Rouse v. H.B. Fuller Company

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Lisa Rouse, Juston Rouse, Jenna Drouin,  Case No. 22-cv-2173 (WMW/JFD)   
and Nicholas Drouin, individually and on                                 
behalf of all others similarly situated,                                 

                       Plaintiffs,                                       

v.                                                                       

H.B. Fuller Company and H.B. Fuller                                      
Construction Products, Inc.,                                             

                      Defendants.                                        

    Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint 
and Motion to Strike Class Action Language.  For the reasons addressed below, the Motion 
to Dismiss is granted in part and denied in part, and the Motion to Strike is denied.  
                         BACKGROUND                                      
    Defendant  H.B.  Fuller  Company  (“HBF”)  is  a  corporation  engaged  in  the 
manufacturing,  processing,  marketing,  supplying  and  sale  of  industrial  adhesives, 
industrial coatings, industrial sealants, and specialty materials.  Defendant H.B. Fuller 
Construction Products, Inc. (“HBF-CP”) is a subsidiary wholly owned by HBF.  HBF-CP 
manages products used for tile setting, such as adhesives, grouts, mortars, sealers and 
levelers; the commercial roofing industry, such as pressure sensitive adhesives, tapes and 
sealants; and heating, ventilation, air conditioning and insulation applications, such as duct 
sealants, weather barriers and fungicidal coatings and block fillers.  One brand offered by 
HBF is TEC, which is managed by HBF-CP.                                   

    Under the TEC brand, HBF and HBF-CP (collectively “Defendants”) offer a full 
line of products for a variety of tile and flooring installation applications, including grout. 
Power Grout is a grout product under the TEC brand.  Defendants describe Power Grout 
as an “advanced performance grout” and claim that “Power Grout has a unique formulation 
that is stain proof and provides strong, color consistent joints free of efflorescence, that are 
resistant to shrinking and cracking.”  Defendants further represent that “Power Grout 

provides excellent performance in environments such as high traffic and wet conditions, 
and in residential and commercial applications.”                          
    Plaintiff Lisa Rouse and Plaintiff Juston Rouse (collectively “the Rouses”) are 
Washington residents who used Power Grout as part of their home remodel.  In or about 
October 2021, the Rouses entered into an agreement with a contractor to remodel their 

home.  Pursuant to the agreement, the Rouses were responsible for paying for the materials 
used in the project, including all grout products.  The Rouses selected Power Grout for the 
tile work.                                                                
    In or about March 2022, a month after the Power Grout had been installed, the 
Rouses contacted their contractor and Defendants about issues with the grout.  In response, 

Defendants sent a representative to the home to evaluate the problem.  After the visit, 
Defendants provided the Rouses with the Hardener, which Defendants claimed would 
remedy the defects.  The Rouses’ contractor removed and reinstalled the Power Grout with 
the Hardener. But the defects within the Power Grout persisted.  The Rouses allege that, to 
date, Defendants have done nothing to correct the issues caused by the defective Power 
Grout and Hardener.  In bringing this action, the Rouses claim to have spent countless 

hours addressing the problems caused by the Power Grout and, upon information and 
belief, the defective product has damaged their real property and property value.   
    Plaintiff Jenna Drouin and Plaintiff Nicholas Drouin (collectively “the Drouins”) 
are New Hampshire residents who, like the Rouses, used Power Grout as part of a remodel 
project.  In or about October 2021, the Drouins hired a contractor to renovate the master 
bathroom of their home.  As part of the project, the Drouins selected Power Grout for their 

shower tiles.  Pursuant to the contract, the Drouins were responsible for the costs of the 
Power Grout.                                                              
    In March 2022, the contractor performed the renovation work and installed the 
Power Grout as part of the tile work for the showers.  The Drouins later learned that the 
Power Grout did not fully harden and was easily scratched away when wet.  In bringing 

this action, the Drouins claim that, upon information and belief, the Power Grout damaged 
their real property and property value.                                   
    The Rouses and the Drouins (collectively “Plaintiffs”) bring this action on behalf of 
themselves, as a nationwide class action, and, in the alternative, as a class action of their 
respective states.  Plaintiffs allege 25 claims against Defendants.  Counts I-XI address the 

Nationwide Class claims, Counts XII-XVIII address the Washington Class claims and 
Counts XIX-XXV address the New Hampshire Class claims.                    
    The Nationwide Class is defined as follows:                          
         All persons in the United States and its territories who, within 
         the applicable statute of limitations, either (a) purchased Power 
         Grout  or  (b)  own  a  structure  in  which  Power  Grout  was 
         installed.  The  proposed  class  includes  all  such  persons  or 
         entities who contacted Defendants about their Power Grout,      
         were provided the Hardener, and/or denied or partially denied   
         warranty coverage.                                              
For the Nationwide Class, Counts I-IV allege violations of Minn. Stat. § 325D.44 of the 
Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. § 325F.69 of the Minnesota 
Consumer  Fraud  Act,  Minn.  Stat.  § 325F.69  of  the  Minnesota  False  Statement  in 
Advertising Act, and Minn. Stat. § 325D.13 of the Minnesota Unlawful Trade Practices 
Act; Counts V and VI allege breach of implied warranties of fitness and merchantability, 
and express warranties; Count VII alleges a violation of 

(a) of the 
Magnuson-Moss Warranty Act (“MMWA”); Counts VIII, IX, and XI allege various tort 
claims1; and Count X alleges unjust enrichment.                           
    In the alternative to the Nationwide Class, the Rouses initiate this action on behalf 
of themselves and a Washington-statewide class.  The Washington Class is defined as 
follows:                                                                  
         All  persons  in  the  state  of  Washington  who,  within  the 
         applicable statute of limitations, either (a) purchased Power   
         Grout  or  (b)  own  a  structure  in  which  Power  Grout  was 
         installed.  The  proposed  class  includes  all  such  persons  or 
         entities who contacted Defendants about their Power Grout,      
         were provided the Hardener, and/or denied or partially denied   
         warranty coverage.                                              


1 Count VIII alleges a claim for negligence, Count IX alleges a claim for strict product 
liability, and Count XI alleges a claim for fraud.                        
For the Washington Class, Count XII alleges a violation of Wash. Rev. Cod. § 19.86.020 
of the Washington Consumer Protection Act; Counts XIII and XIV allege breach of implied 

warranties of fitness and merchantability, and express warranties; Counts XV, XVI, and 
XVIII allege various tort claims2; and Count XVII alleges unjust enrichment.  
    The Drouins also bring an alternative class on behalf of themselves and a New 
Hampshire-statewide class.  The New Hampshire Class is defined as follows: 
         All persons in the state of New Hampshire who, within the       
         applicable statute of limitations, either (a) purchased Power   
         Grout  or  (b)  own  a  structure  in  which  Power  Grout  was 
         installed.  The  proposed  class  includes  all  such  persons  or 
         entities who contacted Defendants about their Power Grout       
         and/or were denied or partially denied warranty coverage.       
For the New Hampshire Class, Count XIX alleges a violation of N.H. Rev. Stat. § 358-A:2 
of the New Hampshire Consumer Protection Act; Counts XX and XXI allege breach of 
implied warranties of fitness and merchantability, and express warranties; Counts XXII, 
XXIII and XXV allege various tort claims3; and Count XXIV alleges unjust enrichment.  
    Defendants move to dismiss all claims except Count XIV (the Washington Class’s 
breach of express warranty claim) and Count XXI (the New Hampshire Class’s breach of 
express warranty claim).  Additionally, Defendants moved to strike the class action claims 
that require a finding of reliance.                                       



2 Count XV alleges a claim for negligence, Count XVI alleges a claim for strict product 
liability, and Count XVIII alleges a claim for fraud.                     
3 Count XXII alleges a claim for negligence, Count XXIII alleges a claim for strict product 
liability, and Count XXV alleges a claim for fraud.                       
                           ANALYSIS                                      
I.   Motion to Dismiss                                                    

    Under Rule 12(b)(6), a complaint must allege sufficient facts such that, when 
accepted as true, a facially plausible claim to relief is stated.  Ashcroft v. Iqbal, 

 (2009).  If a complaint fails to state a claim on which relief can be granted, 
dismissal  is  warranted.  See  Fed.  R.  Civ.  P.  12(b)(6).    When  determining  whether  a 
complaint states a facially plausible claim, a district court accepts the factual allegations in 
the  complaint  as  true  and  draws  all  reasonable  inferences  in  the  plaintiff’s  favor. 

Blankenship v. USA Truck, Inc., 

 (8th Cir. 2010).  Factual allegations 
must be sufficient to “raise a right to relief above the speculative level” and “state a claim 
to relief that is plausible on its face.”  Bell Atl. Corp. v. Twombly, 

 
(2007).  Mere “labels and conclusions” are insufficient, as is a “formulaic recitation of the 
elements of a cause of action.”  

