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Petty v. Marvin Lumber and Cedar Co.

United States District Court, E.D. North Carolina, Northern Division

September 4, 2014

TROY D. PETTY and wife, ANNAH A. PETTY, Plaintiffs,


JAMES C. FOX, Senior District Judge.

This matter is before the court on the Motion to Dismiss [DE-10] filed by Defendant Marvin Lumber and Cedar Company, t/a Marvin Window and Doors ("Marvin" or "Defendant"). Plaintiffs Troy D. Petty and Annah R. Petty ("Pettys" or "Plaintiffs") have responded, and Marvin has replied. For the reasons stated below, the motion is ALLOWED, and Plaintiffs' claims are DISMISSED without prejudice to file an amended complaint within 21 days.


Plaintiffs initiated this action by filing a complaint in the North Carolina General Court of Justice, Superior Court Division, Dare County, on September 19, 2013 [DE-1-1]. Therein, Plaintiffs assert claims for breach of contract, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. Marvin was served with process on September 25, 2013, and timely filed a notice of removal [DE-1] in this court on October 22, 2013, on the basis of diversity of citizenship jurisdiction. Thereafter, Marvin filed the instant motion to dismiss.


The facts as alleged in the Complaint are as follows. Plaintiffs are owners of certain real property ("the Property") located in Manteo, North Carolina, which was constructed during 2008 and 2009. Compl. [DE-1-2] ¶¶ 1-2. In July 2008, Plaintiffs purchased fifty-eight (58) Marvin Intergrity double hung windows and twenty-three (23) matching transom windows from Marvin for approximately $40, 000. Id. ¶ 5. As part of the purchase, Marvin provided a Ten Year Limited Warranty. Id. ¶ 6; Resp. to Mot. to Dismiss, Ex. A [DE-14-1].

A certificate of occupancy was issued for Property in June 2009, and Plaintiffs took occupancy of the Property that same month. Compl. [DE-12] ¶¶ 8-9. Over a year later, on September 3, 2010, Plaintiffs first began to notice problems with the window purchased from Marvin; specifically, "the windows in the office and north upstairs bedroom in the Property began to leak after a storm event." Id. ¶¶ 10-11. Plaintiffs allege that the builder of the Property and a representative of Marvin met and performed leak tests on different occasions, and that the leak tests showed that the windows leaked. Id. ¶¶ 14-16. Marvin serviced the windows on May 2 and 3, 2011, in an attempt to remedy the leak. Id. ¶ 17. The windows leaked again in June 2012 and October 2012. Id. ¶¶ 18-19.


On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a court must determine the legal sufficiency of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In so doing, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the "[f]actual allegations must be enough to raise a right to relief above the speculative level' and have enough facts to state a claim to relief that is plausible on its face.'" Wahi v. Charleston Area Med Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (citing Twombly, 550 U.S. at 555 (2007)). Moreover, although the court draws all reasonable factual inferences in a plaintiffs favor, the court is not obligated to accept a complaint's legal conclusions drawn from the facts. Iqbal, 129 S.Ct. at 1949-50. Nor must the court accept as true "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano v. Johnson, 521 F.3d 298, 301-02 (4th Cir. 2008)(quotations omitted). "In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." E.I duPont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 559 (4th Cir. 2011).

Ordinarily, resolution of defenses such as the statute of limitations is not appropriate when ruling on a Rule 12(b)(6) motion to dismiss, which only tests the legal sufficiency of the complaint itself. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, if facts sufficient to rule on the defense are alleged in the complaint, a court may reach the defense at the Rule 12(b)(6) stage. Id. But the Fourth Circuit has cautioned that the court may only do so "in the relatively rare circumstance" where "all facts necessary to the affirmative defense clearly appear[ ] on the face of the complaint.'" Id. (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir.1993)).


Marvin argues that each of Plaintiffs' claims must be dismissed pursuant to Rule 12(b)(6) because they are barred by the statute of limitations. The court examines each claim in turn, beginning with Plaintiffs' claims for breach of express warranty and breach of implied warranties.

A. Breach of Warranty Claims

The parties appear to agree that the four-year statute of limitations set forth in N.C. Gen. Stat. § 25-2-725 governs Plaintiffs' claims for breach of express and implied ...

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