Opinion
3:21-cv-335-JR
07-30-2021
UNITED STATES OF AMERICA, Plaintiff, v. AQUATHERM GmbH, AQUATHERM L.P., CLARK FAMILY HOLDINGS, L.C., AQUATHERM, INC., AETNA NA, L.C., HARRINGTON INDUSTRIAL PLASTICS LLC, and RIDGELINE MECHANICAL SALES LLC., Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
RUSSO, Magistrate Judge: Defendants Aquatherm LP, Aquatherm Inc., and Aetna NA, LC fka Aquatherm NA LC (“the Aquatherm distributors”) move to Make More Definite and Certain. Fed.R.Civ.P. 12(e), ECF 26. The Court should deny this motion because the Aquatherm distributors do not meet the high threshold necessary to justify ordering a more definite statement from plaintiff.
BACKGROUND
Plaintiff the United States of America filed this Complaint against, inter alia, the Aquatherm distributor defendants, alleging breaches of express and implied warranties, and a claim for unjust enrichment. The Complaint goes through the history and nature of the United States' claims in some detail. Between 2009 and 2013, the General Services Administration (GSA) renovated the Edith Green-Wendell Wyatt Federal Building, an 18-story structure in Portland, Oregon that houses approximately 1, 200 employees of various federal agencies. Compl. ¶¶ 1, 15. The renovation used Aquatherm piping products in three systems: the ordinary domestic water system, a water-based heating and cooling (“hydronic”) system, and a system for rainwater recapture. Id. ¶ 19. The Aquatherm pipes are made from random copolymerized polypropylene or “PP-R, ” a pipe-specific type of plastic, and some Aquatherm components including copper or brass as well. Id. ¶¶ 1, 20, 29. The Aquatherm PP-R pipes were supposed to last for 50 years even under “aggressive” water conditions, and the Complaint alleges that at least some of the defendants explicitly represented that the Aquatherm pipes could be used in systems that included copper components and chlorinated water. Id. ¶¶ 28-29. Plaintiff alleges that Aquatherm and the other defendants also represented, through the explicit written labels on the pipes and otherwise, that its pipes complied with various industry standards for pipe integrity, including resistance to oxidation. Id. ¶¶ 30, 42, 46.
Aquatherm provided a 10-year express written warranty against defects in its piping products. Id. ¶ 32. Notably, while Aquatherm's 2013 warranty excluded certain types of damage, it did not exclude damage from oxidative degradation or corrosion, which is the heart of plaintiff's allegations in this case. Id. ¶¶ 32-33.
Beginning in March 2018, five years after the completion of the renovation, the Aquatherm pipes began to leak. Id. ¶ 37. GSA promptly notified Aquatherm of the first leak. Id. ¶ 40. Aquatherm briefly investigated and responded to GSA that the Aquatherm pipe appeared to be failing due to oxidative degradation. Id. The Complaint alleges Aquatherm did not take responsibility for this vulnerability, and instead blamed system conditions on the building. Id. Its initial recommendation to GSA was to remove all copper components from the plumbing systems in which Aquatherm pipes were used; but Aquatherm subsequently represented, in response to other questions from GSA, that its pipes were safe to use with copper components as long as the system stayed within certain technical specifications, consistent with Aquatherm's own practice of selling copper components for use with PP-R pipes. Id. ¶¶ 41-42.
GSA engaged an independent consultant, HDR Engineering (“HDR”), to investigate the recurring leaks-totaling nine between March 2018 and the filing of the Complaint. Id. ¶¶ 38, 43. HDR determined, consistent with Aquatherm's own initial report, that the Aquatherm pipes were corroding from the inside because of oxidative degradation, a problem which would likely worsen over time. Id. ¶ 43. HDR recommended that GSA replace all Aquatherm pipes in the domestic and hydronic systems. Id. GSA provided HDR's 470-page report to Aquatherm and other defendants. Id. ¶ 47. Following HDR's recommendations, GSA began to plan replacement of the pipes, starting with the domestic hot water system, which posed the most immediate threat of failure. Id. ¶ 43. These remedial steps were scheduled to begin in March 2021. Id.