.  Legal conclusions couched as factual allegations 

may be disregarded.  See Iqbal, 

.                          
    A.   Standing to Bring National Class Claims                         
    Defendants argue that Plaintiffs lack standing to bring claims as a national class 
because Plaintiffs lack standing to assert claims from states in which they do not reside.  
Plaintiffs contend that standing is more properly addressed at class certification and that 

the Court should defer consideration of the issue until that time.        
    When a defendant challenges the plaintiff’s Article III standing under Rule 12(b)(1) 
based on a “deficiency in the pleadings,” the Court applies the same standard of review 
applied to a motion to dismiss brought under Rule 12(b)(6).  Stalley v. Catholic Health 
Initiatives, 

 (8th Cir. 2007).  Standing “is not dispensed in gross,” and 
“plaintiffs must demonstrate standing for each claim that they press and for each form of 

relief they seek,” TransUnion LLC v. Ramirez, 

 (2021).  Under certain 
circumstances, a court may defer the standing question for class actions to a later stage in 
the case.  In re Target Corp. Data Sec. Breach Litig., 

 (D. Minn. 
2014)  (citing  Amchem  Prods.,  Inc.  v.  Windsor,  

  (1997)  and  Ortiz  v. 
Fibreboard Corp., 

 (1999)).  For example, a delay is permitted when class 
certification is “logically antecedent” to standing.  Roth v. LifeTime Fitness, Inc., 15-cv-

3270, 

, at *4 (D. Minn. July 14, 2016); see also Ortiz, 

; 
Alchem, 

.                                                  
    At this time, it is premature to determine whether Defendants have standing to assert 
claims on behalf of the national class.  The Court, therefore, exercises its discretion and 
defers the question of standing until class certification.  Hudock v. LG Elecs. U.S.A., Inc., 

No. 16-cv-1220 (JRT/FLN), 

 at *2 (D. Minn. 2017).  Accordingly, 
Defendants’ motion to dismiss Plaintiffs’ national class claims is denied. 
    B.   Standing to Assert Minnesota Statutory Claims                   
    Defendants move to dismiss Plaintiffs’ claims that allege violations of Minn. Stat. 
§ 325D.44 of the Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. § 325F.69 

of the Minnesota Consumer Fraud Act, Minn. Stat. § 325F.69 of the Minnesota False 
Statement in Advertising Act, and Minn. Stat. § 325D.13 of the Minnesota Unlawful Trade 
Practices Act.  Defendants argue that Plaintiffs do not have standing to assert these claims 
because these statutes do not apply extraterritorially.  Plaintiffs oppose dismissal of these 
claims.                                                                   

    “[N]amed plaintiffs lack standing to assert claims under the laws of the states in 
which they do not reside or in which they suffered no injury.”  Ferrari v. Best Buy Co.,14-
cv-2956 MJD/FLN, 

 at *9 (D. Minn. May 12, 2015) (quoting Insulate 
SB, Inc. v. Advanced Finishing Sys., Inc., 13-cv-2644 (ADM/SER), 

, *11 
(D. Minn. Mar. 11, 2014)).  “In general, there is a presumption against the extraterritorial 
application of a state’s statutes.” Johannessohn v.  Polaris Indus., Inc., 

, 961-62 (D. Minn. 2020).  For these Minnesota statutes to apply extraterritorially, the 
Minnesota legislature must have intended for them to do so.  See 

      
    Plaintiffs lack any legal support to show that the Minnesota legislature intended for 
these statutes to apply extraterritorially.  Plaintiffs contend that the “Private Attorney 
General” statute applies to individuals outside of Minnesota because 

, 

subd. 3a, grants statutory authority to “any person injured by a violation of any of the laws 
referred to in subdivision 1.”                                            
    Here, Plaintiffs reside out of state.  The Rouses are residents of Washington, 
purchased  the  Power  Grout  through  their  contractor  in  Washington,  and  the  alleged 
damages occurred only in the home in Washington.  Similarly, the Drouins are residents 

of  New  Hampshire,  purchased  the  Power  Grout  through  their  contractor  in  New 
Hampshire, and the alleged damages occurred only in the home in New Hampshire.  In 
light of these facts, the Court concludes that Plaintiffs lack standing to assert claims under 
the Minnesota statutes.  See Ferrari, 

 at *9 (dismissing pursuant to 
12(b)(1)).  For this reason, the Court dismisses Counts I, II, III and IV because Plaintiffs 
lack standing to assert claims under Minn. Stat. § 325D.44 of the Minnesota Uniform 

Deceptive Trade Practices Act, Minn. Stat. § 325F.69 of the Minnesota Consumer Fraud 
Act, Minn. Stat. § 325F.69 of the Minnesota False Statement in Advertising Act, and Minn. 
Stat. § 325D.13 of the Minnesota Unlawful Trade Practices Act.            
    C.   Heightened Pleading Required by Rule 9(b)                       
    Defendants move to dismiss Plaintiffs’ fraud claims, Counts XI, XVIII and XXV, 
arguing that Plaintiffs fail to meet the heightened pleading requirements.  Fed. R. Civ. P. 

9(b).  Plaintiffs contend that the pleading requirement are satisfied.    
    When pleading fraud claims, both statutory and common law, “a party must state 
with particularity the circumstances constituting fraud.”  Fed. R. Civ. P. 9(b); see also E-
Shops Corp. v. U.S. Bank Nat’l Ass’n, 

 (8th Cir. 2012) (statutory); 
Trooien v. Mansour, 

 (8th Cir. 2010) (common law).  The degree of 

particularity required by Rule 9(b) depends on the nature of the case. E-Shops Corp., 

.  But conclusory allegations that the defendant’s conduct was fraudulent and 
deceptive do not satisfy Rule 9(b).  

                                  
    The complaint must set forth the who, what, when, where, and how the alleged fraud 
occurred.  

  The primary purpose of this particularity requirement is to enable a defendant 

to respond and to prepare a defense to the fraud claim.  Com. Prop. Invs., Inc. v. Quality 
Inns Int’l, Inc., 

 (8th Cir. 1995).  Although Rule 9(b) does not require a 
plaintiff to allege the precise details of every instance of fraud, the complaint must include 
details that notify the defendant of the core factual basis for the fraud claim.  Ransom v. 
VFS, Inc., 

 (D. Minn. 2013).                      

    Plaintiffs have satisfied this heightened pleading requirement.  Here, the complaint 
identifies  the  “who,”  the  Defendants.    It  states  the  “what,”  that  Defendants  made 
misrepresentations about Power Grout and the Hardener.  The complaint alleges the 
“when.”  For the Rouses, representations about Power Grout were made shortly before or 
in October 2021 and representations about the Hardener were made between March and 
June 2022.  And, for the Drouins, representations were made shortly before or in October 

2021.  The complaint provides the “where.”  Plaintiffs’ homes in their respective states.  
And the complaint explains the “how.”  For Power Grout, this information was passed 
through its products features on Defendants’ websites, YouTube channel, in-store displays 
across the county and on social media.  This information was then passed on to Plaintiffs 
by their contractors.  For the Hardener, this information was passed through representations 

made through Defendants’ representative and on the label of the bottle.  The amended 
complaint  adequately  provides  the  information  required  by  Rule  9(b).    The  Court, 
therefore, denies Defendants’ motion to dismiss Plaintiffs’ fraud claims, Counts XI, XVIII 
and XXV.                                                                  
    D.   Contract Claims                                                 

    Defendants argue that the Plaintiffs’ breach of implied warranty claims, Counts V, 
XIII and XX, should be dismissed because the warranties were disclaimed.  In response, 
Plaintiffs contend that dismissal of the implied warranty claims is unwarranted because 
Plaintiffs also alleged unconscionability.                                
    A manufacturer may disclaim an implied warranty of merchantability or fitness.  

(2).  An implied warranty of merchantability is disclaimed when 

the express language of the disclosure is conspicuous and mentions merchantability.  Id.; 
see Knotts v. Nissan N. Am., Inc., 

 (D. Minn. 2018).  
Similarly, an implied warranty of fitness may be disclaimed when the disclaimer is in 
“writing and conspicuous.”  

(2) (explaining that “[l]anguage to 
exclude all implied warranties of fitness is sufficient if it states, for example, that ‘[t]here 
are no warranties which extend beyond the description on the face hereof’”); see also 

(b)(10) (defining “conspicuous” to include text “in capitals” and “in 
contrasting type, font, or color to the surrounding text”).  Whether disclaimer language is 
conspicuous is a question of law.  See Am. Comput. Tr. Leasing v. Jack Farrell Implement 
Co., 

 (D. Minn. 1991).                             
    Under Minnesota law, when a plaintiff alleges that a disclaimer is unconscionable, 

“the  parties  shall  be  afforded  a  reasonable  opportunity  to  present  evidence  as  to  its 
commercial setting, purpose and effect to aid the court in making the determination.”  

(2).  When interpreting 

(2), Courts consider 
whether a plaintiff sufficiently alleged unconscionability.  See McQueen v. Yamaha Motor 
Corp., U.S.A., 

, 862 (D. Minn. 2020); Podpeskar v. Makita U.S.A. Inc., 

 (D. Minn. 2017) (authorizing plaintiff’s express-warranty 
claim to proceed beyond the motion-to-dismiss stage based on finding that plaintiff had 
sufficiently pled unconscionability); see also Johnson v. Bobcat Co., 

 (D. Minn. 2016) (same).                                              
    Under Washington law, implied warranties may also be disclaimed.  Wash. Rev. 
Code § 62A.2-314-315.  If, however, the Court finds “any clause of the contract to have 

been unconscionable at the time it was made, the court . . . may so limit the application of 
any unconscionable clause as to avoid any unconscionable result.”  Wash. Rev. Code 
§ 62A.2-302.                                                              
    Under New Hampshire law, implied warranty for fitness for merchantability and 
fitness for a particular purpose may be disclaimed.  

