TAYLOR v. BMW OF NORTH AMERICA, LLC

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NICHOLAS TAYLOR, and

Civ. No. 20-1994 (KM)(JBC)

CHRISTINE HAMMOND

Plaintiffs, OPINION

v.

BMW OF NORTH AMERICA, LLC, et

al.,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Pro se plaintiffs Christine Hammond and Nicholas Taylor initiated this

products liability action against defendants BMW of North America, LLC (“BMW

NA”); Bavarian Motor Works AG (“BMW AG”)1; and David Bergamatto Park Ave

BMW (“Bergamatto”).2 Plaintiffs allege that they purchased a defective BMW

vehicle that was designed, manufactured, distributed, marketed, and sold by

Defendants BMW NA and BMW AG. Plaintiffs also allege that Bergamatto

committed various violations of the New Jersey criminal code. Defendants

1 Defendant BMW NA understands named defendant “Bavarian Motor Works AG”

to mean Bayerische Motoren Werke Aktiengesellchaft, which is the German entity that

designs and manufactures BMW brand automobiles. (DE 13-1 at 7 n.1). Defendant

BMW NA imports, distributes, and warrants the vehicles that BMW AG designs and

manufactures. (Id.). For simplicity, references to BMW NA herein should be taken to

include BMW AG as necessary.

2 The dealership, Park Avenue BMW, understood itself to be named as the

defendant. (See DE 7). It appears that plaintiffs may have intended to name an

individual, Dave Bergamatto of Park Avenue BMW. See Proof of Service (DE 9) (“Dave

Bergamatto of Park Avenue BMW,” served at a South Hackensack, NJ, address

associated with the Park Avenue BMW dealership). Alternatively, they may have

intended to name Dave Bergamatto and Park Ave BMW. I will refer to this defendant

as “Bergamatto,” but such references should be understood to include the Park

Avenue BMW dealership as appropriate.

Bergamatto and BMW NA separately move to dismiss the Complaint for lack of

subject matter jurisdiction and for failure to state a claim. (DE 7, DE 13). See

Fed. R. Civ. P. 12(b)(1), 12(b)(2).

For the benefit of these pro se plaintiffs, I summarize the basis for my

decision. The Complaint consists largely of state-law claims; if this federal

court is to hear them, some basis for jurisdiction must be demonstrated.

As one basis for this federal court’s jurisdiction over state-law claims, the

Complaint alleges “minimal diversity”— i.e., that at least one plaintiff is a

citizen of a state different from that of at least one defendant. But jurisdiction

in an individual action like this one depends on complete diversity—i.e., that at

the time the action was commenced, no plaintiff and no defendant were citizens

of the same state. That is not alleged, and it does not appear to be the case.

The other potential basis for federal jurisdiction would be the existence of

a federal question. The Complaint does allege one federal claim under the

Magnuson-Moss Warranty Act (“MMWA”), which federalizes certain state-law

claims of breach of warranty. As currently alleged, however, that count of the

complaint will be dismissed for failure to state a claim. The warranty expired in

September 2019, and the Complaint does not allege that BMW NA failed to

perform under the warranty during its term; it alleges only a series of service

calls in 2017, and a fear that further repairs are likely to be necessary in the

future. Because that federal claim has been dismissed, I decline to exercise

supplemental jurisdiction over the remaining, state-law claims.

The Defendants may or may not be liable for defects in the automobile on

some consumer fraud theory, some amended warranty theory, or some other

state-law theory. On these matters, the Court takes no position, because it

lacks jurisdiction.

Because this is an initial dismissal, it is entered without prejudice to the

submission, within 30 days, of a proposed amended complaint that remedies

the deficiencies in the MMWA count. Alternatively, the plaintiffs may elect to

file these predominantly state-law claims in state court.

I. Summary3

As alleged in the Complaint, Plaintiffs are residents of New York and New

Jersey4 who purchased a certified pre-owned 2013 BMW 750li “equipped with

4.4 liter V-8 turbocharged ‘N63’ engine” on November 5, 2016. (Compl. ¶¶1, 3,

20). Plaintiffs purchased the vehicle under Defendant’s Certified Pre Owned

Warranty (“CPO Warranty”) from Greenwich BMW, an authorized BMW retailer

located in Connecticut.5 (Compl. ¶¶20-21). Plaintiffs allege that the “vehicle

was designed, manufactured, sold, distributed, advertised, marketed, and

warranted by BMW.” (Compl. ¶20).

Defendant BMW AG is a German corporation with its principal place of

business located in Munich. (Compl. ¶27). Plaintiffs allege that BMW AG is the

parent corporation of BMW NA, a Delaware corporation with its principal place

of business in New Jersey. (Compl. ¶¶27-28). Plaintiffs further allege that BMW

NA is the United States sales and marketing division of BMW AG, “which

oversees sales and other operations across the United States.” (Compl. ¶28).

BMW NA distributes “BMW vehicles and sells these vehicles through its

network of dealers,” which are the agents of BMW NA and BMW AG. (Compl.

¶¶28-29). Plaintiffs further allege that there is “a unity of ownership” between

BMW NA and BMW AG, and their agents, “such that any individuality or

separateness between them has ceased and each is the alter ego of the others.”

(Compl. ¶30).

The Complaint alleges two defects that plagued Plaintiff’s vehicle. First,

Plaintiffs submit that the vehicle contained an “Oil Consumption Defect” in the

3 Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“Compl.” = Plaintiffs’ Complaint (DE 1)

4 The Complaint alleges that Plaintiffs reside in “Yonkers, New York and

Paterson, New Jersey.” (Compl. ¶1).

5 Not the New Jersey dealership, Park Avenue BMW, referred to in connection

with defendant Bergamatto.

engine. (Compl. ¶4). On January 10, 2017, “with approximately 22,036 miles

on the odometer,” Plaintiff visited a BMW service center “for complaints

regarding the oil being consumed at an abnormally high rate.” (Compl. ¶22).

BMW technicians serviced the engine oil under warranty and “recommended

that the oil consumption be monitored.” (Id.). Then, on March 15, 2017, “with

26,482 miles on the odometer, Plaintiffs “returned to the dealership for oil,

brake fluid and the car shaking.” (Compl. ¶23). On April 18, 2017, Plaintiffs

took the vehicle back to the service center, “with 27,928 miles on the

odometer,” because the “low oil light” had activated. (Compl. ¶24). Plaintiffs

allege that they were told to return to the service center “when the oil level light

is back on in 1,000 miles” because the vehicle “was consuming an abnormal

amount of oil.” (Id.). Thereafter, Plaintiffs brought the vehicle to the service

center on five additional occasions “due to complaints of abnormal oil

consumption, engine malfunction and the car shaking.” (Compl. ¶25). Plaintiffs

submit that, on each visit, they were “advised that the high rate of oil

consumption was ‘normal.’” (Id.).

