Petition for Writ of Certiorari — Alim Adburahman, et al., Petitioners v. Hyundai Motor America, Inc., et al.
Supreme Court briefOct 11, 2018
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No. _______
In The
Supreme Court of the United States
ALIM ADBURAHMAN, ET AL.,
Petitioners,
v.
HYUNDAI MOTOR AMERICA, INC., ET AL.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
APPENDIX
Elwood Earl Sanders, Jr., Esq.
Counsel of Record
8357 Curnow Drive
Mechanicsville, VA 23111
(804) 644-0477 (Tel)
(804) 644-3336 (Fax)
eesjresquire@netscape.net
James B. Feinman, Esq.
1003 Church Street
P. O. Box 697
Lynchburg, VA 24505
(434) 846-7603 (Tel)
(434) 846-0158 (Fax)
jb@jfeinman.com
Counsel for Petitioners
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
A1
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1582
JIHAD ADBUL-MUMIT; MATTHEW ABEDI;
MONICA ADAIR SARGENT; MARK AGEE; ALIZ
AGOSTON; YVONNE ALSTON; DAN AMATRUDA;
KRISTY AMBROSE; KIMBERLEY AMICK;
WANDA G. AMOS; CHRISTOPHER ARAUZA;
CARL ARSENAULT; BROOKE ASHER;
MICHELLE ATKINS; RAYMOND O. ATKINS;
MATTHEW ATWELL; DAVID AUB; SOHA
AYYASH; ASIF AZIZ; SUSAN BAILEY; KAREN
BAKER; HAB BAKER, III; TERRY BARNES;
JOSEPH BARTELL; HARRY L. BARTON;
BENJAMIN BASHAM; MATTHEW BASILONE;
JOHN BAXTER; JOHN BEASLEY; TIMM
BETCHER; ELIZABETH BELEVAN; BARBARA
BELL; JUDY BENDER; AMINE BERBALE; JAMES
BERLING; SHARON BISDEE; WILLIAM
BONNER; WALTER BORDEAUX; GARY
BOYETTE; TODD BRADBURY; KAREN
BRADBURY; JOHN BRANCATO; WILLIAM
BREWSTER; LORI BRODIE; GLORIA BROOKS;
ELSE BROWN; MELANIE BROWN; ANGELA
BROWN; GARY BROWN; JEANNE BROWN;
SYDNEY BRUMBELOW; JAN BURFORD; SARA
BURRUSS; JAMIE BURTON; JOSEPH
CALDARELLI; JASON CALL; TODD CARLSON;
HOWARD L. CARPENTER; CYNTHIA CARTER;
FREDERICK CARTER; JACKLYN CASSELLETUPPONCE; JARED CASTRO; REBECCA
CATLETT; SUSAN CAVE; KIRT CHAPPELLE;
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LINDA CHEESEBORO; ROGER CHESLEY, JR.;
STEVE CHILDRESS; DAN CHO; SUNG CHO;
SUNG CHUN; WILLIAM CLARK; LINDA CLUNE;
STUART COCHRAN; CHARLES COCHRANE;
ANGEL COLLINS; HENRY SHANE COLVIN;
KARRI COLVIN; CARLY CONNELLY; ANGIE
CONNER; JEREMY CONRAD; PHILIP CORRAO;
KIMBERLY CRAWFORD; MARGARET
CRITTENDON; APRIL CROCKER; WILLIAM
CROMER; JAY CUNNINGHAM; MARY CURTIS;
ROBERT DANIELS; DONNA DAVIS; BOYD
DAVIS; LISA DAVIS; ROGER DAVIS; MICHELLE
DEBROSSE; MICHAEL DECANIO; ALMA DELIA
DELEON; JENNIFER DEMARCO; ANTHONY
DEPAUL, JR.; GEORGE D. DESPERT, III;
CYNTHIA DEVANE; RUTH DIAZ; RON
DICKMAN; SHERI DIXSON; SONYA DODSON;
JESENIA DOMINGUEZ; TERRY DONALDSON;
LATAVIA DREW; ARLENE DREWRY; CHRISTINA
DRUGATZ; KAREN DUNCAN; SANDRA K.
DUNTON; JEFF EDDY; DEBORAH EDGE;
DEBORAH EDGEFIELD; PAMELA EDWARDS;
KASEY EIKE; MIRIAH EISENMAN; FREDERICK
EITEL; SHARON EKSTRAND; NICOLE
ELSESSER; JOSEPH ELTON; KAREN EVANS;
MASE FABAR; FLOYD FALLIN, JR.; JAMES
BASHAM; ELIZABETH FARRELL; MARGIE D.
FAULS; CAITLIN FEELEY; BARRY FELDMAN;
BRIAN FELDMAN; WANDA FERGUSON; JAMES
FICKLE; SHIRLEY FICKLE; SCOTT FLORA;
THOMAS ROBERT FRANCO; JOHN FRANKLIN;
TAMMY FRANKLIN; ANTHONY FREDERICK;
TRACY FREDERICK; THOMAS FREEZE; ADAM
FURMAN; ALICIA FUSCO; DONNA GADDIS;
GUILLERMO GALARZA; IVAN GALLOWAY, JR.;
A3
IDA GARNER; WILLIS M. GARY; KURT GERGLE;
TARUN GHAI; ELAINE GIBSON; HELEN
GILLESPIE; MELODY GILLEY; TANJA
GILMORE; BRIAN GLAUB; BARRY GOLDBERG;
SCOTT GOODMAN; RICHARD GOULD; TROY L.
