# Weiss v. General Motors LLC

> District Court, S.D. Florida · October 22, 2019

URL: https://www.frixlaw.com/law-library/cases/10117077

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 22, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10117077

## How later opinions describe it (automated extraction)

- applying Florida law, analyzing same warranty language, and rejecting GM’s reading of the contract language

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10117077. Public record. Not legal advice.