PageID # 467.) Plaintiffs counter that their allegations of unconscionability raise questions of fact that preclude dismissal. (ECF No. 35, PageID #695.) "[T]he determination of unconscionability is to be made by the court as a matter of law." Maxwell v. Fid. Fin. Servs., Inc. , 184 Ariz. 82, 907 P.2d 51, 56 (1995) (citations omitted). However, under Arizona law that determination requires some limited factual development. "[W]hen it is claimed that the contract is unconscionable, the parties must be given an opportunity to present evidence of its commercial setting, purpose, and effect to aid the court in making the determination." Id. (citation omitted). Therefore, a determining unconscionability may be appropriate at summary judgment, but is not appropriate where, as here, the record remains undeveloped. Id. Accordingly, the Court declines to make any determination related to unconscionability or available damages at this time.

VI.G. Statute of Repose

Lubrizol also argues that Arizona's statute of repose for contract claims related to the design of improvements to real property bars Plaintiff's express warranty claim. (ECF No. 27, PageID #319 n.10.) Notwithstanding Ohio's choice-of-law rules under which statutes of limitations are procedural, Phelps , 30 F.3d at 661, Ohio law treats statutes of repose as substantive, not procedural, for choice-of-law purposes. Therefore, the statute of repose of the State with the most significant relationship to the claim governs. See Clay v. AIG Aero. Ins. Servs. , No. 3:14 CV 2537, 2015 U.S. Dist. LEXIS 109590, at *16, 2015 WL 4986397, at *6–7 (N.D. Ohio Aug. 19, 2015) (applying Ohio's statute of repose after determining Ohio had the most significant relationship to the claims under Ohio's choice-of-law rules). However, Ohio's borrowing statute likely also applies to statutes of repose. Rose , 2020 WL 5210913, at *8. And Ohio's statute of repose forecloses a claim more than ten years after its first non-commercial delivery:

no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly,

or rebuilding of another product.

Ohio Rev. Code § 2305.10(C)(1).

Because the parties do not argue that Ohio's statute of repose applies, and because Arizona's statute of repose imposes a shorter time period than Ohio's, the Court assumes that Arizona law has the most significant relationship to the claims and applies the Arizona statute of repose. Section 12-552 of the Arizona Revised Statutes, titled "Actions involving development of real property design, engineering and construction of improvements," requires such claims be brought within eight years after substantial completion of the project. Ariz. Rev. Stat. § 12-552(A). However, Plaintiffs’ claims do not relate to real property design and engineering or construction of improvements. They do not allege defects in the construction of their house, but in the FlowGuard Gold pipes used in it. Accordingly, the Court determines the statute of repose Lubrizol cites does not apply.

VI.H. Statute of Frauds

Lubrizol argues that Arizona's statute of frauds bars Plaintiffs’ claims. (ECF No. 27, PageID #314.) Under Arizona law, contracts that are "not to be performed within one year of the making thereof" must be in writing and signed by the party against whom enforcement is sought. Ariz. Rev. Stat. § 44-101(5). As discussed, Plaintiffs allege the existence of several writings on which they base their express warranty claim against Lubrizol (see, e.g. , ECF No. 17, ¶¶ 77–82, PageID #202–03) and they do not pursue implied warranty claims that might trigger the statute of frauds (ECF No. 34, PageID #649). Therefore, the consolidated amended complaint does not implicate the statute of frauds.

VIII. Violation of Magnuson-Moss Warranty Act (Charlotte Pipe)

Plaintiffs bring a claim under the Magnuson-Moss Warranty Act against Charlotte Pipe. (ECF No. 17, ¶¶ 236–46, PageID #235–36.) This claim fails for the same reasons Ms. Martin's claim under the Act fails. See supra , Ms. Martin's Claims Under Michigan Law § VIII.

X. Unjust Enrichment (Lubrizol and Charlotte Pipe)

Plaintiffs allege that sales of FlowGuard Gold unjustly enriched Lubrizol and Charlotte Pipe. (ECF No. 17, ¶ 260, PageID #238.) To be granted restitution for unjust enrichment under Arizona law, a plaintiff "must demonstrate that [defendant] received a benefit, that by receipt of that benefit [defendant] was unjustly enriched at [plaintiff's] expense, and that the circumstances were such that in good conscience [defendant] should make compensation." Murdock-Bryant Constr. v. Pearson , 146 Ariz. 48, 703 P.2d 1197, 1202 (1985) (citations omitted).

Lubrizol and Charlotte Pipe argue that Ohio's six-year statute of limitations in Section 2305.07 of the Ohio Revised Code bars Plaintiffs’ unjust enrichment claim. (ECF No. 27, PageID #321; ECF No. 30, PageID #455.) Defendants argue the limitations period began when the Joneses’ purchased FlowGuard Gold during the 1999 construction of their home. Plaintiffs maintain that the claim did not accrue until the Joneses’ pipes and fittings failed in 2019. (ECF No. 34, PageID #658.)

Ohio's statute of limitations for unjust enrichment begins to run when money is unjustly retained, and the discovery rule does not toll the limitations period. See supra , Ms. Martin's Claims Under Michigan Law § X. Plaintiffs’ unjust enrichment claim accrued when the Joneses purchased their pipes in 1999. But they did not bring suit until 2020, well outside the six-year limitations period. Like Ms. Martin's unjust enrichment claim, this claim is time-barred.

XI. Fraudulent Concealment (Lubrizol and Charlotte Pipe)

Plaintiffs allege that Lubrizol and Charlotte Pipe "omitted and concealed from consumers material facts relating to the quality of FlowGuard Gold; specifically omitting that FlowGuard Gold was defective, did not meet industry standards, would prematurely fail, and otherwise was not as warranted and represented by Defendants and Thompson" Plastic. (ECF No. 17, ¶ 267, PageID #240.) Lubrizol and Charlotte Pipe argue this claim fails to satisfy the heightened pleading requirements of Rule 9(b). (ECF No. 27, PageID #330; ECF No. 30, PageID #479–80.)

In Arizona, fraudulent concealment occurs where a party "by concealment or other action intentionally prevents [another] from acquiring material information" in a transaction. Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund , 201 Ariz. 474, 38 P.3d 12, 34 (2002) (quoting Restatement (Second) of Torts § 550 (1976) ). Under Arizona law, the elements of fraudulent concealment under Arizona law are:

(1) the concealment of a material existing fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (3) ignorance of that fact on the part of the one from whom the fact is concealed; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages.

Hix v. Boston Sci. Corp. , No. CV-19-00422, 2019 WL 6003456, at *6 (D. Ariz. Nov. 14, 2019) (citing Coleman v. Watts , 87 F. Supp. 2d 944, 951–52 (D. Ariz. 1998) ). A party which has committed fraudulent concealment is liable "for pecuniary loss as though he had stated the nonexistence of the matter that the other [party] was thus prevented from discovering." Id. An affirmative duty to speak is not required to prove fraudulent concealment. Id. at 35. A party's actions that were "intended to conceal material facts are, if proven, sufficient" to establish fraudulent concealment. Id. at 36.

As Defendants argue, fraudulent concealment must be alleged with sufficient particularity to meet the heightened pleading requirements of Rule 9(b). Hix , 2019 WL 6003456, at *7. That is, they "must identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about the purportedly fraudulent statement, and why it is false." Id. (cleaned up). Further, "when the defendant is an entity, a complaint generally must also identify the person who made the false representations on behalf of the entity." Id. (citation omitted).

The Joneses contracted with a homebuilder in 1999, and FlowGuard Gold was installed in the home. The allegations of the consolidated amended complaint provide no basis to infer that the Joneses had any direct interaction with Defendants. To the extent Plaintiffs allege they viewed and relied on Defendants’ false marketing, Plaintiffs fail to identify any particular individuals who made the alleged misrepresentations or omissions. Nor do they provide the additional particulars Rule 9(b) requires. Failure to do so is grounds for dismissal. Hix , 2019 WL 6003456, at *7 (dismissing fraudulent concealment claim where the complaint only generally referred to misstatements the defendant entity made and not any particular individual). Therefore, the Court agrees with Defendants and dismisses Plaintiffs’ claim for fraudulent concealment.

XII. Arizona's Consumer Fraud Act (Lubrizol and Charlotte Pipe)

Plaintiffs bring a claim against Lubrizol and Charlotte Pipe under the Arizona Consumer Fraud Act. (ECF No. 17, ¶¶ 275–83, PageID #241–43.) They allege Defendants violated the Act by "disseminating false, deceptive and/or misleading information, by engaging in false, deceptive and/or misleading actions, and by concealing and/or omitting material facts in connection with the sale or advertisement of FlowGuard Gold." (Id. , ¶ 279, PageID #242.) They also allege Defendants violated the Act by misleading consumers about their warranties and warranty claims process. (Id. )

The Arizona Consumer Fraud Act prohibits the use of "any deception, deceptive or unfair act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact," if the person using one of these tactics intends for another to rely on these representations in connection with a sale or advertisement. Ariz. Rev. Stat. § 44-1522(A). This statutory prohibition applies regardless of whether the person intended to be deceived "has in fact been misled, deceived, or damaged thereby." Id. Put another way, to prevail on a claim under the Act, a plaintiff must show that (1) the defendant "committed a deceptive or fraudulent act in connection with the sale of merchandise," (2) the defendant intended for the plaintiff to rely on this act, and (3) the plaintiff "suffered a consequent and proximate injury" as a result. Howell v. Midway Holdings, Inc. , 362 F. Supp. 2d 1158, 1164 (D. Ariz. 2005).

