Rouse v. H.B. Fuller Company

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


Lisa  Rouse,  Juston  Rouse,  Jenna  Drouin,   File No. 22-CV-02173 (JMB/JFD) 
Nicholas Drouin, Kendra Graybeal, Nichole                                 
Edwards, Lucas Edwards, Robert Calamita,                                  
Gina  Calamita,  Nicole  Robb,  Dave  Robb,                               
Clay Whitenack, Andrea Lea Hill Whitenack,                                
Brian  Andree,  Alexandra  Andree,  Kyle       ORDER                      
Witczak,  Brittany  Witczak,  Mary  Jane                                  
Gougar,  Chris  Lorbecki,  and  Kristina  De                              
Broux,  individually  and  on  behalf  of  all                            
others similarly situated,                                                

        Plaintiffs,                                                     

v.                                                                        

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

        Defendants.                                                     


David W. Asp and Robert David Hahn, Lockridge Grindal Nauen PLLP, Minneapolis, MN, 
and Petra Bergman, pro hac vice, Michael Soder, pro hac vice, Eric W. Richardson, pro 
hac vice, Emily St. Cyr, pro hac vice, David Frederick Hine, pro hac vice, and Alexander 
X.  Shadley,  pro  hac  vice,  Vorys  Sater  Seymour  &  Pease  LLP,  Cincinnati,  OH,  for 
Plaintiffs.                                                               
Todd A. Noteboom, Andrew Leiendecker, William Thomson, and Zach Wright, Stinson 
LLP, Minneapolis, MN, Jeremy A. Root, pro hac vice, Stinson LLP, Jefferson City, MO, 
for Defendants.                                                           


   This matter is before the Court on Defendants H.B. Fuller Company’s and H.B. 
Fuller Construction Products Inc.’s (together, Defendants) motion for partial dismissal of 
Plaintiffs  Lisa  Rouse’s,  Juston  Rouse’s,  Jenna  Drouin’s,  Nicholas  Drouin’s,  Kendra 
Graybeal’s, Nichole Edwards’s, Lucas Edwards’s, Robert Calamita’s, Gina Calamita’s 
Nicole Robb’s, Dave Robb’s, Clay Whitenack’s, Andrea Lea Hill Whitenack’s, Brian 
Andree’s, Alexandra Andree’s, Kyle Witczak’s, Brittany Witczak’s, Mary Jane Gougar’s, 

Chris  Lorbecki’s,  and  Kristina  De  Broux’s,  (together,  Plaintiffs)  Third  Amended 
Complaint (TAC).  (Doc. No. 185.)  For the reasons explained below, the Court grants the 
motion in part and denies it in part.                                     
                   GENERAL BACKGROUND                                   
   H.B.  Fuller  Company  manufactures,  markets,  and  sells  industrial  adhesives, 
coatings, sealants, and other specialty materials.  (Doc. No. 167 [hereinafter, “TAC”] ¶ 36.)  

It owns a brand, TEC, which holds itself out as a leader in “technologically advanced 
products for the installation and surface preparation of tile,” like, for example, grout.  (Id. 
¶¶ 45, 48, 50.)  H.B. Fuller Construction Products Inc. manages the TEC brand.  (Id. ¶ 46.) 
   A.   Defendants Manufacture, Market, and Sell a Defective Grout Product 
   Starting in June 2011, Defendants, through their TEC brand, started manufacturing 

and selling a grout product called “Power Grout.”  (Id. ¶¶ 55, 63.)  Defendants sold Power 
Grout in both retail stores and through distributors.  (Id. ¶ 56.)  Defendants tout their grout 
out as a premium grout product that has several desirable features, including that it is stain 
resistant; that it is free of efflorescence;1 that it never needs to be sealed; that it is fast-
setting and ready for use in four hours; that it is resistant to cracking and shrinking; and 


1 According to Plaintiffs, “[e]fflorescence is a white deposit (usually calcium carbonate) 
that develops on the surface of grout and/or tiles,” which “occurs when soluble, naturally 
occurring mineral salts rise to the surface” and is aesthetically undesirable.  (TAC ¶¶ 117–
118.)  Defendants marketed Power Grout as being free from efflorescence, although it has 
always contained ingredients that are known to produce efflorescence.  (Id. ¶¶ 119–33.) 
that it performs well in both wet and dry conditions.  (Id. ¶¶ 57, 58.)  Because of these 
purported features, Power Grout has a higher price point than other comparable grout 

products—for example, a twenty-five-pound bag of Power Grout sells for approximately 
$90, whereas a twenty-five-pound bag of peer product sells for about $30.  (Id. ¶ 62.) 
   Shortly after launching Power Grout, Defendants received complaints.  (Id. ¶ 64.)  
Specifically, consumers reported that the grout did not harden and that its pigment bled 
out.  (Id.)  Consequently, between January 2012 and January 2018, Defendants launched 
several new versions of Power Grout in an effort to address the complaints of soft grout, 

pigment bleeding, and efflorescence.  (Id. ¶¶ 66–93.)  Defendants purposefully did not 
disclose when they released new versions of Power Grout and, as a result, consumers did 
not know which version of the product they were buying or using.  (Id. ¶¶ 180, 182, 196; 
see also id. ¶¶ 180–213.)  Defendants released a sixth version in January 2018, which is 
still on the market today.  (Id. ¶¶ 93, 94.)  After releasing Version 6, however, Defendants 

became aware that it, too, had the same defects as previous versions.  (Id. ¶¶ 95, 96–107.)  
Nevertheless, Defendants have not made any changes to the product.  (Id. ¶¶ 100–02.) 
   B.   Defendants’ Warranty and Handling of Consumer Complaints        
   Each package of Power Grout boasts a “Lifetime Limited Warranty”; however, the 
terms of such warranty are not described on the packaging.  (Id. ¶¶ 214–15.)  H.B. Fuller 

Construction Products Inc.’s website provides that the lifetime Power Grout guaranty 
provides that the product will not have substantial defects and will not break down or 
deteriorate with use.  (Id. ¶ 216.)  Defendants receive thousands of warranty complaints 
every year about Power Grout’s efficacy.  (Id. ¶ 206.)                    
   Defendants’ first step when responding to consumer warranty claims is to send 
consumers a bottle of “TEC Acrylic Grout Hardener” (Hardener).  (Id. ¶ 157.)  The 

Hardener is not available for purchase; it is available only to consumers who complain to 
Defendants.  (Id. ¶ 164.)  The Hardener is not actually a hardener; it is a grout sealer.  (Id. 
¶¶ 156, 158–59 168–69.)  It was initially known as “TEC Acrylic Grout Sealer”; however, 
Defendants changed its name when consumers pointed out that Power Grout advertises 
itself as never needing sealing.  (Id. ¶¶ 156, 159, 160.)  The Hardener is laborious to apply 
and does not work.   (Id. ¶¶ 172–73.)  Further, the Hardener creates an aesthetically 

displeasing film that can be peeled or scrubbed away, which leaves soft grout exposed.  (Id. 
¶¶ 174, 176.)                                                             
   C.   This Action                                                     
   Plaintiffs commenced this action in September 2022.  (Doc. No. 1.)  In the TAC, 
Plaintiffs—in total, twenty-one individuals—bring seventeen consumer-protection, tort, 

and product-liability claims under numerous state laws against Defendants on behalf of 
themselves and eleven classes.  (See TAC.)                                
                         DISCUSSION                                     
   Defendants now move to strike or dismiss Plaintiffs’ allegations that the statutes of 
limitations  on  all  seventeen  claims  are  tolled  due  to  Defendants’  alleged  fraudulent 

concealment.  Defendants also seek to dismiss several claims, some in whole, some in part, 
including: Count 3 (negligent misrepresentation) as to De Broux and the Calamitas; Count 
4 (strict products liability) as to the Calamitas; Count 5 (fraudulent omission) as to De 
Broux; Count 8 (Graybeal’s claim under the Idaho Consumer Protection Act); Count 9 (the 
Edwards’s  claim  under  the  Massachusetts  Consumer  Protection);  Count  12  (the 
Whitenacks’ claim under the Kentucky Consumer Protection Act); and Count 16 (Gougar’s 

and the Lorbecki’s claim under the Wisconsin Deceptive Trade Practices Act). 
   On a motion to dismiss under Rule 12(b)(6),2 courts consider all facts alleged in the 
complaint to be true and then determine whether the complaint states a “claim to relief that 
is plausible on its face.”  Braden v. Wal-Mart Stores, Inc., 

 (8th Cir. 
2009) (quoting Ashcroft v. Iqbal, 

 (2009)).  A pleading has facial 
plausibility when its factual allegations “allow[] the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.”  Iqbal, 

.  In this 
analysis, courts construe the allegations and draws inferences from them in the light most 
favorable to the plaintiff.  Park Irmat Drug Corp. v. Express Scripts Holding Co., 

 (8th Cir. 2018).  However, courts will not give the plaintiff the benefit of 
unreasonable inferences, Brown v. Medtronic, Inc., 

 (8th Cir. 2010), and 

are “not bound to accept as true a legal conclusion couched as a factual allegation.”  
Papasan v. Allain, 

 (1986).  All told, this standard “calls for enough 
fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim].”  
Bell Atl. Corp. v. Twombly, 

 (2007).                     




2 Defendants do not specify the rule under which they move to dismiss.  (See Doc. Nos. 
185, 186.)  However, the Court has determined that, based on the nature of Defendants’ 
arguments, their motion is brought under Federal Rule of Civil Procedure 12(b)(6). 
I.   FRAUDULENT CONCEALMENT ALLEGATIONS                                   
   Plaintiffs  allege  in  the  TAC  that,  because  Defendants  fraudulently  concealed 

product defects, the running of all relevant statutes of limitations on Plaintiffs’ sixteen 
claims were tolled from the date of first sale of Power Grout in 2011 until February 22, 
2024, the date that Plaintiffs filed the TAC.  (See TAC ¶¶ 538, 550, 560, 577, 591, 606, 
623, 641, 659, 680, 698, 716, 732, 755, 791, 808, 823.)  Defendants move to strike or 
dismiss Plaintiffs’ fraudulent concealment allegations, arguing that the allegations fail to 
satisfy the elements of fraudulent concealment.  The Court denies Defendants’ request. 

   Courts sitting in diversity must apply state equitable tolling laws.  E.g., Summerhill 
v. Terminix, Inc., 

 (8th Cir. 2011) (applying Arkansas state law federal 
procedural law in diversity case to determine if the statute of limitations was equitably 
tolled); Great Plains Tr. Co. v. Union Pac. R.R. Co., 

 (8th Cir. 2007) 
(concluding that “[b]ecause this case arises under our diversity jurisdiction, we apply state 

tolling  law”  and  applying  Kansas  law  to  determine  if  the  allegations  of  fraudulent 
concealment equitably tolled the statute of limitations).  Defendants, however, have not 
analyzed whether the allegations of fraudulent concealment satisfy any of the applicable 
state tolling laws implicated by the claims raised in this case.  As a result, the Court will 
decline to dismiss Plaintiffs’ statute of limitations defense because Defendants have not 

sufficiently developed this issue for the Court’s consideration.3         

3  The  Court  also  denies  Defendants’  companion  request  to  strike  the  allegations  of 
fraudulent concealment contained in the TAC.  Under Federal Rule of Civil Procedure 
12(f), the Court may strike only “an insufficient defense” or “any redundant, immaterial, 
impertinent, or scandalous matter.”  At most, Defendants briefly assert that the fraudulent 
II.  DE  BROUX’S   NEGLIGENT   MISREPRESENTATION     AND  FRAUD           
   CLAIMS                                                               
   A.   Relevant Background                                             
   De Broux resides in Ohio.  (TAC ¶ 29.)  At some point, she hired a general 
contractor to renovate a bathroom in her home.  (Id. ¶ 452.)  The contractor used Power 
Grout in their tile work.  (Id. ¶ 453.)  A few weeks later, De Broux reported to her contractor 

that the Power Grout dripped out between tiles when wet and could be rubbed out from the 
tilework with her finger.  (Id. ¶¶ 455–56.)  Her contractor contacted Defendants.  (Id. 
¶ 456.)  Defendants provided the contractor with a bottle of Hardener; the contractor 
applied the Hardener, but it left an undesirable film on the tiles and ultimately did not work.  
(Id. ¶¶ 457–59.)  Defendants sent an inspector to De Broux’s home, who informed De 

Broux that they could not remedy the issue because she or her contractor had somehow 
voided the Power Grout warranty.  (Id. ¶ 460–61.)  De Broux generally alleges that she 
“relied upon Defendants’ representations regarding Power Grout and has been damaged 
because those representations have proven to be false.”  (Id. ¶ 464.)     
   B.   Failure to Allege Detrimental Alliance                          

   Defendants argue that Count 3 (negligent misrepresentation) and Count 5 (fraud) 
should be dismissed as to De Broux because she does not allege an essential element of the 



concealment allegations are insufficiently pleaded under Federal Rule of Civil Procedure 
9(b), but Defendants do not explain what deficiencies exist under Rule 9(b).  (See Doc. No. 
186 at 18–20.)  A general assertion that a complaint falls short of the heightened pleading 
standard does not rise to the level of defective pleading contemplated by Rule 12(f). 
claims.  (Doc. No. 186 at 13–15.)  In Ohio,4 claims of fraud and negligent misrepresentation 
both require, as an element of those claims, that a plaintiff relied, to their detriment, on a 

misrepresentation made by defendants.  See Janiszewski v. Belmont Career Ctr., 

, 634 (Ohio Ct. App. 2017) (fraud); Fed. Mgmt. Co. v. Coopers & Lybrand, 

 (Ohio Ct. App. 2000) (negligent misrepresentation).  Allegations supporting both 
claims must also meet the heightened pleading standard for fraud under Federal Rule of 
Civil Procedure 9(b).  Ambassador Press, Inc. v. Durst Image Tech. U.S., LLC, 

 (8th Cir. 2020) (fraud); Untiedt’s Vegetable Farm, Inc. v. S. Impact, LLC, 

, 765 (D. Minn. 2020) (negligent misrepresentation).          
   Here, even with all inferences drawn in her favor, De Broux does not appear to 
allege detrimental reliance.  She does not allege that she asked her contractor to use Power 
Grout  because  of  representations  made  by  Defendants  about  its  efficacy  or  that  she 
discussed or had any input in her contractor’s use of Power Grout in the renovation.  (See 

TAC ¶¶ 452–64.)  Further, though De Broux does describe instances in which Defendants 
made representations about Power Grout, they did not make such representations to her; 
they made them to her contractor.  (Id. ¶¶ 456–57.)  She does not allege that her contractor 
told her about Defendants’ assurances.  (See id.)  Because De Broux does not allege 
detrimental reliance, the Court will dismiss Counts 3 and 5 as to De Broux. 




