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Kisting v. Gregg Appliances, Inc.

United States District Court, E.D. Wisconsin

October 7, 2016

JOHN KISTING, on behalf of himself and all others similarly situated, Plaintiff,
GREGG APPLIANCES, INC. d/b/a hhgregg, Defendant.


          NANCY JOSEPH United States Magistrate Judge

         John Kisting filed a class action complaint alleging breach of express warranty; breach of the implied warranty of merchantability; breach of contract; unjust enrichment; and violations of the Magnuson-Moss Act (15 U.S.C. §§ 2301, et seq.), Wisconsin's Deceptive Trade Practices Act (“DTPA”) (Wis. Stat. § 100.18), and Wis.Stat. §§ 895.446 and 943.20(1)(d) against Gregg Appliances, Inc. d/b/a hhgregg arising out of injuries sustained as a result of Gregg's alleged false advertising relating to the sale of Samsung 4K televisions to consumers in the State of Wisconsin. Gregg has moved to limit Kisting's putative class to those who purchased the same model of television; to dismiss Kisting's claims pursuant to Wis.Stat. §§ 100.18, 895.446, and 943.20(1)(d); and to dismiss Kisting's claim for equitable relief, pursuant to Fed.R.Civ.P. 12(b)(1) and Fed. R. Civ. P 12(b)(6). Kisting opposes the motion. The motion has been fully briefed and is ready for disposition. For the reasons that follow, the defendant's motion is granted in part and denied in part.


         In his complaint, Kisting alleges that on December 9, 2015, he visited one of the five hhgregg stores in Wisconsin operated by Gregg. (Compl. ¶ 10, Docket # 1.) Kisting alleges that in front of each of the Samsung 4K televisions at issue (the “Subject Televisions”), in-store advertisements listed information regarding the features and capabilities of each particular television model. (Id. ¶ 11.) Kisting viewed these advertisements. (Id.) The primary feature of the in-store advertisements of Subject Televisions are three to four large, red circles conspicuously centered below each Subject Television. In one of the red circles, in large and bold print, the purported refresh rate of each particular model is advertised. (Id. ¶ 12.)

         Kisting explains that generally, televisions regenerate, or refresh, the picture multiple times each second and that this is done to keep up with the images that are broadcast and to reduce or eliminate motion blur when fast moving scenes appear on screen. (Id. ¶ 7.) Kisting states that the more often a television can refresh the picture, the better and more clearly a television is able to display moving objects on screen. (Id.) Kisting states that the refresh rate of a television is a specification that is measured in Hertz (“Hz”) and the Hz of a television corresponds exactly to the number of times a particular television can refresh the picture, i.e., a 60Hz television has a refresh rate of 60, a 120Hz television has a refresh rate of 120, and a 240Hz television has a refresh rate of 240. (Id. ¶ 8.) The Hz measurement of a television equals the refresh rate, and the refresh rate of a television equals the Hz. (Id.) The complaint alleges that generally, the higher the refresh rate of a particular television model, the better the television is able to display motion on screen resulting in a better picture. (Id.)

         Kisting alleges that partly based on the refresh rate listed on the in-store advertisement, he selected and purchased a Subject Television. (Id. ¶ 13.) He alleges that he purchased the television without knowledge that the actual refresh rate specification was only one-half of the refresh rate advertised to the public in-store by Gregg. (Id. ¶ 14.) Kisting alleges that none of the advertisements he viewed or representations he received contained any disclosure of the accurate refresh rate of the television. (Id. ¶ 15.)

         Kisting further alleges that he purchased the Subject Television on the reasonable, but mistaken, belief that the refresh rate advertised by Gregg was, in fact, the refresh rate of the Subject Television. Kisting alleges that had Gregg advertised the accurate refresh rate of the Subject Television, Kisting would have had the opportunity to consider other televisions; pay much less for a television with a lower refresh rate; or seek to purchase a television through a different retailer. (Id. ¶ 16.) Kisting alleges that at all five of Gregg's Wisconsin locations, Subject Televisions are being misrepresented as having twice their actual refresh rate. (Id. ¶ 19.) As a result of Gregg's actions, Kisting alleges that he and the putative class members have suffered damages. (Id. ¶¶ 21-23.)


         Gregg moves for partial dismissal of Kisting's complaint pursuant to Fed.R.Civ.P. 12(b)(1) (subject matter jurisdiction) and Fed.R.Civ.P. 12(b)(6) (failure to state a claim). On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court may look beyond the allegations of the complaint and view other submitted evidence. See Johnson v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir. 2003). Jurisdiction is the “power to decide” and must be conferred upon a federal court. See In re Chicago, Rock Island & Pacific R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). When jurisdictional allegations are questioned, the plaintiff has the burden of proving that the jurisdictional requirements have been met. See Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987).

         A motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenges the sufficiency of the complaint on the basis that the plaintiff has failed to state a claim upon which relief can be granted. A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Supreme Court has interpreted this language to require that the plaintiff plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Ashcroft v. Iqbal, the Supreme Court elaborated further on the pleadings standard, explaining that a “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, ” though this “standard is not akin to a ‘probability requirement.'” 556 U.S. 662, 678 (2009). The allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citation omitted).

         When determining the sufficiency of a complaint, the court should engage in a two-part analysis. See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). First, the court must “accept the well-pleaded facts in the complaint as true” while separating out “legal conclusions and conclusory allegations merely reciting the elements of the claim.” Id. (citing Iqbal, 556 U.S. at 680). Next, “[a]fter excising the allegations not entitled to the presumption [of truth], [the court must] determine whether the remaining factual allegations ‘plausibly suggest an entitlement to relief.'” Id. (citing Iqbal, 556 U.S. at 681). As explained in Iqbal, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” 556 U.S. at 679.

         If a party asserts fraud, the claim must be pleaded with particularity. Fed.R.Civ.P. 9(b) states that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Rule 9(b) requires a plaintiff to plead “the who, what, when, where, and how” of the allegedly fraudulent act. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 569 (7th Cir. 2012) (internal quotations omitted).


         Gregg argues that Kisting lacks standing to represent individuals who purchased different products and viewed different advertisements than he did and thus the putative class should be limited to those who purchased the same model of television as Kisting. Gregg further argues that Kisting's fraud-based claims pursuant to Wis.Stat. §§ 100.18, 895.446, and 943.20(1)(d) must be dismissed because he failed to plead them with particularity. Finally, Gregg argues that Wisconsin law forbids ...

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