# THORNE v. PEP BOYS-MANNY, MOE & JACK INC

> District Court, E.D. Pennsylvania · February 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10398381

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** February 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VICKIE THORNE, individually and CIVIL ACTION
on behalf of all others
similarly situated,
Plaintiff,

v. NO. 19-393

PEP BOYS-MANNY, MOE & JACK INC,
Defendant.

MEMORANDUM
Joyner, J. February 6, 2020
Presently before the Court is Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint for lack of standing under Fed. R.
Civ. P. 12(b)(1) and failure to state a claim under Rule
12(b)(6). For the reasons that follow, the Motion will be
granted in part and denied in part.
Factual Background
Plaintiff Vickie Thorne brings a putative class action
against Defendant Pep Boys - Manny, Moe & Jack, Inc. pursuant to
49 C.F.R. § 574.8 for its alleged failure to provide tire
registration information about tires that Plaintiff, and all
others similarly situated, purchased from Defendant. (Pl.
Amended Class Action Compl., Doc. No. 24 ¶53.) Specifically,
Plaintiff argues that because 49 C.F.R. § 574.8 requires
Defendant, as an independent tire distributor or dealer, to
provide to tire purchasers a tire registration form or invoice
showing that Defendant gave certain information to the tire
manufacturer, its failure to do either renders her unable to

independently determine whether her tires have been recalled due
to defects and the manufacturer unable to notify her should any
defects be discovered in the tire models that she purchased.
(Doc. No. 24 ¶¶2, 53-55, 59.) Plaintiff claims that the
regulatory violation itself; economic loss incurred from buying
unregistered tires; the “imminent risk” posed by driving on
tires that might be defective; having “no way of knowing if the
tires were properly registered with the tire manufacturer; and
being unreachable by the tiremaker” all constitute concrete
harms. (Pl. Opp. to Def. Motion to Dismiss Amended Class Action
Compl., Doc. No. 20 at 1, 10; Doc. No. 24 ¶58.) Notably,
Plaintiff does not contend that her tires actually suffer from a

product defect. (Doc. No. 24 ¶58.)
The regulation at issue, 49 C.F.R. § 574.8, was promulgated
under 49 U.S.C. § 30117. In 49 U.S.C. § 30117, Congress
provided that “[t]he Secretary [of Transportation] shall require
each distributor and dealer whose business is not owned or
controlled by a manufacturer of tires to give a registration
form (containing the tire identification number) to the first
purchaser of a tire.” In turn, 49 C.F.R. § 574.8(a)(1) provides
that when qualifying tire distributors or dealers sell or lease
new tires to tire purchasers, these sellers must either: (1)
give to the buyer a tire registration form stating the tire
identification number and the seller’s contact information; or

(2) record electronically or “on a paper tire registration form
. . . .” the buyer’s address and name, the tire identification
number, and the seller’s contact information, and provide the
form to the manufacturer at no cost to the buyer. 49 C.F.R. §
574.8(a)(1)(i)-(iii) (2009). If the seller chooses to
electronically submit the required information to the
manufacturer pursuant to 49 C.F.R. § 574.8(a)(1)(iii), then the
seller must indicate so on the buyer’s invoice and give that
invoice to the buyer. Id. § 574.8(a)(4).
We previously dismissed Plaintiff’s initial Complaint on
grounds that Plaintiff lacked standing under Article III of the
Constitution. Thorne v. Pep Boys - Manny, Moe & Jack Inc., 397

F. Supp. 3d 657, 668 (E.D. Pa. 2019). Here, in the Amended
Complaint, Plaintiff brings eight Counts.1 Defendant moves to
dismiss the Amended Complaint on grounds that Plaintiff again

1 The Counts include breach of the implied warranty of merchantability under
N.C. Gen. Stat § 25-2-314; violation of the Magnuson-Moss Warranty Act 15
U.S.C. § 2301 et seq.; violation of the Unfair Trade Practices and Consumer
Protection Law of Pennsylvania 73 P.S. § 201-1 et seq.; violation of the
North Carolina Unfair Trade Practices Act N.C. Gen. Stat. § 75-1.1; unjust
enrichment; common law negligence; negligence per se; and injunctive relief.
(Doc. No. 24 ¶¶71-136.) Plaintiff seeks an order certifying the class,
appointing her as Class Representative, and appointing her counsel as Class
Counsel. (Id. ¶136.) Additionally, Plaintiff seeks damages; restitution or
disgorgement; interest; injunctive relief; attorney fees; costs; and relief
available under the causes of action. (Id. ¶136.)
fails to satisfy Article III’s requirements and, alternatively,
that Plaintiff’s Counts fail for the reasons enunciated in
Defendant’s Brief in Support of Motion to Dismiss Plaintiff’s