4 Both Plaintiffs and Defendants agree to appear that Ohio law applies to De Broux’s 
common-law claims.  (See Doc. No. 186 at 13–15; Doc. No. 198 at 37–38.)   
III.  GRAYBEAL’S IDAHO CONSUMER PROTECTION ACT (ICPA) CLAIM               
   A.   Relevant Background                                             
   Graybeal resides in Idaho and moved into a newly constructed home in October 

2020.  (TAC ¶¶ 15, 271.)  Power Grout had been used in the bathroom tilework.  (Id. 
¶¶ 272–73.)  After moving in, she discovered that the grout was soft and “came out in 
chunks.”  (Id. ¶ 272.)  Graybeal, who had previous personal experience with laying tile, 
decided to remove the grout and reinstall it herself.  (Id. ¶ 274.)  She chose to use Power 
Grout for the job given her understanding of its desirable features, as advertised “on the 

bag of Power Grout the contractor had left at her home.”  (Id. ¶ 275.)    
   Graybeal correctly mixed and installed the Power Grout.  (Id. ¶ 277.)  However, 
after letting it cure for over a week, she discovered that it was still soft.  (Id. ¶ 278.)  She 
discovered that, in every other location in her home in which Power Grout had been 
installed, it “could be easily scratched out of the joints with a scrub brush or fingernail,” 

especially  when wet.   (Id.  ¶ 279.)    Graybeal  sought  to  make  a  warranty  claim  with 
Defendants in June 2023.  (Id. ¶ 281.)  Ultimately, Defendants suggested that the defects 
in the grout were due to user error, and they told Graybeal to apply the Hardener to it.  (Id. 
¶¶ 284–85.)  Graybeal informed Defendants that applying the Hardener was not a workable 
solution because she had researched and learned that the Hardener ruined tiles and did not 

work.  (Id. ¶¶ 287–88.)  Defendants offered no other remedy to Graybeal.  (Id. ¶¶ 290–91.) 
   B.   Failure to Allege Contractual Relationship                      
   Defendants move to dismiss Graybeal’s ICPA claim, arguing that Graybeal failed 

to allege facts sufficient to establish the first element of an ICPA claim.  The Court agrees. 
   To prevail on an ICPA, a plaintiff must prove three elements:        
        (1) the consumer purchased goods or services from a seller;     
        (2) the  seller  engaged  in  unfair  or  deceptive  act(s)  or 
        practice(s) that are declared unlawful under the ICPA; and      
        (3) the  unfair  act(s)  or  practice(s)  caused  the  consumer  to 
        suffer an “ascertainable loss of money or property” (real or    
        personal).                                                      
Lister Frost Injury Lawyers, PLLC v. Idaho Injury Law Grp., PLLC, 

 (Idaho 
2022).  In Taylor v. McNichols, 

 (Idaho 2010), the Idaho Supreme Court 
affirmed the dismissal of an ICPA claim on grounds that “the aggrieved party must have 
been  in  a  contractual  relationship  with  the  party  alleged  to  have  acted  unfairly  or 
deceptively,”  but  plaintiff  had  not  pleaded  the  existence  of  any  such  contractual 
relationship.  

 at 662 (citing Haskin v. Glass, 

 (Idaho Ct. App. 1982) 
(“[A] claim under the ICPA must be based upon a contract.”)).             
   Since Taylor, subsequent Idaho courts have concluded that an ICPA claim requires 
direct contractual privity between a plaintiff and defendant.  See, e.g., Duspiva v. Fillmore, 

 (Idaho 2013) (quoting Taylor for principle that contractual privity is 
required between ICPA plaintiff and defendant); Kerr v. ReconTrust Co. N.A., No. 41670, 

, at *3 (Idaho Ct. App. Nov. 25, 2014) (same).  Federal district courts in 
Idaho have done the same.  E.g., Dreyer v. Idaho Dep’t of Health & Welfare, 

, 952–53 (D. Idaho 2020) (dismissing ICPA claim where plaintiff did not allege 
contractual relationship with defendant); Hansen, et al. v. U.S. Bank, Nat’l Assoc., No. 
4:15-CV-00085-BLW, 

, at *4 (D. Idaho Sept. 4, 2015) (dismissing ICPA 

claim because, in accordance with “well-established” principle from Taylor, no contractual 
privity existed between ICPA plaintiff and defendants); Moto Tech, LLC v. KTM N. Am., 
Inc., No. 1:13-CV-00165 (BLW), 

, at *3 (D. Idaho Dec. 9, 2013) 
(dismissing ICPA claim not based on contractual relationship); Mortensen v. Mortg. Elec. 
Registration Sys., Inc., et al., No. 1:10-CV-00234 (EJL/REB), 

, at *13 
(D. Idaho Aug. 24, 2012) (same).  So, too, have federal courts in districts outside of Idaho.  

E.g., Bledsoe v. FCA US LLC, 

, 794 (E.D. Mich. Mar. 23, 2023) 
(dismissing ICPA claim not premised on contractual relationship); In re Duramax Diesel 
Litig., 

, at *8–9 (E.D. Mich. Aug. 1, 2018) (concluding “the Idaho 
Supreme Court has unambiguously interpreted the ICPA as requiring direct contractual 
privity” and dismissing ICPA claim in which such privity was not alleged). 

   Because the Idaho Supreme Court is the “ultimate arbiter of Idaho law” that “has 
the last word on construing statutory language,” Moto Tech, 

, at *4 
(citing J.R. Simplot Co. v. Idaho State Tax Comm’n, 

 (Idaho 1991)), 
the Court will follow Taylor.5  Accord Wilson v. Colonial Penn Life Ins. Co., 

 Plaintiffs point out that some federal district courts outside of Idaho question whether 
Taylor requires both a contractual relationship and direct privity between the litigants.  E.g., 
MSP Recovery Claims v. Abbott Labs., No. 19-21607 (FLW), 

, at *19 
(D.N.J. May 28, 2021) (stating that “courts have permitted claims under the ICPA to 
proceed where plaintiffs had contracts with other parties that resulted in their purchase of 
the defendant manufacturers’ products”); BCBSM, Inc. v. Walgreen Co., 

, 857 (N.D. Ill. Jan. 8, 2021) (“The [Taylor] court concluded the action only need be 
based on a contract, but there need not be privity.”); In re Chrysler-Dodge-Jeep Ecodiesel 
1208, 1211 n.4 (D. Minn. 1978) (citing Erie R.R. v. Tompkins, 

 (1938)) 
(observing that, when sitting in diversity, federal court “is obligated to apply state law as 

declared by statute or by opinion of the state’s highest court”).  Here, the TAC includes 
allegations that a contractor used Power Grout in Graybeal’s home.  (TAC ¶¶ 271–73.)  
The allegations do not include any statement that Graybeal ever purchased Power Grout 
herself; instead, Graybeal used Power Grout that the contractor left behind at her home.  
(See 

 ¶¶ 271–92.)  There is no alleged direct contractual relationship between Graybeal 
and Defendants and the TAC fails to state an ICPA claim.6                 

III.  THE EDWARDS’S MASSACHUSETTS CONSUMER PROTECTION ACT                 
   CLAIM                                                                
   A.   Relevant Background                                             
   The Edwardses reside in Massachusetts.  (TAC ¶¶ 16, 17.)  In 2019, as part of a 
home renovation, the Edwardses sought out “the best grouts available” from a local tile 
store.  (Id. ¶¶ 293–95.)  Based on Defendants’ representations on Power Grout’s packaging, 
and notwithstanding the high price point, the Edwardses selected Power Grout for their 
contractor’s use.  (Id. ¶¶ 296–97, 299.)  Ultimately, the grout “ran out of the joints when it 


Mktg., Sales Pracs., and Prods. Liab. Litig., 

 (N.D. Cal. 2018) 
(noting that the Taylor decision did not specify “what kind of contractual relationship the 
court was contemplating”); Johnson v. Ford Motor Co., No. 3:13-CV-6529, 

, at *10 (S.D. W. Va. Nov. 24, 2015) (determining plaintiff had standing to pursue 
ICPA claim against car dealer, who had contractual relationship with manufacturer).  The 
distinction has little bearing on the consideration of Defendants’ motion in this case, 
however, because the TAC does not allege either a contractual relationship or direct privity. 
6 Plaintiffs assert that “ the express warranties governing Power Grout and the Hardener” 
provide privity (Doc. No. 198 at 27), but Plaintiffs provide no legal authority to support 
this assertion.  Absent such authority, the Court declines to accept this proposition. 
was  wet,  and  it  cracked  and  crumbled  when  it  was  dry.”    (Id.  ¶ 300.)    Even  after 
commissioning re-tiling work with a new contractor (who also used Power Grout), and 

after applying Hardener to the second application of defective Power Grout, the Edwardses 
continued to experience issues with defective soft grout.  (Id. ¶¶ 301–10.) 
   B.   Failure to Provide Pre-Suit Notice                              
   Defendants argue that Count 9—the Edwards’s claim under the Massachusetts 
Consumer Protection  Act (MCPA), Mass. Gen. Laws ch. 93A—should be dismissed 
because the Edwardses failed to provide Defendants with required pre-suit notice.  (Doc. 

