Becnel v. Mercedes-Benz, USA, LLC

Filing 47

ORDER & REASONS: ORDERED that MBUSA's Partial Rule 12(b)(6) Motion to Dismiss (Rec. Doc. 39 ) is GRANTED IN PART AND DENIED IN PART. It is GRANTED with respect to Plaintiff's LPLA breach of warranty claim, LPLA manufacturing claim, and independent strict liability claims, but DENIED in all other respects. FURTHER ORDERED that MBUSA's Rule 12(F) Motion to Strike (Rec. Doc. 39 ) is DENIED. Signed by Judge Carl Barbier on 9/10/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BECNEL

CIVIL ACTION

VERSUS

NO: 14-0003

MERCEDES-BENZ USA, LLC

SECTION: “J” (5)

ORDER & REASONS
Before the Court is Defendant Mercedes-Benz USA, LLC (MBUSA)'s
Partial Rule 12(b)(6) Motion to Dismiss and Rule 12(f) Motion to
Strike (Rec. Doc. 39), Plaintiff Daniel E. Becnel, Jr.'s opposition
(Rec. Doc.41), and MBUSA's reply memorandum. (Rec. Doc. 46) 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 out of Plaintiff's purchase of an allegedly
defective 2008 Mercedes-Benz GL320.

(Rec. Doc. 1, p. 4) Plaintiff

purchased the vehicle from Mercedes-Benz of New Orleans (Dealer) on
February 26, 2008. Id. On November 31, 2011,1 after noticing that

1

Plaintiff's Class Action Complaint initially stated that he first brought
the car in for service on the alleged defect on November 31, 2011. However, his
First Amended and Supplemental Complaint alleges that this occurred on November
23, 2011.

1

his vehicle was leaning to one side, thereby making it unreliable
and undriveable, Plaintiff brought the vehicle to the Dealer for
service. (Rec. Doc. 1, p. 4). The problem recurred, and Plaintiff
again brought the vehicle in for service on March 5, 2012, June 28,
2012, August 31, 2013, October 7, 2013, and on November 5, 2013.
(Rec. Doc. 31, pp. 5-7) Each time Plaintiff tendered the vehicle
for

service,

a

part

within

the

Airmatic

Suspension

System

(Suspension System) was cited as the problem and was repaired. Id.
Plaintiff alleges that MBUSA knew that the Suspension System was
defective, but concealed that fact from past, current, and future
owners and/or lessors of GL model vehicles.
Based on these facts, Plaintiff 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) Plaintiff alleged seven
causes of action, which included claims for negligence, strict
product liability for a design defect and failure to warn, breach
of implied warranty of merchantability and fitness for a particular
use, fraudulent concealment, and violations of the Louisiana Unfair
Trade Practice Act, Louisiana Revised Statute

§ 51:1401, et seq.

(LUTPA).2
2

Plaintiff made no reference to the Louisiana Products Liability Act in
the complaint. This Court has found, however, that he "clearly invoke[d] the LPLA
even if he [did] not do so expressly" by "alleging that MBUSA's product [was]

2

On February 28, 2014, MBUSA filed a Rule 12(b)(6) Motion to
Dismiss (Rec. Doc. 10) and a Motion to Strike Class Allegations.
(Rec. Doc. 12) In relevant part, MBUSA argued that Plaintiff's
allegations were conclusory, and Plaintiff therefore failed to
allege sufficient facts to state a claim for a design defect under
the Louisiana Products Liability Act, Louisiana Revised Statutes §
9:2800.51 et seq.

