Citations
- 280 F. Supp. 3d 975
Full opinion text
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS ALLEGING FAILURE TO STATE A CLAIM
DAVID M. LAWSON, United States District Judge
This is the third motion to dismiss filed by the defendant under Federal Rule of Civil Procedure 12(b) aimed at the first amended consolidated master class action complaint (FACMC) in this multidistrict litigation proceeding. The first two' motions challenged subject matter and personal jurisdiction under Rules 12(b)(1) and (2), respectively. The present motion is based on Rule 12(b)(6), but it adopts -the same reading of the FACMC that the Court rejected earlier as unfaithful to the plain text of that pleading. The motion here is necessarily more complex, however, because it addresses a complaint that alleges 86 counts under the laws of 18 states (although claims under only seven states’ laws are currently live), plus a federal count under the Magnuson-Moss Warranty Act. Although the laws of some of the states interpose certain procedural obligations that a few of the plaintiffs failed to meet— necessitating dismissal of some counts— the faulty premise rejected by the Court in its previous opinion on the Rule 12(b)(1) motion dooms the defendant’s principal arguments here, and therefore the Court will deny, for the most part, the motion to dismiss alleging failure to state a.,claim.
I. Facts and-Proceedings
A. Summary of Pending Claims
This. multidistrict case began with an October 5, 2016 order of the Judicial Panel on, Multidistrict Litigation (JPML). The proceeding presently comprises 23 cases transferred or consolidated before .this Court, from 17 districts including the Eastern District of Michigan. Eleven of those cases involve claims for economic losses only, and 12 include allegations of personal injuries resulting from “rollaway” accidents.
The FACMC, [dkt. # 88], which'was filed on March 24, 2017, collected the claims of 29 individual plaintiffs from 18' states. Since the FACMC was filed, some of the plaintiffs have dropped out and a few of the personal injury cases have settled. Claims for economic loss by 35: plaintiffs subsequently were. transferred to or' directly filed in this Court; and therefore have not yet been consolidated in the master pleading and-are not directly subject to the present motion to dismiss. Nonetheless, the counts of the FACMC are representative of.the claims in the more recent cases, and the defendant’s arguments as to those actions likely would be the same.
The FACMC, as filed, sets forth- 86 counts for violations of the federal Magnu-son-Moss Warranty Act, 15 Ú.S.C. § 2301 et seq., and for breaches of express and implied warranties, false'or déeeptive advertising, fraudulent concealment, and unjust enrichment, under the common law and consumer protection statutes of the various states. However, after the consolidated complaint was filed, the Court dismissed without prejudice the claims of 20 plaintiffs from several states who were named in a-case transferred here from-the Central' District of California (the Goldsmith case, No. 16-13681 (E.D. Mich.) (a.k.a. Goldsmith v. FCA US, LLC, No. 16-01341 (C.D. Cal); f/k/a Andollo v. FCA US, LLC). Those 20 non-California plaintiffs have re-asserted their claims in other civil .actions presently before the Court, but not before the defendant’s Rüle 12(b)(6) motion was argued. Therefore, as the plaintiffs note in their response to the motion to dismiss, after the dismissal of those 20 plaintiffs, the surviving claims pleaded in the consolidated master complaint involve only 11 plaintiffs from seven states:
• California (David Goldsmith, Michael Vincent Nathan, Jr., and Pascual Pietri) (Counts VI-XII)
• ‘ Massachusetts (Bernadine . Hartt) (Counts XXI-XXIII)
• Missouri (Taylor Brooks) (Counts XXIX-XXXIII)
• Nebraska (Nina .Walker) (Counts XXXIV-XXXVIII)
• New .York (John Lynd and Janella Mack) (Counts XLIX-LIII)
• Pennsylvania . (Timothy Weber and Bruce Vosburgh) (Counts LXVIII-LXXII)
• Wisconsin (Marc- Hughes) (LXXXI- ;■ II-LXXXVI)
, The separately filed consolidated personal injury complaint [dkt. # 74] asserted consolidated claims on behalf of 12 personal injury plaintiffs (five remain). Since that consolidated complaint' was filed, nine more plaintiffs’ cases have been transferred''to this Court.
