Jarvis et al v. BMW of North America, LLC

Filing 40

OPINION AND ORDER granting 14 Defendant's Motion to Dismiss; denying without prejudice 28 Plaintiffs' Motion for Class Certification, Appointment of Class Representatives, and Appointment of Class Counsel. Plaintiffs' Class Act ion Complaint is dismissed without prejudice to filing an Amended Class Action Complaint within 14 days of this Opinion and Order. Plaintiffs may file a Renewed Motion for Class Certification within 14 days of Defendant filing an Answer to an Amended Complaint. See Opinion and Order for details. Signed by Judge John E. Steele on 5/11/2015. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KAREN JARVIS, on behalf of
themselves and all others
similarly
situated
and
MICHAEL JARVIS, on behalf of
themselves and all others
similarly situated,
Plaintiffs,
v.

Case No: 2:14-cv-654-FtM-29CM

BMW OF NORTH AMERICA, LLC,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion

to

Dismiss

(Doc.

#14)

filed

on

December

22,

2014.

Plaintiffs filed a Memorandum of Law in Opposition to Defendant’s
Motion to Dismiss (Doc. #21) on January 12, 2015.

Also before the

Court is plaintiffs’ Motion for Class Certification, Appointment
of Class Representatives, and Appointment of Class Counsel (Doc.
#30) filed on February 5, 2015.

Defendant filed a Response in

Opposition (Doc. #35) on February 19, 2015.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

an

accusation.”

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal quotation marks and citations
omitted).

Thus, the Court engages in a two-step approach: “When

there are well-pleaded factual allegations, a court should assume

2

their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”

Iqbal, 556 U.S. at 679.
II.

In March 2014, plaintiffs Karen and Michael Jarvis purchased
a 2014 Mini Cooper 3-door with a semi-automatic transmission from
a Mini Cooper dealer in Fort Myers, Florida for approximately
$27,000.

(Doc. #1, ¶ 12.)

Prior to purchasing their Mini Cooper,

plaintiffs saw representations in defendant BMW of North America,
LLC’s

(defendant

defendant’s

“BMW”) 1

or

website

and

the

marketing
brochure

materials,
for

the

such

Mini

as

Cooper,

indicating that the Mini Cooper they bought would get 40 miles per
gallon (MPG) Highway, 29 MPG City, and 33 MPG Combined.
These

representations

were

an

important

consideration

plaintiffs’ decision to purchase the Mini Cooper.
On

October

22,

2014,

the

United

(Id.)

Stated

in

(Id.)
Department

of

Environmental Protection (EPA) issued the following press release:
The EPA performed a fuel economy audit on the BMW Mini
Cooper and obtained values that differed from those BMW
submitted to EPA for certification. With EPA oversight,
BMW conducted new emissions and fuel economy testing,
and EPA conducted its own testing at its National Vehicle
and Fuel Emissions Laboratory in Ann Arbor, Michigan.
As a result of this subsequent testing, EPA is requiring
BMW to relabel four of its 2014 Mini Cooper models with
lower fuel economy values.

1BMW

promotes, markets, distributes, and sells Mini Coopers
throughout the United States. (Doc. #1, ¶ 13.)

3

(Doc. #1-1, p. 2.)

The specific changes to the fuel economy

stickers are as follows:
2014 BMW Mini Cooper Fuel Economy Value Updates
Old Label Values
New Label Values
Combined City Highway Combined City Highway
Transmission
(MPG)
(MPG)
(MPG)
(MPG)
(MPG)
(MPG)

Model
Cooper
3-door
Cooper
3-door
Cooper S
3-door
Cooper S
3-door

MT

34

30

42

33

29

40

Semi-Auto

33

29

40

32

28

39

MT

29

25

38

28

24

34

Semi-Auto

31

27

38

30

26

35

(Id.)
Plaintiffs allege that BMW’s fuel economy estimates for the
Mini Copper were based on testing methods that the EPA found to be
inadequate.

(Doc. #1, ¶ 7.)

