STYLES v. THOR MOTOR COACH

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSEPH STYLES, et al.,

Plaintiffs,

Civil Action No. 21-19231 (ZNQ) (TJB)

v.

OPINION

THOR MOTOR COACH, et al.,

Defendants.

QURAISHI, District Judge

THIS MATTER comes before the Court upon a Motion to Dismiss filed by Defendants

Thor Motor Coach and Scott Motor Coach Sales, Inc. (“Scott Motor”) (collectively,

“Defendants”). (“Motion”, ECF No. 6.) In support of their Motion, Defendants filed a

Memorandum of Law (“Moving Br.”, ECF No. 6 at PageID Nos. 3–10.) Plaintiffs oppose the

Motion. (“Opp.”, ECF No. 8.) Defendants replied. (“Reply”, ECF No. 9.)

The Court has carefully considered the parties’ submissions and decides the Motion

without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.

For the reasons set forth below, the Court will GRANT Defendants’ Motion to Dismiss.

I. BACKGROUND AND PROCEDURAL HISTORY

According to the Complaint, Plaintiffs Joseph and Dana Styles are New Jersey residents

who purchased a new 2020 Hurricane 33X recreational vehicle (“the RV”) from Defendant Scott

Motor in September 2020. (Compl. ¶¶ 1, 4, attached to Notice of Removal as Exhibit A, ECF

No. 1-1 at PageID Nos. 2–12; “Retail Buyer’s Order”, attached to Complaint as Exhibit A, ECF

No. 1-1 at PageID Nos. 16–17.) Thereafter, Plaintiffs complained about various defects and non-

conformities in the RV, specifically: “passenger side front window leaking, outside TV not

working, leveling system malfunctioning, power died to the slide outs, DVD player for all TVs

not working with damaged wiring, no power to refrigerator, no power to outlets, one circuit

permanently tripped, and audible alarm sounding from inverter control panel.” (Compl. ¶ 11.)

Attempts to repair the RV during its warranty period proved unsuccessful. (Id.; Scott Motor Work

Estimate Nos. 69142, 69259, 70344, 70551, attached as Exhibit B to Complaint, PageID Nos. 19–

26.)

Plaintiffs filed the Complaint in New Jersey Superior Court on September 9, 2021.

(Compl.) The Complaint alleges four counts: violation of the New Jersey Motor Vehicle Warranty

Act (“Lemon Law”), N.J.S.A. 56:12-29, et seq. (Count I); violation of the Magnusson-Moss

Warranty Act (“MMWA”), 15 U.S.C. §2301, et seq. (Count II); breach of express and implied

warranties (Count III); and violation of the New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A

§ 56:8-1, et seq. (Count IV). (See Compl. ¶¶ 13–62.) Defendants removed to this Court on

October 22, 20212 and filed the current Motion.

1 The Complaint alleges that Plaintiffs purchased the RV from “Defendant,” but fails to specify which of the two

defendants actually sold it to them. (Compl. ¶ 4.) The Court infers Plaintiffs purchased the vehicle from Scott Motor

because its name is the only one that appears on the “Retail Buyer’s Order” that is attached as Exhibit A to the

Complaint.

2 Defendants’ Notice of Removal avers that their removal was timely, but does not specify when they received service

of the summons and Complaint. The Court notes that the certificate of service attached by Plaintiffs to the Complaint

indicates that it was served on opposing counsel via email on October 22, 2021. (ECF No. 1-3.) To the extent the

removal may therefore have been untimely and/or improper, those issues have been waived because Plaintiffs did not

seek to remand within 30 days of the matter’s removal. See 28 U.S.C. § 1447(c); Donahue v. Allstate New Jersey Ins.

Co., Civ. No. 06-226, 2006 WL 8457165, at *1 (D.N.J. Feb. 28, 2006) (“It is equally well-established that if a plaintiff

fails to move in federal court for a remand based on a procedural defect within 30 days, that party waives its

II. JURISDICTION

The Court has subject matter jurisdiction over Plaintiffs’ claim alleging a violation of the

MMWA pursuant to 28 U.S.C. § 1331. The Court has subject matter jurisdiction over Plaintiffs’

remaining state law claims under 28 U.S.C. § 1367.

III. LEGAL STANDARD

A. RULE 12(b)(6)

An adequate complaint must be “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This Rule “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual

allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v.

County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’

rather than a blanket assertion, of an entitlement to relief”).

A district court is required to conduct a three-part analysis when considering a motion to

dismiss pursuant to Rule 12(b)(6). Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First,

the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’” Id. (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true all of the

plaintiff's well-pleaded factual allegations and construe the complaint in the light most favorable

to the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted).

The court, however, may ignore legal conclusions or factually unsupported accusations that merely

state, “the defendant unlawfully harmed me.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at

555). Finally, the court must determine whether “the facts alleged in the complaint are sufficient

to show that the plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d at 211 (quoting

Iqbal, 556 U.S. at 679). A facially plausible claim “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 210 (quoting Iqbal, 556

U.S. at 678). On a Rule 12(b)(6) motion, the “defendant bears the burden of showing that no claim

has been presented” upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750

(3d Cir. 2005).

