Opinion
MDL No. 1112, Civil Action Nos. 96-3125 (JBS), 96-1814 (JBS)
Filed: July 27, 1999
Richard S. Schiffrin, Esq., Schiffrin Craig, LTD. Bala Cynwyd, Pennsylvania, Counsel for MDL Plaintiffs.
Timothy G. Blood, Esq., Milberg, Weiss, Bershad, Hynes and Lerach, LLP San Diego, California, Counsel for MDL Plaintiffs.
Beverly C. Moore, Esq., Moore Brown, Washington, D.C., Counsel for Snodgrass.
Brian C. Anderson, Esq., O'Melveny Meyers Washington, D.C., Counsel for Ford Motor Company.
Scott L. Winkelman, Esq., Crowell Moring, Washington, D.C., Counsel for United Technologies Automotive, Inc.
Matthew T. Heartney, Esq., Arnold Porter, Los Angeles, California, Counsel for State Farm Mutual Automobile Insurance Company.
Maria T. Mee, Esquire, Preston, Steffen, Katzen, Gallagher MacMorris Oakland, CA., Attorney for California State Automobile Association Inter-Insurance Bureau.
MEMORANDUM OPINION
This matter is before the court on the Snodgrass plaintiffs' motion to alter or amend judgment, pursuant to Federal Rule of Civil Procedure 59(e), or, in the alternative, for leave to file an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). The Snodgrass plaintiffs seek reconsideration of certain aspects of the court's May 14, 1999 Opinion and Order granting in part and denying in part the motion of defendants Ford Motor Company ("Ford") and United Technologies Automotive, Inc. ("UTA") for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). The court will treat the Snodgrass plaintiffs' Rule 59(e) motion as one for reargument under Local Civil Rule 7.1(g). See NL Indus. v. Commercial Union Ins. Co., 935 F. Supp. 513, 515-16 (D.N.J. 1996) (noting similarity of motion to alter judgement under Rule 59(e) and motion for reargument under predecessor of Local Civil Rule 7.1(g)). For the following reasons, the court denies the Snodgrass plaintiffs' motion for reargument and their motion for leave to file an interlocutory appeal.
DISCUSSION
A. The Motion for Reconsideration
A motion for reargument under Local Civil Rule 7.1(g) (often referred to as a motion for reconsideration) will be granted only when "dispositive factual matters or controlling decisions of law" were presented to the court but not considered. McGarry v. Resolution Trust Corp., 909 F. Supp. 241, 244 (D.N.J. 1995) (citing Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987)). "The standard of review involved in a motion for reargument is quite high, and therefore relief under this rule is granted very sparingly." United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994) (citing Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986). The rule "does not contemplate a Court looking to matters which were not originally presented but which have since been provided for consideration." Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). The rule "explicitly invites counsel to draw the court's attention to decisions which may have been overlooked by the court, not those which were overlooked by counsel." Polizzi Meats, Inc. v. Aetna Life Cas. Co., 931 F. Supp. 328, 339 (D.N.J. 1996). "A party seeking reconsideration must show more than disagreement with the [c]ourt's decision, and `recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry a moving party's burden.'" G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990) (quoting Carteret Savings Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)). Only where the district court "overlooked" matters that might have led to a different result had they been considered will a motion for reconsideration be granted. Id.
In the present case, the Snodgrass plaintiffs raise four grounds for reconsideration of the court's May 14, 1999 Opinion and Order granting in part and denying in part defendants' motion for judgment on the pleadings. First, the Snodgrass plaintiffs argue that the court erred in ruling that they could not bring deceptive trade practice claims based on the Ford written warranties that accompanied their vehicles at the time of their original retail sales because those warranties did not constitute representations that their vehicles were "defect free" at the time of their original retail sale, as plaintiffs alleged. The Snodgrass plaintiffs maintain that the court's decision was "wrong" because, even if the warranties do not constitute representations that the vehicles were "defect free" when sold, they fail of their essential purpose under UCC § 2-719(2). The Snodgrass plaintiffs, however, have not directed the court's attention to any dispositive factual matter of controlling decision of law that the court overlooked in reaching its original decision, and their argument that the warranties fail of their essential purpose under UCC § 2-719(2) was not raised anywhere in the voluminous briefing on defendants' motion for judgment on the pleadings. A motion for reconsideration is not an opportunity to present new theories that have not been argued upon the underlying motion. Accordingly, the court denies the Snodgrass plaintiffs' motion for reconsideration on this point.
