IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
September 30, 1997
IN RE FORD MOTOR COMPANY IGNITION SWITCH PRODUCTS LIABILITY LITIGATION
MICHAEL WILKS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
FORD MOTOR COMPANY AND UNITED TECHNOLOGIES AUTOMOTIVE, INC., DEFENDANTS.
The opinion of the court was delivered by: Simandle, District Judge.
The above-captioned actions represent two groups of putative class action suits in which the plaintiffs allege that defendants manufactured and distributed defective motor vehicle ignition switches that were installed in vehicles owned or leased by the plaintiffs. The ignition switch in question is found in approximately 23 million vehicles that were produced by defendant Ford Motor Company ("Ford") between the model years 1984 and 1993. The switches themselves were manufactured by defendant United Technologies Automotive, Inc. ("UTA"). Plaintiffs allege that these switches are defective because they have the propensity to short-circuit, allegedly causing damage from smoke or fires in over 2,000 vehicles.
In the first of the two groups of cases, plaintiffs Michael Wilks and others seek to represent a class of plaintiffs that purchased certain Ford vehicles in model years 1984 through 1993, and whose vehicles caught on fire as a result of the allegedly defective ignition switch. The court will refer to that case as the "Wilks case".
The second group of cases consists of a nationwide consolidation of twelve cases from various courts, each involving plaintiffs who own Ford vehicles of the subject 1984-93 model years who do not allege that their Ford vehicles have caught on fire as a result of the allegedly defective ignition switch. Most of these cases have been transferred to this court through the Judicial Panel on Multidistrict Litigation. The court will refer to this group of cases as the "MDL case." No named plaintiffs in the MDL case have actually sustained smoke or fire damage in their Ford vehicles. The various complaints comprising the MDL case have been consolidated by joint action of respective plaintiffs' counsel into the Consolidated First Amended Class Action Complaint (filed Nov. 22, 1996), which sets forth all causes of action raised by the MDL plaintiffs.
Presently before the court is a motion to dismiss the MDL case, made by the defendants pursuant to Fed. R. Civ. P. 12(b)(6). Defendant Ford had previously filed a motion for judgment on the pleadings in the Wilks case, but subsequently withdrew that motion. (See Notice of Withdrawal of Motion, dated Dec. 19, 1996). Thus, this Opinion will adjudicate claims in the MDL action only. For the reasons discussed below, the court will grant in part and deny in part defendants' motion to dismiss in the MDL case.
The facts underlying these class action cases, which were set forth in this court's recent Opinion denying without prejudice plaintiffs' motion for class certification, *fn1 are as follows.
Plaintiffs contend that certain ignition switches manufactured by defendant UTA and installed in vehicles by defendant Ford were defective. All told, plaintiffs allege that UTA manufactured and Ford installed approximately 25 million ignition switches of the same or substantially identical design in every Ford vehicle during model years 1984 through 1992 except Taurus, Sable, and Probe, together with certain 1993 models produced before October 1992. Plaintiffs explain that as a result of that defect, a short circuit may be created in the switches, possibly leading to ignition of a fire. Plaintiffs allege that at least 2,000 vehicles have caught fire or sustained damage from melting or smoke as a result of the defective ignition switch. Such fires can allegedly occur while the vehicle is being driven or when the vehicle is parked and the engine is off. Plaintiffs allege that defendants knew or should have known of this alleged defect before the first of these switches was ever installed, and in any event by 1985 when the first consumer reports of related fires were allegedly made to Ford. Plaintiffs further allege that the faulty ignition switch can be replaced by a redesigned switch at a cost of about $75.00 per vehicle.
In 1992, administrative agencies in the United States and Canada began investigating reports of fires caused by the defective ignition switches. On November 29, 1995, Ford Motor Company of Canada, Ltd. ("Ford Canada") announced the recall of 248,000 vehicles to replace the ignition switch at no expense, with Ford Canada warning that the ignition switches in the recalled vehicles could short-circuit, leading to overheating, smoke, and possibly fire in the steering column area of the vehicle while in use or unattended. Ford Canada recalled only a fraction of the models having the allegedly faulty ignition switches, allegedly based on Ford Canada's analysis of the incident rates of reported problems, as stated in various Ford Canada documents. Ford Canada had allegedly received 261 reports of vehicle fires from 1988-91 model vehicles by November 1995, which it had analyzed before the recall in Canada.
On April 25, 1996, in the United States, defendant Ford voluntarily announced a recall of some of the models that purportedly contain the defective switch, consisting of approximately 8.3 million vehicles, allegedly comprising the largest single-manufacturer recall in U.S. history. Ford declined to recall the remaining 15 million vehicles having the same or similar ignition switch, in models allegedly having a lower (or null) rate of reported incidents according to Ford's analysis. The National Highway Traffic Safety Administration ("NHTSA") has not, to date, required Ford to recall additional model years of vehicles beyond Ford's April 25, 1996, recall.
Also in April 1996, plaintiff Wilks filed his complaint in this court. The court subsequently consolidated the Wilks case with another case, known as Art's Transportation, which also had been brought by plaintiffs who allege that a defective ignition switch had caused a fire in their Ford vehicles. As noted, there is no motion to dismiss or motion for judgment on the pleadings currently before the court in Wilks or Art's Transportation.
This court first became familiar with the legal claims brought by those plaintiffs who do not allege that their Ford vehicles ever caught on fire when defendant Ford removed to this court a complaint filed by plaintiff Yvette Veideman in New Jersey Superior Court. In June 1996, the Judicial Panel on Multidistrict Litigation began transferring to this court all similar "non-incident" claims that had been filed in federal courts across the country. See In re Ford Motor Co. Ignition Switch Products Liability Litigation, MDL No. 1112 (Order filed June 27, 1996). Those cases have been consolidated into this one "MDL" action. The MDL action is currently comprised of twelve cases which have been filed as class actions and transferred to this court from 11 districts nationwide. *fn2
In their initial consolidated MDL complaint, the named plaintiffs in the MDL case raised the following causes of action: 1) violation of state consumer fraud statutes, 2) strict products liability, 3) breach of contract and express warranty, 4) fraudulent concealment, and 5) breach of implied warranty of merchantability. The named plaintiffs in that initial consolidated complaint were residents of the following states: New Jersey, New York, California, and Mississippi. After the filing of the consolidated complaint, defendants filed motions to dismiss the claims brought by the named plaintiffs in the MDL case. Defendants contended that each of the plaintiffs named in the consolidated complaint had failed to state any valid causes of action under the laws of the state from which each plaintiff hailed.
At the ensuing oral argument concerning the motions to dismiss, the court raised the issue of whether the court had subject matter jurisdiction over the MDL case, specifically whether the plaintiffs in that case had satisfied the amount in controversy requirement of the federal diversity jurisdiction statute. See 28 U.S.C. § 1332. The court noted that the defective part at issue in the case is valued at $75, and that the plaintiffs in the MDL action had yet to suffer any personal injury or extensive property damage to their vehicles.
After the oral argument, the MDL plaintiffs responded to the subject-matter jurisdiction issue by amending the consolidated complaint to add a cause of action under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. The Magnuson-Moss claim was added by the MDL plaintiffs in a Consolidated Amended Class Complaint (Consolidated First Amended Class Action Complaint and Jury Demand, filed November 22, 1996)(hereinafter "Compl."). The complaint also named 113 additional plaintiffs, for a total of 119 proposed class representatives asserting Magnuson-Moss Warranty Act claims. Each of these newly added 113 plaintiffs resides in the state of Louisiana.
Following the amendment of the consolidated complaint, defendants filed supplemental motions to dismiss the complaint. Those motions contended, in part, that the named plaintiffs had not stated a cognizable cause of action under the Magnuson-Moss Act, and that the named plaintiffs from Louisiana had failed to state any viable causes of action under Louisiana law.
Defendants in both the MDL action and the Wilks action also moved to strike all class allegations in these cases, on the grounds that the named plaintiffs could not maintain a class action because they would not be able to provide proper notice to all putative class members. In an Order dated February 21, 1997, the court denied that motion without prejudice, determining that the motion was premature.
Similarly, the court has denied without prejudice the motions for class certification that were filed in the MDL and the Wilks actions. See In re Ford Motor Co. Ignition Switch Products Liab. Litig., No. 96-3125, 96-1814, 96-3918, ___F. Supp.___ (filed Aug. 28, 1997). The MDL plaintiffs had asked the court to certify two subclasses in the MDL case: one consisting of those plaintiffs whose Ford vehicles have sustained no damage and have been recalled *fn3 , and one consisting of those plaintiffs whose vehicles have sustained no damage and were not part of the April 1996 recall. *fn4
In this Opinion, the court addresses the pending motions to dismiss in the MDL case.
I. Standards Governing Motions to Dismiss
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 628-29 (D.N.J. 1994), aff'd, 70 F.3d 291 (3d Cir. 1995). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991). A court may not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The question before the court is not whether the plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, while the rules do not dictate that a "claimant set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (quoting Conley, 355 U.S. at 47).
II. The Choice of Law Issue
Before reaching the merits of defendants' motions to dismiss, the court will first address the threshold issue of which states' laws apply to the plaintiffs' state-law claims. The court has addressed this issue in its recent class certification Opinion in this case. In that Opinion, the court stated in pertinent part as follows:
Plaintiffs urge the court to apply the law of a single jurisdiction, which would alleviate the problems caused by variations in the laws of multiple jurisdictions. Defendants, however, argue that an application of the laws of all fifty states is required.