B. RULE 9(b)

Federal Rule of Civil Procedure 9 requires that “[i]n alleging fraud or mistake, a party must

state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge,

and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). “Rule

9(b)’s particularity requirement requires a plaintiff to allege ‘all of the essential factual background

that would accompany the first paragraph of any newspaper story–that is, the who, what, when,

where, and how of the events at issue.’” Bookwalter v. UPMC, 946 F.3d 162, 176 (3d Cir. 2019)

(quoting United States v. Omnicare, Inc., 903 F.3d 78, 92 (3d Cir. 2018)).

IV. DISCUSSION

A. COUNT I: LEMON LAW

New Jersey’s Lemon Law provides that “during the first 24,000 miles of operation or

during the period of two years following the date of original delivery to the consumer, whichever

is earlier, the manufacturer . . . shall make, or arrange with its dealer or distributor to make, within

a reasonable time, all repairs necessary to correct [a] nonconformity.” N.J.S.A. § 56:12-31. If

during the above specified period, “the manufacturer . . . of that part of the motor vehicle

containing the nonconformity, or its dealer or distributor, is unable to repair or correct the

nonconformity within a reasonable time, the manufacturer ... shall accept return of the motor

vehicle from the customer.” N.J.S.A § 56:12-32. Moreover,

[i]t is presumed that a manufacturer . . . or its dealer or distributor,

is unable to repair or correct a nonconformity within a reasonable

time if . . . (1) [s]ubstantially the same nonconformity has been

subject to repair three or more times by the manufacturer ... or its

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total of 20 or more calendar days, or in the case of a motorhome, 45

or more calendar days, since the original delivery of the motor

vehicle and a nonconformity continues to exist.

N.J.S.A. § 56:12-33. Of particular relevance to this case, however, “problems pertaining to the

‘living facilities’ of a motor home are not covered under New Jersey’s Lemon Law.” Smith v.

Freightliner, LLC, 239 F.R.D. 390, 394 (D.N.J. 2006); see also N.J.S.A. § 56:12-30 (“‘Motor

vehicle’ means a passenger automobile . . . which is purchased or leased in the State of New Jersey

. . . except the living facilities of motor homes.”)

As set forth above, the Complaint alleges a long list of nonconformities in the RV. In their

Motion, Defendants argue that these nonconformities relate solely to the “living facilities” that are

excluded from Lemon Law coverage. (Moving Br. at 2.) In opposition, Plaintiffs largely ignore

Defendants’ argument. Instead, they contend that there are genuine issues of material fact that

preclude granting the Motion—obviously inapposite on a motion to dismiss. The closest Plaintiffs

come to responding to Defendants’ argument is when they assert in a conclusory fashion that

“Defense counsels [sic] attempt to make this decisions [sic] on saying that these issues are not

significant enough or applicable for a lemon law claim or brought into litigation prior to the 2 year

period ending are incorrect.”3 (Opp. Br. at 6.)

Have reviewed the nonconformities alleged in the Complaint, the Court is unable to

determine from the pleading itself which of the nonconformities pertain to the living facilities. For

instance, it is conceivable that the first nonconformity, the leaking “passenger side front window,”

may be part of the RV that is covered by the Lemon Law, but the Complaint does not identify

where exactly the window is located nor does the Complaint articulate how it does not qualify as

“living facilities” that are excluded from the Lemon Law. Accordingly, the Court will grant the

3 To avoid muddying the record, the Court clarifies that Defendants’ Moving Brief does not, in fact, argue that the

portion of the Motion seeking to dismiss Count I and dismiss that claim without prejudice.

Plaintiffs will be afforded an opportunity to amend their Complaint to clarify their claim.4

B. COUNTS II AND III: MAGNUSON-MOSS WARRANTY ACT AND UCC

The Complaint asserts Counts II and III against both Defendants. The Motion seeks

dismissal of Counts II and III as against Scott Motor on the basis that it conspicuously disclaimed

all warranties in the Purchase Agreement signed by Plaintiffs. (Moving Br. at 2; Exhibit B.)

Plaintiffs’ opposition, again, essentially ignores Defendants’ argument. Instead, Plaintiffs again

insist there is a genuine issue of material fact, refer to a party not named in this suit,5 cite two

irrelevant Pennsylvania statutes along with a decision from the Eastern District of Pennsylvania,

and assert—incorrectly—that “Defendant does not deny that it manufactured and warranted the

subject vehicle to the Plaintiffs.” (Moving Br. at 6-8.) As Defendants point out on Reply, they do

in fact deny that Scott Motor warranted the subject vehicle by virtue of its disclaimer. (Reply at

2.)