Lubrizol and Charlotte Pipe argue that Plaintiffs’ fraud claim under the Act does not meet the heightened pleading standard of Rule 9. (ECF No. 27, PageID #331; ECF No. 30, PageID #480.) Rule 9(b) governs pleading claims under the Act. In re Banner Health Data Breach Litig. , No. CV-16-02696, 2017 WL 6763548, at *6 (D. Ariz. Dec. 20, 2017). Lubrizol argues that the consolidated amended complaint generally lacks particularity as to all of Plaintiffs’ fraud claims. (ECF No. 27, PageID #331.) Charlotte Pipe argues, in short, that Plaintiffs’ claim fails because they do not allege with particularity that they relied on any representations Charlotte Pipe made. Charlotte Pipe premises its position on the fact that the absence of any allegation on the part of the Joneses that they had direct interaction with the Charlotte Pipe about FlowGuard Gold. (ECF No. 30, PageID #480–81.)

Reliance is an element of a claim under the Act. Schellenbach v. GoDaddy.com, LLC , 321 F.R.D. 613, 624 (D. Ariz. 2017). Although reliance need not be reasonable, the plaintiff must have been actually exposed to the fraudulent statement or omission. Id. While Plaintiffs offer general allegations of reliance and describe the content of the alleged misrepresentations (see, e.g. , ECF No. 17, ¶ 281, PageID #242), they offer no details explaining when or where they saw Charlotte Pipe's or Lubrizol's alleged misstatements about the product. Even acknowledging that the Act does not require a direct consumer-merchant transaction (ECF No. 35, PageID #718) (citing Watts v. Medicis Pharma. Corp. , 239 Ariz. 19, 365 P.3d 944, 953 (2016) ), Plaintiffs allegations of reliance may satisfy the pleading standards of Rule 8 (if barely), but they do not meet the heightened requirements of Rule 9.

Plaintiffs’ passing reference to Defendants’ alleged misleading statements regarding their warranties and warranty claim process also cannot sustain a claim under Rule 9. Plaintiffs allege that the Joneses spoke with two Charlotte Pipe representatives, one named Kelly, the other unknown, when they attempted to make a warranty claim. (ECF No. 17, ¶ 28, PageID #186.) But they do not allege either Charlotte Pipe representative made a false or misleading statement. The allegations against Lubrizol are even more tenuous, with Plaintiffs merely alleging Lubrizol "has an active role in Charlotte's and Cresline's warranty process ...." (Id. , ¶ 105, PageID #207.) These allegations fall far below the standard Rule 9(b) requires. Therefore, the Court dismisses this claim as to Lubrizol and Charlotte Pipe, and the Court need not address Defendants’ other arguments on this claim.

XVI. Declaratory Judgment & Injunctive Relief (Lubrizol & Charlotte Pipe)

Plaintiffs seek a declaratory judgment and injunctive relief. (ECF No. 17, ¶¶ 315–23, PageID #249–51.) The Court declines to dismiss this count for the same reasons discussed in relation to Ms. Martin's claim. See supra , Ms. Martin's Claims Under Michigan Law § XVI.

MS. BAKER'S CLAIMS UNDER WASHINGTON LAW

Plaintiff Donna Baker is the first homeowner of a home in Washington. (ECF No. 17, ¶ 47, PageID #192.) During construction of her home in 2004, FlowGuard Gold was installed. (Id. , ¶ 48.) She brings claims against Charlotte Pipe and Lubrizol based on leaks in FlowGuard Gold in her living room wall in November 2018 and a bedroom in July 2020. (Id. , ¶¶ 49–50, PageID #192–93.) Charlotte Pipe and Thompson Plastics, a predecessor to Charlotte Pipe, manufactured Ms. Baker's plumbing. (Id. , ¶ 47, PageID #192.)

Successor Liability

As a threshold matter, Charlotte Pipe argues that Plaintiff's claims fail because they are based on a theory of successor liability for defective pipe and fittings Thompson Plastics manufactured, not Charlotte Pipe. (ECF No. 30, PageID #453.) Charlotte Pipe and Plaintiff agree that Washington law applies to this issue. (ECF No. 30, PageID #454; ECF No. 35, PageID #692 n.3.) "The traditional common law successor liability rule in Washington is that ‘a corporation purchasing the assets of another corporation does not, by reason of the purchase assets, become liable for the debts and liabilities of the selling corporation.’ " Gentle v. Portland Orthopaedics Ltd. , No. 2:16-CV-121, 2018 WL 771333, at *2 (E.D. Wash. Feb. 7, 2018) (quoting Martin v. Abbott Labs. , 102 Wash.2d 581, 689 P.2d 368, 384 (1984) ).

Plaintiff relies on the product-line exception to this general rule of successor liability. (ECF No. 35, PageID #692.) "To prove product line liability under Washington law, a plaintiff must show that the product line transferee: (1) has acquired virtually all of the transferor's assets; (2) holds itself out as a continuation of the transferor by producing the same product line under a similar name; and (3) benefits from the transferor's goodwill." Gentle , 2018 WL 771333, at *4 (citing Martin , 689 P.2d at 387 ). In addition, the predecessor corporation must be unavailable as a source for the plaintiff's remedy; and the successor corporation must have contributed to the predecessor's unavailability." Id. (citing Hall v. Armstrong Cork , 103 Wash.2d 258, 692 P.2d 787, 790–91 (1984) ).

Charlotte Pipe argues it is not subject to successor liability because it acquired only certain assets of Thompson Plastics and expressly excluded Thompson Plastics’ liabilities from the acquisition, leaving the liabilities with the seller. (ECF No. 30, PageID #454.) Charlotte Pipe directs the Court to the Asset Purchase Agreement dated December 20, 2004, which excludes liabilities for products manufactured by Thompson Plastics before January 1, 2005. (ECF No. 30-7, §§ 2.5 & 2.8, PageID #512–13 & 514.) In addition, Charlotte Pipe argues that it never sold or manufactured products with Thompson Plastics’ name or trademark and that Thompson Plastics "retained its liabilities and remained in existence as an Alabama corporation for another seven years after the [asset purchase] as demonstrated by the Alabama Secretary of State's website." (ECF No. 30, PageID #454–55.) Plaintiff does not object to the Court's consideration of the Asset Purchase Agreement, which the allegations of the consolidated amended complaint fairly implicate, making its consideration on a motion to dismiss appropriate. See Amini v. Oberlin College , 259 F.3d 493, 502 (6th Cir. 2001). Instead, Plaintiff maintains that the product-line exception to the general rule of successor nonliability makes Charlotte Pipe liable for the products Thompson Plastics manufactured that were used in Ms. Baker's home notwithstanding the language of the Asset Purchase Agreement. (ECF No. 35, PageID #692.)

Plaintiff alleges that "Charlotte is subject to successor liability for Thompson's actions and failure related to FlowGuard Gold." (Id. , ¶ 17, PageID #184.) Further, the consolidated amended complaint pleads that Charlotte Pipe acquired Thompson Plastics in 2004 and continues to manufacture FlowGuard Gold at the single plant Thompson Plastics used for that purpose. (ECF No. 17, ¶ 17, PageID #183–84.) According to Plaintiff, Charlotte Pipe also took control of Thompson Plastics’ website and operated it as its own until 2016. (Id. )

Plaintiff also alleges that when she submitted a warranty claim to Charlotte Pipe, a representative responded by deflecting responsibility to Thompson Plastic:

The fitting which caused the leak to occur has been identified as being manufactured by TPI (Thompson Plastics). TPI was a manufacturer of FlowGuard Gold CPVC pipe and fittings. Unfortunately, they are no longer in business. Charlotte Pipe did not produce this part; therefore, we cannot accept liability for your loss. Charlotte Pipe cannot examine the parts produced by other manufacturers.

(Id. , ¶ 53, PageID #193.) Plaintiff notes that the Charlotte Pipe representative "did not disclose to Baker that Charlotte had acquired Thompson and had taken over Thompson's sole manufacturing plant." (Id. ) Although the Asset Purchase Agreement excludes liability for certain products manufactured by Thompson (ECF No. 30-7, §§ 2.5(b)(iii) & 2.8, PageID #512 & 514), Plaintiff alleges that Charlotte Pipe and Thompson Plastics manufactured Ms. Baker's FlowGuard Gold (ECF No. 17, ¶ 48, PageID #192). Later, a representative of Charlotte Pipe "confirmed that Baker's FlowGuard Gold pipes were manufactured by Charlotte." (Id. , ¶ 53, PageID #193.)

