Belville et al v. Ford Motor Company
MEMORANDUM OPINION AND ORDER granting, in part, and denying, in part, Plaintiffs' 381 Motion for Leave to File First Amended Master Consolidated Class Action Complaint, as more fully set forth herein; the Court will permit Plaintiffs to file a Consolidated Complaint; however, Plaintiffs should edit the current version to be consistent with this Court's rulings; in addition to removing the proposed new Plaintiffs and any claims or facts related solely to those Plaintiffs, directing Pl aintiffs to remove the specific claims set forth herein; directing Plaintiffs to correct the drafting error in Count 71 in the revised Consolidated Complaint, consistent with this Memorandum Opinion and Order; directing the revised Consolidated Complaint be filed within fourteen (14) days of today. Signed by Judge Robert C. Chambers on 11/24/2015. (cc: counsel of record; any unrepresented parties) (jsa)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLES JOHNSON, et al.,
CIVIL ACTION NO. 3:13-6529
FORD MOTOR COMPANY,
MEMORANDUM OPINION AND ORDER
On September 15, 2015, this Court made its initial ruling on Plaintiffs’ Motion for
Leave to File First Amended Master Consolidated Class Action Complaint (hereinafter the
Consolidated Complaint). In that decision, the Court ruled as follows: (1) the Court granted
Plaintiffs’ motion to consolidate Civil Actions 3:13-6529, 3:13-14207, and 3:13-20976 into a
single action; (2) the Court held Plaintiffs could not name sixteen new Plaintiffs in the consolidated
action; (3) the Court denied Plaintiffs’ attempt to add any new facts or claims solely related to
these sixteen proposed Plaintiffs, but the Court allowed Plaintiffs to include additional factual
allegations and make new or revived claims as to existing Plaintiffs; 1 (4) the Court required
Plaintiffs to file motions pursuant to Rule 41 before it could remove any existing Plaintiffs; and
(5) the Court reserved judgment on a number of specific arguments that certain claims must be
dismissed on a variety of grounds. Johnson v. Ford, Burnett v. Ford, and Burd v. Ford, Civ. Act.
Nos. 3:13-6529; 3:13-14207; and 3:13-20976, 2015 WL 5443550 (S.D. W. Va. Sept. 15, 2015).
However, those new and revived claims are subject to any related decision the Court
makes in this Memorandum Opinion and Order.
Thereafter, Plaintiffs filed a motion for the voluntary dismissal of six named Plaintiffs, and the
Court granted the motion by Order entered on September 29, 2015. ECF No. 638. Having now
considered Ford’s specific challenges to a number of individual claims, the Court GRANTS, in
part, and DENIES, in part, the balance of Plaintiffs’ Motion for Leave to File First Amended
Master Consolidated Class Action Complaint. ECF No. 381.
STANDARD OF REVIEW
Initially, the Court recognizes that there are a number of claims for which there is
no longer a named Plaintiff because the Court denied Plaintiffs’ motion to add sixteen new
Plaintiffs and Plaintiffs have voluntarily dismissed several other named Plaintiffs.2 Therefore, for
those Counts with no named Plaintiff, the Court will not permit Plaintiffs to include those claims
in the final version of the Consolidated Complaint. Based upon the Court’s review, these claims
include: Counts 12, 13, & 14 (Florida); Counts 22, 23, 24, 25, & 26 (Illinois); Counts 41, 42, 43,
44, & 45 (Massachusetts); Counts 52, 53, 54, 55, & 56 (Missouri); Counts 62, 63, 64, & 65 (New
Jersey); Counts 76, 77, 78, 79 & 80 (Ohio);3 Count 88 (South Carolina); and Counts 90, 91, & 92
(Texas).4 In addition, to the extent Ford objects to any of these Counts on other grounds, the
Court finds the objections moot and declines to address them. Plaintiffs also do not oppose Ford’s
In addition to the six named Plaintiffs recently voluntarily dismissed, other named
Plaintiffs have been voluntarily dismissed in the past.
There is a named Plaintiff in Count 75 for a violation of the Ohio Consumer Sales Practices
There is a named Plaintiff in Count 89 for a violation of the Texas Deceptive Trade
objections to Counts 16, 29, 82, and 84. Accordingly, the Court directs Plaintiffs not to include
those Counts in the final version of the Consolidated Complaint.
In considering the remainder of Ford’s arguments, the Court divides them into four
very general categories: (1) arguments that the statute of limitations has run on certain claims; (2)
arguments that the law of a particular State prevents a specific claim; (3) arguments with respect
to the Magnuson-Moss Warranty Act; and (4) arguments that certain claims fail to meet the
particularity requirement of Rule 9(b) of the Federal Rules of Civil Procedure. Although there is
overlap of these arguments with respect to some claims, the Court finds these categories the most
comprehensive manner in which to ferret out those claims Plaintiffs may include in the final draft
of their Consolidated Complaint.
In addition, with respect to categories one, two, and three, Ford’s arguments are, in
essence, that these claims are futile. In assessing futility, this Court uses the same standard of
review as it would use in assessing whether a claim should be dismissed under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. See U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525
F.3d 370, 376 (4th Cir. 2008) (finding the district court did not abuse its discretion in denying a
motion to file an amended complaint where the proposed amended complaint did “not properly
state a claim under Rule 12(b)(6) and lacks sufficient particularity under Rule 9(b)”); City of
Charleston v. Hotels.com, LP, 520 F. Supp. 2d 757, 775 (D.S.C. 2007) (“The standards of review
for determining whether a motion to amend should be denied for futility under Fed.R.Civ.P. 15(a)
and determining whether a motion to dismiss should be granted under Fed.R.Civ.P. 12(b)(6) are
identical.” (citations omitted)). Indeed, Ford even frames its arguments in its Response brief as
motions to dismiss.5 Pursuant to this standard, the Consolidated Complaint only must present
enough factual content to render a claim “‘plausible on its face’” and to enable the Court to “draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 622, 678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 556 & 570 (2007)). In
doing so, the Court considers all well-pled factual allegations in the Consolidated Complaint as
true and construes them in the light most favorable to Plaintiffs. However, the Court may not rely
upon naked assertions, speculation, or legal conclusions. Id. at 678-79.
Statute of Limitations
for Warranty, Consumer Protection Act,
and Unjust Enrichment Claims
Breach of Express Warranty
(Counts 10, 18, 28, 38, 67, & 97)
(California—Timothy Matthews; Idaho—Rhoda Jeffers;
Kentucky—William S. Troutman; Maryland—Charles Johnson;
New York—Michael Antramgarza; Washington—Shelley Riley)
Ford argues there are six breach of express warranty claims and six breach of
implied warranty of merchantability claims—in which Plaintiffs experienced a sudden
unintentional acceleration—that should be dismissed because they were filed outside the
Although technically there is not a “motion to dismiss” pending, the Court often refers to
Ford’s “motion to dismiss” because that is the way the arguments are framed and are being treated
by the Court in terms of the standard of review.
applicable statute of limitations. The Court first will consider the claims for breach of express
For each of these breach of express warranty claims, Ford argues that the applicable
state statutes of limitations apply, effectively barring all claims. The following language is taken
verbatim from the Uniform Commercial Code (“UCC”) § 2-725 and is identical in each of the
States in which Ford has raised this defense. The UCC and these statutes provide:
(1) An action for breach of any contract for sale must be commenced within four
years after the cause of action has accrued. . . .
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved
party’s lack of knowledge of the breach. A breach of warranty occurs when
tender of delivery is made, except that where a warranty explicitly extends to
future performance of the goods and discovery of the breach must await the
time of such performance the cause of action accrues when the breach is or
should have been discovered.
U.C.C. § 2-275 (emphasis added).
The discovery exception to the statute of limitations, identified in UCC § 2-725(2),
has been interpreted in each of the States in which Ford has raised this defense: California, Idaho,
Kentucky, Maryland, New York, and Washington. These states have reached similar findings,
all agreeing that the exception language—“where a warranty explicitly extends to future
performance of the goods and discovery of the breach must await the time of such performance,
the cause of action accrues when the breach is or should have been discovered”—must be read and
construed narrowly. Kittitas Reclamation Dist. v. Spider Staging Corp., 27 P.3d 645, 649 (Wash.
Ct. App. 2001). This exception applies only when “the seller has expressly agreed to warrant its
product for a specific and defined period of time.” Cardinal Health 301, Inc. v. Tyco Elecs. Corp.,
87 Cal. Rptr. 3d 5, 16 (Cal. Ct. App. 2008); accord In re Lone Star Indus., Inc., Concrete R.R.
Cross Ties Litig., 776 F. Supp. 206, 219 (D. Md. 1991) (“For a warranty of future performance to
exist under § 2-275, the terms of the warranty must unambiguously and explicitly indicate that the
manufacturer is warranting the future performance of the goods for a specified period of time.”);
Wyandanch Volunteer Fire Co., Inc. v. Radon Constr. Corp., 798 N.Y.S.2d 484, 591 (N.Y. App.
Div. 2005) (“A warranty of future performance is one that guarantees that the product will work
for a specified period of time.”); Kittitas, 27 P.3d at 649 (“In order for a warranty to be explicit,
the warranty of future performance must be unambiguous, clearly stated, or distinctly set forth.”).
In other words, this exception “does not occur in the usual case, even though all warranties in a
sense apply to the future performance of goods. Instead, the majority view is that the exception .
. . applies only when the seller has expressly agreed to warrant its product for a specific and definite
period of time.” MacDonald v. Ford Motor Co., 37 F. Supp. 3d 1087, 1100 (N.D. Cal. 2014) (citing
Carrau v. Marvin Lumber and Cedar Co., 112 Cal. Rptr. 2d 869, 876 (Cal. Ct. App. 2001)).
