Spencer v. Harley Davidson Inc et al
Filing
118
MEMORANDUM DECISION AND ORDER denying 54 Motion to Dismiss for Failure to State a Claim. Signed by Judge David Nuffer on 8/18/18 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
KEVIN SPENCER, an individual,
Plaintiff,
v.
HARLEY-DAVIDSON, INC., a corporation
and HARLEY-DAVIDSON MOTOR
COMPANY, INC., a corporation, and
ENTITIES I through X,
MEMORANDUM DECISION AND
ORDER DENYING BWI NORTH
AMERICA, INC.’S MOTION TO
DISMISS PLAINTIFF’S FIRST
AMENDED COMPLAINT
Case No. 2:16-cv-00427-DN
District Judge David Nuffer
Defendants.
Defendant BWI North America, Inc. (“BWI”), a Delaware corporation, filed a Motion to
Dismiss pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. 1
Plaintiff opposes the Motion to Dismiss.2 BWI replies in support. 3 The parties’ memoranda and
supporting documentation have been carefully reviewed. For the reasons set forth below, the
Motion to Dismiss is denied.
1
BWI North America, Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint (“Motion to Dismiss”), docket
no. 54, filed June 12, 2017.
2
Plaintiff’s Opposition to BWI North America, Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint
(“Opposition”), at 8, docket no. 68, filed July 11, 2017.
3
Defendant BWI North America, Inc.’s Reply in Support of its Motion to Dismiss Plaintiff’s First Amended
Complaint (“Reply”), docket no. 71, filed July 25, 2017.
BACKGROUND ............................................................................................................................ 2
DISCUSSION ................................................................................................................................. 4
Personal Jurisdiction Over BWI is Proper .................................................................................. 4
General personal jurisdiction over BWI is lacking. ................................................................ 6
Plaintiff has made a prima facie showing that Utah may exercise specific personal
jurisdiction over BWI in this case. .......................................................................................... 7
Exercising jurisdiction over BWI does not offend traditional notions of fair play and
substantial justice. ................................................................................................................. 10
Plaintiff’s Claims Are Adequately Pled .....................................................................................11
Strict Product Liability.......................................................................................................... 12
Negligence ............................................................................................................................ 13
Breach of Express Warranty ................................................................................................. 14
Breach of Implied Warranty of Merchantability ................................................................... 15
Breach of Implied Warranty of Fitness for a Particular Purpose .......................................... 16
Plaintiff’s Claims Are Not Barred by the Utah Products Liability Act’s Two-Year Statute of
Limitations ................................................................................................................................ 16
ORDER ......................................................................................................................................... 19
BACKGROUND
On May 13, 2014, Plaintiff, a police officer with the Salt Lake Unified Police
Department, was injured in a crash during a training drill (“Crash”) when he applied the brakes
while riding his department-issued 2011 Harley-Davidson Electra Glide Police Edition
motorcycle (“Motorcycle”). 4 Plaintiff claims the Motorcycle was defective and caused the crash
because (1) the front and rear wheels locked when he applied the brakes; 5 (2) the anti-lock brake
system (“ABS”) did not engage and did not prevent the wheels from locking when he applied the
4
First Amended Complaint (“Amended Complaint), at ¶¶ 13, 14, 47, docket no. 32, filed April 26, 2017.
5
Id. at ¶ 51.