Because BMW’s testing methods were

both inadequate and inaccurate, the Mini Cooper’s fuel economy was
artificially high.
should

have

advertising

known
were

(Id. ¶ 8.)
that

its

erroneous

Plaintiffs further allege that BMW
fuel
and

economy

representations

overstated.

Plaintiffs

and
were

damaged by the misrepresentations and false advertising because
they were misled into purchasing a Mini Cooper of lesser quality
than promised.

(Id. ¶ 9.)

On November 11, 2014, plaintiffs filed a putative Class Action
Complaint against BMW alleging the following claims: (1) Violation
of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 to 2312; (2)
Breach of Express Warranty; (3) Breach of Implied Warranty of
Merchantability;

(4)

Unjust

Enrichment;

4

(5)

Violation

of

the

Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla.
Stat. §§ 501.201 to 501.213; (6) Violation of the New Jersey
Consumer Fraud Act, N.J. Stat. Ann. §§ 56:8-1 to 56:8-195; (7)
Negligent Misrepresentation; and (8) Fraud. (Doc. #1.) Plaintiffs
seek to represent a class defined as all persons in the United
States who purchased or leased a 2014 Mini Cooper or Mini Cooper
S 3-door automobile with either a semi-automatic transmission or
a manual transmission (the “Nationwide Class”), with a subclass of
all persons who purchased or leased a 2014 Mini Cooper or Mini
Cooper

S

3-door

automobile

with

either

a

semi-automatic

transmission or a manual transmission in the State of Florida (the
“Florida Subclass”).
BMW

asserts

(Id.)

that

the

Class

Action

Complaint

should

be

dismissed because: (1) EPA estimates are not guarantees; (2)
Federal Trade Commission (FTC) regulations preempt plaintiffs’
claims; (3) plaintiffs failed to plead their fraud-based claims
with

adequate

specificity;

(4)

plaintiffs’

claim

for

unjust

enrichment is duplicative of their other claims; (5) plaintiffs’
FDUTPA claim is exempt from FDUTPA coverage; (6) the New Jersey
Consumer Fraud Act does not apply to Florida residents; and (7)
plaintiffs are not in privity with BMW.
asserts

that

dismissed.

plaintiffs’

class-action

(Id.)

5

(Doc. #14.)
allegations

BMW also
should

be

III.
Congress
(EPCA)

in

enacted

1975

to

the

Energy

address

Policy

America’s

and

Conservation

“chronic

energy

Act

supply

shortages, particularly petroleum supply shortages, experienced by
the U.S. in the early 1970s.”

H.R. Rep. No. 106-356, at 2 (1999).

The EPCA was created, in part, to “provide for improved energy
efficiency

of

motor

vehicles”

and

to

“provide

a

means

for

verification of energy data to assure the reliability of energy
data.”

42 U.S.C. § 6201.

To further this purpose, Congress

enacted 49 U.S.C. § 32908(b) to help consumers make wiser choices
in selecting a vehicle that uses less petroleum.

See True v. Am.

Honda Motor Co., Inc., 520 F. Supp. 2d 1175, 1181 (C.D. Cal. 2007).
Section 32908(b) provides that a manufacturer of automobiles
shall attach a label, commonly referred to as a “Monroney” label,
to a prominent place on every new vehicle, detailing, among other
things, the fuel economy of the vehicle.
Congress

tasked

the

EPA

49 U.S.C. § 32908(b)(1).

Administrator

with

calculating

the

estimated fuel economy of every new vehicle in terms of miles per
gallon for city and highway use.

49 U.S.C. § 32901(11); 49 U.S.C.

§ 32904; 40 C.F.R. §§ 600.001 to 600.011.

A disclosure about a

vehicle’s fuel economy “does not establish a warranty under a law
of the United States or a State.”

49 U.S.C. § 32908(d).

Because the provisions of § 32908 only apply to Monroney
stickers,

the

FTC

promulgated

6

regulations

governing

the

advertising

of

automobiles.

the

EPA’s

estimated

fuel

economy

for

all

new

FTC Guide Concerning Fuel Economy Advertising of New

Automobiles, 16 C.F.R. § 259.2.