No. 186 at 15–18.)  For the reasons below, the Court agrees.              
   The MCPA requires that a plaintiff provide a defendant with notice before filing a 
claim, as follows: “At least thirty days prior to the filing of any such action, a written 
demand  for  relief,  identifying  the  claimant  and  reasonably  describing  the  unfair  or 
deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered 

to any prospective respondent.”  Mass. Stat. 93A § 9(3).  The failure to provide this notice 
is a “bar to suit.”  Entrialgo v. Twin City Dodge, Inc., 

 (Mass. 1975).  
Further, the pre-suit notice requirement is considered “a special element” of an MCPA 
claim and, as such, it must be alleged in the complaint.  Rodi v. S. New England Sch. of 
Law, 

 (1st Cir. 2004) (affirming dismissal of MCPA claim where plaintiff 

did not mention pre-suit notice in complaint or attachments).             
   Plaintiffs make two arguments in response to Defendants’ motion.  First, Plaintiffs 
argue this case meets an exception to the pre-suit notice requirement.  (Doc. No. 198 at 
40.) There is no pre-suit notice requirement if “the prospective respondent does not 
maintain a place of business or does not keep assets within the commonwealth.”  Mass. 
Stat. 93A § 9(3).  Here, the TAC does not allege that Defendants maintain a place of 

business  or  assets  in  Massachusetts.    (See  generally  TAC.)    The  absence  of  such 
allegations, however, does not compel the Court to deny Defendants’ motion because 
Massachusetts law requires that a plaintiff affirmatively plead the existence of an exception 
to the pre-suit notice provision.  See Sumner v. Mortg. Elec. Registration Sys., Inc., No. 11-
CV-11910-DJC, 

, at *6 (D. Mass. Jul. 26, 2012) (dismissing MCPA 
claim where plaintiffs did not affirmatively allege an exception to MCPA’s pre-suit notice 

requirement).  Thus, Plaintiff’s first argument is unconvincing.          
   Second,  Plaintiffs  suggest  that  the  non-Massachusetts  Plaintiffs’  provision  of 
pre-suit demand letters to Defendants satisfies the MCPA’s pre-suit notice requirement.  
(Doc. No. 198 at 40–41 (citing TAC ¶¶ 522–27).)  To satisfy the MCPA, a pre-suit notice 
letter need at least “identify[] the claimant,” Mass. Stat. 93A § 9(3), and reference alleged 

Massachusetts conduct.  Cassano v. Gogos, 

 (Mass. Ct. App. 1985) 
(determining pre-suit notice requirement not satisfied because “[n]othing . . . characterizes 
the claim as one under the consumer protection statute); see also Chavez v. Wal-Mart 
Stores, Inc., No. 13-429, 

, at *3 (C.D. Cal. June 2, 2014) (rejecting 
plaintiff’s contention that pre-suit notice letter that invoked California law satisfied MCPA 

and dismissing MCPA claim for noncompliance with pre-suit notice requirement).  Here, 
the Edwards’s co-plaintiffs’ pre-suit notice letter (See Doc. No. 70-25)7 does not satisfy 
the MPCA because it fails to identify the Edwardses and fails to state that some alleged 

wrongful conduct occurred in Massachusetts.  Thus, the Court dismisses Count 9. 
IV.  THE CALAMITAS’ NEGLIGENT MISREPRESENTATION AND STRICT                
   PRODUCT LIABILITY CLAIMS                                             
   A.   Relevant Background                                             
   The  Calamitas  reside  in  Pennsylvania.    (TAC  ¶¶ 18,  19.)    They  remodeled  a 
bathroom in their home in 2021.  (Id. ¶ 319.)  Based on Defendants’ representations about 
Power Grout’s efficacy, and despite its higher price point, the Calamitas selected Power 
Grout for the tile installation in the bathroom.  (Id. ¶¶ 320–23.)        
   Upon their first use of the remodeled shower, the grout “started pouring out of the 

grout  joints.”    (Id.  ¶¶ 324–27.)    They  complained  to  Defendants.    (Id.  ¶¶ 328–30.)  
Defendants ultimately recommended that the Calamitas apply the Hardener, which, after 
applied, left an unappealing film on the grout and did not fix the issue.  (Id. ¶¶ 331–34.)  
The Calamitas have stopped using their remodeled shower because the grout “continues to 
wash out of the joints,” and they wish “to prevent exposing the home to more water 

penetration and resulting water damage.”  (Id. ¶ 335.)  They allege that the Power Grout 
has damaged their property and has adversely affected its value.  (Id. ¶ 336.) 



7 The Court considers the August 12, 2022 pre-suit notice letter—which Plaintiffs’ counsel 
previously filed in connection with a discovery motion in June 2023—without converting 
this motion into one for summary judgment because the letter is embraced by the pleadings. 
   B.   Inapplicability of the Economic Loss Doctrine                   
   Defendants argue that the Calamitas’ negligence and strict products-liability claims 

(Counts 3 and 4) are barred by the Pennsylvania economic loss doctrine.  (Doc. No. 186 at 
5–6.)  The Court concludes that the economic loss doctrine does not preclude this claim. 
   In Pennsylvania, the economic loss doctrine “provides that no cause of action exists 
for negligence that results solely in economic damages unaccompanied by physical or 
property damage.”  Fleming Steel Co. v. Jacobs Eng’g Grp., Inc., 

 
(W.D.  Pa.  2019)  (quotation  omitted)  (applying  Pennsylvania  law).    It  is  meant  to 

“maintain[] the separate spheres of the law of contract and tort.”  N.Y. State Elec. & Gas 
Corp. v. Westinghouse Elec. Corp., 

 (Pa. Super. Ct. 1989).  Moreover, 
under this doctrine, “negligence and strict liability theories do not apply in an action 
between commercial enterprises involving a product that malfunctions where the only 
resulting damage is to the product itself.”  REM Coal Co. v. Clark Equip. Co., 

 (Pa. Super. Ct. 1989).  This rule exists to “place a check on limitless liability for 
manufacturers and establish clear boundaries between tort and contract law.”  Werwinski 
v. Ford Motor Co., 

 (3d Cir. 2002), overruled on other grounds by Earl 
v. NVR, Inc., 

, 312–14 (3d Cir. 2021).                        
   Defendants contend that, under Pennsylvania’s economic-loss rule, the Calamitas’ 

tort claims are barred because the only damages described are damages to “the product 
itself.”  (Doc. No. 203 at 8.)  Defendants contend that the “product itself” is not limited to 
just Power Grout; it includes the house into which the Power-Grouted shower is integrated 
because Pennsylvania courts regard homes to be a complete interconnected unit.  (Id. at 6–
7.)  Thus, according to Defendants, to the extent the Calamitas allege that their bathroom 
has been damaged, their claims are still barred.  Defendants rely on Repasky v. Jeld-Wen 

Inc., 

 (Pa. Ct. Comm. Pl. 2006), in which the plaintiff asserted a 
negligence claim against the manufacturer of window units that were installed in an 
addition to their home, which ultimately cracked, resulting in rot around the windows and 
doors.  

.  The Pennsylvania Court of Common Pleas considered whether, under 
the Pennsylvania economic-loss doctrine, the window units were the “product itself,” or 
whether the entire new addition was the “product itself.”  

 at 498–503.  The court 

observed that,                                                            
        [i]n determining whether a product has injured only itself in an 
        action in which a component part manufactured by a defendant    
        causes injury to the product of which it is a part, a court should 
        look not to the product manufactured by the defendant, but to   
        the product purchased by the plaintiff . . . .  Therefore, to the 
        extent products used in construction prove defective and result 
        in  harm to  a  building  itself,  those  damages  should  not  be 
        considered damage to “other property.”                          

 at 502–03 (quoting Longport Ocean Plaza Condo. Inc. v. Robert Cato & Assocs. Inc., 

, at *5 (E.D. Pa. Mar. 18, 2002)).  Ultimately, the court concluded that 
because  the  windows  were  part  of  a  new  addition  to  the  home,  the  windows  were 
“components that are part of a product when it is initially sold.”  

 at 501 (quoting 
Saratoga Fishing Co. v. J.M. Martinac & Co., 

 (1997).  The addition was 
“the ‘finished” product,’” and, as a result, the economic loss doctrine barred plaintiff’s 
negligence claim.  Id. at 503; see also Longport Ocean Plaza Condo Inc., 

, at *5 (concluding that plaintiff’s tort claim was barred by the economic loss 
doctrine because “the product purchased by the plaintiff in these cases—the subject of the 
bargain—is  the  successfully  completed  building,  not  simply  its  component  parts”);  

Johnson v. Toll Bros., Inc., 

 (Pa. Super. Ct. 2023) (concluding that 
plaintiff’s tort claims were barred by the economic loss doctrine because “the home at 
issue[] is akin to a single product that is the sum of its component parts”). 
   Plaintiffs disagree that these cases preclude their Pennsylvania tort claims, arguing 
that  when  a  product  is  applied  to  and  causes  damage  to  an  existing  structure,  the 
recoverable damage is not only to the product itself.  (Doc. No. 198 at 26.)  In support, they 

cite to Stonhard v. Advanced Glassfiber Yarns, Inc., No. CONTROL 100380, 

 (Pa. Comm. Pl. Nov. 21, 2001), where plaintiff installed defendant’s floor product 
to an already existing structure.  

, at *2.  Plaintiff alleged that defendant’s 
product damaged the original flooring.  

  The court determined that the damaged original 
flooring “qualifies as ‘other property,’ as it was hardly placed in the stream of commerce 

by [defendant].”  

  In other words, “the product itself” did not include the building but 
instead comprised only the defendant’s floor product.  See 

  Consequently, the court 
ruled that the economic loss doctrine did not bar the tort claim.  Id.; see also 2-J Corp. v. 
Tice, 

 (3d Cir. 1997) (applying Pennsylvania law and concluding, in case 
involving defendant’s defective roof-support structure, the failure of which caused damage 

to  plaintiff’s  inventory  in  building,  “product  itself”  comprised  only  the  roof-support 
structure,  and  plaintiff  could  recover  for  damage  to  “other  property”—i.e.,  damaged 
inventory in building); Hartford Fire Ins. Co. v. Assoc. Constr. & Mgmt. Co., No. Civ. A 
98-45, 

, at *3–7 (E.D. Pa. Apr. 19, 2000) (applying Pennsylvania law and 
concluding that plaintiff, whose warehouse roof collapsed, could not recover against parties 
involved in construction of collapsed structure under economic-loss doctrine, but could 

recover for damaged inventory, which was “other property”).  Cf. Am. Stores Props., Inc. 
v. Spotts, Stevens & McCoy, Inc., 

, 716–17 (E.D. Pa. 2009) (applying 
Pennsylvania law and concluding economic-loss doctrine barred plaintiff’s claims against 
parties  involved  in  construction  of  structure  that  experienced  damage  due  to  faulty 
foundation because plaintiff had not alleged damages other than cost of repairing those 
walls—the “product itself”).                                              

   The lines of cases cited by both Plaintiffs and Defendants identify the “product 
itself” (i.e., for which plaintiff cannot recover economic loss in tort when damaged) is “the 
product purchased by the plaintiff,” Longport Ocean Plaza Condo Inc., 

, 
at *5, or the item “placed in the stream of commerce by the manufacturer.”  Saratoga 
Fishing  Co.,  

  (1997);  see  also  Stonhard,  

  at  *2 

(concluding that the original flooring “qualifies as ‘other property,’ as it was hardly placed 
in the stream of commerce by [defendant]”).  Here, the Calamitas seek to recover for 
damages to an existing bathroom structure, which is not something that Defendants placed 
in the stream of commerce or that the Calamitas purchased from Defendants.  Moreover, 
the Calamitas themselves—not their contractor—purchased the Power Grout which was 

applied to the exiting bathroom.  (Id. ¶¶ 320–22.)  Thus, like the damages in Stonhard and 
the cases cited by Plaintiffs, the “product itself” includes only the Power Grout, not the 
underlying structure.                                                     
   Therefore, the Court concludes that Plaintiffs plausibly alleges, with all reasonable 
inferences drawn in their favor, that the failure of the Power Grout has caused water 

damage to their property and, as a result, diminution in the value of the property.  (TAC 
¶¶ 335, 336; see also id. ¶¶ 139, 179.)  The economic loss doctrine does not bar the claims 
in Counts 3 and 4.                                                        
V.   THE  WHITENACKS’   KENTUCKY    CONSUMER   PROTECTION    ACT          
   CLAIM                                                                

   A.   Relevant Background                                             

   The Whitenacks built a new home, which was finished in 2017.  (TAC ¶ 364.)  They 
selected the grout to be used by their contractor during construction.  (Id. ¶ 365.)  They 
selected Power Grout based on Defendants’ representations about its efficacy.  (Id. ¶¶ 366, 
367.)  However, the Whitenacks discovered defects with the Power Grout “[w]ithin a 
couple of months of . . . moving in.”  (Id. ¶¶ 370, 371.)  They then submitted a claim to 
Defendants, who sent them Hardener to use over the Power Grout and encouraged them to 
use leftover Power Grout to patch problem spots.  (Id. ¶ 373.)  Then, “in 2021,” after the 
Hardener and patched Power Grout also proved to be defective, the Whitenacks contacted 
the distributor from which they purchased the Power Grout.  (Id. ¶¶ 375, 376.)  The tile 
distributor “provided them with a new bag of Power Grout,” which they represented was a 
newer version formulated to fix earlier problems.  (Id. ¶ 377.)  This installation of Power 
Grout also failed.  (Id. ¶ 383.)                                          
   Plaintiffs filed this action on September 7, 2022.  (Doc. No. 1.)  Plaintiffs filed their 

motion for leave to file the Second Amended Complaint on December 11, 2023.  (Doc. No. 
110.)  The Whitenacks joined this lawsuit when Plaintiffs filed the Second Amended 
Complaint on January 17, 2024.   (See Doc. No. 149.)                      

   B.   Tolling of the Statute of Limitations                           
   Defendants  assert  that  the  Whitenacks’  claim  brought  under  the  Kentucky 
Consumer Protection Act (KCPA) should be dismissed because their claim was brought 
outside of the two-year statute of limitations.  (Doc. No. 186 at 11–12.)  For the reasons 
below, the Court denies Defendants’ motion as it relates to this claim.   
   The KCPA provides a cause of action to “[a]ny person who purchases or leases 

goods or services primarily for personal, family, or household purposes and thereby suffers 
any ascertainable loss . . . as a result of the use or employment by another person of a 
method, act or practice declared unlawful by KRS 367.170.”  Ky. Rev. Stat. § 367.220(1).  
Section 367.170 makes it illegal to engage in “[u]nfair, false, misleading, or deceptive acts 
or practices in the conduct of any trade or commerce.”  Id. § 367.170(1).  The KCPA has 

a two-year statute of limitations.  Id. § 367.220(5).                     
   Generally, “[a] defendant does not render a complaint defective by pleading an 
affirmative defense,” such as a statute of limitations defense.  Jessie v. Potter, 

, 713 n.2 (8th Cir. 2008) (citation omitted).  As a result, “the possible existence of a 
statute of limitations defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless 

the complaint itself establishes the defense.”  

