Weiss v. General Motors LLC

United States District Court

for the

Southern District of Florida

Douglas Weiss, Plaintiff, )

)

v. )

Civil Action No. 19-21552-Civ-Scola

)

General Motors LLC, Defendant. )

Order on Defendant’s Motion to Dismiss

This matter is before the Court on Defendant’s motion to dismiss the

Plaintiff’s complaint. (ECF No. 11.) The Plaintiff has filed a response (ECF No. 24)

and the Defendant timely replied. (ECF No. 28.) Upon review of the record, the

parties’ briefs, and the relevant legal authorities, the Court grants in part and

denies in part the Defendant’s motion. (ECF No. 11.)

I. Background

Plaintiff Weiss purchased a new 2015 General Motors Chevrolet Silverado

from Auto Nation Chevy in Coral Gables, Florida on September 10, 2015. (ECF

No. 1 at ¶ 124.) According to the Plaintiff, GM vehicles are equipped with defective

drivelines. (Id. at ¶ 2.) The defective drivelines cause the GM vehicles to shake

violently when they reach certain interstate cruising speeds. (Id.) The defect is

often referred to as the “Chevy Shake.” (Id.) The cause of the defect is a defective

drive shaft. (Id. at ¶¶ 2-3.) The drift shaft is an aluminum tube that runs the

length of the interior, transmitting torque and rotation from the engine to the

wheels. (Id. at ¶ 3.) When the output shaft of the transmission rotates, it spins

the drive shaft, turning the differential ring gear to rotate the wheels. (Id.) Drivers

have reported that the defect makes the vehicles feel unstable at high speeds

and can cause a loss of control. (Id. at ¶ 4.) Over time, the defect can cause the

part to deteriorate and eventually fail as the shaft drops to the ground and

renders the vehicle undriveable. (Id.) The Plaintiff now brings this action on

behalf of himself and a class of individuals who purchased or leased a 2015 or

newer Cadillac Escalade, 2014 or newer Chevrolet Silverado, 2015 or newer

Chevrolet Suburban, 2015 or newer Chevrolet Tahoe, 2014 or newer GMC Sierra,

or 2015 or newer GMC Yukon/Yukon XL. (Id. at ¶ 136.) The Plaintiff asserts

claims on behalf of a nationwide class and a Florida subclass. (Id.)

The Plaintiff alleges that GM was on notice of the Chevy Shake through its

own knowledge about the material, design, and manufacture of the part,

feedback from customers, complaints in the National Highway Transportation

Safety Administration (NHTSA) database, online complaints in web forums, and

news reports. (Id. at ¶ 18.) The Plaintiff’s complaint details a number of online

consumer complaints. (Id. at ¶¶ 21-25.) When customers brought their vehicles

to GM dealerships, GM would orally confirm the presence of the defect after a

test drive but then later misrepresent the problem to avoid having to address it.

(Id. at 21.) GM acknowledged the large volume of complaints and continued to

provide vague representations without suggesting a concrete solution. (Id. at 22.)

NHTSA also reported over 100 complaints regarding the Chevy Shake. (Id.

at ¶ 29.) The consumer complaints filed with NHTSA are delivered to GM and

reviewed by GM’s engineers. (Id.) The complaint also includes anecdotes of

customers who have replaced the aluminum drive shaft themselves and

successfully fixed the problem. (Id. at ¶ 109.) In GM’s technical service bulletins,

GM admitted that drive shafts could be a source of the problem and further

admitted that there have been many cases of dented propeller shafts. (Id. at ¶

111.) GM instructed its dealers to inspect the drive shaft, noted that any dents

or damage to the drive shaft requires replacement, but then permitted only

replacement of its defective aluminum drive shaft with the same defective drive

shaft. (Id.) GM has issued half a decade of service bulletins regarding the Chevy

Shake but systematically refused to disclose the known defect and honor its

warranties to customers. (Id. at ¶¶ 113-115.)