Plaintiffs allege that Defendants learned of the Oil Consumption Defect

as early as 2008 from “pre-release testing data, early consumer complaints . . .,

testing conducted in response to those complaints, aggregate data from BMW

dealers, including dealer repair orders and high warranty reimbursement rates

. . ., and from other internal sources.” (Compl. ¶40). Further, they allege that

“Defendants had a duty to disclose the Oil Consumption Defect and the

associated out-of-pocket repair costs to the Plaintiffs because the defect poses

an unreasonable safety hazard,” and “Defendants had exclusive knowledge or

access to material facts about the vehicle and engines that were and are not

known or reasonably discoverable.” (Compl. ¶41).

Second, the Complaint alleges that the Plaintiffs’ vehicle contained a

“Battery Defect” in that Plaintiffs were required to “replace the battery as often

as every ten thousand [miles] or one year, well before the useful life of an

automotive battery.” (Compl. ¶4). Plaintiffs allege that “the premature battery

wear is the result of excessive energy demands placed on the battery by the

N63 engine’s cooling system components.” (Compl. ¶8). Defendants, they

allege, “failed to incorporate in their initial design a power source that could

adequately provide for the N63’s energy demands, instead providing an

insufficient 90 ampere hour (Ah) battery as original equipment.” (Id.). The

Complaint alleges that Defendants first acknowledged the Battery Defect in

December 2014, when they issued Technical Service Bulletin SI B61 30 14

which “instructed BMW dealers to replace the batteries of vehicles with the N63

engine at every engine oil service covered under the 4 year/50,000 miles BMW

Maintenance Program.” (Compl. ¶9).

Plaintiffs’ core grievance seems to be this: “Defendants have taken no

steps to provide a remedy for the Plaintiffs’ vehicle once the Certified Pre

Owned Warranty expires,” and, upon the warranty’s expiration, “Plaintiffs will

be forced to replace their vehicle’s battery as often as once a year or 10,000

miles, at a significant expense.” (Compl. ¶¶52-53).

The Complaint alleges that Defendants were aware of both the Oil

Consumption Defect and the Battery Defect but “have fail[ed] to disclose and

ha[ve] actively concealed the existence and nature of the defects from Plaintiff

at the time of purchase or lease and thereafter.” (Compl. ¶55). Plaintiffs further

allege that “Defendants have not recalled the vehicle to remedy the def[ects]

and ‘have not offered to reimburse the vehicle owners who incurred costs

relating to oil consumption, battery, and related problems.” (Compl. ¶58).

Thus, Plaintiffs allege, they “have not received the value for which they

bargained when they purchase[d] the vehicle.” (Compl. ¶61). The Complaint

does not detail the amount, if any, that Plaintiffs paid out-of-pocket to repair

their vehicle. Plaintiffs submit only that “Defendants have caused [them] to

expend money at their dealerships and service centers and/or to take other

remedial measures.” (Compl. ¶57).

The Complaint asserts the following causes of action against Defendants

BMW NA and BMW AG:

Count 1 – Violations of the New Jersey Consumer Fraud Act

(“NJCFA”), N.J. Stat. Ann. §§ 56:8-1, et seq.,

Count 2 – Breach of Express Warranty

Count 3 – Breach of Implied Warranty

Count 4 – Breach of the Covenant of Good Faith and Fair Dealing

Count 5 – Violation of the Magnuson-Moss Warranty Act

(“MMWA”), 15 U.S.C. § 2301

Count 6 – Connecticut Unfair Trade Practices Act, Conn. Gen.

Stat. §§ 42-110a through 42-110q

Count 7 – New Jersey Unfair Trade Practices, N.J. Stat. Ann. §

56:8-2

Count 8 – Fraud by Omission

Count 9 – Unjust Enrichment

(Compl. ¶¶71-182).

The Complaint also asserts violations of New Jersey’s criminal code

against Defendant Bergamatto. (Compl. ¶¶187-198). The criminal allegations

involve an altercation between Plaintiffs and David Bergamatto at a separate

dealership, Park Avenue BMW in South Hackensack, New Jersey. Plaintiffs

allege that “as they were attempting to get into their vehicle and leave BMW of

Park Ave,” Bergamatto “stood behind Plaintiff[’]s car and would not allow her to

continue her daily routine.” (Compl. ¶186). Plaintiffs allege that they “were

unlawfully restrained so they were not able to leave at their own liberty.”

(Compl. ¶192). Further, they allege that when Bergamatto stood behind their

vehicle, he “call[ed] the local authorities and falsely made a report to the police

that Plaintiffs were trespassing and that he wanted Plaintiffs off of private

property.” (Compl. ¶195).

Plaintiffs filed criminal charges against Bergamatto in South Hackensack

municipal court. The final portion of the civil complaint here reproduces those

State charges, which apparently remain pending. The Plaintiffs here assert six

violations of New Jersey criminal law: N.J. Stat. Ann. §§ 2C:33-4(b)

(harassment), 2C:33-2(2)(b) (Disorderly Conduct), 2C:13-3 (False

Imprisonment), 2C:28-4(b)(1)(2) (False report to Law Enforcement), and 2C:28-

3(a)(b)(1)(2)(3)(4)(Unsworn falsification to authorities). As alleged in the

Complaint, Bergamatto filed criminal charges against Plaintiffs as well. (Compl.

¶198)6

Defendants BMW NA and Bergamatto separately move to dismiss the

Complaint on various grounds. (DE 7, 13) BMW NA submits that the matter

should be dismissed because (1) there is no diversity of citizenship, and the

sole federal claim is defective on its face, so subject matter jurisdiction is

lacking; (2) Plaintiffs lack Article III standing; and (3) each state law claim is

deficient. (DE 13-1 at 6-22). Bergamatto argues that the Complaint should be

dismissed because (1) the Court lacks subject matter jurisdiction over the

action; (2) venue in this District is improper; and (3) the Complaint fails to

state a claim upon which relief can be granted. (DE 7-1 at 3-16).