Ultimately, the Asset Purchase Agreement may foreclose successor liability for Plaintiff's claim; however, at this stage of the proceedings, when the Court must credit Plaintiff's allegations, the consolidated amended complaint sufficiently alleges that (1) Charlotte Pipe acquired virtually all of Thompson Plastics’ assets—namely the sole facility at which it manufactured FlowGuard Gold; (2) produced the same product line under the same name; and (3) benefitted from the goodwill of Thompson Plastics. See Gentle , 2018 WL 771333, at *4 (citing Martin , 689 P.2d at 387 ). Moreover, Plaintiff has established some relationship between the two companies, which suffices to permit Ms. Baker's claims to survive dismissal and proceed on a theory of successor liability. See Deming v. First Franklin , No. 09-5418, 2010 WL 891009, at *3 (W.D. Wash. Mar. 9, 2010), modified on reconsideration on other grounds by Deming v. First Franklin , 2010 WL 2194830 (W.D. Wash., Apr. 23, 2010). For these reasons, at this stage, Plaintiff has adequately pled facts to support a theory of successor liability.

VI. Breach of Express Warranty (Lubrizol and Charlotte Pipe)

In her first cause of action (Plaintiff does not assert claims for negligence or strict liability in their various iterations), Plaintiff alleges that Charlotte Pipe "expressly warranted in writing that FlowGuard Gold is well-suited as plumbing material with a useful life matching the lifetime of the structure in which the FlowGuard pipes and fittings are installed (or ten (10) years for Charlotte FlowGuard Gold purchases after Charlotte dramatically decreased the length of its warranty)." (ECF No. 17, ¶ 196, PageID #229.) She claims that Charlotte Pipe's express written warranty extends to the future performance of FlowGuard Gold. (Id. , ¶ 197.) Plaintiff maintains that Charlotte Pipe breached its express written warranty by providing defective FlowGuard Gold and refusing to replace the leaking pipes. (Id. , ¶¶ 204 & 207, PageID #230–31.)

Plaintiff also alleges that Charlotte Pipe and Lubrizol "created additional express warranties for FlowGuard Gold through their sales brochures, catalogs, websites and marketing materials." (Id. , ¶ 200, PageID #230.) Based on those marketing materials, Plaintiff has sufficiently pled that Defendants created additional express warranties. See Wash. Rev. Code § 62(A).2-313; see also supra , Ms. Martin's Claims Under Michigan Law § VI.D. Plaintiff claims that Defendants breached these additional warranties by providing a defective product. (ECF No. 17, ¶ 202, PageID #230.)

I.A. Statute of Limitations

At Defendants’ request, (ECF No. 27, PageID #27; ECF No. 30, PageID #456), the Court examines whether Ohio's four-year statute of limitations in Section 1302.98 of the Ohio Revised Code bars Plaintiff's express warranty claim. FlowGuard Gold was installed in Ms. Baker's home in 2004. (ECF No. 17, ¶ 48, PageID #192.) Absent some exception, her claim accrued in 2004 and expired four years later in 2008, making her claim time-barred because she did not bring this lawsuit until 2020. See supra , Ms. Martin's Claims Under Michigan Law § VI.A.

I.A.1. Future Performance

Contrary to Plaintiff's arguments, (ECF No. 34, PageID #654–56; ECF No. 35, PageID #694–95), the future performance exception, see supra , Ms. Martin's Claims Under Michigan Law § VI.A.1., does not save her claim because the promise to replace defective goods does not amount to a guarantee of future performance.

Charlotte Pipe attached several express limited warranties to its motion to dismiss, but did not provide a written warranty effective in 2004. However, the warranties effective between 1999–2000, 2000–2002, 2005–2008, and 2008–2009 all promise to replace defective FlowGuard Gold. (ECF No. 30-3, PageID #495; ECF No. 30-4, PageID #497; ECF No. 30-5, PageID #499; ECF No. 30-6, PageID #501). More specifically, Charlotte's 1999, 2000, and 2005 warranties promise to replace defective FlowGuard Gold for "for as long as the [single family] residential dwelling is owned and occupied by the original owner." (ECF No. 3-3, PageID #495; ECF No. 30-4, PageID #497; ECF No. 30-5, PageID #499 (bracketed language not in the 1999 warranty (ECF No. 30-3)).) The future performance exception does not apply to this type of warranty. See supra , Ms. Martin's Claims Under Michigan Law § VI.A.1; see also supra , The Joneses’ Claims Under Arizona Law § VI.B.1. Presuming the warranty language effective in 2004 is substantially similar to that in the other warranties Charlotte Pipe provided, Plaintiff's claim for breach of express warranty based on delivery of a defective good is time-barred. If discovery shows this assumption is misplaced, Plaintiff may seek leave to amend this claim on this ground.

Like the other Plaintiffs’ claims, Ms. Baker's express warranty claims based on Lubrizol and Charlotte Pipe providing defective FlowGuard Gold in breach of additional written language in brochures, advertisements, and the like may proceed because the Court cannot discern whether the future performance exception applies without more specific warranty language before it. See supra , Ms. Martin's Claims Under Michigan Law § VI.A.1.a.; see also supra , The Joneses’ Claims Under Arizona Law § VI.B.1. And her claim that Charlotte Pipe breached its applicable written warranties by failing to repair or replace defective FlowGuard Gold also may also proceed. See supra , Ms. Martin's Claims Under Michigan Law § VI.A.1.b.

I.A.2. Equitable Estoppel

Next, the Court considers whether Plaintiff adequately pled equitable estoppel, which may prevent Defendants from asserting the limitations defense. See supra , Ms. Martin's Claims Under Michigan Law § VI.A.2. Like Ms. Martin and the Joneses, Ms. Baker fails to plead equitable estoppel and may not avoid the statute of limitations. Although Ms. Baker made a warranty claim in 2020, and Charlotte Pipe denied the claim, no factual allegations support the necessary element of the doctrine that Defendants actively concealed and misrepresented facts that prevented Ms. Baker from learning she had a claim. Id.

* * *

In sum, Plaintiff's claim that Charlotte Pipe breached an express written warranty by providing a defective product is time-barred under Charlotte Pipe's warranty, but is not time-barred as to any additional warranties that may have been created in brochures or other marketing materials. Her claims that Charlotte Pipe failed to replace the allegedly defective pipes under the alleged written express warranty may proceed. In addition, Plaintiff's claim that Lubrizol breached its alleged warranties may proceed.

I.B. Notice

Charlotte Pipe argues Ms. Baker failed to plead facts sufficient to put it on notice of the basis for her express warranty claim. (ECF No. 30, PageID #459.) Because FlowGuard Gold in Ms. Baker's home was presumably manufactured by Thompson Plastics, Charlotte's predecessor, and because the first amended complaint does not attach a written warranty applicable to FlowGuard Gold manufactured by Thompson Plastics, Charlotte argues Ms. Baker's claim is "vague and confusing." (Id. , PageID #460.) The Court declines to dismiss on these grounds.

Plaintiffs allege Ms. Baker's FlowGuard Gold was "designed and manufactured by Defendants Lubrizol and Charlotte and Thompson." (ECF No. 17, ¶ 48, PageID #192.) They also allege "Charlotte had acquired Thompson and had taken over Thompson's sole manufacturing plant." (Id. , ¶ 54.) The first amended complaint also makes clear that Ms. Baker's claim is based upon an alleged warranty made by Charlotte Pipe, not Thompson. (See id. , ¶¶ 97–99 & 103–04, PageID #206–07.)

I.C. Knowledge

Charlotte Pipe also argues Plaintiffs’ express warranty fails because there are no allegations Ms. Baker had knowledge of a Charlotte Pipe warranty made before her house was constructed. (ECF No. 30, PageID #460.) Charlotte relies on Touchet Valley Grain Growers v. Opp & Seibold Gen. Constr. , 119 Wash.2d 334, 831 P.2d 724, 731 (1992), which states that "[r]ecovery for breach of an express warranty is contingent on a plaintiff's knowledge of the representation." (citation omitted). The only remaining warranty claims against Charlotte that survive the statute of limitations are that Charlotte breached the written warranty by failing to replace defective FlowGuard Gold and otherwise breached the additional warranties. At this stage in the proceedings, and construing the facts in Plaintiffs’ favor, it is plausible that Ms. Baker was aware of the written and additional warranties and may pursue claim for breach.

