Grover v. BMW of North America, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

GARY GROVER, et al., ) CASE NO. 1:19-cv-12

)

)

PLAINTIFFS, ) JUDGE SARA LIOI

)

vs. ) MEMORANDUM OPINION

) AND ORDER REGARDING

BMW OF NORTH AMERICA, LLC, ) CROSS MOTIONS FOR

) SUMMARY JUDGMENT

) [Resolving Doc. Nos. 64, 65, 70, 76,

DEFENDANT. ) 77, 87, 92]

This matter is before the Court on the cross motions of plaintiffs1 (Doc. No. 77)2 and

defendant BMW of North America, LLC (“BMW”) (Doc. No. 70) for summary judgment pursuant

to Fed. R. Civ. P. 56 with respect to plaintiffs’ amended complaint (Doc. No. 13). As detailed

below, the motions are fully briefed and ripe for resolution.

For the reasons that follow, plaintiffs’ motion is denied, and BMW’s motion is granted in

part and denied in part.

1 There are seven (7) plaintiffs in this action: Gary Grover (“Grover”), Reginald Williams (“Williams”), Dana Walling

(“Walling”), Joshua Cribbs (“Cribbs”), Wendy Massey (“Massey”), John Webb (“Webb”), and Parker Jarvis

(“Jarvis”). Where appropriate, the Court will refer to these individuals collectively as “plaintiffs.” The Court notes

that the plaintiff identified in the amended complaint (Doc. No. 13) as Ava Littlejohn was dismissed from this action

by the agreement of counsel for both sides. See Grover v. BMW of N. Am., LLC, 434 F. Supp. 3d 617, 621 n.1 (N.D.

Ohio 2020). The Clerk is directed to indicate on the docket that Ava Littlejohn was terminated as a plaintiff as of

January 21, 2020.

2 The parties’ briefing contains confidential information pursuant to the protective order in this case, and their filings

regarding BMW’s motion to strike consist of both public redacted documents and sealed unredacted documents. The

document numbers herein refer to the sealed briefing documents.

Background

All plaintiffs in this action purchased different models and model years of BMW vehicles

from different sellers.3 But the basic facts underlying each of plaintiffs’ claims have a common

core, and those common factual allegations and claims as set forth in the amended complaint may

be summarized as follows. Plaintiffs claim that their BMW vehicles, all equipped with N63

engines, consumed excessive amounts of engine oil. When they raised this issue with their

respective dealers during the warranty period, they were told that the oil consumption was normal.

Plaintiffs dispute this contention, asserting that the oil consumption was excessive and caused by

a manufacturing defect in the N63 engine which BMW did not remedy under warranty. (See Doc.

No. 13 ¶¶ 14, 22, 30, 41, 49, 57, 67, 85, 89–90.)

Based upon these factual allegations common to all plaintiffs, plaintiffs assert four (4)

causes of action. First, for breach of express warranty pursuant to the Magnuson-Moss Warranty

Act (“MMWA”), 15 U.S.C. § 2301, et seq. (Id. ¶¶ 142–148.) Second, for breach of implied

warranty of merchantability pursuant to the MMWA, 15 U.S.C. § 2301, et seq. and Ohio Rev.

Code § 1302.27. (Id. ¶¶ 149–155.) Third, for breach of express warranties pursuant to Ohio Rev.

Code § 1302.26. (Id. ¶¶ 156–164.) And fourth, for violation of Ohio’s Consumer Sales Practices

Act (“CSPA”) pursuant to Ohio Rev. Code § 1345.01 et seq. (Id. ¶¶ 165–186.)

3 Grover purchased a 2013 BMW 550i (vehicle identification number (“VIN”) WBAFU9C59DDY71145 (“Grover

Vehicle”)) for $38,688.80 from North Coast Auto Mall on July 28, 2016. (Doc. No. 13 ¶¶ 9–11.) Williams purchased

a 2012 BMW 7 Series 750Lxi (VIN WBAKC8C59CC437484 (“Williams Vehicle”)) for $57,188.17 from BMW

Cleveland on June 27, 2016. (Id. ¶¶ 17–19.) Walling purchased a 2012 BMW 550i (VIN WBAFU9C53CC787388

(“Walling Vehicle”)) for $48,383.50 from BMW Cleveland on June 9, 2015. (Id. ¶¶ 25–27.) Cribbs purchased a 2009

BMW X6 (VIN 5UXFG83549LZ94223 (“Cribbs Vehicle”)) for $91,239.20 from Ganley BMW on November 2, 2009.

(Id. ¶¶ 36–38.) Massey purchased a 2013 BMW X6 (VIN 5UXFG8C51DL591292 (“Massey Vehicle”)) for

$48,424.00 from Auto Brokers on June 4, 2015. (Id. ¶¶ 44–46.) Webb purchased a 2010 BMW 750li (VIN

WBAKC6C51AC393336 (“Webb Vehicle”)) for $58,473.79 from Ganley BMW on November 27, 2012. (Id. ¶¶ 52–

54.) Jarvis purchased a 2012 BMW 750Lxi (VIN WBAKC8C51CC435101 (“Jarvis Vehicle”)) for approximately

$65,000.00 from Mag BMW of Dublin on December 24, 2014. (Id. ¶¶ 62–64.)

BMW moved to dismiss plaintiffs’ claims on multiple grounds, including on the merits and

the timeliness this action. The Court denied BMW’s motion. See Grover v. BMW of N. Am., LLC,

434 F. Supp. 3d 617 (N.D. Ohio 2020). BMW also moved to exclude the testimony and opinion

of plaintiffs’ expert witness Darren Manzari (“Manzari”) and the Court ruled on that motion in a

separately published memorandum opinion and order filed contemporaneously herewith. Relevant

to the instant opinion, the Court granted BMW’s motion as to Manzari’s testimony and opinions

concerning concealment and determined that his opinion concerning the ordinary purpose of the

subject vehicles (claim 2) was moot, given the Court’s disposition of claim 2.

Both sides now seek summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiffs seek

partial summary judgment as to liability on their first, third, and fourth causes of action. (See Doc.

No. 77.) BMW opposed plaintiffs’ motion (Doc. No. 85), and plaintiffs filed a reply (Doc. No.

89).

BMW seeks summary judgment against each plaintiff on all four claims. (Doc. No. 70.)

Plaintiffs opposed BMW’s motion (Doc. No. 80), and BMW filed a reply (Doc. No. 93).

Discussion

A. Summary Judgment Standard of Review

Summary judgment is appropriate where “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is

material if its resolution might affect the outcome of the lawsuit under the governing law. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id. If a reasonable jury could return a verdict for the nonmoving party, then summary

judgment is not appropriate. Id.

In order to obtain summary judgment, the moving party must provide evidence to the court

that demonstrates the absence of a genuine dispute as to any material fact. Once the moving party

meets this initial burden, the opposing party must come forward with specific evidence showing

that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,

91 L. Ed. 2d 265 (1986); Anderson, 477 U.S. at 250. The nonmoving party may oppose a summary

judgment motion “by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere

pleadings themselves[.]” Celotex, 477 U.S. at 324. The Court must view all facts and evidence,

and inferences that may be reasonably drawn therefrom, in favor of the nonmoving party. United

States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).

General averments or conclusory allegations of an affidavit do not create specific fact

disputes for summary judgment purposes. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–

89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). “‘The mere existence of a scintilla of evidence in

support of the [nonmoving party’s] position will be insufficient; there must be evidence on which

the jury could reasonably find for the [nonmoving party].’” Street v. J.C. Bradford & Co., 886

F.2d 1472, 1477 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 252).

The district court’s review on summary judgment is a threshold inquiry to determine

whether there is the need for a trial due to genuine factual issues that must be resolved by a finder

of fact because those issues may reasonably be resolved in favor of either party. Anderson, 477

U.S. at 250. Put another way, this Court must determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” Id. at 251–52; see also Wexler v. White’s Fine Furniture, Inc., 317

F.3d 564, 578 (6th Cir. 2003).

