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United States District Court for the District of Kansas
June 15, 2000, Decided ; June 15, 2000, Filed; June 16, 2000, Entered on the Docket
CIVIL ACTION No. 99-2499-KHV
[*1334] MEMORANDUM AND ORDER
William S. Klocek brings suit against Gateway, [**2] Inc. and Hewlett-Packard, Inc. on claims arising from purchases of a Gateway computer and a Hewlett-Packard scanner. This matter comes before the Court on the Motion to Dismiss (Doc. # 6) which Gateway filed November 22, 1999 and Defendant Hewlett-Packard, Inc.'s Motion To Dismiss. Or In The Alternative For Stay Of Proceedings (Doc. # 16) filed December 22, 1999, the Motion (Doc. # 2) to certify a class which plaintiff filed October 29, 1999, the Motion For Sanctions, Expenses and Punitives [sic] (Doc. # 11) which plaintiff filed December 3, 1999, the Motion for a Writ of Certiorari (Doc. # 12) which plaintiff filed December 6, 1999, and the Motion for Verification (Doc. # 24) which plaintiff filed January 25, 2000. For reasons stated below, the Court overrules Gateway's motion to dismiss, sustains Hewlett-Packard's motion to dismiss, and overrules the motions filed by plaintiff.
A. Gateway's Motion to Dismiss
Plaintiff brings individual and class action claims against Gateway, alleging that it induced him and other consumers to purchase computers and special support packages by making false promises of technical support. Complaint, PP 3 and 4. [**3] Individually, plaintiff also claims breach of contract and breach of warranty, in that Gateway breached certain warranties that its computer would be compatible with standard peripherals and standard internet services. Complaint, PP 2, 5, and 6.
Gateway asserts that plaintiff must arbitrate his claims under Gateway's Standard Terms and Conditions Agreement ("Standard Terms"). Whenever it sells a computer, Gateway includes a copy of the Standard Terms in the box which contains the computer battery power cables and instruction manuals. At the top of the first page, the Standard Terms include the following notice:
NOTE TO THE CUSTOMER:
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
104 F. Supp. 2d 1332 *; 2000 U.S. Dist. LEXIS 9896 **; 41 U.C.C. Rep. Serv. 2d (Callaghan) 1059
WILLIAM S. KLOCEK, Plaintiff, v. GATEWAY, INC., et al., Defendants.
Disposition: [**1] Motion to Dismiss (Doc. # 6) which defendant Gateway filed November 22, 1999 OVERRULED. Defendant Hewlett-Packard, Inc.'s Motion To Dismiss, Or In The Alternative For Stay Of Proceedings (Doc. # 16) filed December 22, 1999 SUSTAINED in part, in that plaintiff's complaint against Hewlett-Packard dismissed for lack of subject matter jurisdiction. Motion (Doc. # 2) to certify a class which plaintiff filed October 29, 1999 OVERRULED; Motion For Sanctions, Expenses and Punitives [sic] (Doc. # 11) which plaintiff filed December 3, 1999 OVERRULED; Motion for a Writ of Certiorari (Doc. # 12) which plaintiff filed December 6, 1999 OVERRULED; and the Motion for Verification (Doc. # 24) which plaintiff filed January 25, 2000 OVERRULED.
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