2
brakes; 6 and (3) at the time of the accident, there were no active warning lights or other
indications the ABS was not working 7 (collectively, the “Defects”). Plaintiff maintains that on
many other occasions when he similarly applied the brakes on the Motorcycle, the ABS
performed properly and prevented the wheels from locking. 8 He further asserts that the Crash
would not have occurred had the ABS or a warning system functioned properly. 9
Plaintiff filed his original Complaint in Utah state court on April 25, 2016, naming as
defendants: Harley-Davidson, Inc.; Harley-Davidson Motor Company, Inc. (collectively
“Harley”); and Entities I through X. 10 On May 20, 2016, Harley removed the case to federal
court. 11
In the course of discovery, Harley responded to interrogatories stating that it and Delphi
Automotive Systems, LLC; Delphi Automotive, PLC; Delphi Automotive, LLP (collectively
“Delphi”) were involved in the manufacturing of the ABS on the Motorcycle, and that Delphi is
now known as BWI. 12 On April 26, 2017, Plaintiff filed a First Amended Complaint, naming
Delphi and BWI as defendants. 13 In his Amended Complaint, Plaintiff identifies Delphi and BWI
as the “Manufacture [sic] Defendants.” 14 Plaintiff contends the Manufacture Defendants were
included and identified as Entities I through X in his original Complaint. 15
6
Id. at ¶ 50.
7
Id. at ¶ 52.
8
Id.
9
Id. at ¶ 54.
10
Motion to Dismiss at 3; Amended Complaint at ¶ 34.
11
Notice of Removal, docket no. 2, filed May 20, 2016.
12
Amended Complaint at ¶¶ 27-29.
13
Id.
14
Id. at ¶ 11.
15
Id. at ¶ 34.
3
On June 12, 2017, BWI filed a Motion to Dismiss, arguing (1) Plaintiff’s allegations are
insufficient to establish personal jurisdiction; (2) the Amended Complaint is devoid of facts to
support Plaintiff’s claims against BWI; and (3) Plaintiff’s claims are barred by the relevant
statute of limitations. 16
DISCUSSION
Personal Jurisdiction Over BWI is Proper
BWI argues that Plaintiff’s claims should be dismissed under Rule 12(b)(2) for lack of
personal jurisdiction. 17 “The [p]laintiff bears the burden of establishing personal jurisdiction over
the defendant.” 18 “When a district court rules on a Fed. R. Civ. P. 12(b)(2) motion to dismiss for
lack of personal jurisdiction without holding an evidentiary hearing, as in this case, the plaintiff
need only make a prima facie showing of personal jurisdiction to defeat the motion.” 19 Thus,
“[i]n the preliminary stages of litigation . . . the plaintiff’s burden is light.” 20 “The allegations in
the complaint must be taken as true to the extent they are uncontroverted by the defendant’s
affidavits.” 21 And all conflicting affidavits and factual disputes are resolved in the plaintiff’s
favor. 22
16
Motion to Dismiss.
17
Motion to Dismiss at 18.
18
OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998) (internal quotations
omitted).
19
Id.
20
Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).
21
Id. (internal quotations omitted).
22
Id.
4
Additionally, “[a] court may consider material outside of the pleadings in ruling on a
motion to dismiss for lack of venue or personal jurisdiction.” 23 “By considering documents
outside the pleadings . . . the Court does not convert the motion into one for summary
judgment.” 24
“To obtain personal jurisdiction over a nonresident defendant in a diversity action, a
plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the
exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment.” 25
Utah's long-arm statute authorizes “jurisdiction over nonresident defendants to the fullest extent
permitted by the due process clause of the Fourteenth Amendment to the United States
Constitution.”26 Consequently, there is no need to “conduct a statutory analysis apart from the
due process analysis.” 27
“[T]o exercise [personal] jurisdiction in harmony with due process, defendants must have
‘minimum contacts’ with the forum state, such that having to defend a lawsuit there would not
‘offend traditional notions of fair play and substantial justice.’” 28 There are two recognized types
of personal jurisdiction that may allow this case to proceed in this district—specific and general
jurisdiction.
23
1-800-Contacts, Inc. v. Memorial Eye, PA, No. 2:08-cv-00983-TS, 2009 WL 1586654, *1 n.1 (D. Utah June 4,
2009).
24
Id.
25
ClearOne Commc'ns, 643 F.3d at 763 (10th Cir.2011).
26
Utah Code § 78B–3–201(3).