GM’s vehicles are sold with a 5-year/100,000 Powertrain Limited

Warranty. (Id. at 114.) It is commonly understood that the drive shaft in sport

utility vehicles and passenger trucks should have an expected useful life of at

least 75,000 miles. (Id. at 115.) GM customers have spent substantial costs

attempting to fix the Chevy Shake but GM has remained publicly silent regarding

the defect. (Id. at 121.) Through his complaint, the Plaintiff seeks damages under

the Magnuson-Moss Warranty Act (Count I), breach of express warranties (Count

II), breach of implied warranties (Count III), and violation of Florida’s Deceptive

and Unfair Trade Practices Act (FDUTPA) (Count IV). Count I is brought on behalf

of a nation-wide class and Counts II-IV are brought on behalf of the Florida sub-

class.

II. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the Court must accept all of the complaint’s allegations as

true, construing them in the light most favorable to the plaintiff. Pielage v.

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does

not require detailed factual allegations, but it demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quotation omitted). A plaintiff must articulate “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007).

“A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. Thus, a pleading that offers mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” will not survive

dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous

departure from the hyper-technical, code-pleading regime of a prior era, but it

does not unlock the doors of discovery for a plaintiff armed with nothing more

than conclusions.” Iqbal, 556 U.S. at 679.

Where a cause of action sounds in fraud, Federal Rule of Civil Procedure

9(b) must be satisfied in addition to the more relaxed standard of Rule 8. Under

Rule 9(b), “a party must state with particularity the circumstances constituting

fraud or mistake,” although “conditions of a person’s mind,” such as malice,

intent, and knowledge, may be alleged generally. Fed. R. Civ. P. 9(b). “The

‘particularity’ requirement serves an important purpose in fraud actions by

alerting defendants to the precise misconduct with which they are charged and

protecting defendants against spurious charges of immoral and fraudulent

behavior.” W. Coast Roofing & Waterproofing, Inc. v. Johns Manville, Inc., 287 F.

App’x 81, 86 (11th Cir. 2008) (citations omitted). “When a plaintiff does not

specifically plead the minimum elements of their allegation, it enables them to

learn the complaint’s bare essentials through discovery and may needlessly

harm a defendant’s goodwill and reputation by bringing a suit that is, at best,

missing some of its core underpinnings, and, at worst, [grounded on] baseless

allegations used to extract settlements.” U.S. ex rel. Clausen v. Lab. Corp. of Am.,

Inc., 290 F.3d 1301, 1313 n.24 (11th Cir. 2002). Thus, the Rule’s “particularity”

requirement is not satisfied by “conclusory allegations that certain statements

were fraudulent; it requires that a complaint plead facts giving rise to an

inference of fraud.” W. Coast Roofing & Waterproofing, 287 F. App’x at 86. To

meet this standard, the complaint needs to identify the precise statements,

documents, or misrepresentations made; the time and place of, and the persons

responsible for, the alleged statements; the content and manner in which the

statements misled the plaintiff; and what the defendant gained through the

alleged fraud. Id.

III. Analysis

A. Standing to Sue

In its motion to dismiss, GM argues that the Plaintiff lacks standing to sue

on behalf of consumers who purchased vehicles other than the 2015 Chevrolet

Silverado 1500 that he owns. (ECF No. 11 at 3.) In response, the Plaintiff argues

that all class vehicles are the “same product” for purposes of putative class

members because all class vehicles share the same architecture and parts, and

in turn, the same defect. (ECF No. 24 at 2.) The Plaintiff also argues that the

Defendant’s standing argument is premature and should be decided at the class

certification stage. (Id. at 3.)

“As standing is a threshold issue, addressing the issue of standing at the

motion to dismiss phase of the litigation, rather than waiting for the class

certification phase, is not premature.” Sanchez-Knutson v. Ford Motor Co., No.

14-61344, 2015 U.S. Dist. LEXIS 181103, *8 (S.D. Fla. July 21, 2015)

(Dimitrouleas, J.). The Eleventh Circuit requires that in a class action suit “at

least one named class representative must establish Article III standing for each

class subclaim.” Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). Because

Article III standing requires a plaintiff to establish that he has suffered an injury-

in-fact, a class plaintiff “cannot raise claims relating to those other products

which he did not purchase.” Toback v. GNC Holdings, Inc. No. 13–80526–CIV, WL

5206103 at *5 (S.D. Fla. Sept. 13, 2013) (Cohn, J.) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–61 (1992)).