Summary judgment is required:

against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the

burden of proof at trial. In such a situation, there can be no genuine issue as to any

material fact, since a complete failure of proof concerning an essential element of

the nonmoving party’s case necessarily renders all other facts immaterial. The

moving party is entitled to a judgment as a matter of law because the nonmoving

party has failed to make a sufficient showing on an essential element of [his] case

with respect to which [he] has the burden of proof.

Celotex, 477 U.S. at 322–23 (internal quotation marks and citation omitted).

The typical summary judgment standard of review “poses unique issues” when cross

motions for summary judgment are filed. B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587,

592 (6th Cir. 2001). In such cases, the district court must evaluate each party’s motion on its own

merits, drawing all reasonable inferences against the moving party. Id. (citation omitted). If it is

possible to draw inferences in either direction, then both motions for summary judgment should

be denied. Id. at 592–93. The making of contradictory claims on summary judgment does not mean

that if one is rejected the other must be accepted. Id.

Both BMW and plaintiffs contend that they are entitled to judgment on the merits of

plaintiffs’ claims. In addition, BMW contends that plaintiffs’ claims are barred by the applicable

statute of limitations.

B. Claims 1 and 3 - Express Warranty Claims

Both claims 1 and 3 assert claims for breach of express warranty, so the Court will address

them together. In their first and third causes of action, plaintiffs claim breach of express warranty

under the MMWA and Ohio Rev. Code § 1302.26, respectively—namely, that BMW failed to

repair or replace a manufacturing defect in plaintiffs’ vehicles’ N63 engines that caused excessive

oil consumption.

The MMWA “sets forth guidelines, procedures and requirements for warranties, written or

implied, on consumer products.” Temple v. Fleetwood Enter., Inc., 133 F. App’x 254, 268 (6th

Cir. 2005) (citing 15 U.S.C. §§ 2301–2312). “The MMWA creates a federal cause of action for

violations of the MMWA itself and for breaches of warranty arising from state law.” Mayernik v.

CertainTeed LLC, 476 F. Supp. 3d 625, 631 (S.D. Ohio 2020) (citing Kuns v. Ford Motor Co.,

543 F. App’x 572, 575 (6th Cir. 2013); Albright v. Sherwin-Williams Co., No. 1:17-cv-2513, 2019

WL 5307068, at *10 (N.D. Ohio Jan. 29, 2019) (The MMWA “is a vehicle to assert state law

breach of warranty claims in federal court.”); Powell v. Airstream, Inc., 140 N.E.3d 1172, 1187

(Ohio Ct. App. 2019) (“The outcome of the state law warranty claims determines the disposition

of the Magnuson-Moss Act claims.”) (applying Washington state law)). “‘Therefore, the elements

that a plaintiff must establish to pursue a cause of action for breach of warranty under the MMWA

are the same as those required by Ohio law.’”4 Mayernik, 476 F. Supp. 3d at 631 (quoting Kuns,

543 F. App’x at 57).

1. Genuine issues of material facts as to the merits of claims 1 and 3

Ohio law defines an express warranty as “[a]ny affirmation of fact or promise made by the

seller to the buyer which relates to the goods and becomes part of the basis of the bargain[.]” Ohio

Rev. Code § 1302.26(A)(1). “To establish a claim for breach of express warranty under Ohio law,

plaintiff must prove: (1) the item in question was subject to a warranty; (2) the item did not conform

to the warranty; (3) the seller was given a reasonable opportunity to cure any defects; and (4) the

seller failed to cure the defects within a reasonable period of time or after a reasonable number of

attempts.” Risner v. Regal Marine Indus., Inc., 8 F. Supp. 3d 959, 988 (S.D. Ohio 2014) (citing

Kuns, 543 F. App’x at 575–76 (citing Temple, 133 F. App’x at 268)); see also Caterpillar Fin.

4 This principle also applies to plaintiffs’ second claim for breach of implied warranty under the MMWA and Ohio

law.

Servs. Corp. v. Harold Tatman & Son’s Enter., Inc., 50 N.E.3d 955, 960 (Ohio Ct. App. 2015)

(“To establish a claim for breach of express warranty under Ohio law, a plaintiff must show that:

(1) a warranty existed; (2) the product failed to perform as warranted; (3) plaintiff provided the

defendant with reasonable notice of the defect; and (4) plaintiff suffered injury as a result of the

defect.”) (citation omitted). As discussed below, except as to the first element of a breach of

warranty claim under Ohio law, the parties have advanced material evidence on both sides

disputing the remaining elements.

All of plaintiffs’ vehicles were covered under either BMW’s New Vehicle Limited

Warranty5 (“NVLW”) or “Certified Pre-owned Limited Warranty6 (“CPOW”) or both for some

period during plaintiffs’ ownership of the subject vehicles.

Plaintiff (purchase date) Exp. Date of NVLW Exp. Date of CPOW

Walling7 (6/9/2015) 1/1/2016 1/21/2018

Williams8 (6/27/2016) 4/2/2016 4/2/2018

Jarvis9 (12/24/2014) 1/20/2016 1/20/2018

Grover10 (7/28/2016) 12/10/2016 NA (vehicle purchased used)

Massey11 (6/4/2015) 7/31/2016 NA (vehicle purchased used)

Webb12 (11/27/2012) 4/20/2014 4/20/2016

Cribbs13 (11/2/2009) 11/2/2013 NA (vehicle purchased new)

5 See Doc. No. 77-5.

6 See Doc. No. 77-11.

7 Doc. Nos. 70-2, 82 ¶¶ 1-5.

8 The parties’ statement of undisputed facts state that the purchase date is 6/27/2016, but in his deposition Williams

states that he purchased his vehicle on 6/27/2015 with 49,518 miles—about 500 miles from the expiration of the

NLVW due to mileage. (Doc. Nos. 70-2, 82 ¶¶ 22-23; see also Doc. No. 77-12 at 4-7.) The valve stem seals were

replaced on the Williams Vehicle in November 2016 under the CPOW, when the vehicle had 78,083 miles. (Doc. Nos.

70-2, 82 ¶ 26.)

9 Doc. Nos. 70-2, 82 ¶¶ 29-30.

10 Doc. Nos. 70-2, 82 ¶¶ 34-35. The valve stem seals in the Grover Vehicle were replaced in October 2017 under a

non-BMW aftermarket warranty. (Doc. Nos. 70-2, 82 ¶ 37.)

11 Doc. Nos. 70-2, 82 ¶¶ 44-45.

12 Doc. Nos. 70-2, 82 ¶¶ 51-53.

13 Doc. Nos. 70-2, 82 ¶¶ 39-40.

“[T]he parties agree the warranty [on each subject vehicle] contains a repair-or-replace

provision[.]” Grover, 434 F. Supp. 3d at 631–32. All plaintiffs claim that their vehicles consumed

excessive amount of engine oil, which they brought to each dealer’s attention during the warranty

period, with the dealers telling them14 the oil consumption was normal for an N63 engine.15 But

plaintiffs claim that the excessive oil consumption was due to a manufacturing defect and that

14 BMW argues that it never directly told any plaintiff that the oil consumption of their N63 engines was normal and

that any statements made to them by the dealerships are not attributable to BMW because the dealers are not agents

of BMW and plaintiffs have advanced no evidence of agency. (Doc. No. 70-1 at 15-16 (citing Curl v. Volkswagen of

Am., Inc., 871 N.E.2d 1141, 1148 (Ohio 2007).) While it is generally true that dealerships are not the agent of the

manufacturer, as plaintiffs point out, Ohio recognizes both apparent agency and agency by estoppel. (Doc. No. 80 at

6-7.) “The test for apparent authority is whether the complaining party acting as a reasonable person, would believe

the agent had authority based on all the circumstances.” Tsirikos-Karapanos v. Ford Motor Co., 99 N.E.3d 1203, 1212

(Ohio Ct. App. Nov. 9, 2017) (internal quotations marks and citation omitted). With respect to agency by estoppel,

“where a person, by acts or conduct, has caused or permitted another to appear to be his agent, he will be estopped to

deny the agency with respect to third persons who deal with the apparent agent in good faith and in the exercise of

reasonable prudence.” Agosto v. Leisure World Travel, Inc., 304 N.E.2d 910, 913 (Ohio Ct. App. 1973). It is

undisputed that “[p]laintiffs generally testified that it was their understanding that a dealer can speak for BMW NA.”