Complaint. (Def. Brief in Support of Motion to Dismiss Pl.
Compl., Doc. No. 13-1; Def. Brief in Support of Def. Motion to
Dismiss Pl. Amended Compl., Doc. No. 26-1.)
Analysis
Motion to Dismiss Under Rule 12(b)(1) for Lack of Subject-
Matter Jurisdiction

As noted, Defendant contends that Plaintiff lacks
constitutional standing and moves to dismiss under Rule
12(b)(1). (See Doc. No. 26-1 at 6.) See also Ballentine v.
United States, 486 F.3d 806, 810 (3d Cir. 2007); Fed. R. Civ. P.
12(b)(1). Defendant posits that its attack is facial, not
factual. (Doc. No. 26-1 at 4.)
I. Factual Challenges Versus Facial Challenges
Courts distinguish between facial attacks and factual
attacks under Rule 12(b)(1). Constitution Party of Pennsylvania
v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014); Mortensen v. First
Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
In contrast to a factual attack, a facial attack on
subject-matter jurisdiction “concerns ‘an alleged pleading
deficiency . . . . ’” CNA v. United States, 535 F.3d 132, 139
(3d Cir. 2008), as amended (Sept. 29, 2008). See also Edmonson
v. Lincoln Nat. Life Ins. Co., 777 F. Supp. 2d 869, 877 (E.D.
Pa. 2011). Courts adjudicating facial attacks under Rule
12(b)(1) use the same standard of review as used for motions to

dismiss for failure to state a claim. Schuchardt v. President
of the United States, 839 F.3d 336, 344 (3d Cir. 2016).
Accordingly, the Court must determine whether the pleadings, on
their face, adequately allege subject-matter jurisdiction.
Constitution Party, 757 F.3d 347 at 358. Courts must consider
only “the allegations of the complaint and documents referenced
therein and attached thereto, in the light most favorable to the
plaintiff.” Id. A plaintiff must plausibly allege facts
supporting constitutional standing. Schuchardt, 839 F.3d at
344. The Court must accept all of a plaintiff’s plausible
allegations as true and draw all reasonable inferences in the
plaintiff’s favor. Id. at 343. However, “[c]onclusory

assertions of fact and legal conclusions are not entitled to the
same presumption.” Id. at 346–47.
II. Article III’s Requirements for Constitutional Standing
Several principles guide our constitutional standing
analysis. The constitutional standing assessment is separate
from the assessment of the merits. Cottrell v. Alcon Labs., 874
F.3d 154, 162 (3d Cir. 2017), cert. denied sub nom. Alcon Labs.,
Inc. v. Cottrell, 138 S. Ct. 2029 (2018). See also Davis v.
Wells Fargo, 824 F.3d 333, 348-50 (3rd Cir. 2016); CNA, 535 F.3d
at 145. Therefore, our standing analysis is limited to whether
Plaintiff has constitutional standing; whether Plaintiff is
entitled to relief under the Counts is a merits question that

cannot be resolved during the constitutional standing inquiry.
See CNA, 535 F.3d at 145. See also Edmonson, 777 F. Supp. 2d at
880.
In order to satisfy standing requirements under Article
III, a plaintiff must adequately allege (1) an injury-in-fact
that is (2) “fairly traceable to the defendant’s allegedly
unlawful conduct and that is (3) likely to be redressed by the
requested relief.” Lujan v. Defs. of Wildlife, 504 U.S. 555,
590 (1992) (internal citations omitted). See also Ballentine,
486 F.3d at 814. An injury-in-fact is “an invasion of a legally
protected interest which is . . . concrete and particularized[,]
. . . actual or imminent, not conjectural or hypothetical . . .

.” Ballentine, 486 F.3d at 814. See also Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1548 (2016), as revised (May 24, 2016);
Lujan, 504 U.S. at 560. The Supreme Court has recognized that
“‘legally protected interests’ may arise from the Constitution,
from common law, or ‘solely by virtue of “statutes creating
legal rights, the invasion of which creates standing.”’”
Cottrell, 874 F.3d at 164 (quoting Lujan, 504 U.S. at 576-78 and
Warth v. Seldin, 422 U.S. 490, 500 (1975)). Standing in a class
action turns on whether the named plaintiff has standing. Mielo
v. Steak ’n Shake Operations, Inc., 897 F.3d 467, 478 (3d Cir.
2018). Thus, our standing analysis centers on Plaintiff Thorne.
At the center of the current dispute is whether Plaintiff’s

