Peck Garrido v. XGIMI Technology Incorporated

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
N o 24-CV-04290 (RER) (CLP)
_____________________
LUIZ C. PECK GARRIDO
VERSUS
XGIMI T ECHNOLOGY INCORPORATED
___________________
MEMORANDUM & ORDER
___________________
RAMÓN E. REYES, JR., District Judge:
This is a purported class action on behalf of consumers who purchased
defendant’s home projectors and other similar devices. Plaintiff claims
defendant advertised these products on its website and elsewhere with
intentionally inflated brightness ratings to deceive consumers and induce
them to purchase these products at a premium. Defendant has moved to
dismiss the amended complaint for failure to state a claim, lack of subject
matter jurisdiction, and lack of personal jurisdiction. After carefully reviewing
the record, and for the reasons set forth herein, the motion to dismiss is
granted in part and denied in part.
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BACKGROUND1
I. 	Factual Background
In November 2022, plaintiff Luiz C. Peck Garrido (“Plaintiff” or “Peck
Garrido”), a resident of Long Island, New York, purchased an Xgimi Horizon
Pro 4K home theater projector directly from the website of defendant Xgimi
Technology Incorporated (“Defendant” or “Xgimi”) for $1,275. (ECF No. 15
(“Am. Compl.”) ¶ 15). In September 2023, Xgimi reached a settlement with
its competitor Epson (“Epson Settlement”), requiring Xgimi to reduce the
advertised brightness rating for the Horizon 4K Pro. (Id.) Simultaneously with
the lowered brightness rating, Xgimi switched its measurement standard
from ANSI lumens to ISO lumens, which resulted in the Horizon Pro 4K’s
rated brightness changing from 2,200 ANSI lumens to 1,500 ISO lumens.
(Id.) In or about October 2023, Plaintiff contacted Defendant’s customer
service to complain about the lowered brightness rating. (Id. ¶ 16). On or
about October 21, 2023, Xgimi customer service responded that despite the
switch in standards, the performance of the device was unaffected. (Id. ¶ 18).
Peck Garrido responded on October 24, 2023, explaining that “it was not the
performance 	of 	the 	[projector] 	that 	was 	the 	issue, 	but 	rather 	the
1 The Court acknowledges and offers its gratitude to Daniel Ruderman, who served as a judicial intern
during his third year at St. John’s School of Law, for his assistance in researching and drafting this
memorandum and order.
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representation made by Defendant that induced him to buy [the projector] in
the first place, namely its brightness rating.” (Id.) Plaintiff explained to
Defendant’s customer service that 2,200 ANSI lumens should convert to
1,760 ISO lumens, and thus the new 1,500 ISO lumens rating indicates that
the old 2,200 ANSI lumens rating was inflated. (Id.) However, Defendant
refused to refund or replace the projector because the 30-day return window
had expired. (Id. ¶ 20).
On 	November 4, 2023, 	Peck 	Garrido 	proposed that 	he 	pay 	the
difference between the cost of the Horizon Pro 4K and the Horizon Ultra,
which has the brightness rating that the Horizon 4K purportedly had at the
time of Plaintiff’s purchase. (Id. 	¶ 21). Defendant did not reply to this
proposal. (Id.) Peck Garrido retained an expert, an adjunct professor in
mechanical engineering at California Polytechnic State University, to test
three of the four putative class devices. Plaintiff’s expert alleges that the
brightness levels of these devices were between 20 and 25 percent lower
than initially advertised. (Id. ¶¶ 6, 39). However, Peck Garrido could not find
the Halo model for testing as it had been discontinued. (Id. ¶¶ 6, 40).
II. 	Procedural History
On June 18, 2024, Plaintiff filed a Rule 23 class action complaint on
behalf of himself and all others similarly situated. (ECF No. 1). He amended
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the complaint on November 21, 2024, adding sections on expert witness
testing of three Xgimi projectors and detailing the Epson Settlement. (ECF
No. 15, Am. Compl. ¶¶ 39–46, 30–38). Peck Garrido alleges Defendant
purposefully deceived consumers by inflating the brightness figures of its
home projectors to gain traction in the United States market, including but
not limited to the (1) Horizon Pro 4k, (2) Horizon 1080P, (3) Elfin, and (4)
Halo models. (Id. ¶¶ 1–2, 4). Plaintiff asserts jurisdiction under the Class
Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2)). (Id. ¶ 12). Peck
Garrido claims that independent testing by Epson, a market leader in home
projectors, and feedback from customers reflect that Defendant knew that its
projectors output was significantly below the advertised brightness. (Id.
¶¶ 55–59, 81). Plaintiff raises eight claims against Defendant on behalf of a
nationwide class and New York subclass consisting of all persons who
purchased a Xgimi Projector prior to September 18, 2023: (1) Deceit and
Fraudulent Concealment (Count I), (2) Common Law Fraud via Affirmative
Misrepresentation (Count II), (3) Breach of Express Warranty (Count III), (4)
Breach of the Implied Warranty of Merchantability (Count IV), (5) Breach of
the Implied Warranty of Fitness for a Particular Purpose (Count V), (6)
violations of the Magnusson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.
(“MMWA”) (Count VI), and (7) Unfair and Deceptive Trade Practices in
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Violation of N.Y. Gen. Bus. Law § 349, et seq. (“NYGBL”) (on behalf of
Plaintiff and New York subclass only) (Count VII), and (8) unjust enrichment
(Count VIII). (Am. Compl. ¶¶ 61–176).
