1 2
3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 HADASSAH SHELLENBERGER, CASE NO. C24-0657JLR 11 Plaintiff, ORDER v. 12 AIG WARRANTYGUARD, INC., et 13 al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court are Defendant AIG WarrantyGuard, Inc.’s (“AIGWG”) and 17 Defendant Whirlpool Corporation’s (“Whirlpool” and together with AIGWG, 18 “Defendants”) motions to dismiss Plaintiff Hadassah Shellenberger’s putative class 19 action complaint. (AIGWG Mot. (Dkt. # 23); Whirlpool Mot. (Dkt. # 26); see also 20 AIGWG Reply (Dkt. # 42); Whirlpool Reply (Dkt. # 41); Compl. (Dkt. # 1).) Defendants 21 join in each other’s motions. (AIGWG Mot. at 2 n.2; Whirlpool Mot. at 9 n.1.) Ms. 22 1 Shellenberger opposes the motions. (AIGWG Resp. (Dkt. # 37); Whirlpool Resp. (Dkt. 2 # 38).) The court has considered the motions, the parties’ submissions in support of and
3 in opposition to the motions, the relevant portions of the record, and the applicable law. 4 Being fully advised,1 the court GRANTS Defendants’ motions. 5 II. BACKGROUND 6 Whirlpool manufactures home appliances under various brand names, including 7 KitchenAid. (Compl. ¶¶ 1, 20.) Together, Whirlpool and AIGWG “market, sell, and 8 administer” warranty plans to consumers who purchase Whirlpool appliances. (Id. ¶ 30.)
9 This putative class action concerns Ms. Shellenberger’s purchase of Defendants’ 10 warranty plan (the “Service Plan”), which provided inferior coverage than she expected 11 for her new KitchenAid dishwasher. Ms. Shellenberger alleges as follows. 12 Around April 2020, Ms. Shellenberger purchased a KitchenAid dishwasher at Best 13 Buy for $1,084.99, as well as a Geek Squad protection plan (“GSP Plan”) to cover the
14 repair costs of any potential malfunctions. (Id. ¶¶ 39-40.) Beginning around the same 15 time, Ms. Shellenberger began receiving marketing communications from Defendants. 16 (Id. ¶ 40.) One of these communications, which was either mailed or emailed to her, 17 urged her “to protect her investment by purchasing a KitchenAid Service Plan.” (Id.; see 18 also id. ¶ 41 (alleging Ms. Shellenberger continued to receive these marketing
19 communications through 2023, and attaching examples of letters that use “identical 20
21 1 AIGWG requests oral argument (AIGWG Mot. at 1), but the other parties do not (see Whirlpool Mot. at 1; AIG Resp. at 1; Whirlpool Resp. at 1). The court determines oral argument 22 would not aid in its disposition of the motions. See Local Rules W.D. Wash. LCR 7(b)(4). 1 language” as the original offer), Exs. 4-6 (“Mktg. Materials”).) This marketing offer 2 described the Service Plan as providing “repair or replacement benefits for covered
3 malfunctions at no out-of-pocket expenses to the consumer and paying for 100% of the 4 required parts and labor for such repairs.” (Id. ¶ 42.) The offer used KitchenAid 5 branding, claimed to provide “KitchenAid certified technicians using factory certified 6 parts,” and gave the option to select from a variety of term lengths. (Id. ¶¶ 42-43.) It also 7 contained a disclaimer that directed readers to a KitchenAid webpage for complete terms 8 and conditions. (See Mktg. Materials at 47.)2 At some point, Ms. Shellenberger visited
9 the KitchenAid website and viewed promotional language similar to what she had seen 10 on the mailers, though she does not remember exactly when she did so. (Compl. ¶ 46.) 11 After learning the Service Plan was cheaper than her GSP Plan, Ms. Shellenberger 12 called the number listed on Defendants’ marketing offer and bought a three-year Service 13 Plan over the phone. (Id. ¶¶ 47-48.) She subsequently received a confirmation email
14 with details about her Service Plan. (Id. ¶ 50.) Ms. Shellenberger alleges Defendants are 15 both parties to the Service Plan contract, with Whirlpool acting as “the Service Contract 16 Administrator,” and AIGWG as the “Obligor.” (Id. ¶¶ 2, 96; see also id. ¶ 13 n.3, Ex. 17 8 (“Contract”) at 60.) Ms. Shellenberger later canceled her GSP Plan, for which she 18 obtained a refund. (Compl. ¶ 52.)
19 Ms. Shellenberger’s dishwasher began malfunctioning soon after purchase. (Id. 20 ¶ 53.) She contacted Whirlpool and obtained a replacement gasket under the 21
2 The court refers to the page numbers contained in the CM/ECF header when citing to 22 exhibits attached to the complaint. 1 manufacturer’s warranty. (Id.) This fix did not last, however, because some time later 2 Ms. Shellenberger began observing similar problems with the gasket. (Id. ¶ 54.) In
3 September 2022, she submitted a claim under her Service Plan. (Id.) She also called 4 Whirlpool, although this time, the agent informed her that because “there were no 5 appointments available in [Whirlpool’s] network,” Ms. Shellenberger “could hire an 6 independent repair company to fix her appliance, pay out-of-pocket fees for the services,” 7 and then “seek reimbursement from Whirlpool.” (Id.) The Whirlpool agent also advised 8 that any third-party repair service must comply with various conditions before proceeding
9 with a repair, for example by performing a diagnostic test and sending a repair estimate to 10 Whirlpool. (Id. ¶ 55.) Ms. Shellenberger attempted to locate a suitable repair service but 11 “gave up” after approximately one week. (Id. ¶ 56.) 12 Ms. Shellenberger continued using the malfunctioning dishwasher until February 13 2023, when it stopped working. (Id. ¶¶ 56-57.) She submitted another claim to
14 Whirlpool under her Service Plan, but “was informed that, under the terms of her Service 15 Contract, her appliance would be bought out for $764.36.” (Id. ¶ 57.) When Ms. 16 Shellenberger asked whether a replacement was possible, the Whirlpool agent “told her 17 that she could either accept the Buyout or get nothing.” (Id.) Ms. Shellenberger used the 18 buyout payment—supplemented with her own funds—to purchase a new dishwasher.
