Case 4:21-cv-00354-ALM Document 1 Filed 05/06/21 Page 1 of 10 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`CIVIL ACTION NO. ____________
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`ROBERT FRANKLIN, Individually on
`behalf of all putative class members,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`PLAINTIFF’S ORIGINAL COMPLAINT
`AND PETITION FOR CLASS CERTIFICATION
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`1.
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`Plaintiff, Individually and as a Representative of similarly situated consumers as
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`members of any putative class, brings the following claims against Defendant and respectfully
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`states:
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`PARTIES
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`2.
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`Plaintiff, Robert Franklin, is a resident of Hopkins County, Texas and lives within
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`the Eastern District of Texas. Plaintiff’s residence within Hopkins County, Texas is his true, fixed,
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`and permanent home.
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`3.
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`Defendant, Apple Inc., is a California corporation incorporated in the state of
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`California with its principal place of business located at 1 Infinite Loop, M/S 38-3TX, Cupertino,
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`California 95014. Defendant is and, at all relevant times, was doing business in the State of Texas
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`by selling and distributing its products. Defendant may be served via its registered agent for service
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`in Texas, CT Corporation System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201-3136.
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`PLAINTIFF’S ORIGINAL COMPLAINT AND PETITION FOR CLASS CERTIFICATION
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`Case 4:21-cv-00354-ALM Document 1 Filed 05/06/21 Page 2 of 10 PageID #: 2
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction of this cause of action pursuant to 28
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`U.S.C. § 1332(a). Plaintiff’s true, fixed, and permanent home is in Hopkins County, Texas.
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`Therefore, Plaintiff is a citizen of Texas. Defendant is incorporated in California and maintains its
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`principal place of business in California, and is, thus, a citizen of California. Therefore, as Plaintiff
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`is a citizen of Texas, and Defendant is a citizen of California, complete diversity exists.
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`Additionally, Plaintiff seeks damages in excess of $75,000. Moreover, jurisdiction is also proper
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`pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332, et. seq. because
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`the amount in controversy for the proposed class is greater than $5,000,000. Similarly, jurisdiction
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`is proper pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. given the nature
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`of the class claims and the number of putative class members.
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`5.
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`Defendant is subject to personal and general jurisdiction in this Court because it
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`maintains minimum contacts with Texas and engages in systematic and continuous contacts with
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`Texas by selling its products in Texas. Defendant purposefully avails itself of the privilege of doing
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`business in Texas by knowingly selling its products directly or indirectly to Texas consumers. The
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`subject claims arise from or relate to the Defendant’s contact with Texas.
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`6.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(a)(1) & (c) and CAFA
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`because Defendant is subject to personal jurisdiction in this District and is, therefore, a resident of
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`this District. Moreover, Plaintiff is a resident of this District, and all or a substantial part of the
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`underlying facts occurred within this District.
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`PLAINTIFF’S ORIGINAL COMPLAINT AND PETITION FOR CLASS CERTIFICATION
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`Case 4:21-cv-00354-ALM Document 1 Filed 05/06/21 Page 3 of 10 PageID #: 3
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`FACTS
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`7.
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`Defendant is involved in the manufacture, distribution, and sale of the iPhone 6
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`battery contained in the iPhone 6. The subject model iPhone 6 battery was installed in the iPhone
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`6 and sold throughout the state of Texas, including Plaintiff’s iPhone 6.
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`8.
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`The subject model iPhone 6 battery was installed in thousands of iPhone 6s sold
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`and distributed in Texas. The iPhone 6 battery contains a defect at the time it is sold which renders
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`it unable to perform its intended function and unfit for its intended purpose. The iPhone 6 battery
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`contains a defect which makes it unable to reliably perform its function of powering the iPhone 6
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`without overheating. This defect creates a danger of explosion and fire in the iPhone 6.
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`9.
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`In 2018, Plaintiff Robert Franklin purchased an iPhone 6, IMEI 352018078688608.
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`The subject iPhone 6 contained the subject model iPhone 6 battery that was un-merchantable and
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`defective.
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`10.
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`Plaintiff’s iPhone 6 was originally purchased within the Eastern District of Texas.
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`Upon information and belief, hundreds and likely many thousands of iPhone 6s were also
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`purchased within the Eastern District of Texas and throughout the State of Texas, equipped with
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`the subject model iPhone 6 battery.
