throbber
Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.1 Page 1 of 21
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`Robert J. Carlson, WSBA #18455
`LEE & HAYES, P.C.
`701 Pike Street, Ste. 1600
`Seattle, WA 98101
`Phone: (206) 315-4001
`carlson@leehayes.com
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`Sarah E. Elsden, WSBA #51158
`Caleb Hatch, WSBA #51292
`LEE & HAYES, P.C.
`601 W. Riverside Ave. Suite 1400
`Spokane, Washington 99201
`Telephone: (509) 324-9256
`sarah.elsden@leehayes.com
`caleb.hatch@leehayes.com
`
`Attorney for Plaintiffs
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WASHINGTON
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`CASE NO. 2:21-cv-00080
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`COMPLAINT
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`DEMAND FOR JURY TRIAL
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`FOX’S SPOKANE DENTURE
`CLINIC, INC., a Washington
`corporation; MARICONDIA DENTAL,
`PROFESSIONAL CORPORATION
`d/b/a A.Q. DENTURE AND DENTAL
`IMPLANT CENTER, a Nevada
`professional corporation,
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`v.
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`Plaintiffs,
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`NOVEL TECHNOLOGIES, INC. d/b/a
`IVORY DIGITAL DENTURES, a
`Canadian corporation,
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`Defendant.
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`COMPLAINT
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.2 Page 2 of 21
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`Plaintiffs Fox’s Spokane Denture Clinic, Inc. and Maricondia Dental, P.C.
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`d/b/a A.Q. Denture and Implant Center (collectively, “Plaintiffs”), through their
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`attorneys, bring this Complaint against Defendant Novel Technologies, Inc. d/b/a
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`Ivory Digital Dentures (“Defendant”), and allege as follows:
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`NATURE OF THE ACTION
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`1.
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`This is an action for breach of contract under the Uniform Commercial
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`Code; breach of the implied covenant of good faith and fair dealing; unjust
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`enrichment; fraudulent and negligent misrepresentation; violation of
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`the
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`Washington Consumer Protection Act, R.C.W.A. 19.86.020 et seq.; violation of the
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`Nevada Deceptive Trade Practices Act, NRS 598.0903 et seq.; and breach of
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`express warranty and implied warranties of merchantability and for a particular
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`purpose related to the advertisement and sale of defective software related to
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`fabrication of denture products.
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`PARTIES
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`2.
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`Fox’s Spokane Denture Clinic, Inc. (“Fox’s Spokane”) is a Washington
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`corporation in good standing with its principal place of business located in Spokane,
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`Washington.
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`3. Maricondia Dental, Professional Corporation d/b/a A.Q. Denture and
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`Implant Center (“A.Q. Denture”) is a Nevada professional corporation in good
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`standing with its principal place of business located in Henderson, Nevada.
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`4. On information and belief, Defendant Novel Technologies, Inc. d/b/a
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`Ivory Digital Dentures (“Defendant”) is an Ontario business corporation with its
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`COMPLAINT - 1
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.3 Page 3 of 21
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`principal place of business located at 11 Denmark Crescent, Toronto, Ontario,
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`Canada.
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`JURISDICTION AND VENUE
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`5.
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`This Court has diversity jurisdiction under 28 U.S.C. § 1332 because
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`Plaintiffs and Defendant are citizens of different states and foreign states and the
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`amount in controversy exceeds $75,000.
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`6.
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`This Court has personal jurisdiction over Defendant because it
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`contracted with a business within this District and provided services related to that
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`contract in this District, which forms part of the basis of the claims at issue.
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`Defendant advertises and promotes its business in the United States through trade
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`shows and on its website. Defendant has traveled to the United States and marketed,
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`advertised, and sold products to United States consumers, provided professional
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`services in this District, and the effects of Defendant’s unlawful conduct are felt in
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`this District.
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`7.
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`The Court also has personal jurisdiction over Defendant pursuant to
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`Federal Rule of Civil Procedure 4(k)(2) because Defendant is not subject to
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`jurisdiction in any state’s courts of general jurisdiction, and exercising jurisdiction
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`is consistent with the United States Constitution and laws.
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`8. Venue in this District is proper under 28 U.S.C. § 1391(b).
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`FACTUAL ALLEGATIONS
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`9.
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`Fox’s Spokane is a denture clinic located in Spokane, Washington.
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`Fox’s Spokane provides valuable and necessary custom denture products and
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`services to its clients in Washington.
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`COMPLAINT - 2
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`