 (citation omitted); see also Joyce v. 
Armstrong Teasdale, LLP, 

 (8th Cir. 2011) (same).        
   Plaintiffs assert that the original September 2022 Complaint tolled the statute of 
limitations on the Whitenacks’ KCPA claim, even though that pleading did not name the 
Whitenacks as plaintiffs and did not include any other Kentucky plaintiffs or claims under 
Kentucky law.  (Doc. No. 198 at 33–34.)  It is true that, under what is known as American 

Pipe tolling, “[t]he filing of a class action tolls the statute of limitations as to all asserted 
members of the class.”  Crown, Cork & Seal Co. v. Parker, 

, 352–53 (1983) 
(citing Am. Pipe & Constr. Co. v. Utah, 

 (1974)).  However, Plaintiffs 
cite no authority for the proposition that the filing of a class action tolls the statute of 
limitations for any and all claims that later-joined plaintiffs may bring.  The original 
Complaint (which Plaintiffs assert tolled the statute of limitations for the Kentucky-based 

Whitenacks) identified the common questions of law and fact in the putative class-action 
as whether Defendants violated the common law and consumer-protection and trade-secret 
statutes in three states: Minnesota, Washington, and New Hampshire.  (Doc. No. 1 at 21–
23.)  The original Complaint cannot fairly be read as tolling the statute of limitations under 
a Kentucky consumer-protection statute for a then-non-existent Kentucky class.  Zarecor 

v. Morgan Keegan & Co., 

, 887–88 (8th Cir. 2015) (“American Pipe tolling 
should be limited to claims filed in a later action that are the same as those pleaded in the 
putative class action.”).  Thus, the running of the statute of limitations on the Whitenacks’ 
KCPA claim was not tolled as of the date of the filing of the initial Complaint. 
   Plaintiffs alternatively contend that, even if American Pipe tolling does not apply, 

the Whitenacks’ KCPA claim should be considered “filed” as of the date Plaintiffs filed 
their motion for leave to amend the initial complaint on December 11, 2023, not the date 
that the Second Amended Complaint was subsequently filed in January 2024.  (Doc. No. 
198 at 34 n.8.)  The Court agrees.  Because the court sits in diversity, it “appl[ies] state 
tolling law but also appl[ies] federal procedural law.”  Great Plains Tr. Co., 

.  Pursuant to the procedural law of this Circuit, filing a motion to amend a complaint 

tolls the running of the statute of limitations, not the date the Second Amended Complaint 
was actually filed.  E.g., Mayes v. AT&T Info. Sys., Inc., 

 (8th Cir. 
1989) (“[In] the situation where the petition for leave to amend the complaint has been 
filed prior to expiration of the statute of limitations, . . . the amended complaint is deemed 
filed within the limitations period.”); see also, e.g., Beech v. San Joaquin Cnty., No. 2:15-
CV-0268 (TLN/CKD), 

, at *1–2 (E.D. Cal. Nov. 8, 2017) (explaining 

that rules governing the commencement of an action or claim through amendment of 
pleading are not the type of tolling rules borrowed from state law).  That being the case, 
the Court considers the Whitenacks’ KCPA claim as filed on December 11, 2023.  The 
allegations in the TAC, on their face, do not bar the Whitenacks’ KCPA claim because 
violative conduct8 is alleged to have occurred “in 2021.”  Discovery may reveal the alleged 

wrongful conduct that would form the basis for a KCPA claim occurred prior to December 
11, 2021, in which case, it may ultimately be barred.                     




8 The Court rejects Defendants’ argument that a purchase of Power Grout is a perquisite to 
a KCPA claim and that, because the Whitenacks do not allege that they purchased Power 
Grout, the TAC fails to state a claim.  The plain language of the KCPA provides that 
covered unlawful conduct includes engaging in “[u]nfair, false, misleading, or deceptive 
acts or practices in the conduct of any trade or commerce.”  Ky. Rev. Stat. § 367.220(1).  
Here, Plaintiffs allege that they submitted a claim to Defendants (at which point it can be 
reasonably inferred that Defendants made representations to them about the efficacy of 
Power Grout).  (See TAC ¶¶ 373–376.)                                      
VI.  GOUGAR’S   AND  LORBECKI’S   WISCONSIN   DECEPTIVE   TRADE           
   PRACTICES ACT CLAIM                                                  
   A.   Relevant Background                                             
   Gougar and Lorbecki reside in Wisconsin.  (TAC ¶¶ 30, 31.)  When they built a new 
home in 2018, they asked their contractor to use Power Grout on tile installations because 
of “representations Defendants make about the grout.”  (Id. ¶¶ 465–66.)  After moving in, 

Gougar and Lorbecki discovered that the Power Grout rubbed out between tile joints when 
cleaned  and  eroded  when  wet.    (Id.  ¶¶ 469–70.)    After  complaining  to  Defendants, 
Defendants sent them the Hardener.  (Id. ¶¶ 470–72.)  Gougar and Lorbecki applied it; 
however, it altered the color of the grout and created an undesirable film.  (Id. ¶ 473.)  
Defendants ultimately paid Gougar and Lorbecki $3,800 at some point “in 2022” to re-

grout their shower.  (Id. ¶ 474.)  The second application of Power Grout also failed because 
it comes out of the tile joints when wet.  (Id. ¶¶ 475–79.)  Gougar and Lorbecki were added 
to this action through the Second Amended Complaint, which Plaintiffs moved for leave 
to file on December 11, 2023.  (Doc. No. 113-2.)                          
   B.   Failure to Allege Conduct Occurring within the Statute of Limitations  

   Defendants  argue  that  Gougar’s  and  Lorbecki’s  claim  under  the  Wisconsin 
Deceptive Trade Practices Act (WDTPA) fails because it has not accrued and because it is 
time-barred.9  Because Gougar and Lorbecki have not alleged that Defendants engaged in 
conduct within the statute-of-limitations period, the Court agrees with Defendants. 

   The WDTPA prohibits the making of false statements in connection with the sale 
of goods and services.  

.  It provides as follows:     
        No  person, .  .  . with  intent  to  sell,  distribute,  increase  the 
        consumption  of  or  in  any  wise  [sic]  dispose  of          
        any . . . merchandise . . . or anything offered by such person, 
        firm, corporation, or association, . . . directly or indirectly, to 
        the public[10] for sale, hire, use or other distribution, or with 
        intent to induce the public in any manner to enter into any     
        contract or obligation relating to the purchase, sale, hire, use or 
        lease  of  any  .  .  .  merchandise  .  .  .  ,  shall  make,  publish, 
        disseminate, circulate, or place before the public, or cause,   
        directly or indirectly, to be made, published, disseminated,    
        circulated,  or  placed  before  the  public  .  . . an         
        advertisement, . . . representation  of  any  kind  to  the  public 
        relating to such purchase, sale, hire, use or lease of such . . . 
        merchandise, . . . or to the terms or conditions thereof, which 
        advertisement . . . or representation contains any assertion,   
        representation or statement of fact which is untrue, deceptive  
        or misleading.                                                  

 § 100.18(1).  Any action under section 100.18 must be brought no more than “3 years 
after the occurrence of the unlawful act or practice which is the subject of the action.”  Id. 
§ 100.18(11)(3).                                                          

9 Gougar and Lorbecki initially brought claims under two sections of the WDTPA—section 
100.18 and section 100.20.  However, Plaintiffs concede that their claim under section 
100.20 should be dismissed.  (See Doc. No. 198 at 36 n.9.)                
10 Under the WDTPA, all representations made by a defendant to any party with whom 
they have no contractual relation are deemed representations to the “public.”  See Hackel 
v. Nat’l Feeds, Inc., 

, 979–80 (W.D. Wis. 2013).       
   For purposes of determining when the statute of limitations runs, the focus of the 
inquiry is not when a plaintiff discovers the harm; rather, it is when a defendant engages in 

the conduct prohibited by section 100.18.  See Selzer v. Brunsell Bros., Ltd., 

 (Wis. Ct. App. 2002) (providing that three-year statute of limitations applies 
“regardless of whether [a plaintiff] knew of his injury” by the time the three years expires); 
Kain v. Bluemound E. Indus. Park, Inc., 

 (Wis. Ct. App. 2001) (same).  
In the event where a plaintiff seeks to hold a defendant accountable for a continuing course 
of alleged misconduct that started before the three-year statute of limitations period, the 

plaintiff must be able to show that “one of [defendant’s] acts fell inside the three years 
prior to filing of th[e] lawsuit,” which is done by “demonstrat[ing] that they received one 
of defendants’ allegedly misleading statements” within that time, or on or after December 
11, 2020.  Werner v. Pittway Corp., 

, 1033–34 (W.D. Wis. 2000). 
   Here, the TAC includes allegations that some time on or before 2018, Gougar and 

Lorbecki selected Power Grout for use in their new home due to representations made by 
Defendants about the efficacy of the product.  (TAC ¶¶ 465–66.)  In addition, the TAC 
includes  allegations  that,  after  discovering  that  the  Power  Grout  installation  failed 
“[i]mmediately after moving in,” Gougar and Lorbecki complained to Defendants, who 
sent them Hardener.  (Id. ¶¶ 468–72.)  They further allege that, at some point, Defendants 

paid them a certain sum to re-grout a shower.  (Id. ¶ 474.)  Plaintiffs allege that “[t]his 
process was done in 2022.”  (Id. ¶¶ 475–76.)  Construing these allegations in Plaintiffs’ 
favor, the Court cannot reasonably infer at what point, except for “[i]mmediately after 
moving in” after purchasing their home in 2018, that Defendants made any representations 
about Power Grout’s efficacy.  Though Plaintiffs allege that they replaced the tilework in 
their bathroom “in 2022” using funds previously provided (at some unknown time) by 

Defendants, they do not allege any details that would allow the Court to reasonably infer 
that Defendants made representations to them about Power Grout within the limitations 
period.  Thus, Count 16 is time-barred.                                   
   Plaintiffs contend, however, that under American Pipe, the three-year time bar on 
Gougar’s and Lorbecki’s WDTPA claim was tolled as of the filing of the initial complaint 
in September 2022.  (Doc. No. 198 at 29–31, 36.)  In response, Defendants explain that 

American Pipe tolling does not apply to statutes of repose, such as the WDTPA.  (Doc. No. 
203 at 15–16.)  Defendants are correct.  The WDTPA is a statute of repose.  Accord Kain 
v. Bluemound E. Indus. Park, Inc., 

, 645 (Wis. Ct. App. 2001) (concluding 
that 

. is statute of repose).  Statutes of repose are meant to “give more 
explicit  and  certain  protection  to  defendants”  and  are  a  “legislative  judgment  that  a 

defendant should be free from liability after the legislatively determined period of time.”  
Cal. Pub. Emps. Retirement Sys. v. ANZ Secs., Inc., 

 (2017).  The U.S. 
Supreme Court acknowledged that the tolling principle in American Pipe is a creature of 
“the judicial  power  to  promote  equity,  rather  than to  interpret  and  enforce  statutory 
provisions,” which does not supersede the application of a statute of repose.  Cal. Pub. 

Emps. Retirement Sys., 582 U.S. at 509–510.  Thus, American Pipe tolling does not apply. 

   Based on the foregoing, and on all of the files, records, and proceedings herein, 

IT IS HEREBY ORDERED THAT:                                                
1.  Defendants’ motion to dismiss the Third Amended Complaint (Doc. No. 185) is 
   GRANTED IN PART and DENIED IN PART as follows:                       
     a.  Defendants’ requests to dismiss Counts 3 and 4 as to the Calamitas and Count 
        12 is DENIED.                                                   
     b.  Defendants’ requests to dismiss Counts 3 and 5 as to De Broux, Count 8, and 
        Count 16 are GRANTED, and those claims will be dismissed WITHOUT 
        PREJUDICE.                                                      
     c.  Defendants’ request to dismiss Count 9 is GRANTED, and that claim will be 
        dismissed WITH PREJUDICE.                                       
2.  Defendants’ motion to strike allegations of fraudulent concealment from the Third 
   Amended Complaint (Doc. No. 185) is DENIED.                          
3.  Plaintiffs’ request to dismiss the portion of Count 16 brought under 

 under Federal Rule of Civil Procedure 41(a)(2) is GRANTED, and that 
   claim will be dismissed WITHOUT PREJUDICE.                           

