Barak v. JM Auto, Inc.

Filing 12

ORDER granting 8 Defendant's Motion to Dismiss. Closing Case. Signed by Judge Darrin P. Gayles on 10/18/2016. (zvr) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-61876-GAYLES
ESTHER MALCA TEPPER-BARAK,
Plaintiff,
v.
JM AUTO, INC. d/b/a JM LEXUS,
Defendant.
/
ORDER
THIS CAUSE comes before the Court on Defendant JM Auto, Inc. d/b/a JM Lexus’s (“JM
Lexus”) Motion to Dismiss [ECF No. 8]. The Court has carefully considered the parties’ briefs, the
Complaint and the exhibits attached thereto, and the applicable law and is otherwise fully advised
in the premises. For the reasons that follow, the Defendant’s motion to dismiss shall be granted.
I.

BACKGROUND
According to the allegations in the Complaint, on October 26, 2014, Plaintiff Esther Malca

Tepper-Barak entered into a contract (the “Contract”) with JM Lexus for the purchase of a certified
preowned Lexus automobile (the “Vehicle”). Compl. ¶ 3; see also Compl. Ex. A. The Contract
provides, in pertinent part, that the Vehicle had an odometer reading of 22,746 miles. Id. ¶ 6. Based
in part on that representation, Tepper-Barak agreed to pay $26,875.34 for the Vehicle. Id. TepperBarak later obtained a “Car Fax” report regarding the Vehicle, which documents that, on November
29, 2013, the Vehicle had an odometer reading of 62,596 miles. Id. ¶ 7.
Tepper-Barak filed a Complaint in this Court on August 5, 2016, alleging a single claim
against JM Lexus for violation of the federal Vehicle Information and Cost Savings Act (colloquially known as the “Odometer Act”), 49 U.S.C. § 32701 et seq. JM Lexus filed the instant
motion to dismiss on September 12, 2016, arguing that Tepper-Barak has failed to state a claim

upon which relief can be granted. Tepper-Barak opposes the motion.
II.

LEGAL STANDARD
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6),

a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face,’” meaning that it must contain “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While
a court must accept well-pleaded factual allegations as true, “conclusory allegations . . . are not
entitled to an assumption of truth—legal conclusions must be supported by factual allegations.”
Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he pleadings are construed broadly,”
Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the complaint are viewed in the light most favorable to the plaintiff, Bishop v. Ross Earle
& Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). At bottom, the question is not whether the
claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal
court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011).
III.

DISCUSSION
In order to effectuate its purposes of “prohibit[ing] tampering with motor vehicle odometers”

and “provid[ing] safeguards to protect purchasers in the sale of motor vehicles with altered or reset
odometers,” 49 U.S.C. § 32701(b), the Odometer Act provides:
A person may not—
(1)

advertise for sale, sell, use, install or have installed, a device that makes an
odometer of a motor vehicle register a mileage different from the mileage the
vehicle was driven, as registered by the odometer within the designed tolerance of the manufacture of the odometer;

(2)

disconnect, reset, alter, or have disconnected, reset, or altered, an odometer
of a motor vehicle intending to change the mileage registered by the odometer;

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(3)

with intent to defraud, operate a motor vehicle on a street, road, or highway
if the person knows that the odometer of the vehicle is disconnected or not
operating; or

(4)

conspire to violate this section or section 32704 or 32705 of this title.

Id. § 32703.
The Act provides several different methods of enforcement, see Bodine v. Graco, Inc., 533
F.3d 1145, 1149-50 (9th Cir. 2008), including a private cause of action “to recover money damages
from those that violate its provisions with the intent to defraud,” Owens v. Samkle Automotive Inc.,
425 F.3d 1318, 1321 (11th Cir. 2005). Specifically, this provision states that “[a] person that violates this chapter or a regulation prescribed or order issued under this chapter, with intent to defraud,
is liable for 3 times the actual damages or $10,000, whichever is greater.” 49 U.S.C. § 32710(a).
In this Circuit, to survive a motion to dismiss, a complaint must allege “all of the necessary elements required for a private cause of action pursuant to this statute: (1) that the defendant violated
the Act or its regulations, (2) with intent to defraud.” Owens, 425 F.3d at 1321 (emphasis added). 1
Because a private cause of action requires the allegation of an intent-to-defraud, courts
have held that Federal Rule of Civil Procedure 9(b) applies to pleading Odometer Act claims. See,
e.g., Whitley Int’l Co. v. Pyne RV Rentals, Inc., No. 15-2887, 2016 WL 3090322, at *5 (C.D. Cal.
May 31, 2016); Baxter v. Kawasaki Motors Corp., U.S.A., No. 07-6745, 2008 WL 8901361, at
*2 (N.D. Ill. July 17, 2008). “To satisfy the Rule 9(b) standard, [a plaintiff] must allege: (1) the
precise statements, documents, or misrepresentations made; (2) the time and place of and person
responsible for the statement; (3) the content and manner in which the statements misled the Plaintiffs; and (4) what the Defendants gained by the alleged fraud.” Miccosukee Tribe of Indians v.
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“[T]he plain and ordinary meaning of the phrase ‘intent to defraud’ envisions conduct more invidious than mere
negligence,” Jones v. Hanley Dawson Cadillac Co., 848 F.2d 803, 807 (7th Cir. 1988), and such intent “may be
established through proof of a violation of the statute made with the specific intent to deceive or a reckless disregard” for the truth, CDM Auto Wholesale, Inc. v. Jensen, 31 F. App’x 621, 623 (10th Cir. 2002). See also Owens,
425 F.3d at 1321 (“[T]he statute’s meaning is clear—if you violate the Odometer Act, and you do so with the intent
to defraud your victim in any respect relating to the Odometer Act or the regulations passed pursuant to it, you
are liable.”).