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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.4 Page 4 of 21
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`10.
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`A.Q. Denture is a denture clinic located in Henderson, Nevada.
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`Similarly, A.Q. Denture provides valuable and necessary custom denture products
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`and services to its clients in Nevada.
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`11.
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`In October 2018, representatives of Fox’s Spokane Denture Clinic and
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`A.Q. Denture and Implant Center separately attended a denture professional trade
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`show in Las Vegas, Nevada as guests.
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`12.
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`Defendant, through its employee representatives and/or owners
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`Sholomo Sharer and Benjamin Sharer, attended the trade show as a vendor exhibitor
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`to market a 3D denture system Defendant referred to as the “Denture System in a
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`Box” (the “Accused Product”).
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`13.
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`Defendant, both orally and in its marketing materials, represented to
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`Plaintiffs that the Accused Product, comprised of software, a 3D printer, resin, and
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`face mapping tool, among other components, could produce full, complete,
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`workable, and superior denture sets in three hours or less, and the entire denture
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`process, from initial visit to denture fitting, would take under a half day to complete.
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`14.
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`Defendant, both orally and in its marketing materials, stated that the
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`resulting complete set of dentures would be completely safe and are as hard as
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`Lucitone 199 resin.
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`15.
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`Defendant, both orally and in its marketing materials, stated that the
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`resin material included in the Accused Product was already approved by the FDA.
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`16.
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`Based on those representations and other representations made in its
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`marketing materials, Defendant enticed Fox’s Spokane and A.Q. Denture to
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`purchase Defendant’s Accused Product at the trade show in Las Vegas, Nevada.
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`COMPLAINT - 3
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`

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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.5 Page 5 of 21
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`17.
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`On October 12, 2018, in reliance on Defendant’s representations,
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`warranties, statements, and promises – which turned out to be false – Fox’s Spokane
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`and A.Q. Denture each entered into separate contracts with Defendant to purchase
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`the Accused Product for $66,000 United States dollars.
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`18.
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`Subsequent to the purchases of the Accused Product, Defendant’s
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`representatives, including Benjamin Sharer, Elias Barroeta, Jessica Mazzaferro,
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`and/or Erissa Sliwinski, traveled to Plaintiffs’ respective business locations in
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`Spokane, Washington and Henderson, Nevada to install the Accused Product and to
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`provide hands-on training.
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`19.
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`Despite its promises and representations, Defendant did not produce a
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`full set of dentures at Fox’s Spokane or at A.Q. Denture during the on-site training
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`sessions.
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`20.
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`Fox’s Spokane and A.Q. Denture have not been able to manufacture a
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`single complete set of properly fitted dentures fit for consumer use, rendering the
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`Accused Product worthless.
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`21.
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`The Accused Product does not function as advertised and the virtual
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`try-on feature does not work.
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`The Accused Product does not create precise bases or correctly set teeth
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`and the face scan function does not match the face tracking function.
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`Defendant represented that printed denture bases would have a smooth
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`exterior finish and eliminate the need for a denture technician, but that
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`representation also turned out to be false. Instead, the denture bases require hand
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`finishing and an increase in overall denturist time and cost.
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`COMPLAINT - 4
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`

