Opinion
Case No. 8:20-cv-00890-FLA (ADSx)
2024-01-03
Lorenzo FORD, et al., Plaintiffs, v. HYUNDAI MOTOR AMERICA, et al., Defendants.
William Anthony Baird, Baird Law Firm APC, Westlake Village, CA, Charles E. Schaffer, Pro Hac Vice, Daniel C. Levin, Pro Hac Vice, Levin Sedran and Berman LLP, Philadelphia, PA, Jason S. Rathod, Pro Hac Vice, Nicholas A. Migliaccio, Pro Hac Vice, Migliaccio and Rathod LLP, Washington, DC, Matthew Alexander Smith, Migliaccio and Rathod LLP, San Francisco, CA, for Plaintiffs Lorenzo Ford, Tina Forehand. William Anthony Baird, Baird Law Firm APC, Westlake Village, CA, Daniel C. Levin, Pro Hac Vice, Levin Sedran and Berman LLP, Philadelphia, PA, Matthew Alexander Smith, Migliaccio and Rathod LLP, San Francisco, CA, Nicholas A. Migliaccio, Pro Hac Vice, Migliaccio and Rathod LLP, Washington, DC, for Plaintiffs Dorsey Bennett, Michelle Clinkscales, Jason Deutsch, Alicia Duenas, Iveeth Fierros, Spencer Fuller, Angela Hamilton, Lily Jones, Audrey May, Ramon Meza, Ronald Padgett, Patrick Sandys, Sara Smith, Saskia Thomson, Brian Vardaro, Elliott Willis. William Anthony Baird, Baird Law Firm APC, Westlake Village, CA, Daniel C. Levin, Pro Hac Vice, Levin Sedran and Berman LLP, Philadelphia, PA, Jason S. Rathod, Pro Hac Vice, Nicholas A. Migliaccio, Pro Hac Vice, Migliaccio and Rathod LLP, Washington, DC, Matthew Alexander Smith, Migliaccio and Rathod LLP, San Francisco, CA, for Plaintiffs Jason Bohl, Elgin Guthrie, Michael Heid, Steve Rudenko. Robert J. Herrington, Michael Elliot McCarthy, Greenberg Traurig LLP, Los Angeles, CA, for Defendants.
William Anthony Baird, Baird Law Firm APC, Westlake Village, CA, Charles E. Schaffer, Pro Hac Vice, Daniel C. Levin, Pro Hac Vice, Levin Sedran and Berman LLP, Philadelphia, PA, Jason S. Rathod, Pro Hac Vice, Nicholas A. Migliaccio, Pro Hac Vice, Migliaccio and Rathod LLP, Washington, DC, Matthew Alexander Smith, Migliaccio and Rathod LLP, San Francisco, CA, for Plaintiffs Lorenzo Ford, Tina Forehand. William Anthony Baird, Baird Law Firm APC, Westlake Village, CA, Daniel C. Levin, Pro Hac Vice, Levin Sedran and Berman LLP, Philadelphia, PA, Matthew Alexander Smith, Migliaccio and Rathod LLP, San Francisco, CA, Nicholas A. Migliaccio, Pro Hac Vice, Migliaccio and Rathod LLP, Washington, DC, for Plaintiffs Dorsey Bennett, Michelle Clinkscales, Jason Deutsch, Alicia Duenas, Iveeth Fierros, Spencer Fuller, Angela Hamilton, Lily Jones, Audrey May, Ramon Meza, Ronald Padgett, Patrick Sandys, Sara Smith, Saskia Thomson, Brian Vardaro, Elliott Willis.
William Anthony Baird, Baird Law Firm APC, Westlake Village, CA, Daniel C. Levin, Pro Hac Vice, Levin Sedran and Berman LLP, Philadelphia, PA, Jason S. Rathod, Pro Hac Vice, Nicholas A. Migliaccio, Pro Hac Vice, Migliaccio and Rathod LLP, Washington, DC, Matthew Alexander Smith, Migliaccio and Rathod LLP, San Francisco, CA, for Plaintiffs Jason Bohl, Elgin Guthrie, Michael Heid, Steve Rudenko.
Robert J. Herrington, Michael Elliot McCarthy, Greenberg Traurig LLP, Los Angeles, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS HYUNDAI MOTOR AMERICA AND HYUNDAI MOTOR COMPANY'S MOTION TO DISMISS SECOND AMENDED COMPLAINT [DKT. 66]
FERNANDO L. AENLLE-ROCHA, United States District Judge.
RULING
Before the court is Defendants Hyundai Motor America ("HMA") and Hyundai Motor Company's ("HMC") (collectively, "Hyundai" or "Defendants") Motion to Dismiss ("Motion") the Second Amended Class Action Complaint ("SAC"). Dkt. 66 ("Mot."). Plaintiffs Dorsey Bennett ("Bennett"), Jason Bohl ("Bohl"), Michelle Clinkscales ("Clinkscales"), Jason Deutsch ("Deutsch"), Lorenzo Ford ("Ford"), Tina Forehand ("Forehand"), Spencer Fuller ("Fuller"), Elgin Guthrie ("Guthrie"), Angela Hamilton ("Hamilton"), Michael Heid ("Heid"), Audrey May ("May"), Ramon Meza ("Meza"), Ronald Padgett ("Padgett"), Steve Rudenko ("Rudenko"), Patrick Sandys ("Sandys"), Sara Smith ("Smith"), Saskia Thomson ("Thomson"), Brian Vardaro ("Vardaro"), and Eliott Willis ("Willis") (collectively "Plaintiffs") oppose the Motion. Dkt. 68 ("Opp'n"). On March 10, 2022, the court found these matters appropriate for resolution without oral argument and vacated the hearing set for March 18, 2022. Dkt. 70; see Fed. R. Civ. P. 78(b); Local Rule 7-15.
The court cites documents by the page numbers added by the court's CM/ECF system, rather than any page numbers listed natively.