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Cypress, 814 F.3d 1202, 1212 (11th Cir. 2015) (citation omitted). The particularity requirement
of Rule 9(b) does not apply to states of mind such as intent, however, which “may be alleged generally.” Fed. R. Civ. P. 9(b). However, even assuming arguendo that Tepper-Barak has pled with
particularity the circumstances constituting the alleged fraud, the Court finds that she has wholly
failed to allege any intent to defraud on the part of JM Lexus, generally or otherwise. For that
reason alone, her claim must be dismissed.
*

*

*

Tepper-Barak requests, within her opposition to the motion to dismiss, that if “the Court
finds that [JM Lexus] is correct, . . . the order be entered without prejudice to permit the Plaintiff
to file an amended complaint.” Pl.’s Opp’n at 2. Federal Rule of Civil Procedure 15(a)(1) provides
that a party may amend her pleading once as a matter of course within either twenty-one days after
serving it, or twenty-one days after service of a required responsive pleading or motion filed under
Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1). As that period of time has
passed in this case, Tepper-Barak may amend her pleading only with JM Lexus’s written consent,
which JM Lexus has not given, or the Court’s leave, which the Court “should freely give . . . when
justice so requires.” Id. R. 15(a)(2); see also Bank v. Pitt, 928 F.3d 1108, 1112 (11th Cir. 1991)
(“Where a more carefully drafted complaint might state a claim, a plaintiff must be given at least
one chance to amend his complaint before the district court dismissed the action with prejudice.”).
However, “[w]here a request for leave to file an amended complaint simply is imbedded within
in opposition memorandum, the issue has not been raised properly.” Rosenberg v. Gould, 554 F.3d
962, 967 (11th Cir. 1999) (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222 (11th Cir. 1999))
(internal quotation marks omitted). “Filing a motion is the proper method to request leave to amend
a complaint,” and in moving for leave to amend, a plaintiff must comply with Rule 7(b) by either
“set[ting] forth the substance of the proposed amendment or attach[ing] a copy of the proposed
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amendment.” Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999); see also Doe v. Pryor, 344 F.3d
1282 (11th Cir. 2003).
Tepper-Barak has done none of these things. She has not filed a motion, her request for
leave to amend is secondary to her memorandum in opposition, she has not attached a copy of the
proposed amendment, and she has not set forth the substance of the amendment in her request.
See McGirt v. Broward Coll., No. 15-62324, 2016 WL 1161093, at *3 (S.D. Fla. Mar. 23, 2016).
The Eleventh Circuit has held that a district court acts well within its authority if it dismisses with
prejudice a complaint in a case where, as here, “the plaintiff fail[s] to attach the proposed amendment or set forth the substance of the proposed amendment” but rather includes the request for
leave to amend in a memorandum filed in opposition to the defendant’s motion to dismiss. United
States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1362 (11th Cir. 2006). 2
That said, the Court will not punish the Plaintiff for her counsel’s failure. The Court will
dismiss the Complaint without prejudice and will consider granting leave to amend upon the filing
of a proper motion.

2

In fact, in McInteer, the district court did not even address the plaintiff’s failure to comply with the requirements
for amendment when it dismissed his complaint with prejudice. Even so, the Eleventh Circuit, “assuming that
[the plaintiff]’s request was the functional equivalent of the motion,” affirmed the district court’s sub silentio rejection of the request to amend “because it failed to include the proposed amendment or the substance thereof as
required by Long.” 470 F.3d at 1362.

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IV.

CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED that the Defendant’s Motion

to Dismiss [ECF No. 8] is GRANTED. The Plaintiff’s Complaint [ECF No. 1] is DISMISSED
WITHOUT PREJUDICE.
This action is CLOSED and all other pending motions are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 18th day of October, 2016.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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