NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _____________________
No 24-CV-04290 (RER) (CLP) _____________________
LUIZ C. PECK GARRIDO
VERSUS
XGIMI TECHNOLOGY INCORPORATED ___________________
MEMORANDUM & ORDER ___________________ RAMÓN E. REYES, JR., District Judge: This is a purported class action on behalf of consumers who purchased defendant’s home projectors and other similar devices. Plaintiff claims defendant advertised these products on its website and elsewhere with intentionally inflated brightness ratings to deceive consumers and induce them to purchase these products at a premium. Defendant has moved to dismiss the amended complaint for failure to state a claim, lack of subject matter jurisdiction, and lack of personal jurisdiction. After carefully reviewing the record, and for the reasons set forth herein, the motion to dismiss is granted in part and denied in part. BACKGROUND1 I. Factual Background
In November 2022, plaintiff Luiz C. Peck Garrido (“Plaintiff” or “Peck Garrido”), a resident of Long Island, New York, purchased an Xgimi Horizon Pro 4K home theater projector directly from the website of defendant Xgimi Technology Incorporated (“Defendant” or “Xgimi”) for $1,275. (ECF No. 15
(“Am. Compl.”) ¶ 15). In September 2023, Xgimi reached a settlement with its competitor Epson (“Epson Settlement”), requiring Xgimi to reduce the advertised brightness rating for the Horizon 4K Pro. (Id.) Simultaneously with
the lowered brightness rating, Xgimi switched its measurement standard from ANSI lumens to ISO lumens, which resulted in the Horizon Pro 4K’s rated brightness changing from 2,200 ANSI lumens to 1,500 ISO lumens. (Id.) In or about October 2023, Plaintiff contacted Defendant’s customer
service to complain about the lowered brightness rating. (Id. ¶ 16). On or about October 21, 2023, Xgimi customer service responded that despite the switch in standards, the performance of the device was unaffected. (Id. ¶ 18).
Peck Garrido responded on October 24, 2023, explaining that “it was not the performance of the [projector] that was the issue, but rather the
1 The Court acknowledges and offers its gratitude to Daniel Ruderman, who served as a judicial intern during his third year at St. John’s School of Law, for his assistance in researching and drafting this memorandum and order. representation made by Defendant that induced him to buy [the projector] in the first place, namely its brightness rating.” (Id.) Plaintiff explained to
Defendant’s customer service that 2,200 ANSI lumens should convert to 1,760 ISO lumens, and thus the new 1,500 ISO lumens rating indicates that the old 2,200 ANSI lumens rating was inflated. (Id.) However, Defendant
refused to refund or replace the projector because the 30-day return window had expired. (Id. ¶ 20). On November 4, 2023, Peck Garrido proposed that he pay the difference between the cost of the Horizon Pro 4K and the Horizon Ultra,
which has the brightness rating that the Horizon 4K purportedly had at the time of Plaintiff’s purchase. (Id. ¶ 21). Defendant did not reply to this proposal. (Id.) Peck Garrido retained an expert, an adjunct professor in
mechanical engineering at California Polytechnic State University, to test three of the four putative class devices. Plaintiff’s expert alleges that the brightness levels of these devices were between 20 and 25 percent lower than initially advertised. (Id. ¶¶ 6, 39). However, Peck Garrido could not find
the Halo model for testing as it had been discontinued. (Id. ¶¶ 6, 40). II. Procedural History On June 18, 2024, Plaintiff filed a Rule 23 class action complaint on behalf of himself and all others similarly situated. (ECF No. 1). He amended the complaint on November 21, 2024, adding sections on expert witness testing of three Xgimi projectors and detailing the Epson Settlement. (ECF
No. 15, Am. Compl. ¶¶ 39–46, 30–38). Peck Garrido alleges Defendant purposefully deceived consumers by inflating the brightness figures of its home projectors to gain traction in the United States market, including but
not limited to the (1) Horizon Pro 4k, (2) Horizon 1080P, (3) Elfin, and (4) Halo models. (Id. ¶¶ 1–2, 4). Plaintiff asserts jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2)). (Id. ¶ 12). Peck Garrido claims that independent testing by Epson, a market leader in home
projectors, and feedback from customers reflect that Defendant knew that its projectors output was significantly below the advertised brightness. (Id. ¶¶ 55–59, 81). Plaintiff raises eight claims against Defendant on behalf of a
nationwide class and New York subclass consisting of all persons who purchased a Xgimi Projector prior to September 18, 2023: (1) Deceit and Fraudulent Concealment (Count I), (2) Common Law Fraud via Affirmative Misrepresentation (Count II), (3) Breach of Express Warranty (Count III), (4)
Breach of the Implied Warranty of Merchantability (Count IV), (5) Breach of the Implied Warranty of Fitness for a Particular Purpose (Count V), (6) violations of the Magnusson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.