LEGAL STANDARD
Under Rule 12(e), a “party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). Such a motion “is disfavored and is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted, meaning the complaint is so vague that the defendant cannot begin to frame a response.” Martin v. City of Portland, No. 3:19-CV-1647-SI, 2020 WL 363391, at *2 (D. Or. Jan. 21, 2020) (quoting Barnes v. Olive, 2015 WL 5813193, at *2 (D. Or. Sept. 30, 2015)). The motion “‘must be considered in light of the liberal pleading standards of Rule 8(a)[, ]' which requires that a complaint ‘need only be a short and plain statement of the claim showing that the pleader is entitled to relief.'” Prychyna v. Barrett Bus. Servs., Inc., No. CV-11-122-HZ, 2011 WL 4498843, at *4 (D. Or. Sept. 27, 2011) (quoting Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (C.D. Cal. 1996)).
DISCUSSION
Given the high bar for a party seeking a more definite statement under Rule 12(e), and the significant factual detail in plaintiff's Complaint, the Court should find the pleadings are more than adequate to allow Aquatherm to “ascertain the nature” of the United States' claims and “begin to frame a response.” Martin, 2020 WL 363391, at *2. Plaintiff brings four causes of action: breach of express warranty, breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, and unjust enrichment. See Compl. ¶¶ 48-79. And, for each claim, plaintiff alleges significant facts that set forth the basis for defendants' liability: that Aquatherm provided defective and unsuitable pipes, that those pipes are rapidly and prematurely failing in violation of defendants' express or implied warranties, and that these failures are causing plaintiff harm. See id.
The Aquatherm distributors' request for a more definite statement focuses in particular on the Complaint's allegations that defendants' products violated “industry standards, ” and requests that the United States “[i]dentify with more specificity which certifications, regulations, or requirements the [United States] contends the products do not meet.” ECF 26 at 3, 11. The Court should find this insufficient to justify relief under Rule 12(e). All that is required of plaintiff at the pleading stage under Rule 8 is to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Lehman v. Nelson, 862 F.3d 1203, 1211 (9th Cir. 2017). That is exactly what plaintiff's Complaint does: it alleges how and why the defendants' product was defective, how it breached express or implied warranties or unjustly enriched the defendants and seeks damages. Furthermore, Aquatherm is wrong that the Complaint fails to specify which standards are at issue. Plaintiff alleges that, at the very least, the standards at issue encompass those related to “pipe integrity, including resistance to oxidation and chlorine.” Compl. ¶ 30; see id. ¶ 46. This alone should be sufficient to provide the Aquatherm distributors a basis for a response. And even if plaintiff did not allege chapter-and-verse the exact industry standards it believes defendants have violated, defendants' objections to the Complaint are appropriately resolved through the discovery and summary judgment processes provided for by the Federal Rules, rather than the disfavored Rule 12(e) motion.
As plaintiff rightly points out, the Aquatherm distributors' requests for a more definite statement read almost exactly like a list of interrogatories, which further suggests the Court should deny this Rule 12(e) motion. A motion for a more definite statement under Rule 12(e) is “not to be used to assist in getting facts in preparation for trial as such; other rules relating to discovery, interrogatories and the like exist for such purposes.” Sheffield v. Orius Corp., 211 F.R.D. 411, 414-15 (D. Or. 2002). Here, the Aquatherm distributors seek the kind of specificity through a Rule 12(e) motion that is properly the basis of interrogatories and other written discovery under Rule 26. For example, the Aquatherm distributors ask plaintiff to:
• Identify with more specificity which certifications, regulations, or requirements the Government contends the products do not meet. ECF 26 at 3.
• Identify with more specificity the manufacturing or material defect alleged. Id. at 4.
• Identify whether the Government contends the conditions in the Building are “common and ordinary” or “specific to the Building.” Id.
Such routine factual requests are part of the discovery process in civil litigation under the Federal Rules of Civil Procedure, not grounds for a Court order requiring a more definite statement at the pleading stage. Seeking this type of discovery through a Rule 12(e) motion miscomprehends the rule and does not meet the standard the Ninth Circuit has established for granting a motion for more definite statement. The Court should deny the Aquatherm distributors' motion.
CONCLUSION
For the foregoing reasons, the Court should deny the Aquatherm distributors' Motion to Make More Definite and Certain, ECF 26.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.