(Doc. Nos. 70-2, 82 ¶ 66.) And BMW’s corporate designee, Michael Murray, testified that BMW provides its dealers

with specific directions, recommendations, and instructions on what should be communicated to consumers during

warranty repairs and expects its dealers to follow those instructions. (Doc. No. 77-28 at 2–5.) BMW issued service

bulletins to dealers concerning oil consumption issues with respect to the N63 engine stating that the N63 engine, “as

part of [its] normal operation, will consume engine oil at a higher rate than a [non-turbocharged engine.]” (See e.g.,

Doc. No. 69-3 ¶ 30.) Under Ohio law, “the existence of an agency relationship is a question of fact, rather than one of

law[.]” Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d 655, 661 (6th Cir. 2005) (citing McSweeney v. Jackson,

691 N.E.2d 303, 307 (Ohio Ct. App. 1996)). Based upon the evidence advanced before the Court on the issue of

agency, the Court concludes that there is a genuine dispute of material fact that must be resolved by the factfinder as

to whether BMW dealerships are agents of BMW for purposes of warranty repair.

15 See e.g., Grover (Doc. No. 77-4 at 6–7); Jarvis (Doc. No. 77-9 at 7–8); Williams (Doc. No. 77-12 at 9–13); Walling

(Doc. No. 77-14 at 9–14); Cribbs (Doc. No. 77-16 at 5); Massey (Doc. No. 77-19 at 26–27); Webb (Doc. No. 77-21

at 11–12).

BMW breached the express warranty in the NVLW and CPOW16 by failing to repair or replace

the manufacturing defect17 in the N63 engines with which the subject vehicles were equipped.

Plaintiffs’ expert Manzari opines that all of the subject vehicles in this action consumed

excessive amounts of engine oil and that issue was caused by defective valve stem seals. (See Doc.

No. 69-3 ¶¶ 15, 57–113.) For its part, BMW submits the report of its expert, Ron Clark (“Clark”).

(Doc. No. 85-5.) Clark generally disputes Manzari’s opinions regarding oil consumption in the

N63 engine and the cause thereof, and specifically disputes Manzari’s opinions that defective valve

stem seals were the cause of the excessive oil consumption in plaintiffs’ vehicles. (See Doc. No.

85-5 at 7–11.) For example, Clark contends that Manzari’s opinion that plaintiffs’ vehicles

16 BMW argues on summary judgment that the CPOW is a service contract, not a warranty covered by the MMWA.

In support, BMW cites Evitts v. DaimlerChrysler Motors Corp., 834 N.E.2d 942, 951 (Ill. Ct. App. 2005). (See

Doc. No. 70-1 at 36–37).

The Magnuson–Moss Act defines a service contract as ‘a contract in writing to perform, over a fixed period

of time or for a specified duration, services relating to the maintenance or repair (or both) of a consumer

product.’ 15 U.S.C. § 2301(8) (2000). Illinois courts have held that agreements that do not affirm the quality

or workmanship of an automobile or warrant against any defects, but rather offer to repair certain defects not

otherwise covered by a warranty and that may occur within a certain time period or certain number of miles,

are to be construed as service contracts rather than warranties and that alleged breaches thereof are not

actionable as breach of warranty claims.

Evitts, 834 N.E.2d at 950–51.

Beyond this citation to a single case from another jurisdiction, BMW’s briefing contains no analysis of the

CPOW or Ohio law to support the argument that the CPOW at issue here is not a warranty under the MMWA. The

Court is not required or obligated to conduct legal research and construct arguments on behalf of any party, and what

has been provided to the Court is entirely insufficient upon which to grant BMW’s motion for summary judgment on

this issue, and it is denied.

17 BMW contends that it is entitled to judgment on plaintiffs’ claims for breach of express warranty by failing to

correct design defects in the N63 engine because the NVLW covers repairs to correct defects in material or

workmanship, not design defects. (Doc. No. 70-1 at 33–34.) In response, plaintiffs deny they claim that all N63 engines

are defective or that the N63 engine is defectively designed. (Doc. No. 80 at 24.) Plaintiffs’ amended complaint alleges

that the N63 engine suffered from a “design/manufacturing defect,” and the N63 engine “was designed to be BMW’s

next generation V8[.]” (See Doc. No. 13 ¶¶ 87,110.) The actual language in claims 1 and 3 does not claim that the

N63 engine suffers from a design defect, but rather specifically claims that, in the NVLW and CPOW, BMW agreed

to repair “original components found to be defective in material or workmanship under normal use and maintenance”

and that, when presented with the subject vehicles for repair, BMW did not repair the oil consumption defect under

warranty. (See Doc. No. 13 ¶¶ 157, 159.)

“consume[] too much oil is entirely speculative” and there is no evidence of defective valve stem

seals. (See Doc. No. 85-5 at 7, 9–11.)

The parties’ dueling expert reports are the foundation of their arguments in support of their

respective motions for summary judgment on the merits of claims 1 and 3 for breach of express

warranty and of their arguments in opposition to each other’s motion. These opposing expert

opinions address the very core of plaintiffs’ claims. Such contradictory expert opinion evidence

establishes a genuine dispute of material fact that must be resolved by a factfinder. See Sanford v.

Russell, 387 F. Supp. 3d 774, 785 (E.D. Mich. 2019) (contradictory opinion evidence does not

render an expert’s testimony unreliable, but “merely establishes a fact dispute”) (citing Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)).

However, the parties’ dueling expert reports are not the end of the discussion. In addition

to its arguments in support of summary judgment on the merits of plaintiffs’ express warranty

claims, BMW also argues that claims 1 and 3 are barred by the statute of limitations.

2. Genuine issue of material facts as to when the statute of limitations accrued

The MMWA does not contain an applicable statute of limitations. As a consequence, “the

statute of limitations controlling the cause of action or mandated by the forum state must be

utilized.” Zaremba v. Marvin Lumber & Cedar Co., 458 F. Supp. 2d 545, 551–52 (N.D. Ohio

2006). Therefore, the timeliness of plaintiffs’ express warranty claims under Ohio law determines

the timeliness of the MMWA claim.

The parties do not dispute that Ohio’s four-year statute of limitations under Ohio Rev. Code

§ 1302.98(A) applies to plaintiffs’ claims for breach of express warranty under Ohio law. Ohio

Rev. Code § 1302.98(A) (“An action for breach of any contract for sale must be commenced within

four years after the cause of action has accrued.”); see also Allen v. Andersen Windows, Inc., 913

F. Supp. 2d 490, 500 (S.D. Ohio 2012). But the parties dispute when plaintiffs’ express warranty

claims accrued.

Ohio Rev. Code § 1302.98(B) governs accrual of the four-year statute of limitations. It

provides:

(B) A cause of action accrues when the breach occurs, regardless of the aggrieved

party’s lack of knowledge of the breach. A breach of warranty occurs when tender

of delivery is made, except that where a warranty explicitly extends to future

performance of the goods and discovery of the breach must await the time of such

performance, the cause of action accrues when the breach is or should have been

discovered.

a. Repair and replace warranty

The NVLW and CPOW warranties are attached to the parties’ motions for summary

judgment and the language is not disputed. (See Doc. No. 77-5 at 4, 7, 10, 13, 16, 19, 22; Doc. No.

70-2, 82 ¶ 67; Doc. No. 77-11 at 4.) The NVLW warrants the BMW models at issue against defects

in material or workmanship to the first retail purchaser and each subsequent purchaser for a period

of 48 months or 50,000 miles, whichever occurs first, beginning on the date of the first retail sale

or date the vehicle is first placed into service, and provides the following coverage:

To obtain service under this warranty, the vehicle must be brought, upon discovery

of a defect in material or workmanship, to the workshop of any authorized BMW

center in the United States or Puerto Rico, during normal business hours. The BMW

center will, without charge for parts or labor, either repair or replace the defective

part(s) using new or authorized remanufactured parts. The decision to repair or

replace said part(s) is solely the prerogative of BMW. Parts for which replacements

are made become the property of BMW NA.