-A:2-314-
315.  If the court determines “any clause of the contract to have been unconscionable at 

the time it was made, the court . . . may so limit the application of any unconscionable 
clause as to avoid any unconscionable result.”  N.H. Rev. Stat. § 382-A:2-302. 
    Regardless of whether the warranties were properly disclaimed, Plaintiffs allege that 
the  disclaimer  is  unconscionable.    The  amended  complaint  alleges  that  Defendants 
knowingly sold Power Grout and the Hardener with latent defects and, because of this 

knowledge, Defendants’ attempts to disclaim the implied warranties are unconscionable.  
Similar  allegations  have  been  found  sufficient  to  survive  a  motion  to  dismiss.    See 
McQueen,  488  F.  Supp.  3d  at  862  (observing  that,  when  a  plaintiff  alleges 
unconscionability,  the  plaintiff  must  be  afforded  a  reasonable  opportunity  to  present 
evidence thereof).  At this stage in the proceedings, the Court declines to dismiss Plaintiffs’ 

implied warranty claims, Counts V, XIII and XX.                           
    E.   Magnuson-Moss Warranty Act                                      
    Defendants contend that this Court lacks jurisdiction to hear the MMWA claim as 
it pertains to the class action.  Plaintiffs oppose this argument.        
    Defendants maintain that “[n]o claim shall be cognizable” if “the action is brought 
as a class action, and the number of named plaintiffs is less than one hundred.”  

(d)(3).  According to Defendants, this 100-plaintiff requirement is jurisdictional, 
and, because there are only four named plaintiffs, this Court lacks jurisdiction to hear this 
claim.    Plaintiffs  argues  that  the  Class  Action  Fairness  Act  (“CAFA”),  

(d)(2),  provides  the  Court  jurisdiction  over  this  case  and  that  the  MMWA 
jurisdictional requirement need not be met because CAFA provides and independent claim 
for jurisdiction.                                                         

    The MMWA authorizes jurisdiction “in any court of competent jurisdiction in any 
State or the District of Columbia” or “in an appropriate district court of the United States.”  

(d)(1).  The 100-plaintiff requirement applies to the second category.  See 

(d)(3).  By the statute’s plain text, however, federal district courts fall 
under both categories.4  After the passage of CAFA, federal courts across the country are 

split on the question of whether a plaintiff asserting CAFA jurisdiction must also meet the 
second portion of the MMWA jurisdictional requirements.  Compare Kuns v. Ford Motor 
Co., 

 (6th Cir. 2013) and Burzlaff v. Thoroughbred Motorsports, 



4 As addressed in Barclay v. ICON Health & Fitness, Inc., “[federal district courts] fall in 
the first category because federal courts are ‘in’—i.e., within the boundaries of—states and 
the District of Columbia.  Had a different preposition been used in describing the first 
category—‘of,’ for example—then the statute’s text would not be susceptible to this 
interpretation.  A federal court is not a court ‘of’ any state.  In other words, if a federal 
court has some other source of subject-matter jurisdiction, then it may be a ‘court of 
competent jurisdiction’ under the MMWA.”  No. 19-cv-2970 (ECT/DTS), 

, at *7 (D. Minn. Oct. 15, 2020).                                  
Inc., 

 (7th Cir. 2014), with Floyd v. Am. Honda Motor Co., 

, 1031–35 (9th Cir. 2020).                                            

    The  United  States  Court  of  Appeals for  the  Eighth  Circuit  Court  has  not yet 
addressed this question.  Courts that have held that CAFA provides an independent basis 
for jurisdiction and that the MMWA jurisdictional requirements need not be met reason 
that “CAFA—the more recent of the two statutes—‘can render a district court a court of 
competent jurisdiction and permit it to retain jurisdiction where the CAFA requisites are 
met but the MMWA requisites are not.’”  Kuns, 

.  In the United States 

District Court for the District of Minnesota, at least one district court judge has agreed with 
this position.  Barclay v. ICON Health & Fitness, Inc., No. 19-cv-2970 (ECT/DTS), 

, at *7 (D. Minn. Oct. 15, 2020).                               
    Courts that have held that both CAFA and MMWA jurisdictional requirements must 
be met have reasoned that nothing in CAFA explicitly repealed the MMWA’s jurisdictional 

requirements.  Floyd, 

.  Moreover, those courts provide “repeals by 
implication are disfavored,” and when two statutes are “capable of co-existence, it is the 
duty of the courts, absent a clearly expressed congressional intention to the contrary, to 
regard each as effective.”  

  (citing Ruckelshaus v. Monsanto Co., 

, 1017–
18 (1984)).                                                               

    The legislature’s intent to repeal the MMWA’s jurisdiction requirement was not 
“clear and manifest.”  Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 

 
(2007).  To construe CAFA to provide jurisdiction over MMWA claims despite Plaintiffs’ 
failure to satisfy the plain-language requirement of at least one hundred named plaintiffs 
would effectively override a part of the MMWA.  This would not be within the “clear and 
manifest” intent of the legislature.  

  Accordingly, the Court grants Defendants’ motion 

to dismiss Plaintiffs’ MMWA claim to the extent the MMWA claim applies to the class 
action.                                                                   
    F.   Economic-Loss Doctrine                                          
    Defendants seek to dismiss Plaintiffs’ tort claims, arguing that the economic-loss 
doctrine bars these claims because Plaintiffs do not allege any tort-based damages and only 
allege damages to the Power Grout and Hardener.                           

    Minnesota’s economic-loss doctrine “prohibits a plaintiff from recovering purely 
economic losses in tort.”  Johnson v. Bobcat Co., 

 (D. Minn. 
2016).  The economic-loss doctrine, codified at 

 (2016),  expressly 
abrogates the common law version of the doctrine.  

 at 1144–45; see also Ptacek 
v. Earthsoils, Inc., 

, 538–39 (Minn. Ct. App. 2014).        

    The economic-loss doctrine applies to two types of claims, product defect tort 
claims and common law misrepresentation claims.  See 

, subdiv. 2.  
Under the statute, “a buyer may not bring a product defect tort claim for compensatory 
damages unless the defect ‘caused harm to the buyer’s tangible personal property other 
than the goods or the buyer’s real property.’”  Daigle v. Ford Motor Co., 

 (D. Minn. 2010) (quoting 

, subdiv. 3).  A “product defect 
tort claim” is defined as “a common law tort claim for damages caused by a defect in the 
goods but does not include statutory claims.”  Minn. Stat § 604.101, subd. 1.  
    In Washington, “[t]he economic loss rule applies to hold parties to their contract 
remedies when a loss potentially implicates both tort and contract relief.”  Alejandre 

v. Bull, 

 (Wash. 2007).  The Washington economic-loss doctrine 
“prohibits plaintiffs from recovering in tort economic losses to which their entitlement 
flows only from a contract because tort law is not intended to compensate parties for losses 
suffered as a result of a breach of duties assumed only by agreement.”  

  (internal citation 
and quotation marks omitted).  Where economic losses occur, recovery is confined to 
contracts “to ensure that the allocation of risk and the determination of potential future 

liability is based on what the parties bargained for in the contract.”  

. 
    In New Hampshire, the general rule is that “persons must refrain from causing 
personal injury and property damage to third parties, but no corresponding tort duty exists 
with respect to economic loss.”  Plourde Sand & Gravel v. JGI E., Inc., 

 (N.H. 2007).  The economic-loss doctrine “is a judicially-created remedies principle 

that operates generally to preclude contracting parties from pursuing tort recovery for 
purely economic or commercial losses associated with the contract relationship.”  

 
(quotation omitted).  One exception to New Hampshire’s economic-loss doctrine is a 
misrepresentation of present fact that serves as an inducement to enter into a contract, so 
long as the misrepresentation does not concern the quality or characteristics of the subject 

matter of the contract.  Wyle v. Lees, 

 (N.H. 2011).    
    To determine whether the economic-loss doctrine bars Plaintiffs’ tort claims, the 
Court must determine whether Plaintiffs’ amended complaint alleges sufficient facts to 
establish a plausible claim for property damage outside of the product itself.  Glick v. W. 
Power Sports, Inc., 

 (8th Cir. 2019).  The allegations in the amended 
complaint provide conclusory statements that damage occurred to Plaintiffs’ homes but 

offer no support to these allegations.  For example, Plaintiffs do not allege that water 
damage occurred in their homes because of the defective grout and hardener, nor do 
Plaintiffs allege that they experienced property damage from removing the grout.  Rather, 
the  complaint  alleges  only  “upon  information  and  belief”  that  damage  occurred  to 
Plaintiffs’ home and property value.  This allegation is insufficient where Plaintiffs had 
sole access to their respective homes and could determine if any actual damage or loss in 

property value occurred.  See Ahern Rentals, Inc. v. EquipmentShare.com, Inc., 

, 953 (8th Cir. 2023) (stating that “allegations pled on information and belief are not 
categorically insufficient to state a claim for relief where the proof supporting the allegation 
is within the sole possession and control of the defendant or where the belief is based on 
sufficient factual material that makes the inference of culpability plausible”); Drobnak v. 

