Opinion
No. 3:20-CV-00037-JRG-CRW
02-03-2021
Menachem LANGER, Plaintiff, v. BMW OF NORTH AMERICA, LLC, Defendant.
Vlad Hirnyk, Pro Hac Vice, Lemberg Law, LLC, Wilton, CT, Susan Shepherd Lafferty, Lafferty Law Firm, Inc., Nashville, TN, for Plaintiff. Ryan Nelson Clark, Lewis, Thomason, King, Krieg & Waldrop, P.C., Nashville, TN, for Defendant.
Vlad Hirnyk, Pro Hac Vice, Lemberg Law, LLC, Wilton, CT, Susan Shepherd Lafferty, Lafferty Law Firm, Inc., Nashville, TN, for Plaintiff.
Ryan Nelson Clark, Lewis, Thomason, King, Krieg & Waldrop, P.C., Nashville, TN, for Defendant.
MEMORANDUM OPINION AND ORDER
J. RONNIE GREER, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant's Motion to Dismiss [Doc. 28], Defendant's Memorandum of Law in Support [Doc. 29], Plaintiff's Response [Doc. 32], Defendant's Reply [Doc. 33], Defendant's Supplemental Brief [Doc. 34], and Plaintiff's Response [Doc. 36]. For the reasons herein, the Court will deny Defendant's motion.
I. BACKGROUND
Plaintiff Menachem Langer alleges that in 2017 he purchased a 2014 BMW 750Li from Atlanta Luxury Motors in Georgia for $37,442, only to discover afterwards that it "consumed an excessive amount of engine oil." [Am. Compl., Doc. 1, ¶¶ 14–16]. He maintains that he has had to "regularly add[ ] quarts of oil to his car in between oil changes" to prevent the engine—known as the "N63," a "large, high-performance engine [that] was designed to be BMW's next generation V8," [id. ¶ 34]—from failing, [id. ¶¶ 2, 20]. He alleges that the N63 is defective and that it is, in fact, "widely known" as defective, [id. ¶ 37], citing several technical service bulletins that BMW issued to address complaints of excessive oil consumption and the filing of at least one other lawsuit in federal district court, [id. ¶¶ 5, 47]. According to Mr. Langer, BMW knew that the N63 was defective as early as 2008, having learned of its excessive oil consumption from "pre-release testing data, durability testing, [and] early consumer complaints." [Id. ¶ 64]. But BMW concealed its knowledge of the defect, Mr. Langer alleges, not only when he bought the vehicle in 2017 but also when he later presented the vehicle to Grayson BMW in Knoxville, Tennessee ("Grayson BMW")—an authorized dealer of Defendant BMW of North American, LLC ("BMW")—with complaints about its oil consumption. [Id. ¶¶ 3, 4, 17, 18]. In response, Grayson BMW allegedly told him that "there was nothing wrong with [the] N63 engine in [his] car and having to add quarts of oil in between oil changes was ‘normal.’ " [Id. ¶ 3].
Mr. Langer alleges that, according to one of BMW's technical service bulletins, "the N63 vehicles would consume nearly 20 quarts of engine oil between the recommended 15,000-mile oil service intervals." [Am. Compl. ¶ 53].
Mr. Langer claims that BMW has "neglected, failed, refused or otherwise been unable to repair" the engine, [id. ¶ 68], despite the fact that the vehicle was under a four-year/50,000-mile limited warranty, in which BMW agreed to repair or replace defective parts, [id. ¶¶ 25–27]. According to Mr. Langer, his vehicle's excessive oil consumption has required him to pay for additional service visits and maintenance costs, obtain BMW-approved engine oil, and refrain from traveling long distances. [Id. ¶ 67]. Specifically, he alleges that he has spent $,1000 in "out of pocket costs." [Id. ¶ 22]. In addition, he alleges that he will "suffer significant loss" when he attempts to sell the vehicle because "the reputation of these vehicles has been impaired by now-public research establishing that these vehicles suffer from the oil consumption defect." [Id. ¶ 67]. Mr. Langer also maintains that "[t]he cost to repair the Vehicle that involves an engine replacement ranges from $12,500.00 to $15,000.00." [Id. ¶ 21].
