Heuer v. Nissan North America, Inc.

Filing 24

Order Granting Nissan North Americas Motion to Dismiss 15 Motion to Dismiss. Amended Complaint due by 8/18/2017. Responses due by 9/1/2017 Signed by Judge Robert N. Scola, Jr on 8/11/2017. (lan)

United States District Court
for the
Southern District of Florida
Neil Heuer, Plaintiff,
v.
Nissan North America, Inc.,
Defendant.

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Civil Action No. 17-60018-Civ-Scola
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Order Granting Nissan North America’s Motion to Dismiss
The Plaintiff Niel Heuer filed an amended class action complaint
(“Complaint”) bringing a claim under the Florida Deceptive and Unfair Trade
Practices Act (“FDUTPA”) and a claim of unjust enrichment. (Am. Compl., ECF
No. 10). The Defendant Nissan North America (“Nissan”) moves to dismiss the
Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted and under Rule 12(b)(1) for lack of
standing. (Mot., ECF No. 15.) Heuer filed a response (ECF No. 19), and Nissan
filed a reply (ECF No. 20). Upon consideration of the motion, the response, the
reply, the amended complaint, the pertinent portions of the record, and the
relevant legal authorities, the Court grants Defendant Nissan’s motion to
dismiss (ECF. No. 15) and dismisses Heuer’s Complaint without prejudice.

1. Relevant Facts
Nissan manufactures, markets, distributes, and warrants automobiles in
the United States, including the Nissan GT-R vehicle. (Am. Compl. ¶ 8, ECF No.
10). Heuer alleges that the Nissan GT-Rs have defective dashboards that melt
and crack when exposed to sunlight and humidity. (Id. ¶ 9). The melted
dashboards allegedly produce a noxious smell and produce a chemical
compound that is sticky to the touch. (Id. ¶ 10). The alleged defect also causes
the dashboard to become reflective, resulting in unpredictable glare being cast
onto the windshield and into the drivers’ eyes, making it difficult or impossible
to see forward and safely operate the vehicle. Id. It also deforms the precise
perforation around the airbag deployment system, potentially compromising
the proper release of the airbag. (Id. ¶ 11).
Heuer owns a 2009 Nissan GT-R which he purchased in October 2008.
(Id. ¶ 23). Around June 2016, the dashboard in Heuer’s GT-R began to crack
and melt, causing the harsh glare mentioned above. (Id. ¶ 24). Heuer brought
his car to a Nissan dealership and asked that they replace the dashboard. The

dealership refused to replace the melting dashboard free of charge or at a
reduced rate, despite allegedly being aware of the recent class action, Sanborn
v.
Nissan
North
America,
Inc.,
Case
No.:
0:14-cv-62567-KMM
(S.D. Fla. Aug. 10, 2016), in which owners of a different Nissan model were
entitled to have their melting dashboards replaced at a steeply reduced rate.
(Id. ¶ 26).
Heuer alleges that Nissan has known the existence of their defective
dashboards since at least 2006. (Id. ¶ 15). Heuer also alleges that Nissan failed
to disclose the defect and the safety issues associated with it to consumers,
and actively concealed the same from consumers, who would have either not
purchased the cars or paid a far lower price for them had they been aware of
the defect. (Id. ¶¶ 18–20). Alternately, Heuer pleads unjust enrichment
predicated on this same conduct.
Heuer purports to represent a class of all Florida purchasers or lessors of
Nissan GT-Rs produced from 2008 to the present. (Id. ¶ 29).

