In re Shop-Vac Marketing & Sales Practices Litigation

964 F. Supp. 2d 355, 2013 WL 4049728
CourtDistrict Court, M.D. Pennsylvania
DecidedAugust 9, 2013
DocketMDL No. 2380; Civil Action No. 4:12-md-2380
StatusPublished
Cited by16 cases

This text of 964 F. Supp. 2d 355 (In re Shop-Vac Marketing & Sales Practices Litigation) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Shop-Vac Marketing & Sales Practices Litigation, 964 F. Supp. 2d 355, 2013 WL 4049728 (M.D. Pa. 2013).

Opinion

MEMORANDUM

RE: MOTION TO DISMISS

YVETTE KANE, Chief Judge.

Before the Court is Defendants’ motion to dismiss Plaintiffs’ consolidated amended complaint pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). (Doc. No. 68.) The motion has been fully briefed, and for the reasons that follow, the Court will grant the motion and dismiss Plaintiffs’ consolidated amended complaint without prejudice.

I. BACKGROUND

The above-captioned multidistrict litigation (MDL) consists of nine coordinated cases in which numerous Plaintiffs bring warranty and consumer fraud claims based on Defendants Shop-Vac and Lowe’s alleged misrepresentations regarding the horsepower and tank capacity of Shop-Vac’s wet/dry vacuums.1

On February 19, 2013, Plaintiffs filed a consolidated amended complaint (CAC), in which they allege that Defendant Shop-Vac manufactures and sells a series of wet/dry vacuums, and that Defendants Lowe’s Home Centers, Inc., and Lowe’s HIW, Inc. sell these products at their home improvement stores. (Doc. No. 62 ¶ 1.) Plaintiffs allege that Defendants made false and misleading representations about the horsepower and tank capacity of the vacuums. (Id. ¶¶ 4-7.)

Plaintiffs allege that Shop-Vac represents that its vacuums are capable of reaching a peak horsepower that is impossible to attain with a standard electrical outlet. (Id. ¶¶ 19-20.) Peak horsepower, according to Plaintiffs, refers to the maximum output that can be developed in actual use, and they contend that a reasonable consumer would not understand that Shop-Vac’s definition of peak horsepower does not relate to the actual power of the vacuum.2 (Id. ¶¶ 30-35.) Further, Plaintiffs assert that Shop-Vac’s horsepower claims, if true, would violate industry standards for safety, thereby rendering the vacuums unfit for their intended purpose and unable to pass into the stream of [359]*359commerce without objection. (Id. ¶¶44-51.)

Plaintiffs further claim that Defendants’ representations about the capacity of the vacuums’ tanks are misleading because, in actual operation, the vacuums stop working when their tanks reach between 47% and 83% of the stated capacity. (Id. ¶ 52.) Thus, Plaintiffs allege that a reasonable consumer would be misled by these claims of tank capacity, “which have nothing to do with how much the tanks can hold while operating the vacuums.” (Id. ¶ 55.)

Plaintiffs allege that Lowe’s exclusively sells a line of Shop-Vac vacuums featuring the company’s blue trade dress, which Lowe’s markets in its stores, 'periodicals, and online. (Id. ¶¶ 56-58.) Plaintiffs assert that the Lowe’s Shop-Vac vacuums contain the same misrepresentations oh the box about horsepower and tank capacity as regular Shop-Vac vacuums, and that Lowe’s actively made the same representations in its advertisements, and buyer’s guides. (Id. ¶¶ 59-62.)

The named Plaintiffs are Alan McMichael, a Florida resident who purchased his Shop-Vac at a Lowe’s store in Florida; Andrew Harbut, a Missouri resident who purchased his Shop-Vac at a Lowe’s store in Missouri; Kris Reid, a California resident who purchased his Shop-Vac in California; David Smallwood, a California resident who purchased his Shop-Vac in Arizona; and Clay Scott, an Illinois resident who purchased his Shop-Vac at a Lowe’s store in Illinois. (Id. ¶ 10-14.) Each of the named Plaintiffs alleges that they relied upon the representations “on the box” concerning peak horsepower and tank capacity in deciding to purchase their vacuum. (Id.) Plaintiffs seek to represent a class of consumers in the United States — other than New 'Jersey3 — who purchased any Shop-Vac vacuum within the relevant statute of limitations period. (Id. ¶ 63.) Plaintiffs McMichael, Harbut, and Scott seek to represent a subclass of all consumers who purchased their Shop-Vac at Lowe’s home improvement stores. (Id. ¶ 64.)

II. LEGAL STANDARD

A. Fed.R.Civ.P. 12(b)(6)

A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewiez, 1 F.3d 176, 183 (3d Cir.1993). In reviewing a motion to dismiss, a court may “consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form 'the basis of a claim.” Lum, 361 F.3d at 221 n. 3. The motion will only be properly granted when, taking all factual allegations and inferences drawn therefrom as true, the moving party is entitled to judgment as a matter of law. 'Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir.1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir.1980). Thus, the moving party must show that Plaintiff has failed to “set forth sufficient, information to outline the elements of his claim or to permit inferences to be drawn that those elements exist.” Kost, 1 F.3d at 183 (citations omitted).

A court, however, “need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Disk, 132 F.3d 902, 906, 908 (3d Cir.1997). While the 12(b)(6) standard does, not re[360]*360quire “detailed factual allegations,” there must be a “ ‘showing,’ rather than a blanket assertion of entitlement to relief.... ‘[F]actual allegations must be enough to raise a right to relief above the speculative level.’” Phillips, 515 F.3d at 231-32 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Put otherwise, a civil complaint must “set out ‘sufficient factual matter’ to show that the claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,1955,173 L.Ed.2d 868 (2009)).

B. Fed.R.Civ.P. 9(b)

Rule 9(b) of the Federal Rules of Civil Procedure sets forth a more stringent standard of pleading for claims of fraud or mistake: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Untitled Case
M.D. Pennsylvania, 2026
BRUNO v. ROUNDHOUSE CYCLES, INC.
W.D. Pennsylvania, 2024
HOUSER v. FELDMAN
E.D. Pennsylvania, 2022
MORRISON v. AQ TEXTILES LLC
M.D. North Carolina, 2022
SALVITTI v. LASCELLES
E.D. Pennsylvania, 2022
GARBUTT v. MURRAY'S FREIGHTLINER
W.D. Pennsylvania, 2021
Ortiz v. Sig Sauer, Inc.
D. New Hampshire, 2020
Derick Ortiz, v. Sig Sauer, Inc.
2020 DNH 036 (D. New Hampshire, 2020)
Rosa v. American Water Heater Co.
177 F. Supp. 3d 1025 (S.D. Texas, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
964 F. Supp. 2d 355, 2013 WL 4049728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-shop-vac-marketing-sales-practices-litigation-pamd-2013.