(“MMWA”) (Count VI), and (7) Unfair and Deceptive Trade Practices in Violation of N.Y. Gen. Bus. Law § 349, et seq. (“NYGBL”) (on behalf of Plaintiff and New York subclass only) (Count VII), and (8) unjust enrichment
(Count VIII). (Am. Compl. ¶¶ 61–176). On January 9, 2025, Defendant moved to dismiss the amended complaint pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of
Civil Procedure (ECF No. 19-1 (“Def.’s Mem.”)). Defendant argues: (1) Peck Garrido’s fraud claims fail for lack of pleading reliance, specific false statements, or fraudulent intent (Id. at 13–16); (2) Peck Garrido failed to plead causation between alleged misrepresentations and his injury under
NYGBL § 349 (Id. at 16–17); (3) Peck Garrido has no valid claim regarding the Halo model since he did not purchase and test one (Id. at 18–19); (4) Peck Garrido’s breach of express warranty claims fail because he did not
provide timely, individualized notice (Id. at 19–20); (5) Peck Garrido’s implied warranty of merchantability and fitness for a particular purpose claims fail because he did not provide timely notice and alleged that “performance was not the issue” (Id. at 20–21); (6) Peck Garrido’s MMWA claims fail because
his state law claims fail (Id. at 22–24); (7) Peck Garrido’s unjust enrichment claim is impermissibly duplicative (Id. at 24–25); (8) the court lacks jurisdiction over out-of-state nationwide class members, and specific or
general jurisdiction over Defendant (Id. at 26–30); (9) Peck Garrido lacks standing to assert claims for products he did not purchase (Id. at 30–31); and (10) Peck Garrido lacks standing for injunctive relief (Id. at 32–33). Plaintiff
opposed ((ECF No. 19-2 (“Opp’n”)), and Defendant replied (ECF No. 19-4 (“Reply”)).
LEGAL STANDARD I. Rule 12(b)(1) “A case is properly dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The party asserting subject matter jurisdiction must
establish by a preponderance of the evidence that jurisdiction exists. Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). In evaluating a Rule 12(b)(1) motion to dismiss, a district judge must “accept[ ] all material factual allegations in the complaint as true,” but should “refrain
from drawing inferences in favor of the party asserting subject matter jurisdiction.” Gonzalez v. Inn on the Hudson LLC, 20-CV-9196 (ER), 2022 WL 974384, at * 2 (S.D.N.Y. Mar. 30, 2022) (citation omitted).
II. Rule 12(b)(2) When a defendant moves to dismiss for lack of personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing jurisdiction. In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003). “Prior to discovery, a plaintiff may defeat
a motion to dismiss based on legally sufficient allegations of jurisdiction.” Id.; see also Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996) (“[U]ntil discovery takes place, a plaintiff is required only to make a prima
facie showing by pleadings and affidavits that jurisdiction exists.”); Troma Entm't, Inc. v. Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013) (“[A] complaint will survive a motion to dismiss for want of personal jurisdiction so long as its allegations, taken as true, are legally sufficient allegations of
jurisdiction.”) (citations and quotation marks omitted). The Court “constru[es] all pleadings and affidavits in the light most favorable to the plaintiff and resolv[es] all doubts in the plaintiff's favor.” Penguin Grp. (USA) Inc. v. Am.
Buddha, 609 F.3d 30, 34 (2d Cir. 2010). III. Rule 12(b)(6) Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint based on “failure to state a claim upon which relief
can be granted.” To avoid dismissal on that basis, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (discussing Fed. R. Civ. P. 8). In
evaluating a motion to dismiss under Rule 12(b)(6), the court must accept all facts alleged in the complaint as true. Id. But it need not adopt “[t]hreadbare recitals of the elements of a cause of action” that are “supported by mere
conclusory statements.” Id. DISCUSSION2 I. Plaintiff Adequately Alleges Fraud (Counts I and II) Under New York law, to adequately state a common law fraud claim a
plaintiff must allege: “(1) a material misrepresentation or omission of a fact, (2) knowledge of that fact's falsity, (3) an intent to induce reliance, (4) justifiable reliance by the plaintiff, and (5) damages.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160, 170 (2d Cir. 2015) (citing
Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 (2009)). Although Federal Rule of Civil Procedure 9(b) contains a heightened particularity standard for pleading
fraud claims, that standard is relaxed for fraudulent intent: “Malice, intent,
2 The Court will address Defendant’s arguments for dismissal in the order in which they appear in Defendant’s memorandum of law. The Court notes, however, that Plaintiff has withdrawn his claim under the Magnusson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. (“MMWA”) (Count VI). (Opp’n at 10 n.2). Therefore, the Court will not address Defendant’s objections to that claim. Plaintiff’s MMWA claims are dismissed. knowledge, and other conditions of a person's mind may be alleged generally.” Fed. R. Civ. P. 9(b). The Second Circuit has cautioned, however,
that because “we must not mistake the relaxation of Rule 9(b)'s specificity requirement regarding condition of mind for a license to base claims of fraud on speculation and conclusory allegations[] ... plaintiffs must allege facts that
give rise to a strong inference of fraudulent intent.” Acito v. IMCERA Grp., 47 F.3d 47, 52 (2d Cir. 1995) (emphasis added)); see also Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 197–98 (2d Cir. 2013). “The requisite ‘strong inference’ of fraud may be established either (a)
by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields v. Citytrust
Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994); see also Chill v. Gen. Elec. Co., 101 F.3d 263, 267 (2d Cir. 1996). Here, Defendant argues that Plaintiff’s fraud claims should be dismissed because Plaintiff fails to plead a “strong inference” of fraudulent intent. (Def.’s Mem. at 13–16).3 The Court disagrees.