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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.6 Page 6 of 21
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`24.
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`The Accused Product does not function to create a finished denture set
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`that can be delivered to the patient in under one half day, contrary to the advertised
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`representations of Defendant, and cannot manufacture a complete set of properly
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`fitted dentures, let alone in under three hours, as Defendant claimed and advertised.
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`25.
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`The Accused Product does not produce denture sets that equal the
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`strength of Lucitone 199. Instead, the produced material is prone to shattering such
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`that it endangers a user.
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`26.
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`Despite Defendant’s express representation that the resin used with the
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`Accused Product was approved for use by the FDA in the United States, Plaintiffs
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`have since learned Defendant has not obtained a single FDA approval for the
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`Accused Product or “all included materials,” as advertised.
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`27.
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`Plaintiffs have been unable to utilize the Accused Product due, in part,
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`to the defective material used to build the denture products, the grave safety
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`concerns, and the dysfunctionality of the Accused Product overall.
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`28.
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`Defendant provided Plaintiffs with a defective product that cannot
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`perform or be operated as represented and presents a significant safety concern to
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`Washington and Nevada consumers.
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`29.
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`30.
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`The Accused Product wholly fails to meet its essential purpose.
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`Defendant provided advertising materials and other information that
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`contains, among other things, materially false and deceptive representations about
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`the efficacy of the Accused Product, the length of time necessary for the Accused
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`Product to be operational, safety guarantees, and FDA and other governmental
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`regulatory approval misrepresentations.
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`COMPLAINT - 5
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
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`

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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.7 Page 7 of 21
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`31.
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`The cost of the Accused Products, and the interest accrued to finance
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`the purchases, has resulted in a monetary damage to Fox’s Spokane in the amount
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`of not less than $77,000 and a monetary damage to A.Q. Denture in the amount of
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`not less than $79,444.20, plus lost profits and other damages.
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`COUNT I
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`Breach of Contract
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`32.
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`Plaintiffs reallege each and every allegation contained in paragraphs 1-
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`31 as if fully set forth herein.
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`33.
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`Plaintiff Fox’s Spokane and Defendant entered into a valid, binding
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`contract (the “Fox Agreement”) for the Accused Product.
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`Plaintiff A.Q. Denture and Defendant entered into a valid, binding
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`contract (the “A.Q. Agreement”) for the Accused Product.
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`Defendant is legally obligated and contractually bound to provide the
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`promised product and software as advertised to produce a full, complete, workable,
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`and superior set of dentures for Plaintiffs’ respective clients in three hours or less
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`along with all promised product capabilities.
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`Defendant breached the contract by, among other things, failing to fully
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`perform and provide software with the promised capabilities and services as
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`required by the Agreement.
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`Defendant warrantied, both orally and in its marketing materials, that
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`the Accused Product would produce a full, complete, workable, and superior set of
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`dentures in three hours or less; the resulting complete set of dentures would be
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`COMPLAINT - 6
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.8 Page 8 of 21
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`completely safe and as hard as Lucitone 199; and that the Accused Product and
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`components thereof have been approved by the FDA.
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`38.
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`Defendant knew at the time of contracting the particular purpose for
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`which the goods were required, and that Plaintiffs relied on Defendant’s skill or
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`judgment to select or furnish suitable goods.
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`39.
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`Plaintiffs have each performed as required under the Agreements by
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`paying to Defendant the agreed upon purchase price.
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`40.
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`As a direct and proximate result of Defendant’s breach of the
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`Agreements and warranties, Fox’s Spokane and A.Q. Dental have been damaged in
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`an amount to be determined at trial, but not less than $77,000 and $79,444.20,
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`respectively.
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`Breach of the Implied Covenant of Good Faith and Fair Dealing
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`COUNT II
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`41.
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`Plaintiffs reallege each and every allegation contained in paragraphs 1
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`through 40 as if fully set forth herein.
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`42.
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`43.
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`44.
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`Plaintiffs each entered into a contractual relationship with Defendant.
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`Defendant owned a duty of good faith to each Plaintiff.
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`Defendant breached the implied covenant of good faith and fair dealing
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`by performing in a manner that was unfaithful to and in contravention of the purpose
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`of the Agreements.
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`45.
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`Plaintiffs’ reasonable expectations under the Agreements, in reliance
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`on Defendant’s material misrepresentations, were not met as a result of Defendant’s
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`breach of good faith inherent in the Agreements.
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`COMPLAINT - 7
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
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`