As vehicle warranties typically comprise years and/or miles, such warranties may
be specific and definite enough to extend to future performance under UCC § 2-725. However,
the precise terms of the warranties are not part of the record at this stage of the litigation. As such,
the Court cannot properly evaluate Ford’s statute of limitations arguments with regard to the
express warranty claims because the Court does not have the relevant language of the express
warranties. In addition, except with respect to Plaintiff William S. Troutman from Kentucky, the
parties did not provide the Court some of the following necessary information for each individual
Plaintiff: the date the unintended acceleration first occurred, the date Plaintiff took the vehicle to
a Ford dealership (regarding the unintended acceleration), and what specifically the Ford
dealership told Plaintiff. In the absence of complete information, the Court DENIES Ford’s
motion as to Counts 10, 18,6 38, 67, and 97.
With respect to Plaintiff Troutman, however, the Court was provided sufficient
information to make a ruling on his claim in Count 28 for breach of express warranty with respect
to his Ford Mustang.7 Plaintiff Troutman asserts in the Consolidated Complaint that he purchased
his Ford Mustang on November 4, 2006. Consol. Complaint, at ¶ 51. The events of unintended
Ford also makes an argument regarding Count 18, that this claim should be barred because
Plaintiff Jeffers lacked privity with Ford. First, the Court has not issued a ruling yet regarding the
nature of Ford’s relationship with Ford dealerships. Therefore, a decision regarding the privity
requirement for Plaintiff Jeffers’ express warranty claim is premature.
Second, Ford argues there is case law in Idaho that stands for the notion that privity of
contract between the manufacturer and purchaser is a necessary requirement to sustain a contract
action to recover economic loss for breach of implied warranties. Salmon Rivers Sportman Camps,
Inc. v. Cessna Aircraft Co., 544 P.2d 306, 312 (Idaho 1975) (emphasis added). However, Count
18 is a claim for breach of express warranty. There have been no Idaho cases that have addressed
the issue of whether this Idaho rule regarding privity for implied warranties, which the Idaho
Supreme Court has recently called into question, extends to express warranties. D. Blosch
Crushing, Inc., v. Modern Mach. Co., No. CV 05-367 ELMB, 2007 WL 118867, at *3 (D. Idaho
Jan. 11, 2007) (“However, this rule has been called into question on several occasions by the
Supreme Court of Idaho.”); see State v. Mitchell Constr. Co., 699 P.2d 1349, 1351 (Idaho 1984)
(“We therefore do not address the issue of privity of contract in express warranty.”) As such, this
Court will not extend the law regarding privity requirements for express warranties at this juncture.
Ford also makes the argument that Count 18 should be dismissed as non-actionable puffery.
Courts previously have held, however, that “whether a statement by the seller was an express
warranty is a question of fact.” April Beguesse, Inc. v. Rammell, 328 P.3d 480, 492 (Idaho 2014).
As such, Ford’s argument for dismissal of Count 18 is premature.
Plaintiff Troutman also purchased a Ford Expedition.
acceleration experienced by Plaintiff Troutman occurred first in 2007. Id. at ¶ 359.
Consolidated Complaint does not indicate that Plaintiff Troutman ever took the vehicle to a Ford
dealership after experiencing the unintended acceleration. Id. As such, giving Plaintiff Troutman
the benefit of the doubt that he had a warranty that extended to future performance, his cause of
action would have begun to accrue in 2007, at the latest. Also, as stated before, there is no
indication that Plaintiff Troutman ever took his vehicle to a Ford dealership upon discovering its
unintended acceleration. Id. Therefore, there is no argument for tolling due to fraudulent
omission or concealment on the part of Ford. As such, the latest that Plaintiff Troutman could
have brought his complaint regarding the Ford Mustang would have been sometime in 2011, four
years after the first unintended acceleration event in 2007. Plaintiff Troutman brought his claim
in July 2013. Therefore, his claim for breach of express warranty on his Ford Mustang is barred
by the statute of limitations, and the Court DISMISSES Count 28 with respect to the Mustang.8
Count 28 is not dismissed with respect to Plaintiff Troutman’s Ford Expedition. Ford
argues that Count 28 should be dismissed in regard to the Expedition because Plaintiff Troutman
failed to sufficiently plead his claim. The Court finds Ford’s argument unpersuasive at this stage
of litigation. Under Kentucky law, “an express warranty may be created by any affirmation of
fact or promise made by a seller which relates to the goods.” Overstreet v. Norden Labs., Inc., 669
F.2d 1286, 1290 (6th Cir. 1982). An express warranty must also be “part of the basis of the
bargain” between the parties. Id. at 1291 (quoting Ky. Rev. Stat. Ann. § 355.2-313(1)(a)).
Plaintiff Troutman has alleged facts that, if true, would satisfy each requirement. In the
Consolidated Complaint, Plaintiff Troutman alleged two kinds of statements that qualify as an
“affirmation of fact or promise”: (1) that Ford “expressly warranted to repair and adjust to correct
defects in materials and workmanship of any part supplied by Ford,” and (2) that Ford “expressly
warranted through statements and advertisements that the Ford Vehicles were of high quality, and
at a minimum, would actually work properly and safely.” Consol. Compl., at ¶¶ 710-711. As
such, the Court will not dismiss Count 28 at this time, with regard to Plaintiff Troutman’s Ford
Breach of Implied Warranty of Merchantability
(Counts 8, 11, 19, 68, & 98)
(California—Timothy Matthews; Idaho—Rhoda Jeffers;
New York—Michael Antramgarza; Washington—Shelley Riley)
Turning next to claims for breach of implied warranty of merchantability,
Plaintiffs cite a California case, Ehrlich v. BMW of N. Am., L.L.C., 801 F. Supp. 2d 908, 924–25
(C.D. Cal 2010), in support of their argument that if a plaintiff has a warranty that extends to future
performance, thereby tolling the express warranty claims, the warranty (extending to future
performance) tolls any implied warranty claims as well. Upon further review of other cases from
California, in addition to case law from other States in which Ford has raised this statute of
limitations defense, the Court finds this unpersuasive.
Although Ehrlich marks a departure from this trend, “[c]ourts have consistently
held [an implied warranty] is not a warranty that explicitly extends to future performance of
goods.” MacDonald v. Ford Motor Co., 37 F. Supp. 3d 1087, 1100 (N.D. Cal. 2014) (quoting
Cardinal Health 301, Inc. v. Tyco Elecs. Corp., 87 Cal. Rptr. 3d 5, 20 (Cal. Ct. App. 2008));
accord W. Recreational Vehicle, Inc., v. Swift Adhesives, Inc., 23 F.3d 1547, 1550 (9th Cir. 1994)
(“[I]mplied warranties, by their very nature, never explicitly extend to future performance.”);
Clark v. De Laval Separator Corp., 639 F.2d 1320, 1325 (5th Cir. 1981); Stumler v. Ferry-Morse
Seed Co., 644 F.2d 667, 669 (7th Cir.1981); Standard All. Indus., Inc. v. Black Clawson Co., 587
F.2d 813 (6th Cir. 1978); In re Lone Star Indus., Inc., Concrete R.R. Cross Ties Litig., 776 F. Supp.
206, 220 (D. Md. 1991) (“It is well established that an implied warranty cannot extend to the future
performance of goods. . . . There is overwhelming authority that when the sale of goods is involved,
implied warranties cannot extend to future performance of the goods.”); Holdridge v. HeyerSchulte Corp., 440 F. Supp. 1088 (N.D.N.Y. 1977).
“In effect, therefore, there is no ‘duration’ of the implied warranty under the
Uniform Commercial Code in any meaningful sense; the product is either merchantable or not
(and a breach of the implied warranty occurs or not) only at the time of delivery.” Mexia v. Rinker
Boat Co., 95 Cal. Rptr. 3d 285, 290 (Cal. Ct. App. 2009); accord Dickerson v. Mountain View
Equip. Co., 710 P.2d 621, 626 (Idaho Ct. App. 1985) (“The implied warranty of merchantability
relates to the condition of goods at the time of the delivery and does not extend to the future.”).
In a Missouri district court case interpreting Kentucky law, the Court noted:
The plain meaning of the words of § 355.2-725(2) is the best expression of the
legislative intent: “A cause of action accrues when the breach occurs, . . . . A breach
of warranty occurs when tender of delivery is made . . . .” The plain meaning of
these words is that the statute of limitations begins to run when the delivery of the
product is tendered to the purchaser. To read this statute in any other way would
be to construe it against its plain and unambiguous meaning.
Teel v. Am. Steel Foundries, 529 F. Supp. 337, 343 (E.D. Mo. 1981). Therefore, “[a]n action for
breach of implied warranty must be commenced within four years from the date that the defendant
tenders delivery of the product. The cause of action accrues upon tender of delivery despite the
aggrieved party’s lack of knowledge of the breach.” Vanata v. Delta Int’l. Mach. Corp., 702
N.Y.S.2d 293, 295 (N.Y. App. Div. 2000) (citing Camillo v. Olympia & York Prop. Co., 554
N.Y.S.2d 532 (N.Y App. Div. 1990)).
As such, the discovery exception regarding section 2 of UCC § 2-725 does not
apply to the implied warranty claims brought by Plaintiffs, and therefore, absent any tolling, all
Plaintiffs’ causes of action under the implied warranty theory would have accrued on the purchase
date of their respective Ford vehicle. However, Plaintiffs Rhoda Jeffers and Shelley Riley plead
that they took their vehicles to a Ford dealership, after events of unintended acceleration, and allege
they were told, something to the effect of, “there is nothing wrong” with the vehicle.9 Consol.
Compl., at ¶¶ 347, 352. These Plaintiffs provided no details regarding the date upon which the
first event of unintended acceleration occurred, the date when Plaintiffs took their vehicle to the
Ford dealership for inspection, or what specifically the Ford dealership relayed to them. In the
absence of this information, which is necessary for the Court to evaluate any tolling arguments,
the Court DENIES the motion with respect to the implied warranties of Plaintiffs Jeffers and Riley
in Counts 19 and 98, respectively.