B. Factual Background
This case concerns alleged design defects in certain cars made by defendant FCA US, LLC (commonly referred to as Fiat Chrysler Automotive, or FCA) between 2012 and 2015. The FACMC alleges the various liability theories noted-above on behalf of the named plaintiffs and all other persons in the United States “who purchased, leased or own a 2012-2014 Chrysler 300, 2012-2014 Dodge Charger, or 2014-2015 Jeep Grand Cherokee equipped with a monostable electronic gearshift, supplied ■ by ZF - Friedrichshaffen AG” .(the so-called “monostable shifter” or “defective shifter”). This shifter design does not use a lever that moves physically to different positions, but instead is pushed in a direction by the driver, and then springs back to its original position after a gear is selected. The only indication that the car has changed gears or is in a particular gear is from lighted indicators on the dashboard and shifter that change to display letters such as “D” for “Drive” or “P” for “Park.” Unlike some other vehicles with similar gearshift designs made by FCA’s competitors, the cars at issue in this lawsuit also do not have any mechanism to automatically shift the car to “Park” when the driver exits the car while it is in another gear.
As noted above, the defendant has recycled its arguments from the Rule 12(b)(1) motion based on its view that the plaintiffs claim that the vehicles are defective only because they do not include an auto-park feature — which was neither promised nor paid for — and little more. That assertion misrepresents the substance of the FACMC. To assess the defendant’s Rule 12(b)(6) motion, it is necessary to review the pleading in some detail.
1. Design Defects
The plaintiffs allege that the monostable shifter design is defective and unsafe in two ways: (1) it gives insufficient indications to a driver about whether an intended gear selection was completed, and what gear the car is in; and (2) it can cause the car to shift into a gear other than the one that was selected, or to shift spontaneously out of “Park” and into a gear that allows the car to move. The plaintiffs assert that the danger posed by those defects is aggravated by the fact that the cars do not have any safety override or auto-park feature to automatically shift the transmission to “Park” if the driver side door is opened when the engine is running.
As stated in the FACMC, “the lack of a physical gear level for PRND and the Defective Shifter’s return to its predetermined location has led to hundreds of reports of Class Vehicles rolling away when drivers thought their vehicles were in Park.” The defendant acknowledged in its own recall notices the risk that, because “[g]ear-selection is conveyed to the driver by ... indicator lights, not gear-selector position ... drivers may draw erroneous conclusions about the status of their vehicles.” FACMC ¶¶ 119-20. The plaintiffs assert that “[t]he Defective Shifter’s use of solely visual cues to alert drivers to the Class Vehicles’ gear position is ineffective because drivers may not realize that they have not pushed the gear lever forward or backward enough to engage their desired gear.” They say that “[b]ecause there is no tactile feedback informing a driver whether the shifter lever has physically moved and is resting in P, R, N or D, drivers may think they have pushed the shifter lever forward enough to engage the Park gear and may exit the vehicle when it is not actually in Park.” Id. ¶ 124. They also allege that “[t]he Defective Shifter’s sole reliance on visual feedback to convey gear selection has been dangerously ineffective.” And they allege that the defendant knew as much because “consumer complaints beginning at least as early as 2013 ... document Class Vehicle owners’ and lessees’ inability to determine whether their vehicle is in the desired gear resulting in hundreds of rollaways, accidents and injuries.” Id. ¶ 125. The plaintiffs further assert that “numerous complaints to [the National Highway Transportation Safety Administration (NHTSA) ] allege that once a driver puts a Class Vehicle into Park, the vehicle can move into another gear on its own.” Ibid.
The plaintiffs allege that “[ujnlike other automobile manufacturers, FCA did not implement a safety override feature that would prevent Class Vehicles from moving when the vehicles are not in Park and a driver opens the driver door and disengages pressure on the gas or brake pedals to exit the vehicle.” “The lack of a fail-safe feature is especially problematic because the engine stop button in the Class Vehicles is programmed to not function when drivers attempt to shut off the engine while the vehicle is not in Park.” FACMC ¶¶ 121,126.