Plaintiffs’ responses take the form of an answer to a complaint. (DE 18;

duplicate filing at DE 23) While unsigned and containing no case law, it

appears to contain Plaintiffs’ response to Defendants’ arguments. In light of

Plaintiffs’ pro se status, I will consider it, and will independently analyze the

merits of Defendants’ contentions.

II. Applicable Standards

In considering a motion to dismiss, a court must bear in mind that pro se

complaints are held to less stringent standards than formal pleadings drafted

by lawyers. Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d

1081 (2007); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed.

2d 652 (1972); see Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (“Courts

are to construe complaints so as to do substantial justice . . . keeping in mind

that pro se complaints in particular should be construed liberally.” (citations

omitted)). This does not, however, absolve a pro se plaintiff of the need to

adhere to the Federal Rules of Civil Procedure. See, e.g., Fantone v. Latini, 780

6 Thus, the parties filed in the municipal court what amount to cross-complaints.

Bergamatto submits an attorney affidavit attaching certain public records of the South

Hackensack Municipal Court. (DE 7-1) The allegations against Bergamatto in this

action appear to be simply a reproduction of those criminal charges, with no attempt

made to state a civil cause of action.

F.3d 184, 193 (3d Cir. 2015) (“a pro se complaint . . . must be held to ‘less

stringent standards than formal pleadings drafted by lawyers;’ . . . but we

nonetheless review the pleading to ensure that it has ‘sufficient factual matter;

accepted as true; to state a claim to relief that is plausible on [its] face.’”);

Badger v. City of Phila. Office of Prop. Assessment, 563 F. App’x 152, 154 (3d

Cir. 2014) (“[E]ven a pro se complaint must state a plausible claim for relief.”).

I have construed the plaintiffs’ pleadings in that liberal spirit, and have

opted to disregard certain procedural irregularities.

A. Rule 12(b)(6) Motion to Dismiss

Federal Rule of Civil Procedure 8(a) does not require that a pleading

contain detailed factual allegations but “more than labels and conclusions.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must raise

a claimant’s right to relief above a speculative level, so that a claim is “plausible

on its face.” Id. at 570. That standard is met when “factual content [] allows the

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

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12(b)(6)

provides for the dismissal of a complaint if it fails to state a claim. The

defendant bears the burden to show that no claim has been stated. Davis v.

Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016). I accept facts in the complaint

as true and draw reasonable inferences in the plaintiff’s favor. Morrow v.

Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc).

When deciding a motion to dismiss, a court typically does not consider

matters outside the pleadings. However, a court may consider documents that

are “integral to or explicitly relied upon in the complaint” or any “undisputedly

authentic document that a defendant attaches as an exhibit to a motion to

dismiss if the plaintiff’s claims are based on the document[.]” In re Rockefeller

Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999) (emphasis and

citations omitted); see In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125,

133 n.7 (3d Cir. 2016); Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

Here, for example, I consider the warranty on which Plaintiffs base

certain of their claims.

Typically, the court may take judicial notice of the existence of pleadings

in another court, where their authenticity is not challenged:

[O]n a motion to dismiss, we may take judicial notice of another

court's opinion—not for the truth of the facts recited therein, but for

the existence of the opinion, which is not subject to reasonable

dispute over its authenticity. See Kramer v. Time Warner Inc., 937

F.2d 767, 774 (2d Cir. 1991); United States v. Wood, 925 F.2d 1580,

1582 (7th Cir. 1991); see also Funk v. Commissioner, 163 F.2d 796,

800–01 (3d Cir. 1947) (whether a court may judicially notice other

proceedings depends on what the court is asked to notice and on the

circumstances of the instant case).

S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d

410, 426-27 (3d Cir. 1999). See generally Fed. R. Evid. 201.

Here, for example, I note the existence of criminal cross-complaints in

the South Hackensack Municipal Court, without, of course, taking a position

on the truth of the allegations therein.

B. Rule 12(b)(1) Jurisdictional Challenge

A motion to dismiss for lack of subject matter jurisdiction pursuant to

Fed. R. Civ. P. 12(b)(1) may be raised at any time. Iwanowa v. Ford Motor Co.,

67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). “[B]ecause subject matter

jurisdiction is non-waivable, courts have an independent obligation to satisfy

themselves of jurisdiction if it is in doubt. See Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 278, 97 S. Ct. 568, 50 L.Ed.2d 471 (1977). A

necessary corollary is that the court can raise sua sponte subject-matter

jurisdiction concerns.” Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76–77 (3d

Cir. 2003).

Jurisdiction must be established as a threshold matter. Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S. Ct. 1003, 140 L. Ed. 2d 210

(1998). A motion to dismiss pursuant to Rule 12(b)(1) may be brought as a

facial or factual challenge. See Church of the Universal Bhd. v. Farmington Twp.

Supervisors, 296 F. App’x 285, 288 (3d Cir. 2008). Where the motion challenges

jurisdiction on the face of the complaint, the court considers only the

allegations of the complaint and documents referred to therein in the light most

favorable to the plaintiff. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176

(3d Cir. 2000) (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884,

891 (3d Cir. 1977)). The standard is thus equivalent to that on a Rule 12(b)(6)

motion.

By contrast, where the existence of subject matter jurisdiction is

challenged factually, “no presumptive truthfulness attaches to the plaintiff’s

allegations,” and the court may consider evidence outside the pleadings to

satisfy itself of its power to hear the case. Id. Thus “Rule 12(b)(1) does not

provide plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming

the truth of the plaintiff's allegations.” CNA v. United States, 535 F.3d 132, 144

(3d Cir. 2008). See also Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105

(3d Cir. 2015).

III. Discussion

A. Subject Matter Jurisdiction

A federal court is a court of limited jurisdiction and may hear a case only

if some statute grants it subject matter jurisdiction. With one exception, the

Complaint asserts state-law causes of action, which ordinarily would be

pursued in state court. If these claims are to be pursued in federal court, some

basis for this Court’s subject matter jurisdiction must be alleged and

demonstrated.

The two essential bases for federal jurisdiction are diversity of state

citizenship, 28 U.S.C. § 1332(a), and the existence of a federal question, 28

U.S.C. § 1331. Diversity jurisdiction, if applicable, would permit the Court to

hear all of the state law claims. The presence of a valid federal-law claim would

give this court a jurisdictional toehold for supplemental jurisdiction over

related state law claims that are deemed to be part of the same case or

controversy. See 28 U.S.C. § 1367.