19 (Id. ¶ 59.) Ms. Shellenberger also purchased a new warranty plan upon learning that her 20 Service Plan term ended at the time of the buyout. (Id. ¶ 58.) 21 Ms. Shellenberger initiated this action on May 10, 2024, claiming Defendants’ 22 marketing materials deceptively misrepresented and omitted material terms of the Service 1 Plan contract. (See generally id.) Ms. Shellenberger alleges Defendants’ marketing 2 impresses upon consumers that the Service Plans are related to, and offer coverage
3 benefits comparable to, the Whirlpool manufacturer’s warranty. (Id. ¶¶ 4-8.) But 4 according to Ms. Shellenberger, the Service Plans offer “inferior” coverage and allow 5 Defendants “to generate unfair profits for themselves at the expense of unsuspecting 6 consumers”—particularly through the buyout provision. (Id. ¶¶ 10, 68; see also id. 7 ¶¶ 8-12; Contract § 20 (permitting the buyout of an appliance, rather than repair or 8 replacement, at Defendants’ sole discretion).) Ms. Shellenberger asserts claims against
9 Defendants for: (1) violation of Washington’s Consumer Protection Act (“CPA”), ch. 10 19.86 RCW; (2) breach of contract; and (3) breach of the duty of good faith and fair 11 dealing. (Compl. ¶¶ 84-107.) Defendants each filed a motion to dismiss the complaint, 12 describing this case as a “copycat lawsuit” based on a similar putative class action that 13 Ms. Shellenberger’s attorney filed last year in the Central District of California.
14 (AIGWG Mot. at 1 & n.1 (citing Salas v. Whirlpool Corp., No. 5:23-CV-01549-AB-KK, 15 2024 WL 694067 (C.D. Cal. Jan. 24, 2024)); Whirlpool Mot. at 12 & n.3 (same).) The 16 court stayed discovery in this case pending resolution of Defendants’ motions to dismiss. 17 (8/19/24 Order (Dkt. # 44).) The motions are now ripe for decision. 18 III. ANALYSIS
19 The court begins by setting forth the relevant legal standards before turning to 20 threshold procedural matters and then the merits. Because Defendants join in each 21 other’s motions, the court analyzes the motions as one. 22 // 1 A. Legal Standards 2 Subject matter jurisdiction is a threshold issue that goes to the court’s power to
3 hear a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). Federal 4 Rule of Civil Procedure 12(b)(1) allows a party to seek dismissal of a claim for lack of 5 subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When subject matter jurisdiction is 6 challenged, the party asserting that jurisdiction exists bears the burden of proof. Vacek v. 7 U.S.P.S., 447 F.3d 1248, 1250 (9th Cir. 2006). 8 In addition, Federal Rule of Civil Procedure 12(b)(6) provides for dismissal when
9 a complaint “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 10 12(b)(6). Under this standard, dismissal is proper when there is a “lack of a cognizable 11 legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” 12 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint must 13 “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
14 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 15 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must construe the allegations in 16 the light most favorable to the nonmoving party, Livid Holdings Ltd. v. Salomon Smith 17 Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005), but need not accept as true legal 18 conclusions, “formulaic recitation[s] of the legal elements of a cause of action,” Chavez
19 v. United States, 683 F.3d 1102, 1008 (9th Cir. 2012), or “allegations that are merely 20 conclusory, unwarranted deductions of fact, or unreasonable inferences,” Sprewell v. 21 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “A claim has facial 22 plausibility when the pleaded factual content allows the court to draw the reasonable 1 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 2 “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it
3 stops short of the line between possibility and plausibility of entitlement to relief.” Id. 4 (cleaned up). 5 Ms. Shellenberger’s claims under the CPA are subject to the heightened pleading 6 standards of Federal Rule of Civil Procedure 9(b), which provides that, “[i]n alleging 7 fraud or mistake, a party must state with particularity the circumstances constituting fraud 8 or mistake.” Fed. R. Civ. P. 9(b); see also Promedev, LLC v. Wilson, No. C22-1063JLR,
9 2023 WL 2330377, at *3 (W.D. Wash. Mar. 2, 2023) (applying Rule 9(b)’s heightened 10 pleading standard to a CPA claim). Under Rule 9(b), fraud allegations must “be specific 11 enough to give defendants notice of the particular misconduct . . . so that they can defend 12 against the charge and not just deny that they have done anything wrong.” Kearns v. 13 Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (citation omitted). “Averments of
14 fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct 15 charged.” Id. (quoting Vess v. Cib-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 16 2003)). Rule 9(b)’s standard is relaxed, but not eliminated, with respect to fraudulent 17 omissions. Short v. Hyundai Motor Co., 444 F. Supp. 3d 1267, 1279 (W.D. Wash. Mar. 18 16, 2020).
19 B. Procedural Matters 20 As a threshold matter, Defendants ask the court to consider certain documents not 21 attached to the complaint. 22 // 1 In general, the court’s review of a motion to dismiss is limited to the allegations 2 contained in the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.
3 2001). “If a complaint is accompanied by attached documents, . . . [t]hese documents are 4 part of the complaint and may be considered in determining whether the plaintiff can 5 prove any sest of facts in support of the claim.” Durning v. First Bos. Corp., 815 F.2d 6 1265, 1267 (9th Cir. 1987). “Even if a document is not physically attached to a 7 complaint, it may be incorporated by reference into a complaint if the plaintiff refers 8 extensively to the document or the document forms the basis of the plaintiff’s claim.”
9 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The “incorporation by 10 reference” doctrine permits consideration of documents “whose authenticy no party 11 questions,” and it “applies with equal force to internet pages as it does to printed 12 material.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon 13 Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999)).