GRAHAM; GABRIELA GRAJEDA; ELIZABETH
GRANT; BRANDI GRAY; CHRISTIE GRAY; JANIE
GRAY; VALERIE GRAY; GRAYBERG; AYNDRIA
GREEN; DIANA GRIFFIN; PAUL L. GROVER;
JESSICA GROVES; DEDRA GUENO; CARL
GUSSGARD; ARNOLD GUTMAN; JULIAN
GUTTERMAN; TESSIE GUTTERMAN; LISA
HAGERTY; LAUREN HAGY; CEDON J. HALEY,
JR.; DOROTHY HALPIN; NANCY N. HAMLETT;
ERESTINE HARDING; DEBORAH HARE; AQUISI
HARRIS; KENDALL HARRIS; MARY HARRIS;
PATRICE A. HARRIS; BRIANNA HARRISON;
SHARON HARRISON; SHARON HART; LEE ANN
HARTMANN; PATRICIA HAUSER; DEANNA
HAVERLY; LESLIE HEARN; KATHLEEN
HEDRICK; AMANDA HEINLEIN; CHARLES
HELMS; ROBERT HENDRICKSON; STEPHEN
HERMAN; JAMES HERRINGTON; WILLIAM
HESTER, JR.; DEBBIE HETTERLY; NANCY
HICKMAN; JEREMY HILLBERRY; GREG E.
HINES; ROBERT HITE; BRITTANY HOBAN; PAM
HODGES; THURMAN HODGES; CHRISTOPHER
HOEHN; CAROLYN HORCHNER; JEFFREY
HORCHNER; BETTY HORNICK; JENNIFER
HORNING; MAJOR M. HORTON; BITSY HOUSE;
ALYSSA HRONOWSKI; TEDDY HUDDLESTON;
JERRY HUDSON, SR.; HUBERT HUGHES; SHAY
HUNTER; MARK HUSTEAD; CAROL
HUTCHINSON; NATHEN ILLIDGE; GEORGE
IOANNOU; FRANCES JACOCKS; PATRICIA
A4
JACOCKS; JASON JAFFEUX; SALLY JAMES;
STACEY JANSEN; JOYCE JANTO; WALTER
JEFFRIES; JANICE JENKINS; CHELSEA
JOHNSON; MONICA JOHNSON; RASHEEDAH
JOHNSON; TODD JOHNSON; DERWOOD
JOHNSTON; JOHN JOHNSTONE; CHRISTINA
JONES; PAMELA JONES; WILBER B. JONES;
RICHARD JORDAN; SANDRA JORDAN; SHERYL
JORDAN; JENNIFER JUSTICE; KIM KEATING;
CODY KELLY; TERESA KELLY; MELANIE
KENYON; JOHN KERR; SHEA KERSEY;
HANNAH KIGHT; WILLIAM KIGHT; MIKYUNG
KIM; CAROLYN KINES; LARRY KING; SUSAN
KING; VERNON KIRBY; DIANA KITE; EDWARD
KIZER; PATSY KIZER; JOHN A. KNIGHT;
CONNIE KNISELEY; DONNA KNOELL; AMANDA
KOZAK; TAMARA KROBERT; FRANK KULOVITZ;
CARL KURI; KELLY KUSEK; VICTOR C.
KVIETKUS; BRENDA LACKEY; TAMMY LACKEY;
MARY LANG; MARKUS LANGE; CATHERINE
LANTZ; GLENN LAVINDER; CHRISTOPHER
LEGENDRE; BARBARA LEGGETT; DAVID
LEHMAN; CALVIN LEWIS; CALVIN LEWIS;
REGINA LEWIS; DELORES LINDBLOM;
WILLIAM LIPFORD; ASHLEY LIPPOLIS-AVILES;
MIKE LITTMAN; BILLY LLEWELLYN; ROBIN
LOVETT; DAVID LOVING; CYANE LOWDEN;
KEN LU; JOSHUA LUBECK; ROBERT R. LUCAS;
PATRICIA LYONS; WILLIAM LYONS;
CHRISTINE MACCASLIN; ANITA MADISON;
JOHN MALIZIA; SUZANNE MALIZIA; THOMAS
MALONE; STANLEY MARCUS; HEATHER
MATSEY; JAMES MATSEY; RODNEY
MATTHEWS; SHAWNA MATTOCKS; MATTHEW
MATTRO; JEFF MAY; HAROLD MAYHEW, JR.;
A5
SHAWN MAYNOR; DIANDRA MAYO; ROBERT
MCCARRAHER; PENNY MCCENEY; ROBERT
MCCLELLAND; MICHAEL MCCLENNING;
ROBERT MCCURDY; JOSEPH MCDANIEL;
SUSAN MCFADDEN; WILLIAM MCFADDEN;
MARK MCGINLEY; RICHARD MCGRUDER;
VICTORIA MCGRUDER; DONALD MCINTIRE;
KAREN MELLER; KAREN MELLER; CARMEN
MERCADO; SCOTT MEYERS; CAROL MIEGGS;
CHRISTY MILLER; DAVID MILLER; RON
MILLER; MARIA MING LI; MARY MITCHELL;
TERRIE MITCHELL; BANKS MITCHUM;
BENJAMIN MOHER; DAVID MOLINARI; JUNG
MOON; KAREN MOONEY; BONNIE MOORE;