2. Legal Standard
A. Dismissal for failure to state a claim
When considering a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the Court must accept all of the
complaint’s allegations as true, construing them in the light most favorable to
the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A
pleading need only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading
standard Rule 8 announces does not require detailed factual allegations, but it
demands more than an unadorned, the-defendant-has-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A
plaintiff must articulate “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” will
not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable
and generous departure from the hyper-technical, code-pleading regime of a

prior era, but it does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Iqbal, 556 U.S. at 679.
Yet, where the allegations “possess enough heft” to suggest a plausible
entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557.
“[T]he standard ‘simply calls for enough fact to raise a reasonable expectation
that discovery will reveal evidence’ of the required element.” Rivell v. Private
Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (citation omitted).
“And, of course, a well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and “that a recovery is very
remote and unlikely.’” Twombly, 550 U.S. at 556 (citation omitted).
B. Dismissal for lack of subject matter jurisdiction
Nissan also challenges Heuer’s standing to pursue his claims, pursuant
to Federal Rule of Civil Procedure 12(b)(1). Stalley ex rel. U.S. v. Orlando
Regional Healthcare System, Inc., 524 F.3d 1229, 1232 (11th Cir. 2008).
“Because standing is jurisdictional, a dismissal for lack of standing has the
same effect as a dismissal for lack of subject matter jurisdiction” under Rule
12(b)(1). Id.
“A defendant can move to dismiss a complaint under Rule 12(b)(1) for
lack of subject matter jurisdiction by either facial or factual attack.” Id.
(quotation omitted). “A facial attack on the complaint requires the court merely
to look and see if the plaintiff has sufficiently alleged a basis of subject matter
jurisdiction, and the allegations in his complaint are taken as true for the
purposes of the motion.” Id. (quotation omitted). “By contrast, a factual attack
on a complaint challenges the existence of subject matter jurisdiction using
material extrinsic from the pleadings, such as affidavits or testimony.” Id.
“When defending against a facial attack, the plaintiff has ‘safeguards
similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to
state a claim is raised,’ and ‘the court must consider the allegations in the
plaintiff’s complaint as true.’” Id. (quotation omitted). The Court is required
“merely to look and see if the plaintiff has sufficiently alleged a basis of subject
matter jurisdiction, and the allegations in his complaint are taken as true for
the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th
Cir. 1990).

3. Analysis
A. Statute of Limitations on FDUTPA and Unjust Enrichment Claims
Nissan moves to dismiss Heuer’s complaint in part because Heuer’s
claims are time-barred by the four-year statute of limitations prescribed by
section 95.11(3)(f) and (3)(k), Florida Statutes (2008). Heuer alleges that the

statute of limitations are tolled by Nissan’s fraudulent concealment of the
cause of action. The Court agrees with Defendant Nissan and finds that
Plaintiff Heuer has failed to allege facts sufficient to support a finding of
fraudulent concealment.
FDUTPA claims are subject to a four-year limitations period, since they
fall into the category of “action founded on statutory liability” enumerated in
section 95.11(3)(f). See S. Motor Co. of Dade Cty. v. Doktorczyk, 957 So. 2d
1215, 1217-18 (Fla. Dist. Ct. App. 2007). Unjust enrichment claims are subject
to a four-year limitations period, since they fall into the category of “a legal or
equitable action on a contract, obligation, or liability not founded on a written
instrument,” as enumerated in section 95.11(3)(k). See Beltran v. Miraglia, 125
So. 3d 855, 859 (Fla. Dist. Ct. App. 2013).
“The statute of limitations on a FDUTPA claim expires four years from
the sale of the product at issue.” Licul v. Volkswagen Grp. of Am., Inc., No. 1361686-CIV, WL 6328734 at *6 (S.D. Fla. Dec 5, 2013) (Cohn, J.). The
limitations period for unjust enrichment claims also begins at the sale of the
product at issue. Beltran, 125 So. 3d at 859. Plaintiff Heuer purchased his
Nissan GT-R in October 2009, and did not initiate this action until more than
seven years later on January 4, 2017.
The fact that Heuer did not discover these defects until the dashboard
began melting in 2016 does not serve to toll the statutes of limitations, since
the delayed discovery rule does not apply to FDUTPA or unjust enrichment
claims. Marlborough Holdings Grp., Ltd. V. Azimut-Benetti, Spa, Platinum Yacht
Collection No. Two, Inc., 505 F. App’x 899, 905 (11th Cir. 2013) (FDUTPA),
Davis v. Monahan, 832 So. 2d 708, 711–712 (Fla. 2002) (unjust enrichment).
Heuer argues that under the doctrine of fraudulent concealment, these
statutes of limitations are tolled by Nissan’s active and fraudulent concealment
of the defects. (Am. Compl. ¶ 45). To toll the statute of limitations as a result of
fraudulent concealment, a plaintiff “must allege . . . (1) successful concealment
of the cause of action, (2) fraudulent means to achieve that concealment, and
(3) [that] plaintiff exercised reasonable care and diligence in seeking to discover
the facts that form the basis of his claim.” Burr v. Philip Morris USA, Inc., 2012
WL 5290164, at *10–11 (M.D. Fla. Sept. 28, 2012) (citing Berisford v. Jack
Eckerd Corp., 667 So. 2d 809, 811–12 (Fla. Dist. Ct. App. 1995). Heuer
successfully pleads the third element by alleging that he took the car to regular
inspections. (Am. Compl. ¶ 45). However, Heuer has not sufficiently alleged the
first two elements of fraudulent concealment.
Allegations of “inaction and nondisclosure are wholly insufficient to
supply the affirmative steps taken to prevent [the] Plaintiffs from discovering
the basis of their claims that would be necessary before tolling based on