14 AIGWG argues the court “should consider the contents of the webpage 15 ‘serviceplans.kitchenaid.com/details’ at the time the Complaint was filed” because “the 16 webpage has been incorporated by reference into the Complaint.” (AIGWG Mot. at 4 17 n.6; see Lowe Decl. (Dkt. # 24) ¶ 2, Ex. A (attaching “[a] screensot of the website 18 homepage as it appeared on June 25, 2024”).) As AIGWG explains, however, the
19 screenshot it seeks to introduce actually reflects a “new landing page” located at 20 “whirlpooldomesticandgeneral.us,” rather than the domain that appears on Defendants’ 21 marketing materials. (AIGWG Mot. at 4 n.6.) Because Ms. Shellenberger disputes the 22 // 1 authenticity of the webpage at issue (AIGWG Resp. at 16 n.4), the court declines to 2 consider the document. Knievel, 393 F.3d at 1076.
3 In addition, Defendants each attempt to introduce a copy of Ms. Shellenberger’s 4 GSP Plan, arguing it is extensively referenced throughout the complaint. (AIGWG Mot. 5 at 4; Lowe Decl. ¶ 3, Ex. B; Whirlpool Mot. at 9 n.2; Harris Decl. ¶ 3, Ex. 1.) But 6 because Ms. Shellenberger disputes the authenticity of these documents (AIGWG Resp. 7 at 5 n.2), the court likewise declines to consider them. Knievel, 393 F.3d at 1076. 8 C. Article III Standing
9 Defendants first seek dismissal pursuant to Rule 12(b)(1) based on the absence of 10 subject matter jurisdiction, arguing Ms. Shellenberger lacks Article III standing. 11 (AIGWG Mot. at 9-12.) The court disagrees. 12 At the pleading stage, a plaintiff must clearly allege facts demonstrating each 13 element of standing under Article III of the United States Constitution. Spokeo, Inc. v.
14 Robins, 578 U.S. 330, 338 (2016). To plead standing, a plaintiff must allege that she 15 “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the 16 defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. 17 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). “To establish injury in fact, a 18 plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’
19 that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or 20 hypothetical.’” Id. at 339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). 21 In the consumer protection context, a plaintiff can plead an “overpayment theory” of 22 injury by alleging “she paid more for a product than she otherwise would have due to a 1 defendant’s false representations about the product.” McGee v. S-L Snacks Nat., 982 2 F.3d 700, 706 (9th Cir. 2020) (citing Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595
3 (9th Cir. 2012) (holding plaintiffs pled injury in fact where they allegedly bought a 4 product “when they otherwise would not have done so” due to the defendant’s “deceptive 5 claims”)). A plaintiff can plead a “benefit of the bargain theory” of injury by alleging 6 “she bargained for a product worth a given value but received a product worth less than 7 that value.” Id. at 705-06 (quoting In re Johnson & Johnson Talcum Powder Prods. 8 Mktg., Sales Pracs. & Liab. Litig., 903 F.3d 278, 283 (3d Cir. 2018)). To successfully
9 plead a benefit of the bargain theory, a plaintiff “must do more than allege that she did 10 not receive the benefit she thought she was obtaining.” Id. at 706 (cleaned up). She 11 “must show that she did not receive a benefit for which she actually bargained.” Id. 12 Here, Ms. Shellenberger alleges both an overpayment theory and a benefit of the 13 bargain theory of injury. First, Ms. Shellenberger alleges she overpaid because she
14 would not have purchased the Service Plan but for Defendants’ deceptive marketing (see 15 Compl. ¶¶ 18, 61, 88), which provides an independent basis for Article III standing. See 16 Mazza, 666 F.3d at 595. Second, Ms. Shellenberger asserts a benefit of the bargain 17 theory by alleging Defendants made false representations that the Service Plan included 18 certain benefits that she did not receive—including full term coverage and no
19 out-of-pocket repair expenses—rendering her plan less valuable than the plan for which 20 she bargained. (See Compl. ¶¶ 42-45, 51, 54, 58, 66-67, 86-87, 96-99, 104-05.) This, 21 too, provides an independent basis for Article III standing. See McGee, 982 F.3d at 22 705-06. 1 Defendants challenge Ms. Shellenberger’s benefit of the bargain theory of injury. 2 (See AIGWG Mot. at 9-12; AIGWG Reply at 2-3.) In Defendants’ view, Ms.
3 Shellenberger lacks standing because “[t]he terms and conditions in the Service 4 Contract . . . were clearly part of [her] bargain” (AIGWG Mot. at 12), and she therefore 5 fails to “allege that she did not receive a benefit for which she actually bargained” 6 (AIGWG Reply at 2 (citing McGee, 982 F.3d at 706)). Defendants’ reliance on McGee 7 overlooks a critical distinction: that case did not involve any alleged misrepresentations, 8 whereas this case does. See McGee, 982 F.3d at 707 (holding plaintiff lacked standing
9 because defendant made no representations about its product’s safety, and plaintiff’s 10 assumptions that the product was safe “were not included in the bargain”). That 11 distinction matters. Relying on one’s own assumptions about the benefits of a bargain in 12 the absence of any alleged misrepresentations by the defendant is not the same as 13 affirmatively relying on a defendant’s false or misleading representations about the
14 benefits of that bargain. See id. (explaining that where a consumer purchases a product 15 based on the defendant’s “representation of its safety,” the representation is “part of the 16 benefit of her bargain” and the plaintiff does “not receive the benefit of her bargain” if 17 the “representation was false” (quoting In re Johnson, 903 F.3d at 298 (Fuentes, J., 18 dissenting))). Here, Ms. Shellenberger’s assumptions about the Service Plan’s benefits
19 did not come from thin air; she alleges they resulted from Defendants’ false 20 representations. That is a viable benefit of the bargain theory under McGee. 21 Accordingly, the court concludes Ms. Shellenberger has Article III standing to 22 pursue her claims. 1 D. Failure to State a Claim 2 Defendants next seek dismissal pursuant to Rule 12(b)(6), arguing Ms.