For the reasons stated herein, the court GRANTS in part and DENIES in part Defendants' Motion (Dkt. 66) as follows:
1. The court DISMISSES without leave to amend:
a. the first, second, seventh, thirteenth, and fourteenth causes of action in their entirety;
b. the third cause of action for breach of the implied warranty of merchantability with respect to Plaintiffs Bennett (Florida), Clinkscales (Alabama), Ford (Illinois), Forehand (Washington), May (Iowa), Meza (Utah), Padgett (Alabama), Sandys (Virginia), Thomson (Oregon), and Willis (New York);
c. the fraudulent misrepresentation basis for the fourth and sixth through twenty-third causes of action;
d. the fraudulent omission basis for the fourth cause of action as to Plaintiffs Ford (Illinois), Meza (Utah), Rudenko (Texas), and Thomson (Oregon), and the nineteenth through twenty-first causes of action;
e. the fourth cause of action as to Plaintiffs Bennett (Florida) and Guthrie (Maryland), as barred by the economic loss rule; and
f. Plaintiff Padgett's representative/class claims in the sixth cause of action for violations of the Alabama DTPA.
2. The court STRIKES Plaintiff Bohl's request for actual and punitive damages from the fifteenth cause of action without leave to amend.
3. The Motion is otherwise DENIED.
Defendants request the court take judicial notice of or find incorporated by reference certain documents submitted in support of the Motion. Dkts. 67, 67-1. Plaintiffs do not oppose the request. See Dkt. 68. The court GRANTS in part Defendants' request as to Exhibits 1 through 6. See Fed. R. Evid. 201(b); Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018). The request is DENIED in part as to Exhibits 7 through 10, as they are not properly the subject of judicial notice or incorporation by reference.
BACKGROUND
Plaintiffs Ford and Forehand filed the Complaint on May 12, 2020. Dkt. 1. On August 12, 2020, the parties filed a stipulation (Dkt. 35) requesting the court allow Plaintiffs to file a First Amended Complaint ("FAC") adding additional Plaintiffs and claims, which the court approved that same date (Dkt. 36). On September 30, 2020, Plaintiffs Bennett, Clinkscales, Deutsch, Ford, Forehand, Fuller, Hamilton, May, Meza, Padgett, Sandys, Smith, Thomson, Vardaro, and Willis filed the FAC, asserting 21 causes of action against Defendants for breach of express warranty, breach of implied warranty of merchantability, common law fraud, unjust enrichment, and violations of the consumer protection laws of Alabama, Colorado, Florida, Illinois, Kansas, Massachusetts, Mississippi, New Mexico, New York, Oregon, Utah, Virginia, and Washington. Dkt. 37 ("FAC"). Former Plaintiffs Alicia Duenas ("Duenas"), Iveeth Fierros ("Fierros"), and Lily Jones ("Jones") (collectively, the "California Plaintiffs") were also parties to the FAC and asserted claims on behalf of a proposed California subclass. Id.
In the FAC, Plaintiffs alleged Defendants manufactured, marketed, distributed, and sold 2020 Hyundai Palisade vehicles (the "2020 Palisades" or "Class Vehicles") without disclosing to purchasers and lessees that their windshields may crack, chip, and otherwise break spontaneously or without reasonable explanation (the "Defect"). FAC ¶ 1. On October 5, 2021, the court issued an Order ("October 5, 2021 Order"), inter alia, (1) granting Defendants' Motion to Compel Arbitration of the California Plaintiffs' claims (Dkt. 38), and (2) granting in part and denying in part Defendants' Motion to Dismiss the FAC (Dkt. 40), with leave to amend as to the non-California Plaintiffs. Dkt. 62 ("10/5/21 Order").
On December 3, 2021, Plaintiffs filed the Second Amended Complaint ("SAC") adding: (1) Plaintiffs Bohl, Guthrie, Heid, and Rudenko as Plaintiffs; (2) claims for
breach of the covenant of good faith and fair dealing and violations of the consumer protection laws of Nebraska, Nevada, Maryland, and Texas; and (3) 2021 Hyundai Palisade vehicles ("2021 Palisades") to the definition of Class Vehicles. See SAC. The SAC identifies subclasses for "[a]ll persons or entities" in Alabama, Colorado, Florida, Illinois, Iowa, Kansas, Maryland, Massachusetts, Mississippi, Nebraska, Nevada, New Mexico, New York, Oregon, Texas, Utah, Virginia, and Washington, "who are current or former owners and/or lessees of a Class Vehicle . . . ." Id. ¶ 247. The putative classes exclude Defendants; their affiliates; their current and former employees, officers, and directors; and the Judge assigned to this action. Id. ¶ 249.
Plaintiffs neither requested nor were granted leave to add these new Plaintiffs, allegations, or claims. Nevertheless, as the court has not issued a scheduling order and Defendants did not request the court strike these additional Plaintiffs, claims, and allegations, the court will exercise its discretion to allow the amendment.
In the SAC, Plaintiffs allege twenty-three (23) causes of action for:
(1) breach of express warranty by all Plaintiffs;
(2) breach of the covenant of good faith and fair dealing by all Plaintiffs;
(3) breach of the implied warranty of merchantability by all Plaintiffs;
(4) common law fraud by all Plaintiffs;
(5) unjust enrichment by all Plaintiffs;
(6) violations of the Alabama Deceptive Trade Practices Act (the "Alabama DTPA") by Plaintiffs Padgett and Clinkscales (the "Alabama Plaintiffs") individually and on behalf of the Alabama Subclass;
(7) violation of the Colorado Consumer Protection Act (the "Colorado CPA") by Plaintiff Fuller (the "Colorado Plaintiff") on behalf of the Colorado Subclass;
(8) violations of the Florida Unfair & Deceptive Trade Practices Act (the "Florida UDTPA") by Plaintiff Bennett individually and on behalf of the Florida Subclass;
(9) violations of the Illinois Consumer Fraud and Deceptive Business Practices Act ("Illinois CFDBPA") by Plaintiff Ford individually and on behalf of the Illinois Subclass;
(10) violations of the Kansas Consumer Protection Act (the "Kansas CPA") by Plaintiff Deutsch individually and on behalf of the Kansas Subclass;
(11) violations of the Maryland Consumer Protection Act (the "Maryland CPA") by Plaintiff Guthrie individually and on behalf of the Maryland Subclass;
(12) violations of the Massachusetts Consumer Protection Law (the "Massachusetts CPL") by Plaintiff Vardaro individually and on behalf of the Massachusetts Subclass;
(13) violations of the Mississippi Consumer Protection Act (the "Mississippi CPA") by Plaintiff Smith individually and on behalf of the Mississippi Subclass;
(14) violations of the Nebraska Consumer Protection Act (the "Nebraska CPA") by Plaintiff Bohl individually and on behalf of the Nebraska Subclass;
(15) violations of the Nebraska Deceptive Trade Practices Act (the "Nebraska DTPA") by Plaintiff Bohl individually and on behalf of the Nebraska Subclass;
(16) violations of the Nevada Trade Regulation and Practices Act (the "Nevada TRPA") by Plaintiff Heid individually and on behalf of the Nevada Subclass;
(17) violations of the New Mexico Unfair Practices Act (the "New Mexico UPA") by Plaintiff Hamilton individually and on behalf of the New Mexico Subclass;
(18) violations of New York General Business Law § 349 ("New York GBL § 349") by Plaintiff Willis individually and on behalf of the New York Subclass;
(19) violations of the Oregon Unlawful Trade Practices Act (the "Oregon UTPA") by Plaintiff Thomson individually and on behalf of the Oregon Subclass;
(20) violations of the Texas Deceptive Trade Practices Act-Consumer Protection Act (the Texas "DTPA") by Plaintiff Rudenko individually and on behalf of the Texas Subclass
(21) violations of the Utah Consumer Sales Practices Act (the "Utah CSPA") by Plaintiff Meza individually and on behalf of the Utah Subclass;
(22) violations of the Virginia Consumer Protection Act (the "Virginia CPA") by Plaintiff Sandys individually and on behalf of the Virginia Subclass; and
(23) violations of the Washington Consumer Protection Act (the "Washington CPA") by Plaintiff Forehand individually and on behalf of the Washington Subclass.