Dated:  October 18, 2024                /s/ Jeffrey M. Bryan              
                                      Judge Jeffrey M. Bryan            
                                      United States District Court      

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


Lisa  Rouse,  Juston  Rouse,  Jenna  Drouin,   File No. 22-CV-02173 (JMB/JFD) 
Nicholas Drouin, Kendra Graybeal, Nichole                                 
Edwards, Lucas Edwards, Robert Calamita,                                  
Gina  Calamita,  Nicole  Robb,  Dave  Robb,                               
Clay Whitenack, Andrea Lea Hill Whitenack,                                
Brian  Andree,  Alexandra  Andree,  Kyle       ORDER                      
Witczak,  Brittany  Witczak,  Mary  Jane                                  
Gougar,  Chris  Lorbecki,  and  Kristina  De                              
Broux,  individually  and  on  behalf  of  all                            
others similarly situated,                                                

        Plaintiffs,                                                     

v.                                                                        

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

        Defendants.                                                     


David W. Asp and Robert David Hahn, Lockridge Grindal Nauen PLLP, Minneapolis, MN, 
and Petra Bergman, pro hac vice, Michael Soder, pro hac vice, Eric W. Richardson, pro 
hac vice, Emily St. Cyr, pro hac vice, David Frederick Hine, pro hac vice, and Alexander 
X.  Shadley,  pro  hac  vice,  Vorys  Sater  Seymour  &  Pease  LLP,  Cincinnati,  OH,  for 
Plaintiffs.                                                               
Todd A. Noteboom, Andrew Leiendecker, William Thomson, and Zach Wright, Stinson 
LLP, Minneapolis, MN, Jeremy A. Root, pro hac vice, Stinson LLP, Jefferson City, MO, 
for Defendants.                                                           


   This matter is before the Court on Defendants H.B. Fuller Company’s and H.B. 
Fuller Construction Products Inc.’s (together, Defendants) motion for partial dismissal of 
Plaintiffs  Lisa  Rouse’s,  Juston  Rouse’s,  Jenna  Drouin’s,  Nicholas  Drouin’s,  Kendra 
Graybeal’s, Nichole Edwards’s, Lucas Edwards’s, Robert Calamita’s, Gina Calamita’s 
Nicole Robb’s, Dave Robb’s, Clay Whitenack’s, Andrea Lea Hill Whitenack’s, Brian 
Andree’s, Alexandra Andree’s, Kyle Witczak’s, Brittany Witczak’s, Mary Jane Gougar’s, 

Chris  Lorbecki’s,  and  Kristina  De  Broux’s,  (together,  Plaintiffs)  Third  Amended 
Complaint (TAC).  (Doc. No. 185.)  For the reasons explained below, the Court grants the 
motion in part and denies it in part.                                     
                   GENERAL BACKGROUND                                   
   H.B.  Fuller  Company  manufactures,  markets,  and  sells  industrial  adhesives, 
coatings, sealants, and other specialty materials.  (Doc. No. 167 [hereinafter, “TAC”] ¶ 36.)  

It owns a brand, TEC, which holds itself out as a leader in “technologically advanced 
products for the installation and surface preparation of tile,” like, for example, grout.  (Id. 
¶¶ 45, 48, 50.)  H.B. Fuller Construction Products Inc. manages the TEC brand.  (Id. ¶ 46.) 
   A.   Defendants Manufacture, Market, and Sell a Defective Grout Product 
   Starting in June 2011, Defendants, through their TEC brand, started manufacturing 

and selling a grout product called “Power Grout.”  (Id. ¶¶ 55, 63.)  Defendants sold Power 
Grout in both retail stores and through distributors.  (Id. ¶ 56.)  Defendants tout their grout 
out as a premium grout product that has several desirable features, including that it is stain 
resistant; that it is free of efflorescence;1 that it never needs to be sealed; that it is fast-
setting and ready for use in four hours; that it is resistant to cracking and shrinking; and 


1 According to Plaintiffs, “[e]fflorescence is a white deposit (usually calcium carbonate) 
that develops on the surface of grout and/or tiles,” which “occurs when soluble, naturally 
occurring mineral salts rise to the surface” and is aesthetically undesirable.  (TAC ¶¶ 117–
118.)  Defendants marketed Power Grout as being free from efflorescence, although it has 
always contained ingredients that are known to produce efflorescence.  (Id. ¶¶ 119–33.) 
that it performs well in both wet and dry conditions.  (Id. ¶¶ 57, 58.)  Because of these 
purported features, Power Grout has a higher price point than other comparable grout 

products—for example, a twenty-five-pound bag of Power Grout sells for approximately 
$90, whereas a twenty-five-pound bag of peer product sells for about $30.  (Id. ¶ 62.) 
   Shortly after launching Power Grout, Defendants received complaints.  (Id. ¶ 64.)  
Specifically, consumers reported that the grout did not harden and that its pigment bled 
out.  (Id.)  Consequently, between January 2012 and January 2018, Defendants launched 
several new versions of Power Grout in an effort to address the complaints of soft grout, 

pigment bleeding, and efflorescence.  (Id. ¶¶ 66–93.)  Defendants purposefully did not 
disclose when they released new versions of Power Grout and, as a result, consumers did 
not know which version of the product they were buying or using.  (Id. ¶¶ 180, 182, 196; 
see also id. ¶¶ 180–213.)  Defendants released a sixth version in January 2018, which is 
still on the market today.  (Id. ¶¶ 93, 94.)  After releasing Version 6, however, Defendants 

became aware that it, too, had the same defects as previous versions.  (Id. ¶¶ 95, 96–107.)  
Nevertheless, Defendants have not made any changes to the product.  (Id. ¶¶ 100–02.) 
   B.   Defendants’ Warranty and Handling of Consumer Complaints        
   Each package of Power Grout boasts a “Lifetime Limited Warranty”; however, the 
terms of such warranty are not described on the packaging.  (Id. ¶¶ 214–15.)  H.B. Fuller 

Construction Products Inc.’s website provides that the lifetime Power Grout guaranty 
provides that the product will not have substantial defects and will not break down or 
deteriorate with use.  (Id. ¶ 216.)  Defendants receive thousands of warranty complaints 
every year about Power Grout’s efficacy.  (Id. ¶ 206.)                    
   Defendants’ first step when responding to consumer warranty claims is to send 
consumers a bottle of “TEC Acrylic Grout Hardener” (Hardener).  (Id. ¶ 157.)  The 

Hardener is not available for purchase; it is available only to consumers who complain to 
Defendants.  (Id. ¶ 164.)  The Hardener is not actually a hardener; it is a grout sealer.  (Id. 
¶¶ 156, 158–59 168–69.)  It was initially known as “TEC Acrylic Grout Sealer”; however, 
Defendants changed its name when consumers pointed out that Power Grout advertises 
itself as never needing sealing.  (Id. ¶¶ 156, 159, 160.)  The Hardener is laborious to apply 
and does not work.   (Id. ¶¶ 172–73.)  Further, the Hardener creates an aesthetically 

displeasing film that can be peeled or scrubbed away, which leaves soft grout exposed.  (Id. 
¶¶ 174, 176.)                                                             
   C.   This Action                                                     
   Plaintiffs commenced this action in September 2022.  (Doc. No. 1.)  In the TAC, 
Plaintiffs—in total, twenty-one individuals—bring seventeen consumer-protection, tort, 

and product-liability claims under numerous state laws against Defendants on behalf of 
themselves and eleven classes.  (See TAC.)                                
                         DISCUSSION                                     
   Defendants now move to strike or dismiss Plaintiffs’ allegations that the statutes of 
limitations  on  all  seventeen  claims  are  tolled  due  to  Defendants’  alleged  fraudulent 

concealment.  Defendants also seek to dismiss several claims, some in whole, some in part, 
including: Count 3 (negligent misrepresentation) as to De Broux and the Calamitas; Count 
4 (strict products liability) as to the Calamitas; Count 5 (fraudulent omission) as to De 
Broux; Count 8 (Graybeal’s claim under the Idaho Consumer Protection Act); Count 9 (the 
Edwards’s  claim  under  the  Massachusetts  Consumer  Protection);  Count  12  (the 
Whitenacks’ claim under the Kentucky Consumer Protection Act); and Count 16 (Gougar’s 

and the Lorbecki’s claim under the Wisconsin Deceptive Trade Practices Act). 
   On a motion to dismiss under Rule 12(b)(6),2 courts consider all facts alleged in the 
complaint to be true and then determine whether the complaint states a “claim to relief that 
is plausible on its face.”  Braden v. Wal-Mart Stores, Inc., 

 (8th Cir. 
2009) (quoting Ashcroft v. Iqbal, 

 (2009)).  A pleading has facial 
plausibility when its factual allegations “allow[] the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.”  Iqbal, 

.  In this 
analysis, courts construe the allegations and draws inferences from them in the light most 
favorable to the plaintiff.  Park Irmat Drug Corp. v. Express Scripts Holding Co., 

 (8th Cir. 2018).  However, courts will not give the plaintiff the benefit of 
unreasonable inferences, Brown v. Medtronic, Inc., 

 (8th Cir. 2010), and 

are “not bound to accept as true a legal conclusion couched as a factual allegation.”  
Papasan v. Allain, 

 (1986).  All told, this standard “calls for enough 
fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim].”  
Bell Atl. Corp. v. Twombly, 

 (2007).                     




2 Defendants do not specify the rule under which they move to dismiss.  (See Doc. Nos. 
185, 186.)  However, the Court has determined that, based on the nature of Defendants’ 
arguments, their motion is brought under Federal Rule of Civil Procedure 12(b)(6). 
I.   FRAUDULENT CONCEALMENT ALLEGATIONS                                   
   Plaintiffs  allege  in  the  TAC  that,  because  Defendants  fraudulently  concealed 

product defects, the running of all relevant statutes of limitations on Plaintiffs’ sixteen 
claims were tolled from the date of first sale of Power Grout in 2011 until February 22, 
2024, the date that Plaintiffs filed the TAC.  (See TAC ¶¶ 538, 550, 560, 577, 591, 606, 
623, 641, 659, 680, 698, 716, 732, 755, 791, 808, 823.)  Defendants move to strike or 
dismiss Plaintiffs’ fraudulent concealment allegations, arguing that the allegations fail to 
satisfy the elements of fraudulent concealment.  The Court denies Defendants’ request. 

   Courts sitting in diversity must apply state equitable tolling laws.  E.g., Summerhill 
v. Terminix, Inc., 

 (8th Cir. 2011) (applying Arkansas state law federal 
procedural law in diversity case to determine if the statute of limitations was equitably 
tolled); Great Plains Tr. Co. v. Union Pac. R.R. Co., 

 (8th Cir. 2007) 
(concluding that “[b]ecause this case arises under our diversity jurisdiction, we apply state 

tolling  law”  and  applying  Kansas  law  to  determine  if  the  allegations  of  fraudulent 
concealment equitably tolled the statute of limitations).  Defendants, however, have not 
analyzed whether the allegations of fraudulent concealment satisfy any of the applicable 
state tolling laws implicated by the claims raised in this case.  As a result, the Court will 
decline to dismiss Plaintiffs’ statute of limitations defense because Defendants have not 

sufficiently developed this issue for the Court’s consideration.3         

3  The  Court  also  denies  Defendants’  companion  request  to  strike  the  allegations  of 
fraudulent concealment contained in the TAC.  Under Federal Rule of Civil Procedure 
12(f), the Court may strike only “an insufficient defense” or “any redundant, immaterial, 
impertinent, or scandalous matter.”  At most, Defendants briefly assert that the fraudulent 
II.  DE  BROUX’S   NEGLIGENT   MISREPRESENTATION     AND  FRAUD           
   CLAIMS                                                               
   A.   Relevant Background                                             
   De Broux resides in Ohio.  (TAC ¶ 29.)  At some point, she hired a general 
contractor to renovate a bathroom in her home.  (Id. ¶ 452.)  The contractor used Power 
Grout in their tile work.  (Id. ¶ 453.)  A few weeks later, De Broux reported to her contractor 

that the Power Grout dripped out between tiles when wet and could be rubbed out from the 
tilework with her finger.  (Id. ¶¶ 455–56.)  Her contractor contacted Defendants.  (Id. 
¶ 456.)  Defendants provided the contractor with a bottle of Hardener; the contractor 
applied the Hardener, but it left an undesirable film on the tiles and ultimately did not work.  
(Id. ¶¶ 457–59.)  Defendants sent an inspector to De Broux’s home, who informed De 

Broux that they could not remedy the issue because she or her contractor had somehow 
voided the Power Grout warranty.  (Id. ¶ 460–61.)  De Broux generally alleges that she 
“relied upon Defendants’ representations regarding Power Grout and has been damaged 
because those representations have proven to be false.”  (Id. ¶ 464.)     
   B.   Failure to Allege Detrimental Alliance                          

   Defendants argue that Count 3 (negligent misrepresentation) and Count 5 (fraud) 
should be dismissed as to De Broux because she does not allege an essential element of the 



concealment allegations are insufficiently pleaded under Federal Rule of Civil Procedure 
9(b), but Defendants do not explain what deficiencies exist under Rule 9(b).  (See Doc. No. 
186 at 18–20.)  A general assertion that a complaint falls short of the heightened pleading 
standard does not rise to the level of defective pleading contemplated by Rule 12(f). 
claims.  (Doc. No. 186 at 13–15.)  In Ohio,4 claims of fraud and negligent misrepresentation 
both require, as an element of those claims, that a plaintiff relied, to their detriment, on a 

misrepresentation made by defendants.  See Janiszewski v. Belmont Career Ctr., 

, 634 (Ohio Ct. App. 2017) (fraud); Fed. Mgmt. Co. v. Coopers & Lybrand, 

 (Ohio Ct. App. 2000) (negligent misrepresentation).  Allegations supporting both 
claims must also meet the heightened pleading standard for fraud under Federal Rule of 
Civil Procedure 9(b).  Ambassador Press, Inc. v. Durst Image Tech. U.S., LLC, 

 (8th Cir. 2020) (fraud); Untiedt’s Vegetable Farm, Inc. v. S. Impact, LLC, 

, 765 (D. Minn. 2020) (negligent misrepresentation).          
   Here, even with all inferences drawn in her favor, De Broux does not appear to 
allege detrimental reliance.  She does not allege that she asked her contractor to use Power 
Grout  because  of  representations  made  by  Defendants  about  its  efficacy  or  that  she 
discussed or had any input in her contractor’s use of Power Grout in the renovation.  (See 

TAC ¶¶ 452–64.)  Further, though De Broux does describe instances in which Defendants 
made representations about Power Grout, they did not make such representations to her; 
they made them to her contractor.  (Id. ¶¶ 456–57.)  She does not allege that her contractor 
told her about Defendants’ assurances.  (See id.)  Because De Broux does not allege 
detrimental reliance, the Court will dismiss Counts 3 and 5 as to De Broux. 




