Michelle Berry, a retired paralegal is the plaintiff in this case. In January 2021, 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 2021.  The building in which the computers were located was an old renovated hotel near the corner of Stone and Speedway.  In June 2021, 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 2021, 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 2022.  The attorney had a small and busy practice. After he received the final retainer from Michelle, he filed a claim in November 2022 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 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:

The actual speed times of each device vary 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

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.

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