New Jersey choice of law principles require an interest analysis, in which the forum court compares the interests of the states whose laws are potentially involved in the underlying action and determines which state has the greatest interest in having its law applied. See Gantes v. Kason Corp., 145 N.J. 478 (1996). Plaintiffs argue that Michigan has the greater interest in having its law applied because Ford's headquarters are located in Michigan, the vehicles in question were manufactured there, decisions relating to the allegedly defective ignition switches were made there, and any misrepresentations, statements or advertisements regarding the Ford vehicles originated in Michigan. Further, plaintiffs claim that Michigan has an interest in regulating Ford's behavior and in making sure that it adheres to minimum levels of care expected of Michigan corporations.
Defendants maintain that a choice of law analysis leads to the conclusion that the laws of each plaintiff's home state must be applied because those states have interests that outweigh the interests of Michigan. The court agrees.
Each plaintiff's home state has an interest in protecting its consumers from in-state injuries caused by foreign corporations and in delineating the scope of recovery for its citizens under its own laws. These interests arise by virtue of each state being the place in which plaintiffs reside, or the place in which plaintiffs bought and used their allegedly defective vehicles or the place where plaintiffs' alleged damages occurred.
. . . Since the laws of each of the fifty states vary on important issues that are relevant to plaintiffs' causes of action and defendants' defenses, the court cannot conclude that there would be no conflict in applying the law of a single jurisdiction, whether it be Michigan, or New Jersey, as the plaintiffs suggest. Thus, the court will apply the law of each of the states from which plaintiffs hail. In re Ford, ___F. Supp. at ___, slip op. at 32-36. *fn5
The named plaintiffs bringing the consolidated amended complaint are residents of New Jersey, New York, California, Mississippi, and Louisiana. Thus, the court will apply the law of those states to determine whether the causes of action brought by these named plaintiffs are legally cognizable. *fn6
III. Statute of Limitations Issues
As a preliminary matter, the court declines to find at this time that plaintiffs' claims are time-barred by any applicable statutes of limitations. Plaintiffs claim that the statutes of limitations were tolled because plaintiffs could not discover the alleged defect during the applicable statutes of limitations, since the nature of the defect is latent, and since Ford allegedly concealed the existence, scope and magnitude of the defect. Given the court's determinations regarding choice of law issues, the existing briefing on the statute of limitations issue is inadequate, as the parties did not address the requirements for tolling of a statute of limitations in each of the states whose laws will be applied to plaintiffs' surviving claims. The court therefore declines to dismiss plaintiffs' claims on statute of limitations grounds. Should defendants choose to renew their statute of limitations motions, then the parties should submit briefing that addresses the law of the states under which plaintiffs' surviving claims are brought with regard to the tolling of a statute of limitations for the relevant causes of action.
IV. Plaintiffs Whose Vehicles Have Been Recalled
Defendants contend that the court should dismiss the claims of all of those plaintiffs whose Ford vehicles have been recalled. Defendants argue that those plaintiffs have failed to allege that they have suffered legally cognizable damage as a result of defendants' allegedly improper conduct. The court agrees.
Of the 119 named plaintiffs in the consolidated complaint, 44 are in plaintiffs' proposed "Subclass B," which consists of those "Class members who currently either own or lease . . . Ford Vehicles that were included in the safety recall announced by Ford on April 25, 1996." (Compl. ¶ 137). None of the members of Subclass B own a car in which the alleged ignition switch defect has manifested itself and caused an actual malfunction. Thus none of these plaintiffs have suffered any direct injury to their person or property as a result of the alleged defect. Through the safety recall, all members of subclass B are entitled to the installation of a replacement ignition switch free of charge.
Despite the absence of apparent damages, subclass B plaintiffs assert that they have a cause of action because the recall "has not adequately notified or compensated the members of Subclass B." (Compl. ¶ 191). Nowhere in the complaint do plaintiffs describe what injury Subclass B members have sustained that might require further compensation beyond the offer to install a replacement ignition switch free of charge. *fn7 Neither do they explain in what way the recall notice has been inadequate, or what injury has resulted from the alleged inadequacy. *fn8 Furthermore, throughout the briefing of both rounds of motions to dismiss, plaintiffs have failed to cite any law indicating that there are causes of action under which plaintiffs may recover from defendants even though they have not been damaged by defendants' conduct. It is a proposition too plain for citation that where no allegation of compensable harm has been made, there is no common law cause of action. *fn9
Although the Federal Rules of Civil Procedure do not require a claimant to set forth in detail the facts upon which he or she bases the claim, they do require a "`short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Because plaintiffs do not assert any actual existing injury, and do not point to any law under which they might recover despite an absence of injury, their pleadings fail to put defendants on notice regarding the grounds upon which the plaintiffs' claim rests. Subclass B plaintiffs' their claims are therefore dismissed with prejudice. *fn10
V. Plaintiffs Whose Vehicles Have Not Been Recalled
As defendants concede, those plaintiffs whose vehicles have not been recalled have properly alleged that they have suffered damages in that they possess vehicles that contain a defective ignition switch. The question before the court as to these plaintiffs is whether they have properly averred causes of action in all other respects. The court will resolve this question by analyzing the claims of each named plaintiff under the laws that govern their claims. See Section II, supra (discussing application of choice of law principles to these named plaintiffs). In this regard, the court will separately address each count of the consolidated complaint. For organizational reasons, the court will not discuss each count of the complaint in the same order set forth in the complaint itself.
A. Violation of Consumer Protection Statutes (Count 3)
The third count in the MDL complaint alleges that defendants violated various consumer protection statutes by fraudulently misinforming the public regarding the ignition switches. Plaintiffs allege in this count that defendants violated the New Jersey Consumer Fraud Act (N.J.S.A. § 56:8-1 et. seq.), as well as Michigan's consumer protection statutes (Mich. Comp. Laws Ann. § 445.901 et. seq.,), and the complaint further notes that "all 50 states have adopted statutes which contain similar statutory provisions and schemes to prohibit deceptive and unfair practices and to protect consumers, and almost all allow private rights of action under such statutes." (Compl. ¶ 204, 207). Although plaintiffs' complaint does not specify the statutes of each relevant state, the parties' briefs have set forth the relevant consumer protection statutes of each state whose law will govern these claims. Defendants have moved to dismiss the claims brought by the named plaintiffs in this count.
1. Failure to Plead Statutory Fraud Claims with Adequate Particularity under Rule 9(b)
First, defendants contend as a general matter that plaintiffs have not pled this count with the specificity required by Fed. R. Civ. P. 9(b). Rule 9(b) states, in relevant part that "[i]n all averments of fraud . . ., the circumstances constituting the fraud . . . shall be stated with particularity." Contrary to plaintiffs' contentions, this rule applies to statutory fraud claims as well as common law claims. See F.D.I.C. v. Bathgate, 27 F.3d 850, 876 (3d Cir. 1994)(applying Rule 9(b) to a New Jersey Consumer Fraud Act Claim). This rule is necessary to ensure that defendants are placed on notice of "the precise misconduct with which they are charged," and to "safeguard defendants against spurious charges of immoral and fraudulent behavior." Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). As explained below, the court finds that the allegations in Count 3 that defendants violated consumer protection statutes through fraudulent misrepresentation or concealment were not plead with sufficient particularity.
The Third Circuit has not applied Rule 9(b) in a manner that requires the pleader to set forth fraud claims with excessive detail. Rather, the Third Circuit has advised courts applying Rule 9(b) to "`take account of the general simplicity and flexibility contemplated by the [Federal Rules of Civil Procedure].'" Seville Indus. Mach. Corp., 742 F.2d at 791. Nonetheless, to satisfy the requirements of Rule 9(b), plaintiffs must "inject precision and some sort of substantiation into their allegations of fraud." Id.
An allegation of fraud therefore must state with particularity facts showing (1) a knowing false representation or omission of material fact made with the intent that it should be relied upon, and (2) reliance by the plaintiff that (3) resulted in damages. See Christidis v. First Pennsylvania Mortg. Trust, 717 F.2d 96, 99 (3d Cir. 1983)(stating that Rule 9(b) requires the identification of the above elements in an action for false representation); Davis v. Grusemeyer, 996 F.2d 617, 624 n.13 (3d Cir. 1993)(stating that actions for fraudulent concealment are also subject to the heightened pleading requirements of Rule 9(b)); Yost v. General Motors Corp., 651 F. Supp. 656, 658 (D.N.J. 1986)(dismissing pursuant to Rule 9(b) plaintiff's action for common law fraud where plaintiffs failed to allege that defendant's representations were false, failed to plead facts showing detrimental reliance on the representations, and failed to substantiate claims that they sustained damages.)
From the plain language of the relevant consumer statutes, it appears that these elements of common law fraud - namely intentional misrepresentation, detrimental reliance and resultant damages - are also necessary elements of a private action under the consumer protection statutes under which plaintiffs bring their statutory fraud claims. See Cal. Civil Code § 1770(a)(7), 1780(a) (West 1996) *fn11 ; Miss. Code Ann. § 75-24-5(2)(g), § 75-24-15(1)(1996) *fn12 ; La Rev. Stat. Ann. § 51:1405, § 51-1409(A)(1997) *fn13 ; N.Y. Gen. Bus. Law § 349(a),(h)(McKinney 1996) *fn14 . As explained below, the court finds that although plaintiffs have plead with adequate particularity that defendants knowingly made misrepresentations and omissions of material fact, plaintiffs have failed to allege facts showing that they relied upon those misrepresentations and omissions and that they sustained damages as a result.
