United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI CHIEF UNITED STATES DISTRICT JUDGE.
the Court is Defendant’s Motion to Dismiss for Failure
to State a Claim [Doc. No. 8]. Plaintiff has responded in
opposition [Doc. No. 11], and Defendant has replied [Doc. No.
12]. The matter is fully briefed and at issue.
case arises out of the purchase and installation of allegedly
defective plumbing products in homes owned and managed by
Plaintiff at Tinker Air Force Base in Oklahoma City,
Oklahoma. Plaintiff filed an Amended Complaint [Doc. No. 4]
on October 25, 2018, alleging causes of action for breach of
express and implied warranty, deceptive trade practices,
manufacturer’s products liability, negligence, and
fraud. Defendant moves to dismiss [Doc. No. 8], asserting
that the applicable statute of limitations bar
Plaintiff’s claims. In response, Plaintiff asserts that the
plumbing leaks in 2009 were isolated and did not start the
running of the statute of limitations. Alternatively,
Plaintiff argues that the triggering of the statute of
limitations is a question of fact reserved for the jury.
Finally, Plaintiff contends that Defendant’s fraudulent
conduct tolled the statute of limitations.
survive a motion to dismiss [under Rule 12(b)(6)], 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) (quoting Bell Atlantic 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.”
Iqbal, 556 U.S. at 678. The “plausibility
standard” announced in Twombly and
Iqbal is not a “heightened standard” of
pleading, but rather a “refined standard.”
Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (citing Kansas Penn Gaming,
LLC v. Collins, 656 F.3d 1210, 1214 (10th
Cir. 2011)). Under the “refined standard, ”
plausibility refers “to the scope of the allegations in
the complaint: if they are so general that they encompass a
wide swath of conduct, much of it innocent, then the
plaintiffs ‘have not nudged their claims across the
line from conceivable to plausible.’”
Khalik, 671 F.3d at 1191; see also Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (quoting Twombly, 550 U.S. at 570).
the Tenth Circuit has noted that “[t]he nature and
specificity of the allegations required to state a plausible
claim will vary based on context.” Khalik, 671
F.3d at 1191 (quoting Kansas Penn Gaming, 656 F.3d
at 1215). “Thus, [it has] concluded the
Twombly/Iqbal standard is ‘a middle
ground between heightened fact pleading, which is expressly
rejected, and allowing complaints that are no more than
labels and conclusions or a formulaic recitation of the
elements of a cause of action, which the Court stated will
not do.’” Id. (quoting Robbins,
519 F.3d at 1247).
other words, Rule 8(a)(2) still lives. There is no indication
the Supreme Court intended a return to the more stringent
pre-Rule 8 pleading requirements.” Id. It
remains true that “[s]pecific facts are not necessary;
the statement need only ‘give the defendant fair notice
of what the … claim is and the grounds upon which it
rests.’” Erickson v. Pardus, 551 U.S.
89, 93 (2007) (quoting Twombly, 550 U.S. at 555);
see also al-Kidd v. Ashcroft, 580 F.3d 949, 977
(9th Cir. 2009) (“Twombly and
Iqbal do not require that the complaint include all
facts necessary to carry the plaintiff’s
“[w]hile the 12(b)(6) standard does not require that
Plaintiff establish a prima facie case in [its] complaint,
the elements of each alleged cause of action help to
determine whether Plaintiff has set forth a plausible
claim.” Khalik, 671 F.3d at 1192 (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)).
“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of [the alleged]
facts is improbable, and ‘that a recovery is very
remote and unlikely.’” Sanchez v.
Hartley, 810 F.3d 750, 756 (10th Cir. 2016)
(citing Twombly, 550 U.S. at 556).
to Plaintiff’s allegations, in 2008, Plaintiff
contracted with Balfour Beatty Construction Company, Inc.
(“Balfour”) to construct 398 homes, which
Plaintiff would, in turn, lease to service members stationed
at Tinker AFB. Balfour’s subcontractor, Horizon
Plumbing, purchased Defendant’s plumbing products based
on Defendant’s assurances and representations.
Defendant had been in the plumbing business for more than 100
years and had manufactured plumbing systems and parts for
nearly that long.
manufactures, warrants, advertises, and sells various
plumbing products, including the alleged defective PEX
Products at issue in this case. The plumbing
systems installed in properties at Tinker AFB included tubing
products manufactured by Defendant – PEX Tubing, PEX
Fittings, and PEX Clamps. Plaintiff asserts that the PEX fittings
were “easily identified” by a stamp bearing
Defendant’s name on the brass insert fittings. [Doc.
No. 4 at ¶ 41]. Defendant represented in its sales
catalog that its PEX Tubing was the highest quality
available, and that its cross-chemical binding process gave
it “superior characteristics.” Id. at
¶ 23. Defendant also advertised that its PEX Products
were “chlorine-resistant, corrosion-resistant, freeze
damage and abrasion resistant, ” and that “the
excellent thermal properties of PEX are ideal for hot and
cold water distribution.” Id. at ¶ 25.
Defendant warranted that its PEX Tubing would be free from
defects for 25 years, Plaintiff’s homes “began to
experience leaks resulting from cracks in Defendant’s
PEX Tubing as early as 2009.” Id. at ¶
62. Plaintiff alleges that Defendant’s products
deteriorated prematurely, due to the tubing’s defective
design and/or manufacture, which caused leaks and significant
property damage throughout the homes. The leaks and property
damage are ongoing, with new leaks and damage being
discovered on a weekly basis.
PEX Tubing comes with an express warranty that guarantees no
defects in materials and workmanship when the tubing is
installed by a professional contractor like Horizon
Plumbing. On October 20, 2017, Plaintiff made
demands on Defendant pursuant to the PEX warranty. Plaintiff
alleges that the entire plumbing system for each of the 398
homes will have to be replaced.
Plaintiff alleges that any applicable statute of limitations
has been tolled by Defendant’s “knowing and
active concealment and denial of the facts.”
Id. at ¶ 71. Plaintiff asserts that it could
not have reasonably discovered the true nature of the
allegedly defective PEX Products until their
“catastrophic failure.” Id. A Tolling
Agreement was purportedly in place from December 6, 2017
until December 31, 2018. Id; see also [Doc.