Andersen Corp., 

 (8th Cir. 2009) (plaintiffs’ pleading on “information 
and belief” was inappropriate because plaintiffs possessed the products at issue).  Because 
no actual damage to the home or property value was alleged nor can the Court reasonably 
infer that damage occurred from the facts provided, Plaintiffs’ damages attributable to the 
homes are merely speculative and conclusory.  Twombly, 

; Glick, 

.  The economic-loss doctrine, therefore, applies.  Accordingly, Defendants’ motion 
to dismiss Counts VIII, IX, XV, XVI, XXII, and XXIII is granted.          
    Defendants also argue that Plaintiffs’ fraud claims are barred by the economic-loss 
doctrine.  These claims, however, are not precluded by the economic loss doctrine.  See, 
e.g., Carlile v. Harbour Homes, Inc., 

 (Wash. 2008); Beer v. Bennett, 

 (N.H. 2010).  As such, the Court denies Defendants’ motion to dismiss 

these claims.                                                             
    G.   Scienter                                                        
    Defendants next seek dismissal of Plaintiffs’ fraud claims, Counts XI, XVIII and 
XXV, for failure to allege scienter as required for such claims.  Defendants contend that a 
fraud claim requires Defendants’ knowledge that the alleged misrepresentation or omission 
was false or Defendants failure to know whether the alleged misrepresentation or omission 

was true or false.  Plaintiffs maintain that they have sufficiently alleged scienter.  
    For a fraud claim, a plaintiff must establish that:                  
         (1) there was a false representation by a party of a past or    
         existing material fact susceptible of knowledge; (2) made with  
         knowledge of the falsity of the representation or made as of the 
         party's own knowledge without knowing whether it was true or    
         false; (3) with the intention to induce another to act in reliance 
         thereon; (4) that the representation caused the other party to act 
         in reliance thereon; and (5) that the party suffered pecuniary  
         damage as a result of the reliance.                             
Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C., 

 (Minn. 2007) (internal 
citation omitted).                                                        
    Here,  the  amended  complaint  alleges  that  Defendants  are  “fully  aware  of  the 
consistent failure” of Power Grout, and that Defendants established a department to handle 
these complaints.  Additionally, the amended complaint alleges that, because Defendants 
knew of the defects, Defendants gave customers the Hardener to address these defects.  In 
response to these claims, Defendants maintain that there are “reasonable explanations” for 
establishing a complaints department and for providing the Hardener to customers.  At this 
stage in the proceedings, however, the Court must accept all facts alleged in the complaint 

as true and view them in the light most favorable to Defendants.  Blankenship, 

.  In doing so, the Court concludes that Plaintiffs’ allegations of scienter are sufficient 
to sustain their fraud claims.  Defendants’ motion to dismiss Plaintiffs’ fraud claims for 
failure to allege scienter is denied.                                     
    H.   Reliance                                                        

    Defendants also contend that, because Plaintiffs failed to plausibly allege that they 
relied upon Defendants’ misrepresentations or omissions, Plaintiffs’ fraud claims, Counts 
XI, XVIII and XXV, should be dismissed.  Plaintiffs respond by addressing the portions of 
the amended complaint in which reliance is alleged.                       
    To state a fraud claim, Plaintiffs must allege that they relied on the representations 
made by Defendants.  Hoyt Props., Inc., 

.  Similarly, to establish a claim 

for  negligent  misrepresentation,  Plaintiffs  must  show,  among  other  things,  that  they 
“justifiably relied on information” provided by Defendants.  Williams v. Smith, 

 (Minn. 2012).                                                    
    In  their  amended  complaint,  Plaintiffs  allege  that  they  relied  on  Defendants’ 
advertisements  regarding  Power  Grout.    Defendants  dispute  the  sufficiency  of  the 

allegations because Plaintiffs relied on their contractors’ statements about the project.  
Whether Plaintiffs relied on statements made by the contractors or the features advertised 
by Defendants, however, is a question of fact that cannot be resolved at this stage of the 
proceedings.  Consequently, the Court denies Defendants’ motion to dismiss Plaintiffs’ 
fraud claims, Counts XI, XVIII and XXV, for failure to allege reliance.   

    I.   Unjust Enrichment                                               
    Defendants seek dismissal of  Plaintiffs’ unjust-enrichment claims, Counts X, XVII 
and XXIV, arguing that the parties have a valid contract.  Plaintiffs contend, however, that 
the unjust-enrichment claims are alternative stand-alone claims that should proceed.   
    To state a claim for unjust enrichment, a plaintiff must allege “that another party 
knowingly received something of value to which [that party] was not entitled, and that the 

circumstances are such that it would be unjust for that person to retain the benefit.”  Cobb 
v. PayLease LLC, 

 (D. Minn. 2014) (internal quotation marks 
omitted).  Because Rule 8(d)(2),(3) of the Federal Rules of Civil Procedure expressly 
permits a party to plead alternative or inconsistent claims or defenses, courts routinely 
decline to dismiss unjust-enrichment claims when pled in the alternative.  See, e.g., United 

States  v.  R.J.  Zavoral  &  Sons,  Inc.,  

  (D.  Minn.  2012) 
(concluding that plaintiff “may maintain this [unjust-enrichment] claim as [an] alternative 
claim for relief under Rule 8 of the Federal Rules of Civil Procedure”); Cummins Law 
Office, P.A. v. Norman Graphic Printing Co., 

 (D. Minn. 2011) 
(observing that courts “routinely permit the assertion of contract and quasi-contract claims 

together”).                                                               
    Claims for unjust enrichment fail when there is “no dispute that a written contract 
governs the at-issue conduct.”  HomeStar Prop. Sols., LLC v. Safeguard Props., LLC, 

, 1029–30 (D. Minn. 2019).  Indeed, because the existence of an adequate 
legal remedy bars unjust enrichment recovery, such claims will be dismissed even if the 
claims giving rise to the legal remedy were inadequately pled.  Drobnak, 561 F.3d at 786–

87 (explaining that no claim for unjust enrichment lies when an adequate legal remedy 
exists); see also United States v. Bame, 

 (8th Cir. 2013) (recognizing 
that “it is the existence of an adequate legal remedy that precludes unjust enrichment 
recovery” even if “plaintiff failed to pursue adequate legal remedies”).  
    Here, Plaintiffs sufficiently plead their unjust-enrichment claims.  Plaintiffs allege 
that Defendants knowingly received payment in exchange for allegedly defective grout and 

Defendants’ retention of that payment is unjust because the benefit was received by way 
of false, deceptive and misleading marketing.  Plaintiffs’ unjust-enrichment claims are 
barred, however, because a contract exists, and the warranty governs the parties’ rights in 
this instance.  See Gisairo v. Lenovo (United States) Inc., 

, 894 (D. 
Minn. 2021).  There is no basis to conclude that this warranty is an inadequate legal remedy 

simply because the warranty does not cover the damages other than the grout itself.  
Moreover, damages other than the grout and the Hardener have not been properly alleged.  
For  these  reasons,  Plaintiffs  cannot  proceed  with  their  unjust-enrichment  claims.  
Defendants’ motion to dismiss Plaintiff’s unjust-enrichment claims, Counts X, XVII, and 
XXIV, therefore, is granted.                                              

    VI.  Motion to Strike                                                
    Defendants argue that, because the class certification for common-law fraud and 
negligent misrepresentation are clearly impossible, Plaintiffs’ claims for common-law 
fraud and negligent misrepresentation should be stricken.  Plaintiffs maintain that the 
motion to strike is premature.                                            

    Under Federal Rule of Civil Procedure 12(f), “the court may strike from a pleading 
any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 
“Judges enjoy liberal discretion to strike pleadings under Rule 12(f).”  BJC Health Sys. 
v. Columbia Cas. Co., 

 (8th Cir. 2007).  However, because this remedy 
is “drastic” and at times sought simply as a “dilatory or harassing tactic,” 5C Charles Alan 
Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (3d ed.), granting a 

motion to strike is an “extreme and disfavored measure,” BJC Health, 

.  
    It is sometimes appropriate to strike a pleading, such as when a portion of the 
complaint lacks a legal basis.  See, e.g., BJC Health, 

 (affirming a district 
court’s grant of a motion to strike the plaintiff’s prayer for punitive damages on the basis 
that fraud had not been pled with the particularity required by Rule 9(b)).  A district court 

may grant a motion to strike prior to class action certification when “it is apparent from the 
pleadings that the class cannot be certified under Rule 23(b)(2).”  Donelson v. Ameriprise 
Fin. Servs., Inc., 

 (8th Cir. 2021).                   
    Here, Defendants’ argument that the Court should strike portions of the complaint 
because class certification for common-law fraud and negligent misrepresentation are 

clearly impossible is unavailing.  Whether class certification is impossible has not been 
established at this stage in the proceedings.  Accordingly, Defendants’ Motion to Strike is 
denied.                                                                   

    Based on the foregoing analysis and all the files, records and proceedings herein, IT 

IS HEREBY ORDERED                                                         
1.   Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART: 
    A.   Plaintiffs’  Minnesota  statutory  claims,  Counts  I,  II,  III  and  IV,  are 
DISMISSED WITHOUT PREJUDICE;                                              
    B.   Plaintiffs’  MMWA  claim,  Count  VII,  is  DISMISSED  WITHOUT  
PREJUDICE;                                                                

    C.   Plaintiffs’ negligence/negligent misrepresentation and strict product liability 
claims,  Counts  VIII,  IX,  XV,  XVI,  XXII  and  XXIII  are  DISMISSED  WITHOUT 
PREJUDICE;                                                                
    D.   Plaintiffs’  unjust  enrichment  claims,  Counts  X,  XVII  and  XXIV  are 
DISMISSED WITHOUT PREJUDICE;.                                             

    E.   Defendants’ motion to dismiss is DENIED in all other respects.  
2.   Defendants’ motion to strike is DENIED.                              
Dated: September 26, 2023       s/Wilhelmina M. Wright                                              
                                Wilhelmina M. Wright                     
                                United States District Judge             

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Lisa Rouse, Juston Rouse, Jenna Drouin,  Case No. 22-cv-2173 (WMW/JFD)   
and Nicholas Drouin, individually and on                                 
behalf of all others similarly situated,                                 

                       Plaintiffs,                                       

v.                                                                       

H.B. Fuller Company and H.B. Fuller                                      
Construction Products, Inc.,                                             

                      Defendants.                                        

    Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint 
and Motion to Strike Class Action Language.  For the reasons addressed below, the Motion 
to Dismiss is granted in part and denied in part, and the Motion to Strike is denied.  
                         BACKGROUND                                      
    Defendant  H.B.  Fuller  Company  (“HBF”)  is  a  corporation  engaged  in  the 
manufacturing,  processing,  marketing,  supplying  and  sale  of  industrial  adhesives, 
industrial coatings, industrial sealants, and specialty materials.  Defendant H.B. Fuller 
Construction Products, Inc. (“HBF-CP”) is a subsidiary wholly owned by HBF.  HBF-CP 
manages products used for tile setting, such as adhesives, grouts, mortars, sealers and 
levelers; the commercial roofing industry, such as pressure sensitive adhesives, tapes and 
sealants; and heating, ventilation, air conditioning and insulation applications, such as duct 
sealants, weather barriers and fungicidal coatings and block fillers.  One brand offered by 
HBF is TEC, which is managed by HBF-CP.                                   