MONTE MORGAN; PHILLIP MORGAN; WILLIAM
MORGAN; BRYON MOSS; SUZANNE MOWBRAY;
DAVID MULLIGAN; MARY MULLIGAN; NANCY
MURRAY; ROGER MYERS; PATRICK NANCE;
DENNIS NEGRAN; PENNIE NEWELL; GLEN
NEWITT; JACQUI NEWITT; EDWARD NEWMAN,
JR.; KEVIN NEWSOME; REVEREDY
NICHOLSON; PATRICIA NICOSIA; RANDALL
NIXON; KAREN NOLAN; RYAN NOLETTE;
BRYAN NORDQUIST; SERGEI NOVITSKY;
JONATHAN O'BRIEN; WILLIAM O'FLYNN;
KAREN O'NEIL; ADRIAN ODYA-WEIS; DENNIS
OLEARY; JOHN OLSEN; TANA RAE OROPEZA;
BRIAN OSBORNE; CANDACE OWENS; LYNN
PAGE; TANYA PALIK; RONA PALMER; ASHLEY
PANNELL; HARRY PAULETTE; TANYA PEAKE;
DONNA PEARSON; RICHARD PEARSON; JOHN
PEDERSEN; CHRIS PENA; ROY MASON
PENNINGTON, III; NICHOLAS PEREZ; GREG
PERIGARD; KIM PERKINS; MARK PERRY;
BRADY PETERS; KAREN PETERS; THOMAS
A6
PETIT; REBECCA PETRELLA; SUSAN PETRIE;
ADRIAN PHILLIPS, JR.; ANNE PICCIANO; JOHN
PICCIANO; CARL PIERCE; SIVATHANU PILLAI;
DEBRA PINES; CHARLES PINKARD; LILIA
PINSON; ARLOVE PLUNKETT; TIMOTHY
POHLIG; DENISE POINDEXTER; RACHEL
POLIQUIN; MARGARET POMEROY; DAVID
POORE, III; LAURA POTTER; KATHY POWERS;
LINDA PRATT; BERNARD PRESGRAVES; JASON
PRICE; DENISE PRYOR; JOSHUA PUCCI;
VICTORIA PUCKETT; SARA PULLEN; TONY
PULLEY; CYNTHIA QUATTLEBAUM; EVA
RALSTON; WILLIAM RALSTON; HANNAH
RAMEY; JACQUELINE RANDOLPH; THOMAS
RANDOLPH; MICHAEL RANGER; BRAD
RANSOM; HENRY REQUEJO; DAVID
REYNOLDS; ROSE RICKER; DANNY RIDDLE;
ROBIN ROBERT; JOSHUA ROBERTS; MARY
ROBERTS; ANNIE ROBINSON; ANTONIO
ROBINSON; ROCKY ROCKBURN; DREW ROPER;
TROY ROSIER; ERIC ROTHMAN; BRIAN ROWE;
JULIET ROWLAND; JOHN ROWLEY; NANCY
ROWSEY; STEPHEN RUBIS; KYLE RUSSELL;
JENNIFER RYAN; THOMAS RYDER; JOSEPH
SALAZAR; RANDALL SAMPLES; REBECCA
SAMUELSON; THOMAS SANCHEZ; AARON
SANDERS; ASOK KUMAR SARKAR; TOM
SCARCELLA; EDWARD SCEARCE; SHANE
SCHLESMAN; WADE SCHWANKE, JR.; GWEN
SEAL; AMY SEAY; BRADLEY SEAY; CHARLES
SELTMAN; PATTY SENTER; LYNN SETTLE; TIM
SEYMOUR; RONALD SHARP; ERNEST SHARPE;
SHIRLEY SHAW; STEPHANIE SHELOR;
MICHELLE SHIFFLETT; SANDRA SHIFFLETT;
JUNE SHORES; D. SHAWN SHUMAKE; NINA
A7
SIBERT; ROBERT SILBER; CHRISTIAN
SIMMERS; MARY SINGHAS; RANDALL
SINGHAS; AMY SMITH; DAPHNE HOPE SMITH;
LISA SMITH; STEPHEN SMITH; SUZANNE
SMITH; KRISTINE SMOLENS; HOWARD
SNYDER; WESLEY SONGER; EMILY SPARKS;
BRIAN SPENCER; SVETLANA SPENCER;
PATRICIA SPIER; LORI SPIK; DEREK ST. ONGE;
RONALD STAFFORD; JONATHAN STARKS;
MARK STEPHENS; TERRY STEPP; SARAH
STEVENSON; ERIC STEWART; ROXANNE
STITH; TIM STOESSEL; JEAN STOTLER; SARA
STRAMEL; LARRY STRAYHORN; FRANKLIN
STURKEY; BEN SULLENGER; YOLANDA
SULLIVAN; JOHN SUTOR; WANDA SUTPHIN;
SHARON SWINBURNE; STELLA TANG; ANDREW
TAYLOR; ANN TAYLOR; DONNA TAYLOR; JI JI
THEKKEVEEDU; CHRISTOPHER THOME;
MICHAEL THOME; DAVID THOMPSON; TOM
THOMPSON; ASHLI THURSTON; CHRISTOPHER
TOKAR; DION TOMER; CLIFFORD TRIMBLE;
SERGIO TROMBA; ADELINE TROTTER; JAMES
TURNER; JEFFREY TURNER; OWENS TURNER,