27
ClearOne Commc’ns, 643 F.3d at 763 (quoting Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153,
1159 (10th Cir. 2010)).
28
Dudnikov, 514 F. 3d at 1070 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
5
General personal jurisdiction over BWI is lacking.
“[A] court may assert general jurisdiction over foreign (sister-state or foreign-country)
corporations to hear any and all claims against them when their affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the forum State.” 29 “[O]nly
a limited set of affiliations with a forum will render a defendant amenable to all-purpose
[general] jurisdiction there.” 30 For a corporation, “the place of incorporation and the principal
place of business are paradigm bases for general jurisdiction.” 31 “Those affiliation have the
virtue of being unique—that is, each ordinarily indicates only one place—as well as easily
ascertainable.” 32 However, the exercise of general jurisdiction is not completely limited to the
paradigm forums. 33 In exceptional cases, a corporate defendant's operations in another forum
may be so substantial and of such a nature as to render the corporation at home in that state. 34
Plaintiff alleges that BWI’s place of incorporation is Delaware, and that BWI regularly
conducts business in the State of Utah. 35 But Plaintiff fails to allege the location of BWI’s
principal place of business and fails to alleges facts to demonstrate that BWI’s operations in Utah
are so substantial and of such a nature as to render BWI at home in Utah. Regularly conducting
business in a state does not equate to being at home in that state. 36 If merely conducting regular
business activities in Utah sufficed to allow Utah to exercise general personal jurisdiction over
29
Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (internal quotations omitted).
30
Id. at 137.
31
Id. (internal quotations and punctuation omitted).
32
Id.
33
Daimler AG, 571 U.S. at 137-38.
34
Id.
35
Amended Complaint ¶ 9.
36
Daimler AG, 571 U.S. at 138-39.
6
BWI, the same reach would presumably be available in every other state BWI conducts business,
or with any other foreign company that conducts business in Utah. “Such exorbitant exercises of
all-purpose jurisdiction would scarcely permit out-of-state defendants to structure their primary
conduct with some minimum assurance as to where that conduct will and will not render them
liable to suit.” 37 Therefore, the facts alleged do not support the exercise of general personal
jurisdiction over BWI. Plaintiff has failed to make a prima facie showing of general personal
jurisdiction.
Moreover, Plaintiff’s Opposition to BWI’s Motion to Dismiss includes no argument that
general personal jurisdiction over BWI is applicable in this case. Plaintiff instead argues only for
the application of specific personal jurisdiction over BWI. 38 Effectively, Plaintiff concedes that
general personal jurisdiction over BWI is lacking.
Plaintiff has made a prima facie showing that Utah may exercise specific personal
jurisdiction over BWI in this case.
“Specific [personal] jurisdiction . . . depends on an affiliation between the forum and the
underlying controversy[.]” 39 For specific jurisdiction, the “minimum contacts” standard requires,
“first, that the out-of-state defendant must have ‘purposefully directed’ its activities at residents
of the forum state, and second, that the plaintiff’s injuries must ‘arise out of’ defendant’s forumrelated activities.” 40
The “purposeful direction” doctrine is to ensure that an out-of-state defendant is not
required to defend in a forum state on the basis of “random, fortuitous, or attenuated
37
Id. at 139 (internal quotations omitted).
38
Opposition at 13-18.
39
Goodyear Dunlop Tires Ops., SA v. Brown, 564 U.S. 915, 919 (2011) (internal quotations omitted).
40
Dudnikov, 514 F.3d at 1071.
