Elfaridi et al v. Mercedes-Benz USA, LLC

Filing 78

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that defendants Mercedes Benz USA, LLC, and Daimler AG's motions to dismiss 46 and 64 are GRANTED as to Counts II, III, IV, VI and VII of the complaint, and those Counts are here by dismissed with prejudice. IT IS FURTHER ORDERED that Daimler AGs motion to dismiss 64 Counts I and V is GRANTED with respect to defendant Daimler AG only. In all other respects, the motions to dismiss are DENIED. IT IS FURTHER ORDERED that defe ndant Daimler AG's motion to dismiss or strike plaintiffs' request for punitive damages is DENIED as moot. As the only remaining claims are Counts I and V against Mercedes Benz USA, it shall file its answer to Counts I and V of the amended complaint within the time prescribed by the federal rules. The case will be set for a Rule 16 scheduling conference by separate Order. Signed by District Judge Catherine D. Perry on 8/27/18. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SAID ELFARIDI, et al.,
Plaintiffs,
vs.
MERCEDES-BENZ USA, LLC, et al.,
Defendants.

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Case No. 4:16 CV 1896 CDP

MEMORANDUM AND ORDER
Plaintiffs Hend Aitoufella1 and Dean and Katherine Jarman bring this
putative class action against Mercedes Benz USA, LLC, and Daimler AG,
claiming to represent purchasers and lessees of all 2003–2015 Mercedes-Benz
vehicles equipped with factory-installed panoramic sunroofs, which plaintiffs
allege suffer from a defect that can cause the sunroofs to spontaneously shatter.
(ECF No. 36 at ¶¶ 76, 80).
Plaintiff Aitoufella seeks to represent both a nationwide class and a Missouri
sub-class and asserts claims for: breach of express warranty under the MagnusonMoss Warranty Act (MMWA) and Missouri state law; unjust enrichment; violation
of the Missouri Merchandising Practices Act (“MMPA”); and, breach of the
implied warranty of merchantability under Missouri law.
1

On June 29, 2017, former named plaintiff Said Elfaridi withdrew from the action and the Court
voluntarily dismissed him from the case as class representative. (ECF No. 55)
1

The Jarmans seek to represent both a nationwide class and a Washington
sub-class and assert claims for unjust enrichment, violation of the Washington
Consumer Protection Act (“WCPA”), and breach of the implied warranty of
merchantability under Washington law.
MBUSA and Daimler AG (collectively, defendants or Mercedes) seek
dismissal, arguing that each count fails to state a claim upon which relief can be
granted. Daimler also asks the Court to dismiss or strike plaintiffs’ request for
punitive damages. Because I find plaintiff Aitoufella has sufficiently stated a
claim for breach of express warranty under Missouri law and the MMWA against
defendant MBUSA, I will deny defendants’ motion to dismiss those claims.
However, I will grant defendants’ motion as to the remaining claims.
Background2
Mercedes manufactures, markets, and distributes automobiles in the United
States. Starting in the 2000s, Mercedes manufactured and sold vehicles with an
optional upgrade of a factory-installed panoramic sunroof. The panoramic
sunroofs are made of tempered glass featuring large areas of ceramic paint or
ceramic enamel. Plaintiffs allege the use of ceramic paint or enamel makes the
sunroofs prone to spontaneously bursting. Plaintiffs state that “given the size,
2

The facts contained herein are taken from the allegations set out in the complaint. They are
considered true for the purpose of this Memorandum and Order. See Ashcroft v. Iqbal, 556 U.S.
662, 678–79 (2009); Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
2

thinness, curvature, ceramic print [sic], and attachment to the vehicle’s frame, the
panoramic sunroof glass in Class Vehicles is weakened and not capable of
withstanding the stresses one would reasonably anticipate it would encounter in
ordinary usage, making the glass defective in that it is substantially likely to
shatter.” (ECF No. 36 at ¶ 35).
Plaintiffs further allege that Mercedes was aware of this defect because:
thirty-three Mercedes owners reported an incident of their sunroof spontaneously
shattering with the National Highway and Transportation Safety Administration
(NHTSA);3 Mercedes internally monitors the NHTSA for information; on May 12,
2014, the NHTSA opened an investigation of Kia Sorento panoramic sunroofs; on
May 6, 2015, an article was published on the web regarding incidents of panoramic
sunroofs shattering in Mercedes-Benz vehicles; and, in 2016, in connection with its
investigation into the Kia Sorrento, the NHTSA sent a letter to Mercedes in 2016
requesting information.
Plaintiffs also maintain that the shattering sunroofs pose a danger to vehicle
occupants. Plaintiffs state that this safety risk was recognized in panoramic
sunroof recalls initiated by Volkswagen, Hyundai, and Audi.

3

Specifically, single complaints were filed in 2008, 2009, and 2011. Two complaints were filed
in 2013 and two were filed in 2014. Five complaints were filed through July of 2015. The
remaining 21 complaints were filed after July 2015 (after Aitoufella’s and the Jarmans’ purchase
of their vehicles).
3

In 2013, plaintiffs Dean and Katherine Jarman purchased a new Mercedes
C300. In connection with the purchase of this vehicle, MBUSA provided a New
Vehicle Limited Warranty (NVLW).4 The NVLW provides that:
Mercedes-Benz USA, LLC (MBUSA) warrants to the original and each
subsequent owner of a new Mercedes-Benz vehicle that any authorized
Mercedes-Benz Center will make any repairs or replacements necessary to
correct defects in material or workmanship arising during the warranty
period.
The NVLW states that the warranty period is “for 48 months or 50,000 miles
whichever comes first.” (ECF No. 47-1 at 14). The NVLW contains two
provisions specific to glass. The first provision, contained in the “Items Which
Are Covered” section, states: “Glass is warranted against stress cracks for 12
months or 12,000 miles, whichever occurs first.” Id. at 15. Then, in the section
entitled “Items Which Are Not Covered,” under the heading, “DAMAGE TO
GLASS” the NVLW states: “Glass breakage or scratches are not covered unless
positive physical proof of a manufacturing defect can be established.” (ECF No.
47-1 at 15; ECF No. 36 at ¶ 58).5