The potential problems that this combination of features could cause were summarized by NHTSA in a report that followed its investigation of the rollaway incidents:
The Office of Defects Investigation (ODI) opened Preliminary Evaluation PE15-030 on August 30, 2015 to investigate 14 complaints alleging incidents of rollaway after intended shifts to Park in Model Year (MY) 2014 and 2015 Jeep Grand Cherokee vehicles. The MY 2014-2015 Grand Cherokee vehicles are equipped with Monostable electronic (“E-shift”) gearshift assemblies supplied by ZF Group (ZF). The E-shift system operates electronically and the gear requested by the driver is transmitted from the shifter via the CAN Bus to the Transmission Control Module which makes the requested shift. The Monostable gearshift does not move into a de-tent but springs back to a centered / neutral position after the driver selects a gear and releases the shifter. A button on the shift knob must be depressed to shift out of Park, shift out of Neutral, and to shift from Drive to Reverse or Park.
The gear selected is shown on a display in the dash and illuminated letters on the shifter. If the driver’s door is opened when the gearshift is not in Park, a chime sounds and a message is displayed on the [Electronic Vehicle Information Center (EVIC)] to warn the driver. In addition, the engine Start / Stop push-button contról logic does not permit normal engine shut-off when the transmission is not in Park. This logic may provide feedback to drivers who attempt to turn the engine off when the transmission- is not in Park. However, this function does not protect drivers who intentionally leave the engine running or drivers who do not recognize that the engine continues to run after an attempted shut-off.
NHTSA testing during PE15-030 indicates that operation of the Monostable shifter is not intuitive and provides poor tactile and visual feedback to the driver, increasing the potential for unintended gear selection.
FACMC, Ex. A, NHTSA Report (Initial) (Pg ID 2953-54). The FACMC incorporates NHTSA’s final analysis of the shifter design and its relation to the mishaps disclosed by its - own investigation and the manufacturer’s defect report to the agency, which reads: '
Although the Monostable gearshift has the familiar appearance of a conventional console mechanical gearshift assembly, it has unfamiliar movement that does not provide the tactile or visual feedback that drivers are accustomed to receiving from conventional shifters. Consequently, the driver must take additional time to verify that the desired gear position was achieved by checking the PRNDL display on the shift knob or the Electronic Vehicle Information Center (EVIC) display.
FCA received negative consumer feedback for the Monostable shifters shortly after the subject vehicles entered the market. Field data indicates that the design resulted in, higher error rates during attempted shifts to Park and higher rates of powered rollaway incidents. The Monostable design appears to violate several basic design guidelines for vehicle controls such as: 1) be consistent; 2) controls and displays should function the way people expect them to function; 3) minimize what the user has to remember; and 4) operations that occur most often or have the greatest impact on driving safety should be the easiest to perform. FCA changed to Po-lystable electronic gearshift assemblies in MY 2015 Charger. / 300 cars and MY 2016 Grand Cherokee vehicles., The. Po-lystable gearshift assemblies stay in the position of the selected gear, similar to a standard mechanical shifter, providing drivers with the expected tactile and visual feedback (i.e., works as expected and does not require' additional thought or attention).
FACMC, Ex. B, NHTSA Report (Final) (Pg ID 2956-57).
2. Rollaway Incidents
Four of the individual plaintiffs allege that they had rollaway incidents with their own cars: Goldsmith, Nathan, Brooks, and Mack. Four others allege that they have had problems shifting the car into an intended gear: Hartt, Lynd, Weber, Vos-burgh. FACMC ¶¶36, 38, 56, 75, 79. Two plaintiffs, Nathan and Lynd, alleged that, as a result of the unreliable gear shifter, they no longer feél safe driving their cars. FACMC ¶ 38, 73.'
