Case 4:20-cv-08102-YGR Document 68 Filed 05/27/21 Page 1 of 4
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`*NOT FOR PUBLICATION*
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`EDWARD TROMBLE, ET AL.,
`Plaintiffs,
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`v.
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`WESTERN DIGITAL CORPORATION,
`Defendant.
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`Case No. 4:20-cv-08102-YGR
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`ORDER GRANTING MOTION TO DISMISS
`WITH LEAVE TO AMEND
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`Re: Dkt. Nos. 62, 63
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`Before the Court is defendant Western Digital Corporation’s motion to dismiss the
`operative first amended class action complaint filed by plaintiff Edward Tromble. (Dkt. Nos. 62
`(mistaken filing), 63 (motion to dismiss).) Tromble brings four counts against Western Digital,
`which manufactures hard drives, based on an alleged failure to disclose that its hard drives utilize
`Shingle Magnetic Recording (“SMR”) technology instead of Conventional Magnetic Recording
`(“CMR”) technology. These four counts include violation of (1) N.Y. Gen. Bus. Law (“GBL”)
`§ 349 (for a New York subclass); (2) N.Y. GBL § 350 (for a New York subclass); (3) fraudulent
`concealment (for a nationwide class); and (4) unjust enrichment (for a nationwide class).
`Having reviewed the motion to dismiss and the parties’ briefing, the Court GRANTS the
`motion to dismiss.1 Because the Court has determined that it is appropriate to provide leave to
`amend, the Court issues this summary order in lieu of a comprehensive order. Thus:2
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`1 The motion hearing set for June 1, 2021 is VACATED.
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`2 The Court GRANTS Tromble’s unopposed request for judicial notice of Western Digital’s
`webpages. See Erickson v. Nebraska Mach. Co., 2015 WL 4089849, at *1 (N.D. Cal. July 6,
`2015) (“Courts have taken judicial notice of the contents of web pages available through the
`Wayback Machine as facts that can be accurately and readily determined from sources whose
`accuracy cannot reasonably be questioned … and the Court does so here.”) (internal citations
`omitted).
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`The standards for a motion to dismiss brought under Rules 12(b)(1) and 12(b)(6) are well
`known and not in dispute.
`N.Y. GBL 349 and 350
` These claims are DISMISSED WITH LEAVE TO AMEND.
`
`In general, a viable claim under GBL Sections 349 or 350 requires that a plaintiff “‘allege
`that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially
`misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or
`practice.’” Clark v. Hershey Co., No. C 18-06113 WHA, 2019 WL 913603, at *5 (N.D.
`Cal. Feb. 25, 2019) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 967
`(2012)); see also Heskiaoff v. Sling Media, Inc., 719 F. App’x 28, 31 (2d Cir. 2017). Such
`claims may be based on either a misrepresentation or omission, but an omission is
`actionable only if it is “materially misleading” to a reasonable consumer. Nick’s Garage,
`Inc. v. Progressive Casualty Ins. Co., 875 F.3d 107, 124 (2d. Cir. 2017) (holding that
`adoption of an objective standard, decidable on a motion to dismiss, was intended to avoid
`“a tidal wave of litigation against businesses that was not intended by the Legislature”)
`(quoting Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85
`N.Y.2d 20, 25 (1995)). A plaintiff must allege facts that plausibly show that a “significant
`portion of the general consuming public or of targeted consumers, acting reasonably in the
`circumstances, could be misled by the relevant statements[]’ or omissions.” Rothschild v.
`GM LLC, 2020 U.S. Dist. LEXIS 187300, *34 (E.D.N.Y. Sept. 30, 2020) (citations
`omitted). Under the analogous California state law, a change in components does not
`support a product defect action. See, e.g., Bardin v. DaimlerChrysler Corp., 136 Cal. App.
`4th 1255, 1270 (2006) (failure to disclose the use of less expensive and less durable
`materials in the manufacture of vehicles alone does not give rise to a consumer protection
`claim).