VII. Breach of Implied Warranty of Merchantability (Charlotte Pipe)

For her implied warranty claim, Plaintiff alleges Charlotte Pipe warranted FlowGuard Gold "was of a quality that would pass without objection in the trade and was at least fit for the ordinary purposes for which such goods were used, and in all other respects were of merchantable quality." (ECF No. 17, ¶ 228, PageID #234.) However, FlowGuard Gold pipes and fittings "were not of merchantable quality and were defectively designed, as they embrittled, cracked, shattered, otherwise deteriorated and leaked and were unfit for the ordinary purposes for which they were designed and used." (Id. , ¶ 231.)

Charlotte Pipe argues Ohio's statute of limitations bars Plaintiff's implied warranty claim. (ECF No. 30, PageID #457.) Ohio's applicable limitations period is four years. Ohio Rev. Code § 1302.98(A) – (B). Under Ohio law, a cause of action for breach of an implied warranty accrues "when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach." Id. at § 1302.98(B). In other words, "the statute of limitations begins running at the time of the transaction and not on the date that the defect manifested and caused damage." In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig. , 880 F. Supp. 2d 801, 866 (S.D. Ohio 2012) (citing Val Decker Packing Co. v. Corn Prods. Sales Co. , 411 F.2d 850, 851 (6th Cir. 1969) ). The future performance exception does not apply to implied warranties and cannot toll the limitations period. Allen , 913 F. Supp. 2d at 504 (citations omitted).

Here, the transaction at issue occurred sometime in or around 2004; therefore, Plaintiff's implied warranty claim expired four years later in 2008. Because she did not bring suit until 2020, her implied warranty claim based is time-barred.

IX. The Washington Products Liability Act (Lubrizol and Charlotte Pipe)

Plaintiff alleges that Charlotte Pipe and Lubrizol violated the Washington Products Liability Act in several ways. Under the Act, Plaintiff brings claims based on "strict liability, negligence, breach of express and implied warranty; failure to warn; misrepresentation, concealment, or nondisclosure." (ECF No. 17, ¶ 252, PageID #237.) The Act "is the exclusive remedy for product liability claims ... [and] supplants all common law claims or actions based on harm caused by a product." Blangeres v. United States Seamless, Inc. , 725 F. App'x 511, 514 (9th Cir. 2018) (quoting Macias v. Saberhagen Holdings, Inc. , 175 Wash.2d 402, 282 P.3d 1069, 1073 (2012) ) (alteration in original). Under the Act, a product liability claim includes "any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product." Staton Hills Winery Co., Ltd. v. Collons , 96 Wash.App. 590, 980 P.2d 784, 786 (1999) (quoting Wash. Rev. Code § 7.72.010(4) ).

The Act codifies Washington's version of the economic loss doctrine and "confines recovery to physical harm of persons and property and leaves economic loss, standing alone, to the Uniform Commercial Code." Touchet Valley , 831 P.2d at 733. A "plaintiff may recover for harm caused by defective products but cannot recover for economic losses." King Cnty. v. Viracon, Inc. , No. 2:19-cv-508, 2019 WL 12043501, at *2 (W.D. Wash. Dec. 4, 2019) (citing Wash. Rev. Code § 7.72.010(6) ; Touchet Valley , 831 P.2d at 733 ). In addition, "harm" under the Act "does not include direct or consequential economic loss ...." Wash. Rev. Code § 7.72.010(6).

The parties disagree whether Washington's economic loss doctrine bars Plaintiff's tort claims under the Act. (ECF No. 27, PageID #310; ECF No. 30, PageID #475; ECF No. 34, PageID #644; ECF No. 35, PageID #711.) Washington courts evaluate economic loss in various ways, including the "other property" rule and two different frameworks that analyze risk of harm. The Court considers each below and determines that Washington's economic loss doctrine bars Plaintiff's tort claims under the Act.

IX.A. Damage to Other Property

Plaintiff argues that Washington's economic loss rule does not bar her claims because she alleged damage to property other than the FlowGuard Gold itself. She relies on Frisvold v. Pentair Filtration , No. C17-136, 2017 WL 3236972, at *2 (W.D. Wash. July 31, 2017), and Staton Hills Winery Co., Ltd. v. Collons , 96 Wash.App. 590, 980 P.2d 784, 787 (1999). Frisvold addressed the pleading standard for claims under the Washington Products Liability Act and does not discuss or even mention the economic loss rule. In Staton Hills Winery , the winery alleged that the defendants sold it a defective storage tank that resulted in spoiled wine. 980 P.2d at 786. The court held that the economic loss doctrine barred the winery's claims. Id. at 791.

Staton Hills does not support Plaintiff's argument because the spoiled wine, like the damage to Ms. Baker's home Plaintiff alleges, was property separate from the allegedly defective product, yet the economic loss doctrine still applied. As Charlotte Pipe points out, Staton Hills relied on authority from the Washington Supreme Court declining to adopt a bright-line rule precluding the Act's coverage of harm to "other property." Id. at 790 (citing Washington Water Power Co. v. Graybar Elec. Co. , 112 Wash.2d 847, 774 P.2d 1199, 1209 (1989) ).

IX.B. Washington's Risk-of-Harm Analysis

Rather than relying exclusively on an "other property" rule, Washington courts conduct a "risk of harm" analysis to determine whether the economic loss doctrine bars a plaintiff's damages. Hofstee v. Dow , 109 Wash.App. 537, 36 P.3d 1073, 1077 (2001). As a part of this analysis, Washington courts employ both an evaluative approach and the sudden-and-dangerous test. King Cnty. , 2019 WL 12043501, at *9 (citing Touchet Valley , 831 P.2d at 733 ; Moodie v. Remington Arms Co. , No. C13-0172, 2013 WL 12191352, at *7 (W.D. Wash. 2013) ). The Court determines that Plaintiff's claim satisfies neither.

IX.B.1. The Sudden-and-Dangerous Test

Most Washington courts apply the sudden-and-dangerous test, which focuses on the "manner in which the product failure has occurred." Touchet Valley , 831 P.2d at 751. "If the failure is the result of a sudden and dangerous event, it is remediable under tort principles. If no such event has occurred, the product failure is deemed economic loss." Id. (citation omitted). Plaintiff argues that Ms. Baker's pipes suffered two "calamitous burstings" as opposed to gradual leaking, providing a remedy in tort under Washington law under this test. (ECF No. 34, PageID #645 (citation and quotation omitted).) Lubrizol counters that gradual degradation in the pipes that led to leaks after fourteen years cannot constitute a sudden and dangerous event as a matter of Washington law.

Construing the allegations in Plaintiff's favor, she has not pled facts making Ms. Baker's leaking pipes a sudden and dangerous event. The second of the leaks Ms. Baker experienced was not catastrophic. (Id. , ¶ 50, PageID #192–93.) According to the consolidated amended complaint, she smelled a musty odor then found mold, and a contractor discovery a leaking FlowGuard Gold fitting. (Id. ) Although the first leak may appear more sudden, resulting in damage to a wall (ECF No. 17, ¶ 49, PageID #192), even assuming it was, this leak would not count as catastrophic either. For one thing, to give rise to potential tort liability, the product failure alleged must present at least a real risk of personal injury. See Touchet Valley , 831 P.2d at 734–35. No such allegation appears directly or by inference in the consolidated amended complaint. Accordingly, the Court agrees with Lubrizol that Plaintiff's tort claims fail under the sudden-and-dangerous test.

IX.B.2. Evaluative Test

Under Washington's evaluative approach, courts consider (1) the nature of the defect, (2) the type of risk, and (3) the manner in which the injury arose. Touchet Valley , 831 P.2d at 733. Each of these factors shows that the economic loss doctrine applies here.

First , in evaluating the nature of the defect, courts examine whether the product failed to meet the purchaser's expectations, through a gradual internal deterioration, for example, or whether it was generally defective; that is, whether it suddenly leaked, exploded, or came apart, such as in a violent collision. Staton Hills Winery , 980 P.2d at 788 ; Touchet Valley , 831 P.2d at 734. No facts alleged suggest Ms. Baker's pipes burst suddenly as in a violent collision.

Second , courts consider "whether the risk was foreseeable, whether the purchaser had bargaining power to reduce the risk, and whether the risk was to persons or property." Nobl Park, L.L.C. v. Shell Oil Co. , 122 Wash.App. 838, 95 P.3d 1265, 1272 (2004) (citing Staton Hills Winery , 980 P.2d at 788–89 ). Plaintiff does not allege FlowGuard Gold was a threat to persons, although it did damage Ms. Baker's home. Mensonides Dairy, Ltd. Liab. Co. v. Agri-King Nutrition, Inc. , No. 1:16-cv-03067, 2017 WL 8777386, at *4 (E.D. Wash. Dec. 27, 2017) (noting that the economic loss exclusion can apply where other property was damaged) (citations omitted). It was foreseeable that FlowGuard Gold might leak in the future, even within its expected effective life. Id. This factor weighs in favor of finding economic harm and barring Ms. Baker's tort claims.