On January 9, 2025, Defendant moved to dismiss the amended
complaint pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of
Civil Procedure (ECF No. 19-1 (“Def.’s Mem.”)). Defendant argues: (1) Peck
Garrido’s 	fraud 	claims 	fail 	for 	lack 	of 	pleading 	reliance, 	specific 	false
statements, or fraudulent intent (Id. at 13–16); (2) Peck Garrido failed to
plead causation between alleged misrepresentations and his injury under
NYGBL § 349 (Id. at 16–17); (3) Peck Garrido has no valid claim regarding
the Halo model since he did not purchase and test one (Id. at 18–19); (4)
Peck Garrido’s breach of express warranty claims fail because he did not
provide timely, individualized notice (Id. at 19–20); (5) Peck Garrido’s implied
warranty of merchantability and fitness for a particular purpose claims fail
because he did not provide timely notice and alleged that “performance was
not the issue” (Id. at 20–21); (6) Peck Garrido’s MMWA claims fail because
his state law claims fail (Id. at 22–24); (7) Peck Garrido’s unjust enrichment
claim 	is 	impermissibly 	duplicative 	(Id. 	at 	24–25); 	(8) 	the 	court 	lacks
jurisdiction over out-of-state nationwide class members, and specific or
general jurisdiction over Defendant (Id. at 26–30); (9) Peck Garrido lacks
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standing to assert claims for products he did not purchase (Id. at 30–31); and
(10) Peck Garrido lacks standing for injunctive relief (Id. at 32–33). Plaintiff
opposed ((ECF No. 19-2 (“Opp’n”)), and Defendant replied (ECF No. 19-4
(“Reply”)).
LEGAL STANDARD
I. 	Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction
under 	Rule 	12(b)(1) 	when 	the 	district 	court 	lacks 	the 	statutory 	or
constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). The party asserting subject matter jurisdiction must
establish 	by 	a 	preponderance 	of 	the 	evidence 	that 	jurisdiction 	exists.
Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). In
evaluating a Rule 12(b)(1) motion to dismiss, a district judge must “accept[ ]
all material factual allegations in the complaint as true,” but should “refrain
from drawing inferences in favor of the party asserting subject matter
jurisdiction.” Gonzalez v. Inn on the Hudson LLC, 20-CV-9196 (ER), 2022
WL 974384, at * 2 (S.D.N.Y. Mar. 30, 2022) (citation omitted).
II. 	Rule 12(b)(2)
When a defendant moves to dismiss for lack of personal jurisdiction
pursuant to Federal Rules of Civil Procedure 12(b)(2), the plaintiff bears the
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burden of establishing jurisdiction. In re Magnetic Audiotape Antitrust Litig.,
334 F.3d 204, 206 (2d Cir. 2003). “Prior to discovery, a plaintiff may defeat
a motion to dismiss based on legally sufficient allegations of jurisdiction.” Id.;
see also Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996)
(“[U]ntil discovery takes place, a plaintiff is required only to make a prima
facie showing by pleadings and affidavits that jurisdiction exists.”); Troma
Entm't, Inc. v. Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013) (“[A]
complaint will survive a motion to dismiss for want of personal jurisdiction so
long as its allegations, taken as true, are legally sufficient allegations of
jurisdiction.”) (citations and quotation marks omitted). The Court “constru[es]
all pleadings and affidavits in the light most favorable to the plaintiff and
resolv[es] all doubts in the plaintiff's favor.” Penguin Grp. (USA) Inc. v. Am.
Buddha, 609 F.3d 30, 34 (2d Cir. 2010).
III. 	Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move
to dismiss a complaint based on “failure to state a claim upon which relief
can be granted.” To avoid dismissal on that basis, a complaint must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (discussing Fed. R. Civ. P. 8). In
evaluating a motion to dismiss under Rule 12(b)(6), the court must accept all
facts alleged in the complaint as true. Id. But it need not adopt “[t]hreadbare
recitals of the elements of a cause of action” that are “supported by mere
conclusory statements.” Id.
DISCUSSION2
I. 	Plaintiff Adequately Alleges Fraud (Counts I and II)
Under New York law, to adequately state a common law fraud claim a
plaintiff must allege: “(1) a material misrepresentation or omission of a fact,
(2) knowledge of that fact's falsity, (3) an intent to induce reliance, (4)
justifiable reliance by the plaintiff, and (5) damages.” Loreley Fin. (Jersey)
No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160, 170 (2d Cir. 2015) (citing
Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883
N.Y.S.2d 147, 910 N.E.2d 976 (2009)). Although Federal Rule of Civil
Procedure 9(b) contains a heightened particularity standard for pleading
fraud claims, that standard is relaxed for fraudulent intent: “Malice, intent,
2 The Court will address Defendant’s arguments for dismissal in the order in which they appear in
Defendant’s memorandum of law. The Court notes, however, that Plaintiff has withdrawn his claim under
the Magnusson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. (“MMWA”) (Count VI). (Opp’n at 10 n.2).
Therefore, the Court will not address Defendant’s objections to that claim. Plaintiff’s MMWA claims are
dismissed.
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knowledge, 	and 	other 	conditions 	of 	a 	person's 	mind 	may 	be 	alleged
generally.” Fed. R. Civ. P. 9(b). The Second Circuit has cautioned, however,
that because “we must not mistake the relaxation of Rule 9(b)'s specificity
requirement regarding condition of mind for a license to base claims of fraud
on speculation and conclusory allegations[] ... plaintiffs must allege facts that
give rise to a strong inference of fraudulent intent.” Acito v. IMCERA Grp., 47
F.3d 47, 52 (2d Cir. 1995) (emphasis added)); see also Nakahata v. New
York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 197–98 (2d Cir.