Peck Garrido alleges that Defendant’s misrepresentations of lumens ratings were “done maliciously, oppressively, deliberately, with intent to defraud, and in reckless disregard of Plaintiff’s and Class members’ rights,
3 Page numbers for the parties’ briefs are to the ECF-generated PDF page numbers. to enrich Defendant.” (Am. Compl. ¶ 92). These, however, are merely conclusory allegations that cannot satisfy Plaintiff’s burden to allege facts
that plausibly support a strong inference of fraudulent intent. So too are Peck Garrido’s allegations that Xgimi’s false lumens ratings were advertised “to increase sales and market share” (id. ¶ 4), and to “gain initial traction in the
United States projector marketplace” (id. ¶ 54). These conclusory allegations concern only generalized motives which could be imputed to any public corporate entity and are not sufficiently concrete for purposes of inferring fraudulent intent. Kalnit v. Eichler, 264 F.3d 131, 139-40 (2d Cir. 2001) (citing
Chill, 101 F.3d at 268); In re Frito-Lay N. Am., Inc., No. 12-MD-2413 (RRM) (RLM), 2013 WL 4647512, at *25 (E.D.N.Y. Aug. 29, 2013) (clarifying that conclusory allegations that a company has motive to increase profits
“‘pertain to virtually any company that manufactures and distributes goods’” and “do not suffice” to show motive to commit fraud); see also Dorris v. Danone Waters of Am., No. 22 Civ. 8717 (NSR), 2024 WL 4792048, at *9 (S.D.N.Y. Nov. 14, 2024) (“[I]t is well-settled in this circuit that a defendant’s
self-interested desire to increase sales or profits is a general motive without concrete benefits and, is, therefore insufficient [to show fraudulent intent].”) (citing Chill v. Gen. Elec. Co., 101 F.3d 263, 268 (2d Cir. 1996)). Plaintiff’s
attempts to distinguish In re Frito-Lay N. Am., Inc., 2013 WL 4647512, are misplaced. Unlike Frito-Lay, Plaintiff here cites to no specific factual allegations to support his claim of fraudulent intent. (Opp’n at 19). Rather,
Peck Garrido cites to conclusory allegations that lack any factual support whatsoever. (Id.) However, contrary to Xgimi’s arguments, Peck Garrido has alleged
sufficient facts showing strong circumstantial evidence of Xgimi’s conscious misbehavior or recklessness. (Id.) As discussed below, Plaintiff has sufficiently alleged that Defendant engaged in materially misleading consumer-oriented conduct in violation of New York GBL § 349. Peck
Garrido has also alleged that Xgimi settled Epson’s claims that it inflated its lumens ratings on the suspect products. (Am. Compl. ¶¶ 16, 18). It is entirely reasonable to infer misbehavior or at least recklessness from these facts and
the others stated in the amended complaint. Defendant also argues that Plaintiff’s fraud claims should be dismissed for failure to plead reliance with particularity. (Def.’s Mem. at 16). The Court again disagrees. Peck Garrido adequately alleges reliance. (Opp’n at 20).
Defendant’s arguments to the contrary (Reply at 9–10), are rejected. Accordingly, Defendant’s motion to dismiss is denied in this regard. II. Plaintiff’s New York GBL § 349 Claim (Count VII) Is Adequately Pleaded N.Y. GBL section 349 prohibits deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in New York. “To successfully assert a claim under . . . [N.Y. GBL
section 349] . . ., a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander
v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940 (2012)); see also Dupler v. Costco Wholesale Corp., 249 F.R.D. 29, 43 (E.D.N.Y. 2008). Xgimi’s only argument
with respect to the sufficiency of Peck Garrido’s section 349 claim is that he failed to adequately allege that he suffered an injury “as a result of” the alleged lumens misrepresentation on Xgimi’s website, because he does not allege that he “saw any alleged misrepresentations prior to his purchase [of
the Xgimi projector].” (Def.’s Mem. at 9). The Court disagrees. While Defendant cites to two district court cases and one state court case in which courts have dismissed plaintiffs’ N.Y. GBL section 349 claims for failure to
plead affirmatively that they saw the allegedly misleading advertisements before they purchased the defendants’ products (Def.’s Mem. at 17; Reply at 10), those cases are of no help here for two independent reasons. First, while the amended complaint is not an exemplar of clarity or precision, it is enough to properly allege—even if barely so—a claim under
N.Y. GBL section 349. Peck Garrido alleges that Xgimi engaged in consumer-oriented conduct by advertising its products to the public, including on its website. (Am. Compl. ¶¶ 13–15; see also Opp’n at 10–11
