ALGENON L. MARBLEY, District Judge.
This matter is before the Court on Defendant Ford Motor Company's Motion to Dismiss Plaintiffs' First Amended Class Action Complaint (Doc. 31). Defendant seeks to dismiss the case in its entirety, on the grounds that Plaintiffs have failed to meet the standards of pleading required by Fed. R. Civ. P. 8(a) & 9(b), and because the Amended Complaint fails to state claims for relief under the various state-law claims for relief.
For the reasons set forth herein, Defendant's Motion is
This case centers on Defendant Ford Motor Company's 3.5-liter V6 "EcoBoost" engine, a twin-turbocharged gasoline internal combustion engine utilizing direct-injection and variable valve timing ("the Engine").
Plaintiffs allege that Ford promoted its EcoBoost technology as providing increased fuel efficiency without sacrificing performance, and advertised EcoBoost engines as functioning reliably in extreme conditions. (Id., ¶¶ 2-3, 118-33). According to Plaintiffs, however, "[a]ctual driver experiences have been dramatically different," with "[h]undreds" of drivers reporting that vehicles equipped with the engine are "prone to shuddering, shaking, stumbling, misfiring, rapidly losing power, or improperly going into `limp mode,'" particularly in situations involving heavy rain or humidity. (Doc. 35 at 26-27; Am. Compl., ¶¶ 4-5, 134, 139-40).
Investigations to date, Plaintiffs explain, have indicated that the issue likely arises from moisture entering the Engine via condensation that forms inside the tubes of the "Charge Air Cooler" or "intercooler," a radiator-like component which cools intake air after it has been compressed (and heated) by the turbochargers, before it enters the combustion chambers. (Am. Compl., ¶ 5). Ford has issued four "Technical Service Bulletins" ("TSBs") to its dealerships and internal departments mentioning this problem, designated TSB 12-6-4, TSB 12-10-19, TSB 13-3-3, and TSB 13-8-1. (Id., ¶¶ 6, 141-48). These TSBs were issued on June 4, 2012, October 30, 2012, March 18, 2013, and August 5, 2013, respectively. (Id., ¶¶ 141-45). According to one internal update, Ford is still "investigating [the problem's] cause and solution." (Id., ¶¶ 7, 146). Furthermore, Plaintiffs allege that Ford had knowledge of the potential problem in the Engine, as evidenced by TSBs 11-8-19, 11-5-3, and 10-17-10, regarding Ecoboost engines "running rough, hesitating, and shuddering," which were issued in 2010 and 2011 and predate the introduction of the Engine into 2011 and 2012 F-150 models. (Id., ¶ 156).
On May 22, 2013, the United States Department of Transportation, National Highway Traffic Safety Administration ("NHTSA") opened an investigation into this issue, with respect to 2011-2013 Ford F-150 trucks equipped with the Engine. See ODI Resume, PE 13-018 (May 22, 2013).
At roughly the same time as NHTSA was investigating these claims, Plaintiffs initiated this action against Ford. Plaintiffs filed their Complaint on May 10, 2013 (Doc. 2), with their Amended Complaint filed three months later, on August 16, 2013 (Doc. 16). Each of the 26 named Plaintiffs owns a Class Vehicle, purchased from various Ford dealerships in 18 states. Each Plaintiff alleges that various representations and advertisements put forward by Ford enticed them to make their purchase. And each Plaintiff alleges that he or she has experienced "some or all of the telltale signs of the defective EcoBoost Engine." (Doc. 35 at 27).
For example, Plaintiffs Jennifer Angela Davisson and E. Rod Davisson, residents of Ohio, own a 2010 Ford Taurus SHO and a 2012 Ford F-150, respectively. (Am. Compl., ¶¶ 13-14). Both purchased their vehicles from Ricart Ford in Columbus, Ohio, at an unspecified date. (Id.). According to the Davissons, the Taurus SHO
(Id., ¶ 13). Similarly, Plaintiffs assert that the 2012 F-150 has experienced the exact same malfunction. (Id., ¶ 14). Plaintiffs also allege that Ricart Ford "has attempted a number of times to repair Mrs. Davisson's Taurus SHO based upon the available TSBs to no avail. At this point, she fears for her and her family's safety every time she drives her Taurus." (Id., ¶ 16).