The only Plaintiff that the Court has enough information at this point to make a
ruling on with regard to the statute of limitations defense as to implied warranty claims is Plaintiff
Timothy Matthews. The Consolidated Complaint indicates that Plaintiff Matthews purchased his
Ford vehicle on July 24, 2007. Consol. Compl., at ¶ 28. The first event of unintended acceleration
occurred in 2013, upon which he immediately took it to a Ford dealership. Consol. Compl., at
¶ 355. However, as indicated above in the discussion interpreting the statute of limitations for
implied warranty claims, Plaintiff Matthews’ cause of action began accruing in 2007 when the
vehicle was tendered to him. As the first event of unintended acceleration, and the subsequent
visit to the Ford dealership, occurred in 2013, it already was outside the four-year statute of
The Consolidated Complaint is very vague regarding the specifics of what each Ford
dealership relayed to each individual Plaintiff when they took their vehicle in to be inspected due
to unintended acceleration.
limitations. The latest date that Plaintiff Matthews could have brought this action would have
been in July of 2011, four years from his purchase date in 2007. Furthermore, the statute of
limitations on Plaintiff Matthews’ claim cannot be tolled by omission or concealment because he
did not take his vehicle into the Ford dealership until after the statute of limitations for his implied
warranty claim already had run. Therefore, the Court DISMISSES Plaintiff Matthews’ claim for
breach of implied warranty of merchantability found in Count 8.10
Similarly, Count 11 is dismissed. “[T]he Song-Beverly Act does not include its
own statute of limitations. Instead the statute of limitations for an action for breach of warranty
under the Song-Beverly Act is governed by . . . . the Uniform Commercial Code: section 2725.”
MacDonald v. Ford Motor Co., 37 F. Supp. 3d 1087, 1100 (N.D. Cal. 2014). See Mexia v. Rinker
Boat Co., 95 Cal. Rptr. 3d 285, 291 (Cal. Ct. App. 2009) (“California courts have held that the
statute of limitations for an action for breach of warranty under the Song-Beverly Act is governed
by the same statute that governs the statute of limitations for warranties arising under the Uniform
Commercial Code . . . .”). As such, “the statute of limitations for an action for breach of warranty
under the Song-Beverly Act is four years . . . .” Mexia, 95 Cal. Rptr. 3d at 292. Pursuant to the
discussion above, regarding when implied warranty claims begin to accrue, Plaintiff Matthews’
implied warranty claim under the Song-Beverly Act also began to accrue on the date he purchased
The fact the Court lacks similar information regarding Plaintiffs Jeffers and Riley is
precisely why it denies Ford’s motion with respect to these two Plaintiffs. The Court does not
know if Plaintiffs Jeffers and Riley took their vehicles to Ford during their four-year statute of
limitations for implied warranty claims, which began running on the date of purchase of each
Plaintiff’s vehicle, and if anything represented to Plaintiffs by the Ford dealerships would be
enough to toll the statute of limitations due to fraudulent omission or concealment.
his vehicle in 2007. Therefore, the latest he could have brought his claim under Count 11 would
have been in 2011, four years after the purchase date. Plaintiff Matthews filed his claim in June
of 2013. Therefore, the Court DISMISSES Count 11 as it is barred by the four-year statute of
Furthermore, although there is not enough information on Count 68 to dismiss it as
barred by the statute of limitations, Ford argues that this Count should be dismissed because
Plaintiff Michael Antramgarza cannot establish privity with Ford. New York law generally
requires privity of contract in order to assert a breach of implied warranty to recover for economic
losses against a manufacturer. As such, because Plaintiff Antramgarza is only in privity of
contract with the seller, he would be barred from asserting his claims against Ford. However,
Plaintiff Antramgarza cites an unreported district court case, Hubbard v. General Motors Corp.,
No. 95 Civ. 4362, 1996 WL 274018 (S.D.N.Y. 1996), where the court recognized an exception to
the privity requirement “where the product in question is a ‘thing of danger.’” 1996 WL 274018,
at *5. Plaintiff Antramgarza argues that his claim falls within the “thing of danger” exception.
In reviewing this exception, the Court has found that several courts since the
Hubbard decision have not followed its line of reasoning due to its contradiction of decades of
established New York case law. A recent case that did not follow the Hubbard “thing of danger”
exception, reasoned as follows:
Hubbard, an unreported case, relies almost exclusively on the New York
Court of Appeal's 1963 decision in Goldberg [v. Kollsman Instrument Corp., 12
191 N.E.2d 81 (N.Y. 1963))], which held that a personal injury plaintiff can bring
an implied warranty claim against a manufacturer even in the absence of privity.
However, in the more than 50 years since Goldberg was decided, no New York
state court has adopted Hubbard's “thing of danger” exception or followed a similar
approach in purely economic loss cases. Moreover, post-Goldberg, New York
state courts have stressed that Goldberg was a personal injury case and have
recognized that the holding in Goldberg “has since been defined and refined.”
Miller v. General Motors Corp., 471 N.Y.S.2d 280, 282 (N.Y. App. Div. 1984).
Furthermore, although no New York state court has explicitly rejected (or even
discussed Hubbard), numerous New York state court decisions have rejected
economic loss claims based on a lack of privity in situations where the product at
issue was clearly dangerous. See Ofsowitz v. Georgie Boy Mfg., Inc., 647 N.Y.S.2d
887 (N.Y. App. Div. 1996) (dismissing cause of action for breach of implied
warranty against manufacturer of a motor home after motor home caught fire when
there were no allegations of personal injury); Adirondack Combustion Techs., Inc.
v. Unicontrol, Inc., 793 N.Y.S.2d 576 (N.Y. App. Div. 2005) (dismissing cause of
action for breach of implied warranty against manufacturer of a boiler where there
was no claim for personal injuries).
Plaintiff argues that, despite the above, this Court should follow Hubbard
because a few federal district courts have done so. See Wade v. Tiffin Motorhomes,
Inc., 686 F. Supp. 2d 174, 191 (N.D.N.Y. 2009); Doll v. Ford Motor Co., 814
F. Supp. 2d 526 (D. Md. 2011). These decisions, however, provide little or no
analysis explaining why Hubbard was rightly decided. Accordingly, this Court
declines to follow Hubbard and its progeny. Instead, this Court concludes that,
under New York law, there is no “thing of danger” exception to the privity rule for
implied warranty claims that involve purely economic loss.
Dixon v. Ford Motor Co., No. 14–CV–6135 (JMA)(ARL), 2015 WL 6437612, at *5 (E.D.N.Y.
This Court concurs with the Dixon Court’s reasoning, and finds the Hubbard
analysis unpersuasive. Without a “thing of danger” exception, Plaintiff Antramgarza lacks privity
with Ford regarding its claim for breach of implied warranty of merchantability. Miller v. Gen.
Motors Corp., 471 N.Y.S.2d 280, 282 (N.Y. App. Div. 1984) (“Where, as here, the suit has been
one to recover for economic loss, it has consistently been held that a cause of action does not lie
against a remote manufacturer for the breach of an implied warranty.”). Plaintiff Antramgarza
purchased his vehicle from an authorized Mercury dealership in 2004 (Consol. Compl., at ¶¶ 84,
85) and has only alleged economic injury. As such, he has failed to plead facts that he was ever
in privity with Ford. Therefore, the Court DISMISSES Count 68.
In conclusion, Counts 8, 11, and 68 ARE DISMISSED in their entirety. The
Court DENIES Ford’s motion with respect to Counts 19 and 98.
Consumer Protection Act Claims
Kentucky Consumer Protection Act (“KCPA”)
(William S. Troutman)
Ford alleges that Count 27 of Plaintiffs’ Consolidated Complaint, in regards to
Plaintiff William S. Troutman’s Ford Mustang, should be dismissed because it is time-barred.
Plaintiffs did not respond to this allegation in their Reply Memorandum. Pls.’ Reply to Ford’s
Resp. to Pls.’ Mot. for Leave to File First Am. Master Consol. Class Act. Compl., ECF No. 532.
After reviewing the statute and a Kentucky case directly on point, the Court agrees with Ford.
“To maintain a claim for violation of the Kentucky Consumer Protection Act
(“KCPA”), Plaintiff Troutman must allege that [Ford] engaged in ‘[u]nfair, false, misleading, or
deceptive acts or practices in the conduct of any trade or commerce,’ Ky. Rev. Stat. Ann.
§ 367.170(1), and that such practices caused Plaintiff’s harm.” Mitchell v. Gen. Motors L.L.C., No.
3:13-CV-498-CRS, 2014 WL 1319519, at *4 (W.D. Ky. Mar. 31, 2014). Plaintiff Troutman
claims that Ford violated the KCPA by misrepresenting Ford vehicles’ safety “with the intent that
Plaintiff and the other Class members rely on such representation in their decision regarding the
purchase, lease, and/or use of the Ford Vehicle.” Consol. Compl., at ¶ 700.
A person bringing a claim under Ky. Rev. Stat. Ann. § 367.170 must file the action
within two years after the violation. Mitchell, 2014 WL 1319519, at *4; Ky. Rev. Stat. Ann.
§ 367.220(5). Ford argues that Plaintiff Troutman’s claim accrued on November 4, 2006, when
he purchased the Mustang from the Ford dealership, because that is the time at which Ford made
the alleged misrepresentation and omissions that serve as the basis for his KCPA claim.11 The
Court agrees, and finds the statute of limitations in this action expired in November of 2008. As
Plaintiff did not file his action until July of 2013, the Court DISMISSES Count 27 as time-barred.