Contrary to defendants' assertions, plaintiffs have alleged with adequate particularity the knowing misrepresentations and omissions of material fact by defendants. In Seville, the court reversed the dismissal of fraud claim where plaintiff had described in detail the nature and subject of the alleged fraud, but had not described the date, place, time or precise words of the phone calls and letters alleged to have furthered the fraud. Seville Indus. Mach. Corp., 742 F.2d at 791. Like the plaintiffs in Seville, plaintiffs in the instant case have for the most part described with some particularity the nature of Ford's alleged misrepresentations to the public and the mediums through which these statements were made (see compl. ¶ 166, 171-181), as well as the contexts and means through which Ford allegedly concealed or suppressed or omitted to report the facts Ford allegedly knew about the defective ignition switches (see Compl. ¶ 154, 157-161, 171-181). Admittedly, some of plaintiffs' allegations are quite vague. For example, plaintiffs' contention that defendant Ford suppressed exposure of the extent of the defect by "persuading" NHTSA not to institute a recall (see Compl. ¶ 157-161) does not describe how defendants went about misinforming or persuading NHTSA. Nonetheless, the court finds that the allegations are plead with adequate particularity to afford defendants notice of the claims against them, and they do evidence a reasonable belief on the plaintiffs' part that their complaint has merit. Furthermore, to the extent that any of the allegations of fraud are unnecessarily vague, the court will permit the use of contention interrogatories pursuant to Fed. R. Civ. P. 33(c) to cure this problem.
The complaint is nonetheless deficient in that it fails to describe with any particularity how plaintiffs relied upon the alleged material misrepresentations and omissions of defendant, or how such reliance resulted in damages. With regard to plaintiffs' misrepresentation claims, the complaint fails to state what advertisement or other statement by Ford was heard or seen and then relied upon by each remaining plaintiff. Likewise with regard to the fraudulent concealment allegations, the complaint fails to allege what duty if any defendants had to disclose the material information at issue, or how each plaintiff acted in reliance on the absence of material disclosures.
The bulk of the misrepresentations and omissions alleged in the Consolidated Amended Complaint took place after many of the individual plaintiffs had purchased their Fords, and plaintiffs give no explanation of how these misrepresentations and omissions could have been detrimentally relied upon by those plaintiffs. The complaint's first specific allegation of misrepresentation or concealment by Ford is the allegation that Ford suppressed information regarding the magnitude of the ignition switch failure rate during NHTSA investigations that began in 1992. (Compl. ¶ 157-161). The complaint further alleges that Ford began a "media campaign" to "mislead the American public" in November 1995 and then again in April 1996, and that this campaign continues today. (Compl. ¶ 166, 171-73, 177-78). The complaint gives no explanation of how these misrepresentations and material omissions were relied upon by plaintiffs who purchased Fords after the misstatements or omissions were made. Neither does it specify what kinds of misleading statements or omissions were relied upon by plaintiffs who purchased their Fords prior to 1992. The mere allegation that Ford knew of the defect before installation of the switch began in 1984 (Compl. ¶ 154) does not by itself set forth with adequate particularity a claim of fraudulent concealment beginning in 1984, as plaintiffs have not alleged what duty defendants had to disclose this alleged knowledge, as is required for a claim of fraudulent concealment. See e.g., Swersky v. Dreyer and Traub and Morse, 219 A.D.2d 321, 326 (N.Y. Div. App. 1996)(fraudulent concealment requires "setting forth that the defendant had a duty to disclose material information"(citations omitted)); Chase Chemical Co., Inc. v. Hartford Accident & Indemnity Co., 159 Cal. App. 3d 229, 242 (Cal. Ct. App. 1984)("Fraud based on concealment or nondisclosure . . . is not actionable unless there is a duty to disclose"); VanZandt v. VanZandt, 86 So.2d 466, 470 (Miss. 1956)(an action for fraudulent concealment requires either a fiduciary relationship or an affirmative act of concealment).
Plaintiffs also fail to specify what damages resulted from their action in reliance on defendants' alleged misrepresentations and concealment. Instead, plaintiffs vaguely assert that "[t]he total amount of damages suffered by plaintiffs and members of the class as a result of the acts of defendants cannot be fully ascertained without access to defendants' records and will be proven at the time of trial." (Compl. ¶ 201). Plaintiffs make no effort to describe in even the vaguest of terms what kind of damage each individual plaintiff might have suffered. Neither do they explain why defendants would know what damages plaintiffs suffered where plaintiffs themselves do not know.
Since plaintiffs have failed to plead with any particularity the detrimental reliance and damage elements of their statutory fraud claims pursuant to Rule 9(b), all these claims in Count 3 shall be dismissed without prejudice. Since plaintiffs shall be permitted to amend the complaint accordingly, the court will - for the sake of completeness and expediency - address the remainder of defendants' arguments regarding plaintiffs' statutory fraud claims.
2. Failure to State a Valid Cause of Action Under Applicable State Statutes
As noted above, plaintiffs' statutory fraud claims in Count 3 will be dismissed without prejudice to the right of individual plaintiffs to file a second amended complaint to cure the pleading defects, if plaintiffs are able to do so. To provide guidance as to the degree of requisite pleading specificity, the court will next address defendants' argument that the named plaintiffs have not stated valid causes of action under the specific consumer protection statutes enacted in the states at issue in this case. Following the dismissal of all claims brought by the named plaintiffs whose vehicles have been recalled, as listed in note 10, supra, the remaining named plaintiffs hail from Mississippi, New York, California, and Louisiana. Thus the court need only analyze whether so-called Subclass A plaintiffs (that is, individual named plaintiffs whose vehicles have not been recalled) have stated valid causes of action under the laws of those four states.
a. Mississippi (Plaintiff Davis)
The pertinent Mississippi consumer protection statute prohibits businesses from "[r]epresenting that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another . . . ." Miss. Code Ann. § 75-24-(2)(g) (1996). However, § 75-24-15(4) states that class actions may not be brought under this statute, and that "every private action must be maintained in the name of and for the sole use and benefit of the individual person." Plaintiff Davis, however, purports to bring this action on behalf of himself and all others similarly situated. Moreover, although this court has denied plaintiffs' initial attempts at class certification, that denial was without prejudice and the class certification motion may be raised again in the future. Plaintiff Davis's statutory fraud claim must therefore be dismissed with prejudice insofar as Davis seeks to represent others in bringing this claim.
Defendants also assert that plaintiffs have failed to allege any deceptive acts that would be actionable under the Mississippi statute. The court finds that the complaint is not sufficiently specific at this time to determine definitively whether plaintiff Davis may present a cognizable claim on his statutory fraud claims. The court will defer resolving that issue until plaintiffs are given one opportunity to amend their Count 3 claims to comply with Fed. R. Civ. P. 9(b).
b. New York (Plaintiff Cordano)
The pertinent consumer protection statute from New York, N.Y. Gen. Bus. Law § 349(a) (McKinney 1996), states: "Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful." As the court found in SECTION V.A.1 of this opinion, supra, plaintiffs have failed to allege what "deceptive acts" they relied upon that would be actionable under this statute. Thus the complaint is not sufficiently specific at this time to determine definitively whether plaintiffs may present a cognizable claim under § 349(a). That determination will be deferred until plaintiffs amend their Count 3 claims to comply with Fed. R. Civ. P. 9(b). Defendants may refile their motion to dismiss at that time. However, the court notes in anticipation of the amendment of the complaint that an allegation that defendants engaged in "standard industry puffing" with regard to their product is not sufficient to set forth a cause of action under § 349. See Chevy's Int'l, Inc. v. Sal De Enterprises, Inc., 697 F. Supp. 110, 112 (E.D.N.Y. 1988).
c. California (Plaintiffs Atkins and Saxe)
There are at least two possible California consumer fraud statutes that encompass plaintiffs' claims of statutory fraud. The court will address each statute in turn.
Section 17200 of the California Business Code prohibits "unfair competition," defined as "any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising . . . ." That statute, however, does not permit private litigants (as opposed to public prosecutors) to seek damages for violations of the statute. See Industrial Indem. Co. v. Santa Cruz County Superior Court, 257 Cal. Rptr. 655, 656 (Ct. App. 1989). Thus, plaintiffs may not bring their claims for damages under that statute, and all claims for damages brought pursuant to this statute will be dismissed with prejudice.
Section 1770 of the California Civil Code states, "The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer are unlawful: . . . (7) Representing that goods or services are of a particular standard, quality, or grade . . . if they are of another." As defendants note, § 1770 only covers consumer goods that the buyer plans to use primarily for personal or family purposes. See Cal. Civil Code § 1761(a) (West 1996). Plaintiffs, however, have not plead that the vehicles in question are used for personal purposes. The California named plaintiffs' Count 3 claims will be dismissed without prejudice on this ground, and the plaintiffs will be granted an opportunity to amend their pleadings accordingly.
