MIDDIEN v. VOLVO CARS OF NORTH AMERICA, LLC et al

Filing 66

OPINION AND ORDER granting 61 Motion for Leave to File an Amended Complaint is GRANTED and is further ORDERED that Plaintiff and the New Proposed Class Representative file their Amended Complaint within 7 days from the date of this Order.. Signed by Magistrate Judge James B. Clark on 2/24/2020. (bt, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT MIDDIEN, on behalf of
himself and all others similarly
situated,

Civil Action No. 2:18-cv-3760 (CCC)
OPINION AND ORDER

Plaintiffs,
v.
VOLVO CARS OF NORTH
AMERICA, LLC, et al.,
Defendants.

CLARK, Magistrate Judge
THIS MATTER comes before the Court on a motion by Plaintiff Robert Middien
(“Plaintiff” or “Mr. Middien”) and Intervenors Fredrick Scott Levine and Douglas W. Murphy
(“Intervenors” or “New Proposed Class Representatives”) for leave to intervene and to file an
Amended Complaint [ECF No. 61]. Defendants Volvo Cars of North America, LLC and Volvo
Car USA, LLC (collectively “Defendants”) oppose the motion [ECF No. 62]. For the reasons set
forth below, the motion by Plaintiff and the New Proposed Class Representatives to intervene and
to file an Amended Complaint [ECF. No. 61] is GRANTED.
I.

BACKGROUND AND PROCEDURAL HISTORY
Mr. Middien initiated this action by filing a Complaint on March 19, 2018. ECF No. 1. Mr.

Middien’s claims are based on allegations that Defendants promised purchasers of certain Volvo
XC90s that Android Auto—a technology developed by Google that integrates certain functions of
Android cellphones in an interactive, touch display in the vehicle—would be included on all 2016
and 2017 XC90s; however, certain XC90s were not compatible with Android Auto. See ECF No.
1. Mr. Middien asserted claims against Defendants under the New Jersey Consumer Fraud Act
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(“NJCFA”), § 56:8-2, et seq. and under N.J. Stat. § 12A:2-313(b) for breach of express warranty
on behalf of himself and a proposed nationwide class of purchasers of non-compatible XC90s. See
id. Mr. Middien also asserted claims under the Massachusetts consumer protection statute and
Massachusetts express warranty statute on behalf of himself and a proposed Massachusetts class
of purchasers. See id.
On June 15, 2018, Defendants filed a motion to dismiss the Complaint. See ECF Nos. 13,
14. Defendants asserted numerous grounds for dismissal including, as relevant to the discussion
herein, that this Court lacks subject matter jurisdiction to adjudicate this case because Mr. Middien
lacks standing to pursue any of his claims. See Dkt. No. 13. Defendants made two primary
arguments with respect to standing: 1) Mr. Middien cannot assert claims, individually or on behalf
of a nationwide class, under the NJCFA as a non-resident of New Jersey, and 2) Mr. Middien has
not suffered an “injury” because Mr. Middien’s vehicle was compatible with Android Auto as
Volvo introduced an installation kit to support Android Auto (the “Kit”) prior to the initiation of
this lawsuit. See id. at pp. 9-15, 23-28.
While the motion to dismiss remained pending, the Court issued a Pretrial Scheduling
Order. See ECF No. 38. Thereafter, Mr. Middien communicated to his class counsel that he no
longer wished to serve as a class representative. See ECF No. 44. On June 18, 2019, the Court
granted leave for Plaintiff to file a motion to amend to add new Plaintiffs. ECF No. 57. Plaintiff
and the New Proposed Class Representatives filed the present motion to intervene and amend on
July 26, 2019. ECF No. 61. The proposed Amended Complaint is also based on Defendants’
alleged promise that Android Auto would be included on all 2016 and 2017 XC90s, but certain
XC90s were not compatible; however, proposed amendments include replacing Mr. Middien with
the New Proposed Class Representatives as Plaintiffs, additional allegations with respect to the

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Kit that was subsequently introduced by Volvo, amending the Class Allegations from identifying
a “Massachusetts Class” to identifying a “Florida Class,” and amending Count II and Count IV to
identify Florida consumer protection and warranty statutes as opposed to Massachusetts statutes.
See ECF No. 61-2.
II.