Missouri plaintiff Taylor Brooks alleged that he bought his “certified pre-owned” 2016 Jeep Grand Cherokee on May 28, 2016. He was not informed by .the déaler or the defendant about any recall. When he later learned about the recall on his own, he called the dealer to inquire if his car was safe, and the dealer told him the recall'issue had been fixed. On July 11, 2016, Brooks tried to put his car in “Park” at a gas station, but the “Park” setting did not engage, and the car rolled away across four lanes of- traffic, eventually crashing into- a-fence, Brooks later learned, after checking the VIN on his car, that no recall repair had been done, and the initial recall he had learned about was “educational” only. The dealer told Brooks that he would have to seek' coverage from his insurer for the damage to his car. . FACMC ¶¶ 55-59.
New York plaintiff John Lynd alleged that, before the recall, he-had “multiple instances” where he tried to place his car in “Park” and realized as he was about to exit the vehicle that- it actually was in “Drive” or “Reverse” instead. He took his car to the dealer for a recall-related software fix to be applied, but, since the fix was installed, he has more than once tried to put the car in “Park” using the shifter, “only to watch the transmission shift instead to a different gear.” FACMC ¶¶ 66-72.
New York plaintiff Janella Mack alleged that she put her car in “Park” and got out to unload it while it was' in the driveway of her grandmother’s home. However, as she was unloading items, the car rolled away and was damaged. FACMC ¶ 75,
Pennsylvania plaintiff Timothy ■ Weber alleged that he has . had incidents where he tried to put his car in “Park” and thought that it was in “Park,” only to discover when he tried to exit the car that it was in “Reverse” instead, FACMC ¶ 87.
The FACMC" also catalogs 15 examples of reports to NHTSA by owners of class vehicles, logged between April 2013 and May 2016, of incidents where a driver shifted the car into “Park,” and the car appeared to be in “Park,” but after the driver exited the car it rolled "away under its own power. FACMC ¶146 (Pg ID .2671-84). In several incidents the drivers reported that the gear selected indicator clearly “showed the vehicle to be in Park,” but the car nevertheless was in another gear, or shifted to another gear after the driver got out. Several others reported that when the driver attempted to place the car in “Park” using the shift lever, it instead shifted to “Drive” or “Reverse.” Others reported instances in which they selected an intended gear with the shifter such as “Park” or “Drive,” but the car instead "shifted -into another gear such as “Reverse,” “Neutral,” or “Low.” In some cases drivers even attempted to shut off the engine before exiting the car, but because the vehicle was not in “Park,” and without, the driver realizing it, the. engine did not turn off, and the driver did not perceive that the engine was running and the transmission was in a travel gear, due to the car’s inaudibly low engine noise at idle.
NHTSA investigated the alleged shifter defect between August 2015 and February 2016, and its investigation “identified 306 incidents of vehicle rollaway following intended shifts to Park in the 2014-2015 Grand Cherokee.” FACMC ¶¶149, 154. NHTSA’s “analysis of these incidents determined that [they] resulted in 117 alleged crashes,”, and that 28 of the crashes resulted in serious injuries, with other incidents resulting in minor injuries. Id, ¶ 154. On April 22, 2016, FCA submitted a “defect-information, report” to NHTSA “regarding a defect that could result in unattended vehicle rollaway with the engine running in model year (MY) 2012- to 2014 Dodge Charger and Chrysler 300 vehicles and MY 2014 to 2015 Jeep Grand Cherokee vehicles equipped with 8-speed transmissions and a monostable gear selector.” FACMC, Ex. A, NHTSA Report (Pg ID 2956). NHTSA’s analysis of the defect report indicates that, its own investigation and the manufacturer’s defect report disclosed a combined total of 686 reports of rollaway incidents, .resulting in . 286 crashes, and 68 of those incidents produced injuries. Ibid.