Ohio Consumer Sales Practices Act (“OCSPA”)
Ford further argues that Plaintiff Jonathan Poma’s Ohio Consumer Sales Practices
Act (“OCSPA”) claim in Count 75 should be dismissed because it is time barred. Plaintiffs do
not respond to this argument in their Reply Memorandum. Pls.’ Reply to Ford’s Resp. to Pls.’ Mot.
for Leave to File First Am. Master Consol. Class Act. Compl., ECF No. 532. Pursuant to the
OCSPA, a claim “may not be brought more than two years after the occurrence of the violation
which is the subject of the suit.” Ohio Rev. Code Ann. § 1345.10(C). Furthermore, courts have
Plaintiff Troutman never alleged in the Consolidated Complaint that he took his Ford
Mustang to a Ford dealership after the events of unintended acceleration in 2007 and 2008;
therefore, the only omissions or misrepresentations that could have occurred, would have occurred
at or before the date on which he purchased his vehicle.
held that “[w]here a plaintiff seeks recovery of damages under the OCSPA, the limitations period
is absolute, and the discovery rule does not apply.” Zaremba v. Marvin Lumber and Cedar Co.,
458 F. Supp. 2d 545, 552 (N.D. Ohio 2006); see Lloyd v. Buick Youngstown, GMC, 868 N.E.2d
350, 353 (Ohio Ct. App. 1996); Cypher v. Bill Swad Leasing Co., 521 N.E.2d 1142, 1144 (Ohio
Ct. App. 1987). Plaintiff Poma purchased his vehicle in March 2010, (Consol. Compl., at ¶ 109),
more than two years before his original Complaint was filed in June 2013. As such, Plaintiff
Poma’s claim is time-barred and Count 75 IS DISMISSED.12
Unjust Enrichment (Count 100)
Ford next argues that Plaintiff Riley’s claim for unjust enrichment should be
dismissed because it is time-barred, and she failed to sufficiently plead that she conferred a benefit
Under Washington law, unjust enrichment claims have a three-year statute of
limitations. Eckert v. Skagit Corp., 583 P.2d 1239, 1240 (Wash. 1978). The Supreme Court of
Washington only has upheld a discovery rule in unjust enrichment cases in a very limited context:
“construction contracts involving allegation of latent construction defects.” 1000 Virginia Ltd.
Partnership v. Vertects Corp., 146 P.3d 423, 435 (Wash. 2006). A recent case, Stillaguamish
Tribe of Indians v. Nelson, No. C10–327 RAJ, 2013 WL 1661244 (W.D. Wash. 2013), cited by
both parties, indicated that besides the Vertects exception referenced above, “the court is not aware
of any published Washington legal authority applying the discovery rule to an unjust enrichment
Although the parties raise the issue of whether certain statements made by Ford constitute
puffery in the context of the OCSPA, the Court need not address that issue because the claim is
claim.” 2013 WL 1661244, at *13. The Court in Stillaguamish later concluded that it would not
apply the discovery rule because the case did not involve a construction contract.
Plaintiff Riley urges the Court to apply the discovery rule in this context noting that
it is “supported by both case authority and sound policy.” Pls.’ Reply to Ford’s Resp. to Pls.’ Mot.
for Leave to File First Am. Master Consol. Class Act. Compl., at 61, ECF No. 532. The Court
does not find this argument persuasive. First, the Washington Supreme Court noted the limited
circumstance in which it was choosing to apply the discovery rule. If the Washington Supreme
Court wanted to create a broader discovery rule, it would have done so. Second, since the decision
in Vertects, other Washington courts have not attempted to expand the discovery rule to encompass
other instances of unjust enrichment.
Therefore, this Court will not attempt to expand
Washington law regarding the discovery rule in unjust enrichment cases at this juncture.
Accordingly, because Plaintiff Riley purchased her Ford F-150 in 2005 (Consol. Compl., at ¶ 148)
and did not file suit until June of 2013, Plaintiff Riley’s claim for unjust enrichment in Count 100
is time barred, and the Court DISMISSES this Count.13
Breach of Implied Warranty of Merchantability
Given this decision, the Court finds it unnecessary to address whether Plaintiff Riley
sufficiently pled her claim.
Ford argues Plaintiff Samuel Hairston’s breach of implied warranty of
merchantability claim should be dismissed because he failed to allege contractual privity existed
between him and Ford, an element required under Georgia law for a breach of implied warranty
claim. In response, Plaintiff Hairston claims privity existed here because under Georgia law a
manufacturer’s express warranty issued to a purchaser by an authorized dealer, under Georgia law,
gives rise to privity between the manufacturer and ultimate purchaser.
In support of his position, Plaintiff Hairston cites Chrysler Corp. v. Wilson
Plumbing Co., 208 S.E.2d 321, 323 (Ga. Ct. App. 1974). In Chrysler, the Georgia court of appeals
held that if an authorized automobile dealer issues the purchaser a warranty running from the
manufacturer to the purchaser, privity for purposes of bringing an implied warranty of
merchantability claim could exist between the manufacturer and purchaser.14 Chrysler, 208 S.E.2d
at 323 (citing Studebaker Corp. v. Nail, 82 Ga. App. 779, 784, 62 S.E.2d 198, 202 (Ga. Ct. App.
More specifically, the Georgia court said:
While ordinarily . . . there is no implied warranty existing
between a manufacturer and an ultimate consumer, this is due to the
fact that no privity of contract exists between the two. However,
where an automobile manufacturer, through its authorized dealer
issues to a purchaser of one of its automobiles from such dealer
admittedly as a part of the sale a warranty by the manufacturer
running to the purchaser, privity exists and Code § 109A-2-314
becomes operative. See Studebaker Corp. v. Nail, 82 Ga.App. 779,
784, 62 S.E.2d 198 [(Ga. Ct. App. 1950)]. The manufacturer,
therefore, if it desires to exclude the implied warranty arising by
operation of law, must meet the requirements of Code § 109A-2316(2), that is, by a writing expressly referring to merchantability
Chrysler Corp., 208 S.E.2d at 323 (citation omitted).
1950)). In Studebaker Corp., the Georgia court of appeals stated that implied warranties generally
are not created by law to “bridge the gap between the manufacturer and ultimate purchasers[,]”
but the law “throws up no barrier preventing a manufacturer from itself bridging the gap. There
is no obstacle preventing a manufacturer from making a contract with an ultimate consumer to
guarantee an article sold to the latter, directly or indirectly, if the elements of intention to contract
and consideration are present . . . .” Studebaker Corp., 62 S.E.2d at 202.
Hence, in this case, if Plaintiff Hairston can show that Ford issued him an express
warranty through an authorized Ford dealer who sold him his vehicle, he can proceed with his
breach of implied warranty claim despite failing to allege contractual privity between him and
Ford. Chrysler Corp., 208 S.E.2d at 323; see also McQueen v. Minolta Bus. Sols., Inc., 620 S.E.2d
391, 393 (Ga. App. Ct. 2005) (indicating continued approval of Chrysler’s rule); Terrill v.
Electrolux Home Prods., Inc., 753 F. Supp. 2d 1272, 1288 (S.D. Ga. 2010) (denying motion to
dismiss claim for breach of implied warranty because, although plaintiff-purchaser failed to allege
privity between it and manufacturer, under Chrysler a manufacturer that extends an express
warranty to a purchaser is in privity of contract with the purchaser). Accordingly, this Court
DENIES Ford’s motion to dismiss Plaintiff Hairston’s claim for breach of implied warranty of
merchantability in Count 15.
Idaho Consumer Protection Act
Ford argues Plaintiff Jeffers’ claim under Idaho’s Consumer Protection Act
(“ICPA”) should be dismissed because Plaintiff Jeffers does not allege that she was in a contractual
relationship with Ford, which is required in order for an aggrieved party to have standing to bring
a claim under the ICPA. See Duspiva v. Fillmore, 293 P.3d 651, 660 (Idaho 2013) (providing that
“[i]n order to have standing under the ICPA, the aggrieved party must have been in a contractual
relationship with the party alleged to have acted unfairly or deceptively” (internal quotation marks
and citation omitted)). Plaintiff Jeffers first responds that she did allege she had a contractual
relationship with Ford, albeit through Ford’s authorized agent who sold her the allegedly defective
vehicle. Plaintiff Jeffers contends that because she purchased her vehicle from an authorized Ford
dealer, there is a factual issue over whether that dealer is an agent of Ford with authority to bind
Ford to a contract with her. The Idaho Supreme Court has ruled that “[t]he existence of an agency
relationship is a question of fact” and “‘[t]here are three separate types of agency, any of which
are sufficient to bind the principal to a contract entered into by an agent with a third party[.]’” Am.
W. Enters., Inc. v. CNH, LLC, 316 P.3d 662, 669 (Idaho 2013) (quoting Bailey v. Ness, 708 P.2d
900, 902–03 (Idaho 1985)). As Plaintiff Jeffers did allege she purchased her vehicle from an
authorized Ford dealer, and because that dealer may have been an agent that bound Ford to a
contract with her, Plaintiff Jeffers has pled she had a contractual relationship with Ford.15
However, the Court notes the relatively low standard for surviving this motion to dismiss,
and that in order to survive a motion for summary judgement, Plaintiff Jeffers will have to adduce
evidence that the contract for sale she entered into contained terms that bound Ford itself and not
just the authorized Ford dealer.
Second, Plaintiff Jeffers alleges that Ford extended her a “warranty of repair and/or
adjustments to defective parts[.]” Consol Compl., at ¶ 444. By definition, if Plaintiff Jeffers
alleges that Ford extended her a warranty, she alleges that she was in a contractual relationship
with Ford because warranties can arise only between contracting parties. See Duff v. Bonner Bldg.
Supply, Inc., 666 P.2d 650, 652 (Idaho 1983) (observing “a breach of warranty action is based on
a contractual claim”). Thus, by alleging Ford breached a warranty attached to the vehicle she
purchased, Plaintiff Jeffers further has alleged a contractual relationship existed between her and
Therefore, for these two reasons, the Court FINDS Plaintiff Jeffers has standing to
bring a claim against Ford under Idaho’s Consumer Protection Act and DENIES Ford’s motion to
dismiss this claim in Count 20.