As noted by this Court and other courts in the Southern District of Florida,

there is “some uncertainty or disagreement in the law on the issue” of whether a

plaintiff can assert claims on behalf of class members that purchased different

products based on a theory that the products are essentially the same. See

Sanchez-Knutson v. Ford Motor Co., 14-civ-61344, 2015 WL 11197772, at *4

(S.D. Fla. July 22, 2015) (Dimitrouleas, J.). In Sanchez-Knutson, the court

dismissed class-action claims related to car models other than those car models

that the named plaintiffs had purchased or leased. Id. at *4-*5. However, the

court did not dismiss the plaintiff’s claims on the same model car from several

model years, despite the fact that the named plaintiff only purchased or leased

the version of that car from a single model year. Id. The court provided no

rationale for the distinction. Id.

In Feldman v. BRP United States, Inc., the plaintiff purchased a 2015 Sea-

Doo GTI 130 SI. No. 17-cv-61150, 2018 WL 8300534 (S.D. Fla. March 28, 2018)

(Dimitrouleas, J.). He sought to represent a class of current and former owners

of any 2010 to 2016 Sea-Doo personal watercraft. Id. at *2. The Plaintiff argued

that he had standing because all class Sea-Doos had the same defective exhaust

resonator. Id. The court, based on Sanchez-Knutson, held that the plaintiff could

not represent purchasers of models that he did not purchase and limited his

claims to the 2010-2016 Sea-Doo GTI PWC—the model he purchased for various

years. Id. at *7.

In both Sanchez-Knutson and Feldman, the court rejected the plaintiff’s

argument that he could represent class members who purchased a different

product. However, both opinions allowed the plaintiff’s claims to go forward for

class members who purchased different model years, for example the 2010 to

2016 Sea Doo, even though the plaintiff purchased a 2015 Sea Doo. Neither

court explained why the plaintiff was allowed to go forward on these claims. In

Sanchez-Knutson, the court relied primarily on cases rejecting a “sufficiently

similar” standard. 2015 WL 11197772 at *4. That is, the plaintiff does not have

standing to assert claims based on models he did not purchase, even if they are

sufficiently similar. But the court did not address cases in which the plaintiff

alleges that the products are the same.

In Heuer v. Nissan N. Am., Inc., this Court held that where the plaintiff

alleged that the defect was “materially identical” from product to product, the

plaintiff had standing, at the motion to dismiss stage, to pursue claims on behalf

of class members who purchased different products. No. 17-60018, 2017 U.S.

Dist. LEXIS 127816, at *15 (S.D. Fla. Aug. 17, 2017) (Scola, J.). This Court held

that the question of whether the plaintiff had standing turned on a fact-intensive

inquiry regarding whether the different models were identical. Id. Construing all

facts in favor of the plaintiff, the Court held that the plaintiff had standing to

pursue his claims.

The Defendant tries to distinguish Heuer as an outlier and point out that

the plaintiff in Heuer was only suing on behalf of consumers with different model

years, rather than model years and model types. The Court does not see this

distinction, which presumably comes from Sanchez-Knutson and Feldman,

between products of the same model type but different years and different model

types. Allegations that a 2015 Chevy Silverado and a 2014 Chevy Silverado have

the same drive shaft are no more compelling than allegations that a 2015 Chevy

Silverado and a 2014 Yukon have the same drive shaft. Here, the Plaintiff alleges

that that the Chevy Shake defect exists in 2014 to 2019 Chevrolet Silverados,

GMC Sierras, 2015 to present Chevrolet Tahoes, Chevrolet Suburbans, GMC

Yokons, and Cadillac Escalades. (ECF No. 1 at ¶ 113.) Discovery will reveal

whether GM used the same drive shaft in these vehicles over different model

years and types. Accordingly, at this stage of the litigation, that is sufficient to

confer standing on the Plaintiff as to his Florida sub-class.