7
contacts[.]” 41The focus of the analysis is on “the relationship among the defendant, the forum,
and the litigation,” not the relationship between the defendant and the plaintiff or other third
parties within the forum. 42 In other words, while “a defendant’s contacts with the forum State
may be intertwined with his transactions or interactions with the plaintiff or other parties . . . a
defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for
[specific personal] jurisdiction.” 43 “In order for a court to exercise specific jurisdiction over a
claim, there must be an affiliation between the forum and the underlying controversy,
principally, an activity or an occurrence that takes place in the forum.” 44 “When there is no such
connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected
activities in the States.” 45
“The Tenth Circuit has not conclusively established a method to determine whether a
claim ‘arise[s] out of’ a non-resident defendant’s forum-related conduct, but has identified two
possible tests that courts may employ.” 46 “The first is a ‘but-for’ causation test and the second is
characterized as a ‘proximate cause’ test.” 47
Under the former approach, any event in the causal chain leading to the plaintiff’s
injury is sufficiently related to the claim to support the exercise of specific
jurisdiction. The latter approach, by contrast, is considerably more restrictive and
calls for courts to examine[] whether any of the defendant’s contacts with the
forum are relevant to the merits of the plaintiff’s claim. 48
41
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
42
Walden v. Fiore, 134 S.Ct. 1115, 1121-22 (2014) (internal quotations omitted).
43
Id. at 1123.
44
Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.Ct. 1773, 1781 (2017)
(internal quotations and punctuation omitted).
45
Id.
46
Younique, LLC v. Youssef, Case No. 2:15–cv–00783–JNP–DBP, 2016 WL 6998659, *4 (citing Dudnikov, 514 F.3d
at 1078) (D. Utah Nov. 30, 2016).
47
Id. (citing Dudnikov, 514 F.3d at 1078).
48
Dudnikov, 514 F.3d at 1078 (internal quotations omitted).
8
But “both tests require a ‘true causal element’ between defendants’ forum contacts and the
litigation.” 49
Plaintiff alleges that BWI is a Delaware corporation that regularly conducts business in
the state of Utah. 50 In contrast, BWI asserts that it does not regularly conduct business or have an
office in Utah. 51 But, a defendant does not need to be “physically present in the forum, so long as
the foundational activities of the underlying action arise out of or relate to the contacts.” 52
Harley, in response to Plaintiff’s interrogatories, stated that Delphi was involved in the
manufacture of the ABS on the Motorcycle and that Delphi is now known as BWI. 53 Plaintiff
alleges BWI knowingly and purposely ships ABS components and other motorcycle-related
products to Utah. 54 Plaintiff also alleges that BWI and Harley worked together in “designing,
manufacturing, programming, distributing, and marketing said components of the ABS on the
Motorcycle.” 55 Specifically, BWI and the other Manufacture Defendants “design, manufacture,
and market ABS for motorcycles, including the Motorcycle at issue in this case, for use by police
officers in several states, including Utah.” 56 Moreover, Plaintiff alleges, BWI and Delphi,
together with Harley, knowingly and purposefully shipped the Motorcycle, equipped with their
49
Express Servs., Inc. v. King, No. CIV-15-1181-R, 2016 WL 3172911, *9 (W.D. Okla. June 6, 2016) (quoting
Newsome v. Gallacher, 722 F.3d 1257, 1269 (10th Cir. 2013)).
50
Amended Complaint at ¶ 9.
51
Motion to Dismiss at 18.
52
Tombstone Exploration Corp. v. Eurogas Inc., et al, 2:15-cv-195-DN, 2015 WL 5883327, at *5 (D. Utah October
8, 2015).
53
Amended Complaint ¶¶ 27-29.
54
Id. at ¶ 37.
55
Id. at ¶32.
56
Id. at ¶38.