Mr. Langer has now filed suit in this Court against BMW, alleging claims for breach of warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (Count One); breach of express warranties under Tennessee law (Count Two); violation of the Tennessee Consumer Protection Act ("TCPA"), Tennessee Code Annotated § 47-18-101 et seq. (Count Three); violation of the Georgia Fair Business Practice Act ("GFBPA"), Georgia Code Annotated § 10-1-390 et seq. (Count Four); and fraudulent concealment under Tennessee law (Count Five). Among other remedies, Mr. Langer requests "revocation or rescission" of his purchase of the vehicle. [Am. Compl. at 29].
BMW now moves for the dismissal of each of these claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). In the alternative, it moves for the dismissal of Counts Three, Four, and Five for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See [Def.’s Mem. at 2] ("[I]f the Court finds that it has subject matter jurisdiction, it should nevertheless dismiss Counts III, IV, and V[.]"). BMW also argues that Mr. Langer's complaint violates Federal Rule of Civil Procedure Rule 8(a) because it is "neither short nor plain’ " [Id. at 15]. In response to BMW's motion to dismiss, Mr. Langer has "withdraw[n] the following causes of action: Violation of Georgia Fair Business Practice Act (Count IV) and Fraudulent Concealment (Count V)." [Pl.’s Resp. at 1 n.2]. The sole questions before the Court, therefore, are whether it has subject-matter jurisdiction over this action and whether Mr. Langer has stated a plausible claim for relief in Count Three, in which he alleges violations of the TCPA.
II. LEGAL STANDARD
Under Rule 8(a)(2), "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss under Rule 12(b)(6), the plaintiff's complaint must contain "sufficient factual matter, accepted as true, 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) ). A claim is facially plausible when the plaintiff pleads facts that create a reasonable inference that the defendant is liable for the alleged conduct in the complaint. Id.
When considering a motion to dismiss under Rule 12(b)(6), a court accepts the allegations in the complaint as true and construes them in a light most favorable to the plaintiff. Mixon v. Ohio , 193 F.3d 389, 400 (6th Cir. 1999). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," however. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. A plaintiff's allegations must consist of more than "labels," "conclusions," and "formulaic recitation[s] of the elements of a cause of action." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted); see Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." (citation omitted)).
A motion to dismiss under Rule 12(b)(1), on the other hand, implicates the Court's subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and it comes in one of two forms, a facial attack or a factual attack, McCormick v. Miami Univ. , 693 F.3d 654, 658 (6th Cir. 2012). A facial attack is "a challenge to the sufficiency of the pleading itself," United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994), and the Court, when addressing this kind of attack, therefore applies Rule 12(b)(6) ’s standard, Carrier Corp. v. Outokumpu Oyj , 673 F.3d 430, 440 (6th Cir. 2012).
III. ANALYSIS
Under Rule 12(b)(1), BMW argues that the Court lacks subject-matter jurisdiction over this action because Mr. Langer has not pleaded facts that satisfy the Magnuson-Moss Warranty Act's amount-in-controversy requirement. See Musson Theatrical, Inc. v. Fed. Express Corp. , 89 F.3d 1244, 1255 (6th Cir. 1996) ("The vast majority of pretrial dismissals ... do not affect the trial court's ability to resolve supplemental claims. But there are two types of pretrial dismissals that appellate courts have scrutinized closely. The first is a dismissal under Rule 12(b)(1). If the court dismisses plaintiff's federal claims pursuant to Rule 12(b)(1), then supplemental jurisdiction can never exist."). In the alternative, BMW, under Rule 12(b)(6), challenges Mr. Langer's allegations in Count III as factually insufficient to support a plausible claim for relief.