2013). “The requisite ‘strong inference’ of fraud may be established either (a)
by alleging facts to show that defendants had both motive and opportunity to
commit fraud, or (b) by alleging facts that constitute strong circumstantial
evidence of conscious misbehavior or recklessness.” Shields v. Citytrust
Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994); see also Chill v. Gen. Elec.
Co., 101 F.3d 263, 267 (2d Cir. 1996). Here, Defendant argues that Plaintiff’s
fraud claims should be dismissed because Plaintiff fails to plead a “strong
inference” of fraudulent intent. (Def.’s Mem. at 13–16).3 The Court disagrees.
Peck Garrido alleges that Defendant’s misrepresentations of lumens
ratings were “done maliciously, oppressively, deliberately, with intent to
defraud, and in reckless disregard of Plaintiff’s and Class members’ rights,
3 Page numbers for the parties’ briefs are to the ECF-generated PDF page numbers.
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to enrich Defendant.” (Am. Compl. ¶ 92). These, however, are merely
conclusory allegations that cannot satisfy Plaintiff’s burden to allege facts
that plausibly support a strong inference of fraudulent intent. So too are Peck
Garrido’s allegations that Xgimi’s false lumens ratings were advertised “to
increase sales and market share” (id. ¶ 4), and to “gain initial traction in the
United States projector marketplace” (id. ¶ 54). These conclusory allegations
concern only generalized motives which could be imputed to any public
corporate entity and are not sufficiently concrete for purposes of inferring
fraudulent intent. Kalnit v. Eichler, 264 F.3d 131, 139-40 (2d Cir. 2001) (citing
Chill, 101 F.3d at 268); In re Frito-Lay N. Am., Inc., No. 12-MD-2413 (RRM)
(RLM), 2013 WL 4647512, at *25 (E.D.N.Y. Aug. 29, 2013) (clarifying that
conclusory 	allegations 	that 	a 	company 	has 	motive 	to 	increase 	profits
“‘pertain to virtually any company that manufactures and distributes goods’”
and “do not suffice” to show motive to commit fraud); see also Dorris v.
Danone Waters of Am., No. 22 Civ. 8717 (NSR), 2024 WL 4792048, at *9
(S.D.N.Y. Nov. 14, 2024) (“[I]t is well-settled in this circuit that a defendant’s
self-interested desire to increase sales or profits is a general motive without
concrete benefits and, is, therefore insufficient [to show fraudulent intent].”)
(citing Chill v. Gen. Elec. Co., 101 F.3d 263, 268 (2d Cir. 1996)). Plaintiff’s
attempts to distinguish In re Frito-Lay N. Am., Inc., 2013 WL 4647512, are
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misplaced. 	Unlike 	Frito-Lay, 	Plaintiff 	here 	cites 	to 	no 	specific 	factual
allegations to support his claim of fraudulent intent. (Opp’n at 19). Rather,
Peck Garrido cites to conclusory allegations that lack any factual support
whatsoever. (Id.)
However, contrary to Xgimi’s arguments, Peck Garrido has alleged
sufficient facts showing strong circumstantial evidence of Xgimi’s conscious
misbehavior 	or 	recklessness. 	(Id.) 	As 	discussed 	below, 	Plaintiff 	has
sufficiently 	alleged 	that 	Defendant 	engaged 	in 	materially 	misleading
consumer-oriented conduct in violation of New York GBL § 349. Peck
Garrido has also alleged that Xgimi settled Epson’s claims that it inflated its
lumens ratings on the suspect products. (Am. Compl. ¶¶ 16, 18). It is entirely
reasonable to infer misbehavior or at least recklessness from these facts and
the others stated in the amended complaint.
Defendant also argues that Plaintiff’s fraud claims should be dismissed
for failure to plead reliance with particularity. (Def.’s Mem. at 16). The Court
again disagrees. Peck Garrido adequately alleges reliance. (Opp’n at 20).
Defendant’s arguments to the contrary (Reply at 9–10), are rejected.
Accordingly, Defendant’s motion to dismiss is denied in this regard.
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II. 	Plaintiff’s New York GBL § 349 Claim
(Count VII) Is Adequately Pleaded
N.Y. GBL section 349 prohibits deceptive acts or practices in the
conduct of any business, trade or commerce or in the furnishing of any
service in New York. “To successfully assert a claim under . . . [N.Y. GBL
section 349] . . ., a plaintiff must allege that a defendant has engaged in (1)
consumer-oriented conduct that is (2) materially misleading and (3) plaintiff
suffered injury as a result of the allegedly deceptive act or practice.” Orlander
v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker,
Merrall & Condit Co., 18 N.Y.3d 940 (2012)); see also Dupler v. Costco
Wholesale Corp., 249 F.R.D. 29, 43 (E.D.N.Y. 2008). Xgimi’s only argument
with respect to the sufficiency of Peck Garrido’s section 349 claim is that he
failed to adequately allege that he suffered an injury “as a result of” the
alleged lumens misrepresentation on Xgimi’s website, because he does not
allege that he “saw any alleged misrepresentations prior to his purchase [of
the 	Xgimi 	projector].” (Def.’s 	Mem. 	at 	9). 	The Court 	disagrees. 	While
Defendant cites to two district court cases and one state court case in which
courts have dismissed plaintiffs’ N.Y. GBL section 349 claims for failure to
plead affirmatively that they saw the allegedly misleading advertisements
before they purchased the defendants’ products (Def.’s Mem. at 17; Reply
at 10), those cases are of no help here for two independent reasons.