JR.; MARILYN TWINE; LONNIE URQUHART;
CHERI VALVERDE; MIKE VAMMINO; CARRIE
VAN HOOK; KATHERINE VANDENBRIEJE;
MILCA VARGAS; MARY VAUGHAN; ROBENA
VAUGHAN; JESSYCA VENICE; KIMBERLY VEST;
CAROL VIERGUTZ; MARYANN VILLIES;
PATRICE VOSSLER; AMADA WAGONER; STACY
WALLER; GARY WALTON; GRETCHEN WARD;
SHELIA WARD; DANIEL WAXMAN;
CHRISTOPHER WEAVER; MARGARET WEBB;
LAURA WEISIGER; STEPHANY WHIPPLE;
DAVID WHITLEY; SARAH WHITLOCK; DIANE
A8
WIEN; ROBERT T. WIENER; CHRISTOPHER
WILCHER; MINDY WILLIAMS; VINCENT
WILLIAMS; HANNAH WILSON; JUANITA
WILSON; RIED WILSON; CHARLES WISER;
SHARON WISER; MARK WOEHLER; KENNETH
WOMACK; EMILY WONG; GREGORY WOODS;
KATHERYN WOOSLEY; CAROL WRIGHT;
JONATHAN WRIGHT; MARY WRIGHT; THOMAS
WRIGHT; TIMOTHY WRIGHT, JR.; LESLIE
YAMNICKY; KENNETH YATES; JAMIE YOUNG;
SANDRA YOUNG; ROBERT YOUNIE, II; ATEF
ZAYD,
Plaintiffs - Appellants,
v.
ALEXANDRIA HYUNDAI, LLC; BROWN’S
LEESBURG HYUNDAI, LLC; BROWN’S
MANASSAS HYUNDAI, LLC; CHECKERED FLAG
IMPORTS, INCORPORATED; CHECKERED FLAG
STORE #6, LLC; CRAFT AUTOMOTIVE,
INCORPORATED; DUNCAN IMPORTS,
INCORPORATED; FAIRFAX HYUNDAI,
INCORPORATED; FIRST TEAM,
INCORPORATED; GATEWAY HYUNDAI,
INCORPORATED; HALL AUTOMOTIVE GROUP,
INCORPORATED; HALL HYUNDAI NEWPORT
NEWS, LLC; HALL HYUNDAI, LLC; HYUNDAI
MOTOR AMERICA, INCORPORATED; MILLER
AUTO SALES, INCORPORATED; CAVALIER
HYUNDAI, INCORPORATED; HARRISONBURG
AUTO MALL, LLC; JAMES CITY COUNTY
ASSOCIATES, INCORPORATED; MALLOY
HYUNDAI; POHANKA AUTO CENTER,
INCORPORATED; PRICE HYUNDAI
CORPORATION; PRIORITY GREENBRIER
A9
AUTOMOTIVE, INCORPORATED; PRIORITY
IMPORTS NEWPORT NEWS, INCORPORATED;
ROBERT WOODALL CHEVROLET,
INCORPORATED; TYSINGER MOTOR COMPANY,
INCORPORATED; WBM, INCORPORATED, d/b/a
West Broad Hyundai; WRIGHT WAY
AUTOMOTIVE, INCORPORATED,
Defendants - Appellees.
No. 17-1587
ALIM ADBURAHMAN; JOHN ABEL; LENA ABEL;
TAMARA ADAMS; BRANDON ADAMS; ASHRAS
AHMADI; WADHAH AL-HADDAD; CLAUDIA
ALLEN; PAUL ALLEN; JAMES ALLER; PEGGY
ALLER; JIANPING ALLOCCA; NICOLE
ALVARADO; GREGORY AMODEO; ROBERT
ANDERSON; SHERRY ANDERSON; DENNIS
ANDREW; LINDA G. ANDREWS; TINA ANTLEY;
PAULINE APISITPAISAN; MONICA ADAIR
ARGENT; GAURAV ARORA; RAMON ARROYO;
JAMES E. ASHLEY, JR.; BAKAL ASRAT;
ELIZABETH AVALAAN; CHERYL AYCOCK;
JOANN K. BACHNER; SHANON BAILESS;
CHRISTOPHER BAILEY; ANDY BAKER; BRIAN
BAKER; CAROL BAKER; GEORGE BAKER;
SUSAN BALLARD; DAVID BALMER; JEFF
BARBER; SCOTT BARNITT; LINDA BARR;
EMMETT BATTEN; SAMANTHA BEARD CURRY;
BRIAN BECKER; ROY BECKER; TONYA
BECKER; JOHN BECKNER, JR.; GINA BEEBE;
KENNETH BELL; PAMELA BELL; WHITNEY
BENSON; RAYMOND J. BERNERO; JOHN
BESSERER; COLONEL BILLINGSLY; DANA
A10
BISHOP; MICHAEL BIZIK; THOMAS BJERS;
PETER BOMBIK; SHARON BONNEAU; VIRGINIA
BONNELL; ZESTANN BOOKER; STEPHANIE
BORN-NEWTON; JORDAN BOSCH; SHIRLEY
BOURNE; CARROL E. BOWEN; JOSEPH BOWE;
JANICE BOWLES; JEAN BOWMAN; GRAY
BOYCE; RPBERT BRABO, II; CHERYL A.