Defendants also argue that they may not be found liable under § 1770 because that statute only covers deceptive practices by merchants. Defendants support that claim by pointing to an isolated reference in the statute's legislative history to the fact that the statute protects consumers against deceptive practices by "merchants." The plain language of the statute indicates, however, that the statute has a broader scope. The statute prohibits deceptive practices by "any person." "Person" is defined as "an individual, partnership, corporation, limited liability company, association, or other group, however organized." Cal. Civil Code § 1761. Defendants' argument on this point is therefore without merit. See Outboard Marine Corp. v. Superior Court, 124 Cal. Rptr. 852 (Ct. App. 1975) (stating that manufacturer could be found liable under § 1770 for allegedly deceptive act).
Defendant UTA offers the additional argument that it may not be held liable under § 1770 because UTA has not entered into a "transaction" directly with these plaintiffs. This argument is without merit. Section 1770 provides in this regard that liability may result from "unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer." (emphasis added). Defendant UTA was presumably aware while manufacturing these ignition switches that the switches would be placed in vehicles sold to consumers. Section 1770 contains no requirement that the defendant being sued engaged in a direct transaction with the consumer in question. Defendant UTA cites no cases in support of their argument on this point, and the court declines to dismiss plaintiffs' claims on this basis.
d. Louisiana (Numerous Plaintiffs)
The Louisiana Unfair Trade Practices Act, La. Rev. Stat. Ann. § 51:1405, prohibits "unfair methods of competition or deceptive acts or practices in the conduct of any trade or commerce." As the court found in SECTION V.A.1 of this opinion, supra, plaintiffs have failed to allege what "deceptive acts" that would be actionable under this statute. Thus, the complaint is not sufficiently specific at this time to determine definitively whether plaintiffs present a cognizable claim under § 51:1405. That determination will be deferred until plaintiffs are able to amend their Count 3 claims to comport with Fed. R. Civ. P. 9(b).
Defendants also contend that the Louisiana Unfair Trade Practices Act prohibits plaintiffs from bringing certain class actions under that statute. Indeed, the Act states that a consumer may not bring a private action under the statute "in a representative capacity to recover actual damages." La. Rev. Stat. Ann. § 51:1409(A). Thus, the court holds that the Louisiana named plaintiffs may not bring their statutory fraud claims as a class action insofar as such claims would seek actual damages in a representative capacity.
Defendant UTA also claims that plaintiffs may not bring a class action under the Louisiana act because plaintiffs have not sustained an "ascertainable loss," as is required by La. Rev. Stat. Ann. § 1409. The court finds this argument to be without merit. UTA has provided no case law or support from the pleadings that would permit the court to conclude, at this stage of this litigation, that whatever loss plaintiffs sustained is not ascertainable. Although each plaintiff's loss may be very small because the alleged ignition switch defect has not manifested itself in these plaintiffs' cars and is unlikely ever to do so in a particular vehicle, the decrease in value brought about by the presence of the allegedly defective switch in these cars may indeed be "ascertainable."
B. Breach of Contract & Express Warranty (Count 4)
Count 4 of the complaint alleges that defendants breached the contracts they entered into with the plaintiffs and the express warranties defendants made to these plaintiffs. Defendants suggest a variety of reasons why the court should dismiss the breach of contract/express warranty claims from the complaint. Most of the arguments in this area may be analyzed without an extensive discussion of the differences between the laws of the different states at issue in this motion. The court will address plaintiffs' breach of contract claims first, and then proceed to address the breach of express warranty claims.
1. Breach of Contract
Defendants' primary contention with regard to plaintiffs' breach of contract claims is that the consolidated complaint is so vague on this point that defendants are unable to defend against plaintiffs' accusations. Defendants argue that plaintiffs do not specify what contracts plaintiffs are referring to, what specific provisions were breached, and who were the parties to the contracts in question. Defendants further argue that if plaintiffs are referring to the car-sale contracts of the plaintiffs, neither of the defendants were parties to those contracts. As explained below, the court finds that plaintiffs have adequately stated a breach of contract claim against defendant Ford, but not against defendant UTA.
According to the Federal Rules of Civil Procedure, a plaintiff's complaint need only set forth "a short and plain statement of the claim showing that the pleader is entitled to relief," keeping in mind that "[e]ach averment of the pleading shall be simple, concise, and direct." Fed. R. Civ. P. 8(a)(2) and 8(e)(1). The requirements of Rule 8 are not demanding, and a plaintiff must provide a defendant only with enough information to give defendant fair notice of what the claim is and the grounds upon which it rests. See Conley v. Gibson, 355 U.S. 41, 47 (1957). Plaintiffs in this case have properly pled that "Plaintiffs and the members of the Class entered into agreements for the purchase or lease of Ford vehicles through the agents of Ford." (Compl. ¶ 216). Thus, plaintiffs have indeed set forth the contracts that they believe have been breached and the parties to those alleged contracts. Plaintiffs further aver, "As part of this agreement . . ., defendants represented and warranted . . . that the Ford vehicles were safe and free of defects in materials and workmanship at the time of delivery, did not suffer from any latent hazardous defects and conformed with industry standards and regulations." (Id.). Plaintiffs claim that this contractual provision was breached when plaintiffs were sold "an unsafe, dangerous and defective product even though plaintiffs and members of the Class contracted for safe and defect-free products." (Id. ¶ 217). These allegations sufficiently set forth a cause of action for breach of contract against defendant Ford, which, acting through its agents, allegedly breached these sales contracts.
Plaintiffs have not alleged, however, that defendant UTA or its agents were party to any of these sales contracts, and thus plaintiffs' breach of contract claims against UTA will be dismissed with prejudice. Plaintiffs respond that UTA could be found liable for conspiring with defendant Ford to breach the contracts that Ford entered into with the plaintiffs. However, that would be a tort claim against UTA, and not a contract claim. In addition, such an allegation is not made in the Consolidated Amended Complaint.
Accordingly, defendant Ford's motion to dismiss plaintiffs' contract claims in Count 4 will be denied, while defendant UTA's motion to dismiss with prejudice plaintiffs' contract claims in Count 4 will be granted.
2. Breach of Express Warranty
a. Insufficient specificity of pleading of express warranty claims
With regard to plaintiffs' claims of breach of express warranty, defendants again contend that the complaint fails to make clear what express warranty plaintiffs are alleging was breached. The court disagrees, insofar as plaintiffs have alleged that defendants breached the written warranty that accompanies each Ford vehicle. The complaint alleges as follows:
At the time of the sale or lease, each Ford vehicle was accompanied by a warranty (including the manufacturer's warranty) which is, as described above, comprised of the representations, advertisements, and statements that formed the express warranties that the material and workmanship of the Ford vehicles, which include the ignition switches, were entirely free from defects from the date of the purchase, which writing became part of the basis of the bargain between such purchasing and/or leasing Class members and Ford, and thus constituted a written warranty. This warranty was made and given in each sale or lease by Ford. (Compl. ¶ 188).
Plaintiffs further aver that defendants breached this warranty by producing and selling to plaintiffs defective vehicles. The court finds that under the requirements of Fed. R. Civ. P. 8(a) these pleadings state a sufficiently specific cause of action against defendant Ford for breach of express warranty. If more specificity is desired, defendant Ford may serve contention interrogatories upon the individual plaintiffs addressing this point. The express warranty claims against Ford, to the extent that they are based upon the written warranty that accompanies each Ford vehicle, will not be dismissed.
The court will, however, dismiss with prejudice the breach of express warranty claims against defendant UTA. Plaintiffs have not set forth, in their pleadings or their response to defendants' motion, any specific, express warranty that UTA made to the plaintiffs. *fn15 Thus, there is no cognizable allegation of an express warranty in this case that UTA could have feasibly breached.
The complaint also alleges, in its "Factual Background" section, that "Ford promotes its vehicles in the United States as being among the safest, best-built vehicles on the market." (Compl. ¶ 177). It is unclear from the face of the complaint itself whether plaintiffs are contending that this assertion constituted an additional express warranty that defendant Ford breached. Plaintiffs' motion papers indicate, however, that plaintiffs are indeed raising such an allegation. Plaintiffs mention, for example, defendant Ford's advertising statements such as "Quality is Job 1". (Pl.s' Br. Sept 9, 1996 at 41). The court agrees with defendant Ford that the assertions of the complaint on this point are so vague and general that Ford is not able to defend itself adequately against such claims without additional detail concerning the alleged specific warranties made. The court therefore dismisses without prejudice plaintiffs' claims that defendant Ford breached an express warranty made in its promotional materials. The court will provide an opportunity for plaintiffs to amend Count 4 of the complaint to make their claims more explicit in this area. At the very least, plaintiffs must aver the specific terms of the warranty that was allegedly breached.
Relating to this point, the parties debate in their motion papers whether general commercial advertisements by defendants may suffice to constitute an express warranty. New York, Mississippi, and California have each adopted the UCC provision that pertains to this issue:
Express warranties by the seller are created as follows: Any affirmation of fact or promise [or description of the goods] made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty . . . . It is not necessary to the creation of an express warranty that the seller use formal words such as `warrant' or `guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. Cal. Comm. Code § 2313; Miss. Code Ann. § 75-2-313; N.Y. U.C.C. § 2-313.
