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Drover v. Lg Electronics Usa, Inc.

United States District Court, D. Nevada

October 15, 2014

KEVIN DROVER, Plaintiff(s),
v.
LG ELECTRONICS USA, INC., Defendant(s)

ORDER

JAMES C. MOHAN, District Judge.

Presently before the court is defendant LG Electronics USA, Inc.'s (hereinafter "defendant") motion to dismiss. (Doc. # 80). Plaintiff Kevin Drover (hereinafter "plaintiff") filed a response, (doc. # 83), and defendant filed a reply, (doc. # 84).

I. Background

Plaintiff resides in Nevada. In 2008, he purchased a television manufactured by defendant from a Best Buy store in Utah. The television included a one-year warranty, and plaintiff purchased a two-year extended warranty.

In 2011, after the expiration of both warranties, plaintiff alleges that his television started malfunctioning. He contacted defendant to obtain a repair, but was unable to do so because his warranty had expired. Plaintiff then paid $212.50 out-of-pocket for third-party repairs. (Doc. # 77).

Plaintiff filed a putative class action on March 27, 2012, arising out of defendant's sales of allegedly defective televisions. Plaintiff asserted claims under the Nevada Deceptive Trade Practices Act ("NDTPA") as well as claims for breach of express warranty, breach of the implied warranty of merchantability, unjust enrichment, and restitution. (Doc. # 1).

On May 25, 2012, defendant filed a motion to dismiss. (Doc. # 19). Plaintiff filed a response, (doc. # 32), and defendant filed a reply, (doc. # 41). In his response, plaintiff voluntarily dismissed his warranty claims. (Doc. # 32).

On October 18, 2012, the court granted in part and denied in part defendant's motion to dismiss. (Doc. # 49). The court dismissed plaintiff's NDTPA claims without prejudice but denied dismissal of plaintiff's unjust enrichment claim. However, the court granted plaintiff leave to amend his complaint within thirty days of the date of the order. (Doc. # 49).

Defendant then filed a motion for reconsideration based on an intervening change in law, asking the court to dismiss plaintiff's unjust enrichment claim. (Doc. # 50). Plaintiff filed a response, (doc. # 56), and defendant filed a reply, (doc. # 58).

On February 19, 2013, the court granted defendant's motion for reconsideration and dismissed plaintiff's unjust enrichment claim with prejudice. (Doc. # 59). The court indicated that if plaintiff wished to amend his complaint, he should file a motion to amend with a proposed amended complaint within thirty days.

Plaintiff then filed a motion to reconsider the court's order. (Doc. # 60). Defendant filed a response, (doc. # 61), plaintiff filed a reply, (doc. # 62), and the court denied the motion, (doc. # 64). The court again ordered that plaintiff would have thirty days to file his amended complaint.

Plaintiff then filed a motion for leave to file an amended complaint. (Doc. # 65). Defendant filed a non-opposition, (doc. # 68), and the court granted the motion, (doc. # 69). Plaintiff filed his first amended complaint on October 7, 2013. (Doc. # 70).

Defendant then filed another motion to dismiss, (doc. # 71), plaintiff filed a response, (doc. # 72), and defendant filed a reply, (doc. # 75). The court again granted defendant's motion to dismiss and gave plaintiff thirty days to file a second amended complaint. (Doc. # 76).

The court noted that plaintiff's second amended complaint must identify the particular NDTPA provisions that served as the basis for his claims. (Doc. # 76). Plaintiff filed his second amended complaint on June 23, 2014, alleging violations of the NDTPA and identifying particular provisions. (Doc. # 77).

Plaintiff claims in his second amended complaint that defendant's televisions exhibit a design defect. He alleges that defendant had actual knowledge of the defect but failed to recall the televisions. Plaintiff states that defendant "represented that the Televisions being sold to the general public were not inherently defective, and were reasonably suited for their intended purpose." (Doc. # 77).

Defendant then filed the instant motion to dismiss the second amended ...


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