9
ABS, to Utah and advertised and promoted motorcycles in Utah, including with the Salt Lake
Unified Police Department. 57
BWI in its Motion to Dismiss argues that Plaintiff does not (1) allege any further details
or facts supporting the assertion that Delphi is now known as BWI or (2) confirm that BWI was
involved in the manufacture of the products at issue in this case. 58 But BWI does not refute that
it was involved in the manufacturing or design of components of the ABS. Indeed, BWI states
“the mere fact that one of its products ended up in Utah is insufficient to exercise specific
personal jurisdiction over BWI.” 59
Because Plaintiff need only make a prima facie showing of specific personal jurisdiction
at this stage, and all factual disputes must be decided in Plaintiff’s favor, 60 Plaintiff has
sufficiently alleged conduct on the part of BWI that was purposefully directed at Utah, i.e., the
manufacture, design, and marketing of ABS for motorcycles, including the Motorcycle, for use
by police officers in Utah. Plaintiff has also sufficiently alleged that his injuries arise out of
BWI’s forum-related activities, i.e., that the Defects in the ABS caused the Crash and Plaintiff’s
injuries. Therefore, Plaintiff has made a prima facie showing that Utah may exercise specific
personal jurisdiction over BWI in this case.
Exercising jurisdiction over BWI does not offend traditional notions of fair play and
substantial justice.
The second prong of the due process analysis looks to “whether the exercise of personal
jurisdiction over the defendant[s] offends traditional notions of fair play and substantial
57
Id. at ¶ 46.
58
Motion to Dismiss at 12.
59
Reply at 2.
60
Taylor at 431.
10
justice.” 61 The defendant “bears the burden of presenting a compelling case that the presence of
some other considerations would render jurisdiction unreasonable.” 62 When determining fair
play and substantial justice, the following can be considered: “(1) the burden on the defendant;
(2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining
convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most
efficient resolution of controversies; and (5) the shared interest of the several states in furthering
fundamental substantive social policies.” 63
Relying on these factors, BWI has failed to present a compelling case that exercising
specific personal jurisdiction would be unreasonable. First, BWI does not indicate that litigating
this case in Utah is burdensome. Second, Plaintiff is a resident of Utah; BWI is an out-of-state
corporation; and states have an interest in providing a forum in which their residents can seek
redress for injuries caused by out-of-state actors. Third, the federal district court in Utah is a
convenient and effective forum for Plaintiff. Finally, social policy interests of other states are not
at issue because Utah law applies to this case.
Because BWI bears the burden 64 and it fails to adequately address the fair play and
substantial justice analysis, the second prong of the due process analysis is satisfied.
Plaintiff’s Claims Are Adequately Pled
BWI argues that Plaintiff's claims should be dismissed pursuant to Rule 12(b)(6) because
they are inadequately pled. A defendant is entitled to dismissal under Rule 12(b)(6) when the
complaint, standing alone, is legally insufficient to state a claim for which relief may be
61
Buck, at *6, 2014 WL 4628603.
62
ClearOne Commc'ns, 643 F.3d at 764 (quoting Employers Mut. Cas., 618 F.3d at 1161).
63
Id.
64
ClearOne Commc'ns, 643 F.3d at 764 (quoting Employers Mut. Cas., 618 F.3d at 1161).
11
granted. 65 When considering a motion to dismiss for failure to state a claim, the thrust of all wellpleaded facts in the complaint is presumed, but conclusory allegations need not be considered. 66
And a court is not bound to accept the complaint’s legal conclusions and opinions, even if they
are couched as facts. 67
Therefore, in order to survive a 12(b)(6) motion, Plaintiff must “nudge[] [its] claims
across the line from conceivable to plausible . . . .” 68 The Supreme Court has stated that the
plaintiff is not required to present detailed factual allegations, but the “complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 69
The following alleged facts, viewed in the light most favorable to Plaintiff, are sufficient
to justify a denial of BWI’s Motion to Dismiss.
Strict Product Liability
Utah applies a three-part test to establish a claim of strict product liability: a plaintiff
must show “(1) that the product was unreasonably dangerous due to a defect or defective
condition, (2) that the defect existed at the time the product was sold, and (3) that the defective
condition was a cause of the plaintiff’s injuries.” 70 A product is “unreasonably dangerous” if, at
the time of sale by the manufacturer, the product “was dangerous to an extent beyond which
would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in
that community considering the product’s characteristics, propensities, risks, dangers, and uses
65
See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
66
See Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009).