The court finds that generic, commercial advertising statements, such as "Quality is Job 1," generally do not constitute an express warranty that ignition switches will not malfunction. See, e.g., Falcon Equipment Corp. v. Courtesy Lincoln Mercury, Inc., 536 F.2d 806, 808 (8th Cir. 1976); Paint Litigation, at 28-29. The court offers this observation in anticipation of plaintiffs amending their complaint to make clear what express warranties they are alleging were violated in this case. On the other hand, there are certain jurisdictions that appear more willing to view general advertisements as a warranty. See Anthony v. General Motors Corp., 109 Cal. Rptr. 254, 259 (Ct. App. 1973). As a result, the pleadings of some of the named plaintiffs concerning this point may be legally sufficient if made more specific as to the promotional or advertising materials alleged by each plaintiff to create an express warranty covering the vehicle's ignition switch.
In summary, the plaintiffs' claim of breach of express warranty in Count 4 will be dismissed as to defendant UTA with prejudice, while defendant Ford's motion to dismiss the breach of express warranty claims of Count 4 will be denied to the extent the claims are based on the written warranty accompanying each vehicle, and granted to dismiss without prejudice to the extent the claims are based upon general promotional materials.
b. Failure of Mississippi, New York and California named plaintiffs to give notice of breach of warranty
Defendants also assert that the Mississippi, New York, and California named plaintiffs failed to give the required notice of breach of warranty, and that these plaintiffs should therefore be barred from raising such claims in this litigation. Mississippi, New York, and California have each adopted the UCC provision that states: "Where a tender has been accepted the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy." N.Y. U.C.C. § 2-607(3)(a); Miss. Code Ann. § 75-2-607(3)(a); Cal. Comm. Code § 2607(3)(a). Nowhere in the pleadings do any of these particular named plaintiffs claim to have given this required notice, and thus the express warranty claims of plaintiffs Davis, Cordano, Atkins and Saxe will be dismissed without prejudice. The court will afford these plaintiffs an opportunity to amend the complaint to plead the required notice. Plaintiffs argue that giving notice would have been futile in this case, but they offer no legal support for this suggested "futility" exception. If plaintiffs are able, in good faith, to make the required amendments to the complaint, they may do so upon an individual basis. The amended pleadings on this point, if any, will presumably further enable the court to determine whether these plaintiffs presented their vehicles for repair within the 12 month/12,000 mile period of the written warranties that accompanied these Ford vehicles.
c. Failure of Louisiana plaintiffs to state a claim under Louisiana's redhibition statute
The preceding discussion concerning plaintiffs' claims of breach of express warranty does not apply to the express warranty claims of the named plaintiffs from Louisiana. Because the state of Louisiana has not adopted the Uniform Commercial Code, Louisiana law is rather idiosyncratic as it pertains to claims such as breach of express warranty. In fact, Louisiana law does not contemplate common law actions for breach of express warranty. Rather, a Louisiana plaintiff bringing claims akin to breach of warranty must bring those claims under the Louisiana "redhibition" statute. Article 2520 of the Louisiana Civil Code defines a redhibitory defect as follows:
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect.. . . A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. La. Civ. Code Ann. art 2520 (West 1996).
Defendants argue that the Louisiana named plaintiffs have not properly alleged a cause of action under Louisiana's redhibition statute. The court agrees with defendants insofar as they contend that plaintiffs are unable to aver that the alleged ignition switch defect at issue in this case renders these Ford vehicles "absolutely useless." Indeed, all of the vehicles at issue in this MDL case have been on the road for years without having manifested the alleged defect. Plaintiffs have alleged in the complaint, however, that the alleged defect renders their Ford vehicles so imperfect that plaintiffs would not have purchased the cars if they had known of the defect. (Compl. ¶ 217). Under the plain language of the redhibition statute, such an allegation by the plaintiffs is sufficient to withstand a motion to dismiss. See In re. Ford Motor Co. Bronco II Prods. Liab. Litig., 1995 WL 491155 at *7 (E.D. La. Aug. 15 1995)(hereinafter "Bronco II")("Although none of the plaintiffs allege that their vehicles have in fact rolled over, I find that Bronco II's alleged propensity to roll over a sufficient redhibitory defect, because it is likely some of the plaintiffs would not have purchased their Bronco II vehicles had they known of the defect."); In re Ford Motor Co. Vehicle Paint Litigation, unpublished decision, MDL No. 1063 at 38 (E.D. LA. July 30, 1996)(hereinafter "Paint Litigation")(declining to dismiss plaintiffs' redhibition claims where plaintiffs alleged a latent defect). The court will therefore deny defendant Ford's motion to dismiss the redhibition claims of the Louisiana named plaintiffs.
Plaintiffs may not proceed in redhibition, however, against defendant UTA. Under Louisiana law, a plaintiff may bring a redhibition action against a manufacturer of a product even in the absence of direct privity. See, e.g., Young v. Ford Motor Co., 595 So. 2d 1123, 1126 (La. 1992). Such an action may not be brought, however, against a manufacturer of a component part that is subsequently placed into another item and then into the stream of commerce. See, e.g., Pittman v. Kaiser Aluminum & Chem. Co., 559 So. 2d 879, 882 (La. Ct. App. 1990). As the Paint Litigation court explained: "While a plaintiff under Louisiana law has a cause of action for redhibition against a manufacturer of a thing without direct privity, the action does not lie against a supplier of a component of the thing manufactured and sold by another." Paint Litigation, at 67-68. For this reason, the court will dismiss with prejudice plaintiffs' redhibition claims against defendant UTA.
C. Strict Products Liability (Count 5)
In Count 5 of the complaint, plaintiffs allege that defendants "placed into the stream of commerce a defectively manufactured, constructed, designed, and/or produced product." (Compl. ¶ 220). Plaintiffs contend that defendants should be held strictly liable for all damages resulting from such tortious conduct on their part.
Defendants offer a variety of arguments in claiming that plaintiffs have not properly pled a strict liability cause of action. Defendants' arguments are addressed below.
1. Economic Loss Doctrine
a. California Plaintiffs (Atkins and Saxe)
First, defendants contend that plaintiffs' claims are barred by the "economic loss doctrine." The economic loss doctrine has its origins in a 1965 decision rendered by the Supreme Court of California. See Seely v. White Motor Co., 403 P.2d 145 (Cal. 1965). In that decision, the California Supreme Court found that "the history of the doctrine of strict liability in tort indicates that it was designed . . . to govern the distinct problem of physical injuries." Id. at 149. The court observed that the law draws in this area a "distinction . . . between tort recovery for physical injuries and warranty recovery for economic loss." Id. at 151. The court found this distinction to be significant, fundamental, and "not arbitrary." Id. Thus, the court held that plaintiffs were not permitted to prevail under a theory of negligence or strict liability for damages that consisted of purely economic loss, as opposed to losses stemming from physical harm to person or property. *fn16 For such purely economic losses, the court held, plaintiffs would be permitted to recover under a warranty or contract theory only. Id.; accord Anthony v. Kelsey-Hayes Co., 25 Cal. App. 3d 442 (1972). Plaintiffs have not cited any California case that indicates that the economic loss doctrine would not apply in the circumstances of the present case.
Pursuant to the law set forth in these California cases, the court will dismiss with prejudice the strict liability claims of the remaining named California plaintiffs in this case, plaintiff Atkins and plaintiff Saxe. These plaintiffs have not alleged that the allegedly defective ignition switch in their Ford vehicles has caused personal injury or property damage. Rather, their claims entail allegations of exclusively economic losses. As explained above, California law does not permit recovery under a strict liability theory when only economic losses are at issue.
The claims of California plaintiffs Atkins and Saxe in Count 5 will therefore be dismissed with prejudice.
b. New York Plaintiff (Cordano)
The issue next arising is whether the economic loss doctrine has been adopted in the other states whose laws are at issue on this motion to dismiss. The court's research reveals that New York has indeed adopted the economic loss doctrine as it pertains to a plaintiff's claims in strict products liability. See, e.g., Hole v. General Motors Corp., 442 N.Y.S.2d 638 (App. Div. 1981). In Hole, the court succinctly yet emphatically concluded that where a complaint "alleges only economic loss, [the] plaintiff has no cause of action in negligence or strict products liability." Id. at 641 (citing Martin v. Dierck Equip. Co., 374 N.E.2d 97 (N.Y. 1978); Seely, supra). The court noted that a plaintiff in such an instance is not without a remedy, since the law of contract and warranty permits recovery in appropriate circumstances. Id.
