Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kempf v. Lumber Liquidators, Inc.

United States District Court, W.D. Kentucky, Louisville Division

September 29, 2017

KAREN KEMPF, Plaintiff,
v.
LUMBER LIQUIDATORS, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID J. HALE, JUDGE UNITED STATES DISTRICT COURT

         Karen Kempf purchased flooring for her home from Lumber Liquidators, Inc. in February 2015. Within a few weeks of installation, Kempf noticed several defects in her new floor. Kempf filed this purported class action against Lumber Liquidators, alleging violations of the Kentucky Consumer Protection Act and breaches of implied and express warranties. (Docket No. 1) She brings this action on her own behalf and on behalf of all individuals in Kentucky who purchased the same floor for their homes.

         Lumber Liquidators moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.[1] (D.N. 4) It argues that Kempf's complaint lacks sufficient factual allegations to state her claims. Kempf maintains that she sufficiently pleaded facts to support her claims. For the reasons explained below, the Court will deny the motion to dismiss.

         I. BACKGROUND

         The following facts are set out in the complaint and accepted as true for purposes of the motion to dismiss. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Lumber Liquidators is a specialty retailer of hardwood flooring. (D.N. 1, PageID # 2) In February 2015, Kempf purchased Morning Star Bamboo Flooring from Lumber Liquidators. (Id.) Before purchasing her new flooring, Kempf spoke with a sales representative who made the following statements to her about the Morning Star Bamboo Flooring: (1) “The Floor is harder and more durable than real wood”; (2) “The Floor will not dent like other hardwood floors”; (3) “The Floor is virtually scratch resistant”; (4) “The Floor is at least two-and-a-half times stronger than red oak”; and (5) “To make strand bamboo, shredded bamboo fibers are compressed under extreme heat and pressure. This manufacturing process yields flooring that is even harder and denser than traditional bamboo floors.” (Id., PageID # 2-3) The sales representative also informed Kempf that the flooring came with a thirty-year warranty. (Id., PageID # 3) Kempf decided to purchase the flooring based on the above representations. (Id.)

         Lumber Liquidators recommended to Kempf that she use its installer to install her new floor. (Id.) The installer first inspected and measured her home, suggesting that she purchase a moisture barrier that would be installed between the home's concrete slab and the floor. (Id.) Kempf purchased a moisture barrier from Lumber Liquidators as suggested. (Id.) Both the moisture barrier and the floor were installed on April 22, 2015. (Id., PageID # 3-4)

         Within a few weeks after installation, Kempf noticed the following problems: the floor began shrinking in certain areas; individual planks “started cupping”; the floor made “loud popping and cracking sounds when walked on”; some planks splintered; and the floor scratched easily. (Id., PageID # 4) Kempf raised these issues with the sales representative, who advised Kempf that “nothing was wrong” and that the floor would “settle.” (Id.) Kempf waited a couple more weeks, but the floor did not settle. (Id.) She returned to Lumber Liquidators and spoke again with the sales representative, who recommended that Kempf submit a complaint to Lumber Liquidators' corporate office. (Id.)

         In response to Kempf's complaint, Lumber Liquidators sent an inspector to her home. (Id.) On June 13, 2015, Lumber Liquidators sent Kempf a letter regarding the inspection. (Id.) The letter concluded that the problems with the floor were due to installation failures and were not covered by the floor's warranty. (Id., PageID # 5) Kempf later discovered that other consumers who purchased the Morning Star Bamboo Flooring complained of nearly identical problems. (Id.) Lumber Liquidators also told those consumers that the problems with the floor were due to installation failures and not the floor itself. (Id.)

         Kempf brought this action on behalf of herself and all individuals in Kentucky who purchased the Morning Star Bamboo Flooring from Lumber Liquidators. (Id., PageID # 6) In Count I of the complaint, she asserts a claim for violations of the Kentucky Consumer Protection Act (KCPA). (Id., PageID # 9) In Count II of the complaint, she asserts claims for breach of implied warranty and breach of express warranty. (Id., PageID # 10) Lumber Liquidators moved to dismiss these claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (D.N. 4)

         At the time Lumber Liquidators filed its motion to dismiss, a similar nationwide class action lawsuit was pending in the Northern District of California. (D.N. 4-1, PageID # 22-23) As a result, Lumber Liquidators asked the Court to either dismiss Kempf's claims or, in the alternative, stay this action pending the outcome of the California case or transfer this action to the Northern District of California. (Id., PageID # 23) In March 2017, however, the plaintiffs in the California case narrowed the scope of their claims, moving to certify a class of individuals who reside in California, Florida, Illinois, Minnesota, Pennsylvania, and West Virginia. (D.N. 13, PageID # 281) With Kentucky excluded from this proposed class, Lumber Liquidators moved to withdraw its alternative motion to stay or transfer this action. (Id.) This change does not affect Lumber Liquidators' motion to dismiss. (Id.)

         II. STANDARD

         To survive a motion to dismiss for failure to state a claim, Kempf's “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Factual allegations are essential; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” and the Court need not accept such statements as true. Id. A complaint whose “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct” does not satisfy the pleading requirements of Rule 8. Id. at 679. Legal conclusions will not carry a complaint past the motion-to-dismiss stage in the absence of supporting factual allegations, and a plaintiff is not entitled to a fishing expedition for facts to support her claims. See Id. at 678-79.

         “When the plaintiffs plead claims which sound in fraud, those claims are subject to the heightened pleading standard of Fed.R.Civ.P. 9(b).” Naiser v. Unilever U.S., Inc., 975 F.Supp.2d 727, 733, 740-41 (W.D. Ky. 2013) (applying the Rule 9(b) heightened pleading standard to the plaintiffs' KCPA claim); see Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). If allegations of fraud or mistake are made, Rule 9(b) requires a plaintiff to “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). To satisfy this heightened standard, the plaintiff must “(1) specify the time, place, and content of the alleged misrepresentation; (2) identify the fraudulent scheme and the fraudulent intent of the defendant; and (3) describe the injury resulting from the fraud.” SFS Check, LLC v. First Bank of Del., 774 F.3d 351, 358 (6th Cir. 2014). “Generalized and conclusory allegations that the [defendant's] conduct was fraudulent do not satisfy Rule 9(b).” Bovee, 272 F.3d at 361.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.