fraudulent concealment becomes appropriate.” Licul, 2013 WL 6328734, at *6.
“The ‘fraudulent means’ alleged must go beyond nondisclosure, and constitute
active and willful concealment.” Id. (citing Raie v. Cheminova, Inc., 336 F.3d
1278, 1282 n.1 (11th Cir. 2003)).
Plaintiff Heuer alleges that Nissan “instruct[ed] its dealers . . . not to
replace the defective dashboards,” and that this constitutes affirmative
concealment. (Am. Compl. ¶ 20). Failing to replace dashboards does not go
beyond “inaction and nondisclosure,” and the fact that the omission was
deliberate does not change its character as inaction. Furthermore, failure to
replace the defective dashboards cannot constitute concealment, since a
consumer will have had to discover the defect in the first place in order to bring
the car to the dealer for dashboard replacement. Nissan’s instruction to the
dealerships, as alleged in the amended complaint, does not constitute “active
and willful concealment” and so does not toll the statute of limitations.
Heuer also alleges that Nissan “affirmatively concealed the defect by . . .
falsely downplaying the scope of the defect in the media in response to
investigative reports by ABC, NBC, and Fox.” (Am. Compl. ¶ 20). Heuer refers
to a particular instance where Nissan, in response to an ABC-affiliate news
segment, stated: “We have become aware of a few isolated consumer
complaints about the dashboard appearance in their vehicle.” This statement
may be viewed as a public admission by Defendant Nissan that there is a defect
in their vehicle, which would negate any claims of fraudulent concealment.
However, when deciding on a motion to dismiss the Court must construe
alleged facts in the light most favorable to the plaintiff. Pielage, 516 F.3d at
1284. In the light most favorable to Plaintiff Heuer, this statement shows
Nissan “falsely downplaying” the scope of the defects as “isolated,” and about
“appearance” rather than safety. (Am. Compl. ¶ ¶ 19–20).
However, allegations of fraudulent concealment must be pled with
particularity under Federal Rule of Civil Procedure 9(b). Spier-Roche v.
Volkswagen Group of America, Inc., No. 14–20107–CIV, WL 1745050 at *7 (April
30, 2014 (Moreno, J.); see also Greenberg v. Miami Children’s Hospital Research
Institute, 264 F. Supp. 2d 1064, 1073 (S.D. Fla. 2003) (Moreno, J.); Waldrup v.
Hartford Life Ins. Co., 598 F. Supp. 2d 1219, 1226–27 (N.D. Ala. 2008). “Under
rule 9(b), the circumstances of the fraud must be alleged with specificity, i.e.
the ‘who, what, when, where, and how’ of the alleged fraud.” Spier-Roche, WL
1745050 at *7, (internal citation and quotation omitted). Plaintiff Heuer alleges
what was said by Nissan’s representatives in response to the news segment,
but does not specifically allege who in particular made the statement, when the
statement was made, or where the statement was made.