(LPLA). (Rec. Doc. 10, pp. 4-6) Additionally,

MBUSA argued that the Court should dismiss Plaintiff's freestanding
claims for negligence, breach of implied warranties, fraudulent
concealment, and LUTPA violations because the LPLA preempted these
other causes of action. (Rec. Doc. 10, pp. 9-11)
The Court ruled on MBUSA's Motion to Dismiss on May 13, 2014.
(Rec. Doc. 30) The Court granted the Motion to Dismiss inasmuch as
it sought to dismiss Becnel's claims based on a design defect, but
denied it in all other respects. The Court noted that Becnel
successfully pleaded an LPLA design defect claim but for his
failure to "sufficiently allege that the vehicle was 'unreasonably
dangerous in one of the four ways required in the statute.'" (Rec.
Doc. 30, p. 16) The Court then granted Plaintiff leave to file an
amended complaint to cure this defect. The Court declined to
dismiss Plaintiff's freestanding claims for negligence, breach of

defective and that MBUSA [was] the manufacturer." (Rec. Doc. 30, p. 15)

3

implied warranties, fraudulent concealment, and LUTPA violations,
finding that Plaintiff was entitled to allege "all theories of
potential recovery, even if such theories conflict." Id. at 14.
Although the Court initially deferred ruling on MBUSA's Motion to
Strike Class Allegations, the Court subsequently issued an order
granting the motion. (Rec. Doc. 36)
Plaintiff filed his amended complaint on May 23, 2014. (Rec.
Doc. 31) In it, Plaintiff realleged3 claims for negligence, design
defect and failure to warn under the LPLA, redhibition, fraudulent
concealment, violations of LUTPA, and strict products liability. In
accordance with the Court's order (Rec. Doc. 30, p. 17), Plaintiff
supplemented his LPLA design defect claim by including allegations
of an alternative design for the product that would have prevented
his damage. (Rec. Doc. 31, pp. 16-17) Additionally, Plaintiff added
new

claims

under

LPLA

based

on

dangerous

construction

or

composition (LPLA manufacturing claim) and the product's failure to
conform to an express warranty (LPLA express warranty claim).
Plaintiff further supplemented his complaint by including a claim
for breach of a written or implied warranty in violation of the
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. (MMWA).

3

Because the Court interprets the initial complaint as stating claims for
redhibition as well as design defect and failure to warn claims under the LPLA,
Plaintiff "realleged" those claims in the amended complaint although it was the
first time Plaintiff explicitly styled his claims as such.

4

On June 27, 2014, MBUSA filed the instant Partial Rule
12(b)(6) Motion to Dismiss and Rule 12(F) Motion to Strike. (Rec.
Doc. 39) MBUSA urges the Court to dismiss Plaintiff's (1) LPLA
design defect claim; (2) LPLA manufacturing claim; (3) LPLA breach
of warranty claim; (4) MMWA claim; and (5) independent strict
liability claim. Alternatively, MBUSA asks the Court to strike the
claims Plaintiff added to his first amended complaint without leave
from the Court, namely, the LPLA manufacturing and breach of
warranty claims, as well as the MMWA claim. Plaintiff opposed the
motion on July 22, 2014. (Rec. Doc. 41) MBUSA filed its reply on
July 30, 2014. (Rec. Doc. 46)
LEGAL STANDARD
A. Motion to Dismiss
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)
5

(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
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.
B. Motion to Strike
Under Federal Rule of Civil Procedure 12(f), “[t]he court may
strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
12(f).

FED. R. CIV. P.

The decision to grant or deny a motion to strike lies

within the sound discretion of the trial court.

Tarver v. Foret,

No. 95-1192, 1996 WL 3536, at *1 (E.D. La. Jan. 3, 1996). However,
motions to strike under Rule 12(f) are disfavored and “should be
used sparingly by the courts” because they are considered a
“drastic remedy to be resorted to only when required for the
purposes of justice.”

Pan–Am. Life Ins. Co. v. Gill, No. 89-5371,

1990 WL 58133, at *2 (E.D. La. Apr. 27, 1990) (internal quotations
omitted).

Additionally, the moving party must generally make a
6

showing of prejudice before a motion to strike is granted.

Id.