    Under the TEC brand, HBF and HBF-CP (collectively “Defendants”) offer a full 
line of products for a variety of tile and flooring installation applications, including grout. 
Power Grout is a grout product under the TEC brand.  Defendants describe Power Grout 
as an “advanced performance grout” and claim that “Power Grout has a unique formulation 
that is stain proof and provides strong, color consistent joints free of efflorescence, that are 
resistant to shrinking and cracking.”  Defendants further represent that “Power Grout 

provides excellent performance in environments such as high traffic and wet conditions, 
and in residential and commercial applications.”                          
    Plaintiff Lisa Rouse and Plaintiff Juston Rouse (collectively “the Rouses”) are 
Washington residents who used Power Grout as part of their home remodel.  In or about 
October 2021, the Rouses entered into an agreement with a contractor to remodel their 

home.  Pursuant to the agreement, the Rouses were responsible for paying for the materials 
used in the project, including all grout products.  The Rouses selected Power Grout for the 
tile work.                                                                
    In or about March 2022, a month after the Power Grout had been installed, the 
Rouses contacted their contractor and Defendants about issues with the grout.  In response, 

Defendants sent a representative to the home to evaluate the problem.  After the visit, 
Defendants provided the Rouses with the Hardener, which Defendants claimed would 
remedy the defects.  The Rouses’ contractor removed and reinstalled the Power Grout with 
the Hardener. But the defects within the Power Grout persisted.  The Rouses allege that, to 
date, Defendants have done nothing to correct the issues caused by the defective Power 
Grout and Hardener.  In bringing this action, the Rouses claim to have spent countless 

hours addressing the problems caused by the Power Grout and, upon information and 
belief, the defective product has damaged their real property and property value.   
    Plaintiff Jenna Drouin and Plaintiff Nicholas Drouin (collectively “the Drouins”) 
are New Hampshire residents who, like the Rouses, used Power Grout as part of a remodel 
project.  In or about October 2021, the Drouins hired a contractor to renovate the master 
bathroom of their home.  As part of the project, the Drouins selected Power Grout for their 

shower tiles.  Pursuant to the contract, the Drouins were responsible for the costs of the 
Power Grout.                                                              
    In March 2022, the contractor performed the renovation work and installed the 
Power Grout as part of the tile work for the showers.  The Drouins later learned that the 
Power Grout did not fully harden and was easily scratched away when wet.  In bringing 

this action, the Drouins claim that, upon information and belief, the Power Grout damaged 
their real property and property value.                                   
    The Rouses and the Drouins (collectively “Plaintiffs”) bring this action on behalf of 
themselves, as a nationwide class action, and, in the alternative, as a class action of their 
respective states.  Plaintiffs allege 25 claims against Defendants.  Counts I-XI address the 

Nationwide Class claims, Counts XII-XVIII address the Washington Class claims and 
Counts XIX-XXV address the New Hampshire Class claims.                    
    The Nationwide Class is defined as follows:                          
         All persons in the United States and its territories who, within 
         the applicable statute of limitations, either (a) purchased Power 
         Grout  or  (b)  own  a  structure  in  which  Power  Grout  was 
         installed.  The  proposed  class  includes  all  such  persons  or 
         entities who contacted Defendants about their Power Grout,      
         were provided the Hardener, and/or denied or partially denied   
         warranty coverage.                                              
For the Nationwide Class, Counts I-IV allege violations of Minn. Stat. § 325D.44 of the 
Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. § 325F.69 of the Minnesota 
Consumer  Fraud  Act,  Minn.  Stat.  § 325F.69  of  the  Minnesota  False  Statement  in 
Advertising Act, and Minn. Stat. § 325D.13 of the Minnesota Unlawful Trade Practices 
Act; Counts V and VI allege breach of implied warranties of fitness and merchantability, 
and express warranties; Count VII alleges a violation of 

(a) of the 
Magnuson-Moss Warranty Act (“MMWA”); Counts VIII, IX, and XI allege various tort 
claims1; and Count X alleges unjust enrichment.                           
    In the alternative to the Nationwide Class, the Rouses initiate this action on behalf 
of themselves and a Washington-statewide class.  The Washington Class is defined as 
follows:                                                                  
         All  persons  in  the  state  of  Washington  who,  within  the 
         applicable statute of limitations, either (a) purchased Power   
         Grout  or  (b)  own  a  structure  in  which  Power  Grout  was 
         installed.  The  proposed  class  includes  all  such  persons  or 
         entities who contacted Defendants about their Power Grout,      
         were provided the Hardener, and/or denied or partially denied   
         warranty coverage.                                              


1 Count VIII alleges a claim for negligence, Count IX alleges a claim for strict product 
liability, and Count XI alleges a claim for fraud.                        
For the Washington Class, Count XII alleges a violation of Wash. Rev. Cod. § 19.86.020 
of the Washington Consumer Protection Act; Counts XIII and XIV allege breach of implied 

warranties of fitness and merchantability, and express warranties; Counts XV, XVI, and 
XVIII allege various tort claims2; and Count XVII alleges unjust enrichment.  
    The Drouins also bring an alternative class on behalf of themselves and a New 
Hampshire-statewide class.  The New Hampshire Class is defined as follows: 
         All persons in the state of New Hampshire who, within the       
         applicable statute of limitations, either (a) purchased Power   
         Grout  or  (b)  own  a  structure  in  which  Power  Grout  was 
         installed.  The  proposed  class  includes  all  such  persons  or 
         entities who contacted Defendants about their Power Grout       
         and/or were denied or partially denied warranty coverage.       
For the New Hampshire Class, Count XIX alleges a violation of N.H. Rev. Stat. § 358-A:2 
of the New Hampshire Consumer Protection Act; Counts XX and XXI allege breach of 
implied warranties of fitness and merchantability, and express warranties; Counts XXII, 
XXIII and XXV allege various tort claims3; and Count XXIV alleges unjust enrichment.  
    Defendants move to dismiss all claims except Count XIV (the Washington Class’s 
breach of express warranty claim) and Count XXI (the New Hampshire Class’s breach of 
express warranty claim).  Additionally, Defendants moved to strike the class action claims 
that require a finding of reliance.                                       



2 Count XV alleges a claim for negligence, Count XVI alleges a claim for strict product 
liability, and Count XVIII alleges a claim for fraud.                     
3 Count XXII alleges a claim for negligence, Count XXIII alleges a claim for strict product 
liability, and Count XXV alleges a claim for fraud.                       
                           ANALYSIS                                      
I.   Motion to Dismiss                                                    

    Under Rule 12(b)(6), a complaint must allege sufficient facts such that, when 
accepted as true, a facially plausible claim to relief is stated.  Ashcroft v. Iqbal, 

 (2009).  If a complaint fails to state a claim on which relief can be granted, 
dismissal  is  warranted.  See  Fed.  R.  Civ.  P.  12(b)(6).    When  determining  whether  a 
complaint states a facially plausible claim, a district court accepts the factual allegations in 
the  complaint  as  true  and  draws  all  reasonable  inferences  in  the  plaintiff’s  favor. 

Blankenship v. USA Truck, Inc., 

 (8th Cir. 2010).  Factual allegations 
must be sufficient to “raise a right to relief above the speculative level” and “state a claim 
to relief that is plausible on its face.”  Bell Atl. Corp. v. Twombly, 

 
(2007).  Mere “labels and conclusions” are insufficient, as is a “formulaic recitation of the 
elements of a cause of action.”  

