NELSON et al v. NISSAN NORTH AMERICA, INC. et al
Filing
165
OPINION. Signed by Judge Joseph E. Irenas on 12/16/2014. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TAMEKA NELSON, et al.,
:
individually and on behalf of :
others similarly situated,
:
:
Plaintiffs,
:
:
v.
:
:
NISSAN NORTH AMERICA, INC.,
:
et al.,
:
:
Defendants.
:
HONORABLE JOSEPH E. IRENAS
CIV. NO. 11-5712 (JEI/AMD)
OPINION
APPEARANCES:
CADDELL & CHAPMAN, P.C.
By: Michael A. Caddell, Esq.
Cynthia B. Chapman, Esq.
Cory S. Fein, Esq.
1331 Lamar, Suite 1070
Houston, Texas 77010
and
CHIMICLES & TIKELLIS, LLP
By: Joseph G. Sauder, Esq.
Matthew D. Schelkopf, Esq.
Benjamin F. Johns, Esq.
One Haverford Centre
361 West Lancaster Avenue
Haverford, Pennsylvania 19041
Counsel for Plaintiffs
SEDGWICK LLP
By: Martin Healy, Esq.
E. Paul Cauley, Jr., Esq.
S. Vance Witte, Esq.
Three Gateway Center, 12th Floor
Newark, New Jersey 07102
Counsel for Defendants
1
IRENAS, Senior District Judge:
In this putative class action lawsuit, Plaintiffs assert
that they were injured 1 by a design defect common to the 5-speed,
automatic transmissions of their Nissan Maxima vehicles, model
years 2004 through 2006 (the “Class Vehicles”).
Before the Court is NNA’s 2 Motion for Summary Judgment on
Plaintiff Abdullah’s claims. 3
For the reasons stated herein, the
Motion will be granted in its entirety.
I.
In January, 2006, Abdullah purchased his 2004 Nissan Maxima
from a used car dealer in New Jersey.
Facts (“SUF”) ¶ 2)
37,000 miles on it.
(Statement of Undisputed
At that time, the car had approximately
(Id. ¶ 3)
1
Plaintiffs’ injuries appear to be only financial in nature.
There is no record evidence indicating that any plaintiff was
physically injured.
2
Defendants are Nissan North America, Inc.; Nissan Motor
Company Ltd.; and Nissan Extended Services North America, GP;
collectively, “NNA.”
3
There are five separate putative state-wide classes; one each
for the states of New Jersey, Pennsylvania, Ohio, Illinois and
California. Plaintiff Abdullah is the putative class
representative for the New Jersey class. Separate Motions for
Summary Judgment are pending as to each putative class
representative’s claims. Separate opinions will address each
motion.
2
Abdullah drove the car without incident until late 2007, or
early 2008, at which point he began having problems with the
transmission.
(SUF ¶ 6, 9)
Specifically, Abdullah started to
experience what the parties refer to as “shift shock,” where the
car would suddenly “downshift on its own” resulting in a strong
jerking of the car.
(Id. ¶ 7)
Importantly, it is undisputed
that this problem first manifested itself in Abdullah’s car
after it had been driven “more than 60,000 miles and possibly
more than 70,000 miles.”
(Id. ¶ 8)
Plaintiffs, relying on expert evidence, assert that the
shift shock problem resulted from a design defect with the 2004,
2005, and 2006 Maximas.
The specific nature of the asserted
defect is not directly relevant to the instant motion.
Suffice
it to say, Plaintiffs maintain that the absence of a
transmission cooling system, combined with the metallic
composition of certain transmission parts, caused overheating of
the transmission system, which, over time, caused extensive
wearing of the relevant parts, leading to the harsh shift
problem. 4
4
NNA has not disputed the origin of the problem. Their own
internal documents are generally consistent with Plaintiffs’
expert report concerning the issue.
3
Abdullah first took his car to an independent (nondealership) car repair shop, which was unable to duplicate the
problem on a test drive.
(SUF ¶ 10, 11)
Later, he “mentioned” the problem to the dealership when he
brought his car in for other services, such as an oil change.
(SUF ¶ 12)
In September, 2011, still experiencing the harsh shift
problem, Abdullah brought his car to a different independent
repair shop, which rebuilt / replaced the transmission at a cost
of approximately $1,600.00.