Third , courts considers "whether the defect arose gradually by stealth or whether it was obvious after initial use." Nobl Park , 95 P.3d at 1272 (citing Staton Hills Winery , 980 P.2d at 789 ). This factor "could readily incorporate the sudden and dangerous test discussed above." Touchet Valley , 831 P.2d at 734. Based on the analysis under the sudden-and-dangerous test, the third factor weighs against permitting Plaintiff's tort claims.

* * *

Under both tests Washington courts employ to analyze risk of harm, Plaintiff's injury is economic, and she may not pursue her claims in tort for such harm. Therefore, the Court dismisses her claim under the Washington Products Liability Act.

IX.C. Independent Duty Rule

In 2010, the Washington Supreme Court deemed the economic loss rule a "misnomer" and introduced the independent duty rule. Eastwood v. Horse Harbor Found., Inc. , 170 Wash.2d 380, 241 P.3d 1256, 1261 (2010). The Eastwood Court did not overrule Washington's case law regarding the economic loss doctrine. Instead, it attempted to "clarif[y] the doctrine by requiring consideration of ‘whether the injury is traceable also to a breach of a tort law duty of care arising independently of the contract.’ " Donatelli v. D.R. Strong Consulting Eng'rs, Inc. , 163 Wash.App. 436, 261 P.3d 664, 669 (2011) (quoting Eastwood , 241 P.3d at 1264 ). The independent duty rule has led to split opinions among courts and confusion among litigants. See generally Margaret Wykowski, Comment, Clarifying Washington's Approach to the Independent Duty Doctrine , 95 Wash. L. Rev. 1091 (2020). Perhaps for that reason, the parties do not raise the independent duty rule; therefore, the Court has no occasion to consider it.

X. Unjust Enrichment (Lubrizol and Charlotte Pipe)

Like the other Plaintiffs, Ms. Baker alleges that her purchase of FlowGuard Gold unjustly enriched Charlotte Pipe and Lubrizol. (ECF No. 17, ¶¶ 258–64, PageID #238–39.) Under Washington law, the elements of a claim for unjust enrichment are the same as those in Michigan and Arizona. The plaintiff must prove "a benefit conferred upon the defendant by the plaintiff; an appreciation or knowledge by the defendant of the benefit; and the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without the payment of its value." Young v. Young , 164 Wash.2d 477, 191 P.3d 1258, 1262 (2008) (quotation omitted).

Lubrizol and Charlotte Pipe argue that Ohio's six-year statute of limitations bars Plaintiff's unjust enrichment claim. (ECF No. 27, PageID #321–22; ECF No. 30, PageID #455–56.) FlowGuard Gold was installed in Ms. Baker's home during its construction in 2004, which means the limitations period to bring her claim expired in 2010. For the reasons already discussed, the Court rejects Plaintiff's arguments regarding the statute of limitations, which bars this claim. See supra , Ms. Martin's Claims Under Michigan Law § X.; see also supra , The Joneses’ Claims Under Arizona Law § X. In addition, because the unjust enrichment claim relates to the sale of a product, it is subsumed by the Washington Products Liability Act and fails as an individual claim. Blangeres , 725 F. App'x at 514 (citing Macias , 282 P.3d at 1073–74 ; Graybar Elec. , 774 P.2d 1199, 1204 n.4 ).

XI. Fraudulent Concealment (Lubrizol and Charlotte Pipe)

Ms. Baker makes the same fraudulent concealment claim as the other Plaintiffs. (ECF No. 17, ¶¶ 265–74, PageID #239–41.) Under Washington law, a claim for fraudulent concealment requires a duty to disclose. Wetzel v. CertainTeed Corp., No. C16-1160, 2019 WL 3976204, at *4 (W.D. Wash. Mar. 25, 2019) (citing Colonial Imports, Inc. v. Carlton Nw. , 121 Wash.2d 726, 853 P.2d 913, 917 (1993) ). A special relationship gives rise to a duty to disclose material facts. Id. But "absent a special relationship between the parties, a defendant's failure to disclose the existence of a defect to the plaintiff is insufficient to establish a claim for fraudulent concealment." Id. (quotations omitted); see also Rodman v. Ethicon, Inc. , No. C20-6091, 2021 WL 2434521, at *6 (W.D. Wash. June 15, 2021).

In Wetzel , the plaintiffs were the third owners of a home on which the defendant's roof shingles were installed. Id. at *2. They alleged the shingles "experienced problems, including premature degranulation, balding, and leaking." Id. at *3. On summary judgment, the court held that there was "no fiduciary, quasi-fiduciary, or other special relationship" between the plaintiff homeowners and the defendant manufacturer and, therefore, no duty to disclose. Id. at *5. Central to the court's decision was that the defendant manufacturer sold "its shingles to wholesalers and not directly to homeowners." Id. at *1, 5.

Even construing the allegations in Plaintiff's favor, the allegations of the second amended complaint do not support a conclusion of a special relationship of any sort between Ms. Baker and Defendants under Washington law. Plaintiff alleges that Defendants "were and are in a position of superiority to Plaintiffs" and, therefore, had a duty to disclose the "actual quality of the FlowGuard Gold pipes and fittings." (ECF No. 17, ¶ 268, PageID #240.) But Wetzel makes plain that a position of superiority alone does not create a special relationship sufficient to impose a duty to disclose. Rather, some direct transaction between a plaintiff and a defendant is required. See Wetzel , 2019 WL 3976204, at *5 (relationship between manufacturer of plaintiff's roof shingles "too tenuous" to support a duty to disclose); Rodman , 2021 WL 2434521, at *6 (noting that a medical manufacturer has a duty to warn the medical profession, but not the user or patient).

Beyond that conclusory allegation regarding the relationship between Ms. Baker and Defendants, the consolidated amended complaint offers little support that Defendants may have had some direct relationship with Ms. Baker. For example, Plaintiff alleges that Lubrizol licenses FlowGuard Gold to Charlotte Pipe and Cresline Plastic and "works in conjunction with them to develop and create FlowGuard Gold." (Id. , ¶ 19, PageID #184; see also id. , ¶ 74, PageID #201.) This allegation makes Lubrizol like the defendant in Wetzel in that it does not sell directly to homeowners, Ms. Baker included. Accordingly, the consolidated amended complaint does not allege any special relationship between Lubrizol and Ms. Baker.

Nor is the outcome different for Charlotte Pipe. The consolidated amended complaint describes Ms. Baker as the first owner of her home and states that FlowGuard Gold was installed in her home during its construction. (ECF No. 17, ¶¶ 47–48, PageID #192.) Also, no allegation suggests that Ms. Baker directly purchased FlowGuard Gold from Charlotte Pipe or that she and Charlotte Pipe ever interacted. Rather, Plaintiff alleges that FlowGuard Gold pipes and fittings were installed in Ms. Baker's home during its construction. (Id. , ¶ 48, PageID #192.) Where, as here, the allegations give no indication that Plaintiff and Defendants had any direct transaction with one another, Washington law forecloses the existence of a special relationship that would give rise to a duty to disclose that might support a claim for fraudulent concealment.

XIV. Washington Consumer Protection Act (Lubrizol and Charlotte Pipe)

Plaintiff alleges that Charlotte Pipe and Lubrizol violated Washington's Consumer Protection Act, Section 19.86.010(1) of the Washington Revised Code, by their "acts, omissions, misrepresentations and statements" and by their "improper warranty claim denials or obstruction[.]" (ECF No. 17, ¶ 300, PageID #246.) The Act provides that "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce" are unlawful. Wash. Rev. Code § 19.86.020. To state a claim for relief under the Act, Plaintiff must allege "(1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a person's business or property, and (5) causation." Young v. Toyota Motor Sales, U.S.A. , 196 Wash.2d 310, 472 P.3d 990, 994 (2020) (quotation and citation omitted). Lubrizol and Charlotte Pipe both argue, in some form, that the connection between their alleged violations and Plaintiff's injuries is too tenuous to survive dismissal. (ECF No. 27, PageID #324; ECF No. 30, PageID #482.)

To withstand a Rule 12(b)(6) motion, claims under the Act must satisfy the heightened pleading requirements of Rule 9(b). King Cnty. , 2019 WL 12043501, at *5 (citing Vess v. Ciba-Geigy Corp. USA , 317 F.3d 1097, 1103–04 (9th Cir. 2003) ). Plaintiff alleges two theories for her claim. She claims that Defendants violated the Act, first, by misrepresenting FlowGuard Gold in its various marketing materials and, second, through their "improper warranty claim denials or obstruction." (ECF No. 17, ¶ 300, PageID #246.) Viewing the facts in Ms. Baker's favor, she fails to allege sufficient facts to state a claim under the Act.