alleged harms are concrete. Whether violation of 49 C.F.R. §
574.8 entails a concrete injury appears to be an issue of first
impression. To satisfy the requirement of concreteness, the
alleged injury-in-fact “must actually exist.” Spokeo, 136 S.
Ct. at 1548. When facing questions surrounding whether an
alleged intangible harm is concrete and “actually exist[s] . . .
.,” id., the Supreme Court has emphasized the utility of “both
history and the judgment of Congress . . . .,” id. at 1549. See
also Kamal v. J. Crew Grp., Inc., 918 F.3d 102, 113 (3d Cir.
2019).
When Congress elevates a real harm into statute, Courts
find concreteness. Crucially, however, Congress cannot

circumvent the constitutional requirement of a concrete injury
by conjuring up a harm in the absence of an actual, concrete
injury. Spokeo, 136 S. Ct. at 1549. Instead, it is well-
established that “Article III standing requires a concrete
injury even in the context of a statutory violation.” Id. at
1549. See also Kamal, 918 F.3d at 110.
Congress sometimes elevates harms arising from a failure to
communicate legally required discloses. See, e.g., Cartmell v.
Credit Control, LLC, 2020 WL 113829, at *9-10 (E.D. Pa. Jan. 10,
2020); Tonge v. Fundamental Labor Strategies, Inc., 277 F. Supp.
3d 809, 819 (E.D. Pa. 2017); Stokes v. Realpage, Inc., 2016 WL
6095810, at *7 (E.D. Pa. Oct. 19, 2016). For instance, Courts

have found such elevation when Congress created a private right
of action to enforce a statute and provided remedies, Tonge, 277
F. Supp. 3d at 819, and when Congress clearly contemplated
conferring a well-established substantive right to receive
certain information without deception, Cartmell, 2020 WL 113829,
at *9-10. Additionally, Courts find Congressional will to
elevate a particular harm when the statutory violation “goes to
the core of the interests Congress sought to protect.” Stokes,
2016 WL 6095810, at *7.
Here, setting aside that an agency, rather than Congress,
created the law at issue, Cartmell is inapposite because
Congress has not conferred upon tire buyers a right or interest

under 49 C.F.R. § 574.8 to receive tire registration
information. See Cartmell, 2020 WL 113829, at *9-10; § 574.8.
See also Kamal, 918 F.3d at 113. Unlike the law in Tonge, 49
C.F.R. § 574.8 does not contain a private right of action or
remedies for individual plaintiffs. See Tonge, 277 F. Supp. 3d
at 819; § 574.8. Additionally, as we explained in our previous
opinion, “[s]ection 574.8 of the Safety Act specifies that
independent tire distributors and dealers must comply with the
regulation at no charge to the tire purchaser.” Thorne, 397 F.
Supp. 3d at 667. See also § 574.8(a)(1)(ii)-(iii). Because
Plaintiff, as a matter of law, did not bargain for compliance
with 49 C.F.R. § 574.8(a)(1), Plaintiff has not sufficiently

pleaded that she suffered financial harm. Consequently,
Plaintiff – who has not sufficiently alleged economic harm or
that her tires suffer from a product defect – has failed to
connect this regulatory record-keeping violation “to the core of
the interests Congress sought to protect.” Stokes, 2016 WL
6095810, at *7. Instead, Plaintiff has alleged merely a
speculative harm attenuated from Congressional contemplation.
However, our analysis does not end here, as the Third
Circuit “requires us to examine the allegations in the complaint
from a number of different angles to see if [plaintiffs’]
purported injury can be framed in a way that satisfies Article
III.” Mielo, 897 F.3d at 479 (alteration in original) (internal

quotations omitted). See also Spokeo, 136 S. Ct. at 1549.
Just as “the judgment of Congress . . . .,” id. at 1549, is
useful for evaluating an alleged concrete harm, the Supreme
Court has observed that “it is instructive to consider whether
an alleged intangible harm has a close relationship to a harm
that has traditionally been regarded as providing a basis for a
lawsuit . . . .,” id. at 1549. See also Kamal, 918 F.3d at 114.
The Third Circuit recently looked to history for guidance: in
Kamal, the plaintiff alleged that the defendant violated a
federal statute by printing on receipts part of plaintiff’s
credit card number and plaintiff’s card issuer. Id. at 107.
The Third Circuit found that the plaintiff’s harm did “not have

the requisite ‘close relationship’ with . . . [historical]
actions because he does not allege disclosure of his information
to a third party.” Id. at 114 (quoting Spokeo, 136 S. Ct. at
1549). Similarly, Plaintiff here has not plead that her tires
are actually defective. Her tires may become defective in the
future, but her alleged harm is speculative. As in Kamal, the
alleged harm here is akin to alleged harms that Courts have
repeatedly rejected as not sufficiently concrete. See Kamal,
918 F.3d at 114; Hendrick v. Aramark Corp., 263 F. Supp. 3d 514,
520–21 (E.D. Pa. 2017).
Additionally, Courts decline to find a concrete harm when
the violations were merely procedural and unaccompanied by