67
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995).
68
Bell Atl. Corp. v. Twombly, 550 U.S. at 570.
69
Ashcroft v. Iqbal, 556 U.S. at 678 (internal quotations omitted).
70
Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1279 (10th Cir. 2003) (quoting Burns v. Cannondale Bicycle Co.,
876 P.2d 415, 418 (Utah Ct. App. 1994)).
12
together with any actual knowledge, training or experience possessed by that particular buyer,
user or consumer.” 71
Plaintiff alleges the Manufacture Defendants, including BWI, were involved in the
manufacture of certain components of the Motorcycle’s ABS—specifically, the design;
manufacturing; programming; distributing; and marketing of components of the ABS. 72 In
Plaintiff’s first claim for relief, he alleges that at the time Defendants, including BWI, placed the
Motorcycle into the stream of commerce, it was defective and unreasonably dangerous—
specifically, there were no warnings to alert Plaintiff if there was a problem with the ABS, nor
did Plaintiff have a reason to believe the ABS would fail without warning. 73 Plaintiff claims that
had a warning system functioned properly, the Crash would not have occurred and Plaintiff
would not have suffered injuries. 74 These specific manufacturing defects of the Motorcycle and
the ABS are sufficient to state a claim for strict product liability against BWI.
Negligence
A plaintiff claiming negligence in a products liability context, “must prove the ordinary
elements of negligence, duty, breach, causation, and damages.” 75 As stated above, Plaintiff
alleges the Manufacture Defendants, including BWI, were involved in the manufacture of certain
components of the Motorcycle’s ABS. 76 In Plaintiff’s second claim for relief, he alleges
Defendants undertook a duty by producing motorcycles, and the ABS on those motorcycles, and
71
Utah Code Ann. § 78B-6-702; Utah Code Ann. § 78B-6-703(1).
72
Amended Complaint at ¶¶ 31-32.
73
Id. at ¶¶ 50, 60-62.
74
Id. at ¶¶ 54, 56-58.
75
Niemela V. Imperial Mfg., Inc., 263 P.3d 1191, 1198 (Utah Ct. App. 2011).
76
Amended Complaint at ¶¶ 31-32.
13
placing them into the stream of commerce. 77 Plaintiff alleges that Defendants breached this duty
by failing to conduct adequate testing to determine the tendency for the ABS to malfunction or
work improperly, and by failing to program the ABS computer to properly detect and warn of a
malfunction. 78 Plaintiff also alleges that these acts and omissions constitute negligence, and were
the proximate cause of his injuries and damages. 79 Plaintiff’s allegations are sufficient to state a
claim for negligence against BWI.
Breach of Express Warranty
To be entitled to recover under a breach of express warranty, Plaintiff must establish the
following: (1) that Defendants made an express warranty about the good that became part of the
basis of the parties’ bargain upon which Plaintiff relied, (2) that the good did not conform to this
warranty, resulting in a defective and unreasonable dangerous condition, (3) that Plaintiff was
harmed, (4) that the defective condition and failure of the good to confirm to the warranty was a
cause of Plaintiff’s harm, and (5) Plaintiff could have reasonably been expected to use or be
affected by the good. 80
Plaintiff alleges the Manufacture Defendants promoted and advertised the ABS as a
safety device that increases rider control of the motorcycle by preventing the wheels from
locking. 81 The Amended Complaint also alleges the Defendants expressly warranted that the
Motorcycle and ABS were free from defects. Plaintiff further alleges that the Motorcycle and
ABS contained the Defects in breach of Defendants’ express warranty, which was the proximate
77
Id. at ¶ 69.
78
Id. at ¶¶ 73-74.
79
Id. at ¶ 76.
80
MUJI 2d CV1029, see also Utah Ann. § 70A-2-313.
81
Amended Complaint at ¶ 44.