.  Legal conclusions couched as factual allegations 

may be disregarded.  See Iqbal, 

.                          
    A.   Standing to Bring National Class Claims                         
    Defendants argue that Plaintiffs lack standing to bring claims as a national class 
because Plaintiffs lack standing to assert claims from states in which they do not reside.  
Plaintiffs contend that standing is more properly addressed at class certification and that 

the Court should defer consideration of the issue until that time.        
    When a defendant challenges the plaintiff’s Article III standing under Rule 12(b)(1) 
based on a “deficiency in the pleadings,” the Court applies the same standard of review 
applied to a motion to dismiss brought under Rule 12(b)(6).  Stalley v. Catholic Health 
Initiatives, 

 (8th Cir. 2007).  Standing “is not dispensed in gross,” and 
“plaintiffs must demonstrate standing for each claim that they press and for each form of 

relief they seek,” TransUnion LLC v. Ramirez, 

 (2021).  Under certain 
circumstances, a court may defer the standing question for class actions to a later stage in 
the case.  In re Target Corp. Data Sec. Breach Litig., 

 (D. Minn. 
2014)  (citing  Amchem  Prods.,  Inc.  v.  Windsor,  

  (1997)  and  Ortiz  v. 
Fibreboard Corp., 

 (1999)).  For example, a delay is permitted when class 
certification is “logically antecedent” to standing.  Roth v. LifeTime Fitness, Inc., 15-cv-

3270, 

, at *4 (D. Minn. July 14, 2016); see also Ortiz, 

; 
Alchem, 

.                                                  
    At this time, it is premature to determine whether Defendants have standing to assert 
claims on behalf of the national class.  The Court, therefore, exercises its discretion and 
defers the question of standing until class certification.  Hudock v. LG Elecs. U.S.A., Inc., 

No. 16-cv-1220 (JRT/FLN), 

 at *2 (D. Minn. 2017).  Accordingly, 
Defendants’ motion to dismiss Plaintiffs’ national class claims is denied. 
    B.   Standing to Assert Minnesota Statutory Claims                   
    Defendants move to dismiss Plaintiffs’ claims that allege violations of Minn. Stat. 
§ 325D.44 of the Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. § 325F.69 

of the Minnesota Consumer Fraud Act, Minn. Stat. § 325F.69 of the Minnesota False 
Statement in Advertising Act, and Minn. Stat. § 325D.13 of the Minnesota Unlawful Trade 
Practices Act.  Defendants argue that Plaintiffs do not have standing to assert these claims 
because these statutes do not apply extraterritorially.  Plaintiffs oppose dismissal of these 
claims.                                                                   

    “[N]amed plaintiffs lack standing to assert claims under the laws of the states in 
which they do not reside or in which they suffered no injury.”  Ferrari v. Best Buy Co.,14-
cv-2956 MJD/FLN, 

 at *9 (D. Minn. May 12, 2015) (quoting Insulate 
SB, Inc. v. Advanced Finishing Sys., Inc., 13-cv-2644 (ADM/SER), 

, *11 
(D. Minn. Mar. 11, 2014)).  “In general, there is a presumption against the extraterritorial 
application of a state’s statutes.” Johannessohn v.  Polaris Indus., Inc., 

, 961-62 (D. Minn. 2020).  For these Minnesota statutes to apply extraterritorially, the 
Minnesota legislature must have intended for them to do so.  See 

      
    Plaintiffs lack any legal support to show that the Minnesota legislature intended for 
these statutes to apply extraterritorially.  Plaintiffs contend that the “Private Attorney 
General” statute applies to individuals outside of Minnesota because 

, 

subd. 3a, grants statutory authority to “any person injured by a violation of any of the laws 
referred to in subdivision 1.”                                            
    Here, Plaintiffs reside out of state.  The Rouses are residents of Washington, 
purchased  the  Power  Grout  through  their  contractor  in  Washington,  and  the  alleged 
damages occurred only in the home in Washington.  Similarly, the Drouins are residents 

of  New  Hampshire,  purchased  the  Power  Grout  through  their  contractor  in  New 
Hampshire, and the alleged damages occurred only in the home in New Hampshire.  In 
light of these facts, the Court concludes that Plaintiffs lack standing to assert claims under 
the Minnesota statutes.  See Ferrari, 

 at *9 (dismissing pursuant to 
12(b)(1)).  For this reason, the Court dismisses Counts I, II, III and IV because Plaintiffs 
lack standing to assert claims under Minn. Stat. § 325D.44 of the Minnesota Uniform 

Deceptive Trade Practices Act, Minn. Stat. § 325F.69 of the Minnesota Consumer Fraud 
Act, Minn. Stat. § 325F.69 of the Minnesota False Statement in Advertising Act, and Minn. 
Stat. § 325D.13 of the Minnesota Unlawful Trade Practices Act.            
    C.   Heightened Pleading Required by Rule 9(b)                       
    Defendants move to dismiss Plaintiffs’ fraud claims, Counts XI, XVIII and XXV, 
arguing that Plaintiffs fail to meet the heightened pleading requirements.  Fed. R. Civ. P. 

9(b).  Plaintiffs contend that the pleading requirement are satisfied.    
    When pleading fraud claims, both statutory and common law, “a party must state 
with particularity the circumstances constituting fraud.”  Fed. R. Civ. P. 9(b); see also E-
Shops Corp. v. U.S. Bank Nat’l Ass’n, 

 (8th Cir. 2012) (statutory); 
Trooien v. Mansour, 

 (8th Cir. 2010) (common law).  The degree of 

particularity required by Rule 9(b) depends on the nature of the case. E-Shops Corp., 

.  But conclusory allegations that the defendant’s conduct was fraudulent and 
deceptive do not satisfy Rule 9(b).  

                                  
    The complaint must set forth the who, what, when, where, and how the alleged fraud 
occurred.  

  The primary purpose of this particularity requirement is to enable a defendant 

to respond and to prepare a defense to the fraud claim.  Com. Prop. Invs., Inc. v. Quality 
Inns Int’l, Inc., 

 (8th Cir. 1995).  Although Rule 9(b) does not require a 
plaintiff to allege the precise details of every instance of fraud, the complaint must include 
details that notify the defendant of the core factual basis for the fraud claim.  Ransom v. 
VFS, Inc., 

 (D. Minn. 2013).                      

    Plaintiffs have satisfied this heightened pleading requirement.  Here, the complaint 
identifies  the  “who,”  the  Defendants.    It  states  the  “what,”  that  Defendants  made 
misrepresentations about Power Grout and the Hardener.  The complaint alleges the 
“when.”  For the Rouses, representations about Power Grout were made shortly before or 
in October 2021 and representations about the Hardener were made between March and 
June 2022.  And, for the Drouins, representations were made shortly before or in October 

2021.  The complaint provides the “where.”  Plaintiffs’ homes in their respective states.  
And the complaint explains the “how.”  For Power Grout, this information was passed 
through its products features on Defendants’ websites, YouTube channel, in-store displays 
across the county and on social media.  This information was then passed on to Plaintiffs 
by their contractors.  For the Hardener, this information was passed through representations 

made through Defendants’ representative and on the label of the bottle.  The amended 
complaint  adequately  provides  the  information  required  by  Rule  9(b).    The  Court, 
therefore, denies Defendants’ motion to dismiss Plaintiffs’ fraud claims, Counts XI, XVIII 
and XXV.                                                                  
    D.   Contract Claims                                                 

    Defendants argue that the Plaintiffs’ breach of implied warranty claims, Counts V, 
XIII and XX, should be dismissed because the warranties were disclaimed.  In response, 
Plaintiffs contend that dismissal of the implied warranty claims is unwarranted because 
Plaintiffs also alleged unconscionability.                                
    A manufacturer may disclaim an implied warranty of merchantability or fitness.  

(2).  An implied warranty of merchantability is disclaimed when 

the express language of the disclosure is conspicuous and mentions merchantability.  Id.; 
see Knotts v. Nissan N. Am., Inc., 

 (D. Minn. 2018).  
Similarly, an implied warranty of fitness may be disclaimed when the disclaimer is in 
“writing and conspicuous.”  

(2) (explaining that “[l]anguage to 
exclude all implied warranties of fitness is sufficient if it states, for example, that ‘[t]here 
are no warranties which extend beyond the description on the face hereof’”); see also 

(b)(10) (defining “conspicuous” to include text “in capitals” and “in 
contrasting type, font, or color to the surrounding text”).  Whether disclaimer language is 
conspicuous is a question of law.  See Am. Comput. Tr. Leasing v. Jack Farrell Implement 
Co., 

 (D. Minn. 1991).                             
    Under Minnesota law, when a plaintiff alleges that a disclaimer is unconscionable, 

“the  parties  shall  be  afforded  a  reasonable  opportunity  to  present  evidence  as  to  its 
commercial setting, purpose and effect to aid the court in making the determination.”  

(2).  When interpreting 

(2), Courts consider 
whether a plaintiff sufficiently alleged unconscionability.  See McQueen v. Yamaha Motor 
Corp., U.S.A., 

, 862 (D. Minn. 2020); Podpeskar v. Makita U.S.A. Inc., 

 (D. Minn. 2017) (authorizing plaintiff’s express-warranty 
claim to proceed beyond the motion-to-dismiss stage based on finding that plaintiff had 
sufficiently pled unconscionability); see also Johnson v. Bobcat Co., 

 (D. Minn. 2016) (same).                                              
    Under Washington law, implied warranties may also be disclaimed.  Wash. Rev. 
Code § 62A.2-314-315.  If, however, the Court finds “any clause of the contract to have 

been unconscionable at the time it was made, the court . . . may so limit the application of 
any unconscionable clause as to avoid any unconscionable result.”  Wash. Rev. Code 
§ 62A.2-302.                                                              
    Under New Hampshire law, implied warranty for fitness for merchantability and 
fitness for a particular purpose may be disclaimed.  