nn.3–4). 4 Defendant does not dispute this. Plaintiff also alleges that Defendant’s consumer-oriented conduct was materially misleading in that Defendant inflated the lumens ratings of its various devices, including on its website. (Am. Compl. ¶ 125). While Xgimi disputes that it misrepresented the
lumens ratings of its various devices, it does not dispute that Peck Garrido alleges that it did so. Plaintiff also alleges that he and the class relied on Defendant’s advertised inflated lumens ratings, including on Defendant’s
website, when they paid more for the products than they otherwise would have. (Id. ¶¶ 69, 90, 104, 113 140, 163). Notably, while reliance is not an element of a GBL section 349 claim, and Peck Garrido does not expressly allege that he saw the purported false lumens ratings on Xgimi’s website
before he purchased the Horizon Pro 4K projector, or say specifically when and where he saw the misleading brightness rating, it is reasonable to infer
4 The Court considers Xgimi’s website at the time of Peck Garrido’s purported purchase to be incorporated by reference into the amended complaint. See, e.g., DeMarco v. Ben Krupinski Gen. Contractor, Inc., No. 12–CV–0573 (SJF)(ARL), 2014 WL 3696020, at *5 (E.D.N.Y. July 22, 2014) (“A court may take judicial notice of a website.”) (quotation marks omitted). on a motion to dismiss that he did see it on Xgimi’s website: after all, he alleges that he purchased the projector from the website in part because the
brightness rating. See Dash v. Seagate Tech. (U.S.) Holdings, Inc., 27 F.Supp.3d 357, 361 (E.D.N.Y. 2014) (“The reasonable inference to be drawn from such allegations is that Plaintiff saw the misleading statements and, as
a result of such, purchased the Drive at issue. Accordingly, causation is sufficiently pled.”); see also Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 8 F.Supp.3d 467 (S.D.N.Y. 2014) (confirming that causation was siffucinetly pleaded when “[t]he reasonable inference to be drawn from these
allegations [that Plaintiff was ‘deceived and misled’] . . . is that Plaintiff saw the [company] website and Facebook page described previously in the Complaint, and was thus deceived into purchasing the products in
question.”). Second, the legal premise of Defendant’s argument—that to establish injury “as a result of” a defendant’s materially misleading consumer-oriented statements, a plaintiff in a N.Y. GBL section 349 case must always allege
that he saw the supposed materially misleading statements—is misplaced. It is well established that a plaintiff can prove injury and causation under GBL section 349 in at least one of two ways. Fishon v. Peloton Interactive, Inc.,
620 F. Supp. 3d 80, 99 (S.D.N.Y. 2022), vacated on other grounds, Passman v. Peloton Interactive, Inc., No. 19 Civ. 11711 (LGS), 2025 WL 1284718 (S.D.N.Y. May 2, 2025). First, as Defendant suggests, a plaintiff can plead
that she was exposed to a material deceptive act, and because of that deceptive act she purchased a product, and was harmed. Id. (citing Rodriguez v. Hanesbrands Inc., 2018 WL 2078116, at *4–5 (E.D.N.Y. Feb.
20, 2018)), adopted by 2018 WL 1686105 (E.D.N.Y. Mar. 30, 2018). Second, a plaintiff can also plead that “the defendant's misleading or deceptive advertising caused a price premium, that the price premium was charged both to those who saw and relied upon the false or misleading
representations and those who did not, and that, as a result of the price premium, plaintiff was charged a price he would not otherwise have been charged” but for the false or misleading representations. Id. at 100 (citing
Eidelman v. Sun Prods. Corp., 2022 WL 1929250, at *1 (2d Cir. June 6, 2022)) (summary order). Aside from plausibly pleading the former, at least by reasonable inference, Peck Garrido has also plausibly alleged the latter. Here, a reasonable jury could find that (1) Xgimi marketed their projector
products with inflated lumens ratings, (2) these misrepresentations allowed Xgimi to charge a price premium for their products, and (3) Peck Garrido paid more for the products than he would have paid had Xgimi not made such
misrepresentations, regardless of whether he knew that the lumens rating were inflated. See, e.g., In re Columbia Coll. Rankings Action, No. 22-cv- 5945 (PGG), 22-cv-6597 (PGG), 2024 WL 1312511, at *12 (S.D.N.Y. Mar.
26, 2024) (recognizing that plaintiffs properly pleaded a price premium injury where they alleged the university’s misrepresentation of its ranking caused an unjustified tuition premium they would not have otherwise paid); Fishon,
620 F. Supp. 3d at 103; Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 350 (S.D.N.Y. 2020); Carovillano v. Sirius XM Radio Inc., 715 F.Supp.3d 562, 582 (S.D.N.Y. 2024); In re AXA Equitable Life Ins. Co. COI Litig., No. 16 Civ. 740 (JMF), 2020 WL 4694172, at *10 n.7 (S.D.N.Y. Aug. 13, 2020); cf.