3 Shellenberger fails to state a claim. The court concludes dismissal is warranted as to each 4 claim. 5 1. CPA 6 The CPA makes unlawful “[u]nfair methods of competition and unfair or 7 deceptive acts or practices in the conduct of any trade or commerce.” RCW 19.86.020. 8 To state a claim under the CPA, a plaintiff must allege an (1) unfair or deceptive act or
9 practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to the 10 plaintiff in her business or property; and (5) causation. Hangman Ridge Training Stables, 11 Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash. 1986). “The failure to establish 12 any of the elements is fatal to a CPA claim.” Holiday Resort Com. Ass’n v. Echo Lake 13 Assocs., LLC, 135 P.3d 499, 507 (Wash. Ct. App. 2006). As noted, CPA claims are
14 subject to Rule 9(b)’s heightened pleading standard. (See supra § III(A).) 15 Here, Ms. Shellenberger asserts a litany of grievances about her Service Plan (see 16 Compl. ¶¶ 1-19, 29-68), without enumerating or citing the particular misrepresentations 17 and omissions that she challenges in connection with her CPA claims (id. ¶¶ 86-87). The 18 amorphous nature of Ms. Shellenberger’s CPA claims makes it difficult to evaluate their
19 sufficiency. Indeed, in endeavoring to comprehensively address all of the possible CPA 20 theories raised in the complaint, Defendants raise numerous arguments that cover 21 significant ground. (See generally AIGWG Mot.; Whirlpool Mot.) At bottom, however, 22 the parties dispute three CPA elements—deception, injury, and causation—and whether 1 the factual allegations satisfy Rule 9(b). For a variety of reasons, the court concludes that 2 none of the challenged misrepresentations or omissions is sufficiently pleaded.
3 a. Deception 4 A CPA claim “may be predicated upon . . . an act or practice that has the capacity 5 to deceive substantial portions of the public.” Young v. Toyota Motor Sales, U.S.A., 472 6 P.3d 990, 994 (Wash. 2020) (quoting Klem v. Wash. Mut. Bank, 295 P.3d 1179, 1187 7 (Wash. 2013)). “Deception exists ‘if there is a representation, omission or practice that is 8 likely to mislead’ a reasonable consumer.” Id. (quoting Panag v. Farmers Ins. Co. of
9 Wash., 204 P.3d 885, 895 (Wash. 2009)). “In evaluating the tendency of language to 10 deceive,” courts “look not to the most sophisticated readers but rather to the least.” 11 Panag, 204 P.3d at 895 (quoting Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1174 (11th 12 Cir. 1985)). “Whether a particular act or practice is ‘unfair or deceptive’ is a question of 13 law.” Id. at 894.
14 Defendants argue Ms. Shellenberger fails to allege an unfair or deceptive act or 15 practice because much of the challenged conduct is permitted by and conspicuously 16 disclosed in the Service Plan contract. (AIGWG Mot. at 12-16.) As Defendants explain, 17 the marketing materials that allegedly induced Ms. Shellenberger to buy a Service Plan 18 expressly stated that the “complete terms and conditions” were available on Defendants’
19 website. (AIGWG Mot. at 13 (quoting Mktg. Materials at 47).) In Defendants’ view, 20 Ms. Shellenberger “cannot rest a CPA claim on her own refusal to review available 21 contractual terms and conditions.” (Id. at 13-14; see also Whirlpool Mot. at 20-22.) In 22 opposition, Ms. Shellenberger does not meaningfully respond to Defendants’ argument 1 that she was afforded the opportunity to view the contract online prior to purchase. (See 2 generally AIGWG Resp.; Whirlpool Resp.) Instead, she emphatically argues that the
3 contract is immaterial because “[s]he did not view or rely on” it in purchasing her Service 4 Plan, and “nothing on record” shows that she received or read the contract at any time. 5 (See AIGWG Resp. at 16-18.) The court agrees with Defendants. 6 To begin, the contract specifically addresses most all of the allegedly deceptive 7 conduct referenced in the complaint. This includes (but is not necessarily limited to) 8 misrepresentations and omissions concerning: Defendants’ entitlement to pay for, rather
9 than furnish, the labor and materials necessary for repairs (see Compl. ¶¶ 13, 54); 10 Defendants’ entitlement to exercise a buyout at their option (see id. ¶¶ 8, 42, 44, 64(a)); 11 the settlement payout value (see id. ¶¶ 8-9, 64(b)-(c)), 65(b)-(d)); the requirement to 12 surrender the covered appliance upon a buyout (see id. ¶¶ 8, 44, 64(e)); and the 13 termination of coverage upon a buyout (see id. ¶¶ 43, 45, 64(d)). (See Contract §§ 1, 20
14 (disclosing all of these terms).) The contract likewise addresses Ms. Shellenberger’s 15 allegation of an “undisclosed Payout Limit” that Defendants apply in deciding whether to 16 pursue a repair versus a replacement or buyout. (Compl. ¶¶ 65(b)-(d) (“When the 17 estimated repairs under a claim exceed the Payout Limit, Defendants routinely exercise 18 their Buyout option even if the product can be repaired.”).) Indeed, the contract states
19 that Defendants “will” “complete the lesser of” (a) a repair, or (b) a replacement or 20 buyout, and that the value of a replacement or buyout will not exceed 75% of the original 21 purchase price in any case. (Contract §§ 10 (emphasis added), 20 (setting forth a 22 “depreciation schedule” that Defendants use to determine the buyout value of a particular 1 product based on its age).) Under the plain terms of the contract, Defendants will always 2 elect a buyout where the cost of a repair exceeds the maximum buyout value as set forth
3 in the depreciation schedule. Thus, the payout limit, and many other allegedly deceptive 4 terms as set forth above, were readily discoverable to any consumer upon a simple review 5 of the contract.3 6 Moreover, the contract was available to Ms. Shellenberger prior to purchase. As 7 Ms. Shellenberger acknowledges, Defendants’ allegedly deceptive marketing materials 8 contained a “disclaimer” that the complete terms and conditions could be viewed at