3. Voluntary Recall
The plaintiffs allege that- FCA knew about the defects in the shifter since at least 2011, when the affected vehicles first went to market, but it took no steps to address the defect until it issued a voluntary recall in April 2016. In May 2016, FCA sent affected owners a letter explaining the problems and risks with the shifter design, but that letter stated only that FCA was .working -on a solution, to be released near the end of 2016. The NHTSA .report of the voluntary recall stated that FCA had assessed the defect and risks that led to the recall. It read:
Drivers erroneously concluding that their vehicle’s transmission is in the PARK position may be struck' 'by the vehicle and injured if they attempt- to get out of the vehicle while the engine is running and the parking brake is not engaged. FCA US has therefore determined that the absence of an additional mechanism to mitígate the effects of driver error in failihg to shift the monostable1 gear selector into PARK prior to exiting the vehicle constitutes a defect presenting a risk to motor vehicle safety.
FACMC, Ex. F, Recall Report dated May 24, 2016 (Pg ID 2971). The plaintiffs assert that in the meantime, because there was no remedy immediately available to fix the defect, they were left'with the alternatives of either driving a dangerous vehicle; or not driving their cars at all. The recall notice ultimately affected more than 800,-000 vehicles in the United States.' FCA also later phased out the problematic shifter 'design starting with the 2016' model year. •
According to the FACMC, on June 20, 2016, the problems with the shifter design became a subject of widespread public attention when news sources “reported that a young Hollywood actor, Anton Yelchin, was crushed to death when his 2015 Jeep Grand Cherokee rolled backward down his driveway and pinned him against his mailbox after he exited the. vehicle.” FACMC ¶ 17.
On June 24, 2016, FCA notified owners of certain affected vehicles that they could bring their cars to an FCA dealer for a software update that would add an “auto park” feature, intended to “eliminate[ ] the possibility of the driver inadvertently failing to place the transmission into ‘PARK’ prior to exiting the vehicle;” FACMC ¶ 19. However, the plaintiffs contend that the software fix was ineffective, and there have been numerous reports logged by NHTSA of vehicles having rollaway accidents after the fix was applied. Some owners have had to return to their dealers for a second purported fix, which also has not fully remedied the defect. According to published news reports, FCA has acknowledged that the fix was ineffective when applied to up to 13,000 affected vehicles in the U.S., and it has sent a second recall notice to affected owners directing .them to return their vehicles to a dealer for further repairs. Id. ¶ 22.
4. Economic Losses
The plaintiffs allege that they have suffered losses in several ways as a result of the defect, the widespread reports of accidents caused by it, and the defendant’s attempts to fix it. They contend that they-overpaid for cars they thought were safe, which were not; had to take time off from work and other .obligations to accommodate the defendant’s failed attempts to fix their cars; and now own vehicles that have dropped in value much faster than previous similar models or competitor vehicles, due to the public perception that the cars are dangerous to own and drive. The plaintiffs allege as an example that, before new reports about the defective shifter surfaced, “2014 and 2015 Jeep Grand Cherokees held their value better than other cars in their class,” but “after the defect stories became known, the monthly depreciation of these cars increased drastically, causing them to hold value worse than other cars in their class.” FACMC ¶ 12.
Seven of the plaintiffs specifically allege that they bought and still own their class vehicles: Goldsmith, Hartt, Brooks, Mack; Weber, Vosburgh, and Hughes. Two plaintiffs, Nathan and Pietri,' allege that they bought class vehicles, but do not specifically allege that they still own them (however, they also do not allege that they have sold or disposed of the cars). New York plaintiff John Lynd alleged that he- leased a class vehicle, and the term of his lease has not ended. Nebraska plaintiff Nina Walker alleges that she leased a 2014 Dodge Charger, but decided not to purchase the car at the end of the lease term. However, during the term of the lease, Walker “had her vehicle repaired” by the dealer she leased it from. FACMC ¶¶ 60-61.