Louisiana Products Liability Act (Count 32)
Louisiana’s Unfair Trade Practices and
Consumer Protection Act (Count 34)
Fraudulent Omission (Count 35)
Unjust Enrichment (Count 36)
In response to Plaintiff Shane Mayfield’s claims in Count 32 for violations of
Louisiana’s Products Liability Act (“LPLA”), in Count 34 for violations of Louisiana’s Unfair
Trade Practices and Consumer Protection Act (“LUTPA”), in Count 35 for fraudulent omission,
and in Count 36 for unjust enrichment, Ford argues that, under Louisiana law, redhibition is the
only claim Plaintiff Mayfield may pursue based on the facts alleged. With regard to Plaintiff
Mayfield’s LPLA claim, Ford asserts Pitre v. Yamaha Motor Co., 51 F. Supp. 3d 644 (E.D. La.
Sept. 30, 2014), stands for the principle that when damages are available under a redhibition
theory, damages are precluded under the LPLA. Recently, this argument was considered and
squarely rejected by at least one Louisiana court of appeals. See United Fire Grp. v. Caterpillar,
Inc., Case No. 2013-CA-2115, 2014 WL 4067756, at *4–5 (La. Ct. App. Aug. 18, 2014)
(unpublished) (rejecting defendant’s attempt to have the court construe the LPLA to mean that the
LPLA does not apply at all when redhibition is applicable); see also Bearly v. Brunswick Mercury
Marine Div., 888 So. 2d 309, 312 (La. Ct. App. Oct. 27, 2004) (“Although [Louisiana Rev. Stat.
§ 9:2800.53(5)] and its relation to a claim in redhibition has been questioned by commentators
concerning its clarity, all seem to agree that the consumer will have a right to recover against the
manufacturer for purely economic loss, whether under the LPLA or in redhibition.”). For that
reason, on the issue of LPLA claims and redhibition, this Court declines to follow the U.S. District
Court for the Eastern District of Louisiana’s decision in Pitre. Applying Louisiana courts’
interpretation of Louisiana law, Plaintiff Mayfield may bring an LPLA claim for economic
damages in addition to a claim for redhibition.
With regard to Plaintiff Mayfield’s claims for violation of LUTPA, fraud by
omission, and unjust enrichment, Ford asserts these too are barred because the LPLA establishes
the sole theory of liability for manufacturers and it does not provide causes of action for UPTA
violations, fraudulent omission, or unjust enrichment. Ford supports its position by citing the
LPLA exclusivity provision in Louisiana Revised Statute § 9:2800.52 and Pitre.
Mayfield replies that § 9:2800.53(5) and the articles in Chapter 9 of Title VII of Book III of the
Louisiana Code preserves his right to assert claims for fraud and unjust enrichment against Ford.
The LPLA “establishes the exclusive theories of liability for manufacturers for
damage caused by their products. A claimant may not recover from a manufacturer for damage
caused by a product on the basis of any theory of liability that is not set forth in [the LPLA, which
is codified at Title 9 of the Louisiana Code, Book III, Code Title V, Chapter 3].” La. Stat. Ann.
§ 9:2800.52 (2015), in part. This quoted language is known as the exclusivity provision of the
LPLA. See Pitre, 51 F. Supp. 3d at 662. Section 9:2800.54(A) provides “[t]he manufacturer of a
product shall be liable to a claimant for damage proximately caused by a characteristic of the
product that renders the product unreasonably dangerous when such damage arose from a
reasonably anticipated use of the product by the claimant or another person or entity.” The
remainder of the LPLA: (1) explains what constitutes an “unreasonably dangerous” product under
the Act, see La. Stat. Ann. §§ 9:2800.54(B)–2800.58; (2) provides manufacturers with avenues for
escaping liability, see § 2800.59; and (3) sets forth theories of liability under the LPLA specific to
firearm manufacturers, see § 2800.60. The only other LPLA provision discussing damages
recoverable against a manufacturer is Section 9:2800.53(5), which states, “‘[d]amage’ includes
damage to the product itself and economic loss . . . only to the extent that Chapter 9 of Title VII
of Book III of the Civil Code, entitled ‘Redhibition,’ does not allow recovery for such damage or
economic loss.” La. Stat. Ann. § 9:2800.53(5), in part.
The first issue is whether the LPLA bars claims against manufacturers for
fraudulent omission and unjust enrichment. Based on the text of § 9:2800.53(5) and other federal
courts’ interpretation of that text, this Court concludes that § 9:2800.53(5) carves out an exception
to the LPLA’s exclusivity provision.
This carve-out allows plaintiffs to bring claims in
redhibition against manufacturers, but § 9:2800.53(5)’s carve-out does not permit theories of
liability in addition to redhibition. La. Civ. Code Ann. Art. 2520–2548 (2015) (Chapter 9:
Redhibition); see also Pitre, 51 F. Supp. 3d at 662. Therefore, after reviewing the text of the
LPLA, the Court finds the LPLA bars claims against manufacturers for fraudulent omission and
unjust enrichment that arise from one of the manufacturer’s products. See Pitre, 51 F. Supp. 3d at
662 (ruling LPLA bars fraudulent concealment and unjust enrichment claims against
manufacturers); see also Arabie v. R.J. Reynolds Tobacco Co., 698 So. 2d 423, 425 (La. Ct. App.
1997) (theories of recovery not among those listed as exclusive theories of liability under LPLA
are barred against manufacturers); Scott v. Am. Tobacco Co., 949 So. 2d 1266, 1274 (La. Ct. App.
2007) writ denied, 973 So. 2d 740 (La. Jan. 7, 2008) (“Fraud claims cannot be used to circumvent
the LPLA.”).16 As a result, under Louisiana law, Plaintiff Mayfield may not bring these claims
against Ford, and the Court DISMISSES Mayfield’s fraudulent omission and unjust enrichment
But see Duplantis v. Miller, 159 So. 3d 1153, 1157 (La. Ct. App. 2015) (“LPLA does not
eliminate other causes of action against the manufacturer arising directly from its actions,
including claims of failure to perform and unjust enrichment”); Triche v. McDonald's Corp., 164
So. 3d 253, 258 (La. Ct. App. 2014) (“LPLA establishes the exclusive theories of liability for
manufacturers for damages caused by their products. However, the LPLA does not eliminate a
general negligence cause of action for damages caused by the negligent use or handling of the
product by the manufacturer's employee”). These cases are distinguishable from the instant one
because the plaintiffs in those cases were allowed to proceed with negligence and unjust
enrichment claims not based on a defective product, but instead based on the manufacturer’s
actions, specifically, negligently serving hot coffee, Triche, 164 So. 3d at 256, and unjust
enrichment by breach of a promise made to the plaintiff, Duplantis, 159 So. 3d at 1155. In the
instant case, Plaintiff Mayfield alleges Ford was unjustly enriched because he and the class
members overpaid for a defective product. See Consol. Compl., at ¶¶ 781–86. Thus, Plaintiff
Mayfield’s claims against Ford are related to Ford’s product, and not its actions. As such, the
above cases are inapposite to this one, and the LPLA bars Plaintiff Mayfield’s fraudulent omission
and unjust enrichment claims because they are related to Ford’s product and not Ford’s actions.
The remaining issue for Plaintiff Mayfield is whether his LUTPA claim also is
barred by the LPLA’s exclusivity provision. Neither the Louisiana Supreme Court nor other
Louisiana appellate courts have addressed whether a plaintiff may bring LUTPA claims against a
manufacturer. Several district courts have, however, confronted the issue and decided the LPLA
bars plaintiffs from bringing LUTPA claims against manufacturers. See Pitre, 51 F. Supp. 3d at
662–63; Bladen v. C.B. Fleet Holding Co., 487 F. Supp. 2d 759, 767 (W.D. La. 2007). This Court
is persuaded by the analysis offered by these district courts sitting in Louisiana. Specifically, the
LPLA evinces the Louisiana legislature’s intent to “make the LPLA the sole vehicle for a suit
against a ‘manufacturer’,” Bladen, 487 F. Supp. 2d at 767, and because the LPLA specifically
carves out an exception to its exclusivity provision that permits only claims in redhibition, the
legislature, with full knowledge of the LUTPA when it enacted the LPLA and its carve-out,17
intended to bar LUTPA claims against manufacturers. Pitre, 51 F. Supp. 3d at 662; Bladen, 487
F. Supp. 2d at 767. For that reason, the Court DISMISSES Plaintiff Mayfield’s LUTPA claim
Breach of Implied Warranty of Merchantability
Ford argues that Plaintiff Quintin Williams’ implied warranty of merchantability
claim must be denied because he failed to plead he was in privity of contract with Ford, which
Ford asserts North Carolina law requires for a breach of implied warranty claim. Ford’s privity
See Bladen, 487 F. Supp. 2d at 767 (explaining LUTPA was enacted approximately
sixteen years before the LPLA).
of contract argument appears to have merit, but this concern requires only slight re-drafting of the
Consolidated Complaint. Plaintiff Williams does not dispute that North Carolina law requires
privity of contract in a breach of implied warranty action involving only economic loss.18 Instead,
he replies that he did plead privity in the Consolidated Complaint in paragraphs 424, 433, and 507.
Paragraph 433 applies to the national class and it states, “[p]laintiffs and each of the other Class
members have had sufficient direct dealings with either Ford or its agents (dealerships) to establish
privity of contract between Ford, on the one hand, and Plaintiffs and each of the other Class
members, on the other hand.” Consol. Compl., at ¶ 433. However, neither this paragraph nor the
others are properly incorporated into the implied warranty claim as paragraph 1087 only
incorporates into Count 71 paragraphs 1–407. Id. at ¶ 1087. As such, rather than grant Ford’s
motion to dismiss on the basis of a minor drafting error, the Court DIRECTS Plaintiff Williams
to correct this omission by appropriate drafting in the revised Consolidated Complaint consistent
with this Memorandum Opinion and Order.