(SUF ¶ 13-14)
There is no evidence in the record that Abdullah ever
experienced the harsh shift problem again.
At the time of
Abdullah’s deposition in 2013, he still owned his 2004 Maxima
and had no plans to sell it.
(Id. ¶ 15)
Abdullah’s powertrain warranty from NNA extended for 60
months or 60,000 miles, “whichever comes first,” and covered
“any repairs needed to correct defects in materials or
workmanship.” (Healy Ex. C, NELSON-ABDULLAH000586) 5
The warranty
also conspicuously states, “ANY IMPLIED WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE SHALL BE
5
The warranty also provides that it is transferrable. (Healy
Ex. C, NELSON-ABDULLAH 000586) The parties apparently agree
that the warranty applied to Abdullah even though he bought the
car used and did not buy the car directly from Nissan.
4
LIMITED TO THE DURATION OF THIS LIMITED WARRANTY.”
(Id.; caps
in original)
Abdullah asserts three claims under New Jersey law: (1)
breach of express warranty; (2) breach of implied warranty of
merchantability; and (3) violation of the Consumer Fraud Act,
N.J.S.A. 56:8-1 to -20.
II.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment should be granted if “pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”
See also, Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
In deciding a motion for
summary judgment, the court must construe all facts and
inferences in the light most favorable to the nonmoving party.
See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir.
1998).
The moving party bears the burden of establishing that
no genuine issue of material fact remains.
Catrett, 477 U.S. 317, 322-23 (1986).
See Celotex Corp. v.
A fact is material only
if it will affect the outcome of a lawsuit under the applicable
law, and a dispute of a material fact is genuine if the evidence
5
is such that a reasonable fact finder could return a verdict for
the nonmoving party.
See Anderson, 477 U.S. at 252.
III.
The Court addresses each claim in turn.
A.
The undisputed fact that Abdullah did not experience the
shift shock problem until after 60,000 miles is fatal to his
express warranty claim.
See Nobile v. Ford Motor Co., 2011 U.S.
Dist. LEXIS 26766 at *8 (D.N.J. Mar. 14, 2011) (“‘latent defects
discovered after the term of the warranty are not actionable.’”)
(quoting Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d
604, 616 (3d Cir. 1995)); Chan v. Daimler, 2012 U.S. Dist. LEXIS
161716 at *15 (D.N.J. Nov. 9, 2012) (“Courts throughout the
country have almost uniformly held that time-limited and
mileage-limited warranties do not protect buyers against hidden
defects — defects that may exist before, but typically are not
discovered until after, the expiration of the warranty period.”)
(internal citation and quotation omitted); Alban v. BMW of N.
Am., LLC, 2010 U.S. Dist. LEXIS 94038 at *19 (D.N.J. Sept. 8,
2010) (“an express warranty does not cover repairs made after
the applicable time has elapsed.
That rule applies regardless
of whether the defect existed prior to the expiration of the
6
warranty.”) (relying on Duquesne Light Co.); Suddreth v.
Mercedes-Benz, LLC, 2011 U.S. Dist. LEXIS 126237 (D.N.J. Oct.
31, 2011) (“general warranties limited by time or mileage do not
cover repairs made after the applicable time has elapsed.”);
Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 518-519 (D.N.J.
2008) (“the case law almost uniformly holds that time-limited
warranties do not protect buyers against hidden defects which
are typically not discovered until after the expiration of the
warranty period.
As a result, the Third Circuit has held,
‘latent defects discovered after the term of the warranty are
not actionable.’”) (quoting Duquesne Light Co.); see also
Tatum v. Chrysler Group LLC, 2011 U.S. Dist. LEXIS 32362 (D.N.J.
Mar. 28, 2011) (“if the sales warranty covered the Journey’s
brakes up to 12,000 miles, and the brakes routinely failed at
12,001 miles, Chrysler or its successor would have had no
obligation to repair them.”) (citing Duquesne Light Co.).
No reasonable juror could find that Abdullah experienced
shift shock during the warranty period because the warranty was
limited to 60,000 miles and Abdullah unequivocally testified
that he first experienced the problem after 60,000 miles.