DISCUSSION
I. Legal Standard
Under Fed. R. Civ. P. 12(b)(6), a party may file a motion to dismiss a complaint for "failure to state a claim upon which relief can be granted." The purpose of Rule 12(b)(6) is to enable defendants to challenge the legal sufficiency of the claims asserted in the complaint. Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). A district court properly dismisses a claim under Rule 12(b)(6) if the complaint fails to allege sufficient facts "to state a cognizable legal theory." Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016). "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true. . . ." Id. (internal citations omitted). "Determining whether a complaint states a plausible claim for relief is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).
When evaluating a complaint under Rule 12(b)(6), the court "must accept all well-pleaded material facts as true and draw all
reasonable inferences in favor of the [nonmoving party]." Caltex, 824 F.3d at 1159; Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) ("We accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party."). Legal conclusions, however, "are not entitled to the assumption of truth" and "must be supported by factual allegations." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. A court must normally convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it considers evidence outside the pleadings. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003). "A court may, however, consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment." Id. at 908.
II. Discussion
A. Existence of a Defect
In the October 5, 2021 Order, the court denied in part Defendants' Motion to Dismiss the FAC finding Plaintiffs had stated sufficient facts to plead the existence of a design defect. 10/5/21 Order at 2-21. The court noted specifically certain Plaintiffs had alleged their vehicles experienced cracks that appeared on the windshields when hit by small pebbles or nuts or for no discernable reasons, and that the cracks grew or spiderwebbed beyond what would be expected for such an impact. Id. at 21. The court also noted former Plaintiff Jones alleged she was informed by a windshield repairman that the crack in her vehicle's windshield "was caused by frame pressure on the windshield, based on his observation that the crack did not penetrate the windshield, indicating that it was not caused by an impact." Id. (citing FAC ¶ 96).
In the subject Motion, Defendants contend all claims asserted in the SAC fail because Plaintiffs removed and omitted from the SAC descriptions of the Plaintiffs' experiences and allegations that the Class Vehicles' windshields may crack due to frame pressure. Mot. at 25-26. According to Defendants, absent these descriptions and allegations, "the SAC now consists solely of internally inconsistent conclusions that underscore the speculative nature of the claims." Id. at 26. Plaintiffs respond that the court has already held they stated sufficient facts "to plead the Class Vehicle suffers from a defect which may cause its windshield to 'crack either spontaneously or due to a mild impact that should not result in cracking,' possibly as a result of frame pressure the vehicle places on the windshield." Opp'n at 14 (quoting 10/5/21 Order at 21). Plaintiffs state they removed the allegations in question from the SAC because the California Plaintiffs' claims were compelled to arbitration, but argue that their claims regarding the Defect and a possible cause therefor — frame pressure the vehicle exerts on the windshield glass — remain unchanged and are laid out in the SAC and attached exhibits. Id. at 17 n. 3.
"In the context of product defect claims, district courts in the Ninth Circuit have often held that a complaint provides fair notice of the defect if it (1) identifies the particular part or system affected by the defect, and (2) describes the problems allegedly caused by the defect." Clark v. Am. Honda Motor Co., 528 F. Supp. 3d 1108, 1115 (C.D. Cal. 2021). As Defendants recognize, the court held previously that Plaintiffs stated sufficient facts to plead the existence of a design defect. 10/5/21 Order at 21; see also Mot. at 25. Viewing the allegations of the SAC in context with
the attached exhibits and in the light most favorable to Plaintiffs, the court finds Plaintiffs plead sufficient facts to provide Defendants with fair notice of the defect alleged. See Clark, 528 F. Supp. 3d at 1115. The court, therefore, DENIES in part the Motion on this basis.
B. The 2021 Palisades
Defendants contend Plaintiffs lack standing to assert claims regarding the 2021 Palisades, because no Plaintiff alleges he or she purchased or leased these vehicles. Mot. at 26-27. Plaintiffs respond they have standing to assert class claims related to the 2021 Palisades because they have pleaded adequately the 2020 and 2021 Palisades are "substantially similar" models of the same product that suffer from the same defect. Opp'n at 19.
"District courts within the Ninth Circuit are split as to whether named plaintiffs may represent class members who did not buy the same product as they did; some courts apply the 'substantial similarity' approach, while others have rejected that approach." Tappana v. Am. Honda Motor Co., 609 F. Supp. 3d 1078, 1085 (C.D. Cal. 2022). Some federal courts have held plaintiffs lack standing to assert such claims as a matter of law, e.g., Zakikhan v. Hyundai Motor Co., Case No. 8:20-cv-01584-SB (JDEx), 2021 WL 4805454, at *5 (C.D. Cal. June 28, 2021), whereas other courts have held the standing inquiry is more appropriately resolved on a motion for class certification, as long as sufficient facts are plausibly pleaded to establish the additional products were substantially similar to those purchased by the plaintiffs, e.g., Tappana, 609 F. Supp. 3d at 1085. This court agrees with the courts that have held standing is more appropriately resolved at the class certification stage if sufficiently pleaded.