North Carolina Unfair and Deceptive Trade Practices Act
Ford makes three arguments for dismissal of Plaintiff Williams’ claim for violation
of North Carolina’s Unfair and Deceptive Trade Practices Act (“NCUDTPA”).
argues the “economic loss rule” precludes the NCUDTPA claim. North Carolina courts have not
decided whether the economic loss rule bars NCUDTPA claims. See Ramsey v. Bimbo Foods
North Carolina law does require privity in such cases. Gregory v. Atrium Door & Window
Co., 415 S.E.2d 574, 575 (N.C. Ct. App. 1992).
Bakeries Distrib, No. 5:15-CV-6-BR, 2015 WL 1611339, at *7 (E.D.N.C. Apr. 10, 2015) (citation
omitted). As a result, most federal courts in North Carolina have declined to find the economic
loss rule bars UDTPA claims. See id. (citing Ellis v. Louisiana–Pac. Corp., 699 F.3d 778, 786–87
(4th Cir. 2012); Yancey v. Remington Arms Co., Nos. 1:12CV477, 1:12CV437, 1:10CV918, 2013
WL 5462205, at *10 n. 13 (M.D.N.C. Sept. 30, 2013)); but see Bussian v. DaimlerChrysler Corp.,
411 F. Supp. 2d 614, 625 (M.D.N.C. 2006) (dismissing NCUDTPA claim by applying economic
loss rule). This federal court, sitting in diversity, declines to do that which North Carolina courts
have not—extend the economic loss rule to bar a NCUDTPA claim. See Time Warner Entm’t–
Advance/Newhouse P’ship v. Carteret–Craven Elec. Membership Corp., 506 F.3d 304, 315 (4th
Cir. 2007) (“[A]s a court sitting in diversity, we should not create or extend the North Carolina
common law”); see also Ramsey, 2015 WL 1611339, at *7. The only relevant authority cited by
Ford to support its argument that the economic loss rule should be applied to bar the UDTPA claim
is Bussian, which was decided well before the Fourth Circuit clarified in Ellis that federal courts
should decline to extend North Carolina’s economic loss rule if North Carolina courts have not
first done so. In light of the Fourth Circuit’s clear command, this Court declines to apply the
economic loss rule to dismiss the NCUDTPA claim.
Ford’s second and third attacks against the NCDUPTA claim assert that Plaintiff
Williams failed to plead with particularity, and he failed to plead “reasonable reliance.” “In order
to state a claim under the [NCUDTPA], a plaintiff must show (1) defendant committed an unfair
or deceptive act or practice; (2) the action in question was in or affecting commerce; and (3) the
act proximately caused injury to the plaintiff.” Ellis v. Louisiana–Pac. Corp., 699 F.3d 778, 787
(4th Cir. 2012) (citing Becker v. Graber Builders, Inc., 561 S.E.2d 905, 910 (N.C. App. Ct. 2002))
(internal quotations omitted).
In essence, Ford asserts Plaintiff Williams failed to allege facts that satisfy the first,
second, and third prongs of a NCUDTPA claim. See Ford Motor Co.’s Resp. to Pls.’ Mot. for
Leave to File First Am. Master Consol. Class Act. Compl., at 36–37, ECF No. 452. First, Ford
claims Plaintiff Williams failed to plead with particularity what misrepresentations or omissions
by Ford were unfair or deceptive under the NCDUTPA.
Second, Ford maintains Plaintiff
Williams failed to allege how Ford’s actions affected commerce. Third, Ford asserts Plaintiff
Williams failed to plead reasonable reliance, which North Carolina law requires for proof of
With regard to prong one, the deceptive or unfair practice prong, Plaintiff Williams
alleges in the Consolidated Complaint that Ford committed unfair or deceptive acts under North
Carolina law. “Whether a trade practice is unfair or deceptive usually depends upon the facts of
each case and the impact the practice has in the marketplace.” Marshall v. Miller, 276 S.E.2d 397,
403 (N.C. 1981) (citation omitted). For purposes of the NCUDTPA, a practice is deceptive, even
if it was a true statement that did not actually deceive the plaintiff, so long as the act “possessed
the tendency or capacity to mislead, or created the likelihood of deception.” Chastain v. Wall, 337
S.E.2d 150, 154 (N.C. App. Ct. 1985) (citation and internal quotations omitted). “A practice is
unfair when it offends established public policy as well as when the practice is immoral, unethical,
oppressive, unscrupulous, or substantially injurious to consumers.” In re Fifth Third Bank, Nat.
Ass'n-Vill. of Penland Litig., 719 S.E.2d 171, 176 (N.C. App. Ct. 2011) (citation and internal
quotations omitted). The North Carolina Court of Appeals further has explained, “[e]gregious or
aggravating circumstances must be alleged before the [NCUDTPA] may take effect. Aggravating
circumstances include conduct of the breaching party that is deceptive. Finally, in determining
whether a particular act or practice is deceptive, its effect on the average consumer is considered.”
Becker, 561 S.E.2d at 910–11 (internal citations omitted). Here, Plaintiffs allege Ford had
knowledge of a defect in its product’s ETC System. Consol. Compl., at ¶¶ 7–8. Despite its
knowledge, Ford never disclosed the defect to consumers, blamed sudden unintended acceleration
events on driver error or other circumstances, and continued to market its vehicles as safe. Id. at
¶¶ 9–10, 214. The practice of knowing about a defective product but then failing to disclose that
to consumers and instead marketing the product as safe and offering an alternative explanation for
the manifestation of that defect, if true, could constitute conduct that “has the capacity or tendency
to deceive and mislead,” see Chastain, 337 S.E.2d at 154, or an unfair practice under the
NCUDTPA, see Walker v. Fleetwood Homes of N. Carolina, Inc., 653 S.E.2d 393, 398 (N.C. 2007)
(observing that violations of some statutes can constitute unfair and deceptive trade practices); In
re Fifth Third Bank, Nat. Ass'n-Vill. of Penland Litig., 719 S.E.2d at 176 (ruling violation of a
consumer protection statute may constitute a per se violation of the UDTPA).
Consolidated Complaint alleges facts that satisfy the deceptive or unfair practice prong of the
With regard to prong two, requiring the deceptive act was in or affecting commerce,
Plaintiff Williams alleged facts that, if true, would satisfy this prong. Where a defendant and
plaintiff have engaged in buyer-seller relations in a business setting, an allegedly deceptive
transaction is in or affecting commerce for purposes of the NCUDTPA. See Sara Lee Corp. v.
Carter, 519 S.E.2d 308, 311 (N.C. 1999) (noting NCUDTPA applies to dealings between buyers
and sellers at all levels of commerce). Here, Ford sold an allegedly defective product to a North
Carolina consumer in a business setting. Therefore, the allegedly deceptive act was in or affecting
commerce for purposes of the NCUDTPA. The Court rejects Ford’s assertion that Plaintiff
Williams must allege further facts pertaining to how Ford’s actions affected commerce or the
consuming public. A transaction between a buyer and seller in a business setting constitutes a
transaction that is in or affecting commerce. Carter, 519 S.E.2d at 312. The Court finds the
Consolidated Complaint alleges facts sufficient to satisfy the NCUDTPA’s commerce prong.
With regard to the last prong, which calls for proximate cause, Ford asserts the
NCUDTPA claim should be dismissed because Plaintiff Williams failed to plead “reasonable
reliance.” Where a NCUDTPA claim is based on an alleged misrepresentation, the plaintiff must
show it actually and reasonably relied on the misrepresentation in order to show the alleged
misrepresentation “proximately caused” the plaintiff’s injury. Bumpers v. Cmty. Bank of N.
Virginia, 747 S.E.2d 220, 226 (N.C. 2013); Sunset Beach Dev., LLC v. AMEC, Inc., 675 S.E.2d
46, 53 (N.C. App. Ct. 2009) (citation and internal quotations omitted). Plaintiff Williams replies
by stating that his NCUDTPA claim is not based solely on misrepresentation, it also is based on
“what Ford did by putting unsafe vehicles on the road,” and claims not based on fraud or
misrepresentation “only require deception.” Pls.’ Reply to Ford’s Resp. to Pls.’ Mot. for Leave
to File First Am. Master Consol. Class Act. Compl., at 44, ECF No. 532 (citing to Mitchell v.
Linville, 557 S.E.2d 620, 623 (N.C. App. Ct. 2001)). The Court notes that NCUDTPA claims
require reliance only if the claim is based on fraud or misrepresentation. See Bumpers, 747 S.E.2d
at 226 (stating “a claim under [the NCUDTPA] stemming from an alleged misrepresentation does
indeed require a plaintiff to demonstrate reliance on the misrepresentation in order to show the
necessary proximate cause”); State ex rel. Cooper v. W. Sky Fin., LLC, No. 13 CVS 16487, 2015
WL 5091229, at *15 (N.C. Super. Aug. 27, 2015) (not requiring reliance in NCUDTPA claim that
was not based on misrepresentation); State ex rel. Cooper v. NCCS Loans, Inc., 624 S.E.2d 371,
378 (N.C. App. Ct. 2005) (ruling defendant committed deceptive act despite no actual deception
having taken place). But see Bumpers, 747 S.E.2d at 226 (requiring reliance in NCUDTPA claim
alleging overcharging, reasoning overcharging constitutes misrepresentation).
violations of statutes designed to protect the consumers and violations of “established public
policy” may constitute unfair and deceptive practices that violate the NCUDTPA, even if the
plaintiff did not rely on the conduct that violated the statute or policy. NCCS Loans, Inc., 624
S.E.2d at 379 (quoting Stanley v. Moore, 454 S.E.2d 225, 228 (1995)). Therefore, the Court will
not dismiss the NCUDTPA claim on the ground that reliance was not pled.19
However, in light of Plaintiff Williams’ admission that he did not allege reliance, the
Court notes the limited conduct that can now form the basis of the NCUDTPA claim. Plaintiff
Williams has not alleged actual or reasonable reliance and, therefore, he has forgone using any
misrepresentation or fraud by Ford as the basis for his NCUDTPA claim. North Carolina courts,
in determining whether an NCUDTPA claim is based on fraud or misrepresentation, go beneath
the surface of what the plaintiff is arguing and may find a claim based on fraud or
misrepresentation even where the plaintiff labels it otherwise. See Bumpers, 747 S.E.2d at 227.