Generally, a disclaimer of warranties is permissible under New Jersey law where such

disclaimer “is in writing and conspicuous.” Skalski v. Elliot Equip. Co., Civ. No. 08-2686, 2010

WL 891582, at *5 (D.N.J. Mar. 9, 2010) (citing Gladden v. Cadillac Motor Car Div., Gen. Motors

Corp., 83 N.J. 320, 416 (1980)). “A clause is conspicuous when it is written such that a reasonable

person against whom it is to operate ought to have noticed it.” T.J. McDermott Transp. Co., Inc.

v. Cummins, Inc., Civ. No. 14-04209, 2015 WL 1119475, at *12 (D.N.J. Mar. 11, 2015) (citing

N.J. Stat. Ann. § 12A:1-201(10)). More specifically, a clause is conspicuous where a printed

heading is in capitals, language in the body of the document is larger than the surrounding text, or

4 The Complaint is also less than clear as to which Defendants Plaintiffs are asserting Count I. The heading for Count I

does not specify the Defendant(s). The allegations contained therein first assert that “Defendant is a ‘Manufacturer’

as defined by N.J.S.A. 56:12-30. (Compl. ¶ 15.) Presumably this refers to the Thor Motorcoach. However, in the

next paragraphs, the Complaint also names Scott Motor and refers to its failed attempts to remedy the alleged

nonconformities. (Compl. ¶ 16, 24–27.) Should Plaintiffs seek to amend their Complaint, they are to more clearly

identify the Defendants to which Count I is directed.

the relevant provision otherwise contrasts with the surrounding text in type, font, or color. Id.

“[W]hether a disclaimer is conspicuous is a question of law for the Court.” Russo v. Thor

Industries, Inc., Civ. No. 20-10062, 2020 WL 5868801, at *3 (D.N.J. Oct. 10, 2020) (quoting In

re Caterpillar, Inc., C13 & C15 Engine Prod. Liab. Litig., Civ. No. 14-3722, 2015 WL 4591236,

at *28 (D.N.J. July 29, 2015)).

In this case, unfortunately, the copy of the relevant Purchase Agreement attached to the

Complaint is so poor that the Court is unable to read its language, much less assess the

conspicuousness of the disclaimer. Based on this fact, and Plaintiffs’ failure to oppose this issue

on the Motion, the Court will grant this portion of the Motion and dismiss without prejudice Counts

II and III as to Scott Motor. Plaintiffs will be given the opportunity to amend their Complaint and

to provide a clearer copy of the Purchase Agreement.

C. COUNT IV: NEW JERSEY CONSUMER FRAUD ACT

Count IV alleges a violation of the NJCFA against Scott Motor. To state a claim under the

NJCFA, a plaintiff must show “1) unlawful conduct by defendant; 2) an ascertainable loss by

plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss.”

Argabright v. Rheem Mfg. Co., 201 F. Supp. 3d 578, 606 (D.N.J. 2016). Claims under the NJCFA

are “subject to the heightened pleading standard of Fed. R. Civ. P. 9(b).” Id. (citing Fredrico v.

Home Depot, 507 F.3d 188, 200 (3d Cir. 2007)). As set forth above, “Rule 9(b)’s particularity

requirement requires a plaintiff to allege ‘all of the essential factual background that would

accompany the first paragraph of any newspaper story—that is, the who, what, when, where, and

how of the events at issue.’” Bookwalter, 946 F.3d at 176.

The Complaint does not provide the requisite specificity to comply with Rule 9(b). It

largely provides conclusory statements, such as “Defendant knowingly concealed, suppressed, or

omitted facts material to the transactions at issue, in that Defendant was aware th[at]

defect(s)/condition(s) could not be repaired, and that the ineffectual repairs were performed by

incompetent or unqualified individuals”, without specifying the defect(s)/condition(s) the

Defendant(s) knowingly concealed and how they concealed each of them. (Compl. ¶ 56.) At other

points, however, the Complaint does allege some marginally more specific statutory violations,

including failure to notify Plaintiffs that the RV was covered by the Lemon Law (Compl. ¶ 57)

and failure to supply an itemized legible statement of repair (Compl. ¶ 58). Still, the Complaint

falls short of identifying who failed to notify Plaintiffs or to supply them with a statement, when

they were obligated to do so, and how Scott Motor’s actions failed to meet its obligations.

Accordingly, Defendants’ Motion to Dismiss Count IV of the Complaint will also be

granted, Count IV will be dismissed without prejudice, and Plaintiffs will be granted leave to

amend their Complaint to provide a more detailed pleading of the NJCFA claim that is consistent

with Rule 9.

V. CONCLUSION

For the reasons stated above, the Court will GRANT the Motion to Dismiss. Count I of

the Complaint will be DISMISSED WITHOUT PREJUDICE as to both Defendants. Counts II–

IV against Scott Motor will also be DISMISSED WITHOUT PREJUDICE. Plaintiffs will be

given leave to file an Amended Complaint within 30 days. An appropriate Order will follow.

Date: March 27, 2023

s/ Zahid N. Quraishi

ZAHID N. QURAISHI

UNITED STATES DISTRICT JUDGE

6 Having already made its point with respect to the inadequacies of Plaintiffs’ opposition brief, the Court will not

belabor its failures regarding the final count, other than to note that there were deficiencies there as well. The Court