A. Subject-Matter Jurisdiction
The Magnuson-Moss Warranty Act provides federal district courts with jurisdiction over certain claims. See 15 U.S.C. § 2310(d)(1)(B) ("[A] consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with ... a written warranty, implied warranty, or service contract, may bring suit for damages" in federal district court.). The statute, however, contains an amount-in-controversy requirement of $50,000, on which jurisdiction is dependent: "No claim shall be cognizable in a suit brought under paragraph (1)(B) of this subsection ... if the amount in controversy is less than the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit[.]" Id. § 2310(d)(3)(B).
"It is well-settled that ‘if a plaintiff brings an action in federal court and a defendant seeks dismissal on amount-in-controversy grounds, the case will not be dismissed unless it appears that the plaintiff's assertion of the amount in controversy was made in bad faith.’ " Schultz v. Gen. R.V. Ctr. , 512 F.3d 754, 756 (6th Cir. 2008) (quotation omitted). The defendant bears the burden of establishing that the plaintiff alleged the amount in controversy in bad faith—a burden that he discharges by showing "to a legal certainty[ ] that the original claim was really for less than the amount-in-controversy requirement." Id. (quotation omitted). Although the legal-certainty test normally applies to the amount in controversy in diversity cases under 28 U.S.C. § 1332, it also applies "in full force" to the amount-in-controversy requirement under the Magnuson-Moss Warranty Act. Id. (citations omitted). The Court may consider all state-law claims when deciding whether a plaintiff has met the Magnuson-Moss Warranty Act's amount-in-controversy requirement. See 15 U.S.C. § 2310(d)(3)(B) (stating that federal jurisdiction does not exist "if the amount in controversy is less than the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit " (emphasis added)); Harnden v. Jayco, Inc. , 496 F.3d 579, 582 (6th Cir. 2007) ("We may consider this state-law claim in computing whether the amount-in-controversy requirement is met." (citing id. )).
Mr. Langer alleges "more than $50,000 in damages, exclusive of interest and costs," [Am. Compl. ¶ 8], and BMW, in asserting that Mr. Langer has alleged this amount in bad faith, first homes in on the claim for breach of warranty, under which it argues that compensatory damages are "no more than approximately $38,500.00, and likely much less." [Def.’s Mem. at 5]. BMW arrives at this sum by adding the vehicle's purchase price ($37,442) to Mr. Langer's alleged out-of-pocket costs of $1,000. [Id. ]. In response, however, Mr. Langer takes issue with BMW's computation, asserting that he is seeking an amount of damages for breach of warranty that is, in fact, smaller. He maintains that his alleged "breach of warranty damages are $15,000 (the cost to repair the defective engine) and out of pocket costs associated with his vehicle's excessive engine oil consumption in the amount of $1,000." [Pl.’s Resp. at 8]; see [Am. Compl. ¶¶ 21–22]. Because Mr. Langer is pursuing a total of $16,000 in compensatory damages for his claim for breach of warranty, he can satisfy the Magnuson-Moss Warranty Act's jurisdictional threshold of $50,000 only if his TCPA claim has a value of at least $34,000.
"[T]he Magnuson-Moss Warranty Act does not describe the elements of a breach of implied warranty claim. Instead, the Act permits ‘consumers to enforce written and implied warranties in federal court, [by] borrowing state law causes of action’ " for breach of warranty. Pearson & Son Excavating, Co. v. W. Recreational Vehicles, Inc. , No. 03-40246, 2007 WL 836603, at *2 (E.D. Mich. Mar. 14, 2007) (quoting Schimmer v. Jaguar Cars, Inc. , 384 F.3d 402, 405 (7th Cir. 2004) ); see In re Anheuser-Busch Beer Labeling Mktg. & Sales Practices Litig. , 644 F. App'x 515, 516 (6th Cir. 2016) (stating that the Magnuson-Moss Warranty Act "creates a federal cause of action for the violation of a warranty implied by state law" (citations omitted)); Farley v. Country Coach, Inc. , 403 F. App'x 973, 975 n.1 (6th Cir. 2010) (noting that "the district court granted [the defendant's] motion in limine requesting an Order stating that Plaintiff is only entitled to relief under the Magnuson–Moss Warranty Act if Plaintiff is successful in proving a breach of state warranty law claim" and affirming the district court's judgment (internal quotation mark omitted)).