Plaintiffs contend that there is an exception to the economic loss doctrine under New York law where a potential for catastrophic consequences creates a duty independent of contractual obligations. See Trustees of Columbia Univ. v. Mitchell Giurgola Ass'n, 492 N.Y.S.2d 371 (App. Div. 1985) (holding that strict liability claim for economic losses was not barred where defective wall tiles created danger that wall would collapse on pedestrians). However, the New York Court of Appeals, the court of last resort in New York, recently rejected such an approach, finding that claims involving "unduly hazardous" products are to be treated no differently in this area. See Bocre Leasing Corp. v. General Motors Corp., 645 N.E.2d 1195, 1198 (1995). The strict liability claims of the named New York plaintiff in the consolidated complaint, plaintiff Cordano, will be dismissed with prejudice on this ground.
c. Mississippi Plaintiff (Davis)
The question as to the application of the economic loss doctrine under Mississippi law is more difficult. As plaintiffs note, no Mississippi state court has ever squarely addressed the issue of the economic loss doctrine. A federal court from the Southern District of Mississippi has, however, predicted that if the Mississippi Supreme Court were to address the issue, it would adopt the economic loss doctrine. Specifically, in East Mississippi Electric Power Association v. Porcelain Products Co., 729 F. Supp. 512, 514 (S.D. Miss. 1990), the court applied the economic loss doctrine, explaining that the "overwhelming majority of courts that have confronted the issue have concluded that a plaintiff who suffers only economic loss as the result of a defective product may have no recovery in strict liability or negligence, though such damages may be pursued under a breach of warranty theory of liability." After a thorough review of pertinent cases and commentaries, the court found it "unlikely that the Mississippi Supreme Court would decide to join the `steadily dwindling minority of jurisdictions that permit tort-based actions for economic loss.'" Id. at 515 (quoting Washington Power Co. v. Graybar Elec. Co., 774 P.2d 1199, 1205 n.7 (1989)).
A federal court sitting in the state of Mississippi is undoubtedly more familiar with the judicial tendencies and approach of the Mississippi Supreme Court than this court is. The Mississippi Electric Power court has predicted that the Mississippi Supreme Court would apply the economic loss doctrine to strict liability and negligence cases, and this court has been presented with no persuasive reason to conclude otherwise. Although the Mississippi courts have yet to rule on the economic loss doctrine, that appears to be a result of the fact that the issue has yet to be squarely presented in those courts. While there is no Mississippi state court decision embracing the doctrine, neither is there one rejecting it.
Plaintiffs have pointed to two federal court decisions from the Eastern District of Louisiana that have declined to apply the economic loss doctrine to strict liability and negligence claims of Mississippi plaintiffs. See Bronco II, 1995 WL 491155 at *8-9; Paint Litigation, at 41. Those courts reached that decision because no Mississippi state court had adopted the economic loss doctrine. This court concludes, however, that the Mississippi Electric Power court's discussion of the economic loss issue is more persuasive and thorough than that found in the two Louisiana decisions, both of which mention the economic loss issue only briefly and in the context of lengthy Opinions. This court also notes that the Mississippi court is presumably more familiar with Mississippi state law than the federal court sitting in Louisiana is. Defendants' motion to dismiss with prejudice the strict liability claims of the named Mississippi plaintiff, plaintiff Davis, is therefore granted on the basis of the economic loss doctrine.
d. Louisiana Plaintiffs (Numerous Plaintiffs)
The final state whose law is at issue on this point is the state of Louisiana. Defendants have not contended that Louisiana has adopted the economic loss doctrine. Instead, defendants contend more generally that "Louisiana does not recognize a claim for strict products liability." (Df. Ford supp. br. at 18). As plaintiffs respond, however, Louisiana law does permit a plaintiff to recover against a defendant under a legal regime that is at least akin to common law strict liability. Specifically, La. Rev. St. Ann. § 2800.54 provides, in pertinent part: "The 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." Although plaintiffs did not cite this specific provision in their complaint, plaintiffs adequately placed defendants on notice of their strict liability claims in Count 5 of the complaint. All of the elements underlying a § 2800.54 cause of action are indeed sufficiently pled in the complaint. (See, e.g., Compl. ¶¶ 220-222). The court therefore finds that plaintiffs' claim under § 2800.54 is properly pled and satisfies the liberal notice-pleading requirements of Fed. R. Civ. P. 8. See Jefferson v. Lead Indus. Ass'n, Inc., 930 F. Supp. 241 (E.D. La. 1996), aff'd, 106 F.3d 1245 (5th Cir. 1997).
2. Defendants' Additional Arguments
In their reply papers, defendants raise additional arguments concerning the Louisiana plaintiffs' § 2800.54 claims. Because these arguments were raised for the first time in defendants' reply papers, however, plaintiffs have not had an opportunity to respond to these contentions. The court therefore declines to address these arguments at this time.
Therefore, defendants' motion to dismiss Count 5 is granted with respect to the remaining California, New York and Mississippi plaintiffs, and is denied as to the Louisiana plaintiffs.
D. Fraud (Count 2)
Count Two of plaintiffs' complaint alleges that defendants wrongfully and fraudulently concealed the allegedly dangerous condition that exists in plaintiffs' vehicles. Defendant Ford moves to dismiss these fraud claims on two grounds. First, Ford claims that the claims are not pled with particularity, as required by Fed. R. Civ. P. 9(b). Second, Ford contends that some of the named plaintiffs may not pursue their fraud claims because the plaintiffs' claims are barred by the economic loss doctrine. Defendant UTA joins in these arguments, and also argues that the fraud claims against it should be dismissed because UTA did not owe a duty to disclose any ignition switch defect to plaintiffs.
1. Failure to Plead with Sufficient Particularity
The court agrees with defendants that plaintiffs have not pled their allegations of fraud with sufficient specificity, as required by Rule 9(b), Fed. R. Civ. P.. The court hereby incorporates the discussion of this issue set forth in Section V.A of this Opinion, supra. Plaintiffs' allegations of fraud will therefore be dismissed without prejudice. Plaintiffs will be permitted to amend the complaint to set forth their individual fraud causes of action with the required specificity.
2. Economic Loss Doctrine
Defendants also ask the court to dismiss the fraud claims with prejudice, because the claims run afoul of the economic loss doctrine. As discussed previously, that doctrine provides that a plaintiff who has suffered merely economic losses may not recover such losses under negligence or strict liability causes of action. This court has already held that the economic loss doctrine precludes the named plaintiffs from Mississippi, New York, and California from pursuing their strict liability claims. The application of the doctrine to fraud claims, however, presents a very different question.
Defendants have not cited any state court cases from Mississippi, New York, or California in which the economic loss doctrine was applied to a plaintiff's fraud cause of action. Moreover, there are apparently very few such cases nationwide. In addition, those fraud cases that invoke the doctrine generally do so in a rather perfunctory manner, without engaging in an extended analysis of whether the doctrine should be extended from the realm of strict liability and negligence law to the realm of fraud. See id. This court believes that state courts may possess legitimate concerns regarding such an extension, especially because the fraud cause of action is an intentional tort, unlike negligence and strict liability causes of action. Perhaps for reasons such as this, those courts that have engaged in a reasoned analysis concerning the principles animating the economic loss doctrine have mentioned the doctrine with reference to strict liability and negligence claims only. See, e.g., Seely v. White Motor Co., 403 P.2d 145 (Cal. 1965).
For these reasons, this court declines to predict that the Mississippi Supreme Court would apply the economic loss doctrine to the fraud cause of action of the Mississippi named plaintiff in the present case. As discussed previously, the Mississippi state courts have yet to apply the economic loss doctrine in any instance. This court has concluded above that if the Mississippi Supreme Court were to confront the subject, it would join the overwhelming majority of jurisdictions and apply the doctrine to strict liability claims. There is no basis for concluding, however, that the Mississippi Supreme Court would blaze a trail through the application of the doctrine to claims of fraud. This court declines to dismiss the fraud claims of the Mississippi named plaintiff on this basis.
The court also discerns insufficient justification to dismiss the fraud claims of the New York named plaintiff on this ground. There is no New York case applying the economic loss doctrine to claims of fraud, despite the many New York cases explicitly providing that the doctrine applies to strict liability and negligence claims. In an unpublished decision, a Louisiana federal court has predicted that "the New York courts would apply the [economic loss] rule to a tort action for fraud." Bronco II, 1995 WL 714441, at *8 (E.D. La. Dec. 4, 1995). That court relied on the fact that New York courts had applied the doctrine in cases involving negligent misrepresentation. A negligent misrepresentation case, however, is different than a fraud case such as this one, which involves an alleged intentional tort. This court's review of the pertinent New York case law leads the court unconvinced that the New York courts would apply the doctrine in a case such as the present action.
The court's review of the pertinent California case law leads it to a similar conclusion regarding California law. There is no case from a California state court applying the economic loss doctrine to claims of fraud. There is, however, an unpublished federal court decision that applies California law in the manner suggested by defendants. See Standard Platforms, Ltd. v. Document Imaging Sys. Corp., 1995 WL 691868 (N.D. Cal. 1995). The Standard Platforms court applied the economic loss doctrine to fraud claims in that case because, among other reasons, the court found the plaintiff's fraud claims to be "based upon [the defendant's] performance of the warranty" and therefore "subsumed within [the law governing the defendant's] contractual obligations." Id. at *3. In the present case, plaintiffs' claims of fraud do not turn on or necessarily implicate the alleged contractual agreements between these parties. Rather, those claims are predicated on statements made by defendants through "advertising and promotional devices, [and] press releases." (Compl. ¶ 194). These claims may not be cognizable under a breach of warranty theory. (See Section IV.B, supra). Thus, applying the economic loss doctrine to these claims could deny these plaintiffs any remedy for the alleged fraudulent concealment. The court therefore declines to apply the doctrine in these circumstances. The fraud claims of the named California plaintiffs will not be dismissed on this basis. *fn17
3. UTA's Duty to Disclose
The court will next address the argument of defendant UTA that the fraud claims against UTA should be dismissed because UTA had no duty to disclose any information about the allegedly defective ignition switches to these plaintiffs. UTA explains that plaintiffs' fraud claims consist, at least in part, of an allegation that UTA withheld from plaintiffs information that UTA had a duty to disclose. UTA contends that it may not be held liable on these claims because UTA had no such duty to disclose information to these plaintiffs. UTA cites in this regard cases that hold that a defendant may not be held liable for wrongful concealment unless the defendant had a duty to disclose the information in question to the plaintiffs. See, e.g., K.M.L. Laboratories, Ltd. v. Hopper, 830 F. Supp. 159, 167 (E.D.N.Y. 1993) ("Defendants' fraudulent concealment claim fails because no relationship existed that created a duty to disclose."); Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282, 287 (9th Cir. 1988) ("In order for a mere omission to constitute actionable fraud, a plaintiff must first demonstrate that the defendant had a duty to disclose the fact at issue.").