-A:2-314-
315.  If the court determines “any clause of the contract to have been unconscionable at 

the time it was made, the court . . . may so limit the application of any unconscionable 
clause as to avoid any unconscionable result.”  N.H. Rev. Stat. § 382-A:2-302. 
    Regardless of whether the warranties were properly disclaimed, Plaintiffs allege that 
the  disclaimer  is  unconscionable.    The  amended  complaint  alleges  that  Defendants 
knowingly sold Power Grout and the Hardener with latent defects and, because of this 

knowledge, Defendants’ attempts to disclaim the implied warranties are unconscionable.  
Similar  allegations  have  been  found  sufficient  to  survive  a  motion  to  dismiss.    See 
McQueen,  488  F.  Supp.  3d  at  862  (observing  that,  when  a  plaintiff  alleges 
unconscionability,  the  plaintiff  must  be  afforded  a  reasonable  opportunity  to  present 
evidence thereof).  At this stage in the proceedings, the Court declines to dismiss Plaintiffs’ 

implied warranty claims, Counts V, XIII and XX.                           
    E.   Magnuson-Moss Warranty Act                                      
    Defendants contend that this Court lacks jurisdiction to hear the MMWA claim as 
it pertains to the class action.  Plaintiffs oppose this argument.        
    Defendants maintain that “[n]o claim shall be cognizable” if “the action is brought 
as a class action, and the number of named plaintiffs is less than one hundred.”  

(d)(3).  According to Defendants, this 100-plaintiff requirement is jurisdictional, 
and, because there are only four named plaintiffs, this Court lacks jurisdiction to hear this 
claim.    Plaintiffs  argues  that  the  Class  Action  Fairness  Act  (“CAFA”),  

(d)(2),  provides  the  Court  jurisdiction  over  this  case  and  that  the  MMWA 
jurisdictional requirement need not be met because CAFA provides and independent claim 
for jurisdiction.                                                         

    The MMWA authorizes jurisdiction “in any court of competent jurisdiction in any 
State or the District of Columbia” or “in an appropriate district court of the United States.”  

(d)(1).  The 100-plaintiff requirement applies to the second category.  See 

(d)(3).  By the statute’s plain text, however, federal district courts fall 
under both categories.4  After the passage of CAFA, federal courts across the country are 

split on the question of whether a plaintiff asserting CAFA jurisdiction must also meet the 
second portion of the MMWA jurisdictional requirements.  Compare Kuns v. Ford Motor 
Co., 

 (6th Cir. 2013) and Burzlaff v. Thoroughbred Motorsports, 



4 As addressed in Barclay v. ICON Health & Fitness, Inc., “[federal district courts] fall in 
the first category because federal courts are ‘in’—i.e., within the boundaries of—states and 
the District of Columbia.  Had a different preposition been used in describing the first 
category—‘of,’ for example—then the statute’s text would not be susceptible to this 
interpretation.  A federal court is not a court ‘of’ any state.  In other words, if a federal 
court has some other source of subject-matter jurisdiction, then it may be a ‘court of 
competent jurisdiction’ under the MMWA.”  No. 19-cv-2970 (ECT/DTS), 

, at *7 (D. Minn. Oct. 15, 2020).                                  
Inc., 

 (7th Cir. 2014), with Floyd v. Am. Honda Motor Co., 

, 1031–35 (9th Cir. 2020).                                            

    The  United  States  Court  of  Appeals for  the  Eighth  Circuit  Court  has  not yet 
addressed this question.  Courts that have held that CAFA provides an independent basis 
for jurisdiction and that the MMWA jurisdictional requirements need not be met reason 
that “CAFA—the more recent of the two statutes—‘can render a district court a court of 
competent jurisdiction and permit it to retain jurisdiction where the CAFA requisites are 
met but the MMWA requisites are not.’”  Kuns, 

.  In the United States 

District Court for the District of Minnesota, at least one district court judge has agreed with 
this position.  Barclay v. ICON Health & Fitness, Inc., No. 19-cv-2970 (ECT/DTS), 

, at *7 (D. Minn. Oct. 15, 2020).                               
    Courts that have held that both CAFA and MMWA jurisdictional requirements must 
be met have reasoned that nothing in CAFA explicitly repealed the MMWA’s jurisdictional 

requirements.  Floyd, 

.  Moreover, those courts provide “repeals by 
implication are disfavored,” and when two statutes are “capable of co-existence, it is the 
duty of the courts, absent a clearly expressed congressional intention to the contrary, to 
regard each as effective.”  

  (citing Ruckelshaus v. Monsanto Co., 

, 1017–
18 (1984)).                                                               

    The legislature’s intent to repeal the MMWA’s jurisdiction requirement was not 
“clear and manifest.”  Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 

 
(2007).  To construe CAFA to provide jurisdiction over MMWA claims despite Plaintiffs’ 
failure to satisfy the plain-language requirement of at least one hundred named plaintiffs 
would effectively override a part of the MMWA.  This would not be within the “clear and 
manifest” intent of the legislature.  

  Accordingly, the Court grants Defendants’ motion 

to dismiss Plaintiffs’ MMWA claim to the extent the MMWA claim applies to the class 
action.                                                                   
    F.   Economic-Loss Doctrine                                          
    Defendants seek to dismiss Plaintiffs’ tort claims, arguing that the economic-loss 
doctrine bars these claims because Plaintiffs do not allege any tort-based damages and only 
allege damages to the Power Grout and Hardener.                           

    Minnesota’s economic-loss doctrine “prohibits a plaintiff from recovering purely 
economic losses in tort.”  Johnson v. Bobcat Co., 

 (D. Minn. 
2016).  The economic-loss doctrine, codified at 

 (2016),  expressly 
abrogates the common law version of the doctrine.  

 at 1144–45; see also Ptacek 
v. Earthsoils, Inc., 

, 538–39 (Minn. Ct. App. 2014).        

    The economic-loss doctrine applies to two types of claims, product defect tort 
claims and common law misrepresentation claims.  See 

, subdiv. 2.  
Under the statute, “a buyer may not bring a product defect tort claim for compensatory 
damages unless the defect ‘caused harm to the buyer’s tangible personal property other 
than the goods or the buyer’s real property.’”  Daigle v. Ford Motor Co., 

 (D. Minn. 2010) (quoting 

, subdiv. 3).  A “product defect 
tort claim” is defined as “a common law tort claim for damages caused by a defect in the 
goods but does not include statutory claims.”  Minn. Stat § 604.101, subd. 1.  
    In Washington, “[t]he economic loss rule applies to hold parties to their contract 
remedies when a loss potentially implicates both tort and contract relief.”  Alejandre 

v. Bull, 

 (Wash. 2007).  The Washington economic-loss doctrine 
“prohibits plaintiffs from recovering in tort economic losses to which their entitlement 
flows only from a contract because tort law is not intended to compensate parties for losses 
suffered as a result of a breach of duties assumed only by agreement.”  

  (internal citation 
and quotation marks omitted).  Where economic losses occur, recovery is confined to 
contracts “to ensure that the allocation of risk and the determination of potential future 

liability is based on what the parties bargained for in the contract.”  

. 
    In New Hampshire, the general rule is that “persons must refrain from causing 
personal injury and property damage to third parties, but no corresponding tort duty exists 
with respect to economic loss.”  Plourde Sand & Gravel v. JGI E., Inc., 

 (N.H. 2007).  The economic-loss doctrine “is a judicially-created remedies principle 

that operates generally to preclude contracting parties from pursuing tort recovery for 
purely economic or commercial losses associated with the contract relationship.”  

 
(quotation omitted).  One exception to New Hampshire’s economic-loss doctrine is a 
misrepresentation of present fact that serves as an inducement to enter into a contract, so 
long as the misrepresentation does not concern the quality or characteristics of the subject 

matter of the contract.  Wyle v. Lees, 

 (N.H. 2011).    
    To determine whether the economic-loss doctrine bars Plaintiffs’ tort claims, the 
Court must determine whether Plaintiffs’ amended complaint alleges sufficient facts to 
establish a plausible claim for property damage outside of the product itself.  Glick v. W. 
Power Sports, Inc., 

 (8th Cir. 2019).  The allegations in the amended 
complaint provide conclusory statements that damage occurred to Plaintiffs’ homes but 

offer no support to these allegations.  For example, Plaintiffs do not allege that water 
damage occurred in their homes because of the defective grout and hardener, nor do 
Plaintiffs allege that they experienced property damage from removing the grout.  Rather, 
the  complaint  alleges  only  “upon  information  and  belief”  that  damage  occurred  to 
Plaintiffs’ home and property value.  This allegation is insufficient where Plaintiffs had 
sole access to their respective homes and could determine if any actual damage or loss in 

property value occurred.  See Ahern Rentals, Inc. v. EquipmentShare.com, Inc., 

, 953 (8th Cir. 2023) (stating that “allegations pled on information and belief are not 
categorically insufficient to state a claim for relief where the proof supporting the allegation 
is within the sole possession and control of the defendant or where the belief is based on 
sufficient factual material that makes the inference of culpability plausible”); Drobnak v. 