Furthermore, the Court is left to speculate as to how exactly the
statement was actively and willfully fraudulent. Heuer successfully alleges that
Nissan “falsely downplayed” the scope of the defect, but “false downplaying”
and “active and willful concealment” are not equal. Heuer therefore also fails to
plausibly plead fraudulent concealment under Federal Rule of Civil Procedure
9. Twombly, 550 U.S. at 570.
“A statute of limitations bar is ‘an affirmative defense, and . . . plaintiff[s]
[are] not required to negate an affirmative defense in their complaint.’” La
Grasta v. First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004),
(quoting Tregenza v. Great American Comms. Co., 12 F.3d 717, 718 (7th Cir.
1993)). Dismissal under Rule 12(b)(6) on statute of limitations grounds “is
appropriate only if it is ‘apparent from the face of the complaint’ that the claim
is time-barred. Id. (citation omitted). When the time-bar is apparent from the
face of the complaint, the plaintiff bears the burden of pleading allegations
sufficient to toll the statute of limitations. See Patel v. Diplomat, 605 Fed.
App’x. 965, 966 (11th Cir. 2015) (applying the rule in La Grasta and finding
that, where the dates included in the complaint made the time-bar apparent,
plaintiff did not plead facts sufficient to plausibly allege tolling of the statute of
limitations.)
Here, the dates in the complaint make it clear that the causes of action
accrued in 2008, and so are time-barred under the four-year statute of
limitations in section 95.11(3)(f) and (k) unless Heuer alleges facts plausibly
supporting the tolling of the statute. Heuer’s allegations that Nissan “falsely
downplayed” the defects and “instruct[ed] its dealers . . . not to replace the
defective dashboards” are, without more, insufficient to satisfy either the
plausibility requirements of Rule 8(a) or the particularity requirements of Rule
9(b).
As a result, the Court grants Nissan’s motion to dismiss because, as
currently pleaded, the statutes of limitations bar Heuer’s causes of action.
B. Standing on FDUTPA and Unjust Enrichment Claims
Nissan argues that Heuer has no standing to bring claims on the
defective dashboards in the GT-Rs with model years from 2010 to present, and
so moves to dismiss these claims under Federal Rule of Civil Procedure
12(b)(1). The Eleventh Circuit requires that in a class action suit “at least one
named class representative must establish Article III standing for each class
subclaim.” Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). Because
Article III standing requires a plaintiff to establish that he has suffered an
injury-in-fact, a class plaintiff “cannot raise claims relating to those other
products which he did not purchase.” Toback v. GNC Holdings, Inc. No. 13–