4 Both Plaintiffs and Defendants agree to appear that Ohio law applies to De Broux’s 
common-law claims.  (See Doc. No. 186 at 13–15; Doc. No. 198 at 37–38.)   
III.  GRAYBEAL’S IDAHO CONSUMER PROTECTION ACT (ICPA) CLAIM               
   A.   Relevant Background                                             
   Graybeal resides in Idaho and moved into a newly constructed home in October 

2020.  (TAC ¶¶ 15, 271.)  Power Grout had been used in the bathroom tilework.  (Id. 
¶¶ 272–73.)  After moving in, she discovered that the grout was soft and “came out in 
chunks.”  (Id. ¶ 272.)  Graybeal, who had previous personal experience with laying tile, 
decided to remove the grout and reinstall it herself.  (Id. ¶ 274.)  She chose to use Power 
Grout for the job given her understanding of its desirable features, as advertised “on the 

bag of Power Grout the contractor had left at her home.”  (Id. ¶ 275.)    
   Graybeal correctly mixed and installed the Power Grout.  (Id. ¶ 277.)  However, 
after letting it cure for over a week, she discovered that it was still soft.  (Id. ¶ 278.)  She 
discovered that, in every other location in her home in which Power Grout had been 
installed, it “could be easily scratched out of the joints with a scrub brush or fingernail,” 

especially  when wet.   (Id.  ¶ 279.)    Graybeal  sought  to  make  a  warranty  claim  with 
Defendants in June 2023.  (Id. ¶ 281.)  Ultimately, Defendants suggested that the defects 
in the grout were due to user error, and they told Graybeal to apply the Hardener to it.  (Id. 
¶¶ 284–85.)  Graybeal informed Defendants that applying the Hardener was not a workable 
solution because she had researched and learned that the Hardener ruined tiles and did not 

work.  (Id. ¶¶ 287–88.)  Defendants offered no other remedy to Graybeal.  (Id. ¶¶ 290–91.) 
   B.   Failure to Allege Contractual Relationship                      
   Defendants move to dismiss Graybeal’s ICPA claim, arguing that Graybeal failed 

to allege facts sufficient to establish the first element of an ICPA claim.  The Court agrees. 
   To prevail on an ICPA, a plaintiff must prove three elements:        
        (1) the consumer purchased goods or services from a seller;     
        (2) the  seller  engaged  in  unfair  or  deceptive  act(s)  or 
        practice(s) that are declared unlawful under the ICPA; and      
        (3) the  unfair  act(s)  or  practice(s)  caused  the  consumer  to 
        suffer an “ascertainable loss of money or property” (real or    
        personal).                                                      
Lister Frost Injury Lawyers, PLLC v. Idaho Injury Law Grp., PLLC, 

 (Idaho 
2022).  In Taylor v. McNichols, 

 (Idaho 2010), the Idaho Supreme Court 
affirmed the dismissal of an ICPA claim on grounds that “the aggrieved party must have 
been  in  a  contractual  relationship  with  the  party  alleged  to  have  acted  unfairly  or 
deceptively,”  but  plaintiff  had  not  pleaded  the  existence  of  any  such  contractual 
relationship.  

 at 662 (citing Haskin v. Glass, 

 (Idaho Ct. App. 1982) 
(“[A] claim under the ICPA must be based upon a contract.”)).             
   Since Taylor, subsequent Idaho courts have concluded that an ICPA claim requires 
direct contractual privity between a plaintiff and defendant.  See, e.g., Duspiva v. Fillmore, 

 (Idaho 2013) (quoting Taylor for principle that contractual privity is 
required between ICPA plaintiff and defendant); Kerr v. ReconTrust Co. N.A., No. 41670, 

, at *3 (Idaho Ct. App. Nov. 25, 2014) (same).  Federal district courts in 
Idaho have done the same.  E.g., Dreyer v. Idaho Dep’t of Health & Welfare, 

, 952–53 (D. Idaho 2020) (dismissing ICPA claim where plaintiff did not allege 
contractual relationship with defendant); Hansen, et al. v. U.S. Bank, Nat’l Assoc., No. 
4:15-CV-00085-BLW, 

, at *4 (D. Idaho Sept. 4, 2015) (dismissing ICPA 

claim because, in accordance with “well-established” principle from Taylor, no contractual 
privity existed between ICPA plaintiff and defendants); Moto Tech, LLC v. KTM N. Am., 
Inc., No. 1:13-CV-00165 (BLW), 

, at *3 (D. Idaho Dec. 9, 2013) 
(dismissing ICPA claim not based on contractual relationship); Mortensen v. Mortg. Elec. 
Registration Sys., Inc., et al., No. 1:10-CV-00234 (EJL/REB), 

, at *13 
(D. Idaho Aug. 24, 2012) (same).  So, too, have federal courts in districts outside of Idaho.  

E.g., Bledsoe v. FCA US LLC, 

, 794 (E.D. Mich. Mar. 23, 2023) 
(dismissing ICPA claim not premised on contractual relationship); In re Duramax Diesel 
Litig., 

, at *8–9 (E.D. Mich. Aug. 1, 2018) (concluding “the Idaho 
Supreme Court has unambiguously interpreted the ICPA as requiring direct contractual 
privity” and dismissing ICPA claim in which such privity was not alleged). 

   Because the Idaho Supreme Court is the “ultimate arbiter of Idaho law” that “has 
the last word on construing statutory language,” Moto Tech, 

, at *4 
(citing J.R. Simplot Co. v. Idaho State Tax Comm’n, 

 (Idaho 1991)), 
the Court will follow Taylor.5  Accord Wilson v. Colonial Penn Life Ins. Co., 

 Plaintiffs point out that some federal district courts outside of Idaho question whether 
Taylor requires both a contractual relationship and direct privity between the litigants.  E.g., 
MSP Recovery Claims v. Abbott Labs., No. 19-21607 (FLW), 

, at *19 
(D.N.J. May 28, 2021) (stating that “courts have permitted claims under the ICPA to 
proceed where plaintiffs had contracts with other parties that resulted in their purchase of 
the defendant manufacturers’ products”); BCBSM, Inc. v. Walgreen Co., 

, 857 (N.D. Ill. Jan. 8, 2021) (“The [Taylor] court concluded the action only need be 
based on a contract, but there need not be privity.”); In re Chrysler-Dodge-Jeep Ecodiesel 
1208, 1211 n.4 (D. Minn. 1978) (citing Erie R.R. v. Tompkins, 

 (1938)) 
(observing that, when sitting in diversity, federal court “is obligated to apply state law as 

declared by statute or by opinion of the state’s highest court”).  Here, the TAC includes 
allegations that a contractor used Power Grout in Graybeal’s home.  (TAC ¶¶ 271–73.)  
The allegations do not include any statement that Graybeal ever purchased Power Grout 
herself; instead, Graybeal used Power Grout that the contractor left behind at her home.  
(See 

 ¶¶ 271–92.)  There is no alleged direct contractual relationship between Graybeal 
and Defendants and the TAC fails to state an ICPA claim.6                 

III.  THE EDWARDS’S MASSACHUSETTS CONSUMER PROTECTION ACT                 
   CLAIM                                                                
   A.   Relevant Background                                             
   The Edwardses reside in Massachusetts.  (TAC ¶¶ 16, 17.)  In 2019, as part of a 
home renovation, the Edwardses sought out “the best grouts available” from a local tile 
store.  (Id. ¶¶ 293–95.)  Based on Defendants’ representations on Power Grout’s packaging, 
and notwithstanding the high price point, the Edwardses selected Power Grout for their 
contractor’s use.  (Id. ¶¶ 296–97, 299.)  Ultimately, the grout “ran out of the joints when it 


Mktg., Sales Pracs., and Prods. Liab. Litig., 

 (N.D. Cal. 2018) 
(noting that the Taylor decision did not specify “what kind of contractual relationship the 
court was contemplating”); Johnson v. Ford Motor Co., No. 3:13-CV-6529, 

, at *10 (S.D. W. Va. Nov. 24, 2015) (determining plaintiff had standing to pursue 
ICPA claim against car dealer, who had contractual relationship with manufacturer).  The 
distinction has little bearing on the consideration of Defendants’ motion in this case, 
however, because the TAC does not allege either a contractual relationship or direct privity. 
6 Plaintiffs assert that “ the express warranties governing Power Grout and the Hardener” 
provide privity (Doc. No. 198 at 27), but Plaintiffs provide no legal authority to support 
this assertion.  Absent such authority, the Court declines to accept this proposition. 
was  wet,  and  it  cracked  and  crumbled  when  it  was  dry.”    (Id.  ¶ 300.)    Even  after 
commissioning re-tiling work with a new contractor (who also used Power Grout), and 

after applying Hardener to the second application of defective Power Grout, the Edwardses 
continued to experience issues with defective soft grout.  (Id. ¶¶ 301–10.) 
   B.   Failure to Provide Pre-Suit Notice                              
   Defendants argue that Count 9—the Edwards’s claim under the Massachusetts 
Consumer Protection  Act (MCPA), Mass. Gen. Laws ch. 93A—should be dismissed 
because the Edwardses failed to provide Defendants with required pre-suit notice.  (Doc. 