Sharpe v. A&W Concentrate Co., 19 Civ. 768 (BMC), 2021 WL 3721392, at *4 (E.D.N.Y. July 23, 2021) (rejecting argument that GBL section 349 consumers must have been personally exposed to alleged
misrepresentation as “another attempt to sneak in reliance”); Hasemann v. Gerber Prod. Co., 331 F.R.D. 239, 266 (E.D.N.Y. 2019) (“[W]here reliance is not at issue, the individual reason for purchasing a product becomes irrelevant and subsumed under the reasonable consumer standard, i.e.,
whether the deception could likely have misled someone, and not, whether it in fact did.”). Plaintiff’s N.Y. GBL section 349 claim is sufficiently pleaded, and
therefore Defendant’s motion to dismiss is denied in this respect. III. Plaintiff’s Claims Related to the Halo Projector Are Adequately Pleaded Defendant argues that because Plaintiff did not test the “Halo model,” he has not provided any evidence of the falsity of the Halo model’s initial lumens ratings, and “[a]s such, there are no plausible allegations of falsity
for this device and all claims with respect to the Halo model should be dismissed.” (Def.’s Mem. at 18) (emphasis added). Defendant’s arguments are untenable.
First, at the pleading stage, a plaintiff need not provide evidence, but only plausible allegations. Cabrera v. CBS Corp., No. 17-CV-6011 (CM), 2018 WL 1225260, at *3 (S.D.N.Y. Feb. 26, 2018). The plausibility of a
plaintiff’s allegations is not measured by whether she provides evidence, but whether she alleges facts to support her allegations. Id. Xgimi’s argument is rejected in this regard. Second, and regardless of any evidence or lack thereof, Peck Garrido
sufficiently alleges that Xgimi’s original lumens rating of the Halo projector was false. Relying on the Epson Settlement, Plaintiff alleges that Defendant agreed to reduce the lumens ratings of the Halo projector. (Am. Compl. ¶ 33)
(“Xgimi specifically agreed to change the lumens brightness specifications for each of the four Class Devices . . . Halo (WK03A) reduced from 800 Lumens to 600 Lumens”). Defendant’s contention that the Epson Settlement constitutes mere “allegations in a complaint in another case [and] not fact” is wrong. (Def.’s Mem. at 18) (emphasis added). Notably, Xgimi does not
contest that it entered into the Epson Settlement and agreed to lower the lumens rating of the Halo projector. Thus, the Epson Settlement is not merely an allegation “in a complaint in another case;” it is a factual allegation in this
case. Whether that allegation is sufficient to carry the day for Plaintiff remains to be seen. What does not remain to be seen is whether Plaintiff has plausibly alleged that the original Halo lumens ratings were false. He has done so, and Defendant’s motion to dismiss this claim is therefore denied.
IV. Plaintiff Adequately Pleads Breach of Express Warranty (Count III) To survive a motion to dismiss for failure to state a claim for breach of express warranty under New York law, a plaintiff must plausibly allege: “(1)
the existence of a material statement amounting to a warranty, (2) the buyer's reliance on this warranty as a basis for the contract with the immediate seller, (3) breach of the warranty, and (4) injury to the buyer caused by the breach.” Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 527
(E.D.N.Y. 2017). In New York, a plaintiff must also give notice of the breach to the seller before he can recover under an express warranty claim. N.Y. U.C.C. § 2-607(3)(a); Ham v. Lenovo (United States) Inc., 664 F. Supp. 3d 562, 582 (S.D.N.Y. 2023). Such notice must be specifically alleged but need only “alert defendant that the transaction was troublesome and [need not]
include a claim for damages or threat of future litigation.” Grossman v. Simply Nourish Pet Food Co. LLC, 516 F. Supp. 3d 261, 282 (E.D.N.Y. 2021) (citations and alterations omitted). Such notice, though, must be given before
filing suit to retain a right to recovery. Chung v. Igloo Prods. Corp., No. 20- CV-4926 (MKB), 2022 WL 2657350, at *13 (E.D.N.Y. July 8, 2022). Plaintiff alleges—and Defendants do not appear to dispute—that Xgimi promised that the Horizon Pro 4K projector model he bought had a
brightness rating of 2,200 ANSI lumens, which should convert to 1,760 ISO lumens, but its actual rating, as later changed by Xgimi, was 1,500 ISO lumens. (Am. Compl. ¶¶ 15, 18, 36). Such a description warranted a
statement of fact about the projector. Plaintiff sufficiently alleges that such representation “induced him to buy [the projector] in the first place . . . .” (Id. ¶ 18). The express warranty was allegedly breached by the product not meeting the advertised brightness rating, and Plaintiff was allegedly injured
by paying a price premium for a projector that did not meet its advertised performance. (Id. ¶ 91). These allegations satisfy the required elements for Plaintiff’s breach of express warranty claim. Further, Plaintiff specifically
alleges that in October 2023, before filing suit, he alerted Defendant that his purchase was “troublesome” by submitting a complaint through a form on the customer service website. (Id. ¶ 16).