14
cause of Plaintiff’s injuries. 82 These allegations are sufficient to state a plausible claim for breach
of express warranty against BWI.
Breach of Implied Warranty of Merchantability
“A warranty that the goods shall be merchantable is implied in a contract for their sale if
the seller is a merchant with respect to goods of that kind.” 83 To establish a claim for breach of
the implied warranty of merchantability, Plaintiff must show that Defendants, as merchants, sold
a good which did not meet one of the standards of merchantability: (1) passes without objection;
(2) is of fair average quality; (3) is fit for ordinary purposes; (4) is of even kind, quality and
quantity; (5) is adequately contained, packages and labeled; or (6) conforms to promises on the
packaging. 84
Plaintiff alleges that Defendants, including BWI, are merchants with respect to the
Motorcycle and the ABS. 85 Plaintiff asserts that Defendants implicitly warranted that the
Motorcycle and ABS were fit for ordinary purposes and free from defects, when in fact they
contained the Defects. 86 Plaintiff further asserts the Manufacture Defendants and Harley
knowingly and purposefully shipped the Motorcycle, equipped with the ABS, to Utah and
advertised and promoted the Motorcycle in Utah, including with the Salt Lake Unified Police
Department. 87 Plaintiff has adequately pleaded the elements of a claim for breach of the implied
warranty of merchantability.
82
Id. at ¶¶ 81-84.
83
Utah Ann. § 70A-2-314.
84
Id.
85
Id. at ¶¶ 86-88.
86
Id. at ¶¶ 81-82, 86-88.
87
Id. at ¶ 46.
15
Breach of Implied Warranty of Fitness for a Particular Purpose
For breach of the implied warranty of fitness, Plaintiff must show that Defendants had
reason to know, (1) the particular purpose for which the good would be used, (2) Plaintiff relied
on Defendants’ judgment to select a suitable good for that purpose, and (3) the good provided
was unfit for that purpose. 88
Plaintiff alleges the Manufacture Defendants, including BWI, promoted and advertised
the ABS as a safety device that increases rider control by preventing the wheels from locking. 89
Plaintiff further alleges that Defendants had reason to know the particular purpose for which the
Motorcycle and the ABS would be used, and that Plaintiff relied on Defendants’ skill and
judgment to provide a suitable product. 90 Plaintiff also alleges that Defendants breached the
implied warranty of fitness for a particular purpose because the Defects in the Motorcycle and
ABS were not fit for the particular purpose for which it was used by Plaintiff. 91 Viewing these
allegations in a light most favorable to Plaintiff, Plaintiff has sufficiently stated a claim for
breach of the implied warranty of fitness against BWI.
Plaintiff’s Claims Are Not Barred by the Utah Products Liability Act’s
Two-Year Statute of Limitations
In its Motion to Dismiss, BWI asserted that the two-year statute of limitations expired on
Plaintiff’s claim because BWI is a new party and, thus, the Amended Complaint does not, as to
BWI, relate back to the original Complaint. 92 In response, Plaintiff argued that whether the
Amended Complaint relates back under Fed. R. Civ. P. 15(c) is irrelevant, because the Amended
88
Utah Ann. § 70A-2-315.
89
Amended Complaint at ¶ 44.
90
Id. at ¶¶ 91-92.
91
Id. at ¶¶ 93-96.
92
Motion to Dismiss at 1.