9 “serviceplans.kitchenaid.com/details.” (AIGWG Resp. at 16; see Mktg. Materials at 47.) 10 “In other words,” Defendants put Ms. Shellenberger on notice “that the marketing 11 materials did not contain the ‘complete terms and conditions’ of the Service Contract.” 12 3 Ms. Shellenberger further alleges that “[i]t is Defendants’ business policy to increase 13 their profits through the systematic exercise of Buyouts which Defendants use to avoid having to repair or replace an appliance that is covered under a Whirlpool Plan.” (Compl. ¶ 65(a).) But 14 this generalized allegation is wholly unsupported by the facts of Ms. Shellenberger’s case, where Defendants “cho[se] to resolve [her] 2022 claim with a repair” and offered to reimburse her for 15 the same before later exercising a buyout. (Id. ¶¶ 54-59, 105.) The court therefore declines to credit the allegation that Defendants implement “a systematic exercise of Buyouts” to “increase their profits.” (Id. ¶ 65(a)); see Sprewell, 266 F.3d at 988 (stating the court need not “accept as 16 true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences”); see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a 17 right to relief above the speculative level.”). 18 In addition, Ms. Shellenberger alleges that when she submitted her September 2022 claim, a Whirlpool agent told her “there were no appointments available in her network.” (Compl. ¶ 54.) Based on this single fact, Ms. Shellenberger asserts that “access to factory 19 certified technicians under the [Service] Plan is inferior to that available under the Whirlpool Warranty,” and if she had known this, “she would not have purchased a [Service] Plan.” (Id. 20 ¶¶ 54, 60-61, 68.) Ms. Shellenberger neither provides a copy of the manufacturer’s warranty nor alleges any concrete facts regarding the availability of technicians under the warranty. (See 21 generally id.) The court therefore declines to credit the allegation that the Service Plan provides inferior access to certified technicians than the manufacturer’s warranty. See Sprewell, 266 F.3d 22 at 988; see also Twombly, 550 U.S. at 555. 1 (AIGWG Mot. at 13.) Ms. Shellenberger could have reviewed those complete terms and 2 conditions on Defendants’ website before purchase, allowing her to make an informed
3 decision whether or not to buy the Service Plan upon discovering the contract terms that 4 she now finds objectionable. (See Mktg. Materials at 47 (directing consumers to 5 Defendants’ website for complete terms and conditions); Compl. ¶ 58, n.3 (alleging the 6 Service Plan contract was available on Defendants’ website); see generally Contract).) 7 Her failure to do so does not amount to deception. 8 Ms. Shellenberger suggests that the disclaimer was ineffective insofar as it
9 appeared in “fine print” (AIGWG Resp. at 17), and that the marketing materials created a 10 “deceptive net impression” notwithstanding the disclaimer (Whirlpool Resp. at 12-14). 11 The court disagrees. The disclaimer was written in plain English, and it was not hidden 12 or difficult to read. In fact, immediately next to “KitchenAid Service Plan Benefits,” 13 which appears near the top of the mailer in bold typeface and relatively large font, is a
14 bold aterisk directing the viewer’s attention to the disclaimer at the bottom of the page. 15 (See Mkt. Materials at 47, 52, 55.) Any reasonable consumer—even the least 16 sophisticated reader—would notice the disclaimer and understand its message. See 17 Freeman v. Time, Inc., 68 F.3d 285, 289-90 (9th Cir. 1995) (holding, under California 18 law, that qualifying language in promotional mailers was not “hidden or unreadably
19 small” and no reasonable consumer would ignore it). Ms. Shellenberger’s cited cases do 20 not aid her “deceptive net impression” argument because, with respect to each one, either 21 the facts are distinguishable or the court did not actually find a deceptive net impression. 22 (See Whirlpool Resp. at 12); Amazon.com Servs. LLC v. Paradigm Clinical Rsch. Inst., 1 Inc., No. C21-0753JNW, 2024 WL 1345197, at *1-2, *7 (W.D. Wash. Mar. 29, 2024) 2 (involving deceptive net impression based on statements that were apparently untethered
3 to any qualifying or disclaiming language); Keithly v. Intelius Inc., 764 F. Supp. 2d 1257, 4 1267-69 (W.D. Wash. 2011) (concluding online transaction created deceptive net 5 impression where defendant failed to “draw attention to important disclosures,” but 6 finding no deceptive net impression in different transaction where “a reasonable 7 consumer could not [have] ignore[d] or skim[med] over” a conspicuous though imperfect 8 disclosure); REX-Real Est. Exch. Inc. v. Zillow Inc., No. C21-0312TSZ, 2021 WL
9 2352043, at *7 (W.D. Wash. June 9, 2021) (concluding plaintiff failed to meet burden of 10 showing deceptive net impression).4 11 The court is similarly unpersuaded by Ms. Shellenberger’s argument that in 12 purchasing the Service Plan, she relied only on the marketing materials and a subsequent 13
14 4 Ms. Shellenberger does not substantively respond to Defendants’ argument that the contract terms (as opposed to the disclaimer) are set forth clearly and conspicuously, calling this argument a “red herring.” (AIGWG Resp. at 18; see also AIGWG Mot. at 14-15; Whirlpool 15 Mot. at 21-22.) Ms. Shellenberger is correct to the extent that this argument imports principles of California law that are inapplicable here. (See AIGWG Mot. at 15 (citing Salas, 2024 WL 16 694067, at *7 (holding the contract terms were “clear and conspicuous” within the meaning of California’s consumer protection statute))); see also Cal. Civ. Code § 1794.4(c)(5)(A)-(B) 17 (requiring certain service contract terms to be “clear and conspicuous”). In Washington, however, the format of contract terms is relevant to the question of procedural unconscionability, 18 which can be relevant to CPA claims. See Zuver v. Airtouch Commc’ns, Inc., 103 P.3d 753, 759-60 (Wash. 2004) (stating “procedural unconscionability” is the lack of meaningful choice, 19 considering whether the important contract terms were hidden “in a maze of fine print,” among other factors); State v. Kaiser, 254 P.3d 850, 860 (Wash. Ct. App. 2011) (holding “unfair and 20 unconscionable agreements . . . violated the CPA”). Although Ms. Shellenberger does not expressly argue the contract is procedurally unconscionable or otherwise invalid, she vaguely alleges certain contract terms are “not clearly disclosed” and “buried under misleading 21 headings.” (Compl. ¶ 64.) To remove any doubt, the court concludes for the reasons set forth in AIGWG’s motion that the contract terms are clear and conspicuous and not hidden in a maze of 22 fine print. 1 phone call rather than the contract. (See AIGWG Resp. at 16, 19-20.) First, reliance 2 concerns a separate element of a CPA claim—causation—and is not a component of the