UTA's legal argument on this point begs the central question on this subject, which is whether UTA had such a duty to disclose in this case. Indeed, plaintiffs do not dispute UTA's assertion that UTA may be found liable for fraud only if it had a duty to disclose the information that was allegedly wrongfully concealed. Plaintiffs have pled facts that indicate, however, that UTA had such a duty in this case.
The cases cited by plaintiffs persuade the court that the applicable standard in most states across the country could be generally expressed as follows: a defendant manufacturer has a duty to disclose its knowledge, if any, of material defects in the items manufactured, so long as the consumer could not be expected to otherwise obtain the information. See, e.g., Kartoutas v. Homefed Bank, 232 Cal. App. 3d 767 (Ct. App. 1991) ("[A] duty to disclose arises at common law if material facts are known only to the defendant and the defendant knows that the plaintiff does not know or cannot reasonably discover the undisclosed facts."); Bunge Corp. v. GATX Corp., 557 So. 2d 1376, 1384 (La. 1990) ("Louisiana law imposes a duty on a manufacturer to provide warning of any danger inherent in the normal use of its product which is not within the knowledge of an ordinary user. . . . [T]here is no question that a manufacturer with . . . knowledge [that a machine it built could malfunction] has a duty to warn users of its product of the danger.") (internal quotation marks omitted); Abrams v. General Motors Corp., 466 N.Y.S.2d 124, 127 (Sup. Ct. 1983) ("If one party has superior knowledge or has means of knowledge not available to both parties, then he is under a legal obligation to speak and the silence would constitute fraud."); Kuelling v. Roderick Lean Mfg. Co., 75 N.E. 1098, 1102 (N.Y. 1905) ("[O]ne who sells an article knowing it to be dangerous by reason of concealed defects is guilty of a wrong . . . and is liable in damages to any person, including one not in privity of contract with him, who suffers an injury by reason of his willful and fraudulent deceit and concealment.").
UTA has not cited any case that would indicate that this principle does not apply in any of the states whose laws are at issue on this motion. Nor has UTA cited case law that persuasively indicates that the above-mentioned standard would not apply to manufacturers of component parts.
Plaintiffs have stated a valid cause of action for wrongful concealment against UTA under the applicable legal standard set forth above. The complaint avers that defendant UTA designed and manufactured the allegedly defective ignition switch installed in the vehicles at issue in this litigation. (Compl. ¶¶ 151-152). The complaint further avers that UTA "knew, recklessly disregarded or should have known that this defect existed before the ignition switch was first installed in Ford vehicles in 1984." (Id. ¶ 154). The complaint alleges that UTA had the overall design and manufacturing responsibility for the ignition switch, and that it failed to disclose to the public the latent defect in the switch. (Id. ¶ 132). In addition, the complaint states that plaintiffs had no way of finding out about the defect for themselves, and that had they known of the defect, their decision to purchase a Ford vehicle would have been "materially altered." (Id. ¶¶ 196-97). On this basis, the court declines to dismiss the wrongful concealment claims against UTA brought by the named plaintiffs from Mississippi, New York, California, and Louisiana, and UTA's motion to dismiss Count 2 will be denied.
E. Breach of Implied Warranty of Merchantability (Count 6)
In Count 6 of the complaint, plaintiffs contend that by placing into the stream of commerce a defectively manufactured ignition switch and vehicle, defendants breached the warranty of merchantability that they impliedly made to these plaintiffs. Unlike express warranties, the implied warranty of merchantability arises by operation of law, and need not be specifically mentioned in a contract between the parties. See American Suzuki Motor Corp. v. Superior Court, 44 Cal. Rptr. 2d 526, 529 (Ct. App. 1995). The primary aspect of the implied warranty of merchantability is that a merchant warrants that goods sold are fit for the ordinary purposes for which such goods are used. See id. This doctrine stems from U.C.C. § 2-314, which has been adopted in states across the country, though not in Louisiana. The implied warranty of merchantability does not entail a promise by the merchant that the goods are exactly as the buyer expected, but rather that the goods satisfy a minimum level of quality. See id. (citing Skelton v. General Motors Corp., 500 F. Supp. 1181, 1191 (N.D. Ill. 1980), rev'd on other grounds, 660 F.2d 311 (7th Cir. 1981)).
Defendants offer a variety of reasons why plaintiffs' Count 6 claims should be dismissed. Defendants' primary argument is that plaintiffs may not prevail on their Count 6 claims because, even accepting plaintiffs' factual allegations as true, the Ford vehicles in question are still merchantable, and thus the implied warranty of merchantability has not been breached. Specifically, defendants contend that the mere chance of a problem arising in the ignition switches of plaintiffs' vehicles does not render the vehicles unmerchantable. Defendants note that these plaintiffs' vehicles have been on the road for years without any ignition-switch problems having become manifest. The court agrees with defendants' arguments on this point.
The plaintiffs in this case have been driving their Ford vehicles for years without any ignition switch problem having manifested itself. Although the pleadings allege that these vehicles are prone to ignition switch failure, it is undisputed that the chance of that failure actually occurring in a given vehicle are very small. The weight of authority, from courts across the country, indicates that plaintiffs may not recover for breach of the implied warranty of merchantability under the facts as alleged in this case. See, e.g., American Suzuki Motor Corp. v. Superior Court, 44 Cal. Rptr. 526, 528-29 (Ct. App. 1995)(finding no cause of action in breach of implied warranty where none of plaintiffs' vehicles have manifested the alleged design defect of propensity to roll over, and stating that the implied warranty of merchantability only "provides for a minimum level of quality"); Ford Motor Co. v. Fairley, 398 So. 2d 216, 218 (Miss. 1981)(Where car had been driven for over two years and 26,649 miles before plaintiff experienced any difficulties with it, such service negates as a matter of law plaintiff's claim of breach of an implied warranty of merchantability); Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595, 602 (S.D.N.Y. 1982)(holding no breach of warranty of merchantability where plaintiffs claimed loss of value due to latent defect but where tires remained failure free throughout time they were used); Yost v. General Motors Corp., 651 F. Supp. 656 (D.N.J. 1986)(Brotman, J.)(finding no cause of action for breach of warranty where plaintiff did not allege that he had suffered any damages, but merely that a leak "might" occur). As the cases cited above reveal, under the law of New York, California, Mississippi and elsewhere, the implied warranty of merchantability is breached only where there is a defect in the vehicle that renders the vehicle unfit for its ordinary purpose of providing transportation for its owner. Such a contention by plaintiffs in this case would be inconsistent with the pleadings as drafted, and thus the court will dismiss with prejudice Count 6 of the complaint.
The above discussion of plaintiffs' implied warranty claims does not apply, however, to the implied warranty claims of the Louisiana plaintiffs. Under Louisiana law, claims for breach of implied as well as express warranty do not exist, and any such claims must be asserted pursuant to the Louisiana redhibition statute. See Manning v. Scott-Hixson-Hopkins, Inc., 605 So. 2d 233, 235 (La. Ct. App. 1992). Thus, the Louisiana redhibition statute essentially preempts the Louisiana plaintiffs' implied warranty claims.
As discussed previously in Section V.B.2.c, supra, however, the Louisiana plaintiffs have indeed stated a valid cause of action against Ford, though not against UTA, under that redhibition statute. Louisiana redhibition law contains a scheme of recovery for product liability plaintiffs that is entirely different than the scheme in states that have adopted the U.C.C.. This scheme sets forth circumstances under which the plaintiff may "annul the sale and recover the purchase price" of a defective product. Prince v. Paretti Pontiac Co., Inc., 281 So. 2d 112 (La. 1973). This court has not found any Louisiana authority indicating that a latent defect that nonetheless decreases the value of the item purchased may not present such a circumstance. Thus, as discussed previously, the court finds that the Louisiana plaintiffs have properly stated a claim for redhibition against defendant Ford. On the other hand, as discussed previously, the Louisiana plaintiffs may not proceed in redhibition against defendant UTA, the component part manufacturer in this case. The redhibition claims of the named Louisiana plaintiffs will be dismissed with prejudice as against defendant UTA, and will remain viable as against defendant Ford.
F. Magnuson-Moss Act (Count 1)
Defendants have also moved to dismiss the claims brought by plaintiffs under the Magnuson-Moss Warranty Act (the "Act"), which is the federal statute governing consumer warranties. See 15 U.S.C. § 2301 et seq. Section 2310(d)(1)(B) of the Act states in pertinent part as follows:
[A] consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under [the Act], or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief . . .
(B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection.
Paragraph (3), in turn, states:
No claim shall be cognizable in a suit brought under paragraph (1)(B) of this subsection --
(A) if the amount in controversy of any individual claim is less than the sum or value of $25;
(B) if the amount in controversy is less than the sum or value of $50,000 . . . computed on the basis of all claims to be determined in this suit; or
(C) if the action is brought as a class action, and the number of named plaintiffs is less than one hundred. 15 U.S.C § 2310(d)(3).
The Act sets forth limited rules governing the required content of written warranties, see 15 U.S.C. § 2302, and essentially leaves unaffected state laws concerning implied warranties. See Walsh v. Ford Motor Co., 588 F. Supp. 1513, 1525 (D.D.C. 1984); Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595, 605 (S.D.N.Y. 1982). Indeed, in this case, the parties agree that the Act does not alter the content of the state law governing plaintiffs' state law claims. Instead, the primary effect of the Act in this case is jurisdictional, enabling plaintiffs to aggregate their claims to meet the $50,000 amount in controversy requirement. Because of the Act, each named plaintiff in this case is not required to allege more than $50,000 in personal damages, as would otherwise be required by Zahn v. International Paper Co., 414 U.S. 291, 300-01 (1973) (construing 28 U.S.C. § 1332 to require that each plaintiff in a proposed Rule 23(b)(3) class action must satisfy the jurisdictional amount in controversy requirement). *fn18
Defendant Ford contends that plaintiffs' underlying breach of warranty claims are without merit, and therefore plaintiffs' Magnuson Moss claims are similarly unfounded. As discussed above, Ford's motion to dismiss the plaintiffs' express warranty claims was granted with respect to all plaintiffs owning recalled vehicles (see Section IV, supra). Most of the express warranty claims against Ford by plaintiffs owning non-recalled vehicles were dismissed without prejudice and with leave to amend. (See Section V.B.2, supra). Thus, the Magnuson Moss claim against defendant Ford will similarly be dismissed without prejudice at this time.
As to defendant UTA, the court has dismissed with prejudice all express and implied warranty claims brought against that defendant. Thus, the court will dismiss with prejudice plaintiffs' Magnuson Moss claims against defendant UTA. As a result of this holding, the court need not reach the remaining arguments presented by UTA concerning the Magnuson Moss count. (See UTA Supp Br. at 1-3).
In addition, because of the dismissal of numerous plaintiffs from this case, (see Section IV, supra), there are now fewer than 100 named plaintiffs in this action. The Act requires that a complaint list at least 100 named plaintiffs for a class action to be brought pursuant to that statute. Thus the cases that survive this motion to dismiss no longer meet this requirement of the Act, and the court will dismiss without prejudice plaintiffs' Magnuson Moss class action claims against defendant Ford on this basis as well. In the absence of federal question jurisdiction arising under the MAGNUSON-Moss Act, the only remaining basis for this court to exercise subject matter jurisdiction would be under the diversity jurisdiction provisions of 28 U.S.C. § 1332, which required that the amount in controversy exceed $50,000 for each plaintiff's claim. It is extremely doubtful that any remaining plaintiff meets this standard, since these plaintiffs own Ford vehicles which have not manifested the defect alleged to exist in the $75 electronic part at issue. The parties have not had the opportunity to address whether this court retains subject matter jurisdiction in the face of dismissal of the MAGNUSON-Moss Act cause of action. Plaintiffs are being given the opportunity to cure this jurisdictional defect by amending their complaint to reassert their MAGNUSON-Moss Act claim with a sufficient number of individuals, or to aggregate the value of their claims to overcome the minimum claim requirements of 15 U.S.C. § 2310(d)(3), (see supra). Presuming that the amended complaint will reassert a cognizable MAGNUSON-Moss Act claim within the federal question jurisdiction of this court, the issue of subject matter jurisdiction need not be addressed at this time. If a timely amendment is not made, or if defendants contest the basis of subject matter jurisdiction after the remaining plaintiffs have an opportunity to amend their complaint, defendants may then file a motion to dismiss for lack of subject matter jurisdiction.
VII. Procedure for Amendment
At several places above, the claims of remaining individual plaintiffs have been dismissed without prejudice to leave to amend the pleadings consistent with this opinion. This means that, on these issues only, the plaintiffs have an opportunity to continue to coordinate efforts among plaintiffs' counsel and to prepare and file a suitable Consolidated Second Amended Class Action Complaint and Jury Demand that cures the noted defects with specificity. Leave to amend need not be sought upon those claims, so long as the Second Amended Complaint comports with the directives of this opinion and is the product of counsels' good faith belief in the claims asserted, consistent with Rule 11, Fed. R. Civ. P.. If the remaining plaintiffs wish to also use this opportunity to streamline the pleadings to simplify claims on behalf of an appropriate class (or subclasses) consistent with the Opinion denying class certification without prejudice (filed Aug. 28, 1997), then plaintiffs may do so at this time. The Second Amended Complaint must be filed within thirty (30) days of today's date (or such other time as approved by the court), or the dismissals herein shall be deemed to be with prejudice as to any unreserved individual causes of action.
The accompanying Order is entered.
September 30, 1997
JEROME B. SIMANDLE U.S. District Judge
This matter having come before the court upon the defendants' motions to dismiss the consolidated first amended complaint in the first of the above-captioned cases, made pursuant to Fed. R. Civ. P. 12(b)(6); and the court having heard oral argument on the motions; and for the reasons stated in the Opinion of today's date;
IT IS this 30th day of September, 1997 hereby
ORDERED that defendants' motions to dismiss in the first of the above-captioned cases are hereby GRANTED IN PART AND DENIED IN PART, as follows:
1) All claims raised by the plaintiffs owning vehicles which were subject to the recall announced by defendant Ford on April 25, 1996 (that is, "Subclass B," consisting of the plaintiffs listed in footnote 10 in the Opinion accompanying this Order) are DISMISSED WITH PREJUDICE; the remainder of this Order speaks to the claims of the other plaintiffs in this action (namely, plaintiffs who would represent "Subclass A," consisting of owners of the subject vehicles that were not recalled by Ford on April 25, 1996);
2) Plaintiffs' claims brought under state consumer protection statutes (Count 3) are DISMISSED WITHOUT PREJUDICE;
3) Plaintiff Billy Davis's Count 3 claims of violation of Miss. Code Ann. § 75-24-1 are DISMISSED WITH PREJUDICE, insofar as plaintiff Davis seeks to represent others in bringing this claim;
4) Plaintiff James Atkins's and plaintiff Victoria Saxe's Count 3 claims of violation of § 17200 of the California Business Code are DISMISSED WITH PREJUDICE, insofar as these plaintiffs are seeking damages under that statute;
5) Plaintiff James Atkins's and Plaintiff Victoria Saxe's Count 3 claims of violation of § 1770 of the California Civil Code are DISMISSED WITHOUT PREJUDICE;
6) The Count 3 claims of the Louisiana named plaintiffs, made pursuant to La. Rev. Stat. Ann. § 51:1405, are DISMISSED WITH PREJUDICE insofar as those claims seek actual damages and are brought on behalf of others;
7) Plaintiffs' Count 4 breach of contract claims against defendant UTA are DISMISSED WITH PREJUDICE;
8) Plaintiffs' Count 4 breach of express warranty claims against defendant UTA are DISMISSED WITH PREJUDICE;
9) Plaintiffs' Count 4 breach of express warranty claims are DISMISSED WITHOUT PREJUDICE, insofar as they are based upon defendant Ford's promotional material;
10) The Count 4 breach of express warranty claims of plaintiffs Atkins, Davis, and Cordano against defendant Ford are DISMISSED WITHOUT PREJUDICE;
11) The Count 4 breach of express warranty claims of the Louisiana named plaintiffs are deemed claims in redhibition; such claims against defendant UTA are DISMISSED WITH PREJUDICE;
12) The Count 5 strict products liability claims of plaintiff Atkins, plaintiff Saxe, plaintiff Cordano, and plaintiff Davis are DISMISSED WITH PREJUDICE;
13) Plaintiffs' common law fraud claims (Count 2) are DISMISSED WITHOUT PREJUDICE;
14) The Count 6 breach of implied warranty claims of plaintiff Atkins, plaintiff Saxe, plaintiff Cordano, and plaintiff Davis are DISMISSED WITH PREJUDICE;
15) The Count 6 breach of implied warranty claims of the Louisiana named plaintiffs are deemed claims in redhibition; such claims against defendant UTA are DISMISSED WITH PREJUDICE;
16) Plaintiffs' Count 1 claims against defendant Ford Motor Company ("Ford") under the Magnuson Moss Act are DISMISSED WITHOUT PREJUDICE;
17) Plaintiffs' Count 1 claims against defendant United Technologies Automotive ("UTA") under the Magnuson Moss Act are DISMISSED WITH PREJUDICE.
18) Defendants' Motions to dismiss are otherwise denied except as noted above; and
19) With respect only to claims which have been DISMISSED WITHOUT PREJUDICE herein, the "Subclass B" plaintiffs shall file a Second Amended Complaint within thirty (30) days of today's date (or such other period as extended and approved by the court) consistent with the Opinion of today's date; failing same, any claim dismissed herein without prejudice shall upon the passage of this period be deemed dismissed with prejudice.