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`11.
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`On August 15, 2019, Robert Franklin was listening to music on his iPhone 6, when
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`he noticed the music playing on his iPhone began to skip. As he picked up his iPhone to investigate,
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`his iPhone suddenly exploded and caught fire in his face, causing him to fall to the ground. In an
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`attempt to mitigate his fall, Mr. Franklin instinctively tried to brace himself with his right hand.
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`When Mr. Franklin fell to the ground, he immediately felt a burning pain in his eyes and right
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`wrist. Mr. Franklin suffered injuries to his eyes and wrist as a result of this incident, and these
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`injuries continue to plague Mr. Franklin to this day.
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`PLAINTIFF’S ORIGINAL COMPLAINT AND PETITION FOR CLASS CERTIFICATION
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`Case 4:21-cv-00354-ALM Document 1 Filed 05/06/21 Page 4 of 10 PageID #: 4
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`12. With a defective battery, Plaintiff’s iPhone 6 was unsafe to operate and was
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`destroyed by the explosion. Plaintiff incurred economic loss damages associated with the loss and
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`replacement of his iPhone 6 and subsequent medical treatment for his injuries. Members of the
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`putative class have the same defective iPhone 6 battery and will incur substantially similar
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`economic loss damages associated with the loss and replacement of their iPhone 6s and possible
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`medical treatments.
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`RULE 23 CLASS ACTION CERTIFICATION REQUESTED
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`13. Plaintiff adopts each paragraph set forth above as if fully set forth herein.
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`14.
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`Pursuant to Rule 23, Plaintiff seeks certification of a class action in this matter with
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`respect to each of the claims alleged. Plaintiff has standing to seek class certification because he
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`is a member of the putative class. Plaintiff suffered financial loss related to the conduct complained
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`of herein and has suffered the same injury and seeks the same relief as other members of the class
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`and seeks to represent the class.
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`15. Plaintiff seeks the certification of a Texas-only class of persons or consumers.
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`Generally, Plaintiff seeks certification of a class defined generally as those Texas resident
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`individuals, consumers, or owners of cell phones who own an iPhone 6 equipped with the defective
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`iPhone 6 battery.
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`16. The prerequisites of Federal Rule of Civil Procedure 23(a) are met. The members
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`of such class are so numerous that joinder of all members is impracticable. Moreover, there are
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`common questions of law and fact to the class which predominate, and the claims or defenses of
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`the representative party here are typical of the claims and defenses of the class. The issues related
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`to the existence of a defect (as that terms is used in the warranty context) in the iPhone 6 product,
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`the existence of an implied warranty for owners of an iPhone 6, and the economic loss damage
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`PLAINTIFF’S ORIGINAL COMPLAINT AND PETITION FOR CLASS CERTIFICATION
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`issues will all be common the class and will predominate over any individual issues.
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`17.
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`Plaintiff, along, with counsel, has proper standing and will fairly and adequately
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`protect the interests of the class. Plaintiff has standing to bring the class claims, and he and his
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`counsel will diligently pursue the subject claims for the class.
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`BREACH OF IMPLIED WARRANTY OF MERCHANTIBILITY
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`18. Plaintiff adopts and re-alleges each paragraph set forth above as if fully set forth
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`herein.
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`19. Defendant is a merchant and/or supplier of the subject iPhone 6 and its included
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`iPhone 6 battery. Defendant’s sale of phones equipped with the subject model iPhone 6 battery
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`included an implied warranty of merchantability in Texas. The iPhone 6, by virtue of a defect in
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`the battery, was un-merchantable at the time it was purchased because the iPhone 6 was not fit for
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`its ordinary purpose for the useful life of the iPhone 6. Plaintiff and members of the putative class
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`purchased, own, or operate an iPhone 6 manufactured and sold by Defendant equipped with an
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`iPhone 6 battery which is un-merchantable and have suffered economic injury as described herein.
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`20.
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`Plaintiff, individually and on behalf of the members of the putative class, brings a
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`claim for breach of the implied warranty of merchantability pursuant to the Uniform Commercial
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`Code, as adopted in Tex. Bus. & Com. Code § 2.214, et seq. and actionable under the Texas
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`Deceptive Trade Practices Act, Tex. Bus. & Com. Code § 17.50, et seq. Any effort to disclaim the
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`implied warranty of merchantability was inadequate and unenforceable under Texas law.