Next, the Snodgrass plaintiffs argue that the court erred in ruling that plaintiffs Snodgrass, Tal and Ellis cannot pursue deceptive trade practice claims based on the implied warranty of merchantability that accompanied their vehicles at the time of their original retail sale because those plaintiffs have no claims for breach of implied warranty of merchantability under the laws of Washington, New York and Mississippi, respectively. As the court noted in its original decision, Washington and New York do not recognize an implied warranty of merchantability unless there is vertical privity between the plaintiff consumer and the defendant seller, which is not present in the cases of Snodgrass or Tal, who purchased their Ford vehicles used from intermediate owners. Similarly, Ellis has no claim for breach of implied warranty under Mississippi law, which provides that the implied warranty of merchantability expires as a matter of law after prolonged usage of a vehicle (e.g., two years/26,000 miles) without malfunction, because his Ford vehicle was eight years old and had been driven approximately 100,000 miles by the time it was allegedly damaged by fire. These plaintiffs want the court to revisit these rulings, but have not directed the court's attention to any dispositive factual matter or controlling decision of law that the court overlooked in reaching its original decision. Accordingly, the court denies the Snodgrass plaintiffs' motion for reconsideration on this point.
The Snodgrass plaintiffs also argue that they could revive the claims of Snodgrass and Tal by filing an amended complaint raising negligence claims against Ford and/or UTA. No such claim was argued in the underlying motion. The question of whether the Snodgrass plaintiffs should be granted leave to file such an amended complaint is not properly before the court on this motion for reconsideration, however, and the court passes no judgment on the viability of such negligence claims at this time.
Next, the Snodgrass plaintiffs argue that the court erred in applying Mississippi law when assessing the viability of plaintiff Ellis' deceptive trade practice claim. Instead, they argue, the court should have applied Tennessee law because, although Ellis lived in Mississippi and purchased his Ford vehicle there, the fire that damaged his vehicle occurred while he was at work in Tennessee. Ellis' situation is unusual because most of the plaintiffs involved in this MDL litigation bought their Ford vehicles and in the states where they live, and most of the fires that have damaged or destroyed some plaintiffs' vehicles have occurred in the states where those plaintiffs live. Under New Jersey choice of law principles, this court has consistently applied the law of each plaintiff's home state because "[e]ach plaintiff's home state has an interest in protecting its consumers from in-state injuries caused by foreign corporation and in delineating the scope of recovery for its citizens under its own laws." In re Ford Motor Co. Ignition Switch Products Liability Litigation, 174 F.R.D. 332, 348 (D.N.J. 1997). "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." Id. Based on the evidentiary record before it, the court is convinced that it properly applied the law of Ellis' home state, Mississippi, in assessing the viability of his deceptive trade practice claim because Mississippi, where Ellis lives and purchased his Ford vehicle, has a greater interest in protecting Ellis from the allegedly tortious conduct of Ford and UTA than does Tennessee, where the fire that damaged his vehicle occurred. Accordingly, the court denies theSnodgrass plaintiffs' motion for reconsideration on this point.
Finally, the Snodgrass plaintiffs argue that the court erred in ruling that plaintiff Mayes' deceptive trade practice claim is time-barred. They maintain that the court unfairly determined that Mayes was put on notice of a potential ignition switch defect in her Ford vehicles by virtue of the August 1992 investigation of complaints of ignition switch-related fires in 1989 Crown Victorias by the National Highway Transportation Safety Administration ("NHTSA"), so that Virginia's one-year statute of limitations on her deceptive trade practices claim began to run immediately upon the subsequent occurrence of the fire that destroyed her vehicle (and damaged her garage, its contents and a nearby cottage).