` Here, Tromble’s allegations are deficient in establishing that the alleged omission
`regarding the SMR and CMR technology at issue. As Western Digital correctly notes,
`Tromble points to no packaging or advertising containing any representations as to either
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`technology in its hard drives. Moreover, Tromble does not allege any reasonable
`expectation by consumers generally as to the type of drive technology employed in hard
`drives (e.g., whether a significant portion of the general consuming public would have had
`any beliefs, at the time of purchase, about whether the drives they purchased used CMR
`technology or did not). Tromble further does not allege any specific defect in the use of
`SMR technology in the hard drives, other than to allege that they are inferior to CMR
`technology. Finally, Tromble notably does not allege that he has experienced while using
`Western Digital’s products any of the negatives he alleges which result from SMR
`technology (e.g. slower performance, inferior stability, permanent data loss).3
` The Court provides leave to amend to address the above deficient allegations.
`Nationwide Claims (Fraudulent Concealment and Unjust Enrichment)
` These claims are DISMISSED WITH LEAVE TO AMEND.
` Here, Tromble has not sufficiently alleged the state laws in which the common law claims
`are grounded. See Romero v. Flowers Bakeries, LLC, No. 14-CV-05189-BLF, 2016 WL
`469370, at *12 (N.D. Cal. Feb. 8, 2016) (“[D]ue to variances among state laws, failure to
`allege which state law governs a common law claim is grounds for dismissal.”).4
`Moreover, as the Court reminded Tromble’s counsel in another consumer product class
`action: “while the Court agrees that whether a nationwide class claim can be stated is
`typically addressed during class certification, they have been routinely narrowed after the
`Ninth Circuit’s ruling in Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (2012).”
`Keller v. CamelBak Products, LLC, 4:20-cv-232-YGR, 2020 WL 2793894, at *3 n.2 (N.D.
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`3 The Court declines to consider Western Digital’s extended arguments at this time in this
`summary order. Tromble is directed however to consider the arguments raised in Western
`Digital’s extended arguments as to these claims in drafting a second amended class action
`complaint.
`4 Tromble’s citation to In re: Lithium Ion Batteries Antitrust Litig., 13-MD-2420-YGR,
`2016 WL 948874, at *4 (N.D. Cal. Mar. 14, 2016), does not persuade. In Lithium Ion, the parties
`there identified “certain state” or “specified state law claims.” Id. Moreover, the Court required a
`plaintiff to be identified for every state represented. Id. Here, Tromble fails to identify which
`state laws apply to the purported class action common law claims. Thus, Lithium Ion is
`inapplicable.
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`United States District Court
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`Case 4:20-cv-08102-YGR Document 68 Filed 05/27/21 Page 4 of 4
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`Cal. May 29, 2020). Indeed, the Court recently granted a request to strike similar
`nationwide class allegations of unjust enrichment in Pistacchio v. Apple Inc., 4:20-cv-
`7034-YGR, 2021 WL 949422, at *3 (N.D. Cal. Mar. 11, 2021). In Pistacchio, the Court
`stated:
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`Plaintiffs, though, cannot point to a single case in this Circuit to
`[certify a nationwide unjust enrichment class] since the Ninth
`Circuit addressed the issue in Mazza v. American Honda Motor Co.,
`Inc., 666 F.3d 581, 591 (9th Cir. 2012). This is unsurprising given
`that, in Mazza, the Ninth Circuit unequivocally held that the
`“elements necessary to establish a claim for unjust enrichment ...
`vary materially from state to state.” Id. It is hard to imagine a clearer
`directive from our Circuit on this issue.
`Id. (citing Bias v. Wells Fargo & Company, 312 F.R.D. 528, 540 (N.D. Cal. 2015)).
` The Court provides leave to amend to address the above deficient allegations. Counsel is
`reminded of their Rule 11 obligations in addressing the common law claims.5
`The Court provides leave to amend to Tromble to address the deficiencies in the operative
`first amended class action complaint, consistent with Tromble’s counsel’s Rule 11 obligations.
`See Roney v. Miller, 705 F. App’x 670, 671 (9th Cir. 2017) (lower court erred by denying leave to
`amend after dismissing amended complaint); Fed. R. Civ. P. 15(a) (providing that a trial court
`should “freely give leave when justice so requires”). Tromble shall file a second amended class
`action complaint on or before June 22, 2021. A response from Western Digital shall be filed on
`or before July 20, 2021. Assuming a renewed motion to dismiss is filed by Western Digital, it
`shall follow the regular thirty-five (35) day period unless otherwise so stipulated by the parties.
`This Order terminates docket numbers 62 and 63.
`IT IS SO ORDERED.
`Dated: May 27, 2021
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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`5 Moreover, the Court cites to California law, but notes that New York law may control as
`plaintiff has not addressed which state law applies for these common law claims.
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