DISCUSSION
A. Motion to Dismiss
1. LPLA Design Defect
MBUSA argues that the Court should dismiss Plaintiff's LPLA
design defect claim because Plaintiff again fails to allege facts
sufficient to meet the requirements of such a claim. (Rec. Doc. 391, pp. 3-4) Although Plaintiff amended his complaint to allege the
existence of an alternative design, Plaintiff failed to allege
facts showing that "[t]he likelihood that the product's design
would cause the claimant's damage and the gravity of that damage
outweighed
alternative

the

burden

design

on

and

the

the

manufacturer

adverse

effect,

of

adopting

such

if

any,

such

of

alternative design on the utility of the product." See id. (quoting
LA. REV. STAT. ANN. § 9:2800.56). Therefore, MBUSA argues the Court
should dismiss the claim.
By contrast, Plaintiff argues that he cured the deficiencies
in his first complaint by alleging the existence of an alternative
design, "the one that the Defendant previously used in the vehicles
prior to changing to the Airmatic System." (Rec. Doc. 41, p. 4)
Plaintiff further states that "[i]t is inherent that if a system
already existed and was in use, then it would not be burdensome on
the Defendants to use that system and the risk that a person's car
7

would not suddenly and without warning lean substantially to one
side exceeds whatever burden may exist[]." Id. To the extent that
these statements do not satisfy the elements of a LPLA design
defect claim, Plaintiff contends that the standard should be
relaxed until discovery is conducted because at this stage the
necessary factual information is in MBUSA's possession.
To state a claim under the LPLA, a plaintiff must plead facts
in support of each of the following elements of an LPLA claim:
(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 damage 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). A product is considered "unreasonably dangerous"
in satisfaction of the third element when a plaintiff shows that it
suffers from a "manufacturing defect, design defect, inadequate
labeling, [or when there has been a] breach of express warranty."
(Rec. Doc. 30, p. 16)(citing Scianneaux, 961 F. Supp. 2d at 811)
The Court previously held that Becnel satisfied all but the third
element of an LPLA claim. (Rec. Doc. 30, p. 16) Thus, the issue
before

the

Court

is

whether

Plaintiff's

amended

complaint

sufficiently alleges that a design defect rendered his vehicle

8

"unreasonably dangerous."
The LPLA provides that "[a] product is unreasonably dangerous
in design if, at the time the product left its manufacturer's
control":
(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, Plaintiff alleged, "[a]s the
GL class were the first vehicles to use the Airmatic Air Suspension
System, an alternative design was available to Defendant that had
been used . . . reliably in the past, namely the suspension system
the Airmatic replaced." (Rec. Doc. 31, p. 16)
The Court finds that Plaintiff has alleged sufficient facts in
support of his LPLA design defect claim to survive the instant
motion to dismiss. Plaintiff cured the defect from his initial
complaint by adding allegations regarding an alternative design.
(Rec. Doc. 30, p. 17; Rec. Doc. 31, p. 16) Plaintiff does not
merely state in a conclusory fashion that an alternative exists;
rather, he identifies that alternative design as the system the
Airmatic replaced. (Rec. Doc. 31, p. 16) The Court acknowledges
9

that Plaintiff has not alleged in detail "that the product's design
would cause the claimant's damage and the gravity of that damage
outweighed

the

alternative

burden

design

on

and

the

the

manufacturer

adverse

of

such

if

effect,

adopting
any,

such

of

alternative design on the utility of the product." See La. Rev.
Stat. Ann. § 9:2800.56. However, the Court will not require such
specificity at this stage in the litigation, when Plaintiff has not
yet had the benefit of discovery.
2. LPLA Manufacturing
MBUSA argues that Plaintiff's LPLA manufacturing claim merely
parrots the language of the statute while simultaneously failing to
mention the elements of such a claim as specified in the statute.
(Rec. Doc. 39-1, pp. 5-6) Plaintiff alleges that the Suspension
System is "unreasonably dangerous" in construction or composition.
Id. Plaintiff does not, however, explain how that is so; that is,
Plaintiff does not describe the mistake in the manufacturing
process that renders the product dangerous in construction or
composition. Id. MBUSA argues that Plaintiff does not even identify
which

of

the

Suspension

System

components

is

defective

and,

further, fails to explain how such component deviates from MBUSA's
specifications.
Plaintiff

counter

argues

that

he

has

alleged

a

LPLA

manufacturing claim with as much specificity as possible at this
10

stage of the litigation. Plaintiff has "identified all components
that have failed," but cannot explain how the failure occurred
because he lacks the knowledge and expertise.

(Rec. Doc. 41, pp.

5-6) Plaintiff maintains that information regarding the "exact
mistake that was made in the manufacturing process . . . is
possessed by the Defendant alone and cannot be known by Plaintiff
[until] discovery is conducted." Id. at 5. Finally, Plaintiff
alludes

to

the

factual

allegations

in

his

amended

complaint

describing how the vehicle suffers a "significant lean," which
clearly was not the intended outcome. Id. at 6. Plaintiff argues
such

allegations

reveal

the

requisite

deviation

from

the

performance standard. Id.
The Court finds that Plaintiff has failed to make out a claim
for a manufacturing defect under the LPLA. The LPLA provides that
"[a]

product

is

unreasonably

dangerous

in

construction

or

composition if, at the time the product left its manufacturer's
control,

the

product

deviated

in

a

material

way

from

the

manufacturer's specifications or performance standards for the
product or from otherwise identical products manufactured by the
same

manufacturer."

La.

Rev.

Stat.

Ann.

§

9:2800.55.

Here,

Plaintiff does not allege that his vehicle deviated in a material
way from otherwise identical products; Plaintiff initially styled
the

suit

as

a

class

action

to
11

recover

damages

suffered

by

purchasers of the GL class SUV Mercedes-Benz vehicle as a result of
the defective Suspension System included in all such vehicles.
(Rec. Doc. 31, p. 1) Instead, Plaintiff alleges that the product
deviates from MBUSA's specifications or standards because the
vehicle drives on a lean when it is not supposed to. But Plaintiff
does not show how a mistake in the manufacturing process resulted
in

a

defective

Suspension

System

that

deviates

from

MBUSA's

specifications or standards. Plaintiff therefore fails to state a
LPLA manufacturing claim. See Kennedy v. Pfizer, 2013 WL 4590331,
at *2-3 (W.D. La. Aug. 28, 2013)(granting defendant's motion to
dismiss where plaintiff failed to allege how the drug varied from
defendant's standards).
3. LPLA Breach of Warranty
MBUSA stresses that Plaintiff has failed to specifically
allege the existence of any warranty. (Rec. Doc. 39-1, pp. 6-9)
Again, Plaintiff merely parrots the language of the statute without
including factual allegations regarding the warranty and how MBUSA
breached that warranty. Id. at 6. Plaintiff's breach of warranty
claim cannot survive a motion to dismiss without including more
than general references to MBUSA warranties; Plaintiff must specify
the warranty in question. Id. at 7. To the extent that Plaintiff
relies

upon

the

Mercedes-Benz

4-year/50,000

mile

New

Vehicle

Limited Warranty (NVLW) to support his claim, the claim must fail
12

because the NVLW does not warrant against defects. Id. at 7-8.
Rather, it specifically anticipates that the vehicle could contain
defects and states that Mercedes-Benz will conduct repairs as
necessary during the term of the NVLW to address any such defects.4
Id. at 8. Finally, Plaintiff cannot rely on statements contained in
Mercedes-Benz advertising or websites because those statements are
puffery, "general praise," or "general opinion," which do not
constitute express warranties under the LPLA. Id. at 8-9.
Plaintiff argues that MBUSA relies on California cases in
attempting

to

show

that

the

statements

in

question

do

not

constitute express warranties under the LPLA. (Rec. Doc. 41, pp. 67) Under Louisiana law, according to Plaintiff, a representation or
promise about a product or its nature is an express warranty, the
breach of which gives rise to liability under the LPLA. Id. at 7.
Plaintiff therefore claims that the representation from MercedesBenz

U.S.

International,

Inc.'s

website

asserting

that

their

"process contributes to quality manufacturing of [their] products
in ways that are safe, efficient, and predictable" amounts to an

4

In relevant part, the NVLW reads as follows: "DEFECTS: Mercedes-Benz USA,
LLC (MBUSA) warrants to the original and each subsequent owner of a new MercedesBenz truck that any authorized Mercedes-Benz Truck Center will make any repairs
or replacements necessary, to correct defects in material or workmanship arising
during the warranty period." (Rec. Doc. 39-2, p. 2) The NVLW goes on to instruct
owners to bring their vehicle to "[a]ny authorized Mercedes-Benz Truck Center"
for warranty repairs or replacements. Id.

13

express warranty under the LPLA.5 Id. Here, by producing and
tendering to Plaintiff a vehicle with a defective Suspension
System, MBUSA breached this warranty. (Rec. Doc. 31)
The Court finds that the statement identified by Plaintiff is
of the sort of puffery, general praise, or opinion that does not
constitute an express warranty under the LPLA. See Scott v. Am.
Olean Tile Co., Inc., 97-1080, p. 8 (La. App. 3 Cir. 2/4/98); 706
So. 2d 1091, 1095. Plaintiff bases his LPLA breach of warranty
claim on the statement from Mercedes-Benz U.S. International,
Inc.'s

website to the effect that their "process contributes to

quality manufacturing of [their] products in ways that are safe,
efficient, and predictable." (Rec. Doc. 41, p. 7) Importantly,
Plaintiff does not argue that the NVLW constitutes a warranty for
the

purposes

of

his

LPLA

claim.

Stating

that

a

process

"contributes" to manufacturing products that are "safe, efficient,
and predictable" does not guarantee that those products will be
safe, efficient, and predictable. See id. Such statement is too
broad and nonspecific to constitute an express warranty. Plaintiff
has failed to state a claim for breach of warranty under the LPLA.
Thus, the Court will grant MBUSA's motion to dismiss insofar as it
applies to this claim.
5

MBUSA points out that another entity made this statement. Moreover, the
statement amounts to general praise or opinion not actionable under the LPLA.
(Rec. Doc. 44-2, p. 5)

14

4. MMWA6
MBUSA argues that Plaintiff's MMWA claim must be dismissed
because Plaintiff

failed to meet two requirements for a claim

under the MMWA. (Rec. Doc. 39-1, p. 9) First, Plaintiff again
failed

to

identify

any

applicable

warranty.

Id.

at

9-12.

Plaintiff's bare statement that "Defendant's express warranties are
written warranties within the meaning of the [MMWA]" is conclusory
and insufficient to survive a motion to dismiss. Id. at 10. If
Plaintiff intends to base his claim on the NVLW,7 Plaintiff's claim
fails because he cannot show that MBUSA breached that warranty. Id.
at 11-12. Other statements referenced by Plaintiff are mere puffery
and insufficient to support a breach of warranty claim under the
MMWA. Id. at 10-11. Moreover, with the exception of the NVLW, the
alleged warranties do not identify a specified period of time as
required under the MMWA. Second, Plaintiff failed to provide MBUSA
with an opportunity to cure the alleged defect before filing suit.

6

Plaintiff's MMWA claim is not based on the same allegations as its LPLA
or state-law breach of warranty claim–the LPLA claim is based on statements
provided on Mercedes-Benz U.S. International, Inc.'s website, whereas the MMWA
claim is based on the NVLW. Consequently, the dismissal of Plaintiff's LPLA
state-law breach of warranty claim does not necessitate the dismissal of
Plaintiff's MMWA claim. See, e.g., Selby v. Goodman Mfg. Co., LP, No. 2:13-CV2162-RDP, slip op. at 4 (N.D. Ala. June 17, 2014); McCabe v. Daimler AG, 948 F.
Supp. 2d 1347, 1364 (N.D. Ga. 2013).
7

Plaintiff does not explicitly reference the NVLW in either complaint, nor
does he attach it to the pleadings. MBUSA included a reference to the NVLW and
attached a copy of the warranty to its motion for the sake of its argument. (Rec.
Doc. 39-2)

15

Id. at 12-13. Plaintiff cannot avoid this requirement by arguing
that any such attempt would have been futile because MBUSA knew of
the defect at the time of sale. Id. at 13. Further, Plaintiff did
not fulfill this requirement by bringing the vehicle in for service
at a Mercedes-Benz Truck Center; Plaintiff was required to bring
the vehicle to MBUSA for an opportunity to cure. (Rec. Doc. 44-2,
pp. 5-6)
Plaintiff argues that both MBUSA's advertising and the NVLW
include representations that constitute express warranties under
the MMWA. (Rec. Doc. 41, pp. 7-8) Plaintiff stresses that the NVLW
is written and specifies a time period as required by the MMWA. Id.
at 8. Because MBUSA attached the NVLW to its motion, Plaintiff
argues this Court should consider it as part of the complaint.
MBUSA breached this express warranty by failing to correct the
defect in the Suspension System, which continued to malfunction for
years after the repairs were undertaken within the warranty period.
Finally, Plaintiff states in his amended complaint that he was not
required to give MBUSA an opportunity to cure because it would be
futile in this case. (Rec. Doc. 31, p. 28) In his opposition,
however, Plaintiff argues that he gave MBUSA an opportunity to cure
the defect when he brought the car in for service. (Rec. Doc. 41,
p. 9)
"[T]he MMWA creates a statutory cause of action for consumers
16

damaged by the failure of a supplier, warrantor, or service
contractor to comply with any obligation [included in] a written
warranty."8 Walton v. Rose Mobile Homes LLC, 298 F.3d 470, 474 (5th
Cir.

2002)(citing

15

U.S.C.

§

2310(d)(1)).

The

MMWA

defines

"written warranty" as
any written affirmation of fact or written promise made
in connection with the sale of a consumer product by a
supplier to a buyer which relates to the nature of the
material or workmanship and affirms or promises that such
material or workmanship is defect free or will meet a
specified level of performance over a specified period of
time.
§ 2301(6)(A). Additionally, "[b]efore bringing a suit for breach of
warranty, the consumer must give [the obligor] under the warranty
a reasonable opportunity to 'cure' their failure to comply with the
obligations at issue." Walton, 298 F.3d at 474.
The Court finds that the NVLW is an express warranty that
could give rise to a cognizable claim under the MMWA.9 Although
MBUSA argues that it fully complied with the warranty when a
8

The MMWA similarly creates a cause of action for consumers damaged by
breach of an implied warranty, 15 U.S.C. § 2310(d)(1), but leaves the definition
of what constitutes an implied warranty to state law. Id. § 2301(7). Plaintiff,
however, does not actually identify an implied warranty the breach of which could
give rise to a claim under the MMWA. Plaintiff merely states, "[t]he Defective
Vehicles implied warranties are covered under 15 U.S.C. § 2301(7)." (Rec. Doc.
31, p. 27) Plaintiff also does not assert that the breach of an implied warranty
supports his MMWA claim in his reply.
9

The Court will consider the NVLW despite Plaintiff's failure to include
it in its pleadings. "The district court may consider 'an undisputably authentic
document that a defendant attaches as an exhibit to a motion to dismiss if the
plaintiff's claims are based on that document.'" Brock v. Baskin-Robbins USA Co.,
113 F. Supp. 2d 1078, 1092 (E.D. Tex. 2000)(quoting Steinhardt Group Inc. v.
Citicorp, 126 F.3d 144, 145 (3d Cir. 1997)).
17

Mercedes service station conducted the November 2011 repairs to the
vehicle, the Court finds that there is a question of fact as to
whether the defect in the Suspension System was in fact corrected
at that time. At this stage in the litigation, the Court must
accept as true Plaintiff's well-pleaded facts. Here, Plaintiff
asserts that he had to bring his car in for service to the
Suspension System five times after the initial repair. Therefore,
it is possible that MBUSA breached the NVLW.10 Finally, the Court
finds that Plaintiff allowed MBUSA the requisite opportunity to
cure the defect when Plaintiff brought the vehicle into a MercedesBenz Truck Center per MBUSA's instructions in the NVLW. See
Taliaferro v. Samsung Telecomms. Am., LLC, No. 3:11-CV-1119-D, 2012
WL 169704, at *2-3 (N.D. Tex. Jan. 19, 2012)(suggesting that
plaintiff failed to provide manufacturer an opportunity to cure
because plaintiff did not bring his phone to an "authorized phone
service facility" as the warranty instructed); (Rec. Doc. 39-2, p.
2). The Court therefore denies MBUSA's motion to dismiss the MMWA
claim.

10

MBUSA argues that this cannot be the case because Plaintiff does not
state that the particular part of the Suspension System that was replaced in
November 2011 required service again. (Rec. Doc. 44-2, pp. 7-8) But Plaintiff
alleges that the Suspension System is defective. Thus, there is a question as to
whether MBUSA failed to correct the defect in November 2011 because Plaintiff had
to have the Suspension System serviced many times after that initial visit.

18

5. Independent Strict Liability
MBUSA argues that Plaintiff's independent strict liability
claims should be dismissed because they fail as a matter of law.
(Rec. Doc. 39-1, pp. 14-15) Defendant notes that if MBUSA is found
to be a manufacturer, then the LPLA will preempt any freestanding
claims. (Rec. Doc. 39-1, p. 14)(citing Scianneaux v. St. Jude Med.
S.C., Inc., 961 F. Supp. 2d 808, 811 (E.D. La. 2013)("The [LPLA]
provides the exclusive remedy against a manufacturer for damages
caused by its product.")). Additionally, if MBUSA is found to be a
non-manufacturer seller, then MBUSA "is not responsible for damages
in tort absent a showing that he knew or should have known that the
product sold was defective." Id. at 15 (citing Jones v. Employers
Mut. Liab. Ins. Co., 430 So. 2d 357, 359 (La. App. 2d. Cir. 1983)).
Plaintiff chose not to oppose these arguments.
The Court agrees that Plaintiff's independent strict liability
claims fail as a matter of law for the reasons stated in MBUSA's
motion (Rec. Doc. 39-1, pp. 14-15) and reply (Rec. Doc. 44-2, p.
8). Although the Court previously found that Plaintiff is "entitled
to plead all theories of potential recovery, even if such theories
conflict," (Rec. Doc. 30, p. 14) the strict liability claims are
different from Plaintiff's other alternative, non-LPLA claims.
Those

claims

will

survive

if

MBUSA

is

found

to

be

a

non-

manufacturer seller. The independent strict liability claims,
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however, fail whether MBUSA is a manufacturer or a non-manufacturer
seller. Plaintiff therefore cannot assert any facts that would
entitle him to relief under an independent strict liability claim.
Thus,

the

Court

will

grant

MBUSA's

motion

to

dismiss

the

independent strict liability claims.
B. Motion to Strike
Also before the Court is MBUSA's 12(f) Motion to Strike. (Rec.
Doc. 39) Because the striking of a claim under Federal Rule of
Civil Procedure 12(f) is a "drastic remedy" that is "disfavored,"
courts generally require a showing of prejudice to the moving
party. Here, MBUSA has not shown how permitting Plaintiff to make
the additional claims contained in the amended complaint will
result

in

prejudice.

The

Court

therefore

declines

to

strike

Plaintiff's LPLA manufacturing and breach of warranty claims or
MMWA claim.
Accordingly,
IT IS HEREBY ORDERED that MBUSA's Partial Rule 12(b)(6) Motion
to Dismiss (Rec. Doc. 39) is GRANTED IN PART AND DENIED IN PART. It
is GRANTED with respect to Plaintiff's LPLA breach of warranty
claim, LPLA manufacturing claim, and independent strict liability
claims, but DENIED in all other respects.
IT IS FURTHER ORDERED that MBUSA's Rule 12(F) Motion to Strike

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(Rec. Doc. 39) is DENIED.
New Orleans, Louisiana this 10th day of September, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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