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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.9 Page 9 of 21
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`46.
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`As a direct and proximate result of Defendant’s breach of the implied
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`covenant of good faith and failing dealing, Fox’s Spokane and A.Q. Dental have
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`been damaged in an amount to be determined at trial, but not less than $77,000 and
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`$79,444.20, respectively.
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`COUNT III
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`Unjust Enrichment
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`47.
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`Plaintiffs reallege each and every allegation contained in paragraphs 1
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`through 46 as if fully set forth herein.
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`48.
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`Defendant has been enriched by receiving the benefit of the money each
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`Plaintiff paid pursuant to the Agreement and by failing to perform as promised.
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`49.
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`Defendant unjustly retained the money of each Plaintiff, contrary to
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`fundamental principles of justice or equity and good conscience.
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`51.
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`Defendant has therefore been unjustly enriched to Plaintiffs’ detriment.
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`Defendant’s actions have directly and proximately caused Fox’s
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`Spokane and A.Q. Dental to be damaged in an amount to be determined at trial, but
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`not less than $77,000 and $79,444.20, respectively.
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`52.
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`As a result of Defendant’s actions, it has become necessary for
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`Plaintiffs to retain the services of counsel to prosecute these claims and they are
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`entitled to any and all costs incurred herein including, but not limited to, any and all
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`attorneys’ fees.
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`COMPLAINT - 8
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
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`

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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.10 Page 10 of 21
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`COUNT IV
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`Fraudulent Misrepresentation
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`53.
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`Plaintiffs reallege each and every allegation contained in paragraphs 1
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`through 52 as if fully set forth herein.
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`54.
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`Defendant made fraudulent representations, both orally and in its
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`marketing materials, that the Accused Product would produce a full, complete,
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`workable, and superior set of dentures for Plaintiffs’ clients in three hours or less;
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`that the resulting complete set of dentures are completely safe and as hard as
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`Lucitone 199; and that the Accused Product and all components thereof have been
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`approved by the FDA.
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`55.
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`Defendant’s statements and representations turned out to be false and
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`material. The Accused Product failed to function or perform as represented by
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`Defendant and Defendant failed to service the software as promised.
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`56.
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`Defendant knew or should have known that its representations were
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`false at the time the statements were made, or Defendant failed to exercise
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`reasonable care or competence in communicating those statements to Plaintiffs.’
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`57.
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`Defendant and its agents made those statements to Plaintiffs to guide
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`Plaintiffs in making their respective Agreements with Defendant and so that
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`Plaintiffs would rely and act on the materially false representations.
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`58.
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`Plaintiffs had the right to and did justifiably rely on Defendant’s false
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`statements and representations to Plaintiffs’ detriment.
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`59.
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`Defendant’s wrongful conduct was the proximate cause of Plaintiffs’
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`respective damages.
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`COMPLAINT - 9
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`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`

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`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.11 Page 11 of 21
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`60.
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`As a direct and proximate result of Defendant’s fraudulent
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`misrepresentations, Plaintiffs have been damaged in an amount to be determined at
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`trial, but in any event not less than $77,000 and $79,444.20 respectively, plus
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`attorneys’ fees and costs.
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`COUNT V
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`Negligent Misrepresentation
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`61.
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`Plaintiffs reallege each and every allegation contained in paragraphs 1
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`through 60 as if fully set forth herein.
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`62.
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`Defendant misrepresented, both orally and in the marketing materials,
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`that the Accused Product would produce a full, complete, workable, and superior
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`set of dentures for their clients in three hours or less; that the resulting complete set
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`of dentures are completely safe and are as hard as Lucitone 199; and that the
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`Accused Product and all components thereof have been approved by the FDA.
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`63.
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`Defendant had a duty to avoid negligent misrepresentation when it
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`made those false and material statements and representations to induce Plaintiffs to
`
`enter into the Agreements to purchase the defective Accused Products.
`
`64.
`
`Defendant acted negligently and with reckless disregard to the truth in
`
`its representations and statements of fact.
`
`65.
`
`Defendant intended Plaintiffs to rely and act upon the materially false
`
`representations and statements of fact.
`
`66.
`
`Plaintiffs had the right to and did justifiably rely on Defendant’s
`
`misrepresentations, and false assertions of fact to Plaintiffs’ detriment.
`
`COMPLAINT - 10
`
`
`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`25
`
`26
`
`