With regard to the nationwide class, the Plaintiff’s claims do not fare as

well. The Plaintiff’s Magnuson Moss Warranty Act claim, the only federal claim

asserted here, depends on Florida law. See Brown v. Electrolux Home Prods., Inc.,

817 F.3d 1225, 1231 (11th Cir. 2016) (“[C]laims under the Magnuson-Moss Act

are . . . based on state law.). The Plaintiff does not claim a legal injury in any

state other than Florida, nor does he allege an injury that arises under the laws

of any other state.

“It is not enough that a named plaintiff can establish a case or controversy

between himself and the defendant by virtue of having standing as to one of

many claims he wishes to assert. Rather, each claim must be analyzed

separately, and a claim cannot be asserted on behalf of a class unless at least

one named plaintiff has suffered the injury that gives rise to that claim.”

Feldman, 2018 WL 8300534 at *6 (citing Prado-Steiman ex rel. Prado v. Bush,

221 F.3d 1266, 1280 (11th Cir. 2000). “In accordance with this principle, named

plaintiffs in class actions have, time and again, been prohibited from asserting

claims under a state law other than that which the plaintiff’s own claim arises.”

Id. (compiling cases). Therefore, the Plaintiff lacks standing to assert claims on

behalf of class members who purchased GM vehicles outside of Florida.

B. Count II – Breach of Express Warranties

The Defendant next argues that Count II for breach of the express

warranty should be dismissed because (1) the GM warranty does not cover

design defects, only materials and workmanship repairs and (2) the Plaintiff has

not alleged that his vehicle was within the time and mileage limitations of the

warranty when he brought it to the GM dealership. In response, the Plaintiff

asserts that the plain language of the warranty covers design defects and Plaintiff

is seeking relief based on the 5-year/100,000 mile warranty, not the 3-

year/36,000 mile warranty so his vehicle was still covered when he presented it

to GM on January 10, 2019. (ECF No. 24 at 15-17.)

The Court will address the second argument first. The Plaintiff’s complaint

clearly pleads its claim under the 5-year/100,000 Powertrain Limited Warranty

(the “Powertrain Warranty”). (ECF No. 1 at ¶¶ 114, 123.) Although there are some

allegations that GM also breached the “bumper-to-bumper” 36,000 mile

warranty, see id. at ¶ 126, the Plaintiff does not defend this position and asserts

that the claim is brought under the Powertrain Warranty. (ECF No. 24 at 15.)

The Defendant, in its Reply, does not argue that the Plaintiff’s claim falls outside

the Powertrain Warranty based on time or mileage. (ECF No. 28 at 9.)

Accordingly, the Court denies the Defendant’s motion to dismiss Count II on this

ground and interprets Count II as a breach of the Powertrain Warranty.

The Defendant argues that the language in the Powertrain Warranty only

covers defects “related to materials or workmanship” and therefore does not

cover design defects. (ECF No. 11 at 18.) According to GM, the Plaintiff alleges

only design defects and not defects in material and workmanship. The relevant

language in the Powertrain Warranty is the following:

The warranty covers repairs to correct any vehicle

defect, not slight noise, vibrations, or other normal

characteristics of the vehicle related to materials or

workmanship occurring during the warranty period.

(ECF No. 11-2 at 9.)

“Under Florida law, a written warranty is treated as a contract between

buyer and seller.” David v. Am. Suzuki Motor Corp., 629 F. Supp. 2d 1309, 1318

(S.D. Fla. 2009) (Gold, J.) “[C]ontract interpretation begins with plain meaning

of words used, and words are to be given their natural and ordinary meaning.”