Regarding the first, she alleges Charlotte Pipe and Lubrizol misrepresented the true nature of FlowGuard Gold in marketing materials to the public and that those misrepresentations caused her alleged damages. (ECF No. 17, ¶¶ 3, 73, 78–82, 84–89, PageID #181 & 201–04). Defendants’ marketing materials about FlowGuard Gold were widely distributed by print or the internet and, if false, may have deceived a substantial portion of the public. But the causation element requires a showing that "but for the defendant's unfair or deceptive act or practice the plaintiff's injury would not have occurred as a matter of fact." Young , 472 P.3d at 996 (quotation and citation omitted). On that element, Plaintiff falls short of the pleading standard. To cause Plaintiff's injury, any misrepresentation must have been made in 2004 (or earlier), before FlowGuard Gold was installed in Ms. Baker's home. Many of the alleged misrepresentations Plaintiff identifies appeared on Lubrizol's and Charlotte Pipe's websites in 2020. (See ECF No. 17, ¶¶ 76–96, PageID #202–05.) The consolidated amended complaint leaves open the possibility that the statements were available to Plaintiff before 2020, but that possibility does not satisfy the pleading standard under Rule 9(b).

Plaintiff also alleges Defendants violated the Act through their "improper warranty claim denials or obstruction ...." (ECF No. 17, ¶¶ 51–53, 300, PageID #193 & 246.) Plaintiff alleges that Lubrizol takes an active role in Charlotte Pipe's warranty process and submits "Technical Documents" to Charlotte that "often list specious excuses for the premature failure of FlowGuard Gold." (ECF No. 17, ¶ 105, PageID #207.) But there is no indication that Lubrizol was involved in Charlotte Pipe's denial of Ms. Baker's warranty claim and Charlotte Pipe denied Ms. Baker's warranty claim on the ground that her FlowGuard Gold was manufactured by Thompson Plastics. (Id. , ¶ 52, PageID #193.) In addition, Charlotte Pipe correctly points out that "[m]ere failure to repair warranty items to the buyer's satisfaction or breach of a private contract does not establish a ... violation" of the Act. (ECF No. 30, PageID #482) n.24 (quoting Burbo v. Harley C. Douglass, Inc. , 125 Wash.App. 684, 106 P.3d 258, 267 (2005) ). Plaintiff does not counter this point, focusing instead on Charlotte Pipe's alleged failure to disclose known defects to Ms. Baker. (ECF No. 35, PageID #720.) For these reasons, the Court dismisses Plaintiff's claim on this second theory against both Lubrizol and Charlotte Pipe.

XVI. Declaratory and Injunctive Relief (Charlotte Pipe and Lubrizol)

Ms. Baker makes the same claim for declaratory and injunctive relief as the other Plaintiffs. Her claim survives for the reasons already discussed. See supra , Ms. Martin's Claims Under Michigan Law § XVI.

MR. COCHRANE'S CLAIMS UNDER MASSACHUSETTS LAW

Plaintiff Douglas Cochrane is the first owner of his home in Massachusetts. FlowGuard Gold designed and manufactured by Lubrizol and Charlotte Pipe was installed during the 2008 construction of Mr. Cochrane's home. (ECF No. 17, ¶¶ 33–34, PageID #188.) His pipes first leaked in June 2019 in the basement. (Id. , ¶ 35.) The pipes suffered five more leaks between August 2019 and May 2020. (Id. , ¶ 37, PageID #37.) All leaks damaged Mr. Cochrane's home. (Id. , ¶¶ 35, 37, PageID #188–89.)

I. Negligence (Lubrizol and Charlotte Pipe)

Plaintiff asserts a negligence claim against Lubrizol and Charlotte Pipe. As with the other Plaintiffs’ tort claims, the Court begins its analysis with a discussion of the applicable economic loss doctrine, which Defendants argue bars Plaintiff's tort claims. (ECF No. 27, PageID #310–11; ECF No. 30, PageID #475–76.)

"Massachusetts courts have defined economic loss as ‘damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits without any claim of personal injury or damage to other property.’ " Sebago, Inc. v. Beazer East, Inc. , 18 F. Supp. 2d 70, 89 (D. Mass. 1998) (quoting Marcil v. John Deere Indus. Equip. Co. , 9 Mass.App.Ct. 625, 403 N.E.2d 430, 434 n.3 (1980) ). In Massachusetts, "the economic loss doctrine provides that purely economic losses are not recoverable in negligence and strict liability actions in the absence of personal injury or damage to property other than the product itself." Id. at 89 (citations omitted). The doctrine applies not only to claims for negligence and strict liability, but also to claims for breach of the implied warranties of merchantability and fitness. Cruickshank v. Clean Seas Co. , No. 03-11659, 2006 U.S. Dist. LEXIS 98734, at *17 (D. Mass. June 23, 2006) (citing Guzman v. MRM/Elgin , 409 Mass. 563, 567 N.E.2d 929, 932 (1991) ).

When deciding whether the doctrine bars tort claims, courts first identify the relevant product and the other property then determine whether the plaintiff alleges damage to the other property. Sebago , 18 F. Supp. 2d at 90. The relevant product is defined from the purchaser's perspective. Id. at 92 ; AcBel Polytech, Inc. v. Fairchild Semiconductor Int'l, Inc. , No. 13-13046, 2014 WL 4656608, at *6, 2014 U.S. Dist. LEXIS 129259, at *15 (D. Mass. Sept. 12, 2014). Here, Mr. Cochran contracted with homebuilders for the construction of a house. (ECF No. 17, ¶ 34, PageID #188.) Presumably, installation of FlowGuard Gold was part of that transaction. Accordingly, the relevant product is the house, not the FlowGuard Gold pipes. See Sebago, 18 F. Supp. 2d at 92 ("Because Sebago purchased a building from its former owners, the building is the relevant product for purposes of the economic loss doctrine.").

Relying on AcBel Polytech , 2014 WL 4656608, at *2-3, 2014 U.S. Dist. LEXIS 129259, at *6, Plaintiff argues that the economic loss doctrine does not apply because different entities manufactured FlowGuard Gold than built the house. (ECF No. 35, PageID #711.) Plaintiffs’ argument is misplaced. In Acbel Polytech , as in Sebago , the court identified the property from the purchaser's perspective. Acbel Polytech , 2014 WL 4656608, at *5-6, 2014 U.S. Dist. LEXIS 129259, at *14–15. Because the purchaser in Acbel Polytech separately contracted for the component part from a different manufacturer than the final product, the component part was the product for determining whether the economic loss doctrine barred the plaintiff's tort claims. Id. Here, in contrast, Mr. Cochrane contracted to buy the house, not the plumbing, and no allegation in the consolidated amended complaint suggests otherwise. From his perspective, both Sebago and Acbel Polytech dictate that the relevant product is the house, not the FlowGuard Gold pipes and fittings. This outcome aligns with the principles underlying the economic loss doctrine because the mere failure of a product to function properly traditionally falls within the purview of contract law, as opposed to exposure to risk from a hazardous product, which tort law traditionally addresses. Sebago , 18 F. Supp. 2d at 89.

Mr. Cochrane claims FlowGuard Gold damaged his home. (ECF No. 17, ¶¶ 35, 37, PageID #188–89.) Because the home is the relevant product and Plaintiff has not identified property injured other than the house, the economic law doctrine bars Plaintiff's claims for negligence (Count I), negligent failure to warn (Count II), and breach of the implied warranty of merchantability, to the extent it is brought as a tort claim (Count VII).

II. Negligent Failure to Warn (Lubrizol and Charlotte Pipe)

Under Massachusetts law, the economic loss doctrine bars Plaintiff's negligent failure to warn claim.

VI. Breach of Express Warranty (Lubrizol and Charlotte Pipe)

Mr. Cochrane's breach of express warranty claim resembles that of Ms. Baker. He claims Lubrizol and Charlotte Pipe breached express warranties made in "sales brochures, catalogs, websites and marketing materials" by providing a defective product. (ECF No. 17, ¶¶ 200 & 202, PageID #230.) For the reasons already discussed, see, e.g. , supra , Ms. Baker's Claims Under Washington Law § VI, Plaintiff's claim against Lubrizol and Charlotte Pipe under the additional express warranties allegedly created in various marketing materials may proceed. The allegations regarding Defendants’ statements about FlowGuard Gold are sufficiently specific to avoid dismissal as mere puffery. See Bessette v. IKO Indus. , No. 4:19-cv-40017, 2020 WL 6110943, at *3-4, 2020 U.S. Dist. LEXIS 193009, at *8–9 (D. Mass. Aug. 18, 2020) (describing a roof shingle as a "30-year shingle" without any other promise regarding the quality of the product was not sufficient to create an express warranty).