For instance, in Bumpers, a case where the plaintiff brought a NCUDTPA claim based on
overcharging, the North Carolina Supreme Court held reliance was required. Bumpers, 747 S.E.2d
at 227. Specifically, the defendant-fuel supplier in that case misrepresented in its bills the amount
of oil delivered, and the plaintiff relied on that bill resulting in defendant overcharging the plaintiff.
Id. The North Carolina Supreme Court held “a claim for overcharging is not distinct from one
based on misrepresentation.” Id. Thus, Plaintiff Williams’ NCUDTPA claim, in the absence of
In summary on Ford’s second and third attacks against the NCDUPTA claim,
taking the Consolidated Complaint’s allegations as true, Ford's conduct—knowing about a defect
but failing to disclose it to complaining consumers, and instead offering an alternative explanation
for the defect’s manifestation while touting its vehicles as safe—could, as a matter of law, violate
the NCUDTPA. See Walker, 653 S.E.2d at 398 (violations of some statutes can constitute unfair
and deceptive trade practices); Hanes v. Darar, 722 S.E.2d 211 (N.C. App. Ct. 2012) (ruling
conduct amounting to more than just breach of contract was substantial aggravating circumstance
that violated NCUDTPA).20 Based on the Consolidated Complaint’s allegations alone, it would
be improper to dismiss the NCUDTPA claim before receiving evidence and arguments adduced
by the parties on the issue of whether Ford’s conduct violated the NCUDTPA. Therefore, the
Court declines to adopt Ford’s second and third arguments and DENIES dismissal of the
NCUDTPA claim on the grounds that Plaintiff Williams failed to plead with particularity or failed
to allege actual reliance.
Breach of Implied Warranty of Merchantability
(Va.—David and Inez Patton)
alleged reliance, may not explicitly or implicitly rely on Ford’s alleged misrepresentation or fraud.
Additionally, a breach of warranty, even if intentional, is not sufficiently unfair or deceptive to
sustain a UDTPA claim. Ellis, 699 F.3d at 787 (citing Wachovia Bank & Trust Co. v. Carrington
Dev. Assocs., 459 S.E.2d 17, 21 (N.C. App. Ct. 1995)).
“‘Ordinarily, once the [facts of a case have been found], the court . . . then determines, as
a matter of law, whether the defendant engaged in unfair or deceptive practices in or affecting
commerce.’” Walker v. Fleetwood Homes of N. Carolina, Inc., 653 S.E.2d 393, 399 (N.C. 2007)
(quoting Gray v. N.C. Ins. Underwriting Ass’n, 529 S.E.2d 676, 681 (N.C. 2000)).
Ford argues that the breach of implied warranty claim brought by Plaintiffs David
and Inez Patton should be dismissed because it was not plead sufficiently to state a claim for relief
under Virginia law. More specifically, Ford asserts the Consolidated Complaint fails to allege
two elements required under Virginia law—that a significant element of the buying public would
object to buying the goods, or that the vehicles are not reasonably capable of performing their
ordinary functions. Ford Motor Co.’s Resp. to Pls.’ Mot. for Leave to File First Am. Master
Consol. Class Act. Compl., at 45, ECF No. 452. To support the proposition that Virginia law
requires these elements, Ford cites to Bayliner Marine Corp. v. Crow, 509 S.E.2d 499, 503 (Va.
1999), where the defendant appealed the sufficiency of the evidence supporting the trial court’s
In reply to Ford, Plaintiffs David and Inez Patton contend that Bayliner does not
establish the elements required for a breach of implied warranty of merchantability claim, but
instead the standard for proving that claim. To support their argument, they point to Hubbard v.
Dresser, Inc., 624 S.E.2d 1, 5 (Va. 2006), which clarified that Bayliner was addressing an
evidentiary standard and not a pleading standard.
After reviewing these two cases, the Court concludes Plaintiffs David and Inez
Patton are correct—Ford’s reliance on Bayliner is misplaced. In Hubbard, the Supreme Court of
Virginia clarified that Bayliner addressed the evidentiary burden for an implied warranty of
merchantability claim, and not the elements required to state such a claim. See Hubbard, 624
S.E.2d at 5 (Bayliner did not hold that a claim for breach of implied warranty of merchantability
requires pleading the trade or industry standard for merchantability). Instead, a claim for breach
of the implied warranty of merchantability requires pleading violation of Virginia Code § 8.2–314,
which demands that goods be “merchantable,” meaning they are “of a quality that would pass
without objection in the trade under the contract description,” or “are fit for the ordinary purposes
for which such goods are used.” Hubbard, 624 S.E.2d at 5.
Here, Plaintiffs David and Inez Patton’s allegations, if true, state a claim for relief
under § 8.2–314. The Consolidated Complaint alleges that Ford is a manufacturer of automobiles,
and that the automobile Plaintiffs David and Inez Patton purchased from Ford had an ETC system
that would “open wide as the brake was applied to park the car,” (Consol. Compl., at ¶ 372), and
this problem was due to a defect in the ETC system. Id. at ¶ 373. It is more than plausible that an
automobile should not accelerate when the user applies the brake, and that an automobile that does
such would not “pass without objection in the trade,” because it is not “fit for the ordinary purposes
for which such goods are used.” Hubbard, 624 S.E.2d at 5. Thus, while Plaintiffs David and Inez
Patton will have the burden of proving these allegations at trial, the allegations themselves are
adequate to state a plausible claim for breach of the implied warranty of merchantability under
§ 8.2–314. Accordingly, this Court DENIES Ford’s motion to dismiss Plaintiffs David and Inez
Patton’s claim for breach of the implied warranty of merchantability.
Magnuson-Moss Warranty Act
The Magnuson-Moss Warranty Act (“MMWA”) provides a cause of action for any
consumer who is damaged by the failure of a warrantor to comply with a written or implied
warranty. 15 U.S.C. § 2310(d)(1). To determine whether there has been a breach of a written or
implied warranty in violation of the MMWA, courts must apply applicable state express and
implied warranty law. ” Carlson v. Gen. Motors Corp., 883 F.2d 287, 291 (4th Cir. 1989) (noting
it is “beyond genuine dispute that, as to both implied and written warranties, Congress intended
the application of state law . . .”) (citing Walsh v. Ford Motor Co., 807 F.2d 1000, 1013–14 (D.C.
Cir. 1986); Abraham v. Volkswagen of America, 795 F.2d 238, 247–49 (2d Cir. 1986)). Ford
argues for dismissal of MMWA claims brought by Plaintiffs in California, Georgia, Idaho,
Kentucky, Maryland, New York, North Carolina, and Washington because, according to Ford,
these plaintiffs do not have valid underlying state warranty claims, implied or express.21
In order to rule on Ford’s argument for dismissing Count 1 as to these Plaintiffs,
the Court must look to its dispositions in this Opinion on implied and express warranty claims
brought by Plaintiffs in the following Counts: 8 (California implied), 10 (California express), 11
(California implied), 15 (Georgia implied), 18 (Idaho express), 19 (Idaho implied), 28 (Kentucky
express), 29 (Kentucky implied), 38 (Maryland express), 67 (New York express), 68 (New York
implied), 71 (North Carolina implied), 97 (Washington express), and 98 (Washington implied).
Plaintiffs concede that in order to bring an implied warranty MMWA claim, they must
have a viable state law implied warranty claim. However, Plaintiffs contend that a “written
warranty” MMWA claim does not hinge on having a viable state law express warranty claim.
Instead, according to Plaintiffs, in order to have a viable written warranty MMWA claim, a plaintiff
merely must allege a breach of what constitutes a “written warranty” under the MMWA, as
specifically defined at 15 U.S.C. § 1201(6). Plaintiffs’ argument that written warranties under the
MMWA operate independently of state law definitions of express warranties has been foreclosed
by the Fourth Circuit. See Carlson, 883 F.2d at 291 (citing Walsh, 807 F.2d at1013–14; Abraham,
795 F.2d at 247–49 (ruling that, as to both implied and written warranties under MMWA, Congress
intended the application of state law)).
For those Plaintiffs who still have a valid state law express or implied warranty claim, their
MMWA claim also survives Ford’s argument for dismissing Count 1 as to that Plaintiff. See 15
U.S.C. §§ 2310(d)(1) (providing cause of action to consumers damaged by breach of written or
implied warranty), 2301(6) (defining written warranties in a way that encompasses state law
express warranties that are written), 2301(7) (defining implied warranties for purposes of the act
in terms of state law); see also Walsh, 807 F.2d at 1012 (“Congress sought only to supplement
state warranty law by prescribing certain minimum standards for warrantors, and by affording
consumers additional avenues for redress.”); Carlson, 883 F.2d at 291 (finding Congress intended
state express warranty law would guide the determination whether a written warranty had been
created under MMWA).
In addition to those express and implied warranty claims which no longer have a
named Plaintiff (Counts 13, 24, 42, 43, 53, 54, 63, & 90), the Court dismisses Counts 8, 11, 28 (in
part), 29, and 68 for the above stated reasons. The other express and implied warranty claims
remain viable after this Court’s opinion.