Hirsch v. Jupiter Golf Club LLC, 232 F. Supp. 3d 1243, 1251 (S.D. Fla. 2017)

(Mara, J.). Here, a plain reading of the Powertrain Warranty demonstrates that

it covers “repairs to correct any vehicle defect” and not “slight noise, vibrations,

or other normal characteristics of the vehicle related to materials or

workmanship.” GM’s reading of this sentence would require the Court to insert

another comma after “vehicle” so that the main clause would read “[t]he warranty

covers repairs to correct any vehicle defect . . . related to materials or

workmanship . . .” See McKee v. General Motors, LLC, 376 F. Supp. 3d 751, 757

(E.D. Mich. 2019) (applying Florida law, analyzing same warranty language, and

rejecting GM’s reading of the contract language). The Court will not adopt such

a strained reading of the Powertrain Warranty’s plain language. See Southern-

Owners Ins. Co. v. Hayden, No. 08-14381, 2010 WL 11504289, at *1 (S.D. Fla.

March 25, 2010) (Martinez, J.) (“Defendants’ proposed interpretation of the

contract requires a strained ready of the policy that defies its plain meaning[.]”).

The Court thus denies GM’s motion to dismiss the express warranty claim.

C. Count III – Breach of Implied Warranties

The Defendant presents two arguments in support of its motion to dismiss

Count III, breach of implied warranty. First, the Defendant argues that the

Plaintiff lacks privity with GM because Plaintiff purchased the vehicle from a

dealership. (ECF No. 11 at 5.) In response, the Plaintiff argues that Florida courts

accept the premise that plaintiffs who purchase a vehicle from an authorized

dealership are in privity with the manufacturer. (ECF No. 24. 3.) After careful

review of the relevant caselaw, the Court agrees with the Plaintiff.

Under Florida law, a plaintiff cannot recover economic losses for breach of

implied warranty in the absence of privity. Mesa v. BMW of N. Am., LLC, 904 So.

2d 450, 458 (Fla. 3d DCA 2005). Although a consumer who purchases a product

from a dealer is in privity with the dealer, the consumer is not in privity with the

manufacturer for purposes of enforcing an implied warranty of merchantability.

See, e.g., Bailey v. Monaco Coach Corp., 168 F. App’s 893, 894-95 (11th Cir.

2006). There is, however, an exception to this rule under third-party beneficiary

law. “Florida law . . . recognizes that, in some situations, a person who is not a

party to a contract can enforce the terms of the contract if the provisions of the

contract primarily and directly benefit the third party or a class of persons of

which the third party is a member.” Varner v. Dometic Corp., No. 16-22482, 2017

WL 3730618, at *12 (S.D. Fla. Feb. 7, 2017) (Scola, J.) (citations and quotations

omitted). The Defendant argues that the Plaintiff’s reliance on cases such as

Sanchez-Knutson v. Ford Motor Co., 52 F. Supp. 3d 1233, 1234 (S.D. Fla. 2013)

(Dimitrouleas, J.), which recognize this exception, is misplaced because the

“overwhelming weight” of authority rejects the Plaintiff’s argument that privity

can be established under the third-party beneficiary exception. (ECF No. 28 at

2.)

Upon review of the Southern District’s conflicting caselaw, the Court

disagrees with the Defendant. The Defendant’s argument relies on a line of cases

citing In re Takata Airbag Products Liability Litigation, 193 F. Supp. 3d 1324 (S.D.

Fla. 2016) (Moreno, J.). See, e.g., Tershakovec v. Ford Motor Co., No. 17-21087,

2018 WL 3405245, at *10 (S.D. Fla. July 12, 2018) (Moreno, J.); Padilla v.

Porsche Cars N. Am., Inc., 391 F. Supp. 3d 1108, 1116 (S.D. Fla. 2019) (Moreno,

J.); Cardenas v. Toyota Motor Corp., No. 18-22798, 2019 WL 4777891, at *12

(S.D. Fla. Sept. 20, 2019) (Moreno, J.). The problem with this line of cases is that

the plaintiffs in Takata did not respond to the defendant’s privity argument. See

Takata, 193 F. Supp. 3d at 1346. Therefore, the court did not consider or analyze

a fully briefed and contested third-party beneficiary argument. See id. (“Mazda

raised three reasons to dismiss the implied warranty claim . . . Plaintiffs did not

respond to any of them. Mazda argues, inter alia, that Vukadinovic lacked privity

with Mazda, and thus, cannot maintain a claim for breach of implied warranty.