A TCPA claim—a tort claim—is "separate" from a breach of contract claim, Mini Sys. Inc. v. Alexander , No. W2019-01871-COA-R3-CV, 2020 WL 6892010, *3 (Tenn. Ct. App. Nov. 24, 2020), and the Court, in considering the value of Mr. Langer's TCPA claim, begins by noting that Mr. Langer seeks the rescission of his contract with BMW—or, as he puts it, "rescission of the purchase of the Vehicle," [Am. Compl. at 29]. "Rescission of a contract made as a result of an unfair or deceptive trade practice is a proper remedy available under the Tennessee Consumer Protection Act." Smith v. Scott Lewis Chevrolet, Inc. , 843 S.W.2d 9, 13 (Tenn. Ct. App. 1992) (citations omitted). According to Mr. Langer's allegations, the full amount of his contract with BMW is $37,442, [Am. Compl. ¶ 15], and under the TCPA, a rescission of the contract would allow him to recoup this full amount, see Smith , 843 S.W.2d at 13 ("If a buyer seeks this remedy [of rescission], it is entitled to recover the purchase price paid if the trial court rescinds the contract." (citations omitted)).
This amount—in combination with compensatory damages of $16,000 for breach of warranty—vaults Mr. Langer's damages over $50,000. And when the Court considers that treble damages are available to Mr. Langer under the TCPA, his recovery would balloon from $37,442 to $112,326, a sum that by itself easily surpasses the Magnuson-Moss Warranty Act's amount-in-controversy requirement. See Tenn. Code Ann. § 47-18-109(a)(3) ("If the court finds that the use or employment of the unfair or deceptive act or practice was a willful or knowing violation of this part, the court may award three (3) times the actual damages sustained[.]"); see also Dodd v. Chrysler Grp. LLC , No. 1:11–cv–01073–JDB–egb, 2012 WL 1565640, at *8 (M.D. Tenn. May 1, 2012) (acknowledging that "the Plaintiff must rely on his demand for treble damages under the TCPA to arrive at the [Magnuson-Moss Warranty Act's] jurisdictional threshold"); Carver v. Gen. Motors LLC , No. 3:10-1096, 2011 WL 734985, at *2 (M.D. Tenn. Feb. 23, 2011) (noting that "treble damages under the Tennessee Consumer Protection Act and state law claims would increase the amount in controversy" and determining that "Plaintiff has met his burden of pleading the necessary $50,000 under the Magnuson Moss Warranty Act").
Mr. Langer requests treble damages under the TCPA in his complaint. [Id. ¶ 123].
The only wrinkle in the Court's analysis, though, is the fact that Mr. Langer, in alleging the purchase price of the vehicle, does not appear to allege it exclusive of finance charges. See [Am. Compl. ¶ 15 ("The total sales price for the Vehicle was $37,442.00 including options, fees, taxes, and other charges." (emphasis added))]; see also 15 U.S.C. § 2310(d)(3)(B) (stating that the amount in controversy must be greater than "the sum of $50,000 (exclusive of interests and costs ) computed on the basis of all claims to be determined in this suit" (emphasis added)); Harnden , 496 F.3d 579 at 582 n.1 ("[F]inance charges should never be included in computing the amount in controversy under the MMWA because such charges are ‘interest’ under § 2310." (citation omitted)). But even if two thirds of the purchase price consists of finance charges—meaning the finance rate would be a whopping 66.67%, an unthinkable number—the purchase price exclusive of interest and costs would shrink from $37,442 to $12,480, a figure that still eclipses $50,000 when tripled under the TCPA and added to $16,000 in compensatory damages for breach of warranty. Construing the allegations in a light most favorable to Mr. Langer, the Court is simply unwilling to conclude to a legal certainty that the parties’ contract included a finance rate of 66.67% or higher—and BMW, as the party with the burden, does not ask the Court to draw this conclusion.