Accordingly, NNA is entitled to judgment as a matter of law on
Abdullah’s breach of express warranty claim.
B.
7
Similarly, Abdullah’s breach of implied warranty claim
fails because the express warranty explicitly limits the implied
warranty of merchantability to the express warranty period.
Such contractual provisions have been routinely upheld.
See,
e.g., Glass v. BMW of N. Am. LLC, 2011 WL 6887721 at *14-15
(D.N.J. Dec. 29, 2011) (citing cases); Nobile, 2011 U.S. Dist.
LEXIS 26766 at *11-12 (citing cases).
Here, the language of the
warranty makes clear that the implied warranty of
merchantability is coterminous with the express warranty.
Accordingly, the implied warranty claim must fail for the same
reason that the express warranty claim fails.
Alternatively, the breach of implied warranty claim is
time-barred.
Abdullah does not dispute that: (1) the claim is
subject to a four year statute of limitations; (2) the claim
accrued in 2004; and (3) he did not file this suit until 2011.
But he argues that the statute of limitations should be
equitably tolled on account of NNA’s asserted “active
conceal[ment] [of] material facts from Abdullah.”
(Opposition
Brief, p. 26)
As discussed next with regard to the CFA claim, there is
simply no record evidence to support an inference that NNA knew
about the shift shock defect when it sold the Maxima, much less
that it took steps to actively conceal the problem from Abdullah
or the general public.
8
Accordingly, NNA is entitled to judgment as a matter of
law.
C.
Lastly, Abdullah’s Consumer Fraud Act claim fails because
the record cannot support a conclusion that NNA made a knowing
omission in connection with the sale of Abdullah’s Maxima.
To prevail on a CFA claim, a plaintiff must establish:
“‘(1) unlawful conduct by defendant; (2) an ascertainable loss
by plaintiff; and (3) a causal relationship between the unlawful
conduct and the ascertainable loss.’” Zaman v. Felton, 219 N.J.
199, 222 (2014) (quoting Bosland v. Warnock Dodge, Inc., 197
N.J. 543, 557 (2009)).
An “unlawful practice” is
any unconscionable commercial practice, deception,
fraud,
false
pretense,
false
promise,
misrepresentation, or the knowing, concealment,
suppression, or omission of any material fact with
intent that others rely upon such concealment,
suppression or omission, in connection with the sale
. . . of any merchandise . . . whether or not any
person has in fact been misled, deceived or damaged
thereby.
N.J.S.A. 56:8-2.
The record does not reasonably support a finding that NNA
knew about the alleged design defect at the time the Maximas
were sold.
Relying on the undisputed fact that NNA assembled
and manufactured the Maximas, Abdullah argues that a reasonable
factfinder could conclude that NNA knew that: (1) the Maximas
9
lacked an external transmission cooler; (2) “and thus would be
prone to excessive heat;” (3) “which causes long-term, highmileage damage.”
(Opposition Brief p. 34)
The Court disagrees.
On summary judgment the Court is not required to give the
nonmoving party the benefit of every favorable inference, only
such inferences that are reasonable.
Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
In the
Court’s view, drawing inference upon inference based on the
simple fact that NNA assembled and manufactured the Class
Vehicles is not reasonable in light of the facts of this case.
Alternatively, Abdullah argues that “[h]ad [NNA] actually
done [pre-sale durability tests of the transmission system] it
would have known (or should have known) at the time of sale that
the Class Vehicles suffer from a material design defect.”
(Opposition Brief, p. 32)
The Court agrees with NNA that the failure to test a
product is not actionable under the CFA.
Failure to test
merchandise does not fit the above-quoted definition of
“unlawful practice.”
To accept Abdullah’s argument would be to
misinterpret the CFA as encompassing negligent conduct.
Abdullah’s argument in this regard is better suited for claims
not asserted here-- namely, product liability claims.
Accordingly, NNA is entitled to judgment as a matter of law
as to Abdullah’s CFA claim.
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IV.
For the above-stated reasons, NNA’s Motion for Summary
Judgment on Plaintiff Abdullah’s claims will be granted in its
entirety.
Dated:
An appropriate Order accompanies this Opinion.
December 16, 2014
___s/ Joseph E. Irenas_____
Joseph E. Irenas, S.U.S.D.J.
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