The Court agrees.”). Therefore, the Court finds this line of cases unpersuasive.

The competing line of cases, which do not rely on Takata, hold that the

plaintiff can establish privity as a third-party beneficiary. See, e.g., Sanchez-

Knutson v. Ford Motor Co., 52 F. Supp. 3d 1233, 1234 (S.D. Fla. 2013)

(Dimitrouleas, J.); Ohio State Troppers Ass’n v. Point Blank Enters., No. 17-

62051, 2018 U.S. Dist. LEXIS 59141 (S.D. Fla. April 5, 2018) (Ungaro, J.);

Feldman, 2018 WL 8300534 at *8; Varner, 2017 WL 3730618 at *12. Under this

line of cases, the Plaintiff can establish privity with GM if he alleges that he

purchased a vehicle from an authorized dealer who was an agent of GM, he was

the intended consumer of the vehicle, the dealership was not the intended

consumer, and the warranty was intended to benefit the consumer, not the

dealership. Sanchez-Knutson, 52 F. Supp. 3d at 1234; Feldman, 2018 WL

8300534 at *8 (“Additionally a plaintiff can pursue a claim of breach of implied

warranty through third-party beneficiary law.”).

The Court finds more persuasive the decisions finding the third-party

beneficiary exception viable in Florida, including this Court’s dicta in Varner. See

Varner, 2017 WL 3730618 (“Florida law, however, recognizes that, in some

situations, a person who is not a party to a contract can enforce the terms of the

contract if the provisions of the contract primary and directly benefit the third

party[.]”). Otherwise, a manufacturer would always be able to shield itself from

implied warranty claims even though it knows that its intended consumer is not

the dealership. Here, the Plaintiff’s complaint alleges that GM does business in

Florida through its authorized dealerships, ECF No. 1 at ¶ 12, and Plaintiff

purchased a vehicle from one of these dealerships. (Id. at ¶ 124.) GM’s warranties

are intended for consumers of GM vehicles. (Id. at ¶ 147-150.) Viewing the facts

in the light most favorable to the Plaintiff at this stage of the proceedings, the

Court finds that the Plaintiff has stated a claim under the third-party beneficiary

exception.

Second, the Defendant argues that the Plaintiff has failed to allege that the

vehicle is unmerchantable because Plaintiff continued to drive the vehicle. (ECF

11 at 7.) Under Florida law, “[t]o be merchantable,” goods must “[be] fit for the

ordinary purposes for which such goods are used.” Fla. Stat. § 672.316(2)(c).

Cars are fit for the ordinary purpose of transportation. See Tershakovec v. Ford

Motor Co., 2018 WL 3405245 at *9; Amin v. Mercedes-Benz USA, LLC, 301 F.

Supp. 3d 1277, 1287 (N.D. Ga. 2018).

The Plaintiff alleges that his Chevy Silverado begins to shake when it

reaches 70 mph and aggressively shakes from left to right when it reaches 75

mph. (ECF No. 1 at ¶ 127.) The Plaintiff also alleges that this is a “major safety

concern” because the vehicle feels unstable and can cause a loss of control. (Id.

at ¶ 4.) If left unaddressed, the drive shaft defect can cause the part to

deteriorate, “culminating in failure as the shaft drops to the ground and renders

the vehicle undriveable.” (Id.) Based on these allegations, the Court finds that

the Plaintiff has alleged facts that, if proven, would show that the Chevy Shake

affects the drivability and safety of the car. At this stage of the proceedings, that

is all that is required. See Amin, 301 F. Supp. 3d at 1288 (“The defect . . . may

impact the safety, drivability, and usefulness of the Class Vehicles or they may

not. That question will depend on the facts developed through discovery in the

case and is thus not appropriate for resolution on a motion to dismiss.”).

Accordingly, the Court denies the Defendant’s motion to dismiss Count III.

D. Count I – Magnuson-Moss Warranty Act Claims

“[A] Magnuson–Moss Warranty Act claim only exists if a valid breach

of warranty claim is also stated.” Melton v. Cent. Arms, Inc., 243 F. Supp. 3d

1290, 1304 (S.D. Fla. 2017) (Moreno, J.) (citing Bailey v. Monaco Coach Corp.,

168 Fed. App’x 893, 894 n.1 (11th Cir. 2006)). Because the Court declined to

dismiss Counts II and III, the Plaintiff’s Magnuson-Moss Warranty act claim

(Count I) survives with respect to the Florida class only.

E. Count IV - Florida Deceptive and Unfair Trade Practices Act

(FDUTPA)

The Defendant moves to dismiss the Plaintiff’s FDUTPA claim on two

grounds: (1) the Plaintiff’s FDUTPA claim does not meet Rule 9(b)’s heightened

pleading requirements and (2) the Plaintiff did not allege that the Defendant

knew of the defect at the time he purchased the vehicle. (ECF No. 11 at 20-21.)

In response, the Plaintiff argues that Rule 9(b) does not apply to FDUTPA claims

and he has sufficiently alleged that the Defendant had knowledge of the defect

through consumer complaints and service bulletins. (ECF No. 24 at 22-23.) Upon

careful review of the relevant authority, the Court agrees with the Plaintiff.

When a party raises claims of fraud or mistake, it must allege “with

particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P.

9(b). Rule 9(b) serves three main goals: “to provide a defendant with fair notice

of a plaintiff’s claim, to safeguard a defendant’s reputation from ‘improvident

charges of wrongdoing,’ and to protect a defendant against the institution of a

strike suit.” O’Brien v. Nat’l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir.

1991). Thus, while Rule 9(b) contemplates notice and response concerns similar

to Rule 8(a), it also protects a defendant’s interest in his own reputation and

goodwill. See Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th Cir. 1992) (“This

higher standard stems from the obvious concerns that general, unsubstantiated

charges of fraud can do damage to a defendant’s reputation.”).

The Defendant argues that Plaintiff’s FDUTPA claim must meet the

heightened pleading standard of Rule 9(b). However, there is a split of authority

within the Southern District as to whether Rule 9(b) applies to FDUTPA claims.

One line of cases holds that Rule 9(b) applies to the extent the FDUTPA claim at

issue sounds in fraud. See, e.g., Llado-Carreno v. Guidant Corp., 09-cv-20971,

2011 WL 705403, at *5 (S.D. Fla. Feb 22, 2011) (Altonaga, J.); Perret v. Wyndham

Vacation Resorts, Inc., 846 F. Supp. 2d 1327, 1333 (S.D. Fla. 2012) (Seitz, J.);

Begualg Inv. Management Inc. v. Four Seasons Hotel Ltd., No. 10-22153, 2011

WL 4434891 (S.D. Fla. Sep. 23, 2011) (Martinez, J.). Another line of cases holds

that the requirements of Rule 9(b) do not apply to claims under FDUTPA. See,

e.g., FTC v. Student Aid Center, Inc., 281 F. Supp. 3d 1324, 1334 (S.D. Fla. 2016)

(Moreno, J.); Toback v. GNC Holdings, Inc., 13-cv-80526, 2013 WL 5206103, at

*2 (S.D. Fla. Sept. 13, 2013) (Cohn, J.); Harris v. Nordyne, LLC, 14-cv-21884,

2014 WL 12516076, at *4 (S.D. Fla. Nov. 13, 2014) (Bloom, J.).

The goal of Florida’s Deceptive and Unfair Trade Practices Act is to “protect

the consuming public and legitimate business enterprises from those who

engage in unfair methods of competition, or unconscionable, deceptive, or unfair

acts or practices in the conduct of any trade or commerce.” Fla. Stat. §

501.202(2) (2013). As the Eleventh Circuit has held, “the proscription against

unfair and deceptive acts and practices sweeps far more broadly than the

doctrine of fraud or negligent misrepresentation, which asks only whether a

representation was technically accurate in all material respects.” Hetrick v. Ideal

Image Dev. Corp., 372 F. App’x 985, 992 (11th Cir. 2010). “FDUTPA’s elements

are more particularized than those of common law fraud.” Harris, 2014 WL

12516076 at *5. Therefore, Rule 9(b)’s concerns with subjecting defendants to

unfounded allegations of fraud is lessened by the specificity required under

FDUTPA. Because “FDUTPA claims seek a remedy for conduct distinct from

traditional common law torts such as fraud[,]” the Court finds that “the

uniqueness of the cause of action place[s] it outside the ambit of Rule 9(b).”

Harris, 2014 WL 12516076 at *4. Accordingly, this Court joins the decisions

holding that the requirements of Rule 9(b) do not apply to a claim under FDUTPA.

The Defendant also argues that the Plaintiff’s FDUTPA claim must fail

because Plaintiff did not allege that GM knew of the alleged defect at the time

the Plaintiff purchased his vehicle. The Court finds that the Plaintiff’s allegations

sufficiently allege GM’s knowledge. The Plaintiff alleges that “GM knew from the

time of manufacture that the drive shafts contained a dangerous, inherent defect

from the point of manufacture that caused the Class Vehicles to exhibit the

Chevy Shake.” (ECF No. 1 at ¶ 17.) GM’s knowledge prior to the Plaintiff’s

purchase in 2015 came from complaints to the National Highway Transportation

Safety Administration in 2014 and online complaints in web forums and social

media as early as 2013. (Id. at ¶ 118.) GM also published a service bulletin in

2014 acknowledging that “[s]ome customers may comment about a vibration at

speeds of 56-72 km/h (35-45 mph) or 96-120 km/h (60-70mph), which can be

felt in either the seat or steering wheel.” (Id. at 112; ECF No. 1-3.) Construing

these allegations in the light most favorable to the Plaintiff, the Court finds that

the Plaintiff has sufficiently alleged GM’s knowledge of the defect. See Horton v.

Hoosier Racing Tire Corp., 15-cv1453, 2015 WL 12859316, at *3 (M.D. Fla. Dec.

15, 2015). Accordingly the Defendant’s motion to dismiss Count IV is denied.

Count IV also seeks injunctive and declaratory relief. (ECF No. 1 at ¶ 179.)

The Defendant moves to strike these allegations because the Plaintiff does not

have standing to pursue a Rule 23(b)(2) class where there is no threat of future

injury and all of Plaintiffs claims are redressable by a damages award.

“Defendants are confusing the requirements for injunctive or declaratory relief

under federal statutes with the quite different requirements under the FDUTPA.”

Galstaldi v. Sunset Communities USA, LLC, 637 F. Supp. 2d 1045, 1057 (S.D.

Fla. 2009). The FDUTPA statute states as follows:

Without regard to any other remedy or relief to which a

person is entitled, anyone aggrieved by a violation of

this part may bring an action to obtain a declaratory

judgment that an act or practice violates this part and

to enjoin a person who has violated, is violating, or is

otherwise likely to violate this part.

Fla. Stat. § 501.211(1). A plain reading of the statute indicates that the Plaintiff

is entitled to declaratory and injunctive relief “without regard to any other

remedy or relief to which a person is entitled.” Id. “There is no requirement that

a plaintiff show an ongoing practice or irreparable harm, and declaratory relief

is available regardless of whether an adequate remedy at law also exists.”

Galstaldi, 637 F. Supp. 2d at 1057. Thus, the Court denies the Defendant’s

motion to strike the Plaintiffs request for injunctive and declaratory relief.

IV. Conclusion

Based on the foregoing, the Court grants in part and denies in part the

Defendant’s motion. (ECF No. 11.) The Defendant’s claims as to the nationwide

class are dismissed. Accordingly, Count I will remain as to the Florida sub-class

only. The Defendant’s motion as to Counts IJ, IJ], and IV is denied. The

Defendant's motion to stay discovery (ECF No. 27) is denied as moot.

Done and ordered at Miami, Florida, on October 22, 2019.

f= N. Scola, Jr.

United States District Judge