Plaintiff claims Charlotte Pipe breached its express written warranty by (1) providing a defective product, and (2) failing to replace the defective product pursuant to the terms of Charlotte Pipe's written limited warranty. (Id. , 196–97, 199, 205 & 207, PageID #229–31.) Plaintiff does not identify the exact written warranty he claims applies, but that is not grounds for dismissal, considering the complaint as a whole. See Mass. Gen. Laws ch. 106, § 2-313(1) ; see, e.g. , supra , Ms. Martin's Claims Under Michigan Law § VI.A.1.a. Charlotte Pipe identifies two limited warranties that may have been in effect in 2008, when FlowGuard Gold was installed in Mr. Cochrane's house. (ECF No. 30-5; ECF No. 30-6.) The first guarantees that the product "will be free from manufacturing defects and conform to currently applicable ASTM standards under normal use and service for as long as the single family residential dwelling is owned and occupied by the original owner ...." (ECF No. 30-5, PageID #499.) The second provides the same guarantee, but only "for a period of ten years." (ECF No. 30-6, PageID #501.)

VI.A. Statute of Limitations

Charlotte Pipe argues that Ohio's four-year statute of limitations bars Plaintiff's express warranty claim based on either of these 2008 limited warranties. (ECF No. 30, PageID #456–57.) Under either, the limitations period expired in 2012, unless the future performance exception or equitable estoppel applies. For the same reasons already discussed, the Court finds neither exception applies. Both 2008 limited warranties promise to replace or defective FlowGuard Gold or provide a credit. (ECF No. 30-5, PageID #499; ECF No. 30-6, PageID #501.) The future performance exception does not apply to that type of promise. See supra , Ms. Martin's Claims Under Michigan Law § VI.A.1.

Also, Plaintiff has not alleged sufficient facts to support tolling based on equitable estoppel. He communicated with a Charlotte Pipe representative, who allegedly informed him his FlowGuard Gold failed due to the "presence of foreign, incompatible chemicals," not a manufacturing defect. (ECF No. 17, ¶ 39, PageID #189.) Although Charlotte denied his warranty claim, Defendants did not conceal information that would have prevented him from bringing a lawsuit earlier than he did.

* * *

In sum, Plaintiff's express warranty claim against Lubrizol and Charlotte Pipe based on the alleged express warranties made in various marketing materials may proceed. In addition, his claim that Charlotte Pipe breached the applicable limited warranty by failing to replace defective FlowGuard Gold may proceed. His claim that Charlotte Pipe breached the limited warranties by providing defective FlowGuard Gold is time-barred.

VI.B. Reliance

Reliance is an element of an express warranty claim, Taupier v. Davol, Inc. , 490 F. Supp. 3d 430, 438 (D. Mass. 2020), and Lubrizol and Charlotte Pipe argue that there are no allegations that Mr. Cochrane relied on the marketing materials that allegedly created warranties (ECF No. 27, PageID #319–20; ECF No. 30, PageID #466–67). As previously discussed, although the allegations regarding reliance in the consolidated amended complaint are thin, at this stage of the pleading Plaintiff sufficiently pleads reliance, if barely. See supra , Ms. Martin's Claims Under Michigan Law § VI.D.2.

VI.C. Design Defects

Charlotte Pipe contends that Plaintiff's express warranty claim fails because the 2008 limited warranties extend to manufacturing defects, but not design defects. (ECF No. 30, PageID #466.) Charlotte Pipe makes this same argument with respect to the Joneses’ express warranty claims under Arizona law (ECF No. 30, PageID #463), and Charlotte Pipe provides no basis for thinking Massachusetts law materially differs on this point.

The 2008 limited warranties do not only extend to manufacturing defects, but also promise FlowGuard Gold will conform to "currently applicable ASTM standards." (ECF No. 30-5, PageID#499; ECF No. 30-6, PageID #501; see also ECF No. 17, ¶ 99, PageID #206.) As previously discussed regarding the Joneses’ claim under Arizona law, the type of flaws Plaintiff alleges—that FlowGuard Gold prematurely embrittles, cracks, and leaks—could be the result of manufacturing defects or defects contrary to ASTM standards, including design defects. Discovery may bear out Charlotte Pipe's argument, but that is an issue for another day. Accordingly, the Court rejects this argument for the same reasons the argument fails under Arizona law. See supra , the Joneses’ Claims Under Arizona Law § VI.D.

VII. Breach of Implied Warranty of Merchantability (Charlotte Pipe)

Under Massachusetts law, the economic loss doctrine bars Plaintiff's claim for breach of the implied warranty of merchantability. Additionally, Charlotte Pipe argues that Ohio's statute of limitations bars the claim. (ECF No. 30, PageID #457.) Ohio's statute of limitation for an implied warranty based in contract is four years. Ohio Rev. Code § 1302.98(A) – (B). A cause of action accrues "when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach." Id. § 1302(B). The transaction related to Mr. Cochrane's FlowGuard Gold occurred sometime in 2008. Therefore, the limitations period expired in 2012, but he did not bring suit until 2020. Therefore, this claim is time-barred.

VIII. Violation of the Magnuson Moss Warranty Act (Charlotte Pipe)

Plaintiff brings a claim under the Magnuson-Moss Warranty Act against Charlotte Pipe. (ECF No. 17, ¶¶ 236–46, PageID #235–36.) This claim fails for the same reasons Ms. Martin's and the Joneses’ claims under the Act fail. See supra , Ms. Martin's Claims Under Michigan Law § VIII.; the Joneses’ Claims Under Arizona Law § VIII.

X. Unjust Enrichment (Lubrizol and Charlotte Pipe)

Under Massachusetts law, unjust enrichment requires the following elements: "(1) an enrichment; (2) an impoverishment; (3) a relation between the enrichment and the impoverishment; (4) an absence of justification and (5) the absence of a remedy provided by law." Dialogo, LLC v. Bauza , 456 F. Supp. 2d 219, 227 (D. Mass. 2006) (citation omitted). Lubrizol and Charlotte Pipe argue that Ohio's six-year statute of limitations in Section 2305.07 of the Ohio Revised Code Section 2305.07 bars Plaintiff's unjust enrichment claim. (ECF No. 27, PageID #321–22; ECF No. 30, PageID #456.) Defendants are correct. The benefit conferred to Defendants occurred on the purchase of FlowGuard Gold, which could not have been later than 2008 when FlowGuard Gold was installed in Mr. Cochrane's house. (ECF No. 17, ¶ 35, PageID #188.) But Plaintiff did not bring this lawsuit until 2020. Accordingly, Plaintiff's unjust enrichment claim comes several years too late and is time-barred. See supra , Ms. Martin's Claims Under Michigan Law § X.

XII. Fraudulent Concealment (Lubrizol and Charlotte Pipe)

Like the other Plaintiffs, Mr. Cochrane asserts an independent cause of action for fraudulent concealment. (ECF No. 17, ¶¶ 265–74, PageID #239–41.) In Massachusetts, however, fraudulent concealment is a tolling doctrine, not an independent claim. Niedner v. Ortho-McNeil Pharm., Inc. , 90 Mass.App.Ct. 306, 58 N.E.3d 1080, 1087 n.7 (2016) ; Epstein v. C.R. Bard, Inc. , No. 03-12297, 2004 WL 1598912, at *2 (D. Mass. July 19, 2004) (citation omitted). Accordingly, the Court dismisses Plaintiff's claim for fraudulent concealment. XIII. Violation of Massachusetts General Laws (Lubrizol & Charlotte Pipe)

Plaintiff alleges that Lubrizol and Charlotte Pipe violated several provisions of Massachusetts’ consumer protection act, Chapter 93A of Massachusetts General Law. Section 2 of the Act declares that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... unlawful." Mass. Ann. Laws ch. 93A, § 2(a). Section 9 of the Act permits consumers and class action claims under the Act to be brought in State or federal district courts. Id. at §§ 9(1) & (3)(A).

Plaintiff alleges that Defendants committed three potential violations of the Act. First, Defendants "violated at least 940 Code Mass. Regs. § 3.16 of the General Regulations of the Massachusetts Attorney General ...." (ECF No. 17, ¶ 287, PageID #243.) Regulation § 3.16 lists four potential violations, each of which is listed in the consolidated amended complaint. (Id. ) Under the regulation, an act violates Chapter 93A if:

(1) It is oppressive or otherwise unconscionable in any respect; or

(2) Any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction; or

(3) It fails to comply with existing statutes, rules, regulations or laws, meant for the protection of the public's health, safety, or welfare promulgated by the Commonwealth or any political subdivision thereof intended to provide the consumers of this Commonwealth protection; or

(4) It violates the Federal Trade Commission Act, the Federal Consumer Credit Protection Act or other Federal consumer protection statutes within the purview of M.G.L. c. 93A, § 2.

940 Mass. Code Regs. § 3.16.

Second, Plaintiff alleges that Defendants violated " 940 Code Mass. Regs. § 3.05(1) of the General Regulations of the Massachusetts Attorney General." (ECF No. 17, ¶ 288, PageID #244.) That regulation prohibits claims or representations about a product that "directly, or by implication, or by failure to adequately disclose additional relevant information, has the capacity or tendency or effect of deceiving buyers or prospective buyers in any material respect." 940 Mass. Code Regs. § 3.05(1). This prohibition includes "representations or claims relating to the construction, durability, reliability, manner or time of performance, safety, strength, condition, or life expectancy of such product, ... or the ease with which such product may be operated, repaired, or maintained or the benefit to be derived from the use thereof." Id.

