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Greene v. Bmw of North America

United States District Court, Third Circuit

January 7, 2014

DAVID GREENE, Plaintiff,
v.
BMW OF NORTH AMERICA, et al., Defendants.

OPINION

WILLIAM J. MARTINI, District Judge.

This is a putative consumer class action involving tires. Plaintiff David Greene alleges that the Potenza Run Flat Tires in his leased BMW 335i convertible (the "335i") provided Greene with an unreliable and dangerous ride. Now before the Court are two motions. First, Bridgestone Americas Tire Operations LLC ("Bridgestone") and BMW of North America, LLC ("BMW") (together "Defendants") move, respectively, pursuant to Federal Rule of Civil Procedure 12(b)(6) and Federal Rule of Civil Procedure 12(c) to dismiss the class allegations in Greene's Second Amended Complaint. Second, BMW (but not Bridgestone) moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Count IV of Greene's Second Amended Complaint, which asserts a violation of the New Jersey Consumer Fraud Act. There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendants' motions are DENIED.

I. BACKGROUND

Greene alleges as follows: On March 17, 2010, Greene leased a 2010 BMW 335i convertible from Paul Miller BMW. Second Amended Complaint ("SAC") ¶ 25, ECF No. 53. The 335i was equipped with Bridgestone Potenza Run Flat Tires ("Run Flats" or "the Tires"). Id. ¶¶ 1, 26-27. Months after he entered into his lease, Greene noticed bubbles in the sidewalls of three of his tires. Id. ¶ 27. Greene alleges, upon information and belief, that BMW "knew with certainty that the Tires would fail." Id. ¶ 26.

On July, 20, 2011, Greene filed a six-count putative class action Complaint against Defendants.[1] ECF No. 1. Defendants moved to dismiss all claims and to strike the class allegations. ECF Nos. 14, 19. On November 28, 2012, the Court ruled on all four motions. The Court dismissed some counts of the Complaint with prejudice, and the Court dismissed other counts without prejudice. Greene v. BMW of North America (" Greene I "), No. 11-4220, 2012 WL 5986457, at **2-5 (D.N.J. Nov. 28, 2012); Greene v. BMW of North America (" Greene II "), No. 11-4220, 2012 WL 5986461, at **4-7 (D.N.J. Nov. 28, 2012). Next, the Court denied the motions to strike on mootness grounds. Greene I, 2012 WL 5986457, at *5; Greene II, 2012 WL 5986461 at *7.

On December 28, 2012, Greene filed a putative class action First Amended Complaint ("FAC"). ECF No. 38. According to the first paragraph of the FAC, Greene sought to certify

a nationwide class and New Jersey Sub-Class... of consumers who purchased or leased a 2009, 2010, 2011 and 2012 BMW vehicles (the "Vehicles") that came equipped with Bridgestone Potenza run-flat tires (the "Tires") and whose tires had to be prematurely replaced as a result of their significantly reduced useful life as compared with other similar run-flat tire brands.

FAC ¶ 1 (emphasis added). According to the "Class Allegations" section of the FAC, Greene sought to certify a nationwide class composed of

All citizens of the United States who are current and former owners and/or lessees of 2009, 2010, 2011 or 2012 BMW vehicles that were factoryequipped with Bridgestone Potenza run-flat tires and were purchased and/or leased from an authorized BMW dealership in the United States (including persons and business entities) between 2008 and 2012.

FAC ¶ 56. According to the "Class Allegations" section of the FAC, Greene also sought to certify a similarly constituted New Jersey sub-class.

On February 11, 2013, Defendants moved to dismiss all claims in the FAC, and also to strike the FAC's class allegations. ECF Nos. 42, 43. The Court granted the motions to dismiss in part. Greene v. BMW of North America (" Greene III "), No. 11-4220, 2013 WL 5287314, at **2-6 (D.N.J. Sept. 17, 2013). Of note for present purposes, the Court dismissed Greene's New Jersey Consumer Fraud Act ("NJCFA") claim against BMW without prejudice because Greene failed to allege that BMW knew with certainty that the Tires would fail. Id. at *5. Finally, the Court denied the motion to strike the class allegations as premature. Id. at *7.

On October 8, 2013, Greene filed a putative class action Second Amended Complaint, or "SAC." According to the first paragraph of the SAC, Greene sought to bring class action claims

on behalf of a nationwide class and New Jersey Sub-Class...of consumers who purchased or leased a 2009, 2010, 2011 and 2012 BMW vehicles (the "Vehicles") that came equipped with Bridgestone Potenza run-flat tires (the "Tires") and whose tires had to be replaced after going flat.

SAC ¶ 1 (emphasis added). According to the "Class Allegations" section of the SAC, Greene sought to certify a nationwide class and a New Jersey subclass identical to the classes described in the ...


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