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First, while the amended complaint is not an exemplar of clarity or
precision, it is enough to properly allege—even if barely so—a claim under
N.Y. 	GBL 	section 	349. 	Peck 	Garrido 	alleges 	that 	Xgimi 	engaged 	in
consumer-oriented 	conduct 	by 	advertising 	its 	products 	to 	the 	public,
including on its website. (Am. Compl. ¶¶ 13–15; see also Opp’n at 10–11
nn.3–4). 4 Defendant 	does 	not 	dispute 	this. 	Plaintiff 	also 	alleges 	that
Defendant’s consumer-oriented conduct was materially misleading in that
Defendant inflated the lumens ratings of its various devices, including on its
website. (Am. Compl. ¶ 125). While Xgimi disputes that it misrepresented the
lumens ratings of its various devices, it does not dispute that Peck Garrido
alleges that it did so. Plaintiff also alleges that he and the class relied on
Defendant’s advertised inflated lumens ratings, including on Defendant’s
website, when they paid more for the products than they otherwise would
have. (Id. ¶¶ 69, 90, 104, 113 140, 163). Notably, while reliance is not an
element of a GBL section 349 claim, and Peck Garrido does not expressly
allege that he saw the purported false lumens ratings on Xgimi’s website
before he purchased the Horizon Pro 4K projector, or say specifically when
and where he saw the misleading brightness rating, it is reasonable to infer
4 The Court considers Xgimi’s website at the time of Peck Garrido’s purported purchase to be incorporated
by reference into the amended complaint. See, e.g., DeMarco v. Ben Krupinski Gen. Contractor, Inc., No.
12–CV–0573 (SJF)(ARL), 2014 WL 3696020, at *5 (E.D.N.Y. July 22, 2014) (“A court may take judicial
notice of a website.”) (quotation marks omitted).
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on a motion to dismiss that he did see it on Xgimi’s website: after all, he
alleges that he purchased the projector from the website in part because the
brightness rating. See Dash v. Seagate Tech. (U.S.) Holdings, Inc., 27
F.Supp.3d 357, 361 (E.D.N.Y. 2014) (“The reasonable inference to be drawn
from such allegations is that Plaintiff saw the misleading statements and, as
a result of such, purchased the Drive at issue. Accordingly, causation is
sufficiently pled.”); see also Goldemberg v. Johnson & Johnson Consumer
Cos., Inc., 8 F.Supp.3d 467 (S.D.N.Y. 2014) (confirming that causation was
siffucinetly pleaded when “[t]he reasonable inference to be drawn from these
allegations [that Plaintiff was ‘deceived and misled’] . . . is that Plaintiff saw
the [company] website and Facebook page described previously in the
Complaint, 	and 	was 	thus 	deceived 	into 	purchasing 	the 	products 	in
question.”).
Second, the legal premise of Defendant’s argument—that to establish
injury “as a result of” a defendant’s materially misleading consumer-oriented
statements, a plaintiff in a N.Y. GBL section 349 case must always allege
that he saw the supposed materially misleading statements—is misplaced.
It is well established that a plaintiff can prove injury and causation under GBL
section 349 in at least one of two ways. Fishon v. Peloton Interactive, Inc.,
620 F. Supp. 3d 80, 99 (S.D.N.Y. 2022), vacated on other grounds, Passman
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v. Peloton Interactive, Inc., No. 19 Civ. 11711 (LGS), 2025 WL 1284718
(S.D.N.Y. May 2, 2025). First, as Defendant suggests, a plaintiff can plead
that she was exposed to a material deceptive act, and because of that
deceptive 	act 	she 	purchased 	a 	product, 	and 	was 	harmed. 	Id. 	(citing
Rodriguez v. Hanesbrands Inc., 2018 WL 2078116, at *4–5 (E.D.N.Y. Feb.
20, 	2018)), 	adopted 	by 	2018 	WL 1686105 	(E.D.N.Y. 	Mar. 	30, 	2018).
Second, 	a plaintiff can also plead that 	“the defendant's 	misleading or
deceptive advertising caused a price premium, that the price premium was
charged both to those who saw and relied upon the false or misleading
representations and those who did not, and that, as a result of the price
premium, plaintiff was charged a price he would not otherwise have been
charged” but for the false or misleading representations. Id. at 100 (citing
Eidelman v. Sun Prods. Corp., 2022 WL 1929250, at *1 (2d Cir. June 6,
2022)) (summary order). Aside from plausibly pleading the former, at least
by reasonable inference, Peck Garrido has also plausibly alleged the latter.
Here, a reasonable jury could find that (1) Xgimi marketed their projector
products with inflated lumens ratings, (2) these misrepresentations allowed
Xgimi to charge a price premium for their products, and (3) Peck Garrido paid
more for the products than he would have paid had Xgimi not made such
misrepresentations, regardless of whether he knew that the lumens rating
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were inflated. See, e.g., In re Columbia Coll. Rankings Action, No. 22-cv-
5945 (PGG), 22-cv-6597 (PGG), 2024 WL 1312511, at *12 (S.D.N.Y. Mar.
26, 2024) (recognizing that plaintiffs properly pleaded a price premium injury
where they alleged the university’s misrepresentation of its ranking caused
an unjustified tuition premium they would not have otherwise paid); Fishon,
620 F. Supp. 3d at 103; Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337,
350 (S.D.N.Y. 2020); Carovillano v. Sirius XM Radio Inc., 715 F.Supp.3d 562,
582 (S.D.N.Y. 2024); In re AXA Equitable Life Ins. Co. COI Litig., No. 16 Civ.