The SAC alleges 2021 Palisades are the next model year of 2020 Palisades and experience the exact same defect, and that this is demonstrated by numerous consumer complaints filed with the National Highway Traffic Safety Administration ("NHTSA"). SAC ¶¶ 201, 209. At this stage of the proceedings, these allegations are sufficient for Plaintiffs to plead plausibly that the 2020 and 2021 Palisades are substantially similar and establish standing to assert class claims for the 2021 Palisades. See Tappana, 609 F. Supp. 3d at 1085. The court, therefore, DENIES in part the Motion on this basis and reserves the final determination of this issue for a later stage of the proceedings.
C. First Cause of Action for Breach of Express Warranty
"A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty. Accordingly, the 'requirements' imposed by an express warranty claim are not 'imposed under State law,' but rather imposed by the warrantor." Cipollone v. Liggett Grp., 505 U.S. 504, 525, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (emphasis in original). In the October 5, 2021 Order, the court dismissed Plaintiffs' first cause of action for breach of express warranty with leave to amend after holding Plaintiffs failed to plead sufficiently the existence of a defect "in material or workmanship," as required for coverage under the warranties Plaintiffs asserted as the basis for this claim. 10/5/21 Order at 22.
Defendants argue the first cause of action should be dismissed because Plaintiffs reassert the same allegations the court previously found deficient. Mot. at 29. Plaintiffs respond it would be premature to dismiss their claims at this stage because they have pleaded specifically that the Defect is one of material or workmanship.
Opp'n at 21-22 (citing SAC ¶ 267). According to Plaintiffs, they have not pleaded the cause of the Defect specifically because they have limited ability to ascertain the precise nature of the Defect without investigation. Id. at 21. Plaintiffs reassert the same arguments the court previously found insufficient in connection with the FAC. Compare id. at 21-22 with Dkt. 49 at 25-26 (arguing same).
"A manufacturing defect occurs when one unit in a product line is defective, whereas a design defect occurs when the specific unit conforms to the intended design but the intended design itself is defective." Davidson v. Apple, Inc., Case No. 5:16-cv-04942-LHK, 2017 WL 3149305, at *21 (N.D. Cal. July 25, 2017) (internal quotation marks omitted). As Plaintiffs continue to assert claims on behalf of a purported class of all purchasers of the Class Vehicles and allege "the Class Vehicles all contain the same type of windshields, and the Defect is inherent in each Class Vehicle and was present at the time of sale," SAC ¶ 12, Plaintiffs plead the existence of a design defect only — not a manufacturing defect. See Troup v. Toyota Motor Co., 545 Fed. App'x 668, 668-69 (9th Cir. 2013) (affirming dismissal of breach of express warranty claims, as the gravamen of the complaint was that the defect resulted from a design decision and plaintiffs failed to adequately allege a defect in materials or workmanship).
As discussed in greater detail in the October 5, 2021 Order, Plaintiffs do not state sufficient facts to plead the existence of a manufacturing defect. 10/5/21 Order at 23-25. While the SAC states the windshields of Plaintiffs' vehicles "cracked because [they] suffer[ed] from a defect in material or workmanship," e.g., SAC ¶ 33, these assertions are legal conclusions couched as factual allegations that the court is not bound to accept as true on the subject Motion. See Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937. Accordingly, the court GRANTS in part the Motion and DISMISSES the first cause of action for breach of express warranty. Having granted the Motion on this basis, the court need not address the parties' remaining arguments on this issue.
"Leave to amend may be denied if a court determines that 'allegations of other facts consistent with the challenged pleading could not possibly cure the deficiency" or "for repeated failure to cure deficiencies by previous amendment." Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008). As Plaintiffs failed to cure the identified deficiency despite having been granted leave to amend, the court DENIES further leave to amend the first cause of action.
D. Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing
Plaintiffs' newly asserted second cause of action alleges "Hyundai violated the covenant of good faith and fair dealing inherent to all contracts, including the vehicles' warranty policy, by failing to reasonably assess whether the customer complaints were a result of spontaneous cracking or other natural elements that impacted the windshield and denying customers' warranty claims and uniformly classifying the cracks as environmental damage." SAC ¶ 277. Plaintiffs' breach of the covenant of good faith and fair dealing claim relies and is dependent upon Plaintiffs' contentions that the Class Vehicles suffered from a manufacturing defect and were covered by Defendants' express warranties for the vehicles. Having dismissed the first cause of action for Plaintiffs' failure to allege sufficient facts to plead a manufacturing defect, the court likewise GRANTS in part the Motion and DISMISSES
the second cause of action without leave to amend.
E. Third Cause of Action for Breach of Implied Warranty of Merchantability
The court previously dismissed Plaintiffs' claim for breach of implied warranty of merchantability as to Plaintiffs Bennett (Florida), Clinkscales (Alabama), Ford (Illinois), Forehand (Washington), May (Iowa), Meza (Utah), Padgett (Alabama), Sandys (Virginia), Thomson (Oregon), and Willis (New York), for failure to plead privity with Hyundai as required under the applicable state laws. 10/5/21 Order at 29-33. Defendants' Motion to Dismiss the FAC was otherwise denied as to this claim. Id. at 33. Defendants now move to dismiss the third cause of action as to these ten Plaintiffs on the grounds that they have not pleaded additional facts to establish privity. Mot. at 33-34, citing SAC ¶¶ 27, 44, 62, 70, 111, 119, 128, 144, 160, 177. Plaintiffs do not address these arguments in their opposition. See generally Opp'n; see also Dkt. 69 ("Reply") at 8.
Plaintiffs' breach of the implied warranty of merchantability claim was the second cause of action in the FAC.