`

`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.12 Page 12 of 21
`
`
`
`1
`
`67.
`
`Defendant’s wrongful conduct was the proximate cause of Plaintiffs’
`
`2
`
`respective damages.
`
`3
`
`68.
`
`As a direct and proximate result of Defendant’s misrepresentations,
`
`4
`
`Plaintiffs have been damaged in an amount to be determined at trial, but in any event
`
`5
`
`not less than $77,000 and $79,444.20 respectively, plus attorneys’ fees and costs.
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`COUNT VI
`
`Washington Consumer Protection Act (R.C.W.A. § 19.86.020 et seq.)
`
`69.
`
`Plaintiffs reallege each and every allegation contained in paragraphs 1
`
`through 68 as if fully set forth herein
`
`70.
`
`Defendant has engaged in unfair and deceptive practices within the
`
`meaning of the Washington Consumer Protection Act, R.C.W. § 19.86.020 et seq.
`
`by falsely advertising, marketing, offering, representing, and selling the Accused
`
`13
`
`Product.
`
`71.
`
`Among other deceptive acts and practices, Defendant falsely promoted
`
`the Accused Product as being able to produce a full set of dentures in under three
`
`hours, misrepresented the safety of the Accused Product, misrepresented
`
`governmental approval related to the Accused Product, and misrepresented the use
`
`of the Accused Product at denture clinics in the United States, despite that the
`
`product is defective and unusable.
`
`72.
`
`Defendant’s unlawful actions occurred in trade or commerce, and affect
`
`the public interest because they have led members of the public to believe the
`
`Accused Product is safe, effective, approved by governmental agencies, and in use
`
`in the United States when these representations are patently false.
`
`COMPLAINT - 11
`
`
`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`25
`
`26
`
`

`

`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.13 Page 13 of 21
`
`
`
`1
`
`73.
`
`Defendant’s unlawful actions also affect the public interest because by
`
`2
`
`using and promoting these false representations, Defendant is wrongfully enticing
`
`3
`
`consumers to attempt to use dangerous and ineffective products.
`
`4
`
`74.
`
`Defendant’s unlawful actions also affect the public interest by causing
`
`5
`
`a misunderstanding as to the use of the Accused Product in the United States and a
`
`6
`
`misunderstanding as to the affiliation, connection, or association of Defendant with
`
`7
`
`Plaintiffs.
`
`8
`
`75.
`
`Defendant’s unlawful conduct has caused and is likely to continue to
`
`9
`
`cause substantial injury to professional denture services, the public, the trade, and
`
`10
`
`to Plaintiffs. Defendant’s conduct was and is conducted in trade and commerce and
`
`11
`
`has the potential for repetition.
`
`12
`
`76.
`
`Defendant’s unlawful conduct has irreparably damaged Plaintiffs in
`
`13
`
`their business and property and will continue to damage Plaintiffs and the public
`
`14
`
`unless restrained by this Court. Plaintiffs are without an adequate remedy at law.
`
`15
`
`77.
`
`Pursuant to R.C.W § 19.86.090, Plaintiffs are entitled to, among other
`
`16
`
`things, an order permanently enjoining and restraining Defendant from continuing
`
`17
`
`their advertising, manufacturing, promoting, and/or selling the Accused Product.
`
`18
`
`78.
`
`Defendant’s unlawful conduct has directly and proximately caused
`
`19
`
`Plaintiffs to suffer damages in an amount to be determined at trial, but in any event
`
`20
`
`not less than $77,000 and $79,444.20 respectively, plus attorneys’ fees and costs
`
`21
`
`pursuant to R.C.W. § 19.86.090.
`
`
`
`
`
`COMPLAINT - 12
`
`
`22
`
`23
`
`
`
`25
`
`26
`
`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`