80526–CIV, WL 5206103 at *5 (S.D. Fla. Sept. 13, 2013) (Cohn, J.) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
Another court in this district has heard a similar case involving Nissan’s
melting dashboards, where a class plaintiff purported to represent purchasers
and lessors of every Nissan and Infinity model with the defective dashboard.
Sanborn v. Nissan N. Am., Inc., No. 14–cv–62567, at 3 (S.D. Fla. June 15, 2015)
(Moore, J.) (ECF No. 44). Because the named plaintiffs in Sanborn only alleged
having purchased or leased the 2008 and 2009 Nissan Altima, the court
dismissed all claims pertaining to models and model years other then those
particular cars, including claims regarding the 2007 Altima. Id. at 4–5.
The Sanborn plaintiffs pursued claims on several models and model
years on the theory that the defective dashboard was common to each vehicle.
Sanborn, No. 14–cv–62567 at 4, (ECF No. 44). However, on a motion to dismiss
the court reasoned that the deciding issue was not whether the vehicles shared
a common defect, but “whether they purchased precisely the same product.” Id.
Notably, the Sanborn plaintiffs did not allege that any of the class vehicles were
identical products. (Am. Compl., Case No. 14–cv–62567, ECF. No. 23).
In Sanchez-Knutson, the court used the same reasoning to dismiss classaction claims on car models other than those car models that the named
plaintiffs had purchased or leased. Sanchez-Knutson, No. 14–civ–61344, WL
11197772 at *4–5 (S.D. Fla. July 22, 2015) (Dimitrouleas, J.). However, the
court did not dismiss the plaintiff’s claims on the same model car from several
model years, despite the fact that the named plaintiff only purchased or leased
the version of that car from a single model year. Id. The Court provided no
rationale for the distinction. Id.
Nissan argues that Heuer has no standing to bring claims on products
that are merely similar to the product he purchased. Nissan relies on Garcia v.
Kashi Company, 43 F. Supp. 3d 1359 (S.D. Fla. Sept. 5, 2014) (Lenard, J.),
where the court noted that a named plaintiff in a consumer class action lacks
standing to challenge a non-purchased product, even if he purchased a
“substantially similar” product. Id. at 1394.
Heuer has not purchased or leased a Nissan GT-R from a model year
other than 2009. Heuer does allege, however, that Nissan GT-Rs and the
particular defective dashboard contained within them are “materially identical
from model year to model year.” (Am. Compl. ¶ 28). Construed in the light most
favorable to the plaintiff, Heuer has not alleged that the different model years of
the GT-R are substantially similar products, but rather has alleged that they
are the same product. The inconsistent case law in the Southern District of
Florida does not persuade the Court to hold that different model years of the
same model car are necessarily different products. Whether Heuer has

standing to sue on the claims for the 2010–present GT-Rs turns on this factintensive question, and should be resolved at a later point in the proceedings.
Heuer’s allegation that all Nissan GT-Rs are the same product regardless of the
year they were made must be taken as true for the purposes of the motion to
dismiss. Thus, at this juncture, Heuer has standing to pursue his claims.
C. Availability of the Unjust Enrichment Remedy
Nissan asserts that Heuer’s unjust enrichment claim must be dismissed
because unjust enrichment is an equitable remedy and Heuer’s claim has an
adequate remedy at law via FDUTPA. (Mot. at 9.)
The Eleventh Circuit has stated: “It is generally true that equitable
remedies are not available under Florida law when adequate legal remedies
exist. . . . However, that rule does not apply to unjust enrichment claims.”
State Farm Mut. Auto Ins. Co. v. Physicians Injury Care Center, Inc., 427 Fed.
App’x 714, 722 (11th Cir. 2011) (per curiam) (internal citation omitted), rev’d in
part on other grounds, State Farm Mut. Auto Ins. Co. v. Williams, 563 Fed. App’x
665 (11th Cir. 2014). “To the extent that [plaintiff has] adequate legal remedies,
those remedies [do] not bar its unjust enrichment claims.” Id.
Nissan also argues that Heuer’s unjust enrichment claim is duplicative of
the FDUTPA claim. However, Heuer is “entitled to bring all alternative theories
available under Florida law.” Mobil Oil Corp. v. Dade County Esoil Management
Co., Inc., 982 F. Supp. 873, 880 (S.D. Fla. Oct. 29, 1997) (Highsmith, J.); See
also Thunderwave, Inc. v. Carnival Corp., 954 F. Supp. 1562 (S.D. Fla. Jan. 23,
1997) (Moreno, J.).
Thus, notwithstanding that Heuer’s unjust enrichment claim stems from
the same factual predicates as his FDUTPA claim, Heuer is not precluded from
asserting in the alternative a claim for unjust enrichment.

4. Conclusion
For the reasons stated above, the Court grants Nissan’s motion to
dismiss (ECF No. 15). The Court dismisses this action without prejudice.
Heuer is given leave to file a second amended complaint addressing the
deficiencies noted in this Order, to the extent the deficiencies may be cured.
Heuer must file the second amended complaint by August 18, 2017. Nissan
must respond no later than September 1, 2017.
Done and ordered in chambers on August 11, 2017.

Robert N. Scola, Jr.
United States District Judge