A party's failure to address an argument challenging the validity of a claim may be deemed waiver or abandonment of that claim. Ramirez v. Ghilotti Bros., Inc., 941 F. Supp. 2d 1197, 1210 n. 7 (N.D. Cal. 2013) (collecting cases). A court may also dismiss a claim without leave to amend where plaintiffs have been previously given the opportunity to cure identified defects and failed to do so. Abagninin, 545 F.3d at 742. Here, Plaintiffs failed to plead additional facts to establish privity, despite the court's prior grant of leave to amend. See SAC ¶¶ 27, 44, 62, 70, 111, 119, 128, 144, 160, 177. The court, therefore, GRANTS in part the Motion and DISMISSES without leave to amend the third cause of action for breach of the implied warranty of merchantability as to Plaintiffs Bennett (Florida), Clinkscales (Alabama), Ford (Illinois), Forehand (Washington), May (Iowa), Meza (Utah), Padgett (Alabama), Sandys (Virginia), Thomson (Oregon), and Willis (New York).
F. Request for Injunctive Relief
"A plaintiff must demonstrate constitutional standing separately for each form of relief requested." Davidson v. Kimberly-Clark Corporation, 889 F.3d 956, 967 (9th Cir. 2018) (citing Friends of the Earth, Inc. v. Laidlaw Env't. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). "For injunctive relief, which is a prospective remedy, the threat of injury must be 'actual and imminent, not conjectural or hypothetical.'" Id. (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)). "Where standing is premised entirely on the threat of repeated injury, a plaintiff must show 'a sufficient likelihood that he [or she] will again be wronged in a similar way.'" Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). In the SAC, Plaintiffs request the court:
Grant appropriate injunctive and/or declaratory relief, including, without limitation, an order that requires Defendants[] to repair, recall, and/or replace the Class Vehicles . . . or, at a minimum, to provide Plaintiffs and Class members with appropriate curative notice regarding the existence and cause of the design defect[.]
SAC at 162, Prayer ¶ E.
Defendants argue Plaintiffs cannot obtain injunctive relief because they
allege only past harm and do not allege any concrete, imminent threat of future harm to themselves, personally, because they do not allege any intent to purchase a Class Vehicle in the future. Mot. at 27-28. The court disagrees.
As stated, Plaintiffs state sufficient facts to plead the Class Vehicles suffer from a design defect that may cause their windshields to crack either spontaneously or due to a mild impact that should not result in cracking, possibly due to frame pressure on the windshields. These allegations are sufficient to establish Plaintiffs may suffer a concrete and imminent threat of future injury in the form of future cracks in the windshields of their existing vehicles, unless Defendants repair, recall, and/or replace their vehicles. The court, therefore, DENIES in part the Motion on this basis.
G. Fourth Cause of Action for Fraud and Statutory Consumer Protection Claims Based on Fraud
Defendants argue: (1) Plaintiffs' fraud and consumer protection claims based on misrepresentation are not pleaded with particularity, as required by Fed. R. Civ. P. 9(b) ("Rule 9(b)"); (2) Plaintiffs Ford (Illinois), Meza (Utah), Rudenko (Texas), and Thomson's (Oregon) fraud and consumer protection claims based on omission are deficient because Hyundai had no duty to disclose under the laws of these Plaintiffs' home states; and (3) Plaintiffs Bennett (Florida) and Guthrie's (Maryland) common law fraud claims are barred by the economic loss rule under Florida and Maryland law. Mot. at 34-38. The court addresses each argument in turn below.
1. Sufficiency of Plaintiffs' Misrepresentation Claims
A party alleging fraud "must state with particularity the circumstances constituting fraud. . . ." Fed. R. Civ. P. 9(b). While "a complaint generally must satisfy the minimal notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2),. . . where a complaint includes allegations of fraud, Federal Rule of Civil Procedure 9(b) requires more specificity including an account of the 'time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.'" Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). "[A]llegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Id. (quotation marks omitted). As this court observed previously, "[b]ecause the gravamen of Plaintiffs' statutory claims is grounded in fraud, these claims as a whole must meet the particularity requirements of Rule 9(b)." 10/5/21 Order at 37.
In the October 5, 2021 Order, the court found Plaintiffs failed to plead their misrepresentation-based fraud and statutory consumer protection claims with the specificity required by Rule 9(b), and dismissed these claims with leave to amend. 10/5/21 Order at 38-40. Defendants contend Plaintiffs have not corrected this defect in the SAC and move again to dismiss these claims for failure to satisfy the particularity requirements of Rule 9(b). Mot. at 34-36. Plaintiffs acknowledge the court dismissed these claims with leave to amend and state they "continue to plead these claims to preserve these issues on appeal and in accordance with their duties to advocate for the Class." Opp'n at 26. As Plaintiffs do not identify or plead any additional specific facts regarding misrepresentations by Defendants, the court GRANTS in part the Motion and DISMISSES without leave to amend the affirmative misrepresentation basis for the fourth and sixth
through twenty-third causes of action, for the reasons stated. See 10/5/21 Order at 38-40.
2. Plaintiffs Ford, Meza, Rudenko, and Thomson's Fraudulent Omission Claims
Defendants next contend Plaintiffs Ford (Illinois), Meza (Utah), Rudenko (Texas), and Thomson's (Oregon) fraudulent omission claims fail because Hyundai did not have a duty to disclose under the laws of these Plaintiffs' home states. Mot. at 37. According to Defendants, a duty to disclose arises under Illinois, Utah, Texas, and Oregon law only if a plaintiff and a defendant were in a confidential, special, or fiduciary relationship or if the plaintiff can establish actual reliance on a misleading half-truth. Id. at 37 & nn. 22-23 (citing, e.g., Sonneveldt v. Mazda Motor of Am., Inc., No. 8:19-cv-01298-JLS (KESx), 2021 WL 4813753, at *6-7 (C.D. Cal. July 29, 2021) (applying Connick v. Suzuki Motor Co., 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584, 593 (1996)); Copeland v. Albion Lab'ys, Inc., Case No. 2:15-00585-MJP, 2015 WL 7292595, at *5 (W.D. Wash. Nov. 16, 2015) (citing First Sec. Bank of Utah N.A. v. Banberry Dev. Corp., 786 P.2d 1326, 1330-32 (Utah 1990)); Peguero v. Toyota Motor Sales, USA, Inc., Case No. 2:20-cv-05889-VAP (ADSx), 2020 WL 10354127, at *12 (C.D. Cal. Nov. 18, 2020); Martell v. Gen. Motors LLC, 492 F. Supp. 3d 1131, 1143 (D. Or. 2020)). Defendants contend these claims fail because Plaintiffs do not plead facts to show the existence of a fiduciary or special relationship between the parties or actual reliance by these Plaintiffs on a specific half-truth. Mot. at 37-38.