740 (JMF), 2020 WL 4694172, at *10 n.7 (S.D.N.Y. Aug. 13, 2020); cf.
Sharpe v. A&W Concentrate Co., 19 Civ. 768 (BMC), 2021 WL 3721392, at
*4 (E.D.N.Y. July 23, 2021) (rejecting argument that GBL section 349
consumers 	must 	have 	been 	personally 	exposed 	to 	alleged
misrepresentation as “another attempt to sneak in reliance”); Hasemann v.
Gerber Prod. Co., 331 F.R.D. 239, 266 (E.D.N.Y. 2019) (“[W]here reliance is
not 	at 	issue, the individual reason for purchasing a product 	becomes
irrelevant and subsumed under the reasonable consumer standard, i.e.,
whether the deception could likely have misled someone, and not, whether
it in fact did.”).
Plaintiff’s N.Y. GBL section 349 claim is sufficiently pleaded, and
therefore Defendant’s motion to dismiss is denied in this respect.
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III. 	Plaintiff’s Claims Related to the
Halo Projector Are Adequately Pleaded
Defendant argues that because Plaintiff did not test the “Halo model,”
he has not provided any evidence of the falsity of the Halo model’s initial
lumens ratings, and “[a]s such, there are no plausible allegations of falsity
for this device and all claims with respect to the Halo model should be
dismissed.” (Def.’s Mem. at 18) (emphasis added). Defendant’s arguments
are untenable.
First, at the pleading stage, a plaintiff need not provide evidence, but
only plausible allegations. Cabrera v. CBS Corp., No. 17-CV-6011 (CM),
2018 WL 1225260, at *3 (S.D.N.Y. Feb. 26, 2018). The plausibility of a
plaintiff’s allegations is not measured by whether she provides evidence, but
whether she alleges facts to support her allegations. Id. Xgimi’s argument is
rejected in this regard.
Second, and regardless of any evidence or lack thereof, Peck Garrido
sufficiently alleges that Xgimi’s original lumens rating of the Halo projector
was false. Relying on the Epson Settlement, Plaintiff alleges that Defendant
agreed to reduce the lumens ratings of the Halo projector. (Am. Compl. ¶ 33)
(“Xgimi specifically agreed to change the lumens brightness specifications
for each of the four Class Devices . . . Halo (WK03A) reduced from 800
Lumens to 600 Lumens”). Defendant’s contention that the Epson Settlement
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constitutes mere “allegations in a complaint in another case [and] not fact” is
wrong. (Def.’s Mem. at 18) (emphasis added). Notably, Xgimi does not
contest that it entered into the Epson Settlement and agreed to lower the
lumens rating of the Halo projector. Thus, the Epson Settlement is not merely
an allegation “in a complaint in another case;” it is a factual allegation in this
case. Whether that allegation is sufficient to carry the day for Plaintiff remains
to be seen. What does not remain to be seen is whether Plaintiff has
plausibly alleged that the original Halo lumens ratings were false. He has
done so, and Defendant’s motion to dismiss this claim is therefore denied.
IV. 	Plaintiff Adequately Pleads Breach
of Express Warranty (Count III)
To survive a motion to dismiss for failure to state a claim for breach of
express warranty under New York law, a plaintiff must plausibly allege: “(1)
the existence of a material statement amounting to a warranty, (2) the
buyer's reliance on this warranty as a basis for the contract with the
immediate seller, (3) breach of the warranty, and (4) injury to the buyer
caused by the breach.” Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 527
(E.D.N.Y. 2017). In New York, a plaintiff must also give notice of the breach
to the seller before he can recover under an express warranty claim. N.Y.
U.C.C. § 2-607(3)(a); Ham v. Lenovo (United States) Inc., 664 F. Supp. 3d
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562, 582 (S.D.N.Y. 2023). Such notice must be specifically alleged but need
only “alert defendant that the transaction was troublesome and [need not]
include a claim for damages or threat of future litigation.” Grossman v. Simply
Nourish Pet Food Co. LLC, 516 F. Supp. 3d 261, 282 (E.D.N.Y. 2021)
(citations and alterations omitted). Such notice, though, must be given before
filing suit to retain a right to recovery. Chung v. Igloo Prods. Corp., No. 20-
CV-4926 (MKB), 2022 WL 2657350, at *13 (E.D.N.Y. July 8, 2022).
Plaintiff alleges—and Defendants do not appear to dispute—that Xgimi
promised 	that 	the 	Horizon 	Pro 	4K 	projector 	model 	he 	bought 	had 	a
brightness rating of 2,200 ANSI lumens, which should convert to 1,760 ISO
lumens, but its actual rating, as later changed by Xgimi, was 1,500 ISO
lumens. 	(Am. 	Compl. 	¶¶ 15, 	18, 	36). 	Such 	a 	description 	warranted 	a
statement of fact about the projector. Plaintiff sufficiently alleges that such
representation “induced him to buy [the projector] in the first place . . . .” (Id.
¶ 18). The express warranty was allegedly breached by the product not
meeting the advertised brightness rating, and Plaintiff was allegedly injured
by paying a price premium for a projector that did not meet its advertised
performance. (Id. ¶ 91). These allegations satisfy the required elements for
Plaintiff’s breach of express warranty claim. Further, Plaintiff specifically
alleges that in October 2023, before filing suit, he alerted Defendant that his
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purchase was “troublesome” by submitting a complaint through a form on the
customer service website. (Id. ¶ 16).