3 deception element. Young, 472 P.2d at 994. Second, accepting this argument would 4 encourage CPA claims premised on a consumer’s blind ignorance. The case law, 5 however, overwhelmingly supports Defendants’ position that a consumer cannot plead 6 deception under the CPA based on “surprise” contract terms that were fully and 7 sufficiently disclosed to her, but that she failed to read before signing on the dotted line. 8 See, e.g., In re Amazon Serv. Fee Litig., No. C22-0743TL, 2024 WL 3460939, at *8-9
9 (W.D. Wash. July 18, 2024) (finding no deception based on supposedly hidden fees that 10 were disclosed at checkout and permitted by the terms and conditions to which 11 subscribers had agreed); Storey v. Amazon.com Servs. LLC, No. C23-1529KKR, 2024 12 WL 2882270, at *6 (W.D. Wash. July 7, 2024) (rejecting theory that “reasonable 13 consumers do not read all of the terms and conditions of their contracts or should not be
14 expected to do so” and dismissing CPA claim); Haywood v. Amazon.com, Inc., No. 15 C22-1094JHC, 2023 WL 4585362, at *7 (W.D. Wash. July 18, 2023) (“[E]xercising a 16 right a that a contract permits and is fully disclosed to the parties in advance is not an 17 unfair or deceptive act or practice.”); Lowden v. T-Mobile USA, Inc., No. C05-1482MJP, 18 2009 WL 537787, at *3 (W.D. Wash. Feb. 18, 2009) (finding no deception where
19 contract “sufficiently disclosed” the challenged conduct); Smale v. Cellco P’ship, 547 F. 20 Supp. 2d 1181, 1189 (W.D. Wash. 2008) (finding no deception where defendant 21 “disclosed from the inception of its relationship with each Plaintiff that it could charge 22 additional fees”); see also Cole v. Keystone RV Co., No. C18-5182TSZ, 2021 WL 1 3111452, at *4-5 (W.D. Wash. July 22, 2021) (concluding the disclosure of material 2 information online, rather than by plaintiff’s “preferred method,” did “not itself constitute
3 a deceptive act under the CPA”). 4 In short, Defendants’ marketing materials expressly directed Ms. Shellenberger to 5 the complete terms and conditions of a valid contract that she could have reviewed before 6 freely entering. Ms. Shellenberger cannot ignore readily available contract terms and 7 then plausibly claim she was deceived by those terms.5 8 b. Causation
9 “[W]here a defendant has engaged in an unfair or deceptive act or practice, and 10 there has been an affirmative misrepresentation of fact, our case law establishes that there 11 must be some demonstration of a causal link between the misrepresentation and the 12 plaintiff’s injury.” Deegan v. Windermere Real Est./Ctr.-Isle, Inc., 391 P.3d 582, 587 13 (Wash. Ct. App. 2017) (quoting Indoor Billboard/Wash., Inc. v. Integra Telecom of
14 Wash., Inc., 170 P.3d 10, 22 (Wash. 2007)); cf. id. at 589 (noting “causation under the 15 CPA for omission of material facts includes a rebuttable presumption of reliance”). To 16 prove causation, “[a] plaintiff must establish that, but for the defendant’s unfair or 17 deceptive practice, the plaintiff would not have suffered an injury.” Indoor Billboard, 18 170 P.3d at 22. Reliance is one way to establish the necessary causal link. Deegan, 391
19 20 5 To the extent Ms. Shellenberger alleges deception based on misrepresentations and/or omissions regarding the Service Plan offeror (see Compl. ¶¶ 3-5, 33, 42), that argument similarly 21 fails because the disclosure in Defendants’ marketing materials expressly states that “KitchenAid Service Plans are offered, sold and issued by AIG WarrantyGuard, Inc.,” and that “KitchenAid is 22 not affiliated with AIG” (Mktg. Materials at 47, 52, 55). 1 P.3d at 587. see also Young, 472 P.3d at 996-97 (affirming dismissal for failure to 2 establish reliance where the plaintiff advanced no other theory of causation).
3 The court agrees with Defendants that Ms. Shellenberger fails to plausibly allege 4 reliance (and thus, causation) in connection with Defendants’ alleged misrepresentations. 5 Although Ms. Shellenberger argues “reliance is not a necessary element of a CPA claim” 6 (Whirlpool Resp. at 9), Defendants correctly note that she “has articulated no other 7 theory” (Whirlpool Reply at 8). And the complaint is wholly devoid of allegations 8 explaining the particular misrepresentations on which Ms. Shellenberger relied in
9 purchasing her Service Plan. (See generally Compl.) For example, Ms. Shellenberger 10 generally alleges that Defendants’ promotional activities “leave consumers with the 11 impression” that the Service Plans “effectively work as an extension of Whirlpool’s 12 original manufacturer’s warranty” and “offer protection comparable to the Whirlpool 13 Warranty.” (Compl. ¶ 4; see also id. ¶ 14 (“Thousands of consumers purchase AIGWG’s
14 service plans each year under the mistaken belief that they are purchasing extensions to 15 Whirlpool’s manufacturer’s warranties.”).) But Ms. Shellenberger does not connect these 16 allegations to her own consumer experience whatsoever. (See generally id.; see also 17 Whirlpool Mot. at 19 (observing Ms. Shellenberger “does not allege that she purchased 18 her [Service Plan] based on that mistaken belief”).)