16
Complaint was filed within the applicable statute of limitations.93 Plaintiff maintains that until
the filing of the original complaint, on April 22, 2016, the statute of limitations had not begun to
run as to BWI because Plaintiff exercised reasonable diligence in attempting to identify BWI’s
involvement in the manufacture of the ABS system.” 94 In its Reply, BWI contends that Plaintiff
has not established the reasonable diligence required under the Utah Products Liability Act
(“UPLA”) to toll the statute of limitations. 95
“[A] federal court, sitting in diversity cases and administering state law, must apply . . .
substantive law of the forum state . . . .” 96 The relevant statute of limitations is drawn from the
UPLA. 97 The UPLA provides that “[a] civil action under this part shall be brought within two
years from the time the individual who would be the claimant in the action discovered, or in the
exercise of due diligence should have discovered, both the harm and its cause.” 98 The Utah
Supreme Court has interpreted this statute of limitations to encompass “all actions seeking
money damages for injury to people or property resulting from defective products.” 99 Because
each of Plaintiff’s claims seeks money damages for Plaintiff’s injuries resulting from the
allegedly defective Motorcycle and ABS, the two-year UPLA statute of limitations applies in this
case.
93
Opposition at 8.
94
Opposition at 6-7.
95
Reply at 6.
96
Walker v. Armco Steel Corp., 592 F. 2d 1133, 1134 (10th Cir. 1979).
97
See Utah Code § 78B-6-706.
98
Id.
99
Utah Local Government Trust v. Wheeler Machinery Co., 199 P.3d 949, 951 (Utah 2008).
17
BWI argues that the statute of limitations began to run on May 13, 2014, the date of the
Crash, and expired on May 13, 2016. 100 Because Plaintiff did not name BWI as a defendant until
his Amended Complaint, filed on April 26, 2017, BWI contends that the statute of limitations
expired and Plaintiff’s claims against BWI are time-barred. 101
Plaintiff argues that BWI was included and identified in the Entities I through X in the
original Complaint. 102 Plaintiff argues “despite the exercise of reasonable care, Plaintiff did not
discover (and could not reasonably have discovered) the identity of BWI until less than 2 years
prior to his filing of the First Amended Complaint.” 103 Plaintiff asserts he acted reasonably and
was unable to identify the manufacturer of the brake system until after the filing of the lawsuit,
when Harley responded to interrogatories. 104 Therefore, Plaintiff contends his claims against
BWI are not time-barred.
In its Reply, BWI argues that Plaintiff did not exercise reasonable diligence as required
by the UPLA in ascertaining BWI’s identity. 105 BWI states that Plaintiff knew there were other
potential defendants and waited almost two years to sue Harley and then merely asked Harley to
identify the entities involved in the manufacture of the brake system. 106 In support of its
argument, BWI cites Pratt v. Cavagna North America, Inc. and Griffiths-Rast v. Sulzer Spine
100
Motion to Dismiss at 9.
101
Motion to Dismiss at 9-11.
102
Amended Complaint ¶ 34.
103
Opposition at 2.
104
Id. at 7.
105
Reply at 6.
106
Id. at 6.
18
Tech, two cases resolved on motions for summary judgment, not on a motion to dismiss. The
standard of review is different on a summary judgment motion. 107
On this issue, BWI’s Motion to Dismiss turns on whether Plaintiff exercised due
diligence in attempting to discover the identity of BWI as a manufacturer of the Motorcycle’s
ABS. This is a fact issue. Plaintiff claims he exercised reasonable diligence. 108 He stated that
prior to getting discovery responses from Harley, he “was unable to learn of BWI’s
involvement.” 109
Fact-sensitive issues are approached with hesitation on Motions to Dismiss. And more
facts are needed to determine whether Plaintiff exercised reasonable diligence. As a result, the
statute of limitations does not, at this stage, bar Plaintiff’s claims.
ORDER
THEREFORE, IT IS HEREBY ORDERED that BWI’s Motion to Dismiss 110 is
DENIED.
Dated August 18, 2018.
BY THE COURT:
____________________________
David Nuffer
United States District Judge
107
Pratt v. Cavagna North America, Inc., No. 213-CV-107, 2013 WL 6146075 (D. Utah 2013); Griffiths-Rast v.
Sulzer Spine Tech, 216 F. Appx. 790 (10th Cir. 2007).
108
Opposition at 7.
109
Id. at 6.
110
Docket no. 54, filed June 12, 2017.
19
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