The Davissons insist that they saw advertisements for the Engine, including on television, via print media, and in brochures, and "[a]lthough [they] cannot recall the specifics of the many Ford advertisements and other publications they saw before they purchased their [vehicles], they recall that safety and reliability were frequent elements," and they "specifically recall[] viewing a commercial touting the EcoBoost Engine's introduction into the F-150 as a powerful and reliable alternative to a standard gasoline engine." (Id., ¶¶ 18-19). Thus, the Davissons "expected that the vehicles they purchased were safe and reliable. Had those advertisements and any other materials viewed by Mr. and Mrs. Davisson disclosed that the vehicles could suddenly shudder, shake, stumble, misfire, rapidly lose power, and improperly transition to limp mode, they would not have purchased the Taurus SHO or the F-150 with the added EcoBoost technology, or certainly would not have paid as much for their vehicles as they did." (Id., ¶ 19). The Davissons allege that they suffered injury "because they paid more for their Taurus SHO and F-150 than they should have," since their purchase price was "based upon the value of a vehicle free from defects." (Id.).
Plaintiffs claim they gave notice to Ford "by presenting their Taurus SHO at an authorized Ford dealership for repairs," as well as "by a letter dated August 16, 2013, to Ford on behalf of Mr. and Mrs. Davisson, and other Plaintiffs," the same day the Amended Complaint was filed, and "through this Complaint." (Id., ¶ 17).
Plaintiffs' Amended Complaint contains similar allegations, in nearly identical language, for the other 24 Plaintiffs. For the sake of clarity, the Court summarizes the various Plaintiffs and causes of action:
Federal Rule of Civil Procedure 12(b)(6) allows for a case to be dismissed for "failure to state a claim upon which relief can be granted." Such a motion "is a test of the plaintiff's cause of action as stated in the complaint, not a challenge to the plaintiff's factual allegations." Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). Thus, the Court must construe the complaint in the light most favorable to the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). The Court is not required, however, to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). Although liberal, Rule 12(b)(6) requires more than bare assertions of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted). Generally, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). But the complaint must "`give the defendant fair notice of what the claim is, and the grounds upon which it rests.'" Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). In short, a complaint's factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In addition, Federal Rule of Civil Procedure 9(b) requires that "in any complaint averring fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 563 (6th Cir. 2003). The requirement "reflects the rule-makers' additional understanding that, in cases involving fraud or mistake, a `more specific form of notice' is necessary to permit a defendant to draft a responsive pleading." U.S. ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 504 (6th Cir. 2008) (citation omitted). The Sixth Circuit has explained that to satisfy Rule 9(b), a plaintiff must at a minimum "allege the time, place, and content of the alleged misrepresentation" as well as "the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud." Bennett v. MIS Corp., 607 F.3d 1076, 1100 (6th Cir. 2010) (internal citations omitted). Plaintiffs may plead fraud based "upon information and belief," but the complaint "must set forth a factual basis for such belief, and the allowance of this exception must not be mistaken for license to base claims of fraud on speculation and conclusory allegations." Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 878 (6th Cir. 2006) (internal quotations omitted).
A complaint's failure to comply Rule 9(b)'s pleading requirements is treated as a failure to state a claim under Rule 12(b)(6). United States ex rel. Howard v. Lockheed Martin Corp., 499 F.Supp.2d 972, 976 (S.D. Ohio 2007).
Although Plaintiffs' Amended Complaint fills over 200 pages, their theory of this case is simple to state. Plaintiffs allege that Ford sold vehicles that were "defective at the point of sale," thereby breaching its various warranties and committing other alleged violations of state law. (Doc. 35 at 35). Because each vehicle was allegedly defective when sold, and because each vehicle was sold no more than four years ago (the length of time of the relevant statutes of limitations, according to Plaintiffs), "[t]he precise point in time when these defects first impaired the Class Vehicle[s'] operation is irrelevant." (Id.).
Indeed, Plaintiffs maintain that they have stated their causes of action succinctly and efficiently: they need not provide specific dates, points of sale, VINs, contracts at issue, or places of repair, since all such information is already within Ford's control (via its databases related to sales, repairs, and inventory) and since the information is unnecessary in order to clear the low bar set by Fed. R. Civ. P. 8(a). (Doc. 35 at 31-36). Rather, Plaintiffs insist that they have adequately explained that they each purchased vehicles containing the Engine, within the last four years, from authorized Ford dealerships, which were defective at the time of sale, and that "Ford has found no effective repair for the defective EcoBoost Engine." (Id. at 36-37). Plaintiffs argue that Ford's focus on the latter part of the Amended Complaint, where they recite the elements of the various causes of action brought in this case, is misplaced, since it is the earlier paragraphs, specifically paragraphs 1-169, that supply the factual core of their claims. (Id. at 37). Further, Plaintiffs assert that their various allegations that individual Plaintiffs "saw advertisements for and representations about Ford's 3.5-liter V6 EcoBoost Engine," or "recalled viewing Ford-produced videos on YouTube which touted the fuel economy, safety, and reliability of the F-150 EcoBoost Engine" are sufficient to support their causes of action. (Id. at 38) (quoting Am. Compl., ¶¶ 22-23, 43-44).
But Plaintiffs' simplistic argument glosses over the serious deficiencies in their voluminous Amended Complaint: both in theory and in execution, Plaintiffs have fallen far short of what is required to plead their claims.