1. Diversity

Setting aside the Magnusson-Moss Warranty Act claim, discussed below,

all of the claims in the Complaint arise under state law. One potential basis for

a federal court’s subject-matter jurisdiction over such state-law claims—

indeed, the basis that is pled in the Complaint—is diversity jurisdiction under

28 U.S.C. § 1332(a). (Compl. ¶17). Complete diversity of citizenship, however, is

not pled here. Moreover, the evidence before the Court suggests that this is no

mere pleading error; diversity of citizenship appears to be lacking in fact.

It is fundamental that diversity jurisdiction exists only when there is

“complete diversity” of the parties. 28 U.S.C. § 1332(a); Strawbridge v. Curtiss,

7 U.S. (3 Cranch) 267 (1806). In other words, “every plaintiff must be of diverse

state citizenship from every defendant.” In re Briscoe, 448 F.3d 201, 215 (3d

Cir. 2006). I therefore examine the pleadings, and also the evidence pertinent

to jurisdiction that has been placed before the Court.

For diversity purposes, an individual plaintiff’s state citizenship is that

person’s domicile at the time the action is filed. GBForefront, L.P. v. Forefront

Mgmt. Grp., LLC, 888 F.3d 29, 34 (3d Cir. 2018). Technically, the complaint

does not allege the Plaintiffs’ domicile as such; it does allege, however, that the

plaintiffs’ addresses are in Paterson, New Jersey, and Yonkers, New York. At

the time of filing of the action, February 25, 2020, plaintiffs Hammond and

Tyler signed the complaint, giving their address as Genesee Avenue in

Paterson, New Jersey. (Compl. at 33). The address of record they gave the

Court, too, was Genesee Avenue in Paterson, New Jersey. (See case docket.)

There is an indication of a subsequent change of address, which is not relevant

to the jurisdictional question. By letter filed on the docket on November 11,

2020, plaintiff Nicholas Taylor advised the Court that “both plaintiffs ha[d]

recently moved” from Paterson, New Jersey, to Yonkers, New York, and

requested that future correspondence be directed to the Yonkers address. (DE

14). But Plaintiffs’ subsequent responses to this motion to dismiss, filed

January 21 and February 12, 2021, continue to list the Paterson, NJ address.

(DE 18, 23). All of the evidence placed before the Court points to at least one

plaintiff’s New Jersey citizenship at the time the Complaint was filed.

The Complaint alleges that Defendant BMW NA is likewise a citizen of

New Jersey. (Compl. ¶¶ 18, 66). The state citizenship of defendant Bergamatto

is not alleged. At any rate, the complaint lacks any allegation, even a general

one, that BMW NA, Bergamatto himself, or the dealership (Park Ave BMW), is a

citizen of some state other than New Jersey.7

The Complaint alleges that “there is minimal diversity because at least

one plaintiff and one defendant are citizens of different states.” (Compl. ¶17).

Minimal diversity is insufficient, however; as noted, every plaintiff must be

diverse from every defendant. At best, the citizenship of the plaintiffs has not

been adequately alleged. Indeed, the Complaint comes very close to

affirmatively alleging that at least one plaintiff and one defendant are citizens of

New Jersey. Either way, there is no sufficient allegation that the parties are of

diverse citizenship.8 Diversity jurisdiction is therefore lacking.

7 It is inferable that Bergamatto is employed by the dealership in New Jersey, but

the complaint and the papers submitted in evidence do not contain his home address.

The entity (possibly) named as a defendant seems to be Park Avenue BMW, a

dealership located not far from Plaintiffs’ residence in Paterson. (Certain papers

attached to its motion papers bear the heading “Park Avenue Motor Corp.”). In its

motion to dismiss, Park Avenue BMW confirms that it is a dealership located at 530

Huyler Street in South Hackensack, NJ. That is also the location at which the plaintiff

served Bergamatto with the summons and complaint. (DE 9). Assuming that the

dealership is a corporation, it is a citizen of the state of its incorporation and principal

place of business. 28 U.S.C. § 1332(c). If a partnerhip or LLC, it shares the citizenship

of its constituent members. Americold Realty Tr. v. Conagra Foods, Inc., 136 S. Ct.

1012, 1014–15 (2016) (“While humans and corporations can assert their own

citizenship, other entities take the citizenship of their members.”). Where that

information remains unknown to the plaintiff after reasonable inquiry, plaintiff may

allege more generally that the entity is a citizen of a different state, leaving the facts to

be explored in discovery. See GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d

29, 34 (3d Cir. 2018).

8 I do not reach the second requirement of diversity jurisdiction, that the amount

in controversy exceed $75,000. It appears likely that the price of even an entire

replacement 2013 BMW, let alone the allegedly defective components, would not

approach $75,000. There is, however, a demand for $250,000 in punitive damages.

Punitive damages may count toward the jurisdictional amount. See Frederico v. Home

2. Federal question

An alternative potential basis for this Court’s subject matter jurisdiction

is “federal question” jurisdiction. Federal question jurisdiction exists for “all

civil actions arising under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. For a claim to “arise under” the Constitution, federal

law, or a treaty, “a right or immunity created by the Constitution or laws of the

United States must be an element, and an essential one, of the plaintiffs’ cause

of action.” Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127 (1974) (citing

Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 112 (1936)).

All claims against Bergamatto, and all but one claim against the

remaining defendant, BMW NA, are state-law claims. The only federal-law

claim against BMW NA is the MMWA claim (Count V). That is the only potential

basis for federal-question jurisdiction, and, should it be dismissed, the entire

federal case would fall with it.

a. Bergamatto

The Complaint alleges that Mr. Bergamatto obstructed Plaintiffs’ exit

from the Park Ave BMW dealership and harassed them, in violation of various

provisions of the New Jersey criminal code. (Compl. ¶¶183-198). None of these

are civil causes of action at all. They are frivolous on their face, and if I took

jurisdiction as an initial matter, I would surely dismiss them on a Rule 12(b)(6)

standard. As relevant to jurisdiction, however, the point is that they arise, if at

all, under New Jersey state law.