Therefore, the following MMWA claims are not
dismissed and remain in this action under Count 1, those brought by Plaintiffs in West Virginia,
Georgia, Idaho, Maryland, Minnesota, Montana, North Carolina, South Carolina, Virginia, and
Washington. This leaves for the Court to determine whether MMWA claims brought by the
California, New York, and Kentucky Plaintiffs survive dismissal of some or all of their warranty
The California and New York Plaintiffs can maintain their MMWA claims, despite
having their implied warranty claims dismissed, because they still maintain express warranty
claims (Counts 10 and 67) that could plausibly serve as a basis for a MMWA written warranty
claim. Carlson, 883 F.2d at 291. Likewise, although Plaintiff Troutman’s implied warranty claim
under Kentucky law was dismissed, his breach of express warranty claim only was dismissed as
to his Ford Mustang. It was not dismissed as to his Ford Expedition. Thus, this claim also could
plausibly serve as a basis for a MMWA claim. Accordingly, the Court likewise declines to
dismiss MMWA claims in Count 1 brought by Plaintiffs in California, New York, and Kentucky.
In the Memorandum Opinion and Order entered on November 14, 2014, the Court
denied Ford’s motion to dismiss Plaintiffs’ fraudulent omission claims under a heightened
pleading standard pursuant to Rule 9(b) of the Federal Rules of Civil Procedure. Johnson v. Ford
Motor Co., sub nom Belville v. Ford Motor Co., 60 F. Supp. 3d 690, 697 (S.D. W. Va. Nov. 14,
2014). Instead, the Court determined “that a more relaxed standard under Rule 9(b) should apply
in omission cases because a plaintiff cannot be required to specifically identify the precise time,
place, and content of an event that did not occur.” Id. Shortly after this decision, the Fourth
Circuit issued a decision in Murphy v. Capella Education. Co., 589 Fed. Appx. 646 (4th Cir. 2014).
Ford argues that the Court should reconsider its prior ruling in light of Murphy and apply the higher
standard under Rule 9(b) to fraud claims involving omissions. Upon review of Murphy, the Court
finds Ford’s argument unpersuasive.
First, the Court recognizes that Murphy is an unpublished per curiam opinion with
no binding precedent in the Fourth Circuit. Murphy, 589 Fed. Appx. at *648 (“Unpublished
opinions are not binding precedent in this circuit.”). Second, there is no indication in Murphy that
the issue of whether a more relaxed standard for fraudulent omission claims was raised by the
parties, and it was not directly addressed by the Fourth Circuit. Third, since Murphy was decided,
at least one district court within the Fourth Circuit has continued to apply a more relaxed standard
to fraudulent omission claims, finding it consistent “with the Fourth Circuit's instruction that ‘[a]
court should hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the
defendant has been made aware of the particular circumstances for which she will have to prepare
a defense at trial, and (2) that plaintiff has substantial prediscovery evidence of those facts.’”
Naparala v. Pella Corp., No. 2:14-mn-00001-DCN, 2:14-mn-03465-DCN, 2015 WL 2379492, at
*7 (D.S.C. May 19, 2015), (quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776,
784 (4th Cir. 1999)). Thus, based upon these considerations and for the reasons stated in the
Memorandum Opinion and Order entered on November 14, 2014, the Court rejects Ford’s
argument that the fraud by omission claims are subject to dismissal under a heightened 9(b)
standard. See Consol. Compl., at ¶¶ 4, 9, 17, 21, 30, 39, 49, 60, 69, 73, 87, 95, & 99.
Ford also makes a number of Rule 9(b) arguments with respect to Plaintiffs’
consumer protection act claims, unfair competition, and false advertising claims. For instance,
Ford argues that Plaintiff Charles T. Burd’s claim under the West Virginia Consumer Credit and
Protection Act (WVCCPA), West Virginia Code § 46A-6-101 et seq., in Count 5 should be
dismissed for two reasons. First, Ford argues that Plaintiff Burd failed to plead that he gave Ford
notice of his alleged claims as required by West Virginia Code § 46A-6-106(c). This section
provides that “no action . . . may be brought pursuant to the provisions of . . . [the WVCCPA] until
the person has informed the seller or lessor in writing and by certified mail . . . of the alleged
violation and provided the seller or lessor twenty days from receipt of the notice of violation . . .
to make a cure offer[.]” W. Va. Code § 46A-6-106(b). In the Consolidated Complaint, Plaintiff
Burd asserts that “all pre-suit notice requirements under W. Va. Code § 46A-6-106 have been
satisfied.” Consol. Compl., at ¶ 476. Pursuant to Rule 9(c), “[i]n pleading conditions precedent,
it suffices to allege generally that all conditions precedent have occurred or been performed.” Fed.
R. Civ. 9(c). As Plaintiff Burd’s allegations satisfy Rule 9(c), the Court will not dismiss his claim
based upon this argument.
Second, Ford argues that Plaintiff Burd’s claim under the WVCCPA sounds in
fraud, but it is not plead with particularity as required by Rule 9(b). Thus, Ford asserts the claim
must be dismissed. In Count 5, Plaintiff Burd alleges that Ford engaged in deceptive and
misleading trade practices in violation of the WVCCPA in several ways. Listed under paragraph
471 of the Consolidated Complaint are several acts Plaintiff Burd asserts constitute “[u]nfair
methods of competition and unfair or deceptive acts or practices,” pursuant to W. Va. Code § 46A6-104. Consol Compl., at ¶¶ 471-72. In reviewing these allegations, the Court finds Plaintiff Burd
claims, in part, that Ford “[f]ailed to disclose material information concerning Ford Vehicles,
which information was known to it at the time of advertising and selling Ford Vehicles, all of
which was intended to induce consumers to purchase Ford Vehicles[.] Id. at ¶ 471(e). As this
allegation is one of fraudulent omission, it is subject to the more relaxed 9(b) standard. In
addition, Plaintiff Burd “repeats and realleges paragraphs 1 through 407” in Count 5. Id. at ¶ 468.
To that end, paragraphs 374 through 400 describe the omissions Plaintiffs allege occurred. 22
Based upon this Court’s review of all these allegations, the Court finds Plaintiff Burd meets the
more relaxed 9(b) standard and DENIES Ford’s argument with respect to Count 5.
Ford makes similar Rule 9(b) motions with respect to Plaintiffs’ other consumer
protection act claims, unfair competition, and false advertising claims. 23
In examining the
allegations for each of these claims, the Court finds that they all allege claims based, at least in
part, on fraudulent omissions, similar to what existed in Count 5. Compare, e.g., Count 5, at
¶ 471(e) (asserting Ford “failed to disclose material information”), with Count 6, at ¶¶ 482 & 486
(alleging Ford “failed to adequately disclose” and “Plaintiffs relied on . . . omissions of Ford with
respect to the quality, safety, and reliability of the Ford Vehicles”); Count 7, at ¶¶ 493-94 (asserting
Ford violated California’s False Advertising Law because it made “omissions regarding the safety
and reliability of its Ford Vehicles [that were] material and likely to deceive a reasonable
consumer” and Plaintiffs “relied on the misrepresentations and/or omissions of Ford with respect
to the safety and reliability of the Ford Vehicles”); Count 37, at ¶ 792 (c) & (d) (providing “Ford
failed to inform Plaintiff and the other Class members of the [defect] . . . [and omitted] material
These paragraphs also describe material misrepresentations and concealment that
See id. at Count 6 (California Unfair Competition Law); Count 7 (California False
Advertising Law); Count 37 (Maryland Consumer Protection Act); Count 46 (Minnesota False
Statement in Advertising Act); Count 47 (Minnesota Uniform Deceptive Trade Practices Act);
Count 48 (Minnesota Prevention of Consumer Fraud Act); Count 83 (Pennsylvania Unfair Trade
Practices and Consumer Protection Law); Count 89 (Texas Deceptive Trade Practices Act); Count
93 (Virginia Consumer Protection Act); and Count 96 (Washington Consumer Protection Act).
facts” in order to sell vehicles); Count 46, at ¶ 861 (alleging Ford “failed to advise the public about
what it knew about the defective nature of the Ford Vehicles”); Count 48, at ¶¶ 876 & 877
(asserting Ford “failed to advise the public about what it knew about the defective nature of the
Ford Vehicles” and “Plaintiff and the other Class members relied on Ford’s silence as to known
defects in connection with their decision regarding the purchase and/or lease of the Ford
Vehicles”); Count 83, at ¶ 1196 (stating “Ford failed to . . . disclose . . . the defect”); Count 89 at
¶ 1257 (asserting “Ford failed to disclose information”); Count 93, at ¶ 1294 (alleging “Ford
omitted material facts regarding the safety of the Ford Vehicles”); and Count 96, at ¶¶ 1325 &
1326 (stating Ford engaged in a “generalized course of deception” and “[a]ll the wrongful conduct
alleged herein occurred”). All of these claims also repeat and reallege paragraphs 1 through 407.
Accordingly, for the same reason the Court found Count 5 sufficient, the Court finds these claims
meet the more relaxed standard under Rule 9(b) and REJECTS Ford’s arguments.
Accordingly, for the foregoing reasons and the reasons set forth in the
Memorandum Opinion and Order entered on September 15, 2015, the Court GRANTS, in part,
and DENIES, in part, Motion for Leave to File First Amended Master Consolidated Class Action
Complaint. ECF No. 381. The Court will permit Plaintiffs to file a Consolidated Complaint;
however, Plaintiffs should edit the current version to be consistent with this Court’s rulings.
Specifically, in addition to removing the proposed new Plaintiffs and any claims or facts related
solely to those Plaintiffs, the Court DIRECTS Plaintiffs to remove the following claims: Counts
8, 11, 12, 13, 14, 16, 22, 23, 24, 25, 26, 27, 28 (only with respect to Plaintiff Troutman’s Ford
Mustang), 29, 34, 35, 36, 41, 42, 43, 44, 45, 52, 53, 54, 55, 56, 62, 63, 64, 65, 68, 75, 76, 77, 78,
79, 80, 82, 84, 88, 90, 91, 92, and 100. The Court further DIRECTS Plaintiffs to correct the
drafting error in Count 71 in the revised Consolidated Complaint, consistent with this
Memorandum Opinion and Order. The Court ORDERS the revised Consolidated Complaint be
filed within fourteen (14) days of today.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
November 24, 2015
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