The FTC regulation states in

relevant part:
(a) No manufacturer or dealer shall make any express or
implied representation in advertising concerning the
fuel economy of any new automobile unless such
representation is accompanied by the following clear and
conspicuous disclosures:
(1) If the advertisement makes:
(i)
Both
a
city
and
a
highway
fuel
economy
representation, both the “estimated city mpg” and the
“estimated highway mpg” of such new automobile must be
must be disclosed;
(ii) A representation regarding only city or only
highway fuel economy, only the corresponding EPA
estimate must be disclosed;
(iii) A general fuel economy claim without reference to
either city or highway, or if the representation refers
to any combined fuel economy number, the “estimated city
mpg” must be disclosed; and
(2) That the U.S. Environmental Protection Agency is the
source of the “estimated city mpg” and “estimated
highway mpg” and that the numbers are estimates.
16 C.F.R. 259.2(a) (footnotes omitted).
“Simply put, when a manufacturer includes miles per gallon
numbers in an advertisement, it must, in a clear and conspicuous
manner, include the EPA mileage estimates, state that they are
estimates,
estimates.”

and

indicate

that

the

EPA

is

the

source

of

the

Sanchez v. Ford Motor Co., Civil Action No 13-cv-

01924-RBJ, 2014 WL 2218278, at *4 (D. Colo. May 28, 2014).

7

Thus, a the disclosure of a vehicle’s fuel economy on a
Monroney sticker or in an advertisement cannot serve as the basis
for a claim against the manufacturer provided that the disclosure
complies with the requirements set forth in 49 U.S.C. § 32908(b)
and 16 C.F.R. 259.2.

See Sanchez, 2014 WL 2218278, at *4; Brett

v. Toyota Motor Sales, U.S.A., Inc., No. 6:08-cv-1168-Orl-28GJK,
2008 WL 4329876, at *7 (M.D. Fla. Sept. 15, 2008).
Here, plaintiffs allege that their Mini Cooper came with a
guarantee that it “would get 40 MPG Highway, 29 MPG City, and 33
MPG Combined.”

(Doc. #1, ¶ 12, 32, 42, 51, 66, 80, 92, 104, 113.)

In reality, the Mini Cooper they bought only gets 39 MPG Highway,
28 MPG City, and 32 MPG Combined.

(Id.)

As a result of the 1 MPG

fuel economy overstatement, plaintiffs allege that they paid a
higher purchase price for the Mini Cooper and have subsequently
incurred higher fuel costs.

(Id. ¶ 12.)

Nowhere in the Class

Action Complaint does it clearly allege that defendant failed to
comply with the applicable law. 2

2Plaintiffs’

Because plaintiffs’ claims, as

Memorandum of Law in Opposition to Defendant’s
Motion to Dismiss appears to set forth an alternative theory of
the case that is not supported by the allegations in the Class
Action Complaint. Specifically, plaintiffs assert that their Mini
Cooper came with a guarantee that fuel economy estimates were
calculated in accordance with the standards set forth by the EPA.
(Doc. #21, p. 7.)
Plaintiffs, however, contend that the fuel
economy estimates were not calculated in accordance with EPA
standards.
Consequently, plaintiffs did not receive the Mini
Cooper they believed they purchased. (Id. at 8.)

8

currently alleged, are premised solely on the overstatement of the
Mini Cooper’s estimated fuel economy, the Class Action Complaint
will be dismissed without prejudice.
Accordingly, it is now
ORDERED:
1.

Defendant’s Motion to Dismiss (Doc. #14) is GRANTED and

the Class Action Complaint is dismissed without prejudice to filing
an Amended Class Action Complaint within FOURTEEN (14) DAYS of this
Opinion and Order.
2.

Plaintiffs’ Motion for Class Certification, Appointment

of Class Representatives, and Appointment of Class Counsel (Doc.
#30) is DENIED without prejudice.
Motion

for

Class

Certification

Plaintiffs may file a Renewed
within

FOURTEEN

(14)

DAYS

of

Defendant filing an Answer to an Amended Complaint.
DONE AND ORDERED at Fort Myers, Florida, this
May, 2015.

Copies:
Counsel of record

9

11th

day of