Defendants are correct that neither Plaintiff’s post-suit September 16,
2024, letter, nor complaints and suits by other individuals would satisfy the
statutory notice requirement. 	(Def.’s Mem. at 20). However, Peck Garrido
need not rely on either one, as his October 2023 customer service complaint
suffices. 	Defendant 	attempts 	to 	discount 	this 	notice 	because 	Plaintiff
“admitted at the time that ‘it was not the performance of the [Projector] at
issue,’” (Reply at 11), but Defendant omits the rest of Plaintiff’s sentence: “.
. . [the issue was] rather the representation made by Defendant that induced
him to buy [the projector] in the first place, namely its brightness rating.” (Am.
Compl. ¶ 18). Plaintiff described the troublesome issue of the projector not
meeting the promised brightness rating, and Defendant’s customer service
never responded. Defendant was sufficiently on notice of Plaintiff’s issue with
the 	product. 	The breach 	of 	express 	warranty 	claim 	therefore survives
dismissal.
V. 	Plaintiff’s Implied Warrant of Merchantability and Fitness
for Particular Purpose Claims (Counts IV and V) Fail
Under New York law, a plaintiff claiming a breach of implied warranty
of merchantability “must plead that a merchant seller breached its ‘guarantee
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. . . that its goods are fit for the intended purpose for which they are used and
that they will pass in the trade without objection.’” Ham, 664 F. Supp. 3d at
582 (quoting Wojcik v. Empire Forklift, Inc., 14 A.D.3d 63, 66 (3d Dep’t
2004)); N.Y. U.C.C. § 2-314(2)(a), (c).
To prevail on a claim of breach of implied warranty of fitness for a
particular purpose, a plaintiff must establish that “the seller had reason to
know, at the time of contracting, the buyer’s particular purpose for which the
goods are required and that the buyer was justifiably relying upon the seller’s
skill and judgment to select and furnish suitable goods, and that the buyer
did in fact rely on that skill.” Factory Assocs. & Exporters, Inc. v. Lehigh
Safety Shoes Co. LLC, 382 F. App’x 110, 112 (2d Cir. 2010). “The warranty
of fitness for ordinary purposes is not a guarantee that the product will . . .
fulfill a buyer's every expectation. . .. Rather, such a warranty provides for a
minimal level of quality.” Ferracane v. United States, No. 02-CV-1037 (SLT),
2007 WL 316570, at *8 (E.D.N.Y. Jan. 30, 2007) (citing Denny v. Ford Motor
Co., 87 N.Y.2d 248, 256 n.4 (1995)) (quotations and alterations omitted).
Both types of claims require notice to a defendant. Bynum v. Fam. Dollar
Stores, Inc., 592 F. Supp. 3d 304, 315 (S.D.N.Y. 2022).
Again, Defendants are incorrect that Plaintiff failed to notice them for
the purposes of these claims. However, these causes of action otherwise
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fail. Here, Defendant’s focus on the first part of Plaintiff’s October 2023
allegations about the projector is well placed; Plaintiff’s issue “was not the
performance of the [Projector].” (Def.’s Mem. at 21; Am. Compl. ¶18). While
it is true that Plaintiff’s projector does not put out the originally advertised
lumens, at no point does he allege that it did not work for its “ordinary
purpose” of projecting images to a “minimal level of quality”. The projector’s
brightness 	in 	“moderate 	light 	conditions” 	may 	not 	have 	met 	Plaintiff’s
particular 	expectation 	or 	even 	fit 	the 	recommendations 	of 	“industry
commentators” (Am. Compl. ¶ 3), but Plaintiff does not allege that it did not
project visible images in these conditions. “Goods that are ‘doing what they
were supposed to do for as long as they were supposed to do it clearly live
up to that ‘minimum level of quality’ which is all U.C.C. 2-314(2)(c) requires.’”
Ferracane, 2007 WL 316570, at *8 (alterations and citations omitted).
Plaintiff does not allege that the projectors did not meet these minimal
criteria. Accordingly, the implied warranty claims are dismissed.
VI. 	Plaintiff’s Unjust Enrichment Claim (Count VII) Is Dismissed
Xgimi argues that Plaintiff’s unjust enrichment claim must be dismissed
because it is duplicative of his other causes of action and seeks identical
relief. (Def.’s Mem. at 24). Defendant is correct. Under New York law, “unjust
enrichment is not a catchall cause of action to be used when others fail. It is
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available only in unusual situations when, though the defendant has not
breached a contract nor committed a recognized tort, circumstances create
an equitable obligation running from the defendant to the plaintiff . . . An
unjust enrichment claim is not available where it simply duplicates, or
replaces, a conventional contract or tort claim.” Corsello v. Verizon N.Y., Inc.,
18 N.Y.3d 777, 790 (2012); see also Kurtz, 321 F.R.D. at 554.
Plaintiff's unjust enrichment claim is based on the same allegations as
set forth in support of the GBL claim, and Plaintiff has not shown that his
unjust enrichment claim differs from his GBL claims nor that the alleged
damages are distinct. Although Plaintiff’s unjust enrichment claim does
contain the allegation that Defendant was enriched by “out-of-pocket repair
and bulb replacement costs,” Plaintiff nowhere specifically claims that he
paid for any repairs or bulb replacements on his Horizon Pro 4K. Thus,
Plaintiff does not allege that he bestowed any benefit on Defendant, even if
it is possible that some putative class members did so. (Am. Comp. ¶ 165).