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`21.
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`Defendant’s breach of the implied warranty of merchantability was the producing
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`and/or proximate cause of the economic loss damages alleged herein for owners of iPhone 6s sold
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`by Defendant.
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`PLAINTIFF’S ORIGINAL COMPLAINT AND PETITION FOR CLASS CERTIFICATION
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`Case 4:21-cv-00354-ALM Document 1 Filed 05/06/21 Page 6 of 10 PageID #: 6
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`EXPRESS WARRANTY CLAIMS
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`22.
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`Plaintiff adopts and re-alleges each paragraph set forth above as if fully set forth
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`herein.
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`23. Plaintiff and members of the putative class were provided an express warranty at
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`the time of sale of the iPhone 6. Defendant warranted that the iPhone 6 would be free from defects,
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`meet design specifications, and be suitable for its intended purpose. Moreover, Defendant
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`warranted that it would pay the expenses associated with any product defect and needed repair.
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`The subject iPhone 6 battery requires inspection, replacement, or repair in each iPhone 6, which
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`involves economic loss and which Plaintiff claims should be covered by the express warranties
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`described herein. Any time or usage bases used to deny repair warranty coverage is unreasonable
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`and unconscionable given the latent and hidden nature of the subject defect and is not enforceable
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`upon the members of the putative class.
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`24.
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`Plaintiff, individually and on behalf of the members of the putative class, brings a
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`claim for breach of express warranties pursuant to the Uniform Commercial Code, as adopted in
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`Tex. Bus. & Com. Code § 2.313, et seq. Moreover, Plaintiff brings such claims pursuant to the
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`Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code § 17.50, et seq.
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`25. Plaintiff’s and members of the putative class’ damages alleged herein were
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`proximately caused by the breach of express and implied warranties alleged herein.
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`MAGNUSON-MOSS WARRANTY ACT CLAIMS
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`26. Plaintiff adopts and re-alleges each paragraph set forth above as if fully set forth
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`herein.
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`27. Plaintiff, individually and on behalf of members of the putative class, brings a claim
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`pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. (the “Magnuson-Moss
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`Act” or “Act”) arising from Defendant’s violation of the implied warranty of merchantability
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`arising under Texas law and express warranties. Plaintiff seeks inclusion in any class and to
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`represent those purchasers of the iPhone 6 for the following Magnuson-Moss Warranty Act claims.
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`28.
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`The iPhone 6, along with the included iPhone 6 battery, are “consumer products”
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`within the meaning of the Magnuson-Moss Act. Plaintiff and members of the putative class are
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`“consumers” within the meaning of the Act. Defendant is a “warrantor” or “supplier” within the
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`meaning of the Act.
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`29.
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`The written affirmations of fact or promises made in connection with the sale of the
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`iPhone 6 or the iPhone 6 battery, which relate to the nature of the material or workmanship and
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`affirm or promise that such material or workmanship is defect free or will meet a specified level
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`of performance for the lifetime of the iPhone 6, are “written warranties” within the meaning of the
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`Act.
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`30. The inspection, repair, and replacement of the defective iPhone 6 and the iPhone 6
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`battery is “reasonable and necessary maintenance” under the Act.
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`31.
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`Plaintiff, individually and on behalf of the members of the putative class, claims,
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`pursuant to the Magnuson-Moss Act, the right to a repair or remedy of the defect existing in the
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`battery of the iPhone 6 within a reasonable time. Moreover, any attempt to limit the duration or
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`deny the existence of any implied warranty on the iPhone 6 and the iPhone 6 battery is improper
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`under the Act.
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`32.
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`Plaintiff claims the right to replacement free of charge of the defective iPhone 6
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`and its included battery, on behalf of the members of any putative class in any iPhone 6 pursuant
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`to the Act and warranty claims set forth herein. This would include incidental damages, including
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`in-store inspections and repair services.
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`PLAINTIFF’S ORIGINAL COMPLAINT AND PETITION FOR CLASS CERTIFICATION
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`33. Plaintiff, individually and on behalf of the members of the putative class, claims all
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`remedies available under the Act.
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`DECEPTIVE TRADE PRACTICES ACT CLAIM
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`34. Plaintiff adopts and re-alleges each paragraph set forth above as if fully set forth
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`herein.