actual harm. Spokeo, 136 S. Ct. at 1549; Mielo, 897 F.3d at
479; Moore v. Rite Aid Hdqtrs Corp., 2017 WL 6525796, at *7, *10
(E.D. Pa. Dec. 21, 2017). Correspondingly, a procedural
violation coupled with a concrete harm or risk of actual harm
can satisfy the concreteness requirement. Spokeo, 136 S. Ct. at
1549; Kamal, 918 F.3d at 111, 115, 116. See also Aramark, 263
F. Supp. 3d at 520–21. The Third Circuit explained that a risk
of actual harm can constitute a concrete harm because “[w]hen a
procedural right protects a concrete interest, a violation of
that right may create a sufficient ‘risk of real harm’ to the
underlying interest to ‘satisfy the requirement of
concreteness.’ Kamal, 918 F.3d at 111 (quoting Spokeo, 136 S.

Ct. at 1549). For instance, in Kamal, the plaintiff argued:
(1) that illegally printing credit card information created a
concrete harm and (2) that the increased risk of identity theft
resulting from this alleged violation was a concrete harm
contemplated by Congress. Kamal, 918 F.3d at 108. Notably, the
plaintiff did not claim that his identity or credit card
information were stolen. Id. at 107. As to the first alleged
harm, the Third Circuit found that “the procedural violation is
not itself an injury in fact.” Id. at 113. In holding that the
second alleged harm – the alleged risk – was not concrete, the
Third Circuit found that plaintiff failed to “‘clearly and
specifically . . . [set] forth facts’ showing a risk of harm . .

. .,” id. at 116, and that the “speculative chain of events does
not constitute a material risk of harm,” id. at 116.
Accordingly, we follow the Third Circuit in holding that a
violation of 49 C.F.R. § 574.8’s procedural record-keeping
requirement “is not itself an injury in fact.” Kamal, 918 F.3d
at 113. Additionally, in our previous opinion addressing the
initial Complaint, we held that Plaintiff alleged a procedural
violation unattended by concrete harm or a risk of concrete
harm. Thorne, 397 F. Supp. 3d at 667–68. Specifically,
Plaintiff failed to show harm or the requisite degree of risk
because Plaintiff did not plead “that the tires she bought from
Pep Boys were in fact, if ever, recalled . . . .” Id. Further,

in the initial Complaint, Plaintiff did not sufficiently plead
that she suffered financial harm because “[s]ection 574.8 of the
Safety Act specifies that independent tire distributors and
dealers must comply with the regulation at no charge to the tire
purchaser.” Id. at 667. See also § 574.8(a)(1). Plaintiff has
not remedied these defects in the Amended Complaint at issue
now, and Plaintiff has not included any additional material
allegations to show the requisite degree of risk or facts
supporting a different concrete harm. (Doc. No. 24; Pl. Compl.,
Doc. No. 1.) Instead, the added and amended allegations are
merely retellings of legal conclusions and immaterial facts,
such as discussion of the dangers of tire defects. (See, e.g.,

Doc. No. 24 ¶¶5, 28-31, 35, 58; Doc. No. 1.)
Accordingly, after evaluating Plaintiff’s allegations in
numerous ways, we find that Plaintiff’s alleged harm is distinct
from precedent where Courts in this jurisdiction have found
concreteness. See Mielo, 897 F.3d at 479. We hold that
Plaintiff has failed to plead a concrete injury-in-fact under
Article III for any of Plaintiff’s claims for any relief. Thus,
we need not discuss the traceability and redressibility
requirements of constitutional standing, nor need we analyze the
Counts or the request for class certification.
Conclusion

We grant Defendant’s Rule 12(b)(1) Motion to Dismiss for
lack of subject-matter jurisdiction as to all claims and
requested relief without leave to amend.2 We deny as moot
Defendant’s Motion to Dismiss under Rule 12(b)(6). An
appropriate Order follows.

2 Generally, District Courts in the Third Circuit should dismiss without
prejudice when constitutional standing is lacking. Kamal, 918 F.3d at 119;
Kamal v. J. Crew Grp., Inc., 2019 WL 4267894, at *6 (D.N.J. Sept. 10, 2019)
(appealed). However, when amendment would be futile, District Courts may
dismiss without leave to amend. Kamal, 2019 WL 4267894, at *6. Here,
Plaintiff’s Amended Complaint reiterates the facts and legal conclusions
stated in the initial Complaint and rejected in our previous opinion.
Thorne, 397 F. Supp. 3d at 667–68. As in Kamal, 2019 WL 4267894, at *6,
amendment would be futile because Plaintiff’s alleged harms cannot establish
standing as a matter of law. See Kamal, 2019 WL 4267894, at *6.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10398381. Public record. Not legal advice.