Assignment: Motion to Dismiss

The facts for this motion are as follows: Michelle Berry, a retired paralegal is the plaintiff in this case. In January 2022, Michelle ordered 200 laptop computers from Jay's Computer Outlet to set-up an afternoon program for at-risk youth in Pima County. Jay's is a sole-proprietorship owned by Jay Johnson. Jay told Michelle that the computers were guaranteed to work. No guarantee was included in the written contract. Michelle usually reads the fine print, but she was busy taking care of other tasks to get the program up and running. The computers were delivered and set up in March 2022. The building in which the computers were located was an old renovated hotel near the corner of Stone and Speedway. In June 2022, Michelle started noticing the dark smudges on the screens. She also started tracking the frequent and numerous repair orders because the computers kept breaking down. In August 2022, Michelle started googling the company and found out that several consumers were having the same problem. Because the program was experiencing financial challenges, Michelle did not contact an attorney until May 2023. The attorney had a small and busy practice. After he received the final retainer from Michelle, he filed a claim in November 2023 under the Arizona Consumer Fraud Act. According to Michelle the computers contained defects that caused the cooling fan to suck in dirt and debris causing permanent dark smudging on the computer screens. The computers also overheat, slow down and ultimately crash. Jay's advertised their computers as "faster and more reliable" than "all name brand competitors." Michelle claims that she relied on these advertisements and that Jay's knew about the defects when he sold her the computers. When Michelle went to Jay's to buy computers, Jay reportedly told her that these computers were the most advanced and subjected to rigorous testing and that every customer was "highly satisfied". The computers came with the following disclaimer:

Actual speed times of each device varies depending on use. Do not operate your device in areas with significant amounts of airborne dust, or smoke from cigarettes, cigars, ashtrays, stoves, or near humidifiers using unfiltered tap water. Airborne particles may result in haze on the computer screen and slower processing speeds.

Michelle's complaint had three counts: Count 1: Fraud based on misrepresentation Count 2: Breach of warranty, and Count 3: Breach of Contract.

Draft a 12(b)(6) Motion to Dismiss for failure to state a claim upon which relief can be granted for Count 1. You will need to determine the statute of limitations under the Arizona Consumer Fraud Act.

Count 2 Failure to state a claim - Breach of Warranty

Your completed project should be a Motion and Order ready for court filing in Pima County Superior court. Note: This is not an electronic filing. You do not need a Notice of hearing or request oral argument.

Follow these additional requirements and clarifications:

Use Pima County Superior Court for filing, and make sure your rule(s), case(s) and statute are Arizona state law. This is a motion to dismiss COUNTS 1 & 2 pursuant to Rule 12(b)(6), Arizona Rules of Civil Procedure for Failure to State a Claim Upon which Relief can be Granted due to the expiration of the Statute of Limitations.

Consult and follow these rules:

• A.R.S. Rules of Civil Procedure, Rules 5.2 and Rule 10

and

• 17C A.R.S. Super.Ct.Local Prac.Rules, Pima County, Rule 2.2
  • Use case number: C20184000
• Defense Attorney's address and biographical info in the upper left hand corner of pleading: You invent a fictitious attorney as your employer (including biographical info) that works in Pima county.
• Title of court: Change to Superior Court of Arizona, County of Pima. (Go online and look at a civil case if you don't know how the court title should look).
• Use 28 line pleading paper.
• State the facts in narrative, paragraph form in the Facts section, as illustrated on pgs. 115 and 117. Be sure to state your facts so that the defendant is not admitting any wrongdoing. For example, the defendant can state that "Plaintiff alleges in her Complaint...".
• BE SURE your motion states which Count of the Complaint you are moving to dismiss, and that you are requesting it be dismissed "with prejudice".
• You must cite at least one Arizona case and one Arizona statute in support of your motion. When you cite the case, you need to apply its facts to this situation.
• Certificate of Service will be at the bottom of the motion after the attorney's signature. Opposing counsel is Brett Miller, Miller & Miller, P.C. 242 Speedway, Tucson, AZ 84704.
• Order

CLUES for statute and case:

• Either Go to the HARD copy of the Volume of the ARS to find the statute of limitations and look at the Notes of decisions to locate some relevant cases OR on Nexis Uni, find the appropriate statute of limitations and choose the appropriate judicial decision following the statute.
• The Arizona statute of limitations you are to use discusses "fraud" in the context of consumer sales. The usual statute of limitations for breach of contract is four years. A claim for consumer fraud is less.
• For Count II - Failure to State a Claim.