5. Product Advertising
The plaintiffs quote samples of the defendant’s advertising materials, from print and internet sources, including claims that “[t]o ensure that FCA vehicles deliver maximum safety and quality to customers over their entire life, every mechanical and electronic.component, body part and trim element is rigorously tested,” and that its car “designers work with a team of researchers during the testing -phase to ensure vehicles meet the highest standards in terms of safety, ecological profile, driving performance and quality.” FACMC ¶ 133. Advertising literature for the Dodge Charger states that “safety and security is a priority,” “safety and security are built in,” the “Dodge Charger is helping keep you and your passengers safe and secure,” the vehicle is “always on guard,” and “the Dodge Charger packs more than 80 standard and available safety and security features to help keep drivers and passengers protected.” FACMC ¶ 134. Similar promotional messages for the Chrysler 300 and Jeep Grand Cherokee state that “[t]he Chrysler 300 Offers Over 80 Standard and Available Safety and ‘Security Features,” and the Cherokee has “[o]ver 70 available safety and security features,” with “protection when and where you need it.” Marketing materials for the Cherokee also promote it as being “[a]t the forefront of the latest safety and security systems,” and “[s]afe, secure, and in control.” FACMC ¶¶135, 137. None of the cited literature describes any feature of the vehicles’ gear shifter design.
All of the individual plaintiffs allege that they bought or leased their cars because of their reputation for safety and reliability, and that they were persuaded to do so by the defendant’s advertising about the cars’ safety features. The plaintiffs also believed that their cars would be a good value because of that reputation. The plaintiffs also all assert that, before the defendant issued its recall notice on April 22, 2016, they did not know that the shifter design in the cars was defective and dangerous, that the design had caused numerous reported rollaway incidents, or that some of those incidents had produced serious injuries. They assert that they were not notified by either the defendant or the dealers who sold or leased them the vehicles that their cars were subject to any recall notice or defect investigation, and that they only later learned about the recall. Five plaintiffs specifically allege that they bought or leased their cars before the April 22, 2016 recall notice was issued: Goldsmith, Nathan, Lynd, Weber, and Vosburgh. Two plaintiffs, Pietri and Brooks, specifically allege that they bought or leased their vehicles after the notice was issued (both in May 2016). Four plaintiffs do not specifically allege the date when they bought or leased their cars: Hartt, Walker, Mack, and Hughes.
- 6. Limited Warranty
The defendant attached to its motion to dismiss copies of several new vehicle warranty documents covering the various class vehicles. E.g., Def.’s Mot., Ex. B, 2014 Chrysler All Vehicles Basic Limited Warranty (Pg ID 3284). All versions of the warranty have substantially identical terms and offer “Basic Limited Warranty” coverage of the entire vehicle for three years or 36,000 miles (3/36), and “Power-train Limited Warranty” coverage for five years or 100,000 miles- (6/100). Id. at 1 (‘Warranty Coverage”). The warranty documents all state that “[t]he warranties contained in this booklet are the only express warranties that [FCA] makes for your vehicle,” and that any “implied warranties are limited, to the extent allowed by law, to the time periods covered by the express written warranties contained in this booklet.” Id. at 4 (“Your. Legal Rights”). The “Basic Limited Warranty” language explains:
The Basic Limited Warranty covers the cost of all parts and labor needed to repair any item on your vehicle when it left the manufacturing plant that is defective in material, workmanship or factory preparation.
Id. at 5. Coverage under the “Basic Limited Warranty” extends to the following: “You are covered by the Basic Limited Warranty if you are a purchaser for use of the vehicle.” Ibid. The term of the “Basic Limited Warranty” begins on either (1) “the date you take delivery of the vehicle”; or (2) “the date when the vehicle was first put into service — for example, as a dealer ‘demo’ or as a Chrysler company vehicle.” Id. at 6. Similarly, the “Powertrain Limited Warranty” states the. spope of coverage as follows:
The Powertrain Limited Warranty covers the cost of all parts and labor needed to repair a powertrain component listed in section 2.4.E below that is defective in workmanship and materials.
Id.'at--9.-The coverage for “transmission” parts includes any “transmission range switch” or “transmission control module.” The “Powertrain Limited Warranty” similarly states that its coverage extends to any “purchaser for use” of the vehicle, and its term begins to run on the same date as the “Basic Limited Warranty.” Ibid. All versions of the warranty disclaim any cow-erage.for “the costs of repairing damage or-.conditions caused by [among other things] abuse or negligence [and] misuse— for example, driving over curbs or overloading.” Id. at 16.