Third, Plaintiff alleges that Defendants violated " 940 Code Mass. Regs. § 3.08(2) of the General Regulations of the Massachusetts Attorney General." (ECF No. 17, ¶ 289, PageID #244.) Regulation 3.08(a) declares the failure to "perform or fulfill any promises or obligations arising under a warranty" an unfair and deceptive act. 940 Mass. Code Regs. § 3.08(2). At bottom, Plaintiff alleges that Lubrizol and Charlotte Pipe committed deceptive and unfair acts that violated Chapter 93A by (1) misrepresenting the nature of FlowGuard Gold and (2) failing to fulfill warranty obligations.

XIII.A. Pleading Standard

To state a claim under Chapter 93A, "a complaint must allege ‘(1) a deceptive act or practice on the part of the seller; (2) an injury or loss suffered by the consumer; and (3) a causal connection between the seller's deceptive act or practice and the consumer's injury.’ " Crane v. Sexy Hair Concepts, LLC , No. CV 17-10300, 2017 WL 8728961, at *2 (D. Mass. Oct. 10, 2017) (quoting Casavant v. Norwegian Cruise Line, Ltd. , 76 Mass.App.Ct. 73, 919 N.E.2d 165, 169 (2009) ). "An act or practice is deceptive if it has the capacity to mislead consumers, acting reasonably under the circumstances, to act differently from the way they otherwise would have acted (i.e. , to entice a reasonable consumer to purchase the product)." Tomasella v. Nestlé USA, Inc. , 962 F.3d 60, 71 (1st Cir. 2020) (quotation and citation omitted). Further, claims under Chapter 93A involving allegations of fraud must comply with the heightened pleading requirement of Rule 9(b). Crane , 2017 WL 8728961, at *2 (citations omitted). "[A] complaint alleging fraud must state the time, place, and content of the alleged false or fraudulent representations." Id. (citing Epstein v. C.R. Bard, Inc. , 460 F.3d 183, 189–90 (1st Cir. 2006) ).

Lubrizol and Charlotte Pipe argue that Mr. Cochrane has not adequately pled a Chapter 93A claim. Lubrizol maintains that Plaintiffs do not allege that Lubrizol made statements to Mr. Cochrane before he contracted for construction of his home in 2008. (ECF No. 27, PageID #327.) Similarly, Charlotte Pipe argues that Plaintiff's claim under Chapter 93A fails because the consolidated amended complaint fails to plead that he relied on any particular representation or warranty Charlotte Pipe made and failed to plead that he made a conscious choice to purchase FlowGuard Gold. (ECF No. 30, PageID #481.)

At the outset, Lubrizol characterizes the 93A claim as based solely on its omission that FlowGuard Gold "might someday, decades in the future, develop leaks." (Id. ) This view oversimplifies the allegations. Plaintiff alleges various omissions and misrepresentations regarding the quality of FlowGuard Gold. For example, according to the consolidated amended complaint, Lubrizol misrepresented that FlowGuard Gold is designed to be tough, durable, and reliable for a 50-year service life. (ECF No. 17, ¶¶ 80–82, PageID #202–03.) It also alleges that Defendants failed to disclose that FlowGuard Gold becomes brittle, cracks, and leaks much sooner than 50 years. (Id. , ¶¶ 106, 114, 116–18, PageID #207 & 212–13.)

Both Lubrizol and Charlotte Pipe argue that Plaintiff has failed to identify a deceptive statement or omission made by them to Mr. Cochrane before construction of his home in 2008. Although reasonable reliance is not always required to prove a 93A claim, where a 93A claim is based on fraud, reliance becomes wrapped up in the element of causation. Trifiro v. N.Y. Life Ins. Co. , 845 F.2d 30, 33 n.1 (1st Cir. 1988) ; Massachusetts Laborers’ Health & Welfare Fund, by & Through Its Trs. v. Philip Morris, Inc. , 62 F. Supp. 2d 236, 241–42 (D. Mass. 1999). Because Plaintiff's claim is based on alleged misrepresentations and omissions, whether Mr. Cochrane reasonably relied on Defendants’ statements is an essential element of his claim.

Considering the allegations in their entirety in the light most favorable to Plaintiff against the Rule 9 pleading requirements, the Court determines that Plaintiff fails sufficiently to plead reliance and, therefore, fails to plead causation. Although he identifies several alleged misrepresentations and omissions, he fails to allege when or where Mr. Cochrane heard or read Defendants’ various alleged misstatements. Plaintiff references and cites Defendants’ materials with the alleged misrepresentations, but only cite materials from Defendants’ websites and blog posts. (ECF No. 17, PageID #202–03, n.12–24,). But the Court cannot infer under Rule 9 that these materials were available to Mr. Cochrane before 2008 or that he relied on them before contracting to have his home built. See Martin v. Mead Johnson Nutrition Co. , No. 09-11609, 2010 WL 3928707, at *4, 2010 U.S. Dist. LEXIS 104923, at *9–10 (D. Mass. Sept. 30, 2010) (inferring reliance where "Plaintiff included with her complaint dated copies of the print advertisements, direct mailing and information on the Mead Johnson website"). Under Rule 9, Plaintiff's claim lacks the requisite particularity to the extent he alleges Defendants violated Chapter 93A by making misrepresentations and omitting information about FlowGuard Gold.

XIII.B. Underlying Express Warranty Claim

Also Charlotte Pipe argues that Plaintiff's Chapter 93A claim based on an alleged breach of express warranty fails because he has not pleaded a valid underlying warranty claim. (ECF No. 30, PageID #481–82.) "Generally, a breach of warranty constitutes a violation of [General Law chapter] 93A, § 2." Maillet v. ATF-Davidson Co. , 407 Mass. 185, 552 N.E.2d 95, 100 (1990) (citations omitted). To the extent the Court determines that Plaintiff Cochrane pleads a valid warranty claim, so too does he plead a valid Chapter 93A claim based on the same theories. See Kozikowski v. Toll Bros., Inc. , 246 F. Supp. 2d 93, 99 & 102 (D. Mass. 2003) (granting summary judgment on 93A claim based on breach of express warranty to extent breach of express warranty claim was time-barred). Plaintiff may also pursue a claim under Chapter 93A against Lubrizol to the extent his express warranty claim against Lubrizol also survives.

XIII.C. Statute of Repose

Lubrizol argues that Massachusetts’ six-year statute of repose bars Plaintiff's 93A claim. (ECF No. 27, PageID #326–27.) According to Lubrizol, the repose statute covers the claim because (1) Lubrizol is a manufacturer who "was allegedly involved in the design, planning or construction of th[e] improvement to real property" (id. ) (quoting Rosario v. M.D. Knowlton Co. , 54 Mass.App.Ct. 796, 767 N.E.2d 1126, 1129 (2002) ), and (2) because the statute of repose defines the useful life of real property improvements to be no more than six years, and Mr. Cochrane's FlowGuard Gold lasted 11 years before leaking (id. , PageID #329 (citing Mass. Ann. Laws ch. 260, § 2B ).) Lubrizol's reliance on the statute is misplaced.

The statute does not apply unless there is an improvement to real property. Rosario , 767 N.E.2d at 1130. The statute of repose does not define real property improvements, but courts use the following definition: "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs." Id. (quoting Conley v. Scott Prod., Inc. , 401 Mass. 645, 518 N.E.2d 849, 851 (1988) ). Real property improvements include, for example, installation of a hydraulic lift, insulation, or aluminum siding. Id. Under this definition, residential plumbing does not constitute the type of improvement to real property the statute of repose covers under Massachusetts law. Accordingly, the statute of repose does not bar Plaintiff's claim.

XVI. Declaratory and Injunctive Relief (Lubrizol and Charlotte Pipe)

Plaintiff makes the same claim for declaratory and injunctive relief as the other Plaintiffs. His claim survives for the same reasons already discussed. See supra , Ms. Martin's Claims Under Michigan Law § XVI. CONCLUSION

For all the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ motions to dismiss. (ECF No. 27; ECF No. 28; ECF No. 30.) Rather than restate the disposition of each of the many claims at issue, the Court indicates in the following chart whether a claim may proceed in its entirety with a check, whether it is dismissed in its entirety with a red "x," and whether it is granted in part and denied in part (as stated above) with a circle with a line through it: As explained above, Plaintiffs’ breach of express warranty claims proceed against all Defendants. The claim for violations of Massachusetts General Laws proceeds against Lubrizol and Charlotte Pipe to the extent the underlying express warranty claims against them also proceed. The claim for violation of the Michigan Consumer Protection Act proceeds against Cresline Plastic only as explained above. The claim in Count XVI for declaratory judgment and injunctive relief survive dismissal to the extent those remedies are available under the governing law that provides the rule of decision for the particular claims that remain.

SO ORDERED.