Defendants are correct that neither Plaintiff’s post-suit September 16, 2024, letter, nor complaints and suits by other individuals would satisfy the statutory notice requirement. (Def.’s Mem. at 20). However, Peck Garrido
need not rely on either one, as his October 2023 customer service complaint suffices. Defendant attempts to discount this notice because Plaintiff “admitted at the time that ‘it was not the performance of the [Projector] at issue,’” (Reply at 11), but Defendant omits the rest of Plaintiff’s sentence: “.
. . [the issue was] rather the representation made by Defendant that induced him to buy [the projector] in the first place, namely its brightness rating.” (Am. Compl. ¶ 18). Plaintiff described the troublesome issue of the projector not
meeting the promised brightness rating, and Defendant’s customer service never responded. Defendant was sufficiently on notice of Plaintiff’s issue with the product. The breach of express warranty claim therefore survives dismissal.
V. Plaintiff’s Implied Warrant of Merchantability and Fitness for Particular Purpose Claims (Counts IV and V) Fail Under New York law, a plaintiff claiming a breach of implied warranty of merchantability “must plead that a merchant seller breached its ‘guarantee . . . that its goods are fit for the intended purpose for which they are used and that they will pass in the trade without objection.’” Ham, 664 F. Supp. 3d at
582 (quoting Wojcik v. Empire Forklift, Inc., 14 A.D.3d 63, 66 (3d Dep’t 2004)); N.Y. U.C.C. § 2-314(2)(a), (c). To prevail on a claim of breach of implied warranty of fitness for a
particular purpose, a plaintiff must establish that “the seller had reason to know, at the time of contracting, the buyer’s particular purpose for which the goods are required and that the buyer was justifiably relying upon the seller’s skill and judgment to select and furnish suitable goods, and that the buyer
did in fact rely on that skill.” Factory Assocs. & Exporters, Inc. v. Lehigh Safety Shoes Co. LLC, 382 F. App’x 110, 112 (2d Cir. 2010). “The warranty of fitness for ordinary purposes is not a guarantee that the product will . . .
fulfill a buyer's every expectation. . .. Rather, such a warranty provides for a minimal level of quality.” Ferracane v. United States, No. 02-CV-1037 (SLT), 2007 WL 316570, at *8 (E.D.N.Y. Jan. 30, 2007) (citing Denny v. Ford Motor Co., 87 N.Y.2d 248, 256 n.4 (1995)) (quotations and alterations omitted).
Both types of claims require notice to a defendant. Bynum v. Fam. Dollar Stores, Inc., 592 F. Supp. 3d 304, 315 (S.D.N.Y. 2022). Again, Defendants are incorrect that Plaintiff failed to notice them for
the purposes of these claims. However, these causes of action otherwise fail. Here, Defendant’s focus on the first part of Plaintiff’s October 2023 allegations about the projector is well placed; Plaintiff’s issue “was not the
performance of the [Projector].” (Def.’s Mem. at 21; Am. Compl. ¶18). While it is true that Plaintiff’s projector does not put out the originally advertised lumens, at no point does he allege that it did not work for its “ordinary
purpose” of projecting images to a “minimal level of quality”. The projector’s brightness in “moderate light conditions” may not have met Plaintiff’s particular expectation or even fit the recommendations of “industry commentators” (Am. Compl. ¶ 3), but Plaintiff does not allege that it did not
project visible images in these conditions. “Goods that are ‘doing what they were supposed to do for as long as they were supposed to do it clearly live up to that ‘minimum level of quality’ which is all U.C.C. 2-314(2)(c) requires.’”
Ferracane, 2007 WL 316570, at *8 (alterations and citations omitted). Plaintiff does not allege that the projectors did not meet these minimal criteria. Accordingly, the implied warranty claims are dismissed.
VI. Plaintiff’s Unjust Enrichment Claim (Count VII) Is Dismissed Xgimi argues that Plaintiff’s unjust enrichment claim must be dismissed because it is duplicative of his other causes of action and seeks identical
relief. (Def.’s Mem. at 24). Defendant is correct. Under New York law, “unjust enrichment is not a catchall cause of action to be used when others fail. It is available only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create
an equitable obligation running from the defendant to the plaintiff . . . An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim.” Corsello v. Verizon N.Y., Inc.,
18 N.Y.3d 777, 790 (2012); see also Kurtz, 321 F.R.D. at 554. Plaintiff's unjust enrichment claim is based on the same allegations as set forth in support of the GBL claim, and Plaintiff has not shown that his unjust enrichment claim differs from his GBL claims nor that the alleged
damages are distinct. Although Plaintiff’s unjust enrichment claim does contain the allegation that Defendant was enriched by “out-of-pocket repair and bulb replacement costs,” Plaintiff nowhere specifically claims that he
paid for any repairs or bulb replacements on his Horizon Pro 4K. Thus, Plaintiff does not allege that he bestowed any benefit on Defendant, even if it is possible that some putative class members did so. (Am. Comp. ¶ 165). Legurnic v. Ciccone, 63 F. Supp. 3d 241, 248 (E.D.N.Y. 2014) (“If the Plaintiff
fails to show that the Defendant received a benefit, there can be no liability for unjust enrichment.”) Therefore, the Court dismisses Plaintiff's unjust enrichment claim as duplicative of his GBL claims. See, e.g., In re Colum.