No federal cause of action is asserted against Bergamatto. The allegations

against Dave Bergamatto/Park Ave BMW do not give rise to federal question

jurisdiction under 28 U.S.C. § 1331.

b. BMW NA

There is only one claim in the complaint that even purports to be a

federal-law claim: Plaintiffs’ MMWA claim against BMW NA. That, to be sure,

Depot, 507 F.3d 188, 198 (3d Cir. 2007). I do not reach the issues of whether punitive

damages are legally available or plausibly alleged.

would be sufficient to support federal-question jurisdiction, so I accept

jurisdiction, at least provisionally. Defendant BMW NA submits, however, that

the MMWA claim is insufficient as a matter of law. If it is dismissed, then the

basis for this court’s federal-question jurisdiction disappears. I therefore

consider the sufficiency of the MMWA claim, and then the jurisdictional

implications of dismissal.

i. Motion to dismiss MMWA claim

Here, BMW NA submits that Plaintiffs’ MMWA claim must be dismissed

because they have not sufficiently pleaded a viable underlying breach-of-

warranty claim. (DE 13-1 at 12-16). Plaintiffs may have other viable causes of

action against BMW NA—I make no ruling on that—but I agree that the MMWA

claim is insufficient. In short, the Complaint appears to allege that BMW NA

serviced the car under the warranty in 2017, during its term (it expired in

2019), but does not plausibly allege any out-of-pocket expense, complaining

primarily that repairs are likely to be necessary in the future.

In relevant part, the MMWA provides that “a consumer who is damaged

by the failure of a supplier, warrantor, or service contractor to comply with any

obligation under this chapter, or under a written warranty, implied warranty,

or service contract, may bring suit for damages and other legal and equitable

relief.” 15 U.S.C. § 2310(d)(1). The MMWA itself does not “provide any

substantive law, but rather imports state law on implied and express

warranties.” Marcus v. BMW of N. Am., LLC, No. 08-5859 KSH, 2010 WL

4853308, at *7 (D.N.J. Nov. 19, 2010), vacated and remanded on other grounds,

687 F.3d 583 (3d Cir. 2012); see also Cooper v. Samsung Elecs. Am., Inc., No.

07-3853, 2008 WL 4513924, at *6 (D.N.J. Sept. 30, 2008), aff’d, 374 F. App’x

250 (3d Cir. 2010) (“Magnuson–Moss claims based on breaches of express and

implied warranties under state law depend upon those state law claims.”).

Thus, the viability of Plaintiffs’ Count V MMWA claim is premised on the

viability of the state-law express and implied warranty claims asserted in

Counts II and III.

a. Express Warranty Claim

Straight breach of warranty

I consider first a straight breach-of-warranty theory. Commonly, an

express warranty requires the seller to perform certain acts, such as repair and

replace defective parts, for a specified time period. Generally, “an express

warranty does not cover repairs made after the applicable time . . . ha[s]

elapsed.” Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 616 (3d

Cir. 1995) (alteration in original) (quoting Abraham v. Volkswagen of Am., Inc.,

795 F.2d 238, 250 (2d Cir.1986)) (rejecting the argument that a MMWA claim

may be asserted for defects that were not discovered until after the warranty

period.). “That rule applies regardless of whether the defect existed prior to the

expiration of the warranty.” Alban v. BMW of N. Am., LLC, No. 09-5398, 2010

WL 3636253, at *6 (D.N.J. Sept. 8, 2010).

Plaintiffs’ real agenda here seems to be an extension of the duration of

the warranty. There seems to be no out-of-pocket loss alleged. The essential

grievance asserted is this: “Defendants have taken no steps to provide a

remedy for the Plaintiffs’ vehicle once the Certified Pre Owned Warranty

expires,” and, upon the warranty’s expiration, “Plaintiffs will be forced to

replace their vehicle’s battery as often as once a year or 10,000 miles, at a

significant expense.” (Compl. ¶¶52-53).

There is no clear allegation that the Defendants ever failed to honor the

warranty during its term, or that they charged Plaintiffs for repairs that should

have been covered by the warranty.9 Rather, Plaintiffs allege that they may

incur damages after the warranty expires. (Compl. ¶¶52-53). The warranty

expired in September 2019. There is no actionable express warranty claim

9 The only allegation that comes close is a vague statement that “Defendants

have caused [Plaintiffs] to expend money at their dealerships and service centers

and/or to take other remedial measures.” (Compl. ¶57). That is far too vague to set

forth a breach of Defendant’s warranty obligations.

going forward for costs incurred after the expiration of the warranty period.

Duquesne, 66 F.3d at 616.

Thus, no valid express warranty claim is pled. 10

10 In light of Plaintiffs’ pro se status, I briefly discuss a claim that is not pled but

might be the subject of amendment: a claim that the warranty failed of its essential

purpose. The overriding concern of such a claim is that the seller may run out the

clock on the warranty while failing to fix the problem.

In In re Caterpillar , Inc., C13 and C15 Engine Products Liability Litigation, No.

14-3722, 2015 WL 4591236, at *20 (D.N.J. July 29, 2015), the district court

considered an express warranty claim under UCC 2-313 that the goods failed to

conform to the seller’s description. Id. at 23. That court held that the plaintiffs

“adequately alleged that [the defendant] breached the Engine Warranty because

Plaintiffs presented their vehicles for service during the warranty period, and despite

repeated attempts, Caterpillar was unable to repair the defect.” Id. Therefore, the court

found that the plaintiffs “sufficiently pleaded that the Engine Warranty failed of its

essential purpose.” Id. That essential purpose, presumably, was to ensure that a

covered defect is repaired or replaced within the warranty period.

Here, the Complaint alleges that, while the warranty was in effect, Plaintiffs

brought their vehicle in to be serviced by BMW. On January 10, 2017, the engine oil

was serviced under warranty. (Compl. ¶22). After that, Plaintiffs returned to the

dealership, with various complaints, including excessive oil consumption, apparently

all in 2017. (Compl. ¶¶23-25). It is not clear from the Complaint what further services

were provided, or whether such services were covered under warranty. Plaintiffs do

generally allege multiple visits and ongoing complaints of excessive oil consumption

and/or battery depletion.

Critically, however, this action was filed in 2020, and Plaintiffs do not allege any

issues after 2017. As of 2017, the warranty still had two years to run; it expired only

in September 2019. (DE 13-2 at 5) The Complaint was filed in February 2020, almost

three years after the last allegation of abnormal oil consumption. What happened, if

anything, after 2017 is not alleged.

What Plaintiffs are alleging is that they believe they will have to replace the

vehicle’s battery as often as once a year or every 10,000 miles. (Compl. ¶¶52-53). As

explained by the Caterpillar court, the failure of essential purpose doctrine allows

courts to “set aside a limited remedy and permit alternative recovery,” but a plaintiff

“may not invoke the doctrine to void the durational limits” of a warranty. 2015 WL

4591236 at *24. The facts as alleged would not permit the court to override the

durational limits of the now-expired CPO Warranty—at least not without further facts

not alleged here.