C. Procedural History
The transfer order from the JPML initiating this litigátion was issued on October 5, 2016. That order transferred and consolidated five cases filed in this and other districts. Subsequent’ conditional transfer orders, issued by the JPML added 18 more actions. Five more cases were originally filed in this district and reassigned to this Court.as companion matters. The Court subsequently entered orders of dismissal disposing of five personal injury cases involving eight individual- plaintiffs. -
On March 15, 2017, the plaintiffs filed a consolidated master class action complaint comprising the claims of all plaintiffs pursuing claims for economic losses only. On March 21, 2017, the Court granted the defendant's motion to strike that first iteration of the consolidated economic loss complaint, which had added claims of 17 individuals who were not named as plaintiffs in any case transferred to this Court by the MDL panel. The plaintiffs filed their first amended consolidated economic loss complaint on March 24,2017 and omitted those plaintiffs. However, the 17 individuals subsequently re-filed their claims in a new civil action in this district (Berken v. FCA US, LLC, No. 17-10983). Two of the plaintiffs in that case (Bruce Pollekoff and Brittani Sheppard) later voluntarily dismissed their claims.
On April 18, 2017, the Court issued an opinion denying the defendant’s motion to dismiss for lack of subject matter jurisdiction. On April 19,2017, the Court-issued an opinion- granting the defendant’s motion to dismiss for lack of personal jurisdiction and dismissing the claims of 20 non-California plaintiffs who were named in a case transferred here from the Central District of California (the Goldsmith case, No. 16-13681 (E.D. Mich.) (a.k.a. Goldsmith v. FCA US, LLC, No. 16-01341 (C.D. Cal.); f/k/a Andollo v. FCA US, LLC). Those 20 non-California plaintiffs have later re-filed their claims in a new case brought in this district (Andollo v. FCA US, LLC, No. 17-11376 (E.D. Mich. Apr. 28, 2017).
After the Court heard oral argument on the resent motion, New York plaintiff Michael Cruz voluntarily dismissed the claims he asserted in the FACMC on May 19, 2017.
II.
.- The defendant argues that none of the counts in the FACMC states a viable cause of action under any of the theories of liability set forth. The claims, are for false or deceptive advertising, fraudulent concealment, unjust enrichment, and breaches of express and implied warranties under the common law and consumer protection statutes of the various states, and lor violating the federal Magnuson-Moss Warranty Act, 15- U.S.C. § 2301 et seq. The defendant makes several arguments on each liability theory.
The defendant’s motion is based on Federal Rule of Civil Procedure 12(b)(6). The standards are well known to the parties: the purpose of the motion is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the factual allegations in the complaint are taken as true. Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)). The complaint is viewed in the light most favorable to the plaintiff, the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the plaintiff. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). To survive the motion, the plaintiffs “must plead ‘enough factual matter’ that, when taken as true, state[s] a claim to relief that is plausible on its face.’ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires showing more than the ‘sheer possibility' of relief but less than a ‘probab[le]’ entitlement to relief. Ashcroft v. Iqbal, [556 U.S. 662, 678], 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).” Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010).
At this stage of the case, the Court must accept as true the pleaded facts, but not factual conclusions unless they are plausibly supported by the pleaded facts. “[B]are assertions,” such as those that “amount.to nothing more than a ‘formulaic recitation of the elements’ ” of a claim, can provide context to the factual allegations, but are insufficient to- state a claim for relief and must be disregarded. Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). However, as long as a court can “‘draw the reasonable inference that the defendant is liable for the misconduct alleged,’ a plaintiffs claims must survive a motion to dismiss.” Fabian, 628 F.3d at 281 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).
When deciding a motion under Rule 12(b)(6), the Court looks to the pleadings, Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008), the documents attached to them, Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c)), documents referenced in the pleadings that are “integral to the claims,” id. at 335-36, and documents that are not mentioned specifically but which govern the plaintiffs rights and are necessarily incorporated by reference, Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997), abrogated on other grounds by Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). However, beyond that, assessment of the facial sufficiency of the complaint ordinarily must be undertaken without resort to matters outside the pleadings. Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010).