19 As it stands, the allegations show Ms. Shellenberger considered nothing other than 20 price in deciding to purchase the Service Plan. (Compl. ¶ 47 (“After viewing the pricing 21 for the KitchenAid Plan and seeing it was lower than what she had paid for her GSP Plan, 22 [Ms.] Shellenberger reasoned that she could save money by cancelling her GSP Plan to 1 obtain a refund and purchasing a KitchenAid Plan instead.”).) Accordingly, the court 2 concludes that Ms. Shellenberger fails to plausibly allege causation with respect to
3 Defendants’ alleged misrepresentations. 4 c. Rule 9(b) Particularity 5 Finally, many of Ms. Shellenberger’s allegations fall short of Rule 9(b) 6 requirements. Ms. Shellenberger merely describes the content of Defendants’ marketing 7 materials without identifying what she actually read, aside from the pricing and coverage 8 term options. (See id. ¶¶ 40-45, 47.) Thus, she fails to specify which portions of the
9 marketing “[s]he found material” and what “[s]he relied upon” in deciding to buy her 10 Service Plan. Kearns, 567 F.3d at 1126. Particularly hollow are Ms. Shellenberger’s 11 vague allegations that she viewed “the representation” attached to the complaint at 12 Exhibit 7 when she “visited the KitchenAid website” at some unknown time. (Compl. 13 ¶ 46 (stating “[Ms.] Shellenberger does not remember the exact date of this visit); see
14 also id., Ex. 7 (containing many different representations).) Without pleading the “what” 15 or “when” of this website visit, Ms. Shellenberger fails to allege with particularity how 16 any specific representation on the website fraudulently induced her to purchase a Service 17 Plan. Thus, Ms. Shellenberger fails to meet Rule 9(b) requirements with respect to 18 Defendants’ alleged misrepresentations.
19 In sum, Ms. Shellenberger fails to state a claim under the CPA, and this claim is 20 dismissed. 21 // 22 // 1 2. Breach of Contract 2 A party asserting a breach of contract claim must allege the existence of a valid
3 contract between the parties, breach, and resulting damage. See Lehrer v. Wash. Dep’t of 4 Soc. & Health Servs., 5 P.3d 722, 727 (Wash. Ct. App. 2000); see also Nw. Indep. Forest 5 Mfrs. v. Dep’t of Lab. & Indus., 899 P.2d 6, 9 (Wash. Ct. App. 1995) (“A breach of 6 contract is actionable only if the contract imposes a duty, the duty is breached, and the 7 breach proximately causes damage to the claimant.”). The parties here dispute whether 8 Ms. Shellenberger has sufficiently alleged breach and damages.
9 Beginning with breach, Ms. Shellenberger alleges Defendants breached the 10 Service Plan contract “by failing to provide her with repair, replacement, or Buyout 11 benefits of the claim she submitted around September 2022.” (Compl. ¶ 98.) But Ms. 12 Shellenberger does not identify in her complaint the particular contract provision that she 13 alleges Defendants breached, which independently dooms her claim. See Block Mining,
14 Inc. v. Hosting Source LLC, No. C24-0319JLR, 2024 WL 3012948, at *10 (W.D. Wash. 15 June 14, 2024) (stating “federal courts regularly dismiss unadorned breach of contract 16 claims where the claimant fails to cite the contractual provision that was allegedly 17 breached,” and collecting cases). 18 Ms. Shellenberger clarifies in opposition that her claim rests on Sections 1 and 10
19 of the contract. (See Whirlpool Resp. at 20-21.) Section 1 requires Defendants to 20 “furnish labor, parts, and/or replacement equipment (or pay for the same) necessary to 21 repair” a covered appliance. (Contract § 1). Section 10 requires Defendants to, at their 22 option, “complete the lesser of (a) repair of Your Product with new or refurbished parts, 1 or (b) Exchange or Buyout Your Product.” (Id. § 10 (emphasis added).) According to 2 Ms. Shellenberger, Defendants failed to fulfill these contractual obligations because they
3 never completed a repair, replacement or a buyout of her faulty dishwasher in connection 4 with her September 2022 claim. (AIGWG Resp. at 23.) 5 Even if Ms. Shellenberger had made these allegations in her complaint, they 6 would still fall short. The contract expressly permits Defendants to elect, in their sole 7 discretion, a repair, replacement, or buyout. (Contract § 10.) In the event of repair, the 8 contract unambiguously permits Defendants to fulfill their repair obligations by
9 “pay[ing]” for—rather than providing—repair services. (Id. § 1 (“We will furnish labor, 10 parts, and/or replacement equipment (or pay for the same) . . . .” (emphasis added)).) 11 That is exactly what Ms. Shellenberger alleges Defendants offered in response to her 12 September 2022 claim. (Compl. ¶ 54 (“Whirlpool informed [Ms.] Shellenberger 13 that . . . she could hire an independent repair company to fix her appliance” and then
14 “seek reimbursement from Whirlpool.”).) It was Ms. Shellenberger who “gave up” on 15 locating a possible repair service and did not seek reimbursement. (Id. ¶ 56.) After Ms. 16 Shellenberger submitted a second claim for the same dishwasher five months later, 17 Defendants fulfilled all of their contractual obligations with respect to Ms. 18 Shellenberger’s dishwasher by completing a buyout. (Compl. ¶¶ 57-59; see Contract
19 §§ 12 (“All contractual obligations for the specified Product are fulfilled, in lieu of 20 repairs, upon Exchange or Buyout of Your Product.”), 16 (“Once you have received Your 21 Product Exchange or Buyout, all of Our contractual obligations for the specified Product 22 have been fulfilled.”), 20 (“We will have satisfied all contractual obligations owed for the 1 specific Product if We Exchange or Buyout Your Product under this section.”).) 2 Accordingly, Defendants’ alleged conduct fully conformed with the contract and
3 Defendants satisfied all of their obligations under that contract. See Haywood, 2023 WL 4 4585362, at *4 (“[A] breach of contract claim is not legally cognizable when based on 5 conduct that the contract permits.”). 6 The court rejects Ms. Shellenberger’s invitation to treat her September 2022 and 7 February 2023 warranty claims as wholly independent from one another for breach of 8 contract purposes. (See AIGWG Resp. at 22; Whirlpool Resp. at 21-22.) Ms.