(See Doc. No. 77-5 at 10; Doc. No. 70-2, 82 ¶ 67.)

The CPOW extends the NVLW warranty two years or 50,000 miles, whichever occurs

first, effective upon expiration of the NVLW, and provides the following coverage for non-

excluded components:18

To obtain service under the Certified Pre-Owned BMW Limited Warranty, the

vehicle must be brought, upon discovery of a defect in materials or workmanship

of a covered part or component, to the workshop of any authorized BMW center

during normal business hours. The center will either repair or replace the covered

parts using either new or authorized remanufactured parts. The decision to repair

or replace part(s) is solely the prerogative of BMW NA. Parts for which

replacements are made become the property of BMW NA.

(See Doc. No. 77-11 at 4.)

In the first and third claims for breach of express warranty, plaintiffs allege that BMW

breached the repair and replace warranties in the NVLW and CPOW by failing to repair the alleged

manufacturing defect in their N63 engines causing excessive oil consumption in the subject

vehicles. “[U]nlike claims for breach of warranty based upon the condition of the product, a claim

for breach based upon the failure to ‘repair or replace’ does not accrue upon delivery [of the

product]: ‘the promise to repair is an independent obligation that is not breached until the seller

fails to repair.’” Allen, 913 F. Supp. 2d at 504 (citation omitted); see also Malkamaki v. Sea Ray

Boats, Inc., 411 F. Supp. 2d 737, 745 (N.D. Ohio 2005).

In its motion for summary judgment, BMW acknowledges that the latest that plaintiffs

would be able to assert a claim for breach of the repair or replace warranty would be the day the

NVLW expired. (See Doc. No. 70-1 at 19.) On this basis, BMW contends that the latest Cribbs

would be able to assert a repair or replace warranty claim for the Cribbs vehicle would be

November 2, 2017, and the latest date for Webb to assert such a warranty claim would be April

18 The certified pre-owned warranty plan is “a ‘Named Exclusion’ warranty, meaning items that are not covered are

specified.” (See Doc. No. 77-11 at 4–5.)

20, 2018.19 This case was filed January 2, 2019, so BMW argues that the breach of express

warranty claims asserted by Cribbs and Webb are barred by the four-year statute of limitations.

Cribbs and Webb contend that their claims are not barred by the statute of limitations because of

certain tolling provisions.20 As to the remaining five plaintiffs, whose NVLWs expired in 2016,

BMW acknowledges that “their breach of written warranty claims could potentially extend into

2020.” (Id. at 19–20.)

b. Future performance

Plaintiffs contend that the applicable warranties also contain a future performance

provision which, under Ohio Rev. Code § 1302.98(B), defers accrual of the statute of limitations

to discovery of the defect in the subject vehicle.

As a general rule, “repair-or-replace clauses themselves do not qualify as warranties

extending to future performance of goods.” Jones v. Lubrizol Advanced Materials, Inc., 1:20-cv-

511, -- F. Supp. 3d --, 2021 WL 4076837, at *14 (N.D. Ohio Sept. 8, 2021) (internal quotation

marks omitted; citations omitted); Young v. Carrier Corp., No. 4:14-cv-974, 2014 WL 6617650,

at *5 (N.D. Ohio Nov. 21, 2014) (same) (citing Allen, 913 F. Supp. 2d at 501 (“Ohio federal and

state courts hold that a promise to repair or replace defects for a specified time period is simply a

remedy for the buyer and not a promise of future performance” of the goods under § 1302.98(B)

(emphasis in original)). While the existence of a repair-or-replace provision does not itself trigger

the future performance exception under § 1302.98(B), that does not mean that another provision

19 The parties do not dispute that Webb’s vehicle was also covered by a CPOW, which expired on April 20, 2016. (See

Doc. Nos. 70-2, 82 ¶¶ 51–53.)

20 For the reasons discussed below in Section E, the Court finds that there is a genuine dispute of material fact as to

whether plaintiffs are entitled to tolling under the doctrine of fraudulent concealment.

in the vehicle warranties cannot satisfy that exception.21 See Grover, 434 F. Supp 3d at 631–32

(citing Siriano v. Goodman Mfg. Co., Case No. 2:14-cv-1131, 2015 WL 12748033, at *6

(“[R]epair-or-replace limitations and future performance warranties are not mutually exclusive.”)).

Plaintiffs’ argument that the “repair or replace” provision in the vehicle warranties should

be construed to contain a future performance exception on the basis of the warranty language and

Standard Alliance Indus., Inc., v. Black Clawson Co., 587 F.2d 813 (6th Cir. 1978) is unavailing.

(See Doc. No. 80 at 10–14.) Standard Alliance held that a repair and replace warranty provision

supported a finding of future performance and triggered the discovery rule. Plaintiffs acknowledge

that, at the time Standard Alliance was decided, there was no Ohio case law to guide the Sixth

Circuit. Since that time, Ohio state courts have rejected that analysis. See Allis-Chalmers Credit

Corp. v. Herbolt, 479 N.E.2d 293, 300–01 (Ohio Ct. App. 1984). And federal courts considering

the issue have concluded that the Sixth Circuit in Standard Alliance would have reached a different

decision if it had the benefit of subsequent Ohio state court decisions and have likewise ruled that

repair and replace provisions themselves do not trigger future performance language within the

21 The distinction between a repair and replace remedy that does not accrue until the warrantor fails to fulfill that

obligation within the specified period of the warranty, and warranty language that triggers the future performance

exception, is aptly explained in a treatise on the subject as referenced by this Court in Grover, 434 F. Supp. 3d at 632,

and separately quoted by another branch of this Court:

[J]ust because the warranty mentions a period of years, it does not necessarily extend to the future

performance of the goods. If the warranty says, “Our widgets are guaranteed for five years from the

date of sale; they will not malfunction at any time during that period,” then the warranty explicitly

extends to the future performance of the goods …. However, suppose the warranty says “Our

widgets are guaranteed. If they malfunction within five years from the date of sale, we will repair

or replace them at our expense.” This warranty explicitly extends to the future performance of the

warrantor. The time period relates only to the remedy. The warranty does not say that the widgets

will not malfunction, but that the warrantor will resolve the problem in a certain way for a limited

time if they do malfunction. Since the language concerning time focuses on the remedy to be given

by the warrantor, rather than the future performance of the goods themselves, [the future

performance exception of Ohio Rev. Code § 1302.98(B)] does not apply.

Young, 2014 WL 6617650, at *5 (emphasis removed and alteration added) (quoting 2 The Law of Prod. Warranties

PRODWARR § 11:4).

meaning of § 1302.98(B). See Allen, 913 F. Supp. 2d at 501–03; Zaremba, 458 F. Supp. 2d at 550–

51; Siriano, 2015 WL 12748033, at *5; Timken Co. v. MTS Sys., Corp., 539 F. Supp. 3d 770, 790–

91 (N.D. Ohio 2021). So the Court will examine the warranty for any other language that creates

a future performance exception and triggers the discovery rule.

BMW warrants subject vehicles “against defects in materials or workmanship to the first

retail purchaser, and each subsequent purchaser[,]” for a “warranty period” of “48 months or

50,000 miles, whichever occurs first.” The warranty “[c]overage begins on the date of the first

retail sale[.]” See Doc. No. 77-5 at 4. In order for the future performance discovery rule to extend

Ohio’s four-year statute of limitations for breach of an express warranty, the warranty must

explicitly extend to future performance of the goods—that is, the warranty must provide that the

product itself will be free from defects for a specific period of time and so discovery of the defect

must await that passage of time. Here, BMW does not explicitly warrant that the subject vehicles

will be free from defects for four years or 50,000 miles. Rather, the warranty language uses the

present tense to warrant the subject vehicles against defects and, if a defect is discovered within

the warranty period, BMW will repair or replace the defective part. See Carroll v. BMW of N.