4

The amended complaint alleges that the 2013 NVLW and 2016 NVLW are “substantially the
same” and reference MBUSA’s 2016 warranty contained on its website. (ECF No. 36 at ¶ 57).
The 2013 NVLW was not attached to the complaint. Because it was referenced and forms the
basis of plaintiff Aitoufella’s express warranty claim, this Court may consider the it without
converting defendants’ motions to motions for summary judgment. See Ryan v. Ryan, 889 F.3d
499, 505 (8th Cir. 2018) see also Gordon v. Impulse Mktg. Grp., Inc., 375 F. Supp. 2d 1040,
1044 (E.D. Wash. 2005).
5

I note that this provision is not included in the 2016 warranty on MBUSA’s website -- only the
2013 NVLW specifically states that stress cracks are covered. However, as both Aitoufella and
4

On October 26, 2016, the Jarmans’ sunroof cracked while they were driving.
They drove to the dealership, which denied coverage under the warranty for the
repair. After paying to have the sunroof repaired, Mr. Jarman was told that the car
had been inspected and the cause of the shattering was external.
In July of 2015, Plaintiff Hend Aitoufella and her husband Said Elfaridi
purchased a used 2013 Mercedes GLK350. In April 2016, the panoramic sunroof
cracked while Aitoufella was driving in the vehicle. Because Aitoufella was told
“the warranty does not cover sunroof damage,” she paid to have it repaired. (ECF
No. 36 at ¶ 63).
On December 5, 2016, plaintiffs filed a seven-count class action complaint
in this Court against MBUSA and its parent company Daimler AG, alleging that
Mercedes’ panoramic sunroofs are defective across 14 different Mercedes-Benz
models. In the amended complaint, plaintiff Aitoufella asserts the following
claims: 1) Count I ‒ violation of the Magnuson-Moss Warranty Act (“MMWA”),
15 U.S.C. § 2301 et seq.; 2) Count II ‒ unjust enrichment; 3) Count III ‒ violation
of the Missouri Merchandising Practices Act (MMPA); 4) Count IV ‒ breach of
the implied warranty of merchantability; and 5) Count V ‒ breach of express
warranty. The Jarmans assert claims for 1) Count II ‒ unjust enrichment; 2) Count

the Jarmans purchased 2013 vehicle models specifically covered under the 2013 NVLW, I will
consider this provision in my analysis.
5

VI ‒ violation of the Washington Consumer Protection Act (WCPA); and 3) Count
VII ‒ breach of the implied warranty of merchantability.
Defendant MBUSA filed the instant motion to dismiss on June 5, 2017. On
December 20, 2017, Daimler AG filed its motion to dismiss, incorporating by
reference and joining in all arguments set forth by MBUSA. Daimler also asks the
Court to dismiss or strike plaintiffs’ request for punitive damages.
Motion to Dismiss Standard
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and construes them in favor
of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2)
requires complaints to contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” 550 U.S. 544, 555 (2007); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Specifically, to survive a motion
to dismiss, a complaint must contain enough factual allegations, accepted as true,
to state a claim for relief “that is plausible on its face.” Twombly, 550 U.S. at 570.
The issue in considering such a motion is not whether the plaintiff will ultimately
6

prevail, but whether the plaintiff is entitled to present evidence in support of the
claim. See Neitzke, 490 U.S. at 327.
Discussion
Claims under the State Consumer Protection Statutes
Defendants argue that Counts III and VI should be dismissed because
plaintiffs fail to allege facts establishing the basic elements of a MMPA or WCPA
claim. Specifically, defendants contend that plaintiffs knew the panoramic
sunroofs were defective, failed to disclose this defect to consumers, and
affirmatively misrepresented the safety and superior engineering of the sunroofs
through advertising statements. Defendants further maintain that the MMPA and
WCPA claims, which sound in fraud, fail to meet Fed. R. Civ. P. 9(b)’s heightened
pleading requirements.
A. Count III – Violation of the MMPA
The Missouri Merchandising Practices Act makes unlawful the “act, use or
employment by any person of any deception, fraud, false pretense,
misrepresentation, unfair practice, or the concealment, suppression, or omission of
any material fact in connection with the sale or advertisement of any merchandise.
Mo. Rev. Stat. § 407.020. In MMPA actions, courts apply the more stringent
pleading requirements of Fed. R. Civ. P. 9(b) pertaining to fraud. Johnsen v.
Honeywell Int’l Inc., No. 4:14CV594 RLW, 2016 WL 1242545, at *2 (E.D. Mo.
7

Mar. 29, 2016). Under Rule 9(b), “the circumstances constituting fraud” must be
“state[d] with particularity.” Fed. R. Civ. P. 9(b).
Here, Aitoufella claims defendants 1) made actionable misrepresentations,
and 2) concealed and omitted material facts about the defective sunroofs. With
regard to an alleged misrepresentation, Rule 9(b) requires a plaintiff to allege facts
such as “time, place and contents of false representations, as well as the identity of
the person making the misrepresentation and what was obtained or given up
thereby.” Johnsen, 2016 WL 1242545, at *9-10. See also Abels v. Farmers
Commodities Corp., 259 F.3d 910, 920 (8th Cir. 2001).
In contrast, where the MMPA claim concerns an omission of a material fact
and not an affirmative misrepresentation, to meet Rule 9(b)’s heightened pleading
standard, plaintiffs must allege with specificity the time and place of the conduct
complained of, the content omitted, the identity of the person who omitted it, and
what was obtained or given up thereby. See Budach v. NIBCO, Inc., No. 2:14-CV04324, 2015 WL 3853298, at *7 (W.D. Mo. June 22, 2015).
To the extent Aitoufella’s MMPA claim is based upon an affirmative
misrepresentation, defendants claim dismissal is appropriate as the amended
complaint fails to identify any actionable misrepresentations with the specificity
required under Rule 9(b). Plaintiffs counter that the amended complaint contains
two specific examples of deceptive advertisements which misled consumers by
8

claiming Mercedes-Benz panoramic sunroofs were stronger, safer and of superior
engineering than other automakers’ sunroofs.
The first advertisement set forth in the amended complaint describes a 2012
E-Class Coupe. Under the phrases, “invisible strength” and “incomparable
scenery,” the ad highlights several features of the vehicle. First, the ad refers to the
four pillarless side windows in the vehicle and states no other automaker offers
such a feature because they lack Mercedes’ engineering strength which allows
Mercedes to match style with safety. The ad then turns to a different feature ‒ the
panoramic sunroof, noting that it provides a breathtaking view of the sun and stars.
At the bottom of the ad, these features are again addressed in more detail. Under
the heading, “Panoramic roof,” the ad expounds on the dramatic view of the sky
and how the front portion of the window can tilt up or be slid back for a breeze.
The second advertisement in the amended complaint pertains to the 2015 G model
vehicle. The ad describes the advantages of the panoramic sunroof ‒ the views it
affords, how its glass rejects heat, and how it lets passengers take in the breeze.
I do not find that these two advertisements constitute actionable
misrepresentations giving rise to a MMPA claim. First of all, the ads pertain to
different models of vehicles (the 2012 E-Class Coupe and the 2015 GLA) than the
vehicles purchased by Aitoufella (2013 GLK350) or the Jarmans (2013 C300).
Moreover, the alleged deceptive statements in the advertisements ‒ regarding
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strength, safety and superior engineering ‒ were made in reference to a feature
other than the panoramic sunroof. In the first ad, the claims of safety and
engineering describe the pillarless design of the side windows. The second ad does
not even mention safety or engineering. Accordingly, the advertisements not only
fail to satisfy Rule 9(b), but they also fail to satisfy Rule 8(a)(2)’s less stringent
requirements. As such, I find Aitoufella has not sufficiently alleged an actionable
misrepresentation in her amended complaint.6
Aitoufella alternately alleges that she has stated a claim under the MMPA as
defendants failed to disclose the defect and concealed and omitted material facts
about the sunroof. Defendants again argue that dismissal is warranted as plaintiff
fails to plead an essential element of an omission-based fraud claim ‒ that
defendants knew of the alleged sunroof defect at the time plaintiff purchased her
vehicle.
A claim for omission of a material fact under the MMPA has a scienter
requirement. Budach, 2015 WL 3853298, at *8. “A plaintiff must show the
defendant failed to disclose material facts that were ‘known to him/her, or upon
reasonable inquiry would [have been] known to him/her.”’ Id. (quoting Plubell v.
6

The parties devote much argument in their briefs disputing whether the advertising statements
constitute non-actionable “puffery.” However, I note that it is unresolved in the state of
Missouri whether puffery is actionable under the MMPA. Murphy v. Rigdon, No. 4:17CV00556
NKL, 2018 WL 1005409, at *4 (W.D. Mo. Feb. 21, 2018). Moreover, I find it unnecessary to
address the parties’ puffery debate as the contested statements concerning safety and engineering
were not made in reference to the panoramic sunroofs.
10

Merck & Co., Inc., 289 S.W.3d 707, 714 (Mo. Ct. App. 2009)) (emphasis in
original).
Both plaintiff Aitoufella and the Jarmans argue that they have sufficiently
alleged Mercedes’ knowledge based upon: 33 consumer complaints made by
Mercedes owners to the NHTSA; defendants’ internal monitoring of the NHTSA;
the NHTSA’s investigation of Kia Sorento’s panoramic sunroof; an article
reporting on the Mercedes-Benz sunroof and the panoramic sunroof shattering
issue in May 2015; and the NHTSA’s 2016 letter requesting information from
Mercedes. Plaintiffs also argue in their brief that Mercedes was aware of sunroof
recalls by other vehicle manufacturers. For the reasons stated below, I agree with
defendants that plaintiffs have not pleaded sufficient facts to establish defendants’
knowledge of the alleged defect.
Plaintiffs attempt to establish defendants’ knowledge of a defect based on
the 33 complaints they allege were filed with the NHTSA and internally monitored
by defendants. The 33 complaints were received between 2008 and 2017 ‒ over a
period of nine years. Upon review of the identified complaints, 21 were filed after
plaintiffs purchased their cars (in 2013 and 2015). The 12 complaints received
prior to the purchase of the vehicles are not significant when compared to the
potential number of class vehicles with a panoramic sunroof. As noted earlier,
there are 14 different models of Class vehicles, covering a span of years from 2003
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through the present. In the amended complaint, plaintiffs contend that defendants
sold “many thousands of Class Vehicles.” (ECF No. 36 at ¶ 79). Twelve monitored
complaints of glass breakage are insufficient to infer defendants’ knowledge of a
defect affecting thousands of vehicles.
Plaintiffs also allege defendants were on notice of a defect because of a
NHTSA investigation into the Kia Sorento’s panoramic sunroof. However, an
investigation into another automaker’s vehicle is insufficient to establish
defendants’ knowledge of a Mercedes-benz defect. See David v. Volkswagen
Group of Am., No. 17-11301-SDW-CLW, slip op., at 13 (D.N.J. April 26, 2018).
Nor do voluntary recalls of vehicles by Volkswagen, Audi and Hyundai
establish defendants’ knowledge of a defect in a Mercedes-Benz vehicle.
Although plaintiffs only reference these recalls in their amended complaint to
establish that shattering sunroofs posed a safety risk, they argue in their response
brief that the recalls also establish defendants’ awareness of a defect. While the
amended complaint does state in paragraph 56 that the recalled vehicles had
“similar panoramic sunroof problems,” it does not allege that the sunroofs of these
other manufacturers had the precise defect at issue here or that they shared the
same design as the Mercedes-Benz vehicles.7 Moreover, it stands to reason that

7

In their reply brief (ECF No. 53-1), defendants ask the Court to take judicial notice of safety
recall letters in order to clarify that the defects in the recalled vehicles were distinct from the
defect alleged here. However, I find it unnecessary to take judicial notice of these documents in
12

panoramic sunroofs could shatter for various reasons. Notably, the Jarmans were
told the cause of their glass shattering was external.
Plaintiffs have cited no authority, and this Court is aware of none, holding
that prior recalls of vehicles with “similar problems” is, standing alone, sufficient
to establish knowledge of a defect. See Deras v. Volkswagen Group of America,
Inc., No. 17-cv-05452-JST, 2018 WL 2267448, at *6 (N.D. Cal. May 17, 2018).
Had the NHTSA ordered a recall or made findings with respect to MBUSA’s
panoramic sunroofs, this would be sufficient for me to infer their knowledge of a
defect. However, plaintiffs concede in their response brief that this is not the case.
(ECF No. 51 at 27).
Plaintiffs also rely on an article published in May 2015, just two months
before plaintiff Aitoufella purchased her vehicle (and after the Jarmans purchased
their car). The article, found on the website digitaltrends.com, is entitled,
“Sunroofs Shattering on Mercedes-Benz Cars, Cause Still Unknown.” I find that
this report is insufficient to allege defendants’ knowledge of a defect. The article
states in its title that the cause of the breakage was unknown and concedes that a
foreign object or interior air pressure could have caused the breakage.
Lastly, plaintiffs contend their allegation that the NHTSA requested
information from Mercedes about its panoramic sunroofs (in connection with its
order to rule on defendants’ motion to dismiss. While plaintiffs’ response brief indicates the
defects in the recalled vehicles is the same as the one alleged here, the complaint does not.
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Kia investigation) establishes defendants’ knowledge of a defect. However, like
the majority of the 33 complaints to the NHTSA, this 2016 letter requesting
information occurred after plaintiffs made their purchases.8
Because plaintiffs’ allegations regarding defendants’ knowledge of a defect
are deficient, I will dismiss Count III. Compare Deras, 2018 WL 2267448, at *4
(finding alleged knowledge based upon customer complaints to the NHTSA,
internal monitoring, and other recalls insufficient to state a claim), and David v.
Volkswagen Group of Am., No. 17-11301-SDW-CLW, slip op., at 13 (D.N.J. April
26, 2018) (concluding plaintiff did not plead knowledge of defect where plaintiff
alleged consumer complaints, a letter to the NHTSA, and a prior recall by
Volkswagen), with Beaty v. Ford Motor Co., No. C17-5201RBL, slip op., at 10
(W.D. Wash. Jan. 16, 2018) (broadly stating there were plausible allegations Ford
knew of purported defect, but only specifically noting one such allegation ‒ that
Ford itself articulated public information that panoramic sunroofs were prone to
shattering).

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Plaintiffs argue that the MMPA does not require knowledge of the defect at the time of the sale.
Plaintiffs cite to Snelling v. HSBC Card Servs. Inc., No. 4:14CV431 CDP, 2015 WL 3621091, at
*8 (E.D. Mo. June 9, 2015), in support of this assertion. However, I find this case inapposite as
it involves an affirmative representation and does not address the element of scienter in an
omission-based claim that is at issue here.
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B. Count VI – Violation of the WCPA
In Count VI, the Jarmans alleges defendants violated the Washington
Consumer Protection Act, RCW 19.86.010 et seq. To prevail on a claim under the
WCPA, a plaintiff must show: (1) an unfair or deceptive act or practice, (2) that
occurs in trade or commerce, (3) a public interest, (4) injury to the plaintiff in his
or her business or property, and (5) a causal link between the unfair or deceptive
act and the injury suffered. Indoor Billboard/Washington, Inc. v. Integra Telecom
of Washington, Inc., 162 Wash.2d 59, 74, 170 P.3d 10 (2007) (citing Hangman
Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 784, 719
P.2d 531 (1986).
As noted above, the heightened pleading requirements of Federal Rule 9(b)
apply to plaintiffs’ claims where fraud is an essential element or where plaintiffs
specifically allege fraudulent conduct. Fed. R. Civ. P. 9(b). Although fraud is not
a necessary element of a WCPA claim, plaintiffs’ WCPA claim alleges fraudulent
conduct. See Goodman v. HTC Am., Inc., No. C11-1793MJP, 2012 WL 2412070,
at *16 (W.D. Wash. June 26, 2012). The Jarmans state that defendants, “concealed
material facts concerning the nature of the panoramic sunroof materials used and
workmanship employed” and “intentionally and knowingly misrepresented
material facts regarding the Class Vehicles with the intent to mislead Plaintiffs.”
(ECF No. 36 at ¶¶ 151, 154). Plaintiffs offer no theory whereby defendants’
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conduct would be unfair, but not deceptive. See Goodman, 2012 WL 2412070, at
*16. Therefore, Rule 9(b) applies to the Jarmans’ WCPA claim in Count VI.
I will first address the Jarmans’ allegation that defendants made actionable
statements that misled consumers in violation of the WCPA. As noted in my
discussion of Aitoufella’s MMPA claim, plaintiffs allege the advertisements
included in the amended complaint constituted deceptive statements and satisfy
Rule 9(b)’s specificity requirement. For the same reasons articulated above in my
analysis of Aituoufella’s claim under the MMPA, I conclude the advertisements do
not constitute actionable misrepresentations giving rise to a WCPA claim.
Likewise, I conclude that the Jarmans have not alternately stated a claim
under the WCPA by alleging that defendants failed to disclose the defect and
concealed material facts about the panoramic sunroof. Like the MMPA, the
WCPA has a scienter requirement for claims based upon fraudulent concealment
and the omission of a material fact. Carideo v. Dell, Inc., 706 F. Supp. 2d 1122,
1132-33 (W. D. Wash. 2010); Zwicker v. Gen. Motors Corp., No. C07–0291–JCC,
2007 WL 5309204, at *4 (W. D. Wash. July 26, 2007). As detailed above,
plaintiffs do not sufficiently plead that defendants had knowledge of the alleged

16

defect in the panoramic sunroofs at the time plaintiffs purchased their vehicles. 9
Accordingly, Count VI will be dismissed.
Count V ‒ Aitoufella’s Claim for Breach of Express Warranty
In Count V of the amended complaint, plaintiff Aitoufella alleges
defendants’ refusal to honor the warranty with a free repair and replacement
constitutes breach. Defendants respond that Aitoufella’s claim fails because there
is no dispute that her 2013 vehicle was well outside the express warranty’s one
year/12,000 mile limitation for glass damage caused by “stress cracks.” Moreover,
defendants contend that the “warranty disclaims coverage for broken glass,
regardless of ‘stress,’ unless there is ‘positive physical proof of a manufacturing
defect;”’ and plaintiff did not provide ‘“positive physical proof” at the time she
requested warranty repairs.” (ECF No. 47 at p.2).
Here, plaintiff Aitoufella claims to own a model year 2013 GLK, which the
parties agree is subject to the 2013 NVLW. The NVLW contains two express
provisions relating to glass:

9

In their response in opposition, plaintiffs cite to several Washington cases for the proposition
the Rule 9(b) standard is relaxed in fraudulent omission claims. Relaxing the standard does not
rescue plaintiffs’ WCPA claims. When the Jarmans purchased their vehicle in 2013, only five
complaints had been filed with the NHTSA. The NHTSA’s investigation into the Kia Sorento
sunroofs had not yet begun, the request for information from Mercedes related to that
investigation had not been made, and the article on MBUSA and incidents of shattering sunroofs
had not been published. Even under a relaxed standard, plaintiffs fail to adequately establish
defendants’ knowledge.
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“Glass is warranted against stress cracks for 12 months or 12,000 miles,
whichever occurs first.”
“Glass breakage or scratches are not covered unless positive physical
proof of a manufacturing defect can be established.”
(ECF No. 47-1 at 14-15).
First, at this preliminary stage of the proceedings, it is not clear that the
spontaneous shattering of sunroofs described in the amended complaint falls
squarely into the category of “stress cracks” addressed in the first provision in the
warranty, and is therefore barred by the one-year/12,000 mile limitation. Although
plaintiff does allege that the stress of ordinary usage played a role, the amended
complaint also lists significant additional causes of spontaneous bursting, such as
the type of ceramic paint used, the manner in which the glass was attached to the
frame, and the size, thinness, and curvature of the sunroof. In addition, the
shattering of an entire sunroof requiring a complete replacement of the glass seems
distinct from the repair of standard stress cracks.
Therefore, I will turn to whether the breakage was covered under the second
warranty provision pertaining to glass. I do not find defendants’ argument
persuasive that this provision of the warranty was inapplicable because plaintiff
failed to present positive proof of a manufacturing defect when her sunroof was
replaced. The plain language of the NVLW does not require positive proof of a
manufacturing defect to be presented by a vehicle owner at the time of repair. It
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only requires that the defect “can be established.” It is well settled that
‘“[u]nequivocal language in written contracts must be given its plain meaning and
enforced as written.’” Citimortgage, Inc. v. Chicago Bancorp, Inc., 2014 WL
4415261, at *3 (E.D. Mo. Sept. 8, 2014) (citing Cmty. Fed. Sav. & Loan Ass’n of
Overland v. Gen. Cas. Co. of Am., 274 F.2d 620, 624 (8th Cir. 1960)). The NVLW
does not address the timing or manner of providing proof of a manufacturing
defect. Furthermore, it essentially would be an impossible task for an ordinary
vehicle owner to provide positive proof of a manufacturing defect when trying to
obtain a repair. At this preliminary stage, because plaintiffs have alleged the
spontaneous shattering was due to such a defect, I cannot say the repair was not
covered by the warranty.
Accordingly, I do not find that the NLVW’s terms exclude coverage for the
type of breakage alleged in the complaint and will deny defendants’ motion to
dismiss Aitoufella’s breach of express warranty claim under Count V. However, I
must still consider Daimler’s separate argument that Aitoufella’s claim must be
dismissed against it as MBUSA, not Daimler, is the sole warrantor. Daimler
contends Aitoufella’s breach claim fails as a matter of law because Aitoufella has
not alleged an affirmation of fact or promise by Daimler that created an express
warranty. In response, plaintiff argues that advertising statements contained in the

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amended complaint created actionable warranty claims because Daimler
developed, reviewed and approved the marketing designed to sell class vehicles.
Under Missouri law, express warranties by the seller are created in relevant
part as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer
which relates to the goods and becomes part of the basis of the
bargain creates an express warranty that the goods shall conform to
the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the
bargain creates an express warranty that the goods shall conform to
the description.
Mo. Rev. Stat. § 400.2-313(1)(a),(b); Carpenter v. Chrysler Corp., 853 S.W.2d
346, 357 (Mo. App. 1993).
First, plaintiff’s claim of breach of express warranty with respect to the
advertisements fails because plaintiff does not sufficiently allege the
advertisements constituted an affirmation or statement by Daimler that became a
basis of the bargain. Not only is plaintiff’s allegation that Daimler approved and
developed marketing broad and conclusory, but the amended complaint contains
no allegation that plaintiff even read the specific advertisements contained therein.
Gannon Joint Venture Ltd. P’ship v. Masonite Corp., No. 4:07CV1242 JCH, 2008
WL 2074107, at *3 (E.D. Mo. May 14, 2008) (finding that because the plaintiffs
did not allege they read the advertising at issue prior to their purchase, they cannot
demonstrate the advertising constituted a material factor inducing the plaintiffs to
20

purchase the goods); In re Bisphenol-A (BPA) Polycarbonate Plastic Prod. Liab.
Litig., 687 F. Supp. 2d 897, 906 (W.D. Mo. 2009), clarified on denial of
reconsideration, No. 08-1967-MD-W-ODS, 2010 WL 286428 (W.D. Mo. Jan. 19,
2010) (stating a representation cannot be part of the “bargain” if the other party to
the bargain did not know the representation was made). Thus, plaintiff does not
allege that an affirmation by Daimler induced her to purchase her car.
Moreover, even if I found plaintiff’s allegations sufficient, the language of
the NVLW itself makes it clear the warranty was issued by and obligates MBUSA,
not Daimler. The NVLW clearly states that “Mercedes-Benz USA, LLC
(MBUSA) warrants to the original and each subsequent owner of a new MercedesBenz vehicle that any authorized Mercedes-Benz Center will make any repairs or
replacements necessary to correct defects in material or workmanship arising
during the warranty period.”
Accordingly, I find the amended complaint lacks sufficient allegations to
support an express warranty claim against Daimler, and Aitoufella’s claim for
breach of express warranty against Daimler will be dismissed. Her claim for
breach of express warranty against MBUSA, however, survives dismissal.

21

Count I ‒ Aitoufella’s MMWA Claim
Defendants contend that Aitoufella’s Magnuson-Moss Warranty Act claim
fails because plaintiff does not assert a viable state-law warranty claim. However,
for the reasons discussed above, I have concluded that Aitoufella has successfully
plead a violation of state warranty law against MBUSA, and will therefore deny
defendants’ motion to dismiss plaintiff’s MMWA claim as it pertains to MBUSA.
I will, however, grant defendants’ motion to dismiss Count I against Daimler as no
state warranty claim remains against it.
Counts IV and VII ‒ Implied Warranty Claims
In Counts IV and VII of the amended complaint, plaintiffs allege defendants
breached the implied warranty of merchantability in violation of Missouri and
Washington law. Specifically, plaintiffs contend their vehicles were not in
merchantable condition and were not fit for the ordinary purpose for which
vehicles are used because they were fitted with defective panoramic sunroofs.
Defendants move to dismiss plaintiffs’ implied warranty claims, arguing that
plaintiffs do not allege a defect that made their vehicles unfit for the ordinary
purpose of providing transportation. With regard to the Jarman plaintiffs,
defendants additionally argue that they did not allege breach within the applicable
warranty period.

22

Specifically, with regard to the Jarmans, defendants argue that 1) the NVLW
limits the duration of any implied warranty to the first to occur of four years or
50,000 miles, and 2) the Jarmans allege in the amended complaint that their vehicle
had 60,279 miles on it seven months prior to their sunroof shattering. In their
memorandum in opposition to MBUSA’s motion to dismiss, the Jarmans concede
that their injury was incurred outside of the warranty period.10 As such, I find the
Jarmans’ implied warranty claim is precluded by the express terms of the NVLW
will dismiss Count VII with prejudice.
Turning Aitoufella’s implied warranty claim in Count IV, defendants argue
that a one-time incident of broken glass does not render an automobile unfit for its
ordinary purpose of providing transportation and the claim should be dismissed.
Under Missouri law, the implied warranty of merchantability warrants that
the product is “fit for the ordinary purposes for which such goods are used.” Mo.
Rev. Stat. 400.2-314(2)(c); Williams v. United Techs. Corp., No. 2:15-CV-04144NKL, 2015 WL 7738370, at *6 (W.D. Mo. Nov. 30, 2015). The implied warranty
of merchantable quality or fitness for use does not require a perfect product, only
one of reasonable quality or reasonable fitness. Smith v. Old Warson Dev. Co., 479
10

After conceding they did not allege breach within the applicable warranty period, the Jarmans
stated that they will continue to pursue their implied warranty claims to the extent the warranty
“is unenforceable, invalid, or may be pursued under any other applicable legal theory.” (ECF No.
51 at 20). However, because the Jarmans do not support this cursory assertion with argument or
authority supporting the proposition, I decline to consider it further.
23

S.W.2d 795, 798–99 (Mo. 1972). A product does not fall short of this standard
simply because it experiences periodic problems. Williams, 2015 WL 7738370, at
*6 (W.D. Mo. Nov. 30, 2015). With regard to automobiles, the implied warranty
of merchantability can only be breached when the “vehicle manifests a defect that
is so basic it renders the vehicle unfit for its ordinary purpose of providing
transportation.” In re Gen. Motors Corp. Anti-Lock Brake Prod. Liab. Litig., 966 F.
Supp. 1525, 1533 (E.D. Mo. 1997), aff’d sub nom. Briehl v. Gen. Motors Corp.,
172 F.3d 623 (8th Cir. 1999).
In this case, Aitoufella’s 2013 vehicle successfully functioned for several
years before the sunroof shattered in 2016, and continued to function after the
sunroof was replaced. This extensive performance satisfies a minimum level of
quality such that defendants did not breach the implied warranty of merchantability
based upon Aitoufella’s allegations. See also Sheris v. Nissan North America Inc.,
2008 WL 2354908, at *5 (D.N.J. June 3, 2008) (finding no violation of the implied
warranty of merchantability where plaintiff drove his car for two years and over
20,000 miles without issue). Although Aitoufella claims that a single incident of
broken glass renders a vehicle unsafe and unfit for transportation, she provides no
authority supporting this proposition. Instead she cites to a factually
distinguishable California case, Isip v. Mercedes-Benz USA, LLC, 155 Cal. App.
4th 19, 27 (2007), involving a vehicle with a litany of problems requiring
24

numerous repairs. Accordingly, I find that the facts alleged do not establish that
plaintiff’s vehicle was unmerchantable. Therefore, as plaintiff has not successfully
pleaded a violation of the implied warranty of merchantability under Missouri law,
I will dismiss Count IV with prejudice.
Count II ‒ Unjust Enrichment Claim
In Count II, plaintiffs Aitoufella and the Jarmans assert defendants were
unjustly enriched as a result of their acts and omissions related to the defective
sunroofs. Defendants argue plaintiffs’ claims for unjust enrichment fail because
they are categorically barred by the contract that governs the subject of this dispute
‒ the NVLW.11
A claim for unjust enrichment is founded upon equitable principles whereby
the law implies a contract. Lowe v. Hill, 430 S.W.3d 346, 349 (Mo. Ct. App.
2014). Under Missouri and Washington law, to state a claim for unjust
enrichment, a plaintiff must show that: (1) the defendant was enriched by the
receipt of a benefit; (2) the enrichment was at the expense of the plaintiff; and (3) it
would be unjust to allow the defendant to retain the benefit. Budach, 2015 WL
11

Defendants initially argue that because plaintiffs did not allege which state’s law applied to
their unjust enrichment claims, their claims failed basic notice-pleading requirements and should
be dismissed. The only case cited by defendants in support of their proposition is True v.
Conagra Foods, Inc., No. 07-00770-CV-W-DW, 2011 WL 176037, at *8 (W.D. Mo. Jan. 4,
2011). True v. Conagra, however, does not address the pleading requirements for an unjust
enrichment claim. Instead, it addresses whether conflicts in potential state laws, including the
law of unjust enrichment, defeat class certification. Id. at *8. Because the case does not stand
for the proposition for which it was cited, I decline to address defendants’ argument any further.
25

3853298, at *8 (citing Executive Bd. of Missouri Baptist Convention v.
Windermere Baptist Conference Center, 280 S.W.3d 678, 697 (Mo. Ct. App.
2009)). See also Young v. Young, 164 Wash. 2d 477, 484, 191 P.3d 1258, 1262
(2008).
An unjust enrichment claim cannot proceed, however, where an express
contract governs the relationship between the parties. Lowe, 430 S.W.3d at 349;
Obester v. Boutique Hotel Dev. Co. LLC, No. 11-3190-CV-S-RED, 2012 WL
12895061, at *8 (W.D. Mo. Feb. 27, 2012); see also Mills v. Baugher, No. 212588-III, 2003 WL 21761817, at *5 (Wash. Ct. App. July 31, 2003) (a party to an
express contract is bound by the provisions of that contract, and may not disregard
the contract and bring an action on an implied contract relating to the same subject
matter). Accordingly, a plaintiff cannot recover under an equitable theory when
she has entered into an express contract for the very subject matter for which she
seeks to recover. Lowe, 430 S.W.3d at 349 (citing Howard v. Turnbull, 316 S.W.3d
431, 436 (Mo. Ct. App. 2010). Further, ‘“the existence of a valid and enforceable
contract governing the subject matter at issue ordinarily precludes recovery for
events arising out of the same.’” Dubinsky v. Mermart LLC, No. 4:08-CV-1806
(CEJ), 2009 WL 1011503, at *5 (E.D. Mo. Apr. 15, 2009), aff’d, 595 F.3d 812 (8th
Cir. 2010) (quoting In re Express Scripts, Inc., PBM Litigation, 522 F.Supp.2d
1132, 1148 (E.D. Mo. 2007)).
26

In this case, plaintiffs expressly allege the existence of a contract ‒ the
NVLW. In the section of the amended complaint entitled, “Mercedes’ Deceptive
Warranty Practices,” the amended complaint states that plaintiffs and class
members “reasonably expected that all damage that resulted from the panoramic
sunroof defect would be covered under the warranty, and that they would not be
charged anything for such repairs.” (ECF No. 36 at ¶59). Plaintiffs further
contend that “Mercedes has systematically denied coverage” and plaintiffs “have
been forced to incur substantial repair bills and other related damages. . . .” Id. at
¶60. In alleging defendants were unjustly enriched, plaintiffs premise their
argument on the NVLW by stating that Mercedes “unjustly charge[d] Plaintiffs and
class members for repairs and/or replacement of the defective panoramic sunroofs.
. . .” Id. at ¶ 104. Plaintiffs contend that defendants “appreciated, accepted, and
retained the non-gratuitous benefits conferred by Plaintiffs” Id. at ¶ 106.
Thus, plaintiffs have explicitly based their unjust enrichment claims on the
violation of the NVLW. Because the NVLW governs the same subject matter,
plaintiffs are precluded from recovering under an equitable theory. Moreover,
plaintiffs’ additional contention that they unjustly enriched defendants by
overpaying for vehicles with defective sunroofs similarly fails due to the existence
of the NVLW, which explicitly addresses and covers manufacturing defects. See
Owen v. Gen. Motors Corp., No. 06-4067-CV CNKL, 2007 WL 172355, at *5
27

(W.D. Mo. Jan. 18, 2007) (“To the extent that [the plaintiffs] argue a benefit was
conferred on [defendant] by the fact that they overpaid for a [vehicle] with
defective wipers, that argument is foreclosed by the existence of the warranty
which they knew would last only four years.”).
Plaintiffs further point out that they properly plead their unjust enrichment
claims in the alternative, but I do not find that precludes dismissal here. See
Budach, 2015 WL 3853298, at *8. A plaintiff is certainly entitled to bring an
unjust enrichment claim as an alternative ground for relief pursuant to Rule 8(e)(2)
of the Federal Rules of Civil Procedure. Id. But where the claim is based in part
on the express terms of the warranty, it arises out of the warranty contract and must
be dismissed. Id; see also Deras, No. 17-CV-05452-JST 2018 WL 2267448, at *3
(N.D. Cal. May 17, 2018) (“Even though Rule 8(e)(2) of the Federal Rules of Civil
Procedure allows a party to state multiple, even inconsistent claims, it does not
alter a substantive right between the parties and accordingly does not allow a
plaintiff invoking state law to an unjust enrichment claim while also alleging an
express contract.”).
Accordingly, defendants’ motion to dismiss Count II will be granted.
Plaintiffs’ unjust enrichment claims are dismissed with prejudice.

28

Injunctive Relief – Request for Recall
In their prayer for relief, plaintiffs ask the Court to order plaintiffs to
“adequately disclose and repair the defective sunroofs.” Defendants maintain that
plaintiffs’ request amounts to a court-ordered recall to replace the panoramic
sunroofs. Defendants argue plaintiffs’ recall-related claims should be dismissed
because they are preempted by the Motor Vehicle Safety Act, 49 U.S.C. 30101 et
seq. Defendants assert in the alternative that even if plaintiffs’ recall-related
claims are not actually preempted, the Court should dismiss them under the
doctrine of primary jurisdiction. As an initial matter, I note that defendants do not
specifically identify which counts they seek to dismiss, but instead generally ask
the Court to dismiss the “recall-related claims.” My review of the amended
complaint shows that only Counts III and VI, alleging violations of the MMPA and
WCPA respectively, ask for injunctive relief enjoining defendants. Because I am
granting defendants’ motion to dismiss Counts III and VI, I find it unnecessary to
address defendants’ preemption and primary jurisdiction arguments.
Daimler’s Motion to Dismiss or Strike Plaintiffs’ Request for Punitive
Damages
In its separate motion to dismiss, Daimler asks the Court to dismiss or strike
plaintiffs’ request for punitive damages. Daimler states that, in their effort to serve
Daimler through the Hague Service Convention, plaintiffs made certain
representations to the German Central Authority (GCA) that are inconsistent with
29

the punitive damages they seek in the amended complaint. Specifically, plaintiffs
stated that they would not seek damages from a split-recovery statute or seek
punitive damages from Daimler.12 Daimler contends that the GCA authorized
service based upon these representations. Daimler argues that plaintiffs’ request
for punitive damages should be dismissed pursuant to the doctrine of judicial
estoppel, or alternately, stricken pursuant Fed. R. Civ. P. 12(f).
Plaintiffs concede that the GCA has rejected service where punitive damages
exist through a split recovery statute as violative of its sovereignty. Plaintiffs
further note that while Missouri has a split-recovery statute,13 they also seek
punitive damages under Washington and Federal law, which do not have such a
statute. Plaintiffs contend that defendants do not demonstrate that the test for
judicial estoppel has been met.
“[J]udicial estoppel embodies the notions of common sense and fair play.”
Egan v. Craig, 967 S.W.2d 120, 126 (Mo. App. E.D. 1998). “Missouri courts in
particular have consistently refused to allow litigants to take contrary positions in
separate proceedings to ensure the integrity of the judicial process.” In re Contest
of Primary Election Candidacy of Fletcher, 337 S.W.3d 137, 146 (Mo. App. W.D.
12

Daimler attaches a copy of the representations made by plaintiffs’’ counsel as an exhibit to its
motion to dismiss. (ECF No. 65-1). Plaintiffs do not dispute the authenticity or accuracy of the
Exhibit.
13

See RSMo §537.675.2 allowing the State of Missouri to deposit fifty percent of any punitive
damages recovery into the state’s tort victim compensation fund.
30

2011). There is no precise formula for determining whether judicial estoppel
applies, Vinson v. Vinson, 243 S.W.3d 418, 422 (Mo. Ct. App. 2007), but three
considerations have commonly been used to guide the determination: “(1) a party’s
later position was clearly inconsistent with its earlier position, (2) the party
succeeded in persuading a court to accept the earlier position, and (3) ... the party
asserting inconsistent positions would derive an unfair advantage or impose an
unfair detriment on the opposing party.” Berger v. Emerson Climate Techs., 508
S.W.3d 136, 142–43 (Mo. Ct. App. 2016); Minor v. Terry, 475 S.W.3d 124, 133
(Mo. Ct. App. 2014); see also Zedner v. U.S., 547 U.S. 489, 505, 126 S.Ct. 1976,
164 L.Ed.2d 749 (2006).
Plaintiffs’ representations to the GCA are incompatible with the relief
sought in the amended complaint. Moreover, the inconsistency appears to impose
an unfair detriment on Daimler as the parties agree seeking damages under
Missouri’s split recovery statute violates German sovereignty. However, at this
stage of the proceeding, I need not consider these issues further as I determined
that the claims pending against Daimler will be dismissed. As such, I will deny
Daimler’s motion to dismiss or strike plaintiffs’ request for punitive damages as
moot.

31

Plaintiffs’ Request for Leave to Amend
To the extent this Court finds any claim insufficient, plaintiffs request leave
to amend to comply with the Court’s ruling. Federal Rule of Civil Procedure
15(a) states, “The court should freely give leave [to amend a complaint] when
justice so requires.” Fed. R. Civ. P. 15(a)(2). “However, the policy favoring liberal
allowance of amendment does not mean that the right to amend is absolute.”
Kozlov v. Associated Wholesale Grocers, Inc., 818 F.3d 380, 394–95 (8th Cir.
2016), reh’g denied (May 4, 2016) (internal quotation marks and brackets omitted).
Here, plaintiffs have already availed themselves once of the opportunity to
amend their complaint after MBUSA filed its first motion to dismiss. Plaintiffs’
unjust enrichment and implied warranty claims in Counts II, IV and VII cannot be
cured by the allegation of other facts and plaintiffs have attempted and failed to
amend their MMPA and WCPA claims in Counts III and VI sufficiently to survive
dismissal. I will therefore deny leave to amend.
Accordingly,
IT IS HEREBY ORDERED that defendants Mercedes Benz USA, LLC,
and Daimler AG’s motions to dismiss [46] and [64] are GRANTED as to Counts
II, III, IV, VI and VII of the complaint, and those Counts are hereby dismissed
with prejudice.

32

IT IS FURTHER ORDERED that Daimler AG’s motion to dismiss [64]
Counts I and V is GRANTED with respect to defendant Daimler AG only. In all
other respects, the motions to dismiss are DENIED.
IT IS FURTHER ORDERED that defendant Daimler AG’s motion to
dismiss or strike plaintiffs’ request for punitive damages is DENIED as moot.
As the only remaining claims are Counts I and V against Mercedes Benz
USA, it shall file its answer to Counts I and V of the amended complaint within the
time prescribed by the federal rules.
The case will be set for a Rule 16 scheduling conference by separate Order.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 27th day of August, 2018.

33