`

`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.14 Page 14 of 21
`
`
`
`COUNT VII
`
`Nevada Deceptive Trade Practices Act (NRS 598.0903 et seq.)
`
`79.
`
`Plaintiffs reallege each and every allegation contained in paragraphs 1
`
`through 78 as if fully set forth herein
`
`80.
`
`Defendant has engaged in unfair and deceptive practices within the
`
`meaning of the Nevada Deceptive Trade Practices Act, NRS 598.0903 et seq. by
`
`falsely advertising, marketing, offering, representing, and selling the Accused
`
`Product.
`
`81.
`
`Upon information and belief, Defendant has knowingly made false
`
`representations as to the approval or certification of the Accused Product by the
`
`FDA and other regulatory agencies in violation of NRS 598.0903(2).
`
`82.
`
`Defendant has made false representations as to the affiliation,
`
`connection, or association of Defendant with Plaintiffs and misrepresentations as to
`
`the use of the Accused Product at denture clinics in the United States in violation of
`
`NRS 598.0903(3) and (4).
`
`83.
`
`Upon information and belief, Defendant has made false representations
`
`regarding the efficacy of the Accused Product, the strength of the resulting dentures,
`
`and the quality and approval of the resin and Accused Product as a whole in violation
`
`of NRS 598.0903(5) and (7).
`
`84.
`
`Defendant’s false statements regarding the efficacy, safety, quality, and
`
`approval of the Accused Product and resulting products also violate NRS
`
`598.0903(9) and (15).
`
`COMPLAINT - 13
`
`
`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`25
`
`26
`
`

`

`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.15 Page 15 of 21
`
`
`
`1
`
`85.
`
`Among other deceptive practices, Defendant falsely promoted the
`
`2
`
`Accused Product as being able to produce a full set of dentures in under three hours,
`
`3
`
`misrepresented the safety of the Accused Product, misrepresented governmental
`
`4
`
`approval related to the Accused Product, and misrepresented the use of the Accused
`
`5
`
`Product at denture clinics in the United States, despite that the product is defective
`
`6
`
`and unusable.
`
`7
`
`86.
`
`Defendant’s unlawful actions have led members of the public to believe
`
`8
`
`the Accused Product is safe, effective, approved by governmental agencies, and in
`
`9
`
`use in the United States when these representations are false. By using and making
`
`10
`
`these false representations, Defendant is enticing consumers to attempt to use
`
`11
`
`dangerous and ineffective products.
`
`12
`
`87.
`
`Upon information and belief, Defendant’s false and deceptive
`
`13
`
`representations were made knowingly, or were made with reckless disregard for the
`
`14
`
`truth of the matters communicated, or Defendant acted negligently in failing to
`
`15
`
`ascertain the truth of the matters communicated.
`
`16
`
`88.
`
`Defendant’s unlawful conduct is causing and likely to cause substantial
`
`17
`
`injury to professional denture services, the public, the trade, and to Plaintiffs, was
`
`18
`
`and is conducted in trade and commerce, and has the potential for repetition.
`
`19
`
`89.
`
`Defendant’s unlawful conduct has irreparably damaged Plaintiffs in
`
`20
`
`their business and property and will continue to damage Plaintiffs and the public
`
`21
`
`unless restrained by this Court. Plaintiffs are without an adequate remedy at law.
`
`22
`
`Pursuant to NRS 598.0979, Plaintiffs are entitled to, among other things, an order
`
`23
`
`
`
`25
`
`26
`
`COMPLAINT - 14
`
`
`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`

`

`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.16 Page 16 of 21
`
`
`
`1
`
`permanently enjoining and restraining Defendant from continuing their advertising,
`
`2
`
`manufacturing, promoting, and/or selling the Accused Product.
`
`3
`
`90.
`
`Defendant’s unlawful conduct has directly and proximately caused
`
`4
`
`Plaintiffs to suffer damages in an amount to be determined at trial, but in any event
`
`5
`
`not less than $77,000 and $79,444.20 respectively, plus attorneys’ fees and costs,
`
`6
`
`treble damages, and punitive damages pursuant to NRS 598.777, NRS 598.920, and
`
`7
`
`NRS 598.0999.
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`COUNT VIII
`
`Breach of Express Warranty
`
`91.
`
`Plaintiffs reallege each and every allegation contained in paragraphs 1
`
`through 90 as if fully set forth herein.
`
`92.
`
`Defendant entered into the Agreements with Plaintiffs for the sale of
`
`goods, software, and services.
`
`93.
`
`Defendant made an affirmation to Plaintiffs about the ease of use,
`
`functionality, and performance of the Accused Product.
`
`94.
`
`Defendants made statements, both orally and in writing, about the
`
`promised functionality and performance of the Accused Product that it would
`
`function as promised.
`
`95.
`
`These affirmations and descriptions of
`
`the functionality and
`
`performance of the Accused Product became part of the basis of the bargain between
`
`21
`
`the parties.
`
`22
`
`23
`
`
`
`25
`
`26
`
`COMPLAINT - 15
`
`
`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`