Plaintiff Rudenko acknowledges the duty to disclose is limited under Texas law and concedes his omission-based claims lack merit. Opp'n at 27 n. 7. The court, therefore, DISMISSES this portion of the fourth and twentieth causes of action without leave to amend.
Plaintiff Ford cites cases including Lessin v. Ford Motor Co., Case No. 3:19cv-01082-AJB-AHG, 2021 WL 3810584, at *12 (S.D. Cal. Aug. 25, 2021), and Connick, 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d at 595, to argue automobile manufacturers owe consumers a duty to disclose safety defects under Illinois law. Opp'n at 27-28 & n. 8. In Connick, 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d at 593-94, the plaintiffs alleged a defendant manufacturer committed fraud and violated the Illinois Consumer Fraud Act by failing to disclose its knowledge of a motor vehicle's safety risks. The Illinois Supreme Court held the plaintiffs "failed to state a claim for common law fraudulent concealment because they failed to adequately allege that [the defendant] had a duty to disclose its knowledge of [the vehicle's] safety risks," id., 221 Ill.Dec. 389, 675 N.E.2d at 593, but "adequately pled a consumer fraud violation based on a material omission" as "it is unnecessary to plead a common law duty to disclose in order to state a valid claim of consumer fraud based on an omission or concealment," id. 221 Ill.Dec. 389, 675 N.E.2d at 595.
Pursuant to Connick, the court finds Plaintiff Ford has failed to plead sufficient facts to state a valid claim for common law fraudulent concealment or omission, but has stated a claim under the Illinois CFDBPA. See SAC ¶¶ 208, 218-19, 370. Accordingly, the court GRANTS in part the Motion as to the fraudulent omission basis for the fourth cause of action as to Ford, without leave to amend, and DENIES in part the Motion as to this basis for the ninth cause of action for violation of the Illinois CFDBPA. Plaintiffs Thomson and Meza argue they have adequately pleaded a duty to disclose under Oregon and Utah law because they "alleged that they relied on Hyundai's representations about the Class Vehicles and that they would have behaved differently if they had known about the defect at numerous points throughout the SAC." Opp'n at 29 (citing SAC ¶¶ 161, 167). The court disagrees. As stated, Plaintiffs did not plead in the SAC or identify any specific misrepresentations or half-truths by Defendants on which they relied. See Opp'n at 19; SAC ¶¶ 118-20 (Meza), 159-61 (Thomson). These Plaintiffs' assertions that they "relied on ... representations about the various features of the vehicle, none of which disclosed the Defect," are insufficient to establish a duty to disclose based on actual reliance on a specific half-truth. See SAC ¶¶ 120, 161. As these Plaintiffs do not identify any other basis for a duty to disclose under Utah or Oregon law, the court GRANTS in part the Motion as to the fraudulent omission basis for Plaintiffs Thomson and Meza's fourth, nineteenth, and twenty-first causes of action.
Plaintiff Meza also contends a duty to disclose exists in Utah when, under the totality of the circumstances, "the failure to disclose something would violate a standard requiring conformity to what the ordinary ethical person would have disclosed." Opp'n at 28-29 (citing e.g., First Sec. Bank of Utah N.A. v. Banberry Dev. Corp., 786 P.2d 1326, 1331 (Utah 1990)). The quoted language arose in discussion of a treatise and does not reflect accurately the holding of the Utah Supreme Court. The full passage states:
Similarly, Professors Prosser and Keeton identify duties resulting from the disclosure of half-truths, after-acquired information, and those emanating from the mere existence of confidential or fiduciary relationships. Their treatise also discusses the "rather amorphous tendency on the part of most courts in recent years to find a duty of disclosure when the circumstances are such that the failure to disclose something would violate a standard requiring conformity to what the ordinary ethical person would have disclosed."
Banberry, 786 P.2d at 1331.
Plaintiff Meza does not identify any legal authority which holds that a "failure to disclose something would violate a standard requiring conformity to what the ordinary ethical person would have disclosed" can establish the basis of a duty to disclose under Utah law. See Opp'n at 28-29. The court, therefore, will not deny the Motion on this basis.
In sum, the court GRANTS in part the Motion and DISMISSES without leave to amend the fraudulent omission basis for the fourth cause of action as to Plaintiffs Ford, Rudenko, Meza, and Thomson and the nineteenth through twenty-first causes of action. The Motion is DENIED in part as to this basis for the ninth cause of action for violation of the Illinois CFDBPA.
3. Plaintiffs Bennett and Guthrie's Fraud Claims and the Economic Loss Rule
Defendants argue Plaintiffs Bennett (Florida) and Guthrie's (Maryland) fraud claims should be dismissed because they are barred by the economic loss rule under Florida and Maryland law. Mot. at 38. The court will address each state's law in turn.
"Under Florida law, the economic loss rule is a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses." Murphy v. Toyota Motor Sales U.S.A., Inc., Case No. 2:20-cv-05892-VAP (ADSx),
2021 WL 2801456, at *6 (C.D. Cal. Apr. 21, 2021) (quotation marks omitted). This rule applies in the defective products context where there is no claim of personal injury or damage to other property. Id. Plaintiff Bennett contends the economic loss doctrine does not apply here because he has alleged Defendants fraudulently induced his purchase of the Class Vehicle by representing the vehicle was safe and high quality while concealing the Defect. Opp'n at 29-30 (citing In re MyFord Touch Consumer Litig, 46 F. Supp. 3d 936, 964-65 (N.D. Cal. 2014)). The court disagrees.
Federal courts in Florida have drawn a distinction between fraudulent concealment and fraudulent inducement claims, and held that the former are barred by the economic loss rule while the latter are not. See, e.g., Vazquez v. Gen. Motors, LLC, Case No. 1:17-cv-22209-CIV-GAYLES, 2018 WL 447644, at *5-6 (S.D. Fla. Jan. 16, 2018) (recognizing the Florida Supreme Court has allowed economic damages for fraudulent inducement, but "[f]raudulent concealment claims in the products liability sphere that seek to recover economic damages are clearly barred by Florida's economic loss rule"); Burns v. Winnebago Indus., Inc., Case No. 8:13-cv-01427-T-24 MAP, 2013 WL 4437246, at *3-4 (M.D. Fla. Aug. 16, 2013) (same).