No. 186 at 15–18.)  For the reasons below, the Court agrees.              
   The MCPA requires that a plaintiff provide a defendant with notice before filing a 
claim, as follows: “At least thirty days prior to the filing of any such action, a written 
demand  for  relief,  identifying  the  claimant  and  reasonably  describing  the  unfair  or 
deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered 

to any prospective respondent.”  Mass. Stat. 93A § 9(3).  The failure to provide this notice 
is a “bar to suit.”  Entrialgo v. Twin City Dodge, Inc., 

 (Mass. 1975).  
Further, the pre-suit notice requirement is considered “a special element” of an MCPA 
claim and, as such, it must be alleged in the complaint.  Rodi v. S. New England Sch. of 
Law, 

 (1st Cir. 2004) (affirming dismissal of MCPA claim where plaintiff 

did not mention pre-suit notice in complaint or attachments).             
   Plaintiffs make two arguments in response to Defendants’ motion.  First, Plaintiffs 
argue this case meets an exception to the pre-suit notice requirement.  (Doc. No. 198 at 
40.) There is no pre-suit notice requirement if “the prospective respondent does not 
maintain a place of business or does not keep assets within the commonwealth.”  Mass. 
Stat. 93A § 9(3).  Here, the TAC does not allege that Defendants maintain a place of 

business  or  assets  in  Massachusetts.    (See  generally  TAC.)    The  absence  of  such 
allegations, however, does not compel the Court to deny Defendants’ motion because 
Massachusetts law requires that a plaintiff affirmatively plead the existence of an exception 
to the pre-suit notice provision.  See Sumner v. Mortg. Elec. Registration Sys., Inc., No. 11-
CV-11910-DJC, 

, at *6 (D. Mass. Jul. 26, 2012) (dismissing MCPA 
claim where plaintiffs did not affirmatively allege an exception to MCPA’s pre-suit notice 

requirement).  Thus, Plaintiff’s first argument is unconvincing.          
   Second,  Plaintiffs  suggest  that  the  non-Massachusetts  Plaintiffs’  provision  of 
pre-suit demand letters to Defendants satisfies the MCPA’s pre-suit notice requirement.  
(Doc. No. 198 at 40–41 (citing TAC ¶¶ 522–27).)  To satisfy the MCPA, a pre-suit notice 
letter need at least “identify[] the claimant,” Mass. Stat. 93A § 9(3), and reference alleged 

Massachusetts conduct.  Cassano v. Gogos, 

 (Mass. Ct. App. 1985) 
(determining pre-suit notice requirement not satisfied because “[n]othing . . . characterizes 
the claim as one under the consumer protection statute); see also Chavez v. Wal-Mart 
Stores, Inc., No. 13-429, 

, at *3 (C.D. Cal. June 2, 2014) (rejecting 
plaintiff’s contention that pre-suit notice letter that invoked California law satisfied MCPA 

and dismissing MCPA claim for noncompliance with pre-suit notice requirement).  Here, 
the Edwards’s co-plaintiffs’ pre-suit notice letter (See Doc. No. 70-25)7 does not satisfy 
the MPCA because it fails to identify the Edwardses and fails to state that some alleged 

wrongful conduct occurred in Massachusetts.  Thus, the Court dismisses Count 9. 
IV.  THE CALAMITAS’ NEGLIGENT MISREPRESENTATION AND STRICT                
   PRODUCT LIABILITY CLAIMS                                             
   A.   Relevant Background                                             
   The  Calamitas  reside  in  Pennsylvania.    (TAC  ¶¶ 18,  19.)    They  remodeled  a 
bathroom in their home in 2021.  (Id. ¶ 319.)  Based on Defendants’ representations about 
Power Grout’s efficacy, and despite its higher price point, the Calamitas selected Power 
Grout for the tile installation in the bathroom.  (Id. ¶¶ 320–23.)        
   Upon their first use of the remodeled shower, the grout “started pouring out of the 

grout  joints.”    (Id.  ¶¶ 324–27.)    They  complained  to  Defendants.    (Id.  ¶¶ 328–30.)  
Defendants ultimately recommended that the Calamitas apply the Hardener, which, after 
applied, left an unappealing film on the grout and did not fix the issue.  (Id. ¶¶ 331–34.)  
The Calamitas have stopped using their remodeled shower because the grout “continues to 
wash out of the joints,” and they wish “to prevent exposing the home to more water 

penetration and resulting water damage.”  (Id. ¶ 335.)  They allege that the Power Grout 
has damaged their property and has adversely affected its value.  (Id. ¶ 336.) 



7 The Court considers the August 12, 2022 pre-suit notice letter—which Plaintiffs’ counsel 
previously filed in connection with a discovery motion in June 2023—without converting 
this motion into one for summary judgment because the letter is embraced by the pleadings. 
   B.   Inapplicability of the Economic Loss Doctrine                   
   Defendants argue that the Calamitas’ negligence and strict products-liability claims 

(Counts 3 and 4) are barred by the Pennsylvania economic loss doctrine.  (Doc. No. 186 at 
5–6.)  The Court concludes that the economic loss doctrine does not preclude this claim. 
   In Pennsylvania, the economic loss doctrine “provides that no cause of action exists 
for negligence that results solely in economic damages unaccompanied by physical or 
property damage.”  Fleming Steel Co. v. Jacobs Eng’g Grp., Inc., 

 
(W.D.  Pa.  2019)  (quotation  omitted)  (applying  Pennsylvania  law).    It  is  meant  to 

“maintain[] the separate spheres of the law of contract and tort.”  N.Y. State Elec. & Gas 
Corp. v. Westinghouse Elec. Corp., 

 (Pa. Super. Ct. 1989).  Moreover, 
under this doctrine, “negligence and strict liability theories do not apply in an action 
between commercial enterprises involving a product that malfunctions where the only 
resulting damage is to the product itself.”  REM Coal Co. v. Clark Equip. Co., 

 (Pa. Super. Ct. 1989).  This rule exists to “place a check on limitless liability for 
manufacturers and establish clear boundaries between tort and contract law.”  Werwinski 
v. Ford Motor Co., 

 (3d Cir. 2002), overruled on other grounds by Earl 
v. NVR, Inc., 

, 312–14 (3d Cir. 2021).                        
   Defendants contend that, under Pennsylvania’s economic-loss rule, the Calamitas’ 

tort claims are barred because the only damages described are damages to “the product 
itself.”  (Doc. No. 203 at 8.)  Defendants contend that the “product itself” is not limited to 
just Power Grout; it includes the house into which the Power-Grouted shower is integrated 
because Pennsylvania courts regard homes to be a complete interconnected unit.  (Id. at 6–
7.)  Thus, according to Defendants, to the extent the Calamitas allege that their bathroom 
has been damaged, their claims are still barred.  Defendants rely on Repasky v. Jeld-Wen 

Inc., 

 (Pa. Ct. Comm. Pl. 2006), in which the plaintiff asserted a 
negligence claim against the manufacturer of window units that were installed in an 
addition to their home, which ultimately cracked, resulting in rot around the windows and 
doors.  

.  The Pennsylvania Court of Common Pleas considered whether, under 
the Pennsylvania economic-loss doctrine, the window units were the “product itself,” or 
whether the entire new addition was the “product itself.”  

 at 498–503.  The court 

observed that,                                                            
        [i]n determining whether a product has injured only itself in an 
        action in which a component part manufactured by a defendant    
        causes injury to the product of which it is a part, a court should 
        look not to the product manufactured by the defendant, but to   
        the product purchased by the plaintiff . . . .  Therefore, to the 
        extent products used in construction prove defective and result 
        in  harm to  a  building  itself,  those  damages  should  not  be 
        considered damage to “other property.”                          

 at 502–03 (quoting Longport Ocean Plaza Condo. Inc. v. Robert Cato & Assocs. Inc., 

, at *5 (E.D. Pa. Mar. 18, 2002)).  Ultimately, the court concluded that 
because  the  windows  were  part  of  a  new  addition  to  the  home,  the  windows  were 
“components that are part of a product when it is initially sold.”  

 at 501 (quoting 
Saratoga Fishing Co. v. J.M. Martinac & Co., 

 (1997).  The addition was 
“the ‘finished” product,’” and, as a result, the economic loss doctrine barred plaintiff’s 
negligence claim.  Id. at 503; see also Longport Ocean Plaza Condo Inc., 

, at *5 (concluding that plaintiff’s tort claim was barred by the economic loss 
doctrine because “the product purchased by the plaintiff in these cases—the subject of the 
bargain—is  the  successfully  completed  building,  not  simply  its  component  parts”);  

Johnson v. Toll Bros., Inc., 

 (Pa. Super. Ct. 2023) (concluding that 
plaintiff’s tort claims were barred by the economic loss doctrine because “the home at 
issue[] is akin to a single product that is the sum of its component parts”). 
   Plaintiffs disagree that these cases preclude their Pennsylvania tort claims, arguing 
that  when  a  product  is  applied  to  and  causes  damage  to  an  existing  structure,  the 
recoverable damage is not only to the product itself.  (Doc. No. 198 at 26.)  In support, they 

cite to Stonhard v. Advanced Glassfiber Yarns, Inc., No. CONTROL 100380, 

 (Pa. Comm. Pl. Nov. 21, 2001), where plaintiff installed defendant’s floor product 
to an already existing structure.  

, at *2.  Plaintiff alleged that defendant’s 
product damaged the original flooring.  

  The court determined that the damaged original 
flooring “qualifies as ‘other property,’ as it was hardly placed in the stream of commerce 

by [defendant].”  

  In other words, “the product itself” did not include the building but 
instead comprised only the defendant’s floor product.  See 

  Consequently, the court 
ruled that the economic loss doctrine did not bar the tort claim.  Id.; see also 2-J Corp. v. 
Tice, 

 (3d Cir. 1997) (applying Pennsylvania law and concluding, in case 
involving defendant’s defective roof-support structure, the failure of which caused damage 

to  plaintiff’s  inventory  in  building,  “product  itself”  comprised  only  the  roof-support 
structure,  and  plaintiff  could  recover  for  damage  to  “other  property”—i.e.,  damaged 
inventory in building); Hartford Fire Ins. Co. v. Assoc. Constr. & Mgmt. Co., No. Civ. A 
98-45, 

, at *3–7 (E.D. Pa. Apr. 19, 2000) (applying Pennsylvania law and 
concluding that plaintiff, whose warehouse roof collapsed, could not recover against parties 
involved in construction of collapsed structure under economic-loss doctrine, but could 

recover for damaged inventory, which was “other property”).  Cf. Am. Stores Props., Inc. 
v. Spotts, Stevens & McCoy, Inc., 

, 716–17 (E.D. Pa. 2009) (applying 
Pennsylvania law and concluding economic-loss doctrine barred plaintiff’s claims against 
parties  involved  in  construction  of  structure  that  experienced  damage  due  to  faulty 
foundation because plaintiff had not alleged damages other than cost of repairing those 
walls—the “product itself”).                                              

   The lines of cases cited by both Plaintiffs and Defendants identify the “product 
itself” (i.e., for which plaintiff cannot recover economic loss in tort when damaged) is “the 
product purchased by the plaintiff,” Longport Ocean Plaza Condo Inc., 

, 
at *5, or the item “placed in the stream of commerce by the manufacturer.”  Saratoga 
Fishing  Co.,  

  (1997);  see  also  Stonhard,  

  at  *2 

(concluding that the original flooring “qualifies as ‘other property,’ as it was hardly placed 
in the stream of commerce by [defendant]”).  Here, the Calamitas seek to recover for 
damages to an existing bathroom structure, which is not something that Defendants placed 
in the stream of commerce or that the Calamitas purchased from Defendants.  Moreover, 
the Calamitas themselves—not their contractor—purchased the Power Grout which was 

applied to the exiting bathroom.  (Id. ¶¶ 320–22.)  Thus, like the damages in Stonhard and 
the cases cited by Plaintiffs, the “product itself” includes only the Power Grout, not the 
underlying structure.                                                     
   Therefore, the Court concludes that Plaintiffs plausibly alleges, with all reasonable 
inferences drawn in their favor, that the failure of the Power Grout has caused water 

damage to their property and, as a result, diminution in the value of the property.  (TAC 
¶¶ 335, 336; see also id. ¶¶ 139, 179.)  The economic loss doctrine does not bar the claims 
in Counts 3 and 4.                                                        
V.   THE  WHITENACKS’   KENTUCKY    CONSUMER   PROTECTION    ACT          
   CLAIM                                                                

   A.   Relevant Background                                             

   The Whitenacks built a new home, which was finished in 2017.  (TAC ¶ 364.)  They 
selected the grout to be used by their contractor during construction.  (Id. ¶ 365.)  They 
selected Power Grout based on Defendants’ representations about its efficacy.  (Id. ¶¶ 366, 
367.)  However, the Whitenacks discovered defects with the Power Grout “[w]ithin a 
couple of months of . . . moving in.”  (Id. ¶¶ 370, 371.)  They then submitted a claim to 
Defendants, who sent them Hardener to use over the Power Grout and encouraged them to 
use leftover Power Grout to patch problem spots.  (Id. ¶ 373.)  Then, “in 2021,” after the 
Hardener and patched Power Grout also proved to be defective, the Whitenacks contacted 
the distributor from which they purchased the Power Grout.  (Id. ¶¶ 375, 376.)  The tile 
distributor “provided them with a new bag of Power Grout,” which they represented was a 
newer version formulated to fix earlier problems.  (Id. ¶ 377.)  This installation of Power 
Grout also failed.  (Id. ¶ 383.)                                          
   Plaintiffs filed this action on September 7, 2022.  (Doc. No. 1.)  Plaintiffs filed their 

motion for leave to file the Second Amended Complaint on December 11, 2023.  (Doc. No. 
110.)  The Whitenacks joined this lawsuit when Plaintiffs filed the Second Amended 
Complaint on January 17, 2024.   (See Doc. No. 149.)                      

   B.   Tolling of the Statute of Limitations                           
   Defendants  assert  that  the  Whitenacks’  claim  brought  under  the  Kentucky 
Consumer Protection Act (KCPA) should be dismissed because their claim was brought 
outside of the two-year statute of limitations.  (Doc. No. 186 at 11–12.)  For the reasons 
below, the Court denies Defendants’ motion as it relates to this claim.   
   The KCPA provides a cause of action to “[a]ny person who purchases or leases 

goods or services primarily for personal, family, or household purposes and thereby suffers 
any ascertainable loss . . . as a result of the use or employment by another person of a 
method, act or practice declared unlawful by KRS 367.170.”  Ky. Rev. Stat. § 367.220(1).  
Section 367.170 makes it illegal to engage in “[u]nfair, false, misleading, or deceptive acts 
or practices in the conduct of any trade or commerce.”  Id. § 367.170(1).  The KCPA has 

a two-year statute of limitations.  Id. § 367.220(5).                     
   Generally, “[a] defendant does not render a complaint defective by pleading an 
affirmative defense,” such as a statute of limitations defense.  Jessie v. Potter, 

, 713 n.2 (8th Cir. 2008) (citation omitted).  As a result, “the possible existence of a 
statute of limitations defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless 

the complaint itself establishes the defense.”  