BRADFORD; MARIE BRADLEY; OLIVIA BRADY;
PHYLLIS BRANCH; NICOLE BRANDON;
JOHNNY W. BRANSON; ELLIOTT ANDREW
BRAY; EDMUND P. BREITLING; MARY ANN
BRENDEL; MICHELLE BRINDLE; RICHARD
BRINDLE; STEVE BRINGHURST; MELANIE
BRINK; EDWINA D. BRITT-CRABLE; DANA
BROADWAY; BARBARA BROWN; CHRISTINA L.
BROWN; DELORES BROWN; JAMES A. BROWN;
MATTHEW BROWN; MELANIE BROWN;
MELISSA BROWN; NICOLE BROWN; TONY
BROWN; PATRICK D. BRYAN; BRIANNE
BRYANT; THOMAS J. BULLOCK; BEVERLY W.
BURKE; JOYCE BURKE; RICHARD BURKE;
MICHAEL BURNAM; JOHN M. BURNETT;
DARLENE BURTON; GRACE M. BUTLER;
SUZETTE BYRD; JOSEPH CALABRETTA; JAMES
CALLIS; CLARE CAMPBELL; DOROTHY
CAMPBELL; SETH CAMPBELL; STEVEN
CAMPBELL; WHITNEY CAMPBELL; JOYCE
CANTRELL; PAUL CAPOZZOLI; PHYLLIS
CARIMI; DALE F. CARLEO; DENNIS CARLSON;
MARK CARLTON; JAMES CARNEAL; MICHAEL
CARPENTER; JOSE CARRASQUILLO; LINDA
CARY; LEON CARY; JEFFREY CASH; ILONA
CASTRO; ROBERTO CASTRO; JENNY
CAVENDER; SHANNON CHAIN; DILIP
CHAKRABORTY; BAISHAKHY CHAKRABORTY;
A11
ROGER CHELSEA; PETER CHIAMARDAS;
MICHAEL CHRISTOPHER; CHERENE
CIMBALIST; BENJAMIN CLARK; DANIEL K.
CLARK; ELIZABETH CLARK; LARRY
CLEMENTS; ROBBIN CLEMENTS; KENDALL S.
CLOETER; JEREMY COBB; QUEEN B. COBBS;
GARY COCUZZI; JACK VICTOR COHEN;
JULIEANNA COLEMAN; CLINTON COLLINS;
AMON R. COLLINS, JR.; COLLIN CONNORS;
LOLANDA COOPER; SHARON COOPER; EILEEN
CORBIN; MICHAEL CORCORAN; KRISTEN
CORLEW; GARY COVERSTON; MARINA M. COX;
MOSES COX; TAMMY COX; JUSTIN CRONIN;
JILL CROWDER; BELINDA CUBBAGE; KELSEY
CUBBAGE; BESSIE CUFFEE; DAN CUOMO;
BRENDA CURTIS; ELVIS CYPRIANO;
STEPHANIE DAENZER; RICHARD L.
DAMEWOOD; JON DANCE; WILLIAM DANIEL;
BROOKE DAVIES; ANGELA DAVIS; JODY W.
DAVIS; MATTHEW DAVIS; JASON DAWSON;
LAURIE DAWSON; NELSON DAWSON; PAUL
DAWSON; DESIREE DEAN; ANTWAIN
DEBERRY; BLAIR DEEM; JENNIFER DEGRAFF;
WILLIAM DEJOHN; JOE DELGADO; TOM
DELPOZZO; ANTHONY DEPAUL, JR.; MICHAEL
DESOUTO; STACY DOBSON; DAVID DOBSON;
SONYA DODSON; DAVID DODSWORTH; MASON
DOERMANN; YVONNE DOVER; MINNIE
DUNFORD; SANDRA K. DUNTON; CHRIS C.
DUTTON; DEBORAH EDGEFIELD; KASEY EIKE;
MIRIAH EISENMAN; KATHY ELDRETH;
TIMOTHY ELLIOTT; THOMAS ENGLISH; KEITH
EPPS; CINDY FABER; MASE FABER; LUIS
FALCON; JOHN FARMER; BRANDON FARRELL;
A12
CHRIS D. FERGUSON; FARANDA FERGUSON;
WANDA FERGUSON; JUNE FERRARA; MICHAEL
FERTICH; JAMES FICKLE; SHIRLEY FICKLE;
JOSELYN FIELDS; JODI FILIPEK; BEVERLY
FINTCH; JENNIFER FLEURET; SUSAN FOFI;
RANDALL FOFI; LAURI FOUTZ; TIMOTHY
FOUTZ; KATHLEEN FOWLER; THOMAS ROBERT
FRANCO; GREG FRANK; JOHN FRANKLIN;
RONALD FRASIER; CATHLEEN FREIBURGER;
SHARON FRITH; MICHAEL FRUITMAN; ALICIA
FUSCO; ADLYN FUTRELL; DOUGLAS FUTRELL;
GUILLERMO GALARZA; ANTHONY GALLARDY;
IVAN GALLOWAY, JR.; PETER GARTNER;
CYNTHIA GASTLEY; SHEILA GAY; JESSICA S.