Under Florida law, the elements for a fraudulent inducement claim are: "(1) A misrepresentation of a material fact; (2) The representor of the misrepresentation, knew or should have known of the statement's falsity; (3) Intent by the representor that the representation will induce another to rely and act on it; and (4) Resulting injury to the party acting in justifiable reliance on the representation." Lou Bachrodt Chevrolet, Inc. v. Savage, 570 So. 2d 306, 308 (Fla. Dist. Ct. App. 1990). While Plaintiff Bennett characterizes his claim as one for fraudulent inducement, he does not plead or identify any specific misrepresentations Defendants made to induce him to purchase a Class Vehicle. See SAC ¶¶ 352-67. Bennett, thus, has pleaded only a claim for fraudulent concealment and not for fraudulent inducement. Accordingly, the court GRANTS in part the Motion, and DISMISSES the fraudulent concealment basis for Bennett's fourth cause of action without leave to amend, as barred under the economic loss rule.
Under Maryland law, "[o]rdinarily,... damages for economic loss are not available in a tort action and are recoverable, if at all, in contract causes of action and, in the case of fraud, in actions for deceit." Lloyd v. Gen. Motors Corp., 397 Md. 108, 916 A.2d 257, 265 (2007). As with Bennett, Plaintiff Guthrie argues the economic loss rule does not apply here because he has pleaded a fraudulent inducement claim. Opp'n at 30 (citing e.g., Super. Bank, F.S.B. v. Tandem Nat. Mortg., Inc., 197 F. Supp. 2d 298, 311 n. 22 (D. Md. 2000)).
"[T]o recover for either fraud or fraudulent inducement [under Maryland law], a plaintiff must prove (1) that the defendant made a false representation to the plaintiff, (2) that its falsity was either known to the defendant or that the representation was made with reckless indifference as to its truth, (3) that the misrepresentation was made for the purpose of defrauding the plaintiff, (4) that the plaintiff relied on the misrepresentation and had the right to rely on it, and (5) that the plaintiff suffered compensable injury resulting from the misrepresentation." CapitalSource Fin., LLC v. Delco Oil, Inc., 608 F. Supp. 2d 655, 666 (D. Md. 2009). As with Bennett, Plaintiff Guthrie does not identify any specific false promises or misrepresentations Defendants made to induce him to purchase a Class Vehicle. See
SAC ¶¶ 392-406. Guthrie, thus, fails to demonstrate he falls within an exception to the economic loss rule. Accordingly, the court GRANTS in part the Motion and DISMISSES the fraudulent concealment basis for Bennett's fourth cause of action without leave to amend.
4. Conclusion on Fraud and State Statutory Claims
In sum, the court GRANTS in part the Motion and DISMISSES without leave to amend: (1) the fraudulent misrepresentation basis for the fourth and sixth through twenty-third causes of action; (2) the fraudulent omission basis for (a) the fourth cause of action as to Plaintiffs Ford (Illinois), Meza (Utah), Rudenko (Texas), and Thomson (Oregon), and (b) the nineteenth through twenty-first causes of action; and (3) the remaining fraudulent concealment basis for the fourth cause of action as to Plaintiffs Bennett (Florida) and Guthrie (Maryland), as barred by the economic loss rule. The Motion is DENIED in part as to the fraudulent omission portion of the ninth cause of action for violation of the Illinois CFDBPA.
H. Sixth and Seventh Causes of Action for Violations of Alabama DTPA and Colorado CPA
The court previously held Plaintiffs were prohibited from asserting violations of the Alabama DTPA and the Colorado CPA as class actions and dismissed these representative claims with 30 days' leave to amend, to allow the Alabama and Colorado Plaintiffs to plead these claims as individual claims. 10/5/21 Order at 49-50. Plaintiffs reasserted these causes of action in the SAC verbatim. Compare FAC ¶¶ 297-321, 355-64 with SAC ¶¶ 316-50. Defendants move to dismiss these class claims on the grounds that Plaintiffs have ignored the court's prior ruling. Mot. at 39. Plaintiffs respond they have continued to plead these claims to preserve the issue for appeal. Opp'n at 30-31.
The only difference between these claims in the FAC and SAC appears to be the addition of a paragraph regarding Defendants' alleged knowledge and notice of the Defect. See SAC ¶ 351.
Plaintiffs Padgett and Clinkscales plead the Alabama DTPA on behalf of themselves and the Alabama Subclass. SAC ¶ 317. Plaintiff Fuller asserts the seventh cause of action for violation of the Colorado CPA as a class claim only. SAC ¶ 342. Having held Plaintiffs cannot assert class claims under the Alabama DTPA and Colorado CPA, 10/5/21 Order at 49-50, the court GRANTS in part the Motion and DISMISSES the representative/class portion of the sixth cause of action and the entire seventh cause of action without leave to amend. See Abagninin, 545 F.3d at 742.
I. Thirteenth Cause of Action for Violations of the Mississippi CPA
In the October 5, 2021 Order, the court dismissed the thirteenth cause of action for violation of the Mississippi CPA for Plaintiff Smith's failure to plead she participated in a pre-suit settlement program approved by the Mississippi Attorney General as required. 10/5/21 Order at 46-47 (citing Miss. Code Ann. § 75-25-15(2)). Plaintiff Smith reasserts her claim in the SAC, stating she has a fiduciary obligation to continue pursuing this claim. SAC at 115 n. 18. The SAC also alleges:
Ms. Smith has sought to comply with the alternative dispute resolution requirement of the Mississippi Consumer Protection Act ... and has attempted to resolve her and the Mississippi Subclass' claims informally with Hyundai through an alternative dispute resolution program approved by the Office of the Mississippi Attorney General. Hyundai, however, responded that it did not believe class actions were permitted under Mississippi Law.
SAC ¶ 437.