In sum, Mr. Langer's alleged damages for breach of warranty and for violation of the TCPA satisfy the Magnuson-Moss Warranty Act's amount-in-controversy requirement. BMW therefore fails to establish that Mr. Langer has alleged $50,000 in damages in bad faith, and the Court will exercise subject-matter jurisdiction over this action.
B. Failure to State a Claim
The TCPA forbids "[u]nfair or deceptive acts or practices affecting the conduct of any trade or commerce." Tenn. Code Ann. § 47–18–104(a). To state a claim under the TCPA, Mr. Langer must allege "(1) that the defendant engaged in an unfair or deceptive act or practice declared unlawful by the TCPA and (2) that the defendant's conduct caused an ‘ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated.’ " Hanson v. J.C. Hobbs Co. , No. W2011-02523-COA-R3-CV, 2012 WL 5873582, at *9 (Tenn. Ct. App. Nov. 21, 2012) (quoting id. § 47–18–109(a)(1) ). Mr. Langer alleges that BMW violated three subsections of the TCPA, [Am. Compl. ¶ 113]:
(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship approval, status, affiliation or connection that such person does not have;
....
(7) Representing 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;
....
(19) Representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve; provided, that nothing in this subdivision (b)(19) shall be construed to alter the implied warranty of merchantability as defined in § 47-2-314.
Tenn. Code Ann. § 47–18–104(b)(5), (7), (19).
In pursuing dismissal of Mr. Langer's claim under the TCPA, BMW begins by arguing that "the TCPA does not apply to Dr. Langer's purchase of the 750Li because he purchased the 750Li in Georgia, not Tennessee." [Def.’s Mem. at 7]; see Timoshchuk v. Long of Chattanooga Mercedes-Benz , No. E2018-01562-COA-R3-CV, 2009 WL 3230961, at *9 (Tenn. Ct. App. Oct. 8, 2009) ; ("Tennessee consumers may use the TCPA to sue foreign corporations as long as the deceptive or unfair act complained of occurred in Tennessee." (citations omitted)). In response, Mr. Langer maintains that his allegations are sufficient to state a claim under the TCPA because he pleads that BMW knew of the defective engine yet represented to him—through Grayson BMW, its authorized dealer in Tennessee—that the engine's behavior was "normal." [Pl.’s Resp. at 9]. And BMW, in fact, appears to concede as much, acknowledging in its legal brief that if Mr. Langer "sustained injury anywhere, he sustained injury at or near his home in Tennessee, where he ‘complained repeatedly to Grayson BMW in Knoxville, Tennessee ... that the Vehicle consumed an excessive amount of engine oil.’ " [Def.’s Mem. at 8–9].
The gestalt of Mr. Langer's allegations is that Grayson BMW withheld its knowledge of the defective engine and deceived Mr. Langer into believing the engine was normal during the warranty period—with the intention all along of avoiding its obligations under the warranty agreement. Although BMW maintains that Mr. Langer "cites nothing in the TCPA that would permit a TCPA claim over an omission," [id. at 12], Mr. Langer has no burden to cite case law to buttress his claims on a motion to dismiss. That burden belongs to BMW as the movant, and BMW, in fact, cites no case law of its own to show that an omission, as a matter of law, cannot suffice to support a claim under the TCPA. See Directv, Inc. v. Treesh , 487 F.3d 471, 476 (6th Cir. 2007) ("The defendant has the burden of showing that the plaintiff has failed to state a claim for relief." (citation omitted)).