Andersen Corp., 

 (8th Cir. 2009) (plaintiffs’ pleading on “information 
and belief” was inappropriate because plaintiffs possessed the products at issue).  Because 
no actual damage to the home or property value was alleged nor can the Court reasonably 
infer that damage occurred from the facts provided, Plaintiffs’ damages attributable to the 
homes are merely speculative and conclusory.  Twombly, 

; Glick, 

.  The economic-loss doctrine, therefore, applies.  Accordingly, Defendants’ motion 
to dismiss Counts VIII, IX, XV, XVI, XXII, and XXIII is granted.          
    Defendants also argue that Plaintiffs’ fraud claims are barred by the economic-loss 
doctrine.  These claims, however, are not precluded by the economic loss doctrine.  See, 
e.g., Carlile v. Harbour Homes, Inc., 

 (Wash. 2008); Beer v. Bennett, 

 (N.H. 2010).  As such, the Court denies Defendants’ motion to dismiss 

these claims.                                                             
    G.   Scienter                                                        
    Defendants next seek dismissal of Plaintiffs’ fraud claims, Counts XI, XVIII and 
XXV, for failure to allege scienter as required for such claims.  Defendants contend that a 
fraud claim requires Defendants’ knowledge that the alleged misrepresentation or omission 
was false or Defendants failure to know whether the alleged misrepresentation or omission 

was true or false.  Plaintiffs maintain that they have sufficiently alleged scienter.  
    For a fraud claim, a plaintiff must establish that:                  
         (1) there was a false representation by a party of a past or    
         existing material fact susceptible of knowledge; (2) made with  
         knowledge of the falsity of the representation or made as of the 
         party's own knowledge without knowing whether it was true or    
         false; (3) with the intention to induce another to act in reliance 
         thereon; (4) that the representation caused the other party to act 
         in reliance thereon; and (5) that the party suffered pecuniary  
         damage as a result of the reliance.                             
Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C., 

 (Minn. 2007) (internal 
citation omitted).                                                        
    Here,  the  amended  complaint  alleges  that  Defendants  are  “fully  aware  of  the 
consistent failure” of Power Grout, and that Defendants established a department to handle 
these complaints.  Additionally, the amended complaint alleges that, because Defendants 
knew of the defects, Defendants gave customers the Hardener to address these defects.  In 
response to these claims, Defendants maintain that there are “reasonable explanations” for 
establishing a complaints department and for providing the Hardener to customers.  At this 
stage in the proceedings, however, the Court must accept all facts alleged in the complaint 

as true and view them in the light most favorable to Defendants.  Blankenship, 

.  In doing so, the Court concludes that Plaintiffs’ allegations of scienter are sufficient 
to sustain their fraud claims.  Defendants’ motion to dismiss Plaintiffs’ fraud claims for 
failure to allege scienter is denied.                                     
    H.   Reliance                                                        

    Defendants also contend that, because Plaintiffs failed to plausibly allege that they 
relied upon Defendants’ misrepresentations or omissions, Plaintiffs’ fraud claims, Counts 
XI, XVIII and XXV, should be dismissed.  Plaintiffs respond by addressing the portions of 
the amended complaint in which reliance is alleged.                       
    To state a fraud claim, Plaintiffs must allege that they relied on the representations 
made by Defendants.  Hoyt Props., Inc., 

.  Similarly, to establish a claim 

for  negligent  misrepresentation,  Plaintiffs  must  show,  among  other  things,  that  they 
“justifiably relied on information” provided by Defendants.  Williams v. Smith, 

 (Minn. 2012).                                                    
    In  their  amended  complaint,  Plaintiffs  allege  that  they  relied  on  Defendants’ 
advertisements  regarding  Power  Grout.    Defendants  dispute  the  sufficiency  of  the 

allegations because Plaintiffs relied on their contractors’ statements about the project.  
Whether Plaintiffs relied on statements made by the contractors or the features advertised 
by Defendants, however, is a question of fact that cannot be resolved at this stage of the 
proceedings.  Consequently, the Court denies Defendants’ motion to dismiss Plaintiffs’ 
fraud claims, Counts XI, XVIII and XXV, for failure to allege reliance.   

    I.   Unjust Enrichment                                               
    Defendants seek dismissal of  Plaintiffs’ unjust-enrichment claims, Counts X, XVII 
and XXIV, arguing that the parties have a valid contract.  Plaintiffs contend, however, that 
the unjust-enrichment claims are alternative stand-alone claims that should proceed.   
    To state a claim for unjust enrichment, a plaintiff must allege “that another party 
knowingly received something of value to which [that party] was not entitled, and that the 

circumstances are such that it would be unjust for that person to retain the benefit.”  Cobb 
v. PayLease LLC, 

 (D. Minn. 2014) (internal quotation marks 
omitted).  Because Rule 8(d)(2),(3) of the Federal Rules of Civil Procedure expressly 
permits a party to plead alternative or inconsistent claims or defenses, courts routinely 
decline to dismiss unjust-enrichment claims when pled in the alternative.  See, e.g., United 

States  v.  R.J.  Zavoral  &  Sons,  Inc.,  

  (D.  Minn.  2012) 
(concluding that plaintiff “may maintain this [unjust-enrichment] claim as [an] alternative 
claim for relief under Rule 8 of the Federal Rules of Civil Procedure”); Cummins Law 
Office, P.A. v. Norman Graphic Printing Co., 

 (D. Minn. 2011) 
(observing that courts “routinely permit the assertion of contract and quasi-contract claims 

together”).                                                               
    Claims for unjust enrichment fail when there is “no dispute that a written contract 
governs the at-issue conduct.”  HomeStar Prop. Sols., LLC v. Safeguard Props., LLC, 

, 1029–30 (D. Minn. 2019).  Indeed, because the existence of an adequate 
legal remedy bars unjust enrichment recovery, such claims will be dismissed even if the 
claims giving rise to the legal remedy were inadequately pled.  Drobnak, 561 F.3d at 786–

87 (explaining that no claim for unjust enrichment lies when an adequate legal remedy 
exists); see also United States v. Bame, 

 (8th Cir. 2013) (recognizing 
that “it is the existence of an adequate legal remedy that precludes unjust enrichment 
recovery” even if “plaintiff failed to pursue adequate legal remedies”).  
    Here, Plaintiffs sufficiently plead their unjust-enrichment claims.  Plaintiffs allege 
that Defendants knowingly received payment in exchange for allegedly defective grout and 

Defendants’ retention of that payment is unjust because the benefit was received by way 
of false, deceptive and misleading marketing.  Plaintiffs’ unjust-enrichment claims are 
barred, however, because a contract exists, and the warranty governs the parties’ rights in 
this instance.  See Gisairo v. Lenovo (United States) Inc., 

, 894 (D. 
Minn. 2021).  There is no basis to conclude that this warranty is an inadequate legal remedy 

simply because the warranty does not cover the damages other than the grout itself.  
Moreover, damages other than the grout and the Hardener have not been properly alleged.  
For  these  reasons,  Plaintiffs  cannot  proceed  with  their  unjust-enrichment  claims.  
Defendants’ motion to dismiss Plaintiff’s unjust-enrichment claims, Counts X, XVII, and 
XXIV, therefore, is granted.                                              

    VI.  Motion to Strike                                                
    Defendants argue that, because the class certification for common-law fraud and 
negligent misrepresentation are clearly impossible, Plaintiffs’ claims for common-law 
fraud and negligent misrepresentation should be stricken.  Plaintiffs maintain that the 
motion to strike is premature.                                            

    Under Federal Rule of Civil Procedure 12(f), “the court may strike from a pleading 
any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 
“Judges enjoy liberal discretion to strike pleadings under Rule 12(f).”  BJC Health Sys. 
v. Columbia Cas. Co., 

 (8th Cir. 2007).  However, because this remedy 
is “drastic” and at times sought simply as a “dilatory or harassing tactic,” 5C Charles Alan 
Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (3d ed.), granting a 

motion to strike is an “extreme and disfavored measure,” BJC Health, 

.  
    It is sometimes appropriate to strike a pleading, such as when a portion of the 
complaint lacks a legal basis.  See, e.g., BJC Health, 

 (affirming a district 
court’s grant of a motion to strike the plaintiff’s prayer for punitive damages on the basis 
that fraud had not been pled with the particularity required by Rule 9(b)).  A district court 

may grant a motion to strike prior to class action certification when “it is apparent from the 
pleadings that the class cannot be certified under Rule 23(b)(2).”  Donelson v. Ameriprise 
Fin. Servs., Inc., 

 (8th Cir. 2021).                   
    Here, Defendants’ argument that the Court should strike portions of the complaint 
because class certification for common-law fraud and negligent misrepresentation are 

clearly impossible is unavailing.  Whether class certification is impossible has not been 
established at this stage in the proceedings.  Accordingly, Defendants’ Motion to Strike is 
denied.                                                                   

    Based on the foregoing analysis and all the files, records and proceedings herein, IT 

IS HEREBY ORDERED                                                         
1.   Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART: 
    A.   Plaintiffs’  Minnesota  statutory  claims,  Counts  I,  II,  III  and  IV,  are 
DISMISSED WITHOUT PREJUDICE;                                              
    B.   Plaintiffs’  MMWA  claim,  Count  VII,  is  DISMISSED  WITHOUT  
PREJUDICE;                                                                

    C.   Plaintiffs’ negligence/negligent misrepresentation and strict product liability 
claims,  Counts  VIII,  IX,  XV,  XVI,  XXII  and  XXIII  are  DISMISSED  WITHOUT 
PREJUDICE;                                                                
    D.   Plaintiffs’  unjust  enrichment  claims,  Counts  X,  XVII  and  XXIV  are 
DISMISSED WITHOUT PREJUDICE;.                                             

    E.   Defendants’ motion to dismiss is DENIED in all other respects.  
2.   Defendants’ motion to strike is DENIED.                              
Dated: September 26, 2023       s/Wilhelmina M. Wright                                              
                                Wilhelmina M. Wright                     
                                United States District Judge