As the Supreme Court has made clear, although Rule 8(a) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," a plaintiff is required to plead "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. A claim succeeds in being "plausible on its face," id. at 570, when it contains sufficient factual content to "allow the court to draw reasonable the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. This is, the Court has made clear, "not akin to a `probability requirement,' but asks for more than a sheer possibility that a defendant has acted unlawfully." Id. It is not enough that a complaint "tender[] `naked assertion[s]' devoid of `further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). Threadbare "recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Nor is the Court "bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.
Yet mere probabilities, coupled with recitals of the elements of numerous causes of action and breathless legal conclusions, are precisely what Plaintiffs have offered here. Although Plaintiffs direct Defendant, and this Court, to their allegations in paragraphs 1-169 of the Amended Complaint, these allegations offer little to support Plaintiffs' claims. Plaintiffs fail to allege: (1) the date each vehicle was purchased or leased; (2) the date(s) on which each Plaintiff experienced the alleged problems with the Engine; (3) the date on which each Plaintiff presented his or her vehicle for service, or contacted Ford about the problem
Although they insist that Defendant does not need this missing information, Plaintiffs overplay their hand. With regard to the warranties at issue, Plaintiffs do not allege the date of purchase, whether the vehicles were purchased new or used, or the terms of the warranty or contract applicable to the Class Vehicles. But a manufacturer's liability for breach of an express warranty "derives from, and is measured by, the terms of that warranty." Cipollone v. Ligget Group, Inc., 505 U.S. 504, 525 (1992). Plaintiffs instead persist in quoting one passage from one specific warranty (that of the 2012 Ford F-150) even though five of the 26 Plaintiffs, and presumably many more within the purported class, purchased other vehicles. (See Am. Compl., ¶¶ 198 (2010 Ford Taurus SHO), 225 (2011 Ford F-150), 554 (2011 Ford F-150), 600 (2011 Ford Taurus SHO) and 888 (2011 Ford F-150 FX4)). Plaintiffs do not attempt to allege the mileage of the various vehicles when the problems first occurred, despite the fact that they admit that Ford's warranties only lasted five years or 60,000 miles. (Am. Compl., ¶¶ 2, 8, 119). Indeed, Plaintiffs can only suggest that because Ford generally issues a "five-year/60,000 mile warranty for its vehicles' EcoBoost engines," it is "plausible at the very least that the EcoBoost engine defect alleged in the Complaint existed for every Plaintiff during their respective vehicle's warranty period." (Doc. 35 at 47). But without further factual allegations,
Plaintiffs attempt to cure the deficiencies of their Amended Complaint by arguing that, in fact, the date and mileage of the first defect experience is "irrelevant" because their theory is "that Ford breached its warranties by providing Class Vehicles that were defective at the point of sale." (Doc. 35 at 35). But this theory of liability has been roundly rejected by courts that have considered it, and cannot save Plaintiffs' deficient pleading. See, e.g., Abraham v. Volkswagen of Am., Inc., 795 F.2d 238, 250 (2d Cir. 1986) ("virtually all product failures discovered in automobiles after expiration of the warranty can be attributed to a `latent defect' that existed at the time of sale or during the term of the warranty. . . . Manufacturers always have knowledge regarding the effective life of particular parts and the likelihood of their failing within a particular period of time. . . . A rule that would make failure of a part actionable based on such `knowledge' would render meaningless time/mileage limitations in warranty coverage."); In re Ford Tailgate Litig., No. 11-CV-2953-RS, 2014 WL 1007066, at *3 (N.D. Cal. Mar. 12, 2014) (recognize "[t]he general rule is that an express warranty does not cover repairs made after the applicable time or mileage periods have elapsed," and noting that Ford had "persuasively argue[d] that a majority of states have rejected similar latent defect claims."); Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023 (9th Cir. 2008) (Every manufactured item is defective at the time of sale in the sense that it will not last forever."); Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 616 (3d Cir. 1995).
Equally as important, Plaintiffs have not alleged even one instance of Ford refusing to cover any problems discovered in the Class Vehicles. Ford did not warranty that its products would be free of defects; rather, it promised that it would "without charge, repair, replace or adjust" parts that fail or malfunction. (Ford 2012 Model Year Warranty Guide, Doc. 35-4 at 10). Plaintiffs do not argue that Ford has failed to honor these terms, since, in their view, "this is not the crux of their claims"; instead, Plaintiffs maintain that Ford breached its warranties because it "has found no effective repair" for the alleged defect. (Doc. 35 at 37-38). Case law, both in the Sixth Circuit and in our sister Circuits, makes clear that this is not sufficient to state a claim for relief. See, e.g., Admiral Const. & Maint., Inc. v. Cummins, Inc., 527 F. App'x 499, 502 (6th Cir. 2013) (per curiam) ("the bare fact that a complex product required some service is insufficient to establish breach"; rather, the manufacturer's "repeated coverage of repairs shows that it did honor the warranty.") (internal citation omitted); Brisson v. Ford Motor Co., 349 F. App'x 433, 434 (11th Cir. 2009) ("plaintiffs' failure to allege that they experienced a defect within the warranty period of the three years or 36,000 miles is fatal."); Nobile v. Ford Motor Co., No. CIV.A. 10-1890, 2011 WL 900119, at *4 (D.N.J. Mar. 14, 2011) (finding that plaintiffs failed to plead breach of warranty where the complaint did not state that plaintiffs "were not compensated for repairs made on their transmission while covered by the express warranty.").
