DeMaria v. Nissan North America, Inc. et al

Filing 71

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 2/1/2016. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARIA DEMARIA, et al.,
Plaintiffs,
v.
NISSAN NORTH AMERICA, INC.,
Defendants.

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Case No. 15 C 3321
Judge John Robert Blakey

MEMORANDUM OPINION AND ORDER
The plaintiffs, a putative class of owners and lessees of Nissan Altimas
manufactured in 2002-2006 and Nissan Maximas manufactured in 2004-2008, sued
Nissan North America, Inc. and Nissan Motor Company, Ltd. (collectively,
“Nissan”), seeking a declaratory judgment that the class vehicles are defective.
Plaintiffs also allege violation of the Magnuson-Moss Warranty Act; fraudulent
concealment; negligence; unjust enrichment; and violation of various states’
consumer protection laws. The parties stipulated to the dismissal of Nissan Motor
Company from the case [56]. And Nissan North America, Inc. (“NNA”) now moves
to dismiss the complaint for lack of personal jurisdiction and for failure to state a
claim [50]. For the reasons explained below, the motion is granted.
Factual Background & Procedural History
Plaintiff Maria DeMaria initially sued Nissan on behalf of herself and all
other Illinois owners of Nissan Altima automobiles for model years 2002-2006,

alleging that the cars were defective in that their floorboards did not withstand
normal exposure to the elements, did not drain properly and rusted to the degree
that they substantially deteriorated, allowing visible exposure to the roadway
below. Complaint [1], ¶1. The initial complaint sought a declaratory judgment that
the cars were defective and alleged violation of Illinois’ Consumer Fraud and
Deceptive Business Practices Act and Illinois’ Uniform Deceptive Trade Practices
Act, as well as unjust enrichment, fraudulent concealment and negligence.
¶¶41-118.

Id.,

Subject matter jurisdiction was predicated on diversity, 28 U.S.C.

§1332(d). Complaint [1], ¶6.
DeMaria amended her complaint on July 24, 2015, expanding the scope of the
class and the lawsuit by adding an additional class of vehicles, adding plaintiffs
from several other states and alleging violations of those states’ consumer
protection laws.

See First Amended Class Action Complaint (“FAC”) [45].

According to the FAC, Plaintiffs’ claims arise “from a safety defect plaguing a sevenmodel-year span of the popular Nissan Altima and Maxima vehicles.

The defect

affects the vehicles’ floorboards – a metal panel that is the only real barrier between
the road and drivers and their passengers.” FAC [45], ¶1. The defect “makes the
Altima and Maxima floorboards prone to severe rust and corrosion” which is often
not visible to vehicle owners and occupants “until the corrosion has progressed from
the inside to the exterior underside of the vehicle,” often resulting in “gaping holes”
so large “that a passenger’s foot or a large rock could fit through the gap before he
or she realizes that the floorboard has been compromised.”

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Id., ¶2.

The FAC

alleges that “Nissan has known of the defect for many years” and has “concealed the
defect in order to sell more vehicles and to avoid bearing the resulting repair costs
(which can be hundreds or thousands of dollars).” Id., ¶3.
The First Amended Complaint initially named 18 plaintiffs who are citizens
and residents of 16 states: Illinois (Maria DeMaria), as well as Alabama, Indiana,
Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New
Hampshire, New Jersey, New York, Ohio, Pennsylvania and Virginia. FAC, ¶¶4-21.
On December 28, 2015, plaintiff Nitzali Beltran-Ashline, a citizen and resident of
Massachusetts, submitted a notice of voluntary dismissal without prejudice [66],
though Massachusetts is still represented by named plaintiff Dennis Bird. Thus,
presently before the Court are the claims of 17 named plaintiffs, involving 16 states.
The FAC alleges that defendant Nissan North America is a California Corporation
with its principal place of business in Franklin, Tennessee, and a registered agent
in Sacramento, California. FAC, ¶22.
With regard to the substance of the allegations, the FAC alleges that the
subject vehicles “utilize a unibody construction where the vehicle’s frame and body
are a combination of structural and semi-structural panels that are welded
together, forming a single unit” and that each panel is “dependent upon the
adjacent panels to give the vehicle strength and rigidity,” which “results in a single
fully integrated body structure.” FAC, ¶30. According to the FAC, the “unibody
underbody” adds strength to the unibody structure and prevents the elements and
road debris from entering the car, and therefore, it must resist rusting and

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corrosion. Id. One part of the unibody underbody – the front floor pan or floorboard
– “is a single piece of metal that spans the front driver and passenger compartments
forming the floor of the vehicle for the front passenger and driver.” Id., ¶31. The
floor pan is covered in carpet. Id. It is “intended to last the life of the vehicle” and
is not something “owners or service technicians would expect to repair or replace
during the vehicle’s anticipated useful life.” Id., ¶31.
The FAC alleges that “Nissan and the automotive industry have known for
decades that rust and corrosion may cause floorboards to degrade.”

Id., ¶32.

Plaintiffs allege that:
All modern vehicle designs assume moisture will be routinely
introduced to the vehicle’s interior and will come in contact with the
floorboard (for example, ingress during rain or snow, car washing, or
when passengers eat or drink in the passenger cabin). When proper
care and expense is devoted upfront, manufacturers can largely
eliminate the risk of floorboard rust and corrosion. In fact, due to vast
improvements in manufacturing and design technologies, motor
vehicles manufactured in recent decades experience significantly
reduced levels of corrosion.
Unfortunately, Nissan elected to produce and sell Class Vehicles with
inadequate floorboard corrosion protection–despite advancements in
technologies for corrosion prevention, and despite the safety risks
corroding floorboards present.
Standard corrosion prevention
techniques include the use of corrosion-resistant materials, coated
steels, sealers, and polymers. In Class Vehicles, however, Nissan
opted to deviate from optimal corrosion prevention, manufactured
Class Vehicles on which moisture does not dissipate efficiently when in
contact with the metal floorboard, and produced floorboards that
corrode at an accelerated rate, rust, and become structurally unsound.
This deviation occurred in or around 2001, when Nissan made a switch
in the steel sheet used in the body of Class Vehicles. FAC, ¶¶32-34.