GEARHART; PAMELA EDWARDS; JOHN
WILLIAM GENTRY; MARK GEORGE; JOHN
GILBERT; DANIELLE KAY GILLELAND;
ANGELA GIONIS; JACQUELINE GIOVANNELLI;
ADAM G. GOLDSMITH; RICHARD GOULD;
CARRINE GRAHAM; CHERYL GRAHAM; RAY
GRAHAM; TAMMY B. GRAHAM; KAMERON
GRAY-HAROLD; ADAM GRAYBERG; AYNDRIA
GREEN; LISA D. GREEN; THOMAS GREICO;
ROBERT GRIMES; DAVID GROSS; JOE GROSS;
JESSICA GROVES; MEGAN GUILLAUME;
MICHAEL GUILLAUME; KELLI GUNTER;
LAUREN HAGY; RICHARD HALL; DOROTHY
HALPIN; PETE HALSETH; DAVID HAMMOND;
RICHARD HAMNER; STACY HARDY; JIM
HARNEY; TERESA R. HAROLD; AQUISI HARRIS;
ASHLEY HARRIS; CHAD HARRIS; ERVIN M.
HARRIS; MARY HARRIS; WILLIAM HARRIS;
BRIANNA HARRISON; PATRICIA HARRISON;
SHARON HARRISON; JESSE HATHAWAY;
CLAUDIA HAVEKOST; DAVID HAYNES; LESLIE
A13
HEARN; KATHLEEN HEDRICK; ADAM HEIDEL;
TINY L. HENLEY; AMBER HERNANDEZ;
ZACHACY HERRERA; F. DALE HERRON;
TARENNE HERRON; JENNIFER HESTER;
DEBBIE HETTERLY; AMANDA HILL; RONALD
HILL; CHRIS HILLAND; SHIRLEY B. HINES;
VERON HINES; TIMOTHY HINSON; HEATHER
HOBACK; BRITTANY HOBAN; DOMINGA
HOBBS; MARY HODGES; CHRISTOPHER
HOEHN; JERRY HOLLEY; KEISHA HOLLOWAY;
BRENDA HOLMES; JAMES HOLMES, III;
TIMOTHY HOLROYD; CHAD HOLSTON;
CHARLES HOOFNAGLE; CANDI HOOVER;
CHARLIE HOPKINS; MARCIA HORSTMAN;
RICHARD HOSKINS; CODY HOWARD; JESSICA
HOWARD; AUDREY HUBAND; MAX HUBAND;
JOHN HUBBARD; SUZANNE HUBBARD; DAVID
HUBER; TEDDY HUDDLESTON; AMY HUDSON;
HUBERT HUGHES; DENNY HUNCHES; LINNIE
HUPE; SHERRY HUTCHINS; DEBORAH G.
JACKSON; MITCHELL JACKSON; STANLEY
JACKSON, SR.; TRACY JACKSON; JASON
JAFFEUX; BRUCE JAMES; SALLY JAMES;
SANDY JAMES; WALTER JEFFRIES, SR.;
RANDALL JNBAPTISTE; AUSTIN JOHNSON;
AUSTIN JOHNSON; EBORAH L. JOHNSON;
DAVID W. JOHNSON; BILLY JONES; CHARLIE
JONES; CHRISTINA JONES; JOHN K. JONES;
PEYTON P. JONES; WILBUR JONES; PHILIP R.
JUDSON; KENNETH JUNGERSON; NANCY
JUNGERSON; JENIFER JUSTICE; DAVID
KADAS; TINA KADAS; GREGORY KASHIN;
SRINIVAS KATEPALLI; WILLIAM L. KEE;
VICTOR G. KEHLER; SEAN KELLER; TERESA
KELLER; CHRISTOPHER KELLY; NONA KELLY;
A14
VERONICA KELLY; PATRICK KEOUGH; MEE
RAN KIM; CARLTON KINARD; DORIS E. KING;
KARL KING; JOHN KIRBY; VERNON KIRBY;
DIANA KITE; EDWARD KIZER; PATSY KIZER;
JOHN KNIGHT; ANN KORKOLIS; FRED
KRAUER, JR.; JEAN KUESTER; KATHRYN
KUYKENDOLL; DANIEL KWITCHEN; CHIN
KWON; DENNIS LAMB; JEANETTE LAMB;
KAREN LAMB; JAMES LAMBERT; STEPHANIE
LAMM; KATHY LAMPERT; ANDREW W.