Mr. Langer alleges that an agency relationship exists between BMW and Grayson BMW. [Am. Compl. ¶ 30].
BMW also contends, however, that Mr. Langer's claim is faulty because he "identifies no statement or representation that BMW NA made to him about the oil consumption of the N63's engine before the he purchased the 750Li other than representations in express warranties issued to him[.]" [Def.’s Mem. at 12]. BMW raised this same argument in a recent case before this Court, but the Court rejected it out of hand because BMW cited not a single case supporting its argument, prompting the Court to conclude, based on § 47–18–104(b)(19) ’s plain language, that the plaintiff's claim was plausible. George Williams v. BMW N. Am. LLC , Mem. Op. & Order, Doc. 26 at 7 (E.D. Tenn. Jan. 20, 2021). But now, BMW does cite precedent for its contention that a representation in a warranty itself cannot constitute a deceptive or unfair act or practice under § 47–18–104(b)(19), [Def.’s Suppl. Br. at 1–3], relying on an opinion by United States District Judge Aleta Trauger in Harding v. BMW of North America, LLC , No. 3:20-cv-00061, 2020 WL 5039439 (M.D. Tenn. Aug. 26, 2020). BMW points out that Harding involved a TCPA claim "very similar to Dr. Langer's TCPA claim in this case." [Def.’s Suppl. Br. at 2].
In Harding , Judge Trauger considered whether the plaintiff had stated a plausible claim under § 47–18–104(b)(19) and ruled that he had not. According to Judge Trauger, "[i]f BMW had in some way represented to [the plaintiff] that the defective engine was covered by the warranty, when it was not, that would be actionable under the TCPA," but "[the plaintiff] does not allege any representations to him by BMW about the contents of the warranties other than the warranties themselves." Harding , 2020 WL 5039439 at *5 (citation omitted). Judge Trauger therefore dismissed the plaintiff's claim, citing a pair of cases to support her reasoning: Wilson v. State Farm Fire & Casualty Co. , 799 F. Supp. 2d 829, 842 (E.D. Tenn. 2011) and Ismoilov v. Sears Holdings Corp. , No. M2017-00897-COA-R3-CV, 2018 WL 1956491, at *8 (Tenn. Ct. App. Apr. 25, 2018). Id.
In Ismoilov , the plaintiff sued the defendant under the TCPA for allegedly selling a defective water heater to him, claiming that, after the water heater had failed, the defendant's representative "misled him into thinking that his property damage claim would be paid pursuant to the warranty." Ismoilov , 2018 WL 1956491 at *8. The Tennessee Court of Appeals stated that "it is questionable" whether the plaintiff pleaded a viable claim under § 47–18–104(b)(19) because the defendant's representative "did not expressly state in any of the communications presented that the warranty provided coverage for such a claim." Id. The court, however, did not specifically dismiss the plaintiff's claim on these grounds; instead it dismissed the claim because it determined the defendant's representative was "not involved in ‘trade’ or ‘commerce’ as these terms are defined in the statute." Id. at *9. "For this reason," the court wrote, "we conclude that [the plaintiff] has failed to state a claim pursuant to the TCPA." Id. (emphasis added) (footnote omitted).
Next, in Wilson , the plaintiffs sought insurance coverage from their insurer after a fire caused damage to their home, alleging breach of contract against the insurer and a violation of the TCPA. Wilson , 799 F. Supp. 2d at 831–35. This Court held a bench trial and then issued an opinion, in which it recognized a distinction between contractual claims for breach of warranty and claims under the TCPA. "A breach of contract or warranty," the Court wrote, "is not and of itself a deception, misrepresentation or unfairness under the [TCPA]." Id. at 842 (quotation omitted). The Court rejected the plaintiffs’ TCPA claim because it concluded that "plaintiffs [could not], without more [evidence], convert their breach of contract claims ... into violations of the TCPA." Id. But this Court did not decide Wilson in the pleading stage; again, it was in the trial stage. The distinction between the postures of Wilson and Harding is significant, and it ought to weigh heavily on the outcome of BMW's argument. Cf. Williams v. Quicken Loans, Inc. , No. 4:16-CV-11496, 2017 WL 6947879, at *7 (E.D. Mich. Dec. 15, 2017) ("The legal standard applicable to a motion to dismiss and the legal standard applicable to a motion for summary judgment are decidedly different[.]").