Legurnic v. Ciccone, 63 F. Supp. 3d 241, 248 (E.D.N.Y. 2014) (“If the Plaintiff
fails to show that the Defendant received a benefit, there can be no liability
for unjust enrichment.”) Therefore, the Court dismisses Plaintiff's unjust
enrichment claim as duplicative of his GBL claims. See, e.g., In re Colum.
Coll. Rankings, 2024 WL 1312511, at *19 (“Courts in the Second Circuit have
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consistently held that unjust enrichment claims that are duplicative of GBL
claims should be dismissed.”) (alterations and citations omitted)).
VII. 	Plaintiff’s Request for Equitable Relief Will Continue
Xgimi argues that Peck Garrido “cannot maintain equitable claims
where he has an adequate remedy at law: damages” and “[t]he Court
therefore has no power to award Plaintiff equitable relief for any of his
claims.” 	(Def.’s 	Mem. 	at 	25–26) 	(emphasis 	added). 	While 	the 	Court
ultimately may not award Plaintiff equitable relief at the conclusion of this
litigation, that does not mean that the Court cannot maintain requests for
such relief during its pendency. Indeed, the case upon which Defendant
relies to support its argument, Nasdaq, Inc. v. Exch. Traded Managers Grp.,
LLC, 431 F.Supp.3d 176 (S.D.N.Y. 2019), (Def.’s Mem. at 26), illustrates this
point. In that case, the district court precluded the plaintiff’s request for
equitable relief after a 10-day bench trial on the merits in which it found
plaintiff was entitled to monetary damages. Id. at 182, 274. That decision in
no way whatsoever stands for the proposition that requests for equitable
relief should be dismissed on a 12(b)(6) motion. Xgimi’s request is premature
and is denied.
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VIII. The Nationwide Class Claims Shall Proceed
Relying principally on Bristol-Myers Squibb Co. v. Superior Ct. of Cal.,
San Francisco Cnty., 582 U.S. 255 (2017), Xgimi argues that the nationwide
class claims (Claims I–VI and VIII) should be dismissed because the Court
lacks either general or specific personal jurisdiction with respect to those
claims. (Def.’s Mem. at 26–30). Defendant’s arguments proceed from a
misunderstanding of both the facts and the law, and therefore, the motion to
dismiss the class claims is denied in this respect.
First, the Court has specific personal jurisdiction over Xgimi with
respect to Peck Garrido’s claims. Although Defendant contests personal
jurisdiction, New York’s long-arm statute only requires that a defendant
transacted business in New York and the cause of action arose from the
transaction. See N.Y. C.P.L.R. § 302(a); Chloe v. Queen Bee of Beverly Hills,
LLC, 616 F.3d 158, 170 (2d Cir. 2010) (“[C]ourts have explained that section
302 ‘is a “single act statute” and proof of one transaction in New York is
sufficient to invoke jurisdiction, even though the defendant never enters New
York, so long as the defendant’s activities here were purposeful and there is
a substantial relationship between the transaction and the claim asserted.’”)
Since Plaintiff, who resides in Long Island, alleges that Defendant sold him
the projector via its website and shipped it to him in New York, there is a
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prima facie showing of specific personal jurisdiction. (Compl. ¶ 15); Am. Girl,
LLC 	v. 	Zembrka, 	118 	F.4th 	271, 	277 	(2d 	Cir. 	2024) 	(“The 	evidence
demonstrates 	that 	Zembrka 	accepted 	orders 	with 	New 	York 	shipping
addresses, sent confirmatory emails with New York shipping addresses
containing commitments to ship to those New York addresses, and accepted
payments from a customer with a New York address. We have little difficulty
concluding that this activity constitutes transacting business within New York
for purposes of jurisdiction under § 302(a)(1).”) Therefore, this Court has
specific jurisdiction over Defendant with respect to Peck Garrido’s claims.
Second, although Xgimi argues that under Bristol-Myers Squibb Co.
Plaintiff may not bring a nationwide putative class action, courts in the
Second Circuit have continued to hold that “specific jurisdiction over a
nationwide class action is assessed based on the citizenship of the named
plaintiff, without inquiry into the citizenship of unnamed class members.”
Hines v. Equifax Info. Servs. LLC, No. 19-CV-6701 (RPK) (JAM), 2024 WL
4132333, at *2 (E.D.N.Y. Sept. 10, 2024). Bristol-Myers was not a Rule 23
class action, but a state-court mass action with over 600 named plaintiffs,
most of whom resided outside the California forum. 582 U.S. at 259. As a
putative class action, all that must be alleged for standing is that the named
plaintiff (1) suffered an actual injury because of the conduct of the defendant,
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and (2) “that such conduct implicates the same set of concerns as the
conduct alleged to have caused injury to other members of the putative class
by the same defendants.” NECA-IBEW Health & Welfare Fund v. Goldman
Sachs & Co., 693 F.3d 145, 162 (2d Cir. 2012) (citations and quotations
omitted). Such is the case here.
Accordingly, Xgimi’s objections to Plaintiff’s standing to bring class
claims or personal jurisdiction over it vis-à-vis the nationwide class are
rejected. The nationwide class claims shall proceed.
VIII. 	Plaintiff Has Article III Standing to Pursue
Claims for The Products He Did Not Purchase
Citing to the fact that he purchased only one Xgimi product, Defendant
argues that Peck Garrido lacks Article III standing to assert claims, including
claims on behalf of a putative class, for the other three Xgimi products he did
not purchase. (Def.’s Mem. at 30–31). The Court disagrees.