A. Fraud-based Claims
The defendant argues that all of the statutory and common law fraud and false advertising claims are insufficiently pleaded as a matter .of law because the plaintiffs have not stated facts to establish many of the general elements .of fraud. Those arguments are premised, in many respects, on the assertions that the plaintiffs have limited their claim of defect to the lack of an “auto-park” or “safety .override” feature; the defendant’s general representations’ the ■ ears were “safe” and “reliable” are “mere puffery” and therefore cannot supply a basis for any actionable consumer fraud or false advertising .claim; and the plaintiffs “effectively admit” that injury only could result from the plaintiffs’ own “intervening. acts” of ..leaving- the engine running and getting out of the car without putting the car in “Park” before exiting. The defendant also contends, that the allegations of fraud do not meet the specificity requirement of Federal-Rule of Civil Procedure 9(b); some of.the plaintiffs failed to satisfy the pre-suit notice requirements of some of the. states’ laws; the Pennsylvania pláintiffs’ claims are barred by the economic loss doctrine; some of the plaintiffs bought their cars after the initial recall, and therefore cannot allege reliance on a false statement by the defendant; the Massachusetts .plaintiffs fraudulent concealment claim is defective because the law of that state requires that the plaintiff plead that he is in. privity with, the defendant, which he is not; .and the consumer fraud claims , by the Nebraska and .New York plaintiffs must be dismissed , because the laws- of those states, require the plaintiff to. plead that the public interest is affected by the alleged unlawful conduct, which they did not allege.
1. General Fraud Elements
a. State Laws
Many of the states’ common law fraud elements overlap. Some of the statutory causes of action incorporate fraud concepts along with additional elements.
• California — Unfair Competition (Cal. Bus. & Prof. Code § 17200) (Count VI)
California’s Unfair Competition Law (UCL) “addresses ‘unfair competition,’ which ‘mean[s] and include[s] any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the false advertising law].’ ” McGill v. Citibank, N.A., 2 Cal.5th 945, 216 Cal.Rptr.3d 627, 393 P.3d 85, 89 (2017) (quoting Cal. Bus. & Prof. Code § 17200), “The UCL and the [False Advertising Law (FAL) ] prohibit not only advertising which is false, but also advertising which, although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public. Thus, to state a claim under either the UCL or the FAL, based on false advertising or promotional practices, it is necessary only to show that members of the public are likely to be deceived.” Veera v. Banana Republic, LLC, 6 Cal.App.5th 907, 914-15, 211 Cal.Rptr.3d 769 (2016).
• California — Consumers Legal Remedies Act (Cal. Civ. Code § 1750) (Count VII)
“The [California] Legislature enacted the [Consumers Legal Remedies Act (CLRA) ] ‘to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.’ ” McGill, 216 Cal.Rptr.3d 627, 393 P.3d at 89 (quoting (Cal. Civ. Code, § 1760)). “The CLRA sets forth 27 proscribed acts or practices.” Veera, 6 Cal.App.5th 907, 915, 211 Cal.Rptr.3d 769. Among those are “Representing that goods or services have ... characteristics ... uses [or] benefits ... that they do not have,” and “Representing that goods or services are of a particular standard, quality, or grade ... if they are of another.” Cal. Civ. Code § 1770(a)(5), (7).
“[California Civil Code] Section 1782 imposes a condition on a consumer’s ability to sue for damages under the CLRA.” Benson v. S. California Auto Sales, Inc., 239 Cal.App.4th 1198, 1206, 192 Cal.Rptr.3d 67 (2015). “The consumer must give notice in writing of the particular CLRA violations and demand a correction, repair, replacement, or other rectification.” Ibid. “Under section 1782, subdivision (b), no action for damages may be maintained ‘if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.’ ” Ibid. “This section was added early in the legislative process to insure that the consumer-must give the merchant an opportunity to correct his mistake.” Ibid. “The notice requirement exists in order to allow a defendant to avoid liability f