Unconscionability

Plaintiffs also submit that the CPO warranty is unconscionable, primarily

because Defendants allegedly knew beforehand of defects that would manifest

themselves outside the warranty period.11 (Compl. ¶93)

Unconscionability may be “substantive” or “procedural.” Skeen v. BMW of

N. Am., LLC, No.13-1531, 2014 WL 283628, at *13-14 (D.N.J. Jan. 24, 2014). A

contract term is substantively unconscionable if it is “excessively

disproportionate” and involves an “exchange of obligations so one-sided as to

shock the court’s conscience.” Id. Procedural unconscionability focuses on the

circumstances of the negotiation and the personal circumstances of the

negotiators. Id.

In In re Caterpillar, Inc., C13 and C15 Engine Products Liability Litigation,

a court in this district court explained two lines of cases concerning alleged

unconscionable express warranties due to the defendant’s knowledge of a

defect prior to sale:

Numerous courts in this District have had occasion to address

similar unconscionability arguments in the context of express

warranty claims. Two lines of cases have emerged. In the first,

courts have permitted breach of express warranty claims to

proceed to discovery where plaintiffs sufficiently alleged a

manufacturer’s knowledge of a defect prior to sale. See In re

Samsung DLP Television Class Action Litig., Civ. 07–2141(GEB),

2009 WL 3584352, at *5 (D.N.J. Oct. 27, 2009) (finding that

plaintiffs adequately alleged procedural and substantive

unconscionability where defendant knew of defect at time of sale,

consumers had no meaningful choice in time limitations of

11 The complaint also suggests more directly that the warranty’s time limits are so

short as to deny consumers adequate protection (Compl. ¶94). This warranty,

designed to run six years from the original purchase of the car, ran for three years

from Plaintiffs’ purchase of the used car in 2016. No case of which I am aware has

held a six-year new car warranty or a three-year used car warranty to be

unconscionably short. See, e.g., Amato v. Subaru of Am., Inc., No. CV 18-16118, 2019

WL 6607148, at *9-11 (D.N.J. Dec. 5, 2019) (finding a three-year warranty not

unconscionably short); Caterpillar, 2015 WL 4591236 at 20 (finding that a warranty’s

durational limit of two years was not categorically unconscionable); Nelson v. Nissan

N. Am., Inc., 894 F. Supp. 2d 558, 565 (D.N.J. 2012) (“[T]here is nothing substantively

unconscionable or unreasonable about a 5 year/60,000 mile warranty.”).

warranty, and there was a significant disparity in bargaining

power); Payne v. Fujifilm U.S.A., Inc., Civ. 07–385(JAG), 2007 WL

4591281, at *5 (D.N.J. Dec. 28, 2007) (noting that plaintiff

specifically alleged that defendant knew, or should have known, of

the alleged defect in the product and defendant failed to disclose

same to members of the class). In the other, courts have granted

dismissal motions where plaintiffs alleged a manufacturer’s

knowledge of a latent defect that would manifest outside the

warranty period. See Alban v. BMW of N. Am., Civ. 09–5398(DRD),

2011 WL 900114, at *9 (D.N.J. Mar. 15, 2011) (“[A]llegations that

[defendant] knew that the sound insulation in [plaintiff's] vehicle

would fail after the expiration of the warranty agreement do not

indicate that the time and mileage limitation clause was

unconscionable.”); Nelson v. Nissan N. Am., Inc., 894 F.Supp.2d

558, 565 (D.N.J. 2012) (same); Gotthelf v. Toyota Motor Sales,

U.S.A., Inc., Civ. 11–4429(JLL), 2012 WL 1574301, at *20 (D.N.J.

May 3, 2012), aff’d, 525 F. App'x 94 (3d Cir. 2013) (same). These

cases follow from the understanding that “the general rule, stated

in [Duquesne], prohibiting breach of warranty actions premised on

defects that did not arise until after the warranty expired applies to

Plaintiff’s claims regardless of [the] assertion that [the

manufacturer] knew that his vehicle was defective before the time-

limit took effect.” Alban, 2011 WL 900114, at *9.

Caterpillar, No. 14-3722, 2015 WL 4591236, at *20 (D.N.J. July 29,

2015) (alterations in original).

Caterpillar noted that the “latter line of cases, rejecting conclusory

allegations of unconscionability based on knowledge of a latent defect,

represents the recent trend in this District and is consistent with the prevailing

approach elsewhere.” Id. at 21 (citing T.J. McDermott Transp. Co. v. Cummins,

Inc., Civ. 14–04209 (WHW), 2015 WL 1119475, at *9 (D.N.J. Mar. 11, 2015);

Majdipour v. Jaguar Land Rover N. Am., LLC, Civ. 12–07849(WHW), 2013 WL

5574626, at *20 (D.N.J. Oct. 9, 2013)). Duquesne, in particular, adopted the

Second Circuit’s rule that an express warranty does not cover repairs after the

expiration of the warranty period, regardless of whether the defect was

discovered before or after the warranty’s expiration. 66 F.3d at 616 (3d Cir.

1995) (citing Abraham, 795 F.2d at 249-50). In Abraham, the Second Circuit

explained:

[V]irtually all product failures discovered in automobiles after

expiration of the warranty can be attributed to a “latent defect”

that existed at the time of sale or during the term of the warranty.

All parts will wear out sooner or later and thus have a limited

effective life. Manufacturers always have knowledge regarding the

effective life of particular parts and the likelihood of their failing

within a particular period of time. Such knowledge is easily

demonstrated by the fact that manufacturers must predict rates of

failure of particular parts in order to price warranties and thus can

always be said to “know” that many parts will fail after the

warranty period has expired. A rule that would make failure of a

part actionable based on such “knowledge” would render

meaningless time/mileage limitations in warranty coverage.

795 F.2d at 250 (emphasis added). Following Abraham, repairs made after the

expiration of the warranty are not actionable even if the defendant had prior

knowledge of the defect. See Dewey v. Volkwagen AG, 558 F. Supp. 2d 505,

201 (D.N.J. 2008) (“In relying on Abraham, the Third Circuit was

unquestionably aware of the Second Circuit’s view that ‘[m]anufacturers always

have knowledge regarding the effective life of particular parts and the likelihood

of their failing within a particular period of time.’”).