Coll. Rankings, 2024 WL 1312511, at *19 (“Courts in the Second Circuit have consistently held that unjust enrichment claims that are duplicative of GBL claims should be dismissed.”) (alterations and citations omitted)).
VII. Plaintiff’s Request for Equitable Relief Will Continue Xgimi argues that Peck Garrido “cannot maintain equitable claims
where he has an adequate remedy at law: damages” and “[t]he Court therefore has no power to award Plaintiff equitable relief for any of his claims.” (Def.’s Mem. at 25–26) (emphasis added). While the Court
ultimately may not award Plaintiff equitable relief at the conclusion of this litigation, that does not mean that the Court cannot maintain requests for such relief during its pendency. Indeed, the case upon which Defendant
relies to support its argument, Nasdaq, Inc. v. Exch. Traded Managers Grp., LLC, 431 F.Supp.3d 176 (S.D.N.Y. 2019), (Def.’s Mem. at 26), illustrates this point. In that case, the district court precluded the plaintiff’s request for equitable relief after a 10-day bench trial on the merits in which it found
plaintiff was entitled to monetary damages. Id. at 182, 274. That decision in no way whatsoever stands for the proposition that requests for equitable relief should be dismissed on a 12(b)(6) motion. Xgimi’s request is premature
and is denied. VIII. The Nationwide Class Claims Shall Proceed Relying principally on Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco Cnty., 582 U.S. 255 (2017), Xgimi argues that the nationwide
class claims (Claims I–VI and VIII) should be dismissed because the Court lacks either general or specific personal jurisdiction with respect to those claims. (Def.’s Mem. at 26–30). Defendant’s arguments proceed from a
misunderstanding of both the facts and the law, and therefore, the motion to dismiss the class claims is denied in this respect. First, the Court has specific personal jurisdiction over Xgimi with respect to Peck Garrido’s claims. Although Defendant contests personal
jurisdiction, New York’s long-arm statute only requires that a defendant transacted business in New York and the cause of action arose from the transaction. See N.Y. C.P.L.R. § 302(a); Chloe v. Queen Bee of Beverly Hills,
LLC, 616 F.3d 158, 170 (2d Cir. 2010) (“[C]ourts have explained that section 302 ‘is a “single act statute” and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is
a substantial relationship between the transaction and the claim asserted.’”) Since Plaintiff, who resides in Long Island, alleges that Defendant sold him the projector via its website and shipped it to him in New York, there is a prima facie showing of specific personal jurisdiction. (Compl. ¶ 15); Am. Girl, LLC v. Zembrka, 118 F.4th 271, 277 (2d Cir. 2024) (“The evidence
demonstrates that Zembrka accepted orders with New York shipping addresses, sent confirmatory emails with New York shipping addresses containing commitments to ship to those New York addresses, and accepted
payments from a customer with a New York address. We have little difficulty concluding that this activity constitutes transacting business within New York for purposes of jurisdiction under § 302(a)(1).”) Therefore, this Court has specific jurisdiction over Defendant with respect to Peck Garrido’s claims.
Second, although Xgimi argues that under Bristol-Myers Squibb Co. Plaintiff may not bring a nationwide putative class action, courts in the Second Circuit have continued to hold that “specific jurisdiction over a
nationwide class action is assessed based on the citizenship of the named plaintiff, without inquiry into the citizenship of unnamed class members.” Hines v. Equifax Info. Servs. LLC, No. 19-CV-6701 (RPK) (JAM), 2024 WL 4132333, at *2 (E.D.N.Y. Sept. 10, 2024). Bristol-Myers was not a Rule 23
class action, but a state-court mass action with over 600 named plaintiffs, most of whom resided outside the California forum. 582 U.S. at 259. As a putative class action, all that must be alleged for standing is that the named
plaintiff (1) suffered an actual injury because of the conduct of the defendant, and (2) “that such conduct implicates the same set of concerns as the conduct alleged to have caused injury to other members of the putative class
by the same defendants.” NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 162 (2d Cir. 2012) (citations and quotations omitted). Such is the case here.
Accordingly, Xgimi’s objections to Plaintiff’s standing to bring class claims or personal jurisdiction over it vis-à-vis the nationwide class are rejected. The nationwide class claims shall proceed.
VIII. Plaintiff Has Article III Standing to Pursue Claims for The Products He Did Not Purchase Citing to the fact that he purchased only one Xgimi product, Defendant argues that Peck Garrido lacks Article III standing to assert claims, including claims on behalf of a putative class, for the other three Xgimi products he did
not purchase. (Def.’s Mem. at 30–31). The Court disagrees. The Second Circuit has held that Article III standing is satisfied for each named defendant as long as there is “at least one named plaintiff who can assert a claim directly against that defendant.” NECA–IBEW, 693 F.3d at
159 (internal quotation marks omitted); see also, e.g., Weisblum v. Prophase Labs, Inc., 88 F. Supp. 3d 283, 295 (S.D.N.Y. 2015); In re Frito–Lay N. Am., Inc. All Natural Litig., No. 12–MD–2413 (RRM)(RLM), 2013 WL 4647512, at *11 (E.D.N.Y. Aug. 29, 2013) (quoting Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck–Medco Managed Care, LLC, 504 F.3d 229, 241
(2d Cir. 2007)). There should be no dispute that this standard is met here— Peck Garrido alleges claims for at least one product he purchased directly from Xgimi based on inflated lumens representations—and therefore
Plaintiff’s claims on behalf of purchasers of other Xgimi products can move forward. In arguing otherwise, Defendant relies heavily on the Second Circuit's unpublished summary order in DiMuro v. Clinique Labs., LLC, 572 Fed.
Appx. 27 (2d Cir. 2014), (Def.’s Mem. at 31), which held that the plaintiffs could not bring class claims for products they did not purchase because the alleged misrepresentations were not “nearly identical” to those made about
products the plaintiffs did purchase. 572 Fed. Appx at 29. DiMuro, however, could not and did not change Circuit law as expressed in NECA–IBEW. See, e.g., Fossil Grp., Inc. v. Angel Seller LLC, No. 20-CV-2441 (HG), 2022 WL 3655177, at *2 (E.D.N.Y. Aug. 25, 2022) (“[A] summary order ... does not
have precedential effect.”) (citing Hoefer v. Bd. of Educ. of the Enlarged City Sch. Dist., 820 F.3d 58, 65 (2d Cir. 2016); Bais Yaakov of Spring Valley v. Houghton Mifflin Harcourt Publishers, Inc., 36 F.Supp.3d 417, 421 n. 6
(S.D.N.Y. 2014) (“DiMuro merely reiterates the holding of NECA–IBEW.”). Moreover, even were Peck Garrido required to allege “nearly identical” misrepresentation across the four products, he has done so: The amended
complaint clearly states that Xgimi misrepresented the lumens ratings of all four products (Am. Compl. ¶¶ 1–2, 4). While the allegedly misrepresented numerical ratings may not be identical, and while the four products may have
different internal components, those differences are immaterial. Plaintiff’s allegations about the four projector models involve the same lumens rating misrepresentations about substantially similar products. “Any specific concerns regarding the [products’] differences can be addressed at the class
certification stage.” Grossman v. Simply Nourish Pet Food Co. LLC, 516 F. Supp. 3d 261, 277 (E.D.N.Y. 2021) (citation omitted). But at the motion to dismiss stage, Plaintiff has adequately alleged that “the nature and content
of the specific misrepresentation alleged” are sufficiently similar because the purchased and unpurchased projectors are all made by Xgimi for the purpose of projecting images and they were all sold and marketed on its website with allegedly inflated lumens ratings. Id. (citing NECA-IBEW, 693
F.3d at 162); see also Ham, 664 F. Supp. 3d at 578; Rivera v. S.C. Johnson & Son, Inc., No. 20-CV-3588 (RA), 2021 WL 4392300, at *9 (S.D.N.Y. Sept. 24, 2021) (collecting cases); Hart v. BHH, LLC, No. 15CV4804, 2016 WL
2642228, at *4 (S.D.N.Y. May 5, 2016). IX. Plaintiff’s Claims for Injunctive Relief Are Dismissed In addition to money damages and equitable relief, Plaintiff seeks an
order enjoining “Defendant to adequately disclose and remediate the actual lumens figures” of its products in the future. (Am. Compl. at 38). Defendant argues that Plaintiff lacks standing to seek such injunctive relief due to a lack of any real and immediate threat of future injury. (Def.’s Mem. at 32).
“Although past injuries may provide a basis for standing to seek money damages, they do not confer standing to seek injunctive relief unless the plaintiff can demonstrate that she is likely to be harmed again in the future in
a similar way.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016). Plaintiff notes that he now knows the truth about the lumens figures of Defendant’s projectors (Am. Compl. ¶¶ 16, 18), and nowhere alleges that he is in the market for another projector. Furthermore, Xgimi has already
revised its lumens rating pursuant to the Epson Settlement that preceded this action. (Id. ¶ 18). Peck Garrido also does not appear to object to the dismissal of his request for injunctive relief in his opposition to Defendant’s
motion. Therefore, Plaintiff’s request for injunctive relief in the form of disclosure and remediation is dismissed. CONCLUSION For the reasons set forth above, the Court grants in part and denies in
part Defendant’s motion to dismiss. Plaintiff maintains his fraud claims (Counts I and II) and breach of express warranty claim (Claim III) on behalf of himself and a nationwide class, and his N.Y. GBL section 349 claim (Claim
VII) on behalf of himself and the New York subclass. Counts IV, V, VI and VIII are dismissed, as is Plaintiff’s request for injunctive relief. SO ORDERED. /s/ Ramón E. Reyes, Jr. _________________________ RAMÓN E. REYES, JR. United States District Judge Dated: November 12, 2025 Brooklyn, New York