United States District Court, D. Utah
ALEJANDRO CALLEGARI, individually and on behalf of all others similarly situated, Plaintiff,
BLENDTEC, INC., Defendant.
MEMORANDUM DECISION AND ORDER
Benson United States District Judge
the court is Defendant's Motion to Dismiss pursuant to
Rules 9(b) and 12(b)(6) of the Federal Rules of Civil
Procedure. (Dkt. No. 17.) The Motion has been fully briefed
by the parties, and the court has considered the facts and
arguments set forth in those filings. Pursuant to civil rule
7-1(f) of the United States District Court for the District
of Utah Rules of Practice, the Court elects to determine the
motion on the basis of the written memoranda and finds that
oral argument would not be helpful or necessary. DUCivR
court, as it must, accepts all well-pleaded factual
allegations in the Complaint as true for purposes of
Defendant's motion. Ashcroft v. Iqbal, 556 U.S.
622, 678 (2009).
Blendtec, Inc. (“Blendtec”) sells a series of
blenders, which it markets under its Blendtec trademark.
(Complaint, Dkt. No. 2, ¶ 2.) On its website, marketing
materials, and product packaging, Blendtec makes
representations about the “horsepower”-or
“HP”-of its blenders. (Id. ¶¶
3-4.) Blendtec claims the horsepower of each blender falls
between 3.0 and 3.8 HP. (Id. ¶ 3.)
to filing the Complaint, Plaintiff retained electrical and
mechanical engineers to conduct power tests on Blendtec's
blenders in their laboratories. (Id. ¶ 22.)
None of the blenders tested by Plaintiff's consultants
exceeded more than 25% of the power output claimed by
Blendtec. (Id. ¶ 23.)
named Plaintiff, Mr. Callegari, purchased a “Blendtec
Classic 475 120v Blender” “online” in July
of 2017. (Id. ¶ 10.) Mr. Callegari relied on
Blendtec's horsepower representations when making the
purchase. (Id.) Upon using the blender, Mr.
Callegari believed, based on his observations, that the
blender was under-powered as compared to the horsepower
claims made by Blendtec. (Id.) Had Mr. Callegari
known that the blender was not as powerful as advertised, he
would not have purchased it, or would not have paid as much
for it as he did. (Id.)
brought this suit on behalf of himself and similarly-situated
purchasers of Blendtec blenders. (Id. ¶ 1.) In
his first cause of action, Plaintiff alleged that Blendtec
misrepresented the “performance characteristics”,
“standard”, and “grade” of its
blenders, in violation of the Utah Consumer Sales Practices
Act (“UCSPA”). (Id. ¶¶ 38-47.)
In his second cause of action, Plaintiff alleged that
Blendtec's horsepower representations were express
warranties, which Blendtec breached pursuant to U.C.A.
§§ 70A-2-313 and 70A-2A-210. (Id.
¶¶ 48-53.) In his third cause of action, Plaintiff
alleged that Blendtec's blenders did not conform to the
representations on their packaging, thus breaching the
implied warranty of merchantability pursuant to U.C.A.
§§ 70A-2-314 and 70A-2A-212. (Id.
¶¶ 54-61.) In his fourth cause of action, Plaintiff
alleged a violation of the Magnuson-Moss Warranty Act, 15
U.S.C. § 2301 et seq., premised on Blendtec's breach
of express written warranties. (Id. ¶¶
62-68.) In his fifth and sixth causes of action, Plaintiff
alleged a breach of express and implied warranty, presumably
pursuant to common law principles. (Id. ¶¶
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation
marks omitted). Under Rule 12(b)(6), the court must accept
all well-pleaded allegations in the Amended Complaint as true
and view those allegations in the light most favorable to the
nonmoving party. Stidham v. Peace Officer Standards
Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting
Sutton v. Utah Sch. for the Deaf & Blind, 173
F.3d 1226, 1236 (10th Cir. 1999)).
Court must limit its consideration to the four corners of the
Complaint, and any documents attached thereto, and any
external documents that are referenced in the Complaint and
whose accuracy is not in dispute. Oxendine v.
Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001);
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941
(10th Cir. 2002). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the
context of a motion to dismiss, constitutes facts which allow
“the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
civil actions, a complaint need only contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). However,
where a UCSPA claim “arises out of allegations of
deception, false misrepresentations and omissions, ” it
is subject to the heightened pleading requirements of Federal
Rule of Civil Procedure 9(b). See Jackson v. Philip
Morris Inc., 46 F.Supp.2d 1217, 1222 (D. Utah 1998).
Rule 9(b) requires that “[i]n alleging fraud or
mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”
Fed.R.Civ.P. 9(b). “At a minimum, Rule 9(b) requires
that a plaintiff set forth the ‘who, what, when, where
and how' of the alleged fraud, and must set forth the
time, place, and contents of the false representation, the
identity of the party making the false statements and the
consequences thereof.” Wood v. World Wide Ass'n
of Specialty Programs and Schools, Inc., 2007 WL
1295994, at *1 (D. Utah April 30, 2007).
Cause of Action: Violation of UCSPA
first seeks to dismiss Plaintiff's claim for damages
under the UCSPA, arguing that the claim does not meet the
statutory requirements for pleading a class action for
damages under the statute and that Plaintiff has failed to
meet the heightened ...