Rouse v. H.B. Fuller Company

Background

H.B. Fuller Company manufactures, markets, and sells industrial adhesives, coatings, sealants, and related materials. H.B. Fuller Construction Products Inc. manages the TEC brand, which included Power Grout. The plaintiffs alleged that Power Grout was advertised as stain-resistant, free of efflorescence, not requiring sealing, fast-setting, and resistant to cracking and shrinking. They alleged that the product instead remained soft, lost pigment, developed efflorescence, and failed in other ways.

The plaintiffs alleged that H.B. Fuller released several versions of Power Grout without telling consumers which version they were purchasing. They also alleged that defendants responded to complaints by sending consumers a product called TEC Acrylic Grout Hardener, which was actually a sealer, did not solve the problem, and could leave an undesirable film. The twenty-one plaintiffs asserted seventeen consumer-protection, tort, and product-liability claims under various state laws on behalf of themselves and proposed classes.

Fraudulent-Concealment Allegations

The plaintiffs alleged that defendants’ fraudulent concealment of Power Grout’s defects delayed the statutes of limitations for their claims. Defendants asked the court to dismiss or strike those allegations.

The court denied both requests. In a diversity case, the court explained, state law governs equitable tolling, meaning the rules that may delay a filing deadline. Defendants had not analyzed whether the allegations satisfied the tolling laws of the states involved. The court therefore declined to dismiss the statute-of-limitations defense. It also denied the motion to strike because defendants had not adequately shown that the allegations were insufficient, redundant, immaterial, impertinent, or scandalous.

De Broux’s Ohio Claims

De Broux alleged claims for negligent misrepresentation and fraud based on Power Grout used by her contractor. Under the parties’ agreed application of Ohio law, both claims required detrimental reliance: reliance on a misrepresentation that caused harm. The court held that De Broux did not allege that she selected Power Grout because of defendants’ statements, participated in the contractor’s decision, or received defendants’ representations herself. The court also noted that the representations were made to her contractor, and she did not allege that the contractor passed them on to her.

The court granted defendants’ request to dismiss Counts 3 and 5 as to De Broux. Those claims were dismissed without prejudice.

Graybeal’s Idaho Consumer Protection Act Claim

Graybeal alleged that Power Grout used in her home remained soft and that defendants offered no workable warranty remedy. The court held that an Idaho Consumer Protection Act claim requires a direct contractual relationship between the plaintiff and defendant. Graybeal alleged that a contractor had used Power Grout and that she later used product left at her home, but she did not allege that she purchased Power Grout herself or had a direct contractual relationship with defendants.

The court granted defendants’ request to dismiss Count 8, Graybeal’s Idaho claim. The claim was dismissed without prejudice.

The Edwardses’ Massachusetts Claim

The Edwardses alleged that they selected Power Grout based on defendants’ packaging statements and that the product repeatedly failed. The court held that the Massachusetts Consumer Protection Act requires a plaintiff to send a written demand identifying the claimant and describing the alleged unfair or deceptive conduct and injury at least thirty days before filing suit, unless a statutory exception applies.

The complaint did not allege an applicable exception. The court also held that a demand letter sent by other plaintiffs did not satisfy the requirement because it did not identify the Edwardses or state that the alleged conduct occurred in Massachusetts. The court granted defendants’ request to dismiss Count 9, and the claim was dismissed with prejudice.

The Calamitas’ Pennsylvania Claims

The Calamitas alleged negligent misrepresentation and strict products liability claims based on Power Grout that they purchased and used in an existing bathroom. They alleged that the grout washed out, caused water damage, and reduced the property’s value.

Defendants argued that Pennsylvania’s economic-loss doctrine barred the claims. That doctrine generally prevents recovery in tort for purely economic losses without physical or property damage, and it can bar recovery for damage to the defective product itself. The court held that the alleged existing bathroom structure was not a product defendants placed into commerce or a product the Calamitas purchased from defendants. The court therefore concluded that the complaint plausibly alleged damage to other property and that the economic-loss doctrine did not bar Counts 3 and 4 as to the Calamitas.

The court denied defendants’ request to dismiss Counts 3 and 4 as to the Calamitas.

The Whitenacks’ Kentucky Claim

The Whitenacks alleged that they selected Power Grout based on defendants’ representations and later received defective product and unsuccessful remedies. Defendants argued that the Kentucky Consumer Protection Act claim was filed too late.

The court held that the original complaint did not toll the limitations period for the Whitenacks’ Kentucky claim because the original pleading did not include a Kentucky class or Kentucky claims. However, under applicable federal procedural law, the court treated the claim as filed when plaintiffs moved for leave to amend on December 11, 2023, rather than when the amended complaint was later filed. Because the complaint alleged that relevant conduct occurred in 2021, the claim was not time-barred on its face. The court also rejected defendants’ argument that the Whitenacks had to allege that they personally purchased Power Grout.

The court denied defendants’ request to dismiss Count 12.

Gougar’s and Lorbecki’s Wisconsin Claims

Gougar and Lorbecki alleged that they selected Power Grout because of defendants’ representations, later discovered defects, and received a payment to re-grout their shower. Defendants argued that their Wisconsin Deceptive Trade Practices Act claim was untimely.

The court held that the Wisconsin statute requires the allegedly misleading conduct to have occurred within three years before filing. The complaint alleged representations when Gougar and Lorbecki selected the product in or before 2018, but it did not provide facts allowing a reasonable inference that defendants made a relevant representation on or after December 11, 2020. The court also held that the statute is a statute of repose, meaning a deadline that generally cannot be extended through the class-action tolling rule the plaintiffs invoked.

The court granted defendants’ request to dismiss Count 16, and that claim was dismissed without prejudice. Separately, the court granted plaintiffs’ request under Federal Rule of Civil Procedure 41(a)(2) to dismiss the portion of Count 16 brought under Wisconsin Statute section 100.20. That portion was also dismissed without prejudice.

Disposition

The court granted in part and denied in part defendants’ motion to dismiss the Third Amended Complaint. Specifically, it denied dismissal of Counts 3 and 4 as to the Calamitas and Count 12; granted dismissal of Counts 3 and 5 as to De Broux, Count 8, and Count 16, with those claims dismissed without prejudice; and granted dismissal of Count 9, with that claim dismissed with prejudice. The court denied defendants’ motion to strike the fraudulent-concealment allegations and granted plaintiffs’ request to dismiss the Count 16 portion under Wisconsin Statute section 100.20, without prejudice.