The Second Circuit has held that Article III standing is satisfied for each
named defendant as long as there is “at least one named plaintiff who can
assert a claim directly against that defendant.” NECA–IBEW, 693 F.3d at
159 (internal quotation marks omitted); see also, e.g., Weisblum v. Prophase
Labs, Inc., 88 F. Supp. 3d 283, 295 (S.D.N.Y. 2015); In re Frito–Lay N. Am.,
Inc. All Natural Litig., No. 12–MD–2413 (RRM)(RLM), 2013 WL 4647512, at
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*11 (E.D.N.Y. Aug. 29, 2013) (quoting Cent. States Se. & Sw. Areas Health
& Welfare Fund v. Merck–Medco Managed Care, LLC, 504 F.3d 229, 241
(2d Cir. 2007)). There should be no dispute that this standard is met here—
Peck Garrido alleges claims for at least one product he purchased directly
from 	Xgimi 	based 	on 	inflated 	lumens 	representations—and 	therefore
Plaintiff’s claims on behalf of purchasers of other Xgimi products can move
forward.
In arguing otherwise, Defendant relies heavily on the Second Circuit's
unpublished summary order in DiMuro v. Clinique Labs., LLC, 572 Fed.
Appx. 27 (2d Cir. 2014), (Def.’s Mem. at 31), which held that the plaintiffs
could not bring class claims for products they did not purchase because the
alleged misrepresentations were not “nearly identical” to those made about
products the plaintiffs did purchase. 572 Fed. Appx at 29. DiMuro, however,
could not and did not change Circuit law as expressed in NECA–IBEW. See,
e.g., Fossil Grp., Inc. v. Angel Seller LLC, No. 20-CV-2441 (HG), 2022 WL
3655177, at *2 (E.D.N.Y. Aug. 25, 2022) (“[A] summary order ... does not
have precedential effect.”) (citing Hoefer v. Bd. of Educ. of the Enlarged City
Sch. Dist., 820 F.3d 58, 65 (2d Cir. 2016); Bais Yaakov of Spring Valley v.
Houghton Mifflin Harcourt Publishers, Inc., 36 F.Supp.3d 417, 421 n. 6
(S.D.N.Y. 2014) (“DiMuro merely reiterates the holding of NECA–IBEW.”).
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Moreover, even were Peck Garrido required to allege “nearly identical”
misrepresentation across the four products, he has done so: The amended
complaint clearly states that Xgimi misrepresented the lumens ratings of all
four products (Am. Compl. ¶¶ 1–2, 4). While the allegedly misrepresented
numerical ratings may not be identical, and while the four products may have
different internal components, those differences are immaterial. Plaintiff’s
allegations about the four projector models involve the same lumens rating
misrepresentations 	about 	substantially 	similar 	products. 	“Any 	specific
concerns regarding the [products’] differences can be addressed at the class
certification stage.” Grossman v. Simply Nourish Pet Food Co. LLC, 516 F.
Supp. 3d 261, 277 (E.D.N.Y. 2021) (citation omitted). But at the motion to
dismiss stage, Plaintiff has adequately alleged that “the nature and content
of the specific misrepresentation alleged” are sufficiently similar because the
purchased and unpurchased projectors are all made by Xgimi for the
purpose of projecting images and they were all sold and marketed on its
website with allegedly inflated lumens ratings. Id. (citing NECA-IBEW, 693
F.3d at 162); see also Ham, 664 F. Supp. 3d at 578; Rivera v. S.C. Johnson
& Son, Inc., No. 20-CV-3588 (RA), 2021 WL 4392300, at *9 (S.D.N.Y. Sept.
24, 2021) (collecting cases); Hart v. BHH, LLC, No. 15CV4804, 2016 WL
2642228, at *4 (S.D.N.Y. May 5, 2016).
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IX. 	Plaintiff’s Claims for Injunctive Relief Are Dismissed
In addition to money damages and equitable relief, Plaintiff seeks an
order enjoining “Defendant to adequately disclose and remediate the actual
lumens figures” of its products in the future. (Am. Compl. at 38). Defendant
argues that Plaintiff lacks standing to seek such injunctive relief due to a lack
of any real and immediate threat of future injury. (Def.’s Mem. at 32).
“Although past injuries may provide a basis for standing to seek money
damages, they do not confer standing to seek injunctive relief unless the
plaintiff can demonstrate that she is likely to be harmed again in the future in
a similar way.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir.
2016). Plaintiff notes that he now knows the truth about the lumens figures
of Defendant’s projectors (Am. Compl. ¶¶ 16, 18), and nowhere alleges that
he is in the market for another projector. Furthermore, Xgimi has already
revised its lumens rating pursuant to the Epson Settlement that preceded
this action. (Id. ¶ 18). Peck Garrido also does not appear to object to the
dismissal of his request for injunctive relief in his opposition to Defendant’s
motion. Therefore, Plaintiff’s request for injunctive relief in the form of
disclosure and remediation is dismissed.
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CONCLUSION
For the reasons set forth above, the Court grants in part and denies in
part Defendant’s motion to dismiss. Plaintiff maintains his fraud claims
(Counts I and II) and breach of express warranty claim (Claim III) on behalf
of himself and a nationwide class, and his N.Y. GBL section 349 claim (Claim
VII) on behalf of himself and the New York subclass. Counts IV, V, VI and
VIII are dismissed, as is Plaintiff’s request for injunctive relief.
SO ORDERED.
_________________________
RAMÓN E. REYES, JR.
United States District Judge
Dated: November 12, 2025
Brooklyn, New York
/s/ Ramón E. Reyes, Jr.
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