Like Plaintiffs here (Compl. ¶¶87-95), the plaintiffs in Caterpillar alleged

that the terms of their warranties were unconscionable. See 2015 WL 4591236

at *19. There, the plaintiffs pointed to a defect in the defendant’s “exhaust

emission control system, known as the Caterpillar Regeneration System (‘CRS’),

intended to reduce air pollutants . . . in compliance with the EPA’s 2007

Emissions Standard.” Id. at 2. The plaintiffs alleged “that the CRS [wa]s unable

to maintain reliable thermal management of exhaust temperatures as required

to achieve regeneration under all operating conditions and applications.” Id. at

3. Further, the plaintiffs alleged that the defect “result[ed] in repeated

breakdowns; lengthy, ultimately unsuccessful, repair attempts; significant

reduction in vehicle value; and out-of-pocket expenses such as towing bills,

repair invoices, and lodging and transportation charges.” Id. Moreover, the

plaintiffs contended that the defect could not be fixed or corrected and that all

affected vehicles must therefore be replaced. Id.

Those plaintiffs’ claims for breach of express warranty were premised on

the Caterpillar Limited Warranty (“Engine Warranty”) and the Federal

Emissions Control Warranty, the latter of which the court concluded was

preempted by federal law. Id. at 2, 4. “Through the Engine Warranty, [the

defendant] ‘warrant[ed] new 10.3 liter up to and including 18.1–liter engines

sold by it for use in powering onhighway vehicles to be free from defects in

material and workmanship.’” Id.

Regarding their unconscionability claim, those plaintiffs alleged that the

Defendant’s restriction in the Engine Warranty to cover only “‘workmanship

and material’ defects” was unconscionable in light of its “superior knowledge of

the CRS design defect and the parties’ unequal bargaining power.” Id. The

court rejected that argument because (1) “the terms of the Engine Warranty,

limiting the covered defects to material and workmanship and setting a

durational limit of two years, are not categorically unconscionable” and (2)

based on the Duquesne line of cases, knowledge of a latent defect alone does

not render limitations in a warranty unconscionable. Id. at 19-22.

The Caterpillar plaintiffs alleged that the defendant “knew at the time of

sale of an inherent defect in the emissions control system which was so

pervasive that they could not have been surprised when purchasers

experienced problems and initiated warranty claims immediately after the

Engines hit the market” and that the defendant’s ability “‘to ad infin[i]tum

ineffectually ‘repair’ the defect with the full knowledge that the same issues will

continually manifest and recur’ render[ed] th[e] case distinguishable from those

where courts rejected unconscionability.” Id. at 22 (first alteration in original).

The court rejected that argument and noted that it was “hard-pressed to

understand how [the defendant’s] efforts to fulfill their obligations during the

warranty period renders its conduct more objectionable than cases where

manufacturers were alleged to have waited-out the warranty period without

taking any action to address a known defect.” Id. The court also noted that the

plaintiffs’ procedural unconscionability contentions regarding defendants’

knowledge of the defect and the lack of equal bargaining power were entirely

conclusory. Id. For those reasons, the court found the plaintiff’s “allegations of

unconscionability insufficient to expand the scope or alter the terms of the

Engine Warranty.” Id.

However, In Skeen, a court in this District found that the plaintiffs

sufficiently pleaded that the applicable warranties were unconscionable where

they alleged that the “[d]efendants knew the defects would manifest and

manipulated the warranty term to make sure it did not happen until after the

warranty term expired.” 2014 WL 283628 at *14-16. Additionally, the court

found that plaintiffs therein sufficiently pleaded substantive unconscionability

because the defendants alone knew that the product at issue would fail and

“manipulated the warranty terms to avoid paying for it.” Id. at *14.

Caterpillar, which is closer to the facts at hand, controls. Plaintiffs here

allege that the CPO warranty is unconscionable because Defendants were

aware of the alleged defects. Under the Duquesne line of cases, however, simple

knowledge of a defect does not render a warranty unconscionable. See

Caterpillar, 2015 WL 4591236 at *19-21. Moreover, Plaintiffs do not allege that

Defendants manipulated the CPO Warranty so that the alleged defects would

emerge after the warranty period. (See Compl. ¶¶87-95). To the contrary, the

alleged defect manifested itself, and Defendants serviced the vehicle’s engine

issues, under the warranty, which was of a reasonable duration. (Compl. ¶22).

Therefore, Skeen is distinguishable and Plaintiffs’ unconscionability claim must

fail.

b. Implied Warranty Claim

Defendant also submits that Plaintiffs’ breach of implied warranty claim

fails to the same extent as the express warranty claims because “BMW NA

limited the duration of any implied warranties to the duration of the express

warranty.” (DE 13-1 at 15). The CPO Warranty, under which Plaintiffs

purchased their vehicle (Compl. ¶21), provides as follows:

THE DURATION OF ANY IMPLIED WARRANTIES, INCLUDING THE

IMPLIED WARRANTY OF MERCHANTABILITY, IS LIMITED TO THE

DURATION OF THE EXPRESS WARRANTIES HEREIN. BMW NA

HEREBY EXCLUDES INCIDENTAL AND CONSEQUENTIAL

DAMAGES, INCLUDING LOSS OF TIME, INCONVENIENCE, OR

LOSS OF USE OF THE VEHICLE, FOR ANY BREACH OF ANY

EXPRESS OR IMPLIED WARRANTY, INCLUDING THE IMPLIED

WARRANTY OF MERCHANTABILITY, APPLICABLE TO THIS

PRODUCT.12

(DE 29 at 41).

New Jersey law permits the exclusion or modification of warranties

where, inter alia, such exclusion or modification is written and conspicuous.

N.J. Stat. Ann. § 12A:2-316(2). Further, the United States Court of Appeals for

the Third Circuit has held that, consistent with that statute, an express

warranty may displace the implied warranty of merchantability. New Jersey

Transit Corp. v. Harsco Corp., 497 F.3d 323, 330-31 (3d Cir. 2007). In such a

case, a plaintiff has no claim for breach of implied warranty after the time

limitation of the express warranty has expired. Id. (“Because we conclude that

in this case there was no implied warranty of fitness for a particular purpose,

and that the implied warranty of merchantability was displaced by paragraph

55’s express warranty after one year, we hold that at the time Transit's TGIV

was destroyed by fire, all warranties had expired.”).