Am., LLC, No. 1:19-cv-224, 2021 WL 3474032, at *19 (although the warranty references a future

date with respect to the time period of coverage, the warranty does not state that the BMW will be

free from defects during that period but rather that defects occurring during that period will be

repaired or replaced); cf. Siriano, 2015 WL 12748033, at *6–7 (finding that repair or replace

language did not satisfy the future performance exception of Ohio’s express warranty statute, but

additional warranty language did: “[A]ll parts [of the HVAC unit] (including the compressor) are

warranted for a period of 5 YEARS.”); see also Holbrook v. Louisiana-Pac. Corp., 533 F. App’x

493, 495 (6th Cir. 2013) (finding that warranty language expressly contained not only an obligation

to repair or replace, but a promise of future performance of the product: “In the first sentence of

the ten-year written warranty, Louisiana–Pacific ‘warrants its Trimboard, exclusive of finish,

against delamination, checking, splitting, cracking and chipping of the basic substrate for a period

of ten years from the date of installation under normal conditions of use and exposure....’”).

The express warranty at issue here does not explicitly warrant that the subject vehicles

themselves will be free from defect during the warranty period, and a warranty obligation to repair

or replace a defective product within the warranty period does not guarantee future performance

free from defect. Allen, 913 F. Supp. 2d at 502–03. Accordingly, the Court concludes that the

NVLW and CPOW do not contain express provisions regarding the future performance of the

subject vehicles, such as would trigger the discovery rule, and thus rejects plaintiffs’ argument that

the discovery rule applies to their express warranty claims.

C. Claim 2 – Breach of Implied Warranty

In their second claim, plaintiffs assert a claim for breach of implied warranty of

merchantability under 15 U.S.C. § 2301 of the MMWA and Ohio Rev. Code § 1302.27. Under

Ohio law, “a seller of goods impliedly warrants that its products are of good and merchantable

quality, fit and safe for the ordinary purposes for which the goods are intended.” Allen, 913 F.

Supp 2d at 505 (citing Ohio Rev. Code § 1302.27). Plaintiffs allege that BMW breached the

implied warranty of merchantability because the subject vehicles were not in merchantable

condition when purchased by plaintiffs and are unfit for their ordinary purpose. (See Doc. No. 13

at ¶¶ 149–55.) BMW, but not plaintiffs, moves for summary judgment on claim 2 of the amended

complaint as to all plaintiffs on the ground that their implied warranty claim is barred by the statute

of limitations. (See Doc. No. 70-1 at 20–21.)

The statute of limitations for breach of implied warranty under the MMWA and Ohio Rev.

Code § 1302.27 is governed by the four-year statute of limitations contained in Ohio Rev. Code §

1302.98(A). See Allen, 913 F. Supp. 2d at 505. “Implied warranties, by definition, do not explicitly

extend to future performance, thus removing any possibility that the discovery rule of Ohio Rev.

Code § 1302.98(B) could toll the limitations period in this case.” Id. (citations omitted). Thus, a

claim for breach of implied warranty accrues at the time of delivery. Id. (“Allen therefore had to

bring her claim for breach of the implied warranties within four years of the time the subject

windows were delivered.”).

Applying the language of the caselaw and statute to plaintiffs’ vehicles, BMW argues on

summary judgment that plaintiffs must bring their implied warranty claims within four years from

the date of the original tender of delivery of their vehicles. (Doc. No. 70-1 at 20 (citing Allen, 913

F. Supp. 2d at 505).) The original delivery date of plaintiffs’ vehicles is undisputed.22 The instant

action was filed on January 2, 2019, more than four years after the original delivery date of each

of the subject vehicles.

Plaintiffs’ opposition to BMW’s motion for summary judgment on plaintiffs’ second claim

for breach of implied warranty is silent, and plaintiffs themselves do not seek summary judgment

on their implied warranty claim.23 In response to a motion for summary judgment advancing facts

upon which the moving party maintains it is entitled as a matter of law to judgment on a claim, the

non-moving party must come forward and make a showing that there is a genuine dispute that

renders judgment on that claim inappropriate. Plaintiffs have not even attempted to do so, nor have

22 Walling (January 21, 2012) (Doc. Nos. 70-2, 82 ¶ 2); Williams (April 2, 2012) (id. ¶ 23); Jarvis (January 20, 2012)

(id. ¶ 30); Grover (December 10, 2012) (id. ¶ 35); Cribbs (November 2, 2009) (id. ¶ 39); Massey (July 31, 2012) (id.

¶ 45); Webb (April 20, 2010) (id. ¶ 52).

23 See Doc. No. 77 and Doc. No. 89 at 7 n.3.

plaintiffs asserted a legal argument that BMW is not entitled to summary judgment on plaintiffs’

second claim.

On summary judgment, the Court is not required to “search the entire record to establish

that it is bereft of a genuine issue of material fact.” Street, 886 F.2d at 1479–80. Nor is the Court

required to construct legal arguments on plaintiffs’ behalf.24

Accordingly, the Court finds that BMW is entitled to judgment as a matter of law on

plaintiffs’ second claim for breach of implied warranty under the MMWA and Ohio law, and

BMW’s motion for summary judgment on plaintiffs’ second claim is granted.

D. Claim 4 – Breach of Ohio’s Consumer Sales Protection Act

In their fourth claim, plaintiffs allege that BMW violated Ohio’s Consumer Sales Practices

Act (“CSPA”), Ohio Rev. Code § 1345.01 et seq., when BMW committed unfair and deceptive

sales practices by misrepresenting to plaintiffs at the time of purchase that their vehicles had

characteristics, uses, and benefits the vehicles did not have, and by failing to disclose that

information. Specifically, plaintiffs claim that BMW knew “at the time of [the subject vehicles’]

sale” that the N63 engine in those vehicles had defects that caused excessive oil consumption and

resulting safety concerns and premature engine failure but failed to disclose the defective nature

of the N63 engines to plaintiffs at the time of purchase. (See Doc. No. 13 at ¶¶ 171–180.) Plaintiffs

24 See McConnell v. McKillip, 573 F. Supp. 2d 1090, 1098 (S.D. Ind. 2008) (citing among authority John v. Barron,

897 F.2d 1387, 1393 (7th Cir.1990) (providing that a court “is not obligated to research and construct legal arguments

open to parties, especially when they are represented by counsel”)); see also Bagwe v. Sedgwick Claims Mgmt. Servs.,

Inc., No. 11-cv-2450, 2014 WL 4413768, at *11 (N.D. Ill. Sept. 5, 2014) (“[I]t is well-established that a district court

is not required to scour the summary judgment record to identify evidence that can defeat a summary judgment motion

or to piece together a party’s factual or legal arguments for her.”) (citing Ritchie v. Glidden Co., 242 F.3d 714, 723

(7th Cir. 2001)), aff’d, 811 F.3d 866 (7th Cir. 2016); Peery v. CSB Behav. Health Sys., No. CV106-172, 2008 WL

4935598, at *2 (S.D. Ga. Nov. 18, 2008) (“The job of this Court is to consider the parties’ arguments in relation to a

given motion and render a ruling on that basis; it is not to comb the multitude of filings by each party and find every

potential argument that could be distilled from these documents.”) (citing Resol. Trust Corp. v. Dunmar Corp., 43

F.3d 587, 599 (11th Cir. 1995) (holding that a district court is not required to distill all potential legal arguments from

the materials before it and the onus is on the parties to formulate legal arguments and present them to the district court

for consideration).

also claim that BMW violated the CSPA by breaching the implied warranty concerning their

vehicles. (Doc. No. 70-1 (citing Doc. No. 13 ¶ 182).)

The applicable statute of limitations for an CSPA claim is two years “after the occurrence

of the violation which is the subject of the suit[.]” See Ohio Rev. Code § 1345.10(C);25 see also

Allen, 913 F. Supp. 2d at 506; Zaremba, 458 F. Supp. 2d at 552; Price v. KNL Custom Homes,

Inc., 28 N.E.3d 640, 646 (Ohio Ct. App. 2015). No discovery rule applies to claims for damages

under the CSPA, and Ohio Rev. Code § 1345.10(C) provides for an “absolute” two-year statute of

limitations for damage actions. Price, 28 N.E.3d at 646–47 (quoting Montoney v. Lincoln Logs,

Ltd., No. 06AP-284, 2007 WL 155451, at *7 (Ohio Ct. App. Jan. 23, 2007)). But under Ohio Rev.