9 Shellenberger essentially argues Defendants breached the contract by failing to resolve 10 her September 2022 claim by the time she filed a second claim for the same product five 11 months later. The contract imposes no such deadline. (See generally Contract.) More 12 fatally, this argument is directly undermined by Sections 12, 16, and 20 of the contract, 13 which provide that a buyout resolves all contractual obligations for the covered product.
14 (See Contract §§ 12, 16, 20.) Ms. Shellenberger cannot allege a breach rooted in her 15 September 2022 claim alone because, under multiple provisions of the contract, 16 Defendants fulfilled their obligations stemming from that claim when they bought out her 17 appliance at a later date. 18 Ms. Shellenberger’s damages allegations fare no better. In Washington, contract
19 damages are ordinarily based on “an injured party’s reasonably expected benefit of the 20 bargain.” Ford v. Trendwest Resorts, Inc., 43 P.3d 1223, 1227 (Wash. 2002). Here, Ms. 21 Shellenberger admits she received her buyout benefit of $764.36. (Compl. ¶¶ 57, 59.) 22 Because a buyout satisfies all of Defendants’ obligations under the contract with respect 1 to a covered product, and Ms. Shellenberger admits to receiving a buyout payment for her 2 dishwasher, she received the full benefit of her bargain.
3 In sum, Ms. Shellenberger fails to allege a cognizable breach or damages. Her 4 breach of contract claim is therefore dismissed. 5 3. Breach of the Duty of Good Faith and Fair Dealing 6 In Washington, “there is in every contract an implied duty of good faith and fair 7 dealing that obligates the parties to cooperate with each other so that each may obtain the 8 full benefit of performance.” Rekhter v. State, Dep’t of Soc. & Health Servs., 323 P.3d
9 1036, 1041 (Wash. 2014) (cleaned up). The duty of good faith and fair dealing arises 10 “only in connection with terms agreed to by the parties.” Id. (quoting Badgett v. Sec. 11 State Bank, 807 P.2d 356, 360 (Wash. 1991)). But, the duty can “arise even when there 12 is no breach of an express contract term,” particularly “where one party has discretionary 13 authority to determine a future contract term” such as “the formula or method used to
14 calculate a particular value in the contract.” Id. at 1041-42 (capitalization altered). 15 “There is no one-size-fits-all definition of good faith and fair dealing.” Microsoft Corp. 16 v. Motorola, Inc., 963 F. Supp. 2d 1176, 1184 (W.D. Wash. 2013). For example, it may 17 violate the duty of good faith and fair dealing to “(1) evade the spirit of a bargain; 18 (2) willfully render imperfect performance; (3) interfere with or fail to cooperate in the
19 other party’s performance; (4) abuse discretion granted under the contract; or (5) perform 20 the contract without diligence.” Id. 21 Ms. Shellenberger’s claim centers on Defendants’ discretionary authority to elect a 22 repair or replacement versus a buyout. (See Contract §§ 10, 20.) Specifically, she alleges 1 Defendants breached the duty of good faith and fair dealing by (1) choosing to resolve 2 the September 2022 claim with a repair “when they knew that they had no repair
3 technicians in their network,” and (2) by choosing to resolve the February 2023 claim 4 with a buyout rather than a repair, against Ms. Shellenberger’s wishes. (Compl. 5 ¶¶ 103-07.) Assuming without deciding that the duty of good faith and fair dealing could 6 apply in this instance, Ms. Shellenberger fails to allege facts plausibly supporting a 7 breach of that duty. Indeed, it would defy logic to permit a claim based on Defendants’ 8 attempt to exercise the repair option in September 2022 when the complaint makes clear
9 that repair was Ms. Shellenberger’s preferred outcome. (See, e.g., id. ¶¶ 18, 107.) And 10 there is nothing unreasonable, abusive, or otherwise improper about Defendants pursuing 11 a buyout after they had already once offered to reimburse Ms. Shellenberger for a repair, 12 but she “gave up” on locating suitable repair services. (Id. ¶¶ 54-57.) The court 13 concludes Ms. Shellenberger fails to plausibly allege a breach of the duty of good faith
14 and fair dealing. See Iqbal, 556 U.S. at 678; Smart Apparel (U.S.), Inc. v. Nordstrom, 15 Inc., --- F. Supp. 3d ----, 2024 WL 1075502, at *6 (W.D. Wash. Mar. 11, 2024) (granting 16 motion to dismiss claim for breach of duty of good faith and fair dealing where plaintiff 17 failed to allege facts showing defendant improperly exercised discretion under contract). 18 This claim is therefore dismissed.
19 E. Leave to Amend 20 In light of the liberal policy in favor of granting leave to amend, Eminence 21 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003), the court dismisses 22 Ms. Shellenberger’s claims without prejudice and grants her leave to file an amended 1 complaint. The court warns Ms. Shellenberger that it will not tolerate strategic omission 2 of pertinent facts that may undermine her claims. Any amended complaint reasserting a
3 CPA claim must allege with particularity the circumstances of the fraudulent conduct by 4 providing the most complete, clear picture of the alleged facts as possible. See Fed. R. 5 Civ. P. 9(b). In particular, Ms. Shellenberger shall allege whether, when, and how she 6 received a copy of the Service Plan contract, including whether the contract was provided 7 to her at the time she received a confirmation email following her purchase of the Service 8 Plan. (See Compl. ¶¶ 49-50 (alleging that after she purchased her Service Plan, Ms.
9 Shellenberger “received a confirmation email” with “details about her KitchenAid Plan, 10 such as the dates of coverage and the model number of her covered dishwasher”).) 11 Failure to comply may warrant a finding of bad faith and/or sanctions, up to and 12 including dismissal of her claims with prejudice. 13 IV. CONCLUSION
14 For the foregoing reasons, the court GRANTS Defendants’ motions to dismiss 15 (Dkt. ## 23, 26). Ms. Shellenberger shall file her amended complaint, if any, by no later 16 than October 2, 2024. 17 Dated this 11th day of September, 2024. A 18 JAMES L. ROBART 19 United States District Judge 20 21 22