`

`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.17 Page 17 of 21
`
`
`
`1
`
`96.
`
`The Accused Product did not conform to Defendant’s affirmations and
`
`2
`
`descriptions about the promised functionality and performance of the Accused
`
`3
`
`Product.
`
`4
`
`97.
`
`The warranty was not excluded or modified by NRS 104.2316 or
`
`5
`
`R.C.W.A. 62A.2-316.
`
`6
`
`98.
`
`As a result of Defendant’s actions, Plaintiffs have been damaged and
`
`7
`
`require relief in an amount to be determined at trial, but in any event not less than
`
`8
`
`$77,000 and $79,444.20 respectively, plus attorneys’ fees and costs and other
`
`9
`
`damages as provided by law.
`
`COUNT IX
`
`Breach of Implied Warranty of Merchantability
`
`99.
`
`Plaintiffs reallege each and every allegation contained in paragraphs 1
`
`through 98 as if fully set forth herein.
`
`100.
`
`Plaintiff Fox’s Spokane and Defendant entered into a valid, binding
`
`contract for the Accused Product and Plaintiff A.Q. Denture and Defendant entered
`
`into a valid, binding contract for the Accused Product (collectively, the
`
`“Agreements”).
`
`101. Defendant is a merchant with respect to good of that kind.
`
`102. Defendant is legally obligated and contractually bound to provide the
`
`promised product and software as advertised to produce a full, complete, workable,
`
`and superior set of dentures for Plaintiffs’ respective clients in three hours or less
`
`along with all promised product capabilities.
`
`103. Defendant tendered good to Plaintiffs that were not fit for ordinary use.
`
`COMPLAINT - 16
`
`
`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`25
`
`26
`
`

`

`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.18 Page 18 of 21
`
`
`
`1
`
`104. Defendant warrantied, both orally and in its marketing materials, that
`
`2
`
`the Accused Product would produce a full, complete, workable, and superior set of
`
`3
`
`dentures in three hours or less; the resulting complete set of dentures would be
`
`4
`
`completely safe and as hard as Lucitone 199; and that the Accused Product and
`
`5
`
`components thereof have been approved by the FDA.
`
`6
`
`105. Defendant knew at the time of contracting the particular purpose for
`
`7
`
`which the goods were required, and that Plaintiffs relied on Defendant’s skill or
`
`8
`
`judgment to select or furnish suitable goods.
`
`9
`
`106.
`
`Plaintiffs have each performed as required under the Agreements by
`
`10
`
`paying to Defendant the agreed upon purchase price.
`
`11
`
`12
`
`107. Defendant breached the implied warranty of merchantability.
`
`108.
`
`The warranty was not excluded or modified by NRS 104.2316 or
`
`13
`
`R.C.W.A. 62A.2-316.
`
`14
`
`109. As a result of Defendant’s actions, Plaintiffs have been damaged and
`
`15
`
`require relief in an amount to be determined at trial, but in any event not less than
`
`16
`
`$77,000 and $79,444.20 respectively, plus attorneys’ fees and costs and other
`
`17
`
`damages as provided by law.
`
`COUNT X
`
`Breach of Implied Warranty for a Particular Purpose
`
`110.
`
`Plaintiffs reallege each and every allegation contained in paragraphs 1
`
`through 109 as if fully set forth herein.
`
`111.
`
`Plaintiff Fox’s Spokane and Defendant entered into a valid, binding
`
`contract for the Accused Product.
`
`COMPLAINT - 17
`
`
`LEE & HAYES, P.C.
`601 W. Riverside Avenue, Suite 1400
`Spokane, Washington 99201
`P: (509) 324-9256 Fax: (509) 323-8979
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`
`
`25
`
`26
`
`

`

`Case 2:21-cv-00080-SAB ECF No. 1 filed 02/04/21 PageID.19 Page 19 of 21
`
`
`
`1
`
`112.
`
`Plaintiff A.Q. Denture and Defendant entered into a valid, binding
`
`2
`
`contract for the Accused P

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