The court agrees that it attributed too much significance to the August 1992 NHTSA investigation in its May 14, 1999 Opinion, in which the court held that the applicable statutes of limitations on the Snodgrass plaintiffs' claims were tolled under the doctrine of fraudulent concealment until NHTSA initiated its August 1992 investigation of ignition switch-related fires in 1989 Crown Victorias. Mayes, who owned a 1992 Mercury Cougar XR-7, could not reasonably have been expected to attach significance to an investigation of ignition-switch related fires in 1989 Crown Victorias. There is also no evidence that she learned of the NHTSA investigation, especially since the investigation was closed in November 1992 without any public findings that the subject ignition switches were defective. Indeed, where the NHTSA investigation in 1992 pertained to only one vehicle model year and resulted in no official findings, there is no reason to conclude that this circumstance negates the possibility of defendants' concealment of the alleged ignition switch defect. The fact that Ford participated in some way in NHTSA's inquiry regarding one vehicle model year may or may not be probative of defendants' alleged efforts to conceal the nature and extent of the ignition switch fire hazard.
Accordingly, the court vacates its holding that the applicable statutes of limitations on the Snodgrass plaintiffs' claims were tolled under the doctrine of fraudulent concealment until NHTSA initiated its August 1992 investigation of ignition switch-related fires in 1989 Crown Victorias. The text of the Opinion of May 14, 1999, will be amended by deleting the paragraph that begins "For purposes of this motion . . ." on page 30 and ends on page 31.
Accepting, for purposes of defendants' motion for judgment on the pleadings, the Snodgrass plaintiffs' well pleaded factual allegation that Ford knew or should have known about the defective ignition switch from the time it first began to install the switch in new Ford vehicles in 1984, and recognizing that no Snodgrass plaintiff could have discovered his or her cause of action against Ford until his or her vehicle was damaged or destroyed by a fire originating in the steering column area, the court denies Ford's motion for judgment on the pleadings on theSnodgrass plaintiffs' breach of implied warranty claims on statute of limitations grounds. Ultimately, any Snodgrass plaintiff seeking to rely upon the tolling doctrine of fraudulent concealment will have to prove by a preponderance of the evidence that Ford knew about the alleged defective ignition switch and wrongfully concealed that knowledge until a date within the limitations period applicable to that plaintiff's cause of action. The court will decide on a plaintiff by plaintiff basis whether the applicable statute of limitations was tolled under the doctrine of fraudulent concealment and for how long, based on whether the pleadings and record evidence reveal a continuing effort by Ford to wrongfully conceal the alleged ignition switch defect.
Although fraudulent concealment of the alleged defect may be germane to plaintiffs who failed to commence this case within the statute of limitations period applicable to breach of implied warranty in their individual states, the determination of the existence, if any, and length of efforts to conceal the defect may be determinable on a multi-plaintiff basis where such efforts, if any, were not directed toward the individual plaintiff who had experienced a fire loss.
The court's reevaluation of the significance of the 1992 NHTSA investigation, however, does not save Mayes' deceptive trade practice claim. "Equitable tolling only applies in Virginia where the defendant has actually concealed his culpability and the fact of the injury. A plaintiff aware of his injury is on `inquiry notice' to discovery his cause of action by use of `ordinary diligence.'" Resolution Trust Corp. v. Walde, 856 F. Supp. 281, 289 (E.D.Va. 1994). "Thus, even a defendant who fails to acknowledge his culpability in response to direct inquiries from the plaintiff concerning the cause of the plaintiff's loss will not be equitably estopped from asserting the statute of limitations." Id. Here, the pleadings relating to Mayes reveal that Bob Wade of Bob Wade Lincoln Mercury told her shortly after her car was destroyed by fire in December 1994 that "there is no doubt in his mind that the ignition switch caused the fire." (Third Amended Complaint at ¶ 5(m)). If Mayes was not on notice of her potential claim against Ford as of December 13, 1994, when her vehicle was destroyed by fire, there can be no doubt that she was on notice of a potential claim against Ford as of the date later that month when she had her conversation with Mr. Wade, notwithstanding the fact that she may have been receiving (as she testified in her deposition) information from other sources that named other components of her Ford vehicle as the cause of this fire. Whether Ford dealership personnel pinpointed the ignition switch as the cause (as Mayes alleges in the Third Amended Complaint) or pointed to other components as the likely cause (as she stated in her deposition) is of no moment to the critical inquiry here. Mayes' cause of action against Ford accrued when she had reason to know that she had suffered harm and that a component of her Ford vehicle was a likely cause, triggering the one-year period under Virginia law to undertake reasonable further investigation and to file suit. Because the conversation with Mr. Wade in December 1994 was more than one year before the original Wilks class action complaint was filed in April 1996, Mayes' deceptive trade practice claim is time-barred under Virginia law. Accordingly, the court denies theSnodgrass plaintiffs' motion for reconsideration on this point.
B. The Motion for Leave to File an Interlocutory Appeal
Having denied the Snodgrass plaintiffs' motion for reconsideration, the court must address their motion for leave to file an interlocutory appeal under 28 U.S.C. § 1292(b).
"In order to merit interlocutory review, a movant must point to: (1) a controlling question of law, (2) about which there is substantial ground for difference of opinion, the immediate resolution of which by the appeals court will (3) materially advance the ultimate termination of the litigation." Hulmes v. Honda Motor Co., Ltd., 936 F. Supp. 195, 208 (D.N.J. 1996), aff'd, 141 F.3d 1154 (3d Cir. 1998). Because an appeal under § 1292(b) is an exception to the important policy of avoiding piecemeal appellate review of trial court decisions that do not terminate the litigation, the mechanism is to be used sparingly. Id. (citation omitted). A motion for leave to file an interlocutory appeal "should not be used granted merely because a party disagrees with the ruling of the district judge." Id. (citations omitted).
The Snodgrass plaintiffs have not met this standard in this case. In particular, the motion fails because the Snodgrass plaintiffs have not demonstrated that appellate review of this ruling and the court's May 14, 1999 Opinion and order would materially advance the ultimate termination of this litigation. Although the Snodgrass plaintiffs claim that prompt appellate review will advance the progress of the litigation "by better defining which states can be in which classes," they ignore the fact that no class has been certified in this case to date. Indeed, the court has already denied the MDL plaintiffs' motion for class certification, and the Snodgrass plaintiffs are presently briefing their own motion for class certification, which will be decided in the fall. It would make no sense to delay adjudication of the class certification motion so that the Snodgrass plaintiffs can obtain judicial review of the court's rulings on a few aspects of defendants' motion for judgment on the pleadings.
Accordingly, the court denies the Snodgrass plaintiffs' motion for leave to file an interlocutory appeal.
CONCLUSION
For these reasons, the court denies the Snodgrass plaintiffs' motion for reconsideration and their motion for leave to file an interlocutory appeal. Although the results of this court's May 14, 1999 Opinion and Order are not changed, reconsideration has been granted to the extend of deleting language from the text of that Opinion at pages 30-31 suggesting that NHTSA's August 1992 investigation of ignition switch fires in 1989 Crown Victorias determines the date when any alleged fraudulent concealment by defendants ceased. The accompanying Order is entered.
ORDER
THIS MATTER having come before the court on the Snodgrass plaintiffs' motion to alter or amend judgment, pursuant to Federal Rule of Civil Procedure 59(e), or, in the alternative, for leave to file an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), and it appearing that the Snodgrass plaintiffs seek reconsideration of certain aspects of the court's May 14, 1999 Opinion and Order granting in part and denying in part the motion of defendants Ford Motor Company ("Ford") and United Technologies Automotive, Inc. ("UTA") for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), and the court having considered the submissions of the parties and having heard the argument on counsel during a telephone conference call on July 14, 1999, and for the reasons expressed in the accompanying Memorandum Opinion;
IT IS on this day of July, 1999, hereby ORDERED as follows:
1. The Snodgrass plaintiffs' motion for reconsideration of the court's May 14, 1999 Opinion and Order is DENIED, except that the court VACATES its holding at pages 30-31 of that Opinion to the effect that the applicable statutes of limitations on the Snodgrass plaintiffs' breach of implied warranty of merchantability claims were tolled under the doctrine of fraudulent concealment until NHTSA initiated its August 1992 investigation of ignition switch-related fires in 1989 Crown Victorias; and
2. The Snodgrass plaintiffs' motion for leave to file an interlocutory appeal is DENIED.