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Plaintiffs allege that the “defect was known to Nissan immediately.” Id., ¶35. They
allege that it has long been industry standard to perform a number of presale tests
to assess components such as the floorboard for any tendency to corrode” and that it
is “not plausible that Nissan could have performed comprehensive testing of this
nature without detecting the defect.” Id. Thus, Plaintiffs allege, Nissan “knew of
the defect, both from its production experience and its extensive pre-release testing,
since 2001, when it first sold and leased Class Vehicles. Yet Nissan continued to
sell and lease new Class Vehicles with this defect for about seven more years. All
the while, Nissan received data confirming the problem, ranging from customer
complaints to warranty claims.” Id., ¶36. Plaintiffs allege that “it is not difficult to
surmise what Nissan was learning in the early to mid-2000s”; they allege that the
warranty data would show that “a worrisome percentage of its customers were
submitting corrosion related warranty claims. And complaining drivers have been
very vocal about the defect given the danger it poses.” Id., ¶37.
Indeed, the FAC alleges, Nissan has acknowledged internally and through
non-public communications with its dealerships that Class Vehicles are defective,
leading to floorboard rusting and corrosion.” Id., ¶39. Plaintiffs cite a technical
service bulletin applying to all 2002-2006 Altimas and all 2004-2008 Maximas
calling for a floor pan repair because of the common development of floorboard rust
and corrosion. Id., ¶39.
Plaintiffs allege that “more than 400 drivers [have complained] to the
National Highway Traffic Safety Administration (NHTSA) about the problem—a

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large number given that many drivers are not familiar with the NHTSA and
instead complain, if at all, directly to Nissan or one of its dealerships.” FAC, ¶41.
The FAC includes a sampling of complaints from the NHTSA’s website and other
websites: some complain about holes in the floor of 2003 Nissan Altimas, which
were discovered in 2009; another complains about holes in a 2004 Maxima
discovered in 2015; several complain about holes in undisclosed model years being
discovered in 2013 and 2015; one complains about a hole in a 2004 model that was
discovered after 90,000 miles (year not disclosed). FAC, ¶¶41-43.
The FAC also includes allegations relating to each of the named plaintiffs.
Plaintiff DeMaria purchased her used 2005 Nissan Altima in 2010 in Illinois and
discovered in the summer of 2014 that the floorboards were completed rusted out; a
Nissan dealership told her that it would cost approximately $3,000 to repair the
damage and refused to cover the repair costs. FAC, ¶¶46-49.
Plaintiff Sheri Grimm purchased her used 2002 Altima in 2006 in Missouri
and “discovered significant rust on the underside of her floorboard” in 2015. Id.,
¶¶50-53.
Plaintiff Juanita Walker purchased her 2003 Altima in 2005 in Alabama and
“discovered rust in her floorboards when she removed the floor mats for cleaning” at
some unspecified time. Id., ¶¶54-56.
Plaintiff Doug Burkholder purchased his 2005 Altima in 2014 in Indiana and,
in April 2015, “discovered rust under his floorboards” that would cost $600 to patch.

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Id., ¶¶ 57-60. Burkholder’s car failed to pass a state inspection because of the hole.
Id., ¶61.
Plaintiff Keith Siefken purchased his 2005 Altima in 2006 in Iowa and, in
April 2015, discovered the rust in his driver’s side floorboard during routine
maintenance of the vehicle; the repairs were estimated to cost about $3,000. Id.,
¶¶62-65.
Plaintiff Herb Brown purchased his 2006 Altima in 2010 in Kansas and, in
the fall of 2014, discovered rust under the floorboards during routine maintenance;
Brown complained to Nissan about the rust and Nissan refused to assist him or pay
for any repairs. Id., ¶¶66-69. Brown received two estimates to repair the rust: one
for approximately $2,800 and another for approximately $3,800. Id., ¶70.
Plaintiff Candace Kixmiller purchased her 2002 Altima in 2004 in Kentucky
and, in March 2015, “discovered significant rust under the floorboards of her
vehicle”; she complaint about the rust to Nissan and was told the repairs would cost
approximately $5,200. Id., ¶¶71-75.
Plaintiff Roslyn Corbin purchased her new 2005 Altima from a Nissan
dealership in Maryland in 2004 and, in October 2014, discovered the rust in her
front floorboard when her mechanic was changing her brake pads. Id., ¶¶76-78.
Corbin received two estimates to patch the rust: one for approximately $700 and
another for approximately $500. Id., ¶¶76-79.
Plaintiff Dennis Bird purchased his 2006 Altima in 2006 in Massachusetts
and, in November 2014, discovered the rust in his floorboards during a routine oil

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change; he complained to Nissan about the rust and received a repair estimate of
approximately $800. Id., ¶¶80-84.
Plaintiff Donald Young purchased his 2006 Altima in 2007 in Michigan and
discovered rust under his driver and passenger floorboards during a routine oil
change in April 2015; he received a repair estimate of approximately $800. Id.,
¶¶90-93.
Plaintiff Twila Ashworth purchased her 2004 Altima in 2007 in Missouri.
Id., ¶¶94-95. She was told by a technician in late 2014 that there was a hole in the
floorboard of her passenger seat and repaired the hole at a cost of about $350. Id.,
¶¶94-98.
Plaintiff Thomas Wilbur purchased his 2006 Altima in 2009 in New
Hampshire and discovered rust under his front passenger floorboard during
maintenance in March 2015; his repair shop told him his car would likely not pass
state safety inspections unless the rust was repaired. Id., ¶¶99-102.
Plaintiff Peter Petersen purchased his 2005 Altima in 2005 in New Jersey
and discovered a hole in the passenger floorboard of his vehicle in late 2014 or early
2015. Id., ¶¶103-106. Petersen repaired the hole himself at a cost of about $100.
Id., ¶107.
Plaintiff Joseph Miller purchased his new 2005 Altima from a Nissan dealer
in New York in the summer of 2004 and discovered rust under his passenger
floorboards in May 2015; he was told it would cost approximately $450 to patch the

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rust.

Id., ¶¶108-111.

He complained to the NHTSA and to his local Nissan

dealership. Id., ¶112.
Plaintiff Tammy Petty purchased her 2004 Maxima in August 2014 in Ohio
and discovered rust in both front floorboards when her mechanic was replacing the
brakes in early 2015.

Id., ¶¶113-114.

Petty complained to Nissan after she

discovered the rust, but has not received a response. Id., ¶115.
Plaintiff Laurie Sauder purchased her 2004 Altima in 2011 in Pennsylvania
and discovered rust during a multipoint inspection at a Nissan dealership at some
unspecified time; she paid approximately $300 to have the rust patched. Id., ¶¶116119.
Finally, plaintiff Gary Olds purchased his new 2005 Altima in 2005 from a
Nissan dealership in Virginia and discovered rust in his passenger side floorboard
in May 2015 during a state safety inspection. Id., ¶¶120-122. Olds’ car failed the
inspection because of the rust, and he spent approximately $150 to patch the rust so
his car could pass inspection. Id., ¶¶120-124.
The FAC alleges 21 causes of action. Counts One through Five are alleged on
behalf of a nationwide class: (1) Count One seeks a declaratory judgment that the
Class Vehicles are defective and that the defective nature of the Class Vehicles is
material and requires disclosure to all members of the Class; (2) Count Two alleges
violation of the Magnuson-Moss Warranty Act; (3) Count Three alleges fraudulent
concealment; (4) Count Four alleges negligence; (5) Count Five alleges unjust
enrichment; and (6) The remaining counts allege violations of various state

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consumer protections laws and are asserted on behalf of a named plaintiff and a
class of consumers in each of the relevant states. 1 Plaintiffs seek a determination
that this action may be maintained as a class action under Federal Rule of Civil
Procedure 23 and a determination that Nissan’s conduct was unlawful, unfair
and/or deceptive or otherwise in violation of law. They also seek money damages
and an injunction, as well as attorneys’ fees, costs and interest.
Plaintiffs initially named as defendants both Nissan Motor Company, Ltd.
(i.e., the parent company headquartered in Japan), and Nissan’s United States
subsidiary, Nissan North America, Inc. FAC, ¶22. Plaintiffs dismissed their claims
against Nissan Motor Co., Ltd., without prejudice [56], leaving only NNA, which
now moves to dismiss the FAC in its entirety.
Discussion
The case is before the Court on NNA’s motion to dismiss the FAC. NNA
argues that the out-of-state plaintiffs’ claims must be dismissed under Federal Rule
of Civil Procedure 12(b)(2) for lack of personal jurisdiction. They also argue that
Plaintiffs’ fraud claims must be dismissed under Rule 12(b)(6) because the FAC
alleges no facts showing that NNA knew about the alleged defect at the time of sale.
Count Six alleges violation of the Alabama Deceptive Trade Practices Act; Counts Seven and Eight
allege, respectively, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act
and the Illinois Uniform Deceptive Trade Practices Act; Count Nine alleges violation of the Iowa
Consumer Frauds Act; Count Ten alleges violation of the Kansas Consumer Protection Act; Count
Eleven alleges violation of the Kentucky Consumer Protection Act; Count Twelve alleges violation of
the Maryland Consumer Protection Act; Count Thirteen alleges violation of the Michigan Consumer
Protection Act; Count Fourteen alleges violation of the Missouri Merchandising Practices Act; Count
Fifteen alleges violation of the New Hampshire Consumer Protection Act; Count Sixteen alleges
violation of the New Jersey Consumer Fraud Act; Counts Seventeen and Eighteen allege,
respectively, violation of sections 349 and 350 of the New York General Business Law; Count
Nineteen alleges violation of the Ohio Consumer Sales Practices Act; Count Twenty alleges violation
of the Pennsylvania Unfair Trade Practices and Consumer Protection Law; and Count Twenty-One
alleges violation of the Virginia Consumer Protection Act.

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NNA also seeks dismissal of Plaintiffs’ warranty and negligence claims for failure to
state a claim.
I.

The Court considers the claims and arguments below.

Personal Jurisdiction
Plaintiffs bear the “burden of establishing personal jurisdiction.” Advanced

Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., 751 F.3d 796, 799
(7th Cir. 2014).

Where, as here, the Court resolves the motion on the papers,

without an evidentiary hearing, Plaintiffs need only establish a prima facie case of
personal jurisdiction. Kipp v. Ski Enterprise Corp. of Wisconsin, Inc., 783 F.3d 695,
697 (7th Cir. 2015).
Generally, this Court is permitted to exercise personal jurisdiction over outof-state defendants when the defendant has “certain minimum contacts with
[Illinois] such that maintenance of the suit [here] does not offend ‘traditional
notions of fair play and substantial justice.’” International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
There are two types of personal jurisdiction: general jurisdiction, which exists only
when the party’s affiliations with Illinois “are so constant and pervasive ‘as to
render [it] essentially at home” here, Daimler AG v. Bauman, 134 S.Ct. 746, 751
(2014)(quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846,
2851 (2011)); and specific jurisdiction, which is “case-specific” and exists where the
plaintiff’s claim is “linked to the [defendant’s] activities or contacts with” Illinois.
Kipp, 783 F.3d at 697-98. Nissan argues that neither type of personal jurisdiction
properly lies here.

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A.

General Jurisdiction

General jurisdiction over a foreign corporation is properly asserted “when
their affiliations with the State are so ‘continuous and systematic’ as to render them
essentially at home in the forum State.” Daimler, 134 S. Ct. at 754 (quoting
Goodyear, 131 S.Ct. at 2851; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 414 & n.9 (1984)). In Daimler, Argentinian residents brought suit against
a German corporation in the district court for the Northern District of California.
The Supreme Court held that due process did not permit the exercise of general
jurisdiction over the corporation in California because the corporation was in no
sense “at home” in that state: it was not incorporated in California and did not have
its principal place of business there; nor were the corporation’s “affiliations with the
State . . . so ‘continuous and systematic’ as to render [it] essentially at home in the
forum State.” Daimler, 134 S.Ct. at 761 (quoting Goodyear, 131 S.Ct. at 2851;
Helicopertos, 466 U.S. at 414, n.9).
The Seventh Circuit has explained that the assertion of general jurisdiction
over a foreign defendant requires “more than the ‘substantial, continuous, and
systematic course of business’ that was once thought to suffice” and that due
process permits courts “to exercise general jurisdiction only when ‘the continuous
corporate operations within a state [are] so substantial and of such a nature as to
justify suit” on causes of action “arising from dealings entirely distinct from those
activities.’” Kipp, 783 F.3d at 698 (quoting Daimler, 134 S.Ct. at 760-61).

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Here, the FAC alleges that NNA is a California corporation with its
headquarters and principal place of business in Tennessee. FAC [45], ¶22. The
FAC also alleges that Nissan (the term assigned by Plaintiffs to refer collectively to
NNA and Nissan Motor Company) is “registered to conduct business in Illinois; has
sufficient minimum contacts in Illinois; and intentionally avails itself of the
markets within Illinois through promotion, sale, marketing and distribution of its
vehicles.” Id., ¶25. By themselves, these allegations do not permit the Court to
infer that NNA is “essentially at home” in Illinois, nor do they establish that this is
“one of those rare situations” where the exercise of such broad jurisdiction is
justified.

E.g., Kipp, 783 F.3d at 699.

Indeed, Plaintiffs concede that general

jurisdiction is lacking, and the Court agrees.
B.

Specific Jurisdiction

That leaves specific jurisdiction.

Specific jurisdiction is proper when a

defendant “has ‘purposefully directed’ his activities at residents of the forum . . . and
the litigation results from the alleged injuries that ‘arise out of or relate to’ those
activities.”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)(quoting

Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984); Helicopteros Nacionales,
466 U.S. at 414).

The “contacts supporting specific jurisdiction can take many

different forms” but ultimately, “the key is purposefulness” and the “due process
clause will not permit jurisdiction to be based on contacts with the forum that are
random, fortuitous, or attenuated.’” Linkepic Inc v. Vyasil, LLC, No. 12-cv-09058,
2015 WL 7251936, at *4 (N.D. Ill. Nov. 17, 2015)(quoting uBID, Inc. v. GoDaddy

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Grp., Inc., 623 F.3d 421, 426 (7th Cir. 2010)). Additionally, establishing minimum
contacts is not enough. To justify the exercise of specific personal jurisdiction over
NNA, the FAC would have to demonstrate “not only that the defendant [has]
minimum contacts with the forum state but also that [Plaintiffs’ claims] against the
defendant ‘arise out of or relate to’ those contacts.” uBID, 623 F.3d at 429 (quoting
Burger King, 471 U.S. at 472-73; Helicopteros Nacionales, 466 U.S. at 414; Tamburo
v. Dworkin, 601 F.3d 693, 708 (7th Cir. 2010)).
In Walden v. Fiore, the Supreme Court addressed “the ‘minimum contacts’
necessary to create specific jurisdiction.”

134 S.Ct. 1115, 1121 (2014).

There,

Nevada residents filed suit in Federal District Court in Nevada against a Georgia
police officer who seized cash from them at an airport in Georgia. The district court
dismissed the suit for lack of personal jurisdiction, and the Ninth Circuit Court of
Appeals reversed, finding that personal jurisdiction was justified based upon the
officer’s knowledge that his conduct would affect persons with significant Nevada
connections. 134 S.Ct. at 1119. Noting that “the plaintiff cannot be the only link
between the defendant and the forum,” the Supreme Court reversed. Id. at 1124,
1126.

Initially, the Court held that “the defendant’s suit-related conduct must

create a substantial connection with the forum State.”

Id.

In evaluating the

connection with the forum, courts must look to the defendant’s conduct: “however
significant the plaintiff’s contacts with the forum may be, those contacts cannot be
‘decisive in determining whether the defendant’s due process rights are violated.’”
Id. at 1122 (quoting Rush v. Savchuk, 444 U.S. 320, 332 (1980)). Additionally, the

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“‘minimum contacts’ analysis looks to the defendant’s contacts with the forum State
itself, not the defendant’s contacts with persons who reside there.” Walden, 134
S.Ct. at 1122 (citing International Shoe, 326 U.S. at 319; Hanson v. Denckla, 357
U.S. 235, 251 (1958)).
Here, Plaintiffs claim that specific personal jurisdiction exists based on their
allegations that “Nissan is registered to conduct business in Illinois”; “intentionally
avails itself of the markets within Illinois through the promotion, sale, marketing
and distribution of its vehicles”; and “manufactures, markets, distributes and
warrants automobiles in the United States.” FAC, ¶¶25, 27.
Initially, the Court’s analysis is complicated by the fact that the Plaintiffs’
allegations lump together both NNA and Nissan Motor Company. This makes it
impossible to discern which of the alleged activities and contacts relate to NNA
specifically, as opposed to “Nissan” – the term Plaintiffs use to refer to both NNA
and Nissan Motor Company, which has been dismissed from the lawsuit.

The

allegation relating to the manufacturing, marketing, distribution, and warranting
of cars is similarly cloudy because it shows only that such activities were directed at
the United States, and says nothing about whether those activities were specifically
directed to the forum State. As a result, the current allegations do not enable this
Court to say, at this juncture, that NNA engaged in any relevant activities in
Illinois for the purposes of specific personal jurisdiction.
Furthermore, even if the Court construes the FAC’s allegations to find that
NNA did engage in relevant activities in Illinois, and thus, promote, sell, market

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and distribute the purportedly defective cars here, that would primarily tend to
support the exercise of personal jurisdiction over NNA for DeMaria’s claims alone.
The FAC alleges that DeMaria is the only plaintiff who purchased her car in Illinois
and the only plaintiff whose claim can fairly be said to arise out of any activity
taking place in, or directed at, Illinois. The FAC does not allege that anything NNA
did in Illinois had anything to do with any of the other plaintiffs’ claims, or that any
of their claims arose out of activities by NNA tied to Illinois. Thus, at most –
construing the allegations in the light most favorable to the Plaintiffs and assuming
that NNA’s allegation that Nissan “manufactures, markets, distributes and
warrants automobiles in the United States” can fairly be read to allege that NNA
does so in Illinois, personal jurisdiction would exist only as to DeMaria. Even with
a liberal construction, the current allegations of the FAC fail to provide a sufficient
basis for asserting personal jurisdiction as to the remaining plaintiffs’ claims.
As an alternative, Plaintiffs argue that, because specific personal jurisdiction
exists as to DeMaria’s claim, pendent personal jurisdiction exists as to all of the
other claims. “Under the doctrine of pendent personal jurisdiction, a court may
exercise its discretion to hear claims as to which personal jurisdiction may
otherwise be lacking if those claims arise out of a common nucleus of facts with
claims as to which personal jurisdiction exists.” Rice v. Nova Biomedical Corp., 763
F. Supp. 961, 966 (N.D. Ill. 1991)).

“Pendent personal jurisdiction typically is

invoked in cases where the exclusive basis for personal jurisdiction is the presence
of a federal claim that provides for extra-territorial service of process.” Id. (citing

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cases). Consequently, it is “typically found where one or more federal claims for
which there is nationwide personal jurisdiction are combined in the same suit with
one or more state or federal claims for which there is not nationwide personal
jurisdiction.” Action Embroidery Corp. v. Atlantic Embroidery, Inc., 368 F.3d 1174,
1180 (9th Cir. 2004).
For example, in Robinson Engineering Co. Pension Plan and Trust v. George,
223 F.3d 445 (7th Cir. 2000), the plaintiff sued several defendants for violation of
the Securities Exchange Act of 1934 and the Organized Crime Control Act of 1970,
alleging as well supplemental state law claims for rescission and fraud. Id. at 447.
The plaintiff served the defendant at his home in Canada and, when the defendant
failed to appear based upon that service of process, obtained a default judgment
against him for more than $950,000. Id. at 447-48. Noting that the Securities
Exchange Act of 1934 authorized worldwide service of process on a defendant and
that all of the federal statutes at issue authorized nationwide service of process, the
Seventh Circuit concluded that service in Canada was authorized as to the
Securities Act claim and that personal jurisdiction as to the other claims was also
proper under the idea of pendent personal jurisdiction, because those claims arose
out of the same nucleus of operative fact as the securities claims. Id. at 449. Here,
the FAC does not assert a single claim in which there is nationwide personal
jurisdiction, nor is it clear from the allegations that the claims of the out-of-state
plaintiffs, as presently pled, arise out of a common nucleus of operative fact.

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As presently pled, Plaintiffs’ FAC seeks to hold NNA accountable in Illinois
for claims arising out of activities that ostensibly have no connection to Illinois,
based solely upon a single transaction that occurred in Illinois and which may or
may not have arisen out of any specific activity NNA directed at Illinois. Plaintiffs
argue that: “DeMaria’s cause of action arises out of Nissan’s purposeful contacts
with Illinois. Nissan sold the vehicle in Illinois, thus creating contacts with Illinois
and targeting those contacts at Illinois, Nissan further refused to cover the cost of
the requested repairs, resulting in the substantive legal dispute at issue here.”
Response [55], p. 8. If that is the factual basis for jurisdiction, then the claims of
the other plaintiffs (who were unaffected by such NNA activity in Illinois) do not
arise out of a common nucleus of operative fact with DeMaria’s claim. No plaintiff
but DeMaria purchased a car in Illinois or had a repair bill rejected in Illinois, and
the FAC offers no basis to infer that any other plaintiff was affected by NNA’s
Illinois activities.
In response to the motion to dismiss, Plaintiffs suggest that the common
nucleus of operative facts stems from the defective nature of the floorboards and
Nissan’s knowledge.

Id., pp. 8-9. But, other than with respect to DeMaria, the

FAC does not include any factual allegation or theory tying the defective nature of
the floorboards, or any purported knowledge on the part of Nissan, to the State of
Illinois. Nor does the FAC allege that Nissan’s decision to use an inferior anticorrosive product is in any way tied to Illinois. In short, as drafted, the FAC fails to
properly connect those overarching activities to the forum State, or otherwise

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properly connect them to the claims of other plaintiffs. There is only DeMaria. And
that is not enough, because the “plaintiff cannot be the only link between the
defendant and the forum.” Walden, 134 S.Ct. at 1122.
Under the circumstances of this case, where each plaintiff’s claim is
predicated on the law of the particular state where he or she purchased a car and
the claims of the other plaintiffs as alleged remain unrelated to anything that
transpired in Illinois, imposing personal jurisdiction for all of the claims because
specific jurisdiction may lie as to this one plaintiff’s claims would run afoul of the
traditional notions of fair play and substantial justice that form the bedrock of any
court’s personal jurisdiction analysis. Given the current allegations, the Court is
not persuaded that pendent personal jurisdiction is established simply because
specific jurisdiction may exist as to DeMaria’s claims.
Based upon the FAC, the Court finds that personal jurisdiction lies only as to
claims that can fairly be said to arise out of NNA’s activities in, or directed at, the
State of Illinois, and is thus lacking as to the claims of every named plaintiff but
Maria DeMaria. Accordingly, the Court grants the motion to dismiss for lack of
personal jurisdiction as to Counts Six and Nine through Twenty-One, as well as
Counts One through Five to the extent they are brought on behalf of plaintiffs’
whose claims do not arise out of NNA’s Illinois activities. If Plaintiffs elect to file an
amended complaint, they should amend their allegations to provide a clear basis for
personal specific jurisdiction as to any dismissed claims, and any additional support

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for DeMaria’s claims as well, to the extent they are able to do so consistent with
their obligations under Rule 11.
II.

Failure to State A Claim
NNA also seeks to dismiss the FAC for failure to state a claim under Rule

12(b)(6). Under Rule 12(b)(6), this Court must construe the FAC in the light most
favorable to the plaintiffs, accept as true all well-pleaded facts and draw reasonable
inferences in their favor. Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013);
Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir. 1999).
Statements of law, however, need not be accepted as true. Yeftich, 722 F.3d at 915.
Rule 12(b)(6) limits this Court’s consideration to “allegations set forth in the
complaint itself, documents that are attached to the complaint, documents that are
central to the complaint and are referred to in it, and information that is properly
subject to judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
To survive NNA’s motion under Rule 12(b)(6), the FAC must “state a claim to
relief that is plausible on its face.” Yeftich, 722 F.3d at 915. For a claim to have
facial plausibility, a plaintiff must plead “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).

The “amount of factual

allegations required to state a plausible claim for relief depends on the complexity
of the legal theory alleged,” but “threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Limestone Dev.
Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008)).

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II.

Analysis of Plaintiffs’ Claims
As explained, the FAC seeks a declaratory judgment that the Class Vehicles

are defective and alleges breach of warranty under Magnusson-Moss; fraudulent
concealment, negligence and unjust enrichment, as well as violation of the Illinois
Deceptive Trade Practices Act, the Illinois Consumer Protection Act and the
consumer protection acts of 13 other states.
A.

Plaintiffs’ Fraud Claims

The Court first considers Plaintiffs’ claims of fraudulent concealment (Count
Three) and their claims alleging violation of the Illinois Consumer Fraud and
Deceptive Practices Act (“ICFA”) and the Illinois Uniform Deceptive Trade Practices
Act

(“IUDTPA”).

Each

of

these

claims

requires

either

an

affirmative

misrepresentation or an omission of material fact, and, here Plaintiffs claim that
Nissan fraudulently omitted material information regarding the defect in the
floorboards of the relevant model years of the Altima and Maxima.
To state a claim of fraudulent concealment in Illinois “a plaintiff must allege
that: ‘(1) the defendant concealed a material fact under circumstances that created
a duty to speak; (2) the defendant intended to induce a false belief; (3) the plaintiff
could not have discovered the truth through reasonable inquiry or inspection, or
was prevented from making a reasonable inquiry or inspection, and justifiably
relied upon the defendant's silence as a representation that the fact did not exist;
(4) the concealed information was such that the plaintiff would have acted
differently had he or she been aware of it; and (5) the plaintiff's reliance resulted in

21

damages.’” Ruderman v. Freed, No. 14 C 9079, 2015 WL 5307583, at *4 (N.D. Ill.
Sept. 10, 2015)(quoting Bauer v. Giannis, 834 N.E.2d 952, 957-58 (Ill. App. Ct.
2005)). “A duty to disclose generally arises in two circumstances: (1) when the
defendant owes the plaintiff some fiduciary duty to make full and fair disclosure
and fails to correct a misapprehension of a material fact; or (2) when the defendant's
acts contribute to the plaintiff's misapprehension of a material fact and the
defendant intentionally fails to correct plaintiff's misapprehension.”

Lefebvre

Intergraphics, Inc. v. Sanden Mach. Ltd., 946 F. Supp. 1358, 1366-67 (N.D. Ill.
1996)(citations omitted). With respect to the second circumstance, Illinois courts
have held that while “silence in a business transaction does not necessarily amount
to fraud, silence accompanied by deceptive conduct or suppression of material facts
results in active concealment,” Munjal v. Baird & Warner, Inc., 485 N.E.2d 855, 862
(Ill. App. Ct. 1985), “and it then becomes the duty of the person to speak.” Russow v.
Bobola, 277 N.E.2d 769, 771 (Ill. App. Ct. 1972).
Deceptive conduct is similarly required under the Illinois Consumer Fraud
and Deceptive Practices Act (“ICFA”) and the Illinois Uniform Deceptive Trade
Practices Act (“IUDTPA”). To state a claim under ICFA, a plaintiff must allege: “(1)
a deceptive act or practice by the defendant; (2) the defendant’s intent that the
plaintiff rely on the deception; (3) that the deception occur in a course of conduct
involving trade and commerce; and (4) actual damage to the plaintiff; (5)
proximately caused by the deception.” Ruderman v. Freed, No. 14 C 9079, 2015 WL
5307583, at *5 (N.D. Ill. Sept. 10, 2015)(quoting Sound of Music Co. v. Minn. Min.

22

& Mfg. Co., 477 F.3d 910, 923 (7th Cir. 2007)). 2

To state a claim under the

IUDTPA, a consumer must allege facts showing that he is likely to be damaged by a
defendant’s deceptive trade practices or unfair competition. E.g., Reid v. Unilever
U.S., Inc., 964 F.Supp. 2d 893, 918 (N.D. Ill. 2013).
Putting aside for the moment the question of whether Plaintiffs have actually
alleged facts to establish each element of these claims, Plaintiffs’ fraud claims must
also meet the heightened pleading standard of Federal Rule if Civil Procedure 9(b).
McMahan v. Deutsche Bank AG, 938 F.Supp.2d 795, 803-06 (N.D. Ill. 2013)
(fraudulent concealment claims subject to heightened pleading requirements of Rule
9(b)); Aliano v. Louisville Distilling Co., No. 15 C 00794, 2015 WL 4429202, at *5
(N.D. Ill. July 20, 2015)(“Claims brought under the ILCFA must meet the
heightened pleading standard of Rule 9(b), which applies to the elements that
constitute fraud)(citing Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 73637 (7th Cir. 2014); Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v.
Walgreen Co., 631 F.3d 436, 446-47 (7th Cir. 2011)).
Specifically, Rule 9(b) requires that, when alleging fraud, a plaintiff “must
state with particularity the circumstances constituting the fraud,” and a complaint
Although the Court has determined that personal jurisdiction does not lie with respect to the outof-state plaintiffs’ claims, the Court notes that the other states’ consumer fraud statutes similarly
require presale knowledge of a product defect. E.g., Sam v. Beaird, 685 So.2d 742, 744 (Ala. Ct. App.
1996); Kansas Statutes Annotated §50-626(b)(1)(a deceptive act is one made knowingly); Gooley v.
Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)(Massachusetts Consumer Protection Act); Allen v.
Bank of America, N.A., 933 F.Supp. 2d 716, 727 (D. Md., 2013)(Maryland Consumer Protection Act);
Woods v. Maytag Co., No. 10-CV-0559 ADS WDW, 2010 WL 4314313, at *16 (E.D.N.Y. Nov. 2,
2010)(New York General Business Law §349); Cox v. Sears Roebuck & Co., 138 N.J.2, 18 (N.J.
1994)(New Jersey Consumer Fraud Act); Lambert v. Downtown Garage, Inc., 262 Va. 707, 714 (Va.
2001)(Virginia Consumer Protection Act). Thus, even if personal jurisdiction could properly be
imposed with respect to the out-of-state plaintiffs’ claims, the claims would nonetheless be dismissed
based upon the factual allegations.
2

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“alleging fraud must provide ‘the who, what, when, where, and how.’” Borsellino v.
Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir. 2007)(quoting U.S. ex rel.
Gross v. AIDS Research Alliance–Chicago, 415 F.3d 601, 605 (7th Cir. 2005); DiLeo
v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990)). Thus, here, Plaintiffs must
provide “greater detail about the circumstances surrounding the omissions,
including when and where they occurred, and what material facts should have been
disclosed at what times.” McMahan, 938 F.Supp.2d at 805-06.
Plaintiffs’ FAC fails to meet these standards.

Plaintiffs have not alleged

what material facts Nissan should have disclosed, to whom it should have disclosed
them, or when it should have disclosed them. Indeed, it is not even clear that
Plaintiffs are alleging omissions in the sales transactions involving the named
plaintiffs, many of whom (like DeMaria) purchased their cars in transactions that
did not even involve Nissan or its agents. Plaintiff DeMaria purchased her 2005
Nissan Altima in 2010 in Illinois. The FAC does not allege that DeMaria purchased
her car from Nissan or from anyone acting on behalf of Nissan. Nor does the FAC
allege what Nissan should have disclosed to DeMaria or when it should have done
so. This latter deficiency is true for the claims of all of the named Plaintiffs, even
those who are alleged to have purchased their cars from Nissan directly.
At its core, the FAC alleges that Nissan knew the floorboards were defective
and failed to disclose that fact in general. NNA argues that Plaintiffs failed to
allege what was defective about the floorboards that NNA allegedly knew but
concealed. To be sure, the allegedly concealed fact cannot be simply that metal

24

rusts over time in general. Rather Plaintiffs assert a theory in which NNA knew
there was something unspecified about the materials used or the construction of the
unibody that caused the floorboards to rust prematurely and severely. Plaintiffs do
not specifically allege what that defect was, nor do they establish any knowledge on
the part of NNA at the time of any relevant sale.
Instead, the FAC alleges that, in or around 2001, Nissan “opted to deviate
from optimal corrosion prevention, manufactured Class Vehicles in which moisture
does not dissipate efficiently when in contact with the metal floorboard, and
produced floorboards that corrode at an accelerated rate, rust, and become
structurally unsound. FAC [45], ¶¶34. The FAC further alleges that the “defect
was known to Nissan immediately.” Id., ¶35.

The FAC then alleges that it has

“long been industry standard, including at Nissan, to perform a number of presale
tests to assess components such as the floorboard for any tendency to corrode” and
thus it “is not plausible that Nissan could have performed comprehensive testing of
this nature without detecting the defect.” Id., ¶35.
None of these allegations establishes knowledge by NNA at the time the
Class Vehicles were purchased from Nissan. First, Plaintiffs do not allege that
NNA performed the alleged testing or that it was required to perform such tests. In
Williams v. Yamaha Motor Corp., No. CV 13-05066 BRO, 2015 WL 2375906 (C.D.
Cal. April 29, 2015), the court rejected similar allegations, noting that such
allegations “require the Court to draw the inference that Defendant’s opportunity to
learn about this alleged defect before selling their engines to the public necessarily

25

means that they did learn about the defect.” Id., 2015 WL 2375906, at *9 (emphasis
in original). As in Williams, there is an insufficient basis for the Court to infer that
Nissan’s opportunity to test means they tested and knew at the relevant point in
time. As such, the current allegations relating to presale testing are not sufficient
to establish knowledge.
Along similar lines, Plaintiffs allege that:
Although Nissan’s aggregated data, including warranty claims and
customer complaints, are known only to Nissan, it is not difficult to
surmise what Nissan was learning in the early to mid-2000s. With
respect to warranty data, the Class Vehicles came with a stand-along,
five-year warranty for corrosion, so Nissan needed to do nothing in the
way of analytics to know that a worrisome percentage of its customers
were submitting corrosion related warranty claims. And complaining
drivers have been very vocal about the defect given the danger it poses.
Although only a small percentage of those complaints are public, many
more were made to Nissan directly, and they tend to report serious
concern about the corrosion and rust, which can be seen in part in the
photographs [attached to the FAC].
FAC [45], ¶37. These allegations are conclusory and do not establish that NNA had
knowledge of the alleged defect at the time of sale. In fact, the complaints included
in the FAC were made years after the cars were manufactured and sold by Nissan.
Plaintiff DeMaria’s car was manufactured in 2005. She purchased it in 2010 and
discovered rust in the summer of 2014. Despite Plaintiffs’ conclusory allegation
that Nissan knew about the defect in 2001, nothing in the allegations provides a
basis for the Court to draw this inference. Nor can the Court conclude that NNA
knew about the defect in 2005, when the car DeMaria ultimately purchased was
manufactured.

26

Similarly the allegations relating to customer complaints to Nissan
dealerships and the NHTSA or other websites are insufficient. Each details facts
showing that rust and corrosion were discovered years (in some cases a decade or
more) after purchase. None establishes knowledge at the time of sale.

The FAC

does not include a single complaint that was on file as of the time the Class Vehicles
were sold by Nissan. And, although the FAC alleges that Nissan issued a technical
service bulletin addressing floor pan repair, FAC, ¶¶39-40, it does not allege when
Nissan issued the bulleting and, therefore, cannot establish knowledge at the time
of sale for any named Plaintiff.
Plaintiffs’ fraudulent concealment and deceptive practices claims fail to plead
fraud with the degree of particularity required by Rule 9(b) and otherwise fail to
state a claim for which relief may be granted. Accordingly, Counts Three, Seven
and Eight are dismissed.
B.

Magnusson-Moss

In Count Two of the FAC, Plaintiffs allege that “Nissan provided all
purchasers and lessees of Class Vehicles with an implied warranty, but breached
this warranty as described in more detail above, including by selling and leasing
Class Vehicles that are equipped with defective floorboards that are prone to
rusting at a level that makes the vehicles unfit for the ordinary and intended
purpose for which such vehicles are used.” FAC, ¶148. Plaintiffs further allege that
“Nissan’s breach of warranty has deprived Plaintiffs and other Class members of
the benefit of their bargain.” Id., ¶149.

27

The Magnusson-Moss Warranty Act (“MMWA”), 15 U.S.C. §2301, et seq.,
“allows consumers to enforce written and implied warranties in federal court,
borrowing state law causes of action.” Schimmer v. Jaguar Cars, Inc., 384 F.3d 402,
405 (7th Cir. 2004), quoted in Federico v. Freedomroads RV, Inc., No. 09-CV-2027,
2010 WL 4740181, at *5 (N.D. Ill. Nov. 10, 2010).

“The MMWA ‘authorizes a

consumer to sue for breach of a state law implied warranty.’” Federico, No. 09-CV2027, 2010 WL 4740181, at *6 (quoting Semetikol v. Monaco Coach Corp., 582
F.Supp.2d 1009, 1026 (N.D.Ill. 2008)); see also 15 U.S.C. § 2301(7)(defining an
implied warranty as “an implied warranty arising under State law . . . in connection
with the sale by a supplier of a consumer product”). Illinois statutory law provides
that unless “excluded or modified” a warranty that “the goods shall be merchantable
is implied in a contract for their sale if the seller is a merchant with respect to goods
of that kind.” 810 Ill. Comp. Stat. 5/2–314(1).
Although the FAC alleges that Nissan is a “supplier” and “warrantor” with
respect to the sale of cars, the FAC does not allege that DeMaria purchased her car
from Nissan. Nor does it allege that the circumstances of the transaction otherwise
give rise to a warranty claim. Thus, at least as to DeMaria, the FAC does not
establish the existence of an implied warranty and, therefore, cannot state a claim
for breach of that warranty.

Accordingly, the claim for breach of warranty (Count

Two) is dismissed.

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C.

Negligence

In Count Four, Plaintiffs allege negligence on behalf of a nationwide class. In
a diversity case such as this, “a federal court looks to its forum state’s choice-of-law
rules to figure out the substantive law that must apply.” Duncan Place Owners
Association v. Danze, Inc., No. 15 C 01662, 2015 WL 5445024, at *6 (N.D. Ill. Sept.
15, 2015)(citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941);
Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir. 2006)). “Illinois has
adopted ‘the broad principle,’ as articulated by the Restatement (Second) of Conflict
of Laws, ‘that the rights and liabilities as to a particular issue are to be governed by
the jurisdiction which retains the “most significant relationship” to the occurrence
and the parties.’” Duncan Place, 2015 WL 5445024, at *6 (quoting Barbara’s Sales,
Inc. v. Intel Corp., 879 N.E.2d 910, 919 (Ill. 2007)). “In consumer-protection cases,
Illinois conflicts law provides that ‘where a plaintiff relies on a representation in the
same state where that representation was made and received, the law of that state
applies.’” Duncan Place, 2015 WL 5445024, at *6 (quoting Siegel v. Shell Oil Co.,
256 F.R.D. 580, 585 (N.D.Ill. 2008), aff'd, 612 F.3d 932 (7th Cir. 2010); In re
Bridgestone/Firestone, Inc., 288 F.3d 1012, 1017 (7th Cir. 2002)).
Although it is not entirely clear from the FAC what the alleged false
representation was, if the representation concerned the implied non-defective
condition of the floorboards at the time of the sale of the car to the named plaintiffs,
then such a false representation would occur in the state in which each plaintiff
purchased the car. The named plaintiffs would thus invoke the negligence laws of

29

their home states (there are 14 of them), as well as any other state in which a
nationwide class member resides (potentially all 50 of them). See Siegel v. Shell Oil
Co., 256 F.R.D. 580, 585 (N.D. Ill. 2008)(“Applying Illinois’ choice-of-law rules leads
to

the

application

of

each

state’s

consumer

protection

laws);

In

re

Bridgestone/Firestone, Inc., 288 F.3d 1012, 1017 (7th Cir. 2002)(“If recovery for
breach of warranty or consumer fraud is possible, the injury is decidedly where the
consumer is located, rather than where the seller maintains its headquarters.”). As
to the only claims currently at issue (i.e., the Illinois-based claims), the allegations
fail to state a claim for negligence under Illinois law.
To state a claim for negligence under Illinois law, a plaintiff must establish:
(1) a duty of care owed by the defendant; (2) a breach of that duty; (3) an injury
proximately caused by that breach; and (4) damages. E.g., Freedom Mortgage Corp.
v. Burnham Mortgage, Inc., 720 F. Supp. 2d 978, 992 (N.D. Ill. 2010)(citing Calles v.
Scripto-Tokai Corp., 864 N.E.2d 249 (Ill. 2007)). “A duty of care arises when the
nature of the plaintiff and defendant’s relationship to one another is such that the
law imposes upon the defendant an obligation of reasonable conduct for the
plaintiff’s benefit.” Lurgio v. Commonwealth Edison Co., 914 N.E.2d 659, 665 (Ill.
App. Ct. 2009)(citing Marshall v. Burger King Corp., 856 N.E.2d 1048, 1057 (Ill.
2006).
The duty and corresponding breach alleged here stem from the notion that
the Class Vehicles were defective and that Nissan failed to tell Plaintiffs about the
defect. As noted above, however, the FAC does not allege that DeMaria purchased

30

her car from Nissan. Nor does the FAC allege facts from which the Court could
reasonably infer a legal duty on the part of Nissan to advise DeMaria of issues
concerning the floorboards when she purchased her used car from an unknown
seller. To be sure, a duty of care would arise as to those plaintiffs who purchased
their cars from Nissan or its agents or affiliates. But that is not the case with
DeMaria. And the claims of the named plaintiffs who do fit that bill are otherwise
dismissed for lack of personal jurisdiction. Plaintiffs’ negligence claim, as presently
pled, is therefore dismissed for failure to state a claim upon which relief may be
granted.
D.

Unjust Enrichment

In a somewhat conclusory fashion, Plaintiffs allege that “Nissan had
knowledge of the defect and the serious safety risks it poses, which it failed to
disclose to Plaintiffs and the Nationwide Class” and that, as a result of “Nissan’s
wrongful and fraudulent acts and omissions, as set forth above, Nissan obtained
monies which rightfully belong to Plaintiffs and the Nationwide Class to the
detriment of Plaintiffs and the Nationwide Class.” FAC, ¶¶179-180. The FAC does
not allege, however, that DeMaria purchased her car from Nissan, and it is,
therefore, not clear that Nissan was enriched at all by the relevant transaction.
Additionally, the Court has determined that Plaintiffs have failed to sufficiently
state a claim for a violation of any of the relevant statutes or for fraudulent
concealment. As a result, the Court finds that Plaintiffs’ unjust enrichment claim,
which is predicated on such violations, fails as well. Without evidence of a statutory

31

violation or wrongful act, there can be no evidence that the defendant was enriched
(justly or unjustly) thereby.

In re Dairy Farmers of Am., Inc. Cheese Antitrust

Litig., 801 F.3d 758, 765 (7th Cir. 2015). Plaintiffs’ unjust enrichment claim is
dismissed.
Conclusion
For the reasons explained above, the Court finds that personal jurisdiction
over NNA is lacking as to the claims of the out-of-state plaintiffs, but does exist as
to the claims asserted on behalf of Plaintiff Maria DeMaria and the class she
purports to represent (that is, individuals whose purchase of Class Vehicles is
linked to NNA’s activities within the state of Illinois). The Court finds, however,
that Plaintiffs have failed to state a claim for fraudulent concealment, negligence,
unjust enrichment or violation of the Illinois Consumer Fraud and Deceptive Trade
Practices Act or the Illinois Uniform Deceptive Trade Practices Act.
Accordingly, NNA’s motion to dismiss [50] is granted, and the FAC is
dismissed in its entirety. The consumer protection claims for violation of the laws of
states other than Illinois (Counts Six and Nine through Twenty-One) are dismissed
for lack of personal jurisdiction. The declaratory judgment, breach of warranty,
fraudulent concealment, negligence and unjust enrichment claims (Counts One
through Five) are similarly dismissed for lack of personal jurisdiction to the extent
they are asserted on behalf of plaintiffs whose claims do not arise out of NNA’s
activities within the State of Illinois. Plaintiffs’ claims for violation of the ICFA and
the IUDTPA (Counts Seven and Eight) are dismissed for failure to state a claim, as

32

are Counts One through Five, to the extent they are asserted on behalf of plaintiffs
whose claims do arise out of NNA’s activities within the State of Illinois.
Plaintiffs are given leave to amend their complaint to address the deficiencies
noted herein, to the extent they are able to do so consistent with their obligations
under Rule 11.
Date: February 1, 2016
ENTERED:

____________________________________
John Robert Blakey
United States District Judge

33