The Court's specific concern is that Harding , because it relies on Wilson , could usher courts precariously close to deciding a question of fact at the pleading stage—which courts are forbidden to do. Compare Poole v. Union Planters Bank, N.A. , 337 S.W.3d 771, 786 (Tenn. Ct. App. 2010) ("The determination of whether a defendant has committed unfair or deceptive acts is a question of fact." (citations omitted)), with Ecclesiastical Order of the ISM of AM, Inc. v. IRS , 725 F.2d 398, 403 (6th Cir. 1984) (Jones, J., concurring in part and dissenting in part) (recognizing that "the court is not to resolve issues of fact in the context of a motion to dismiss"), and Mike Vaughn Custom Sports, Inc. v. Piku , 15 F. Supp. 3d 735, 753 (E.D. Mich. 2014) ("The Court cannot resolve questions of fact on a motion to dismiss." (citations omitted)).
Rather than rely on Harding , the more prudent approach here in the pleading stage is for the Court to observe that "[t]he TCPA is to be ‘liberally construed’ to ‘protect consumers and legitimate business enterprises from those who engage in unfair or deceptive acts or practices in the conduct of any trade or commerce.’ " Helton v. Glenn Enters., Inc. , 209 S.W.3d 619, 628–29 (Tenn. Ct. App. 2006) (quotation and citation omitted); see Audio Visual Artistry v. Tanzer , 403 S.W.3d 789, 810 (Tenn. Ct. App. 2012) ("Because the TCPA is remedial, courts have determined that it should be construed liberally in order to protect the consumer." (citation omitted)). Under a liberal construction, Mr. Langer's allegations—i.e. , that BMW not only withheld its knowledge of the defective engine but also assured Mr. Langer during the warranty period that the engine's behavior was normal, with the aim all along of skirting its obligations under the warranty agreement—are plausible enough to demonstrate that BMW engaged in an unfair or deceptive act or practice in Tennessee. See Audio Visual Artistry , 403 S.W.3d at 810 ("A ‘deceptive’ act or practice is one that causes or tends to cause a consumer to believe what is false[.]" (internal quotation marks and quotation omitted)).
The Court would be remiss if it did not mention that the Sixth Circuit has applied Federal Rule of Civil Procedure 9(b) ’s heightened pleading standard to claims under the TCPA. See Metro. Prop. & Cas. Ins. Co. v. Bell , No. 04-5965, 2005 WL 1993446, at *5 (6th Cir. Aug. 17, 2005) ("Because allegations of fraud must be pleaded with specificity, see, e.g. , Fed. R. Civ. P. 9(b), because that requirement applies to allegations of unfair and deceptive acts under § 47-18-109 and because [the plaintiff] has not satisfied this pleading requirement, this claim also fails as a matter of law." (internal citation omitted)). BMW, however, does not argue that the Court should apply Rule 9(b) to Mr. Langer's claims, and it has therefore waived any argument that Rule 9(b) is the appropriate prism through which to view those claims. See Harding , 2020 WL 5039439 at *3 ("Because BMW did not raise Rule 9(b) in its motion, the court will consider [the plaintiff's] allegations only pursuant to Rule 8."); Kallick v. U.S. Nat'l Bank Ass'n , No. 12-106-DLB, 2012 WL 5178152, at *4 (E.D. Ky. Oct. 18, 2012) ("Defendant has failed to raise Rule 9(b) in its motion and has waived the Rule's specificity requirement for the purposes of the instant motion." (citations omitted)); Marathon Petroleum Co., LP v. Future Fuels of Am., LLC , No. 10-14068, 2012 WL 1893506, at *2 (E.D. Mich. May 23, 2012) ("If the failure to plead with particularity under Rule 9(b) is not raised in the first responsive pleading or in an early motion, the issue will be deemed waived." (quotation omitted)).