 (citation omitted); see also Joyce v. 
Armstrong Teasdale, LLP, 

 (8th Cir. 2011) (same).        
   Plaintiffs assert that the original September 2022 Complaint tolled the statute of 
limitations on the Whitenacks’ KCPA claim, even though that pleading did not name the 
Whitenacks as plaintiffs and did not include any other Kentucky plaintiffs or claims under 
Kentucky law.  (Doc. No. 198 at 33–34.)  It is true that, under what is known as American 

Pipe tolling, “[t]he filing of a class action tolls the statute of limitations as to all asserted 
members of the class.”  Crown, Cork & Seal Co. v. Parker, 

, 352–53 (1983) 
(citing Am. Pipe & Constr. Co. v. Utah, 

 (1974)).  However, Plaintiffs 
cite no authority for the proposition that the filing of a class action tolls the statute of 
limitations for any and all claims that later-joined plaintiffs may bring.  The original 
Complaint (which Plaintiffs assert tolled the statute of limitations for the Kentucky-based 

Whitenacks) identified the common questions of law and fact in the putative class-action 
as whether Defendants violated the common law and consumer-protection and trade-secret 
statutes in three states: Minnesota, Washington, and New Hampshire.  (Doc. No. 1 at 21–
23.)  The original Complaint cannot fairly be read as tolling the statute of limitations under 
a Kentucky consumer-protection statute for a then-non-existent Kentucky class.  Zarecor 

v. Morgan Keegan & Co., 

, 887–88 (8th Cir. 2015) (“American Pipe tolling 
should be limited to claims filed in a later action that are the same as those pleaded in the 
putative class action.”).  Thus, the running of the statute of limitations on the Whitenacks’ 
KCPA claim was not tolled as of the date of the filing of the initial Complaint. 
   Plaintiffs alternatively contend that, even if American Pipe tolling does not apply, 

the Whitenacks’ KCPA claim should be considered “filed” as of the date Plaintiffs filed 
their motion for leave to amend the initial complaint on December 11, 2023, not the date 
that the Second Amended Complaint was subsequently filed in January 2024.  (Doc. No. 
198 at 34 n.8.)  The Court agrees.  Because the court sits in diversity, it “appl[ies] state 
tolling law but also appl[ies] federal procedural law.”  Great Plains Tr. Co., 

.  Pursuant to the procedural law of this Circuit, filing a motion to amend a complaint 

tolls the running of the statute of limitations, not the date the Second Amended Complaint 
was actually filed.  E.g., Mayes v. AT&T Info. Sys., Inc., 

 (8th Cir. 
1989) (“[In] the situation where the petition for leave to amend the complaint has been 
filed prior to expiration of the statute of limitations, . . . the amended complaint is deemed 
filed within the limitations period.”); see also, e.g., Beech v. San Joaquin Cnty., No. 2:15-
CV-0268 (TLN/CKD), 

, at *1–2 (E.D. Cal. Nov. 8, 2017) (explaining 

that rules governing the commencement of an action or claim through amendment of 
pleading are not the type of tolling rules borrowed from state law).  That being the case, 
the Court considers the Whitenacks’ KCPA claim as filed on December 11, 2023.  The 
allegations in the TAC, on their face, do not bar the Whitenacks’ KCPA claim because 
violative conduct8 is alleged to have occurred “in 2021.”  Discovery may reveal the alleged 

wrongful conduct that would form the basis for a KCPA claim occurred prior to December 
11, 2021, in which case, it may ultimately be barred.                     




8 The Court rejects Defendants’ argument that a purchase of Power Grout is a perquisite to 
a KCPA claim and that, because the Whitenacks do not allege that they purchased Power 
Grout, the TAC fails to state a claim.  The plain language of the KCPA provides that 
covered unlawful conduct includes engaging in “[u]nfair, false, misleading, or deceptive 
acts or practices in the conduct of any trade or commerce.”  Ky. Rev. Stat. § 367.220(1).  
Here, Plaintiffs allege that they submitted a claim to Defendants (at which point it can be 
reasonably inferred that Defendants made representations to them about the efficacy of 
Power Grout).  (See TAC ¶¶ 373–376.)                                      
VI.  GOUGAR’S   AND  LORBECKI’S   WISCONSIN   DECEPTIVE   TRADE           
   PRACTICES ACT CLAIM                                                  
   A.   Relevant Background                                             
   Gougar and Lorbecki reside in Wisconsin.  (TAC ¶¶ 30, 31.)  When they built a new 
home in 2018, they asked their contractor to use Power Grout on tile installations because 
of “representations Defendants make about the grout.”  (Id. ¶¶ 465–66.)  After moving in, 

Gougar and Lorbecki discovered that the Power Grout rubbed out between tile joints when 
cleaned  and  eroded  when  wet.    (Id.  ¶¶ 469–70.)    After  complaining  to  Defendants, 
Defendants sent them the Hardener.  (Id. ¶¶ 470–72.)  Gougar and Lorbecki applied it; 
however, it altered the color of the grout and created an undesirable film.  (Id. ¶ 473.)  
Defendants ultimately paid Gougar and Lorbecki $3,800 at some point “in 2022” to re-

grout their shower.  (Id. ¶ 474.)  The second application of Power Grout also failed because 
it comes out of the tile joints when wet.  (Id. ¶¶ 475–79.)  Gougar and Lorbecki were added 
to this action through the Second Amended Complaint, which Plaintiffs moved for leave 
to file on December 11, 2023.  (Doc. No. 113-2.)                          
   B.   Failure to Allege Conduct Occurring within the Statute of Limitations  

   Defendants  argue  that  Gougar’s  and  Lorbecki’s  claim  under  the  Wisconsin 
Deceptive Trade Practices Act (WDTPA) fails because it has not accrued and because it is 
time-barred.9  Because Gougar and Lorbecki have not alleged that Defendants engaged in 
conduct within the statute-of-limitations period, the Court agrees with Defendants. 

   The WDTPA prohibits the making of false statements in connection with the sale 
of goods and services.  

.  It provides as follows:     
        No  person, .  .  . with  intent  to  sell,  distribute,  increase  the 
        consumption  of  or  in  any  wise  [sic]  dispose  of          
        any . . . merchandise . . . or anything offered by such person, 
        firm, corporation, or association, . . . directly or indirectly, to 
        the public[10] for sale, hire, use or other distribution, or with 
        intent to induce the public in any manner to enter into any     
        contract or obligation relating to the purchase, sale, hire, use or 
        lease  of  any  .  .  .  merchandise  .  .  .  ,  shall  make,  publish, 
        disseminate, circulate, or place before the public, or cause,   
        directly or indirectly, to be made, published, disseminated,    
        circulated,  or  placed  before  the  public  .  . . an         
        advertisement, . . . representation  of  any  kind  to  the  public 
        relating to such purchase, sale, hire, use or lease of such . . . 
        merchandise, . . . or to the terms or conditions thereof, which 
        advertisement . . . or representation contains any assertion,   
        representation or statement of fact which is untrue, deceptive  
        or misleading.                                                  

 § 100.18(1).  Any action under section 100.18 must be brought no more than “3 years 
after the occurrence of the unlawful act or practice which is the subject of the action.”  Id. 
§ 100.18(11)(3).                                                          

9 Gougar and Lorbecki initially brought claims under two sections of the WDTPA—section 
100.18 and section 100.20.  However, Plaintiffs concede that their claim under section 
100.20 should be dismissed.  (See Doc. No. 198 at 36 n.9.)                
10 Under the WDTPA, all representations made by a defendant to any party with whom 
they have no contractual relation are deemed representations to the “public.”  See Hackel 
v. Nat’l Feeds, Inc., 

, 979–80 (W.D. Wis. 2013).       
   For purposes of determining when the statute of limitations runs, the focus of the 
inquiry is not when a plaintiff discovers the harm; rather, it is when a defendant engages in 

the conduct prohibited by section 100.18.  See Selzer v. Brunsell Bros., Ltd., 

 (Wis. Ct. App. 2002) (providing that three-year statute of limitations applies 
“regardless of whether [a plaintiff] knew of his injury” by the time the three years expires); 
Kain v. Bluemound E. Indus. Park, Inc., 

 (Wis. Ct. App. 2001) (same).  
In the event where a plaintiff seeks to hold a defendant accountable for a continuing course 
of alleged misconduct that started before the three-year statute of limitations period, the 

plaintiff must be able to show that “one of [defendant’s] acts fell inside the three years 
prior to filing of th[e] lawsuit,” which is done by “demonstrat[ing] that they received one 
of defendants’ allegedly misleading statements” within that time, or on or after December 
11, 2020.  Werner v. Pittway Corp., 

, 1033–34 (W.D. Wis. 2000). 
   Here, the TAC includes allegations that some time on or before 2018, Gougar and 

Lorbecki selected Power Grout for use in their new home due to representations made by 
Defendants about the efficacy of the product.  (TAC ¶¶ 465–66.)  In addition, the TAC 
includes  allegations  that,  after  discovering  that  the  Power  Grout  installation  failed 
“[i]mmediately after moving in,” Gougar and Lorbecki complained to Defendants, who 
sent them Hardener.  (Id. ¶¶ 468–72.)  They further allege that, at some point, Defendants 

paid them a certain sum to re-grout a shower.  (Id. ¶ 474.)  Plaintiffs allege that “[t]his 
process was done in 2022.”  (Id. ¶¶ 475–76.)  Construing these allegations in Plaintiffs’ 
favor, the Court cannot reasonably infer at what point, except for “[i]mmediately after 
moving in” after purchasing their home in 2018, that Defendants made any representations 
about Power Grout’s efficacy.  Though Plaintiffs allege that they replaced the tilework in 
their bathroom “in 2022” using funds previously provided (at some unknown time) by 

Defendants, they do not allege any details that would allow the Court to reasonably infer 
that Defendants made representations to them about Power Grout within the limitations 
period.  Thus, Count 16 is time-barred.                                   
   Plaintiffs contend, however, that under American Pipe, the three-year time bar on 
Gougar’s and Lorbecki’s WDTPA claim was tolled as of the filing of the initial complaint 
in September 2022.  (Doc. No. 198 at 29–31, 36.)  In response, Defendants explain that 

American Pipe tolling does not apply to statutes of repose, such as the WDTPA.  (Doc. No. 
203 at 15–16.)  Defendants are correct.  The WDTPA is a statute of repose.  Accord Kain 
v. Bluemound E. Indus. Park, Inc., 

, 645 (Wis. Ct. App. 2001) (concluding 
that 

. is statute of repose).  Statutes of repose are meant to “give more 
explicit  and  certain  protection  to  defendants”  and  are  a  “legislative  judgment  that  a 

defendant should be free from liability after the legislatively determined period of time.”  
Cal. Pub. Emps. Retirement Sys. v. ANZ Secs., Inc., 

 (2017).  The U.S. 
Supreme Court acknowledged that the tolling principle in American Pipe is a creature of 
“the judicial  power  to  promote  equity,  rather  than to  interpret  and  enforce  statutory 
provisions,” which does not supersede the application of a statute of repose.  Cal. Pub. 

Emps. Retirement Sys., 582 U.S. at 509–510.  Thus, American Pipe tolling does not apply. 

   Based on the foregoing, and on all of the files, records, and proceedings herein, 

IT IS HEREBY ORDERED THAT:                                                
1.  Defendants’ motion to dismiss the Third Amended Complaint (Doc. No. 185) is 
   GRANTED IN PART and DENIED IN PART as follows:                       
     a.  Defendants’ requests to dismiss Counts 3 and 4 as to the Calamitas and Count 
        12 is DENIED.                                                   
     b.  Defendants’ requests to dismiss Counts 3 and 5 as to De Broux, Count 8, and 
        Count 16 are GRANTED, and those claims will be dismissed WITHOUT 
        PREJUDICE.                                                      
     c.  Defendants’ request to dismiss Count 9 is GRANTED, and that claim will be 
        dismissed WITH PREJUDICE.                                       
2.  Defendants’ motion to strike allegations of fraudulent concealment from the Third 
   Amended Complaint (Doc. No. 185) is DENIED.                          
3.  Plaintiffs’ request to dismiss the portion of Count 16 brought under 

 under Federal Rule of Civil Procedure 41(a)(2) is GRANTED, and that 
   claim will be dismissed WITHOUT PREJUDICE.                           

Dated:  October 18, 2024                /s/ Jeffrey M. Bryan              
                                      Judge Jeffrey M. Bryan            
                                      United States District Court