Defendants present evidence Smith wrote to them on November 5, 2021—after the court dismissed this cause of action in the October 5, 2021 Order—"to explore an informal resolution for the claims of [Smith] and the putative Mississippi Subclass through a program approved by the Office of the Attorney General for the State of Mississippi." Dkt. 67-1 at 104. Defendants responded they were "willing to participate in a mutually agreeable informal dispute resolution settlement program with Ms. Smith," adding there was "no basis for [Smith's] demand that Hyundai negotiate the claims of any supposed Mississippi class, as the [Mississippi CPA] expressly bars class actions." Id. at 104 n. 1 (citing Miss. Code Ann. § 75-24-15(4)). Smith subsequently refused to participate in an informal dispute settlement program to negotiate her individual claim. Id. at 112.
Smith offers no facts to establish she complied with the MCPA pre-suit notice requirements prior to bringing the subject action. See SAC ¶¶ 421-38. Smith, likewise, does not cite any authority to establish Defendants' legally correct statement that the Mississippi CPA does not authorize class actions constitutes valid grounds for her refusal to participate in a pre-suit informal dispute settlement program for her individual claim. See Miss. Code Ann. § 75-25-15(2). Smith's contention that she "sought to comply with the alternative dispute resolution requirements" is conclusory and insufficient to establish or excuse non-compliance.
Accordingly, the court GRANTS in part the Motion and DISMISSES the thirteenth cause of action without leave to amend.
J. Fourteenth Cause of Action for Violations of the Nebraska CPA
The fourteenth cause of action alleges "Hyundai intentionally or negligently concealed and suppressed material facts concerning the Defect affecting the windshields of the Class Vehicles ... by failing to disclose the known risk of the windshield chipping and cracking without warning, denying warranty claims arising from the defect, and denying the existence of the defect." SAC ¶ 443; see also id. ¶¶ 444-45 (stating Defendants intentionally and knowingly violated the Nebraska CPA through misrepresentations and false advertisements).
Defendants move to dismiss the fourteenth cause of action on the grounds that the Nebraska CPA exempts conduct that is governed elsewhere by federal or state law. Mot. at 40-41 (citing Neb. Rev. Stat. § 59-1617(1)). According to Defendants, the Nebraska Motor Vehicle Industry Regulation Act ("Nebraska MVIRA"), Neb. Rev. Stat. § 60-1411.03(23), regulates the advertising of motor vehicles and exempts such conduct from the Nebraska CPA. Mot. at 41. Plaintiff Bohl responds that courts have routinely held that particular conduct is not immunized from the operation of the Nebraska CPA, merely because the actor at issue is within the regulatory body, and that immunity only arises if the conduct itself is also regulated by that body. Opp'n at 22 (citing Hage v. Gen. Serv. Bureau, 306 F. Supp. 2d 883, 890 (D. Neb. 2003)).
Bohl does not cite any authority to establish that the Nebraska MVIRA does not regulate the advertising of motor vehicles or that a plaintiff may assert claims
under the Nebraska CPA for a manufacturer's alleged misrepresentations regarding a motor vehicle. See Opp'n at 33-33. The court, therefore, GRANTS the Motion in part and DISMISSES the fourteenth cause of action without leave to amend.
K. Fifteenth Cause of Action for Violation of the Nebraska DTPA
Defendants move to dismiss the fifteenth cause of action on the grounds that the statute does not permit recovery of damages and authorizes only injunctive relief. Mot. at 40 (citing Neb. Rev. Stat. § 87-303(a)). Plaintiff Bohl does not dispute Defendants' contention and argues only that he has pleaded a valid claim for injunctive relief. Opp'n at 32. As Bohl does not dispute he cannot seek damages under the Nebraska DTPA, the court STRIKES Bohl's request for actual and punitive damages from the fifteenth cause of action without leave to amend. See SAC ¶ 472. Having denied the Motion as to Plaintiffs' requests for injunctive relief, the court also DENIES in part the Motion as to the remainder of the fifteenth cause of action for violation of the Nebraska DTPA.
L. Fifth Cause of Action for Unjust Enrichment
Defendants move to dismiss the fifth cause of action for unjust enrichment, on the grounds that it is duplicative of and subsumed by Plaintiffs' tort claims. Mot. at 41 & n. 27 (citing, e.g., In re Ford Tailgate Litig., Case No. 3:11-cv-02953-RS, 2014 WL 1007066, at *5 (N.D. Cal. Mar. 11, 2014)). In In re Ford, 2014 WL 1007066, at *5, the district court recognized that "California, among other jurisdictions, has rejected independent unjust enrichment claims," but "[o]ther states, like Florida, recognize such a claim only where plaintiffs lack an adequate remedy at law." Defendants do not discuss how unjust enrichment is applied under the laws of each state at issue in the SAC. See Mot. at 24-25. The court, therefore, DENIES in part the Motion on this basis.
As Plaintiffs have not asserted claims on behalf of a California Subclass in the SAC, Defendants' citations to authority discussing unjust enrichment under California law are inapposite.
III. Conclusion
In sum, the court GRANTS in part and DENIES in part Defendants' Motion (Dkt. 66) as follows:
1. The court DISMISSES without leave to amend:
a. the first, second, seventh, thirteenth, and fourteenth causes of action in their entirety;
b. the third cause of action for breach of the implied warranty of merchantability with respect to Plaintiffs Bennett (Florida), Clinkscales (Alabama), Ford (Illinois), Forehand (Washington), May (Iowa), Meza (Utah), Padgett (Alabama), Sandys (Virginia), Thomson (Oregon), and Willis (New York);
c. the fraudulent misrepresentation portion of the fourth and sixth through twenty-third causes of action;
d. the fraudulent omission portion of: (1) the fourth cause of action as to Plaintiffs Ford (Illinois), Meza (Utah), Rudenko (Texas), and Thomson (Oregon), and (2) the nineteenth through twenty-first causes of action;
e. the remaining portions of the fourth cause of action as to Plaintiffs Bennett (Florida) and Guthrie (Maryland), as barred by the economic loss rule; and
f. the representative/class portion of the sixth cause of action for violations of the Alabama DTPA.
2. The court STRIKES Plaintiff Bohl's request for actual and punitive damages from the fifteenth cause of action without leave to amend.
3. The Motion is otherwise DENIED.
The parties are further ORDERED to meet and confer and submit an amended Joint Rule 26(f) Report within fourteen (14) days of this Order.
IT IS SO ORDERED.