Nor can Plaintiffs find succor in their repeated but surpassingly vague references to Ford's advertisements and promotional materials. Plaintiffs insist that they saw or heard, on "numerous occasions," advertisements that touted the safety, reliability, and fuel savings of the Engine, but cannot point to any the specific language of any promotion or advertisement, much less one that created an express warranty obligation on the part of Ford. Yet unless Ford made specific representations about the product at issue, which constituted more than mere opinion or "puffery," Plaintiffs' resort to Ford's advertisements is futile. See, e.g., Falcon Equip. Corp. v. Courtesy Lincoln Mercury, Inc., 536 F.2d 806, 809 (8th Cir. 1976) (no express warranty created unless the seller makes specific representations about the product being sold).
In addition, Plaintiffs have failed to meet the heightened pleading requirements of Rule 9(b). It is well-settled that any claim sounding in fraud — not just those alleging a claim of fraud — must meet Rule 9(b)'s pleading standard. Smith v. Bank of Am. Corp., 485 F. App'x 749, 752-53 (6th Cir. 2012) ("In some cases, the plaintiff may allege a unified course of fraudulent conduct and rely entirely on that course of conduct as the basis of the claim. In that event, the claim is said to be `grounded in fraud' or to `sound in fraud,' and the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b).") (quotation omitted); Se. Texas Inns, Inc. v. Prime Hospitality Corp., 462 F.3d 666, 672 (6th Cir. 2006) ("in any complaint averring fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.) (quotation omitted); Ferron v. SubscriberBase Holdings, Inc., No. 2:08-CV-760, 2009 WL 650731, at *5 (S.D. Ohio Mar. 11, 2009) ("Rule 9(b) is not limited to claims of common law fraud or claims which include fraud as one of the elements. Rather, the heightened pleadings requirements apply to "averments of fraud" or "claim[s] that sounds in fraud — in other words, one[s] that [are] premised upon a course of fraudulent conduct.") (quoting Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir.2007)). In order to comply with Rule 9(b)'s requirements, Plaintiffs must at a minimum "allege the time, place and content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud." Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 (6th Cir. 2005) (quotation omitted). Specifically, the plaintiff must: "(1) point to a particular allegedly fraudulent statement; (2) identify who made the statement; (3) plead when and where the statement was made; and (4) explain what made the statement fraudulent." Republic Bank & Trust Co. v. Bear Stearns & Co., Inc., 683 F.3d 239, 253 (6th Cir. 2012).
Plaintiffs here have failed completely to comply with the mandate of Rule 9(b). Plaintiffs do not explain when they saw the advertisements or representations in question, how these representations are connected to Plaintiffs' transactions, in what way each Plaintiff relied on those representations, or why the advertisements in question are false. With regard to claims of omission by Ford, Plaintiffs do not reveal what information should have been disclosed by Ford that would have made any difference in their purchase decisions, when Ford knew that information, or when Plaintiffs made their purchases.
Plaintiffs also fail to explain how or when Ford knew of the alleged defects, other than by resort to the TSBs issued by Ford. But more is required to plead knowledge. See, e.g., Alban v. BMW of N. Am., No. CIV. 09-5398, 2011 WL 900114, at *12 (D.N.J. Mar. 15, 2011) ("as a practical matter, the Court is hesitant to view technical service bulletins, or similar advisories, as potential admissions of fraudulent concealment of a defect. Such advisories are generally the result of consumer complaints that cause a manufacturer to investigate, diagnose, and remedy a defect in one of its products. Accepting these advisories as a basis for consumer fraud claims may discourage manufacturers from responding to their customers in the first place."); In re Porsche Cars N. Am., Inc., 880 F.Supp.2d 801, 816 (S.D. Ohio 2012) (finding that a TSB could be sufficient to support a claim, when combined with other allegations of knowledge on the part of the manufacturer, such as numerous consumer complaints, aggregate data collected from dealers, pre- and post-release testing data, and evidence of standard industry practice).
For the reasons states above, Defendant's Motion (Doc. 31) is