The Court will therefore refrain from dismissing Mr. Langer's TCPA claim under § 47–18–104(b)(19), and because BMW raises no appreciable argument that Mr. Langer's claims are factually insufficient under § 47–18–104(b)(5) and § 47–18–104(b)(7), the Court will allow his claims under these subsections to remain intact too. See McPherson v. Kelsey , 125 F.3d 989, 995–96 (6th Cir. 1997) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to ... put flesh on its bones." (quotation omitted)); see also E.D. Tenn. L.R. 7.1(b) (stating that a party's legal brief "shall include the factual and legal grounds which justify the ruling sought from the Court" (emphasis added)).
C. Violation of Rule 8(a)(2)
Next, BMW asserts that Mr. Langer's complaint is faulty under Rule 8(a)(2) because it is "neither short nor plain." [Def.’s Mem. at 15]. But this argument is unpersuasive, if not disingenuous, because the complaint was plain enough to allow BMW to prepare a motion to dismiss in response to it. Surely a request for a more definite statement rather than dismissal of Mr. Langer's claims will suffice.
D. Voluntary Dismissal of Counts Four and Five
Lastly, the Court will briefly address Mr. Langer's request to withdraw Count Four and Count Five. See [Pl.’s Resp. at 1 n.2]. BMW asserts that the Court should dismiss these claims with prejudice because Mr. Langer moved to withdraw them in response to its Rule 12(b)(6) motion to dismiss. See Pratt v. Ventas, Inc. , 365 F.3d 514, 522 (6th Cir. 2004) ("A ‘dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits, and is therefore done with prejudice." (internal quotation marks omitted) (quoting Federated Dep't Stores, Inc. v. Moitie , 452 U.S. 394, 399 n.3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) )). The Court disagrees with BMW.
Federal Rule of Civil Procedure 41(a)(1)(A) states that a plaintiff may dismiss an action without a court order if he requests dismissal before the opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). BMW has filed neither an answer nor a motion for summary judgment, and its motion to dismiss does not qualify as either one. Aamot v. Kassel , 1 F.3d 441, 443–44 (6th Cir. 1993). Rule 41(a)(1) therefore applies to Mr. Langer's request to withdraw his claims. See id. at 443 (" Fed. R. Civ. P. 41(a)(1) limits the plaintiff's authority to dismiss his complaint without prejudice and without the permission of either the adverse party or the court to the period of time before the defendant files an answer or a motion for summary judgment. During that period, the court has no discretion to deny such a dismissal.").
Under Rule 41(a)(1)(B), a dismissal is without prejudice unless the plaintiff states differently. Fed. R. Civ. P. 41(a)(1)(B). Mr. Langer does not specify, at least not expressly, whether he is exercising his prerogative to dismiss Count Four and Count Five with or without prejudice, but he does state that he "does not withdraw his claim that applicable statutes of limitations are tolled." [Pl.’s Resp. at 1 n.2]. Because Mr. Langer continues to assert that these claims are viable under the applicable statutes of limitations, the Court can infer that he intends to dismiss them without prejudice, and the dismissal of these claims will therefore be without prejudice.
IV. CONCLUSION
Mr. Langer has alleged sufficient facts to establish that the Court has subject-matter jurisdiction over this action and to support a plausible claim for relief in Count Three. BMW's Motion to Dismiss [Doc. 28] is therefore DENIED . Under Rule 41(a)(1)(A)(i), Count Four and Count Five are hereby DISMISSED without prejudice . BMW SHALL serve a responsive pleading within twenty-one days of this Order's date.
So ordered.