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`35. Plaintiff and members of the Texas class are consumers, as defined by the
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`Deceptive Trade Practices Act (“DTPA”), Texas Business and Commerce Code sections 17.41-
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`17.63. Plaintiff sought or acquired goods or services from Defendant, as defined by the DTPA,
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`when he purchased the iPhone 6.
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`36. Defendant can be sued under the DTPA because it is a “person” under the DTPA’s
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`definitions and because it used false, misleading, or deceptive acts or practices as defined by the
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`Act and described previously.
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`37. Plaintiff, individually and as representative of the putative class, also asserts DTPA
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`claims for violations of the express and implied warranties set forth herein.
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`38. Plaintiff and members of the Texas class have suffered economic harm as a result
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`of Defendant’s actions and statutory violations. Plaintiff has suffered actual, incidental, and
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`consequential damages.
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`DAMAGES
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`39. Plaintiff adopts and re-alleges each paragraph set forth above as if fully set forth
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`herein.
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`40. Plaintiff suffered direct financial damages or benefit of the bargain damages by
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`receiving an iPhone 6 and its included defective iPhone 6 battery, which were of a reduced value
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`in comparison to such goods if they had been as warranted and non-defective. All members of the
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`PLAINTIFF’S ORIGINAL COMPLAINT AND PETITION FOR CLASS CERTIFICATION
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`Case 4:21-cv-00354-ALM Document 1 Filed 05/06/21 Page 9 of 10 PageID #: 9
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`class herein suffered the same or similar direct damages. Plaintiff, individually and on behalf of
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`the members of the putative class, seeks these direct economic damages.
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`41.
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`Plaintiff suffered incidental damages as a result of the reasonable expenses incurred
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`to replace the iPhone 6. The members of the class will incur the same or substantially similar
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`economic damages. Plaintiff, individually and on behalf of the members of the putative class, seeks
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`these incidental damages.
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`42. Plaintiff has been required to incur attorney’s fees and court costs to pursue the
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`claims alleged herein and seeks recovery for the same. Plaintiff, individually and on behalf of the
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`putative class, seeks to recover all attorneys’ fees and costs pursuant to Tex. Civ. Prac. & Rem.
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`Code. § 38.001(8), the DTPA, the Magnuson-Moss Act, and Texas law.
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`43. Plaintiff, individually and as representative of the putative class, prays for all
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`damages to which he is entitled under both law and equity herein.
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`CLAIM FOR PREJUDGMENT INTEREST
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`44. Plaintiff seeks prejudgment interest at the maximum legal rate.
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`APPLICATION OF SERVICEMEMBERS CIVIL RELIEF ACT
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`45. Plaintiff adopts and re-alleges each paragraph set forth above as if fully set forth
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`herein.
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`46.
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`It is likely that members of the putative class include active-duty United States
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`military personnel. As such, these individuals are entitled to the protections afforded by the
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`Servicemembers Civil Relief Act, 50 U.S.C. 501 et seq. As such, the running of any applicable
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`statute of limitations would be tolled during periods of active service.
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`JURY DEMAND
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`47. Plaintiff requests that a jury be convened to try the factual issues of this case.
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`PRAYER FOR RELIEF
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`WHEREFORE, PREMISES CONSIDERED, Plaintiff prays this Court certify the
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`requested class and that judgment be entered in Plaintiff’s favor against Defendant on all claims
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`and for all damages alleged herein.
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`Respectfully submitted,
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`/s/ Jeffrey T. Embry
`Jeffrey T. Embry
`State Bar No. 24002052
`Attorney-in-Charge
`Margaret C. Pennell
`State Bar No. 24116893
`HOSSLEY & EMBRY, LLP
`515 S. Vine Ave.
`Tyler, Texas 75702
`Ph. 903-526-1772
`Fax. 903-526-1773
`jeff@hossleyembry.com
`meg@hossleyembry.com
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`AND
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`Matt Montgomery
`State Bar No. 24041509
`HOSSLEY & EMBRY, LLP
`4733 Don Drive
`Dallas, Texas 75247
`Ph. 214-390-2349
`matt@hossleyembry.com
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`ATTORNEYS FOR PLAINTIFF
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`PLAINTIFF’S ORIGINAL COMPLAINT AND PETITION FOR CLASS CERTIFICATION
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`PAGE 10 OF 10
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