LANDER; CODY LAUGHINGHOUSE; DAVID
LEATHERMAN; BLAIRE S. LEE; KENNETH LEE;
JENNIFER LEEMAN; RONALD LEEMAN; JERRY
LERMAN; CALVIN LEWIS; HAYES LEWIS;
REGINA A. LEWIS; ROY W. LEWIS; KAREN
LILLEY; STEPHEN LILLEY; LYLE LINDBERG;
ASHLEY LIPPOLIS-AVILES; BILLY LLEWELLYN;
WILLIAM LOHMANN, JR.; ROBIN LOVETT;
DAVID W. LOVING; KEN LU; MICHELE J. LUIS;
MELINDA LUMPKIN; DIRK LYNCH; GINGER
LYNCH; PATRICIA LYONS; WILLIAM LYONS;
DINNE MACDONALD; DWAYNE MADDOX;
SORAYA MAINS; MELISSA MALONE; THOMAS
MALONE; REGINA MANNING; TERRANCE
MANNING; KIRAN MANTRALA; ANDREA
MARCHESE; STANLEY MARCUS; STEVE
MARKOVITS; KENNETH MARTIN; RACHEL
MARTIN; REYNALDO MARTINEZ; RALPH
MARTINI; CLETIOUS T. MASHBURN; LAUREN
MATSKO; SHAWNA MATTOCKS; LEO MAYNES;
PENNY MCCENEY; STELLA MCCLAIN;
WILLIAM MCCLELLAN; ROBERT MCCLELLAND;
SUSAN MCCLELLAND; SUSAN MCFADDEN;
RICHARD MCGRUDER; VICTORIA MCGRUDER;
DONALD MCINTIRE; ANNE MCKENNA; RACHEL
A15
MCKENZIE; KENNETH MCKINNEY; TERESA
MCLAWHORN; DAVID MEADOWS; RITA
MEDLEY; TOMMY MEDLEY; ROBERT MEEKER;
MICHAEL MEISTER; KAREN MELLER; CARMEN
C. MERCADO; ROBERT E. MICKLE; EDMEE
MIGUEZ-GERSTLE; MICHAEL E. MILLER; LISA
MILLFORD; MICHAEL MINTZ; MARY
MITCHELL; MICHELLE MONROE; CHRIS
MOONEY; GARY MOORE; KAREN MOORE;
MELODY MORRIS; SUZANNE MOWBRAY;
RAYMOND MUELLER; PATRICK MULHERN;
DAVID MULLIGAN; LAURENCE MULLIGAN;
MARY MULLIGAN; BILLIE MUTTER; MELISSA
MUTTER; KEVIN NEWSOME; REVERDY
NICHOLSON; SUSAN NOON; SARAH NOVAK;
RACHEL NOVERSA; TODD NUNNALLY;
JONATHAN O'BRIEN; DARLENE O'DONNELL;
JAMES O'DONNELL; PAUL O'KEEFE; TIMOTHY
O'MARA; CAROLYN O'NEILL; PAUL J.
O'ROURKE; MALCOLM O'SULLIVAN; BRIAN
OSBORNE; SARAH OSINSKI; JESSICA OUTER;
HERBERT C. OVERSTREET; CANDACE OWENS;
CHRISTOPHER PALAZIO; LYNETTE PALMERFORD; ASHLEY D. PANNELL; MATTHEW PARK;
TERRI PARKER; MICAH PARMAN; BHAGVATI
PATEL; MUKESH PATEL; PRADIP PATEL;
SHREYA PATIL; JOHN PATTIE; JAMES
PEARSALL, JR.; DONNA PEARSON; OREST
PELECH; CHRIS PENA; ROY M. PENNINGTON,
III; THOMAS PEPE; MARK PERRY; KAREN
PETERS; JOHN PETERSON; MARK PETERSON;
REBECCA PETRELLA; SUSAN PETRIE; ROBERT
PETRUSKA; CLAUDE PETTYJOHN; CARL
PIERCE; JANET PIETROVITO; DEBRA PINES;
LINDSEY POLI; ANGELA POLINKO; CARLTON
A16
POLLARD; DAVID POORE, III; ANTON POPOV;
LINDA M. PRATT; JASON PRICE; ROBERT
PUAKEA; SARA PULLEN; SARHAN QURAISHI;
JAMES RADCLIFFE; MELISSA RADCLIFFE;
SCOTT RAMSEY; JACQUELINE RANDOLPH;
MICHAEL RANGER; NANCY RANSOME;
SHELLIE RENZ; SHERI RESSE; MATTHEW D.
REVELLE; STEPHEN RIBBLE; ANITA RICE;
LARRY RICE; RICHARD RICHARDSON; CARI
RICHARDSON; MICHAEL RICHEY; SARAH
RICHEY; MARVIN RIDDICK; DANNY RIDDLE;
JENNIFER RIGGER; WAYNE RILEY; TAMRIA
RISHER; DANIEL ROBERTS; MARY ROBERTS;
SUSAN ROBERTS; GAYE ROBERTSON; SKYLER
ROBEY; ANNIE ROBINSON; ANTONIO
ROBINSON; KEVIN ROBINSON; PAMELA
ROBINSON; ROCKY ROCKBURN; COLETTE
ROOTS; DARYL ROOTS; GREGG ROSENBERG;
ERIC ROTHMAN; BRIAN ROWE; VIRGINIA A.
ROWEN; JULIET ROWLAND; PAUL ROY;
RONALD RUCKER; DAVID RUFFNER, JR.; JILL
RUFFNER; KRISTYN RUZICKA; JENNIFER
RYAN; STEPHEN RYAN; JOSEPH SALAZAR;
RACIN SAM; GEORGE SANCHEZ; BONNIE
SANDAHL; GARY SARKOZI; JEFF SAUNDERS;
JEANNETTE SCHAAR; AILEEN L. SCHMIDT;
EDWARD SCHNITTGER; LINDA RUTH SCOTT;
GWEN SEAL; AMY SEAY; ANTHONY SELB;
DELMAR N. SELDEN; LYNN SETTLE; RICHARD
SEYMANN; SHARON SGAVICCHIO; SHA'NESHA
SHARPE; ROBERT L. SHELLHOUSE; GARY
SHELOR; STEPHANIE SHELOR; BRENDA
SHIFFLETT; NINA SIBERT; DAVID
SILVERNALE; JESSICA SIMONS; MARY
SINGHAS; RANDALL SINGHAS; DONALD
A17
SKINNER; RICHARD E. SMITH; SUZANNE
SMITH; CYNTHIA L. SNYDER; MANDY SNYDER;
HOWARD SNYKER; WESLEY SONGER; JOHN
SORESE; RAYMOND M. SOUZA; SHELLIE S.