DISCUSSION
A. Motion to Intervene
Pursuant to Federal Rule of Civil Procedure 24(b)(1)(B), “the court may permit anyone to

intervene who . . . has a claim or defense that shares with the main action a common question of
law or fact.” The decision to grant permissive intervention is “completely discretionary” with the
Court. Granillo v. FCA US LLC, No. 16-153, 2018 WL 4676057, at *11 (D.N.J. Sept. 28, 2018).
“In exercising its discretion, the court must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties' rights.” Fed. R. Civ. P. 24(b)(3). Furthermore,
permissive intervention involves practical considerations. See, e.g., McKay v. Heyison, 614 F.2d
899, 907 (3d Cir.1980) (noting the example that a district court may hear the case of an intervenor
where the main case lacked jurisdiction if the intervening party may have a basis for jurisdiction
and this would avoid the unnecessary expense and delay of a new suit).
Defendants oppose the intervention of the New Proposed Class Representatives for two
reasons. First, Defendants contend that intervention is inappropriate where the original Plaintiff’s
claims are jurisdictionally defective, and they claim Mr. Middien’s original Complaint suffers
from such a defect. ECF No. 62 at pp. 8-13. Defendants argue, as they did in their motion to
dismiss, that Mr. Middien lacks standing to bring his claims because 1) his vehicle—with the
installation of the Kit—is compatible with Android Auto so he does not suffer an injury sufficient
for Article III standing and 2) he cannot assert a claim and represent a class of consumers under

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the NJCFA as an out-of-state plaintiff. ECF No. 62 at pp. 10-11. According to Defendants, because
Mr. Middien lacks standing, this court does not have jurisdiction to adjudicate this case.
Defendants rely on the established principle that “intervention is not a device to ‘breathe
life into a “non-existent” lawsuit’” in support of their position. Id. at p. 9 (quoting Lusardi v. Xerox
Corp., No. 83-809, 1991 WL 349858, at *4 (D.N.J. Sept. 30, 1991)). In Lusardi, the Court had
issued a decertification order, which became a final order in the action once the named individual
plaintiffs settled their claims. 1991 WL 349858, at *4. Thus, there was no longer a live case or
controversy before the Court into which other members of the decertified class could intervene.
Id. In the present matter, there has been no final determination on the certification of the named
class in the operative Complaint—unlike Lusardi—nor has there been a final determination on the
merits of the viability of Plaintiff’s claims or standing. Thus, because there remains a live case
before this Court, it appears to the Court that Defendants’ arguments with respect to standing
would require legal determinations better suited for a motion to dismiss. Accordingly, the Court
declines to find at this juncture that intervention is inappropriate.
Next, Defendants argue that intervention is inappropriate because the New Proposed Class
Representatives are not part of a certifiable class articulated in the original Complaint and pursue
new futile claims, which would prejudice the Defendants. ECF No. 62 at pp. 13-15. Defendants
reiterate that there can be no “nationwide” class under NJCFA because the New Proposed Class
Representatives are also not residents of New Jersey. Id. at p. 13. Defendants contend that they
would therefore face prejudice in briefing the same issues with respect to standing for new
plaintiffs. Id at p. 15. Defendants also claim they will face prejudice because the Intervenors seek
to assert new statutory claims and represent a proposed Florida Class rather than a proposed
Massachusetts Class as the original Complaint did, thereby changing the nature of this case. Id. at

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p. 14. Plaintiff, however, counters that the permissive intervention standard does not require claims
to be virtually identical, but rather that the intervenor have “a claim or defense that shares with the
main action a common question of law or fact.” ECF No. 64 at p. 10 (emphasis in original). Here,
Plaintiff argues that the New Proposed Class Representatives’ statutory claims and proposed
Florida Class are based on the same alleged factual predicate that certain XC90s represented to be
compatible with Android Auto as sold were not compatible with Android Auto. Id at p. 12.
Furthermore, Plaintiff notes that the proposed Florida statutory claims also arise under consumer
protection laws similar to the Massachusetts consumer protection laws pled in the original
Complaint. Id. at pp. 11-12.
The Court agrees with Plaintiff. While the New Proposed Class Representatives have
proposed a new class with new statutory claims, the same alleged facts, i.e., that Volvo represented
all XC90s were compatible with Android Auto when certain XC90s were not, underly these new
claims. Thus, the Court does not find the amendments to be unduly prejudicial to Defendants as
they are not defending against new facts and theories of the case.
The Court is also cognizant of practical considerations with respect to this lawsuit. The
New Proposed Class Representatives have initiated a separate action in this District, Levine, et al.
v. Volvo Cars of North America, LLC, et al., No. 2:19-cv-19821; however, they have represented
to the Court that they will dismiss No. 2:19-cv-19821 if the motion to intervene is granted in this
action. See ECF No. 65. Should the New Proposed Class Representatives pursue this new
complaint, Defendants will likely be in the same position as they are currently: briefing issues with
respect to standing for the New Proposed Class Representatives. To avoid the further expense and
delay associated with a new lawsuit, the Court finds that granting the motion to intervene in this

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action would also best serve judicial economy. See McKay, 614 F.2d at 907. Based on the
foregoing, the New Proposed Class Representatives’ motion for leave to intervene is GRANTED.
B. Motion to Amend
Pursuant to Federal Rule of Civil Procedure 15(a), “a party may amend its pleading only
with the opposing party’s written consent or the court’s leave” and “[t]he court should freely give
leave when justice so requires.” The decision to grant leave to amend rests within the sound
discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 330
(1970). In determining a motion for leave to amend, Courts consider the following factors: (1)
undue delay on the part of the party seeking to amend; (2) bad faith or dilatory motive behind the
amendment; (3) repeated failure to cure deficiencies through multiple prior amendments; (4) undue
prejudice on the opposing party; and/or (5) futility of the amendment. See Great Western Mining
& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)). In addition, “[t]he Third Circuit has consistently emphasized the liberal
approach to pleading embodied by Rule 15.” Endo Pharma v. Mylan Techs Inc., 2013 U.S. Dist.
LEXIS 32931, at *4 (D. Del. Mar. 11, 2013). The Court should only deny leave when these factors
“suggest that amendment would be ‘unjust’. . ..” Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d
Cir. 2006).
Defendants argue that the proposed amendments should be rejected because they are futile.
An amendment will be considered futile if it “is frivolous or advances a claim or defense that is
legally insufficient on its face.” Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463,
468 (D.N.J. 1990) (citations omitted). In determining whether an amendment is insufficient on its
face, the Court employs the same standard as in a Rule 12(b)(6) motion to dismiss. In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citation omitted). Under a Rule

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12(b)(6) analysis, the question is not whether the movant will ultimately prevail, and detailed
factual allegations are not necessary to survive such a motion. Antoine v. KPMG Corp., 2010 WL
147928, at *6 (D.N.J. Jan. 6, 2010). If a proposed amendment is not clearly futile, then denial of
leave to amend is improper. Meadows v. Hudson County Bd. of Elections, 2006 WL 2482956, at
*3 (D.N.J. Aug. 24, 2006).
First, Defendants contend that Plaintiff’s proposed amendments are futile because, like Mr.
Middien, the New Proposed Class Representatives cannot assert a claim under the NJCFA. ECF
No. 62 at pp. 17-18. According to Defendants, courts routinely hold that consumer fraud claims
are governed by the law of the plaintiff’s home state, and those that are not residents of New Jersey
cannot assert claims under the NJCFA. Id. Since the New Proposed Class Representatives are not
residents of New Jersey, Defendants argue that the proposed amendments are futile.
Next, Defendants argue that Plaintiff’s proposed amendments are futile because the claims
repeat the same deficiencies in Mr. Middien’s original Complaint identified by Defendants in their
motion to dismiss. ECF No. 62 at p. 19. In addition to issues with standing, Defendants contend
that the claims for consumer fraud and breach of warranty fail to state actionable claims. Id.
While Defendants may be correct in their assertions regarding the viability of Plaintiff’s
proposed claims, it appears to the Court that a ruling on Defendants’ futility arguments in the
context of the present motion would require legal determinations better suited for a motion to
dismiss. Accordingly, the Court declines to find at this juncture that Plaintiff’s proposed
amendments are clearly futile. Based on the foregoing, Plaintiff’s motion for leave to file an
Amended Complaint is GRANTED.

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III.

CONCLUSION AND ORDER
The Court having considered the papers submitted pursuant to Fed. R. Civ. P. 78, and for

the reasons set forth above;
IT IS on this 24th day of February, 2020,
ORDERED that Plaintiff and the New Proposed Class Representatives’ motion for leave
to intervene and to file an Amended Complaint [ECF No. 61] is GRANTED; and it is further
ORDERED that Plaintiff and the New Proposed Class Representatives file their Amended
Complaint within seven (7) days from the date of this Order.
s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge

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