Code § 1345.09(C)(1), “[if the] action [is] for rescission, revocation of the consumer transaction

must occur within a reasonable time after the consumer discovers or should have discovered the

ground for it and before any substantial change in condition of the subject of the consumer

transaction.” Ohio Rev. Code § 1345.09(C)(1).

Both plaintiffs and BMW move for summary judgment on plaintiffs’ CSPA claim. BMW

argues that it is entitled to summary judgment because plaintiffs’ CSPA claims are based upon

BMW’s alleged misrepresentations, omissions, and failure to disclose concerning the N63 engine

in their vehicles at the “time of purchase” or “time of sale” and, therefore, the two-year statute of

limitations accrued when plaintiffs purchased their vehicles, rendering this action time barred.

(Doc. No. 70-1 at 21; see Doc. No. 13 at ¶¶ 78, 100, 119, 129, 171, 175.)

25 “(C) An action under sections 1345.01 to 1345.13 of the Revised Code may not be brought more than two years

after the occurrence of the violation that is the subject of suit, or more than one year after the termination of

proceedings by the attorney general with respect to the violation, whichever is later. However, an action under sections

1345.01 to 1345.13 of the Revised Code arising out of the same consumer transaction can be used as a counterclaim

whenever a supplier sues a consumer on an obligation arising from the consumer transaction.”

In opposition to BMW’s motion for summary judgment and in support of their own motion

for summary judgment on their fourth claim for relief, plaintiffs argue that the two-year statute of

limitations does not run from the purchase date, as BMW contends, because: (1) where the CSPA

claim arises from a breach of warranty the two year statutory period begins to run when the

warranty period expires; and (2) plaintiffs seek rescission or revocation of acceptance of their

vehicles and they brought their claims within a “reasonable time” after discovering the grounds

for revocation and they did not discover the N63 engine’s defective valve stem seals “until well

into the lives of the vehicles” between 2017 and 2019. (See Doc. No. 80 at 14–15; Doc. No. 77-1

at 31–32.)

Recission and revocation

Plaintiffs’ amended complaint specifically seeks money damages in their fourth claim for

relief. (See Doc. No. 13 ¶ 186.) The two-year statute of limitations for plaintiffs’ CSPA claim for

money damages begins to accrue at the time they purchased their vehicles. See Temple, 133 F.

App’x at 267; Quetot v. M & M Homes, Inc., No. 12 CO 1, 2013 WL 793219, at *3 (Ohio Ct. App.

Feb. 25, 2013) (The discovery rule does not apply to claims for monetary damages under the

CSPA. “[W]hen there is a claim for money damages under the CSPA, the statute of limitations

begins to run when the violation occurs, not when the consumer discovers the violation.”) (citing

Ohio Rev. Code §§ 1345.09(C)(1) and 1345.10(C) and collecting cases).

Plaintiffs’ argument that the two-year statute of limitations should not apply because they

seek rescission and revocation is unavailing. In their prayer for relief, plaintiffs generically seek

an “order approving revocation of acceptance of the subject vehicles[,]” however, this relief is not

specifically sought with respect to their CSPA claim (or any specific claim).26 Moreover, plaintiffs

do not allege any facts in the complaint which plead that plaintiffs have sought to revoke the

purchase of their vehicles “within a reasonable time after [they discovered] or should have

discovered the ground[s] for it and before any substantial change in condition of the subject of the

transaction.” See Allen, 913 F. Supp. 2d at 507 (quoting Ohio Rev. Code § 1345.09(C)(1)).

In the absence of alleged facts in the amended complaint that would support a claim for

recission, and in the absence of a CSPA claim specifically seeking recission as a remedy, the Court

concludes that the discovery rule to toll the statute of limitations on the basis of recission is not

applicable in this case. Id. at 506–07 (finding that plaintiff did not plead facts that would support

a claim under the CSPA for recission and open-ended claim for equitable relief is insufficient to

support a claim for recission under the CSPA and, therefore, plaintiffs “cannot invoke the

discovery rule to toll the CSPA statute of limitations”).27

Moreover, under the statute, plaintiffs may recover either damages or revocation, but

cannot both recover damages and rescind the purchase contracts for their vehicles. See Hokes v.

Ford Motor Co., Nos. 22502, 22577, 2005 WL 2995112, at *8 (Ohio Ct. App. Nov. 9, 2005)

26 Fed R. Civ. P. 8(a)(1)–(3) sets forth pleading requirements. Rule 8(a)(1)–(3) requires, respectively, that the pleading

contain a short and plain statement of the grounds for the court’s jurisdiction, a short and plain statement of the claim

showing that the pleader is entitled to relief, and a demand for the relief sought. Fed. R. Civ. P. 10, which governs the

form of pleadings, requires that pleadings be set forth in numbered paragraphs. See e.g., Krikorian v. Bank of Am. NA,

No. 20-cv-2274, 2021 WL 3419038, at *1 (D. Ariz. Aug. 5, 2021) (setting forth the requirement under the Federal

Rules of Civil Procedure that the complaint must “contain a short and plain statement of the grounds upon which the

Court’s jurisdiction depends, a short and plain statement of each specific claim, and a good faith demand for the relief

sought. Fed. R. Civ. P. 8(a)(1)-(3). These pleading requirements are to be set forth in separate and discrete numbered

paragraphs[.]”).

27 Nor does plaintiffs’ allegation that BMW concealed the alleged engine defect alter the accrual date or toll the two-

year statute of limitations on their CSPA claims because plaintiffs directly link their CSPA claim to the time of the

sale of their vehicle. See Kondash v. Kia Motors Am., Inc., No. 1:15-cv-506, 2016 WL 11246421, at *20 (S.D. Ohio

June 24, 2016) (“The Court reads that the alleged [CSPA] ‘violation’ was Defendants’ fraudulently concealing the

true quality and nature of the sunroof and Kia Optima when Kondash purchased it and failing to disclose the defect at

any time thereafter. The harm of the violation, overpayment or purchase of the car, is directly linked to the sale of the

car. Thus, the Court agrees with Defendants that Plaintiff’s claim accrued at the time of sale … and therefore is time-

barred, as suit has been brought more than two years thereafter.”).

(“Owners could either rescind the contract or recover damages, not both[.]”) (citing Ohio Rev.

Code § 1345.09(A) (“(A) Where the violation was an act prohibited by section 1345.02, 1345.03,

or 1345.031 of the Revised Code, the consumer may, in an individual action, rescind the

transaction or recover the consumer’s actual economic damages plus an amount not exceeding

five thousand dollars in noneconomic damages.”) (emphasis added)).

As previously discussed, the only specific relief sought by plaintiffs that is identified in

their CSPA claim is for monetary damages under the statute. (Doc. No. 13 ¶ 186 (“Plaintiffs should

be awarded three times the amount of their economic damages because Defendant intentionally

concealed and failed to disclose the defective nature of the subject vehicles.”).) Plaintiffs’ generic

prayer for relief for revocation is not tethered to their CSPA claim or to any specific claim.28 Where

plaintiffs seek monetary relief for their OSPCA claims which are tethered to the vehicle purchase

date, the two-year statute of limitations accrued on the dates they purchased their vehicles, which

are the dates on which they claim that BMW’s alleged misrepresentations and omissions occurred.

Breach of warranty

Citing Temple, plaintiffs also argue that the statute of limitations on their CSPA claim did

not begin to accrue on the date they purchased their vehicles, but when the warranty expired. (See

Doc. No. 80 at 14.) Ohio courts have held that a manufacturer’s failure to repair a defect covered

by a warranty can amount to a violation of the CSPA. Temple, 133 F. App’x at 266 (citing Boyle

v. Daimler Chrysler Corp., No. 2001–CA–81, 2002 WL 1881157, at *7 (Ohio Ct. App. Aug. 16,

2002) and Brown v. Lyons, 332 N.E.2d 380, 385 (Ohio Ct. C. P. 1974) (“Failure by a supplier in

connection with a consumer transaction to honor express warranties, constitutes deceptive acts and

28 Moreover, revocation is not a practicable remedy as five of the seven plaintiffs have already sold or otherwise

disposed of their vehicles. (See Doc. Nos. 70-2, 82 ¶ 33.)

practices in violation of the Ohio Consumer Sales Practices Act.”)). While it is true that the CSPA

can be violated by failing to honor an express warranty as plaintiffs point out in their motion for

summary judgment (Doc. No 77-1 at 41–43), plaintiffs do not allege BMW violated the CSPA by

breaching an express warranty; rather, they allege breach of implied warranty. (See Doc. No. 13 ¶

182.)