SPADARO; TONY L. SPARKS; LINDA SPRADLIN;
SUSAN STANDRIDGE; NANETTE STANLEY;
JONATHAN STARKS; EUGENIA STARNES; GARY
STECK; REBECCA STECK; ANDREW STEELEY;
CAROLYN RENEE STEVENS; SARA STEVENS;
SASHA STITT; TIM STOESSEL; CHEVON D.
STOKES; EDWARD STOKES; NATHAN STONE;
YOLANDA SULLIVAN; DENNIS SUMLIN;
JOHNNIE SUMLIN; JOHN SUTOR; WANDA
SUTPHIN; STELLA TANG; ANDREW TAYLOR;
ANN TAYLOR; KIMBERLY TAYLOR; FREDDY
TELLERIA; MATTHEW TENGS; JOHN THACKER;
CANDACE TILLAGE; CHRISTOPHER TOKAR;
SUSIE TORTOLANI; MARY TRAINOR; ADELINE
TROTTER; PEGGY TSACLAS; JAMES TURNER;
ROBERT TURNER; RUFUS TUNSTALL; LUCILLE
TYLER; TRAVIS TYSINGER; JOHN TYSON;
CYNTHIA UTLEY; CARRIE VAN HOOK; DENISE
VANGELOS; MILCA VARGAS; ROBERT VARNER;
MARY VAUGHAN; ROBENA D. VAUGHAN;
KELLY VERHAM; KIMBERLY VEST; CAROL
VIERGUTZ; MARY ANN VILLIES; WALLACE
VINGELIS; MARVIN WADE; SANDRA WADE;
SCOTT WAGGONER; TERESA WAGGONER;
MAGI WAGNER; JANE WALLACE; STACY
WALLER; SHERYL WALTERS; GARY WALTON;
KIMBERLY WARD; CATHERINE WATERS;
BERNARD WATTS; MICHAEL WEBB; SCOTT
WEBB; MELISSA WEBSTER; SHARON WELLS;
STEPHANY WHIPPLE; SARAH WHITLOCK;
ROBERT T. WIENER; CHRISTOPHER WILCHER;
A18
DAVID WILD; CHRISTINA WILLIAMS; GEORGE
WILLIAMS; GINER WILLIAMS; DAGNY WILLS;
GARY WILLS; DR. SARAH WILMER; LESLIE
WILSON; ROBIN WILSON; THOMAS WINSTON;
CHARLES WISER; SARA WOLLMACHER; MIKE
WOO; WAYNE H. WOOD; WAYNE WOODHAMS;
STACEY T. WOODS; ARTHUR WRIGHT; THOMAS
WRIGHT; DAVID WYCKOFF; GINO YANNOTTI;
JAMIE YOUNG; JONG YUN; ATEF ZAYD;
ANGELA R. ZIMMERMAN; RINGO YUNG,
Plaintiffs - Appellants,
v.
ALEXANDRIA HYUNDAI, LLC; BROWN’S
LEESBURG HYUNDAI, LLC; BROWN’S
MANASSAS HYUNDAI, LLC; CHECKERED FLAG
IMPORTS, INCORPORATED; CHECKERED FLAG
STORE #6, LLC; CRAFT AUTOMOTIVE,
INCORPORATED; DUNCAN IMPORTS,
INCORPORATED; FAIRFAX HYUNDAI,
INCORPORATED; FIRST TEAM,
INCORPORATED; GATEWAY HYUNDAI,
INCORPORATED; HALL AUTOMOTIVE GROUP,
INCORPORATED; HALL HYUNDAI NEWPORT
NEWS, LLC; HALL HYUNDAI, LLC; HYUNDAI
MOTOR AMERICA, INCORPORATED; MILLER
AUTO SALES, INCORPORATED; CAVALIER
HYUNDAI, INCORPORATED; HARRISONBURG
AUTO MALL, LLC; JAMES CITY COUNTY
ASSOCIATES, INCORPORATED; MALLOY
HYUNDAI; POHANKA AUTO CENTER,
INCORPORATED; PRICE HYUNDAI
CORPORATION; PRIORITY GREENBRIER
AUTOMOTIVE, INCORPORATED; PRIORITY
IMPORTS NEWPORT NEWS, INCORPORATED;
A19
ROBERT WOODALL CHEVROLET,
INCORPORATED; TYSINGER MOTOR COMPANY,
INCORPORATED; WBM, INCORPORATED, d/b/a
West Broad Hyundai; WRIGHT WAY
AUTOMOTIVE, INCORPORATED,
Defendants - Appellees.
No. 17-1611
LINDA RUTH SCOTT, individually and on behalf of
all other Virginia owners similarly situated;
DANIELLE KAY GILLELAND; JOSEPH BOWE;
MICHAEL DESOUTO,
Plaintiffs - Appellants,
and
JOHN WILLIAM GENTRY, individually and on
behalf of all other Virginia owners similarly
situated,
Plