Becnel v. Mercedes-Benz, USA, LLC

Filing 30

ORDER & REASONS: granting in part and denying in part 10 Mercedes-Benz USA, LLC's Motion to Dismiss for Failure to State a Claim as set forth in document; ORDERED that plaintiff shall have twenty-one (21) days from the entry of this order wi thin which to amend his complaint to remedy the defects discussed in this order; ORDERED the Court will defer ruling on Defendant's Motion to Strike (Rec. Doc. 12) until plaintiff files an amended complaint. In the event that plaintiff does not amend his Complaint, the Court will take the matter under advisement after time proscribed for amendment has elapsed. Signed by Judge Carl Barbier on 5/13/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANIEL E. BECNEL, JR.,
individually and on behalf
of all others similarly
situated

CIVIL ACTION

VERSUS

NO: 14-0003

MERCEDES-BENZ USA, LLC

SECTION: “J” (5)

ORDER & REASONS
Before
("MBUSA")'s

the

Court

is

Rule

12(b)(6)

Defendant
Motion

to

Mercedes-Benz
Dismiss

(Rec.

USA,
Doc.

LLC
10),

Plaintiff Daniel E. Becnel, Jr. ("Becnel")'s opposition (Rec. Doc.
17), and MBUSA's reply memorandum. (Rec. Doc. 26) Also before the
Court is MBUSA's Motion to Strike Class Allegations (Rec. Doc. 12),
Becnel's opposition (Rec. Doc. 18), and MBUSA's reply memorandum.
(Rec. Doc. 27) Both motions were set for hearing on April 23, 2014,
on the briefs. Having considered the motion and memoranda of
counsel, the record, and the applicable law, the Court finds that
the motions should be GRANTED IN PART AND DENIED IN PART for the
reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This matter arises from Becnel's claims for negligence, strict
product

liability,

breach

of

implied

warranties,

fraud,

and

violations of the Louisiana Unfair Trade Practice Act, Louisiana
Revised Statute § 51:1401, et seq ("LUTPA"). Becnel's claims arise
1

from his purchase of a 2008 Mercedes-Benz GL320 from Mercedes-Benz
of New Orleans ("Dealer") on February 26, 2008. (Rec. Doc. 1, p. 4,
¶ 14) On November 31, 2011, after noticing that his vehicle was
leaning to one side, thereby making it unreliable and undriveable,
Becnel brought the vehicle to the Dealer for service. (Rec. Doc. 1,
p. 4, ¶ 15). The problem recurred, and Becnel returned the vehicle
to the Dealer for service on March 5, 2012, June 28, 2012, and on
August 31, 2013. ((Rec. Doc. 1, p. 5, ¶¶ 16-18) Each time that
Becnel tendered the vehicle to the Dealer, the Airmatic Suspension
System ("the Suspension System") was cited as the problem and was
repaired. Becnel alleges that MBUSA knew that the Suspension System
was defective, but concealed that fact from current, future, and
past owners and/or lessors of GL model vehicles.
Based on these facts, Becnel filed a class action complaint on
January 2, 2014 against MBUSA on behalf of "[a]ll current and past
owners or people who leased Mercedes-Benz USA, LLC GL model of
vehicles since 2007." (Rec. Doc. 1, p. 6, ¶ 22) MBUSA filed the
instant motions on February 28, 2014.
PARTIES' ARGUMENTS
In the motion to dismiss, MBUSA urges the Court to dismiss
Becnel's

Complaint

because

(1)

he

alleges

only

conclusory

allegations; (2) the Louisiana Products Liability Act ("LPLA")
precludes several of his claims; (3) Becnel's tort claims are
prescribed; and (4) the LPLA does not permit economic damages.

2

A. Conclusory Allegations
1. Allegations of a Defect
MBUSA argues that Becnel only conclusorily alleges that there
is a general defect within the entire suspension "system," as
opposed to identifying the specific issue or what the specific
defect in the many undefined parts of the Suspension System may be.
MBUSA contends that, at best, Becnel alleges the effect–that the
car leans to one side–but not the defect.
Becnel asserts, however, that he has identified the defect in
the vehicle–the Suspension System. Further, he has supplied enough
facts to show that a defect plausibly exists. His allegations do no
consist solely of the assertion that "there was a defect;" rather
he

sufficiently

intended

design

explained
and/or

how

use.

the

product

Becnel

avers

deviated
that

any

from

the

further

information is in the hands of MBUSA, thus he cannot be expected to
plead such facts at this time.
2. Causation Allegations
MBUSA next asserts that Becnel has not properly alleged that
the

purported

injuries

were

caused

by

the

alleged

defect.

