Paul Demetry v. Lasko Products, Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1073
PAUL DEMETRY,
Plaintiff - Appellant,
v.
LASKO PRODUCTS, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Roger W. Titus, District Judge.
(8:07-cv-00477-RWT)
Submitted: June 9, 2008 Decided: July 7, 2008
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael J. Miller, David J. Dickens, THE MILLER FIRM, LLC, Orange,
Virginia, for Appellant. Cheryl A. Possenti, Neil A. Goldberg,
GOLDBERG SEGALLA, LLP, Buffalo, New York; Robert E. Scott, Jr.,
Marisa A. Trasatti, SEMMES, BOWEN & SEMMES, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Paul Demetry appeals the district court’s order
dismissing his class action complaint against Lasko Products, Inc.
(“Lasko”), pursuant to Fed. R. Civ. P. 12(c). Demetry alleged that
Lasko engaged in unfair and deceptive acts and practices, in
violation of the Maryland Consumer Protection Act (“MCPA”), Md.
Code Ann., Com. Law § 13-301 (Michie 2005 & Supp. 2007), and was
unjustly enriched by selling fans with a known design defect that
has caused fires due to an electrical failure in the fans’ motors.
Lasko manufactured the defective fans from 1999 to 2001
and sold them until February 2004. In February 2006, following
numerous reports of fires caused by motor failures in the fans,
Lasko issued a voluntary recall notice in cooperation with the
United States Consumer Protection Commission (“CPSC”). Demetry
attached CPSC’s announcement of the voluntary recall as an exhibit
to his complaint. The recall notice advised consumers to
immediately stop using the identified Lasko fan models and contact
Lasko to receive a free power cord adaptor that would protect
against fires. Demetry alleged that he purchased and installed
Lasko fans with the known design defect as part of his business, he
would not have purchased them if he had been aware of the defect,
he did not receive adequate notice of the recall, and that the cord
adaptor was not an adequate remedy for the defective fans. Demetry
did not allege that he availed himself of the free cord adaptors

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offered by the recall or that any of the fans he purchased caught
on fire or otherwise malfunctioned as a result of the design
defect.
The district court granted Lasko’s motion to dismiss as
to all of Demetry’s claims because he did not sufficiently allege
what damages he suffered. Demetry noted a timely appeal.
Demetry initially argues that the district court erred in
considering facts outside the scope of his complaint when it ruled
on Lasko’s motion for judgment on the pleadings without converting
the motion to a motion for summary judgment. Specifically, Demetry
contends that the district court improperly considered the
voluntary recall of the defective fans that Lasko negotiated with
CPSC because the fact of the recall constitutes an affirmative
defense and the facts necessary to the defense were not clearly
established on the face of Demetry’s complaint.
We review a dismissal under Rule 12(c) de novo, applying
the standard used to assess a Rule 12(b)(6) dismissal. Burbach
Broadcasting Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th
Cir. 2002). To survive a Rule 12(b)(6) motion, a complaint’s
“[f]actual allegations must be enough to raise a right to relief
above the speculative level” and have “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1965, 1974 (2007). Generally, when
ruling on a Rule 12(b)(6) motion, “a judge must accept as true all

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of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. __, 127 S. Ct. 2197, 2200 (2007)
(citations omitted). However, the court is not required “to accept
as true allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences” or “allegations
that contradict matters properly subject to judicial notice or by
exhibit.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)
(citation and internal quotes omitted).
A district court may reach the merits of an affirmative
defense when ruling on a motion to dismiss “if all facts necessary
to the affirmative defense clearly appear on the face of the
complaint.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.
2007). “A copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes.” Fed. R. Civ.
P. 10(c). Therefore, the district court properly considered
Lasko’s voluntary recall notice attached to Demetry’s complaint in
ruling on Lasko’s Rule 12(c) motion. The recall notice was part of
Demetry’s complaint for all purposes, and established that Lasko
voluntarily offered to provide consumers with power cord adaptors
to prevent the defective fans from causing fires, a fact necessary
to establish Lasko’s affirmative defense.
Demetry also challenges the district court’s dismissal of
his claims under the MCPA, and for unjust enrichment and common law
fraud. We have reviewed the record included on appeal, as well as

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the parties’ briefs, and find no error in the district court’s
ruling. Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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