United States District Court, D. New Jersey
ROBERT GRAY and MARKUM GEORGE, individually and on behalf of a class similarly situated individuals, Plaintiffs,
BMW OF NORTH AMERICA, LLC and BMW AKTIENGESELLSCHAFT, Defendants
[Copyrighted Material Omitted]
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For ROBERT GRAY, individually, and on behalf of a class of similarly situated individuals, Plaintiff: MATTHEW ROSS MENDELSOHN, LEAD ATTORNEY, MAZIE SLATER KATZ & FREEMAN LLC, ROSELAND, NJ.
For Markum George, Plaintiff: MATTHEW ROSS MENDELSOHN, MAZIE SLATER KATZ & FREEMAN LLC, ROSELAND, NJ.
For BMW OF NORTH AMERICA, LLC, Defendant: CHRISTOPHER J. DALTON, ROSEMARY JOAN BRUNO, LEAD ATTORNEYS, BUCHANAN, INGERSOLL & ROONEY, PC, NEWARK, NJ.
WILLIAM J. MARTINI, United States District Judge.
This is a putative class action based on allegations of consumer fraud. Plaintiffs Robert Gray and Markum George filed the Complaint individually and on behalf of a putative class of people who purchased or leased any 2004-2010 model year BMW E64 (6 Series Convertible). Plaintiffs principally allege that Defendants fraudulently failed to disclose that these cars had a known defect that interferes with the proper opening and closing of their convertible tops. (Complaint at ¶ 2) Defendant BMW of North America (" BMW NA" ) filed this motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, to strike the class allegations. Plaintiffs opposed. There was no oral argument. L. Civ. R. 78.1(b). For the reasons set forth below the motion is GRANTED IN PART.
Defendant BMW NA is a corporation organized and in existence under the laws of the State of New Jersey with its headquarters located in Woodcliff Lake, New Jersey. (Complaint at ¶ 41) BMW NA is engaged in the business of importing, marketing, distributing, warranting, servicing, repairing, and selling automobiles throughout the United States. (Complaint at ¶ 41) Co-Defendant BMW Aktiengesellschaft (" BMW AG" ) is a German entity residing in Munich, Germany that manufactures, exports, and warrants motor vehicles. (Complaint at ¶ 41) Plaintiffs allege that Defendants jointly decided in New Jersey not to inform customers or the public about the 6 Series Convertible's defective convertible top. (Complaint at ¶ ¶ 41, 43-44)
Both Plaintiffs are California residents who purchased used BMWs from second-hand
dealers in California. (Complaint at ¶ ¶ 20-21, 31-32) The Complaint specifically addresses three vehicles, one that George purchased, and two that Gray purchased. George bought a used 2005 BMW 645Ci with approximately 50,403 miles on the odometer from Hooman Toyota in Long Beach, California on May 28, 2009. (Complaint at ¶ 32) Gray bought his first vehicle, a used 2005 BMW 645Ci convertible with approximately 28,600 miles on the odometer from Phillips Auto in Newport Beach, California in January 2010. (Complaint at ¶ 21) After experiencing problems with the convertible roof, Gray sold his vehicle back to Phillips Auto, and in October 2011 bought a used 2006 BMW 650i convertible with 46,000 miles on the odometer from Phillips Auto.
All three vehicles originally came with a 4-year/50,000-mile express warranty. ( See Opposition Brief at 30) Plaintiffs concede that the express warranties on their vehicles had expired at the time of purchase, but they note that three other warranties had not expired: a 12-year/unlimited-mile rust performance warranty, an 8-year/80,000-mile emission warranty, and a 7-year/70,000-mile California emission warranty.
A. George's Experience
Shortly after purchasing his vehicle, George noticed that the " top not locked" message appeared while driving, which prevented him from completely opening or closing the convertible top. (Complaint at ¶ 34) George brought the vehicle to BMW of Riverside, which performed a series of tests and repairs at a cost of $280. (Complaint at ¶ 34) The same problem reoccurred several months later, in January 2010. (Complaint at ¶ 35) The message apparently went away on its own, because the Complaint notes that George brought the vehicle back to BMW of Riverside on January 27, 2010 and that the dealer was " unable to duplicate George's complaint after a 25-mile test drive and requested that George return when [his] complaint becomes more consistent for the [dealer] to diagnose." (Complaint at ¶ 35) On February 11, 2010, the " top not locked" light came on again. (Complaint at ¶ 36) The dealer readjusted the convertible sensor. (Complaint at ¶ 36) About three years later, on January 21, 2013, George brought the vehicle to BMW of Riverside again and paid $559 for a replacement convertible sensor. (Complaint at ¶ 37) On February 8, 2013, George took his vehicle back to BMW of Riverside because the convertible top became " stuck closed," which prevented George from closing the rear window. (Complaint at ¶ 38) The dealer replaced the hydraulic lift at a cost of $2,478.
B. Gray's Experience
Several months after Plaintiff Gray purchased his first vehicle, he noticed that the convertible top intermittently would not completely open or close, and that even when the top appeared to be completely opened or closed, the " top not locked" message would appear. (Complaint at ¶ 22) Also, when the top not locked light was on, Gray could not open the trunk. (Complaint at ¶ 22) Irvine BMW told Gray that he would need to replace the entire convertible top at a cost of $5,000. (Complaint at ¶ 23) Instead, Gray had the top replaced with used equipment at AAA Convertible at a cost of $1,087.50. The repair did not fix the problem. (Complaint at ¶ 25) AAA made unspecified repairs at no cost to Gray. (Complaint at ¶ 25) Gray then sold the vehicle back to Phillips Auto. (Complaint at ¶ 25)
In October 2011, Gray bought another vehicle, a 2006 BMW 650i convertible with 46,000 miles on the odometer from Phillips Auto. (Complaint at ¶ 26) Several months
later, he began experiencing the same problems with the convertible top as he did with the 645Ci, namely, incomplete opening and closing of the convertible top, flashing of the top operation light, and appearance of a " top not locked" light even when the top appeared to be completely opened or closed. (Complaint at ¶ 27) In February 2012, he brought the car back to AAA Convertible, which advised that repairs would be $3,000 and might not solve the problem. (Complaint at ¶ 28) Gray chose not to engage in any further repairs and continues to suffer from intermittent problems as a result of the alleged defect. (Complaint at ¶ 28)
C. Plaintiffs' Discovery That They Experienced a " Common Problem"
Gray alleges that AAA Convertible told him that he was experiencing a " common problem" during his visit with his second vehicle. (Complaint at ¶ 28) George alleges that the BMW dealer admitted that he was experiencing a " common problem" during one of his repair visits with the dealership. (Complaint at ¶ 39)
Plaintiffs allege that BMW knew of the defect with the convertible tops of its 6 Series Convertibles via costumer complaints and other internal sources as early as 2004 and yet failed to disclose the defect. (Complaint at ¶ 5) Both Plaintiffs claim that they consulted with BMW dealers before making their purchases and that these dealers assured both Plaintiffs that these models would provide the " ultimate driving experience." (Complaint at ¶ ¶ 30, 33)
Plaintiffs filed a Seven-Count Amended Complaint on October 4, 2013 alleging:
Count 1: Violation of the New Jersey Consumer Fraud Act
Count 2: Common Law Fraud
Count 3: Breach of the Duty of Good Faith and Fair Dealing
Count 4: Unjust Enrichment
Count 5: Violation of California's Consumer Legal Remedies Act
Count 6: Violation of California's Unfair ...