Specifically, MBUSA argues that Becnel has not alleged how the
defect caused the vehicle's tendency to lean to one side. To the
contrary, Becnel contends that he clearly alleges that the lean in
his vehicle is a result of the defective Suspension System, and
that his allegations that the repair technician told him on four
3

occasions that the lean was caused by the Suspension System
supports that allegation.
3. Damage Allegations
MBUSA avers that Becnel has not alleged facts demonstrating
that he has suffered damages as a result of the defect. It claims
that Becnel alleges that he had to have his car repaired several
times, however he does not allege that he had to pay for such
repairs. Further, Becnel does not allege that there was any kind of
safety hazard or that there was any damage to Becnel or his vehicle
due to an accident caused by the defect. Becnel, on the other hand,
avers that his damages are clear because his vehicle in undriveable
and that the notion that there is no injury until he has paid outof-pocket for repairs is untenable.
4. Negligence, Products Liability, and Warranty Claims
MBUSA contends that Becnel's substantive claims merely recite
formulaic elements, thus do not meet the pleading requirements of
Twombly and Iqbal. Further, MBUSA argues that Becnel's allegation
that MBUSA is a manufacturer is incorrect because MBUSA is a
distributor.

Becnel responds that he does satisfy Twombly and

Iqbal. Further, he argues that the Supreme Court opinion on which
MBUSA predicates its assertion that MBUSA is only a distributor did
not arise in the context of a products liability case, this is
inapposite.

Becnel

further

claims

that

MBUSA

should

not

be

permitted to argue that MBUSA is not the manufacturer at the same
4

time that it advocates for the application of the LPLA.
5. Fraud and LUTPA Claims
MBUSA argues that Becnel's fraud and LUTPA claims must be pled
with particularity, and that Becnel fails to plead the "who, what,
where, and when" of the alleged fraudulent scheme. Referring to
Shelton v. Standard/700 Assocs., 2011-0587 (La. 10//16/01), 798 So.
2d 60, 64, MBUSA specifically argues that to state a claim for
fraudulent concealment, Becnel needs to plead, with particularity,
facts that establish: "(1) a misrepresentations, suppression, or
omission

of

the

truth;

(2)

the

intent

to

obtain

an

unjust

advantage, cause damage, or inconvenience to the other party; and
(3)

how

the

resulting

error

relates

to

a

circumstance

that

influences the other party's consent." Becnel argues that the only
party with the factual and technical knowledge that MBUSA seeks in
the pleading is MBUSA itself, thus dismissal is not warranted.
B. Preclusive Effect of the LPLA
MBUSA posits that the LPLA applies to the instant claims
because Becnel alleges that MBUSA is the manufacturer. The LPLA,
then,

will

plaintiff

provide
for

his

the

exclusive

claims

against

remedies
the

available

manufactuer,

to

the

thereby

foreclosing Becnel's freestanding claims for negligence, fraudulent
concealment, LUTPA, and breach of implied warranties. Becnel argues
that MBUSA should not be allowed to argue that it is not the
manufacturer at the same time that it advocates for the application
5

of the LPLA.
C. Prescription
Next, MBUSA asserts that Becnel's tort, LUTPA, and LPLA claims
are

prescribed

on

their

face

because

Becnel

first

had

the

Suspension System repaired in November 2011, meaning that his claim
prescribed in November 2012. Further, to the extent that Becnel
claims that the "discovery rule" interrupted prescription because
it was reasonable for Becnel to have not discovered that there was
a defect in November 2011, MBUSA argues that it was not reasonable
for him to overlook the possibility of a defect after his second
and third time repairing the vehicle. Therefore, even if the
prescriptive period commenced after the third repair in June 2012,
the one-year prescriptive period ended prior to the filing of this
claim in January 2014.
Becnel invokes the "discovery rule" and contends that the
prescriptive period clearly did not begin running after the first
malfunction in November 2011 because one problem with a vehicle is
not enough to alert a party to the possibility of a potential cause
of action for a defect. Further, Becnel argues that under Louisiana
Civil Code Article 2534(c), the prescriptive period restarted every
time

he

tendered

the

vehicle

to

MBUSA

for

repairs,

thus

it

commenced anew in August 2013.
D. Claims for Economic Losses
MBUSA argues that the LPLA does not permit recovery for
6

economic

losses

for

damage

to

the

product

itself

in

the

circumstances of this case. La. R.S. § 9:2800.53(5); In re FEMA
Trailer Formaldehyde Prods. Liab. Litig., 2008 WL 5217594, *18
(E.D. La. Dec. 12, 2008). Because Becnel only pleads damages for
the damage to the vehicle itself, Becnel's claims should be
dismissed. Becnel asserts, on the other hand, that such losses are
available under La. R.S. § 9:2899.53(5) because this provision
reserves

the

plaintiff's

right

to

sue

under

a

theory

of

redhibition.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, 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). The
complaint must “give the defendant fair notice of what the claim is
and the grounds upon which it rests.” Dura Pharm., Inc. v. Broudo,
544 U.S. 336, 346 (2005). The allegations “must be simple, concise,
and direct.” FED. R. CIV. P. 8(d)(1).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A
claim is facially plausible when the plaintiff pleads facts that
allow

the

court

to

“draw

the

reasonable

inference

that

the

defendant is liable for the misconduct alleged.” Id. A court must
7

accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v. Putnal, 75
F.3d 190, 196 (5th Cir. 1996).

The court is not, however, bound to

accept as true legal conclusions couched as factual allegations.
Iqbal, 556 U.S. at 678.
DISCUSSION
I. Motion to Dismiss
A. Prescription
"A Rule 12(b)(6) motion to dismiss for failure to state a
claim is an appropriate method for raising a statute of limitations
defense." Mann v. Adams Realty Co., Inc., 556 F.2d 288, 293 (5th
Cir. 1977). "In Louisiana, the prescriptive period for delictual
actions, which include actions for fraud, is one year from the date
injury or damage is sustained." In re Ford Motor Co. Bronco II
Prod. Liab. Litig., 982 F. Supp. 388, 394 (E.D. La. 1997) (Sear,
J.) When the issue of prescription is raised,
[t]he burden of proof generally rests on the party
asserting prescription. However, when a Complaint reveals
on its face that the prescriptive period has lapsed, the
plaintiff bears the burden of establishing a suspension
or interruption of the prescriptive period.
Frank v. Shell Oil Co., 828 F. Supp. 2d 835, 842 (E.D. La. 2011) on
reconsideration in part, No. 11-871, 2012 WL 1230736 (E.D. La. Apr.
12, 2012)(internal citations omitted).
The actionable events alleged in Becnel's complaint began in
8

November 2011, thus the claims are prescribed on their face.
Therefore, Becnel bears the burden of establishing interruption of
the prescriptive period. Becnel alleged in his complaint that MBUSA
"is estopped from relying on the statute of limitations as a
defense because [MBUSA] actively concealed

the [defect]." (Rec.

Doc. 1, p. 4, ¶ 20) He further claims that he and the putative
class members only recently discovered the defect.

(Rec. Doc. 1,

pps. 12-13, ¶ 16) Based on these assertions, it appears that Becnel
relies on a theory of contra non valentem to satisfy his burden of
proving that prescription has been interrupted. Further, Becnel
argues prescription was interrupted

under Louisiana Civil Code

Article 2534.
1.

Louisiana Civil Code Article 2534

Becnel maintains that, under Louisiana Civil Code Article
2534, "prescription is interrupted when the seller accepts the
thing for repairs and commences anew from the day he tenders it
back to the buyer." La. Civ. Code. Art. 2534. Therefore, the
prescriptive period on his claims recommenced every time he had the
vehicle serviced, including the last time in August 2013, so he had
until

August

2014

to

file

suit.

While

Becnel's

argument

is

partially true, Article 2534 applies only to claims for redhibition
and its application cannot be extended to apply to other claims.
Thus, inasmuch as Becnel states a claim for redhibition only,
Becnel's claim is not prescribed.

9

2. Contra Non Valentem
The Louisiana Supreme Court recognizes four bases for the
application of contra non valentem:
(1) Where there was some legal cause which prevented the
courts or their officers from taking cognizance of or
acting on the plaintiff's action; (2) Where there was
some condition coupled with the contract or connected
with the proceedings which prevented the creditor from
suing or acting; and (3) Where the debtor himself has
done some act effectually to prevent the creditor from
availing himself of his cause of action [...(4)] Where
the cause of action is not known or reasonably knowable
by the plaintiff, even though his ignorance is not
induced by the defendant.
Corsey v. State, Through Dep't of Corr., 375 So. 2d 1319,
1321-22 (La. 1979)
Becnel asserts in his opposition that he relies on the fourth
category,1 thus he impliedly contends that his causes of action
were not reasonably knowable to him through no fault of MBUSA. In
respect

to

the

fourth

category

of

contra

non

valentem,

the

Louisiana Supreme Court cautions that it will not apply where the
plaintiff's "ignorance is attributable to his own willfulness or
neglect; that is, a plaintiff will be deemed to know what he could
by reasonable diligence have learned." Corsey, 375 So. 2d. at 132122.

1

MBUSA makes some allegations that would invoke the third category; but
Plaintiff does not advocate for that category in his opposition, and even if
he did, the Court finds that there are no allegations to show that MBUSA
affirmatively kept Becnel from discovering his causes of action. Marin v.
Exxon Mobil Corp., 2009-2368 (La. 10/19/10), 48 So. 3d 234, 252 (no
interruption of prescription absent a showing that defendant affirmatively
kept the plaintiff from investigating the situation.)

10

MBUSA contends that prescription may have started running
after the first repair to the suspension system on November 31,
2011, but that even if it did not begin at that time, it definitely
began running after the second and third time that Becnel was
required to have service completed on the suspension system for an
identical, recurring issue. Becnel, on the other hand, asserts that
he was reasonable in relying on the service department to repair
the problem, and he did not gain knowledge that this was more of a
defect and less of a repair until recently.
In Chevron, the Fifth Circuit considered, in the context of
products liability claims, "how much information is necessary to
commence the prescriptive period." Chevron USA, Inc. v. Aker Mar.,
Inc., 604 F.3d 888, 893 (5th Cir. 2010) The Court in Chevron
reasoned that:
[In] Cartwright v. Chrysler Corp., in which the Louisiana
Supreme Court wrote:
Whatever is notice enough to excite attention
and put the owner on his guard and call for
inquiry is tantamount to knowledge or notice
of every thing to which inquiry may lead and
such information or knowledge as ought to
reasonably put the owner on inquiry is
sufficient
to
start
the
running
of
prescription.
255 La. 597, 232 So.2d 285, 287 (1970). This rule would
seemingly start prescription as soon as a potential
plaintiff suspected something was wrong. But that is not
the law. Jordan v. Employee Transfer Corp., 509 So.2d
420, 423 (La.1987) (“The court of appeal ... paraphrased
the same dicta, as if it had been the rule in Cartwright.
It was not.”). “Constructive knowledge or notice
sufficient to commence the running of prescription ...
11

requires more than a mere apprehension something might be
wrong.” Strata v. Patin, 545 So.2d 1180, 1189 (La.App.
4th Cir.1989). But when a plaintiff suspects something is
wrong, he must “seek out those whom he believes may be
responsible for the specific injury.” Jordan, 509 So.2d
at 423. When a plaintiff acts reasonably to discover the
cause of a problem, “the prescriptive period [does] not
begin to run until [he has] a reasonable basis to pursue
a claim against a specific defendant.” Id. at 424.
Id. at 893-94.
Based on this standard, the Chevron court found that the jury
reasonably rejected the argument that prescription began to run
after the first failure of the product because the plaintiff
reasonably

thought

attributable

to

that

the

the

failure

defendant

was

do

distributor

to

an

error

(specifically

not
that

another entity applied too much torque and broke the bolt at issue)
and that they had remedied the issue through internal modification
to procedures. Id. at 894. Further, it was reasonable to concluded
that prescription did not run after discovering later failures
because "[e]ach problem pointed to a different defendant" and
because plaintiff launched an investigation to determine who was at
fault

and

filed

suit

less

than

a

year

after

it

began

its

investigation." Id.
Here, Becnel's allegation that he only recently discovered the
defect is sufficient to meet his burden at the motion to dismiss
stage. This case is unlike Global Oil Tools, Inc. v. Barnhill, 2013
WL 5348438 (E.D. La. Feb. 16, 2006), cited by MBUSA, because that
plaintiff alleged facts that contradicted his conclusory allegation

12

that he was unaware that he had a cause of action. Here, as was the
case in Chevron, it may be reasonable, with more evidence, to
conclude that Becnel's delay was reasonable.

Therefore, the Court

must deny the motion to dismiss on this issue and reserve ruling on
prescription until the record is more fully developed.
B. Are Becnel's Claims Covered by the LPLA?
Becnel asserts claims for negligence, strict liability/design
defect,

strict

liability/failure

to

warn,

breach

of

implied

warranty of merchantability, breach of implied warranty of fitness
of use, fraudulent concealment, and violations of LUTPA. In his
complaint, Becnel does not specifically allege whether his claims
arise

under

LPLA

or

under

independent

causes

negligence, strict product liability, etc.

of

action

for

MBUSA claims that

Becnel fails to plead sufficient evidence to support the allegation
that MBUSA is a manufacturer under the LPLA, which would mean that
the LPLA does not apply to MBUSA. John Kennedy,

A Primer on the

Louisiana Products Liability Act, 49 LA. L. REV. 565, 571 (1989)
("The LPLA applies only to manufacturers.") MBUSA also argues,
however, that the LPLA applies and preempts Becnel's other causes
of action. Becnel's only response to these arguments is that MBUSA
should

not

be

permitted

to

advance

these

two

contradictory

arguments and that the Supreme Court opinion on which MBUSA
predicates its assertion that MBUSA is only a distributor did not
arise in the context of a products liability case. Thus Becnel

13

fails to provide the Court with any meaningful argument concerning
the application of the LPLA to his claims.
Based on a review of Becnel's Complaint, the Court cannot
determine whether MBUSA would be considered a manufacturer under
the LPLA because such a determination will require further factual
development of the record, thus would not be an appropriate
determination to make in connection a motion to dismiss. See
Chevron USA, Inc., 604 F.3d at 895 (discussing the low bar for
becoming a manufacturer under the LPLA and specifically noting that
the

Louisiana

Supreme

Court

has

found

that

"Mercedes–Benz's

American distributor was a manufacturer because it was solely
responsible for marketing the cars domestically and its name
appeared on the manuals and service policies.") The fact that the
defendant's

status

as

a

manufacturer

is

unresolved

does

not

preclude Becnel from alleging claims under the LPLA or under nonLPLA law, rather, Becnel is entitled to plead all theories of
potential recovery, even if such theories conflict. Cusimano v.
NeilMed Pharm., Inc., No. 12-1455, 2012 WL 5398440 *1 (E.D. La.
Nov.

2,

2012)("plaintiffs

are

free

to

plead

alternative,

inconsistent claims of liability, including claims that would be
precluded should it be established at trial or on summary judgment
that [defendant] is in fact the manufacturer [...] within the
meaning of the LPLA.") Therefore, the Court must consider all of
Becnel's potential claims, and it does so below.

14

C. LPLA Claims
By alleging that MBUSA's product is defective and that MBUSA
is the manufacturer, Becnel clearly invokes the LPLA even if he
does not do so expressly. Under the LPLA, a plaintiff must plead
facts in support of each element of an LPLA claim, including:
(1) that the defendant is a manufacturer of the product;
(2) that the claimant's damage was proximately caused by
a characteristic of the product; (3) that the
characteristic made the product unreasonably dangerous in
one of the four ways provided in the statute; and (4)
that the claimant's damage2 arose from a reasonably
anticipated use of the product by the claimant or someone
else.
Scianneaux v. St. Jude Med. S.C., Inc., 961 F. Supp. 2d 808, 813
(E.D. La. 2013) (footnote added).
In his complaint, Becnel identifies the allegedly defective
product (vehicle/suspension system) and he properly alleges that he

2

Relying on In re FEMA Trailer Formaldehyde Products Liab. Litig., MDL
07-1873, 2008 WL 5217594 *18 (E.D. La. Dec. 12, 2008, MBUSA claims that Becnel
has not sufficiently alleged his damages, noting that damage to the product
itself is not recoverable. First, the Court must note that it does not
necessarily agree with the holding in that case as it appears to misapprehend
La. R.S. 9:2800.53(5). See Kennedy, supra, at 580 (noting that "recovery for
damage to the product itself or economic loss arising from a deficiency in or
loss of use of the product will normally not be compensable under the LPLA,
because those items of damage properly are the subject of a claim in
redhibition for breach of implied warranty. If, however, a claimant cannot
proceed in redhibition for some reason, he can recover his damages in
redhibition under the LPLA (emphasis added); In re Chinese Manufactured
Drywall Products Liab. Litig., 680 F. Supp. 2d 780, 796 (E.D. La. 2010) ("tort
damages for economic losses may be recoverable by Plaintiffs under laws unique
to Louisiana.") Further, even if the law in FEMA is correct, MBUSA fails to
mention that the Court went on to hold that "because it is presently unclear
whether and to what extent redhibition would provide recovery for Plaintiffs'
claims, the Court is unwilling to conclude that Plaintiffs have no remedy for
economic loss damages in Louisiana. Defendants' request for dismissal is
denied." Id. Therefore, the case that MBUSA itself cites provides that
dismissal on the theory of the economic loss doctrine is inappropriate when
there is a co-existing redhibition claim that may define the scope of damages
available.

15

has been damaged because his vehicle is unable to be driven due to
the defect in the suspension system that causes the vehicle to lean
to

one

side

and

that

his

damages

arose

from

a

reasonably

anticipated use of the vehicle (driving), and that MBUSA is the
manufacturer of the vehicle. Therefore, Becnel has properly alleged
three of the four elements of a claim under the LPLA.
As

to

the

third

and

remaining

element,

Becnel

must

sufficiently allege that the vehicle was "unreasonably dangerous in
one of the four ways provided in the statute," which include:
(1) The product is unreasonably dangerous in construction
or composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as
provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an
adequate warning about the product has not been provided
as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does
not conform to an express warranty of the manufacturer
about the product as provided in R.S. 9:2800.58.
La. Rev. Stat. Ann. § 9:2800.54. These four categories essentially
correspond

to

claims

for

"manufacturing

defect[s],

design

defect[s], inadequate labeling, and breach of express warranty."
Scianneaux, 961 F.Supp.2d at 811. Becnel only alleges that there
were design defects and/or a failure to warn/inadequate labeling.
1. Design Defect
The LPLA provides that:
A product is unreasonably dangerous in design if, at the time
the product left its manufacturer's control:
16

(1) There existed an alternative design for the product that
was capable of preventing the claimant's damage; and
(2) The likelihood that the product's design would cause the
claimant's damage and the gravity of that damage outweighed
the burden on the manufacturer of adopting such alternative
design and the adverse effect, if any, of such alternative
design on the utility of the product. An adequate warning
about a product shall be considered in evaluating the
likelihood of damage when the manufacturer has used reasonable
care to provide the adequate warning to users and handlers of
the product.
La. Rev. Stat. Ann. § 9:2800.56.
Here,

Becnel's

allegations

never

mention

an

alternative

design, therefore he fails to state a claim for a design defect.
Jacobsen v. Wyeth, LLC, No. 10-0823, 2012 WL 3575293 (E.D. La. Aug.
20, 2012)(granting defendant's motion to dismiss when the plaintiff
failed to plead the " 'essential element' that there existed an
available alternative design.") The Court will, however, grant
Becnel leave to amend his complaint on this element.
2. Failure to Warn
The LPLA provides that:
A product is unreasonably dangerous because an adequate
warning about the product has not been provided if, at the
time the product left its manufacturer's control, the product
possessed a characteristic that may cause damage and the
manufacturer failed to use reasonable care to provide an
adequate warning of such characteristic and its danger to
users and handlers of the product.

17

La. Rev. Stat. Ann. § 9:2800.57.3 Though Becnel's allegations
border on conclusory, the Court finds that the Complaint is
sufficient to put MBUSA on notice of the failure to warn claim
against it. Further factual support is likely inaccessible until
discovery is underway; therefore, the motion will be denied as to
the failure to warn claim at this time.
D. Redhibition Claim
Even when the LPLA applies, plaintiffs still have a separate
redhibition claim because such claims are not precluded by the
LPLA. Cuisimano, 2012 WL 5398440 at *2. 8 (La.2008) ("while the
LPLA is the exclusive remedy against manufacturers for damages
resulting from a defective product, a manufacturer can still be
liable for damages in redhibition.”) Accordingly, the Court must
determine if Becnel sufficiently alleges a redhibition claim. Both
Becnel and Defendant confound the many elements and standards
required for this claim and other warranty claims; however, after
reviewing the allegations, the Court finds that Becnel does state
a claim under Article 2520 for redhibition.

In such suits, the

plaintiff must prove: (1) the seller sold the thing to him and it
is either absolutely useless for its intended purpose or its use is

3

Liability may also exist when: "A manufacturer of a product who,
after the product has left his control, acquires knowledge of a characteristic
of the product that may cause damage and the danger of such characteristic, or
who would have acquired such knowledge had he acted as a reasonably prudent
manufacturer, is liable for damage caused by his subsequent failure to use
reasonable care to provide an adequate warning of such characteristic and its
danger to users and handlers of the product." La. Rev. Stat. Ann. § 9:2800.57.
It does not, however, appear that Becnel intends to rely on this provision.

18

so inconvenient or imperfect that, judged by the reasonable person
standard, had he known of the defect, he would never have purchased
it; (2) the thing contained a non-apparent defect at the time of
sale; and (3) the seller was given an opportunity to repair the
defect. Here, it is not disputed that MBUSA sold Becnel the
vehicle, and he properly alleges that there was no way for him to
perceive the defect, that the defect renders the car unusable, and
that he returned the vehicle for service several times to no avail.
Therefore, though Becnel never uses the word "redhibition," it is
clear

from

his

allegations

that

he

intends

to

allege,

and

successfully does allege, that MBUSA is liable for a redhibitory
defect in the vehicles under Louisiana Civil Code Art. 2520.
E. Other non-LPLA Claims
If it is later determined that MBUSA is not the manufacturer
under the LPLA, then Becnel's freestanding claims will not be
preempted; therefore, it is necessary to determine whether Becnel's
allegations are sufficient to state these claims.
1. Negligence
"[T]o establish liability in a negligence case, the plaintiff
must show that: (1) the defendant had a duty to conform its conduct
to a specific standard; (2) the defendant's conduct failed to
conform

to

the

appropriate

standard;

(3)

the

defendant's

substandard conduct was a cause of the plaintiff's injuries; and
(4) the risk of harm was within the scope of the breached duty."
19

Ford v. Pennzoil, 974 F. Supp. 559, 565 (E.D. La. 1997) aff'd, 200
F.3d 816 (5th Cir. 1999) Becnel clearly alleges sufficient facts to
state a claim for negligence, as is evidence by the prior finding
that he stated a claim for failure to warn. Accordingly, the motion
will be denied as to the negligence claim.
2. Strict Products Liability
In Counts II and III, Becnel alleges that MBUSA is strictly
liable for the damages caused by its failure to warn and its
defective design. If MBUSA is not found to be a manufacturer, these
claims

must

be

dismissed.

"A

non-manufacturing

seller

of

a

defective product is not responsible for damages in tort absent a
showing that he knew or should have known that the product sold was
defective." Jones v. Employers Mut. Liab. Ins. Co., 430 So.2d 357,
359 (La. App. 2d. Cir. 1983)(emphasis added).

This is clearly a

negligence standard, meaning that strict product liabilty claims do
not exist for a non-manufacturing seller. See Kennedy, supra, at
573.4 Consequently, if MBUSA is found not to be a manufacturer,
Becnel's strict liability claims will fail as a matter of law.
3. Breach of Implied Warranties
In Counts IV and V, Becnel alleges that MBUSA is liable for
breach of the implied warranty of merchantability because the
4

A seller of a product may, in many instances, be subject to the LPLA.
Kennedy, supra, at 573-76. However, "pure" sellers of a product, meaning those
that do not fit into any category of sellers described in the LPLA, are not
subject to the LPLA but rather are subject to the same standard that was
applied to sellers prior to the enactment of the LPLA, which is essentially a
negligence standard. Kennedy, supra, at 573.

20

vehicles MBUSA sold were not of merchantable quality and for a
breach of the implied warranty of use for a particular purpose.
These claims, in the sense that Becnel applies them, do not exist
in Louisiana. They exist under Article 2 of the Uniform Commercial
Code, but Louisiana has not adopted UCC Article 2. James W. Bowers,
Incomplete Law, 62 LA. L. REV. 1229, 1277, n. 12 (2002)("Louisiana
has not adopted Article 2.") Instead, the Louisiana Legislature
amended its sales laws to substantially conform with Article 2. Id.
Accordingly, the Article 2 causes of action alleged by Becnel are
covered under the Civil Code's

redhibition provisions. La. Civ.

Code. Arts. 2520-2532; see also Sidney D. Fazio, A Comparison of
Redhibition in Louisiana and the Uniform Commercial Code, LA. L.
REV. 165, 178 (1958). As the Court already noted above, Becnel has
sufficiently alleged a redhibition claim, and the mislabeling of
his claims is not grounds for dismissal. However, the Court urges
Becnel to amend his complaint to reflect the proper labels for his
claim.
4. Fraudulent Concealment
Louisiana Civil Code Art. 1953 defines fraud as:
Fraud is a misrepresentation or a suppression of the
truth made with the intention either to obtain an unjust
advantage for one party or to cause a loss or
inconvenience to the other. Fraud may also result from
silence or inaction.

21

La. Civ. Code. Art. 1953.5 In another products liability action
based on defective vehicles, the court founds that the plaintiffs'
assertion that the defendant "committed fraud by concealing or
suppressing the truth about the defect in its vehicles, which gave
plaintiffs

the

misimpression

that

Ford's

products

were

not

defective and induced them to purchase them" stated a claim for
fraud under Louisiana Civil Code article 1953. In re Ford Motor Co.
Vehicle Paint Litig., MDL 1063, 1996 WL 426548 (E.D. La. July 30,
1996) As the allegations in this case are substantially similar,
the Court will deny the motion to dismiss on Becnel's fraud claim.
5. LUTPA
Louisiana's Unfair Trade Practices and Consumer Protection Law
or LUTPA as it is often called, grants a private right of action
for

the

recovery

of

damages

to

“any

person

who

suffers

any

ascertainable loss ... as a result of the use or employment by
another person of an unfair or deceptive method, act, or practice
declared unlawful by R.S. 51:1405.” La. R.S. 51:1409. “It has been
established that this legislation is broad and does not specify
particular violations.” Monroe Medical Clinic, Inc. v. Hospital
Corp. of America, 522 So.2d 1362, 1365 (La.App.2d Cir.1988).
Therefore, “what constitutes an unfair trade practice is to be

5

Note that though the Court found above that there were no allegations
that MBUSA affirmatively kept Becnel and others from investigating the
problem, it did not discuss MBUSA's silence or inaction, which is a proper
basis for finding fraud in this context. Therefore, our earlier finding is
more narrow than the instant discussion.

22

determined by the courts on a case-by-case basis.” Id. Louisiana
courts have found that in order to recover under LUTPA, the
plaintiff “must prove some element of fraud, misrepresentation,
deception or other unethical conduct on defendant's part.” Marshall
v. Citicorp Mortgage, Inc., 601 So.2d 669, 671 (La.App. 5th
Cir.1992).

“A

practice

is

considered

unfair

when

it

offends

established public policy and when the practice is unethical,
oppressive, unscrupulous, or substantially injurious to consumers,
and consumers include business competitors.” Strahan, 645 So.2d at
1165. Louisiana's legislature intended LUTPA to be interpreted
broadly by courts.
Here, Becnel alleges that MBUSA engaged in fraudulent or
deceptive conduct intended to confuse or mislead the public and
advertised vehicles with the intent to not sell them as advertised.
Were

these

considered

facts

proven

"unscrupulous"

to

be
or

true,

such

conduct

"substantially

could

injurious

be
to

consumers;" therefore, at this time, the Court will not dismiss
Becnel's LUTPA claim.
II. Motion to Strike Class Allegations
Also before the Court is MBUSA's Motion to Strike Class
Allegations. To ensure that the Court is operating under the
correct and most complete set of facts, the Court will defer ruling
on this motion until Becnel files an amended complaint. In the
event that Becnel does not amend his Complaint, the Court will take
23

the matter under advisement after time proscribed for amendment has
elapsed.
Accordingly,
IT IS ORDERED that MBUSA's Motion to Dismiss (Rec. Doc. 10) is
GRANTED inasmuch as it seeks to dismiss Becnel's claims based on a
design defect.
IT IS ORDERED that MBUSA's Motion to Dismiss (Rec. Doc. 10) is
DENIED in all other respects.
IT IS ORDERED that plaintiff shall have twenty-one (21) days
from the entry of this order within which to amend his complaint to
remedy the defects discussed in this order.
IT IS ORDERED the Court will defer ruling on Defendant's
Motion to Strike (Rec. Doc. 12) until plaintiff files an amended
complaint.

In

the

event

that

plaintiff

does

not

amend

his

Complaint, the Court will take the matter under advisement after
time proscribed for amendment has elapsed.
New Orleans, Louisiana this 13th day of May, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

24