Breach of an implied warranty can serve as a basis for a CSPA claim. See Lump v. Best

Door & Window, Inc., Nos. 8-01-09, 8-01-10, 2002 WL 462863, at *6 (Ohio Ct. App. Mar. 27,

2002) (failure to honor implied warranties of merchantability constitutes a deceptive act and

practice in violation of the Ohio Consumer Sales Practices Act) (citations omitted). However, the

Court has granted BMW’s motion for summary judgment on plaintiffs’ second claim—breach of

implied warranty. Therefore, that alleged breach is unavailable to support plaintiffs’ CSPA claim.

See Nicholson v. Jayco, Inc., No. 5:15-cv-2010, 2016 WL 5463215, at *19 (N.D. Ohio Sept. 29,

2016) (because the Court has concluded that defendant is entitled to summary judgment on

plaintiffs’ claim for breach of warranty, defendant is also entitled to summary judgment on

plaintiffs’ claim that defendant’s violation of warranty is a basis for plaintiffs’ claim that defendant

violated the CSPA).

Accordingly, the two-year statute of limitations began to run on plaintiffs’ CSPA claims

when they purchased their respective vehicles. The dates that plaintiffs each purchased their

vehicles are undisputed: (1) Grover–7/28/2016 (Doc. Nos. 70-2, 82 ¶ 34); (2) Williams–6/27/2016

(id. ¶ 22); (3) Walling–6/9/2015 (id. ¶ 1); (4) Cribbs–11/2/2009 (id. ¶ 39); (5) Massey–6/4/2015

(id. ¶ 44); (6) Webb–11/27/2012 (id. ¶ 51); and (7) Jarvis–12/24/2014 (id. ¶ 20). The instant action

was filed January 2, 2019—more than two years after each plaintiff purchased their vehicle.

Accordingly, plaintiffs’ CSPA claims are barred by Ohio’s two-year statute of limitations, and

BMW’s motion for summary judgment as to plaintiffs’ CSPA claims is granted.

E. Tolling

Plaintiffs allege that their claims in the amended complaint are timely filed because the

applicable statutes of limitations are tolled based upon: (1) fraudulent concealment (Doc. No. 13

¶¶ 126–134); (2) the discovery rule29 (id. ¶¶ 135–137); (3) class action tolling (id. ¶¶ 141), and (4)

that BMW is estopped from relying upon the statute of limitations defense in this action30 (id. ¶¶

138–140). Because Ohio law governs the statute of limitations for plaintiffs’ MMWA claims, Ohio

law also governs issues of tolling. Bishop v. Children’s Ctr. for Dev. Enrichment, 618 F.3d 533,

537 (6th Cir. 2010) (“When the statute of limitations is borrowed from state law, so too are the

state’s tolling provisions, except when they are ‘inconsistent with the federal policy underlying the

cause of action under consideration.’”) (quoting Bd. of Regents v. Tomanio, 446 U.S. 478, 485,

100 S. Ct. 1790, 64 L. Ed. 2d 440 (1980)).

29 Plaintiffs contend they are entitled to tolling of the statute of limitations based upon the discovery rule with respect

to their CSPA claims and express warranty claims. See Doc. No 89 at 28–30. The Court addressed plaintiffs’ discovery

rule argument in the context of its analysis of those claims and determined that the discovery rule does not apply to

toll plaintiffs’ first, third, and fourth causes of action.

30 In their motions for summary judgment, the parties conflate the distinct concepts of equitable estoppel and equitable

tolling. See Doc. No. 89 at 25; Doc. No. 85 at 27–28; Doc. No. 70-1 at 22–23. Under the doctrine of equitable estoppel,

a defendant is precluded from using the statute of limitations as a defense “when the defendant’s conduct induced the

delay in filing the action.” Allen, 913 F. Supp. 2d at 510 (citation omitted). When the doctrine of equitable estoppel is

applied to a limitations defense, “a plaintiff must show that the defendant misrepresented the length of the limitations

period, promised a better settlement if the plaintiff did not bring suit, or made a similar representation to induce a

delay in bringing the suit.” Id. While plaintiffs claim that BMW was aware of defects in the N63 engine and

misrepresented and concealed the defect, plaintiffs do not allege that the concealment and misrepresentation “was

calculated to induce plaintiff to forgo the right to sue.” Id. at 511 (internal quotation marks and citations omitted).

Like the plaintiff in Allen, plaintiffs allege that the defendant concealed the defects to prevent plaintiffs from

discovering the defects, but the amended complaint is devoid of allegations that BMW “made a misrepresentation that

induced [plaintiffs] to forgo filing suit, which is the sine qua non of equitable estoppel as it relates to estoppel to rely

on the statute of limitations as a defense.” Id. (emphasis in original) (citing among authority Doe v. Archdiocese of

Cincinnati, 880 N.E.2d 892, 895 (Ohio 2008)); see Doc. No. 13 ¶¶ 138–40. Plaintiffs have alleged facts that may

support various claims and tolling of the applicable statute of limitations, but do not support precluding BMW from

raising the statute as a defense.

BMW concedes that, except for Cribbs and Webb, the statute of limitations on the repair

and replace express warranty claims for the remaining five plaintiffs could extend into 2020 and,

therefore, this action filed on January 2, 2019 was timely filed within the four-year statute of

limitations. (See Doc. No. 70-1 at 19–20.) Therefore, the Court’s tolling analysis concerns Cribbs

and Webb’s express warranty claims.

1. Equitable tolling and fraudulent concealment

Plaintiffs argue on summary judgment that the statute of limitations on their express

warranty claims are equitably tolled and those claims are not barred by the applicable statute of

limitations. Fraudulent concealment is a type of equitable tolling. See Thornton v. State Farm Mut.

Auto Ins. Co., No. 1:06-cv-18, 2006 WL 3359448, at *6 (N.D. Ohio Nov. 17, 2006) (under Ohio

law fraudulent concealment is a type of equitable tolling) (citing Phelps v. Lengyel, 237 F. Supp.

2d 829, 836 (N.D. Ohio 2002); Browning v. Levy, 283 F.3d 761, 770 (6th Cir. 2002)); see also

Allen, 913 F. Supp. 2d at 509–10 (citing among authority Thornton, 2006 WL 3359448, at *6).

This Court has previously articulated the standard for fraudulent concealment tolling under

Ohio law:

“[U]nder certain circumstances Ohio law recognizes that the concealment of a

cause of action can toll that statute of limitations.” Phelps v. Lengyel, 237 F. Supp.

2d 829, 836 (N.D. Ohio 2002) (citation omitted). Fraudulent concealment is one of

those circumstances. Thornton v. State Farm Mut. Auto Ins. Co., No. 1:06-cv-

00018, 2006 WL 3359448, at *6 (N.D. Ohio Nov. 17, 2006). To toll the statute of

limitations based on fraudulent concealment, “[a] plaintiff must show ‘(1) wrongful

concealment of their actions by the defendants; (2) failure of the plaintiff to

discover the operative facts that are the basis of his cause of action within the

limitations period; and (3) plaintiff’s due diligence until discovery of the facts.’”

Hamilton Cty. Bd. of Comm’rs v. Nat’l Football League, 491 F.3d 310, 315 (6th

Cir. 2007) (quoting Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389,

394 (6th Cir. 1975)). The question of whether the statute of limitations is tolled due

to fraudulent concealment is generally a question of fact not suitable for dismissal

at the pleading stage. See Phelps, 237 F. Supp. 2d at 836; see also Hometown Health

Plan v. Aultman Health Found., No. 2006-cv-06 0350, 2009 WL 1806759, at ¶ 7

(Tuscarawas Ct. Com. Pl. Apr. 15, 2009).

Grover, 434 F. Supp. 3d at 632.

Plaintiffs have offered evidence that BMW was aware of oil consumption problems with

the N63 engines but concealed/misrepresented those problems through BMW publications to

dealers who used these publications to repeatedly assure plaintiffs that their vehicles’ oil

consumption was “normal,” which is the subject of dispute as to the merits of plaintiffs’ warranty

claims. For example, BMW’s SIB 110113, published in May 2013, specifically states that “[t]he

additional engine oil consumption of a turbocharged engine, as compared to a normally aspirated

engine, is normal and not a defect.” (See Doc. No. 77-24 at 7.) Service records concerning Webb’s

complaints of oil consumption reflect that the dealership reviewed SIB 110113 with him. (Doc.

No. 77-21 at 7.) While the Court has excluded plaintiffs’ expert’s testimony and opinion regarding

concealment, plaintiffs are free at trial to introduce documents and testimony in support of their

fraudulent concealment argument to the factfinder, as well as Manzari’s opinion and testimony

that the oil consumption experienced by the subject vehicles was not normal. Both Cribbs and

Webb testified in deposition that they repeatedly raised the oil consumption issue with the

dealership during the warranty period and were repeatedly told by the dealership that the oil

consumption they experienced was normal, and not being mechanics, they trusted the dealers’

explanation that their cars’ oil usage was normal. (See Doc. No.77-21 at 12–13, 22; Doc. No. 77-

16 at 5, 9, 16.) But when the time came that expensive engine repairs were needed, and the oil

consumption increased to a level that could not be considered normal, Cribbs and Webb no longer

relied on or trusted their dealerships’ statements that the oil consumption of their vehicles was

normal. (See Doc. No. 77-16 at 10–11; Doc. No. 77-18 at 23 (October 2017); Doc. No. 77-21 at

22–23; 26–30 (spring 2017).)

For its part, BMW’s expert opines that BMW “never changed its position regarding engine

oil consumption [and] the rate at which it was acceptable for a BMW engine to consume oil” and

did not conceal from customers its knowledge that the N63 engine suffered from defective valve

stem seals. (See Doc. No. 85-5 at 5.) That said, BMW’s witness Richard Veren testified that he

was not aware of any document in which BMW told consumers that the oil consumption problem

in their vehicles could be the result of defective valve stem seals. (See Doc. No. 69-4 at 8.)

The evidence advanced by both sides on the issue of concealment is sufficient to raise a

genuine issue of material fact as to (1) whether BMW concealed the alleged defect in the N63

engine by repeatedly assuring Cribbs and Webb that engine oil consumption of their respective

vehicles was normal, and (2) whether Cribbs and Webb were diligent but failed to discover the

alleged defect during the limitations period.31 See Harris v. BMW of N. Am., LLC., No. 4:19-cv-

16, 2020 WL 7074879, at *6–7 (E.D. Tex. Dec. 3, 2020) (given the dealer’s explanation that it

was “normal” for plaintiffs’ cars to burn oil, they had no reason to search the Internet for

complaints regarding the N63 engine and did not become aware of such complaints within the

limitations period; this is sufficient on summary judgment to support their contention that they

exercised reasonable diligence); cf. Carroll, 2021 WL 3474032, at *21 (plaintiff did not exercise

the due diligence requisite for fraudulent concealment where he did not present the vehicle to a

dealership within the warranty period for service or repair related to oil consumption).

2. Class action tolling

Plaintiffs claim that the statutes of limitations on their causes of action are tolled by the

class action filed in the United States District Court for the District of New Jersey. (See Doc. No.

31 Cribbs purchased the vehicle new and the NVLW on the Cribbs’ Vehicle expired due to time on November 2, 2013.

Webb purchased his CPO vehicle on November 27, 2012. The NVLW expired due to time on April 20, 2014, and the

CPOW expired due to time on April 20, 2016.

13 ¶ 141 (citing Bang v. BMW of North America, LLC, Case No. 2:15-cv-6945, 2016 WL 7042071

(D.N.J. 2016)).) They argue that, based upon the Bang class action, the statutes of limitations

applicable to the instant action are tolled for the period between the initial filing of the class action

complaint on September 18, 2015 and the date all of the plaintiffs opted out of Bang class action

on August 30, 2018, for a tolling period of 2 years, 11 months, and 12 days. (See Doc. No. 80 at

15; Doc. No. 77-1 at 30.)

Citing American Pipe and Constr. Co. v. Utah, 414 U.S. 538, 94 S. Ct. 38 L. Ed. 2d 713

(1974),32 BMW contends that plaintiffs’ reliance on class action tolling is misplaced because that

doctrine only applies to actions where class status was denied, not where, as here, the class action

at issue reached a settlement and plaintiffs, as putative class members, opted out of the settlement.

(Doc. No. 70-1 at 30–31; Doc. No. 85 at 34–35.) In response, plaintiffs cite no legal authority

contrary to BMW’s argument, but merely point to the Court’s footnote in ruling on BMW’s motion

to dismiss that plaintiffs plausibly alleged the statute of limitations was tolled by the Bang class

action and simply assert that “the statute of limitations should be tolled for the period of time

between the date the Bang class action was filed and the date plaintiffs opted out of the class

settlement.” (See Doc. No 80 at 15 (emphasis added); Doc. No. 77-1 at 29.)

The parties’ briefing on this issue is cursory and meager. Plaintiffs have provided no legal

authority or analysis to counter BMW’s argument that plaintiffs are not entitled to class action

tolling under American Pipe, that the Bang class action brought in New Jersey tolls Ohio’s statute

of limitations as a matter of either state or federal law, or any evidence that would suggest that

there is a material fact in dispute regarding the application of American Pipe to toll the instant

32 In American Pipe, 414 U.S. at 554, the United States Supreme Court held that the filing of a class action tolls the

statute of limitations “as to all asserted members of the class who would have been parties had the suit been permitted

to continue as a class action.”

action. See Faessler v. U.S. Playing Card Co., No. 1:05-cv-581, 2007 WL 490171, at *4 (S.D.

Ohio Feb. 9, 2007) (plaintiff’s “bare assertion” that he was delayed in bringing his lawsuit was

caused in part by overseas military service and severe business difficulties is insufficient to satisfy

plaintiff’s burden that he is entitled to equitable tolling of the statute of limitations).

In ruling on the parties’ motions for summary judgment, the Court “is in the business of

resolving the legal arguments presented to it, not in creating a party’s inferred argument for him

and then passing judgment on it.” Lyon v. Yellow Transp., Inc., No. 2:08-cv-464, 2009 WL

1604807, at *15 (S.D. Ohio June 8, 2009), aff’d, 379 F. App’x 452 (6th Cir. 2010)). It is not the

Court’s role to research or construct legal or factual arguments on behalf of either party, nor is it

appropriate to do so. See Lucas, v. Telemarketer calling from (407) 476-5680 and other telephone

numbers, No. 1:12-cv-630, 2020 WL 9160868, at *4 (S.D. Ohio Sept. 8, 2020)((“It is not the role

of this Court to act as an advocate and to defend against Plaintiff’s claims on Defendant’s behalf.”);

see also Nicholson, 2016 WL 5463215, at *21 (it is not the Court’s obligation to conduct the

required research, construct arguments, and frame a legal analysis on any party’s behalf).

Plaintiffs have failed to rebut BMW’s argument on summary judgment that class action

tolling is not properly applied in this action and, therefore, the Court rejects plaintiffs’ assertion

that they are entitled to class action tolling in this action.

Conclusion

For all the foregoing reasons, plaintiffs’ motion for summary judgment is denied. (Doc.

Nos. 64, 76, 77.) BMW’s motion for summary judgment is denied as to claims one and three of

plaintiffs’ amended complaint and granted as to claims two and four of plaintiffs’ amended

complaint. (Doc. Nos. 65, 70.) BMW’s motion to seal is granted. (Doc. No. 92.) The parties’ joint

motion to exceed page limits is moot, and the Clerk is directed to terminate the motion. (Doc. No.

87.)

IT IS SO ORDERED.

Dated: January 24, 2022 i we

HONORABLE SARA LIOI

UNITED STATES DISTRICT JUDGE

30