Similarly, in McCalley v. Samsung Electronics America, Inc., a court in

this District interpreted language similar to that of the CPO Warranty provision

cited above and held that implied warranty claims were limited to the time

restrictions imposed by the express warranty. No. 07-2141, 2008 WL 878402,

at *7 (D.N.J. Mar. 31, 2008). There, the relevant warranty provided as follows:

12 Because the CPO warranty is explicitly relied upon in the Complaint, I will

consider the copy of the warranty that is attached to Defendant’s papers. See

Rockefeller Ctr. Props., 184 F.3d at 287.

THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE

LISTED AND DESCRIBED ABOVE, AND NO WARRANTIES

WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT

LIMITED TO, ANY IMPLIED WARRANTIES OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR

PURPOSE, SHALL APPLY AFTER THE EXPRESS WARRANTY

PERIODS STATED ABOVE, AND NO OTHER EXPRESS

WARRANTY OR GUARANTY GIVEN BY ANY PERSON, FIRM OR

CORPORATION WITH RESPECT TO THIS PRODUCT SHALL BE

BINDING ON SAMSUNG.

Id. at *6 (emphasis added). The court concluded that the “warranty clearly

provide[d] coverage for one year following the date of purchase, and

disclaim[ed] additional warranties, including the implied warranties of

merchantability and fitness for a particular purpose.” Id. And that warranty

“applie[d] explicitly the limited one-year duration to both the express and

implied warranties.” Id. After concluding that the one-year period had expired,

the McCalley court held that the plaintiff’s “breach of implied warranty claim

fail[ed] because the duration of the implied warranty period is consistent with

the express warranty period, or in other words one year.” Id. at *7; see also N.J.

Stat. Ann. § 12A:2-317 (“Warranties whether express or implied shall be

construed as consistent with each other and as cumulative, but if such

construction is unreasonable the intention of the parties shall determine which

warranty is dominant.”).

The CPO Warranty is similar. Because the CPO Warranty limited the

duration of any implied warranties to the duration of the express warranty, the

implied warranty claims likewise must be dismissed. Again, Plaintiffs allege

possible damages arising in the future that will not be covered by the warranty.

However, as explained above, warranties do not cover repairs made after the

expiration of the warranty period. Because the Plaintiffs’ warranty has expired,

their express and implied claims must fail. And, because those claims provide

the basis for a MMWA claim, that federal claim must fail as well. 13 See Marcus,

2010 WL 4853308 at *7.

The MMWA claim, the only federal claim in the action, must therefore be

dismissed. It follows that there is no federal question, and no federal-question

subject matter jurisdiction under 28 U.S.C. § 1331. Against BMW NA, then,

only state-law claims remain.

B. Supplemental jurisdiction

In short, the plaintiffs may have claims, but they are not warranty

claims; because they are not warranty claims, the MMWA claim fails; and

because the MMWA claim has been dismissed, there is no federal question

remaining in the case. Where all federal claims have been dismissed, a federal

court may continue to exercise supplemental jurisdiction over remaining state

law claims, but Defendants submit that the Court should decline to do so. I

agree.

Under 28 U.S.C. § 1367(c), the Court has discretion to decline

jurisdiction over remaining claims after all federal claims have been dismissed

13 Defendant BMW NA also submits that the Complaint fails to allege a sufficient

basis for standing. Pursuant to Article III of the United States Constitution, standing

contains three elements: (1) a plaintiff must have suffered an “injury in fact” which is

an invasion of a legally protected interest that is “concrete and particularized,” and

“actual or imminent, not conjectural or hypothetical”; (2) a causal connection between

the injury and the conduct complained of; and (3) the injury must likely be “redressed

by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal

citation and quotation marks omitted). To satisfy Article III requirements, the injury

complained of “must affect the plaintiff in a personal and individual way.” Id. at 561.

Here, the Complaint does not specify what, if any, out-of-pocket costs Plaintiffs

incurred. Plaintiffs submit only vaguely that “Defendants have caused [them] to

expend money at their dealerships and service centers and/or to take other remedial

measures.” (Compl. ¶57). The Complaint alleges that “Defendants have taken no steps

to provide a remedy for [their] vehicle once the Certified Pre Owned Warranty expires,”

and that, upon expiration, “Plaintiffs will be forced to replace their vehicle’s battery as

often as once a year or 10,000 miles, at a significant expense.” (Compl. ¶¶52-53)

(emphasis added).

Such allegations are admittedly vague and somewhat speculative. Nevertheless,

because I find subject matter jurisdiction lacking on other grounds, I will not reach

the more complex standing issue.

from the action. The Third Circuit has held that where the federal claims that

gave the basis for original jurisdiction are dismissed, a “district court must

decline to decide the pendent state claims unless considerations of judicial

economy, convenience, and fairness to the parties provide an affirmative

justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)

(quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995));

see Shaffer v. Bd. of Sch. Dirs. of Albert Gallatin Area Sch. Dist., 730 F.2d 910,

912 (3d Cir. 1984) (holding that “pendent jurisdiction should be declined where

the federal claims are no longer viable, absent extraordinary circumstances”).

In short, the presumptive rule is that the state claims shall be dismissed,

unless reasons of economy and fairness dictate otherwise.

Thus, where the case has been substantially litigated, it may be a proper

exercise of discretion to retain it. See Growth Horizons, Inc. v. Delaware County,

Pa., 983 F.2d 1277, 1284–85 (3d Cir. 1993) (remanding for exercise of

discretion as to whether to retain pendent claim, noting that where the district

court already heard all evidence necessary to decide the state contract claim, it

might retain jurisdiction). Where, on the other hand, the case is nowhere close

to trial, dismissal or remand is likely the proper course. Freund v. Florio, 795 F.

Supp. 702, 710 (D.N.J. 1992) (“[A]t this early stage in the litigation, dismissal

of the pendent state claims in a federal forum will result in neither a waste of

judicial resources nor prejudice to the parties.”).

Here, there has been no discovery, and the matter is nowhere near trial.

The motions to dismiss currently before the Court are the first motions in this

action. Because the matter has not been substantially litigated, I decline to

exercise supplemental jurisdiction over the remaining claims.

Therefore, I will grant the motion of BMW NA to dismiss this action in its

entirety.

IV. Conclusion

For the reasons set forth above, I will grant Defendants’ motion (DE 7;

DE 13) and dismiss the action. This dismissal is entered without prejudice to

the filing within 30 days of a proposed amended complaint that remedies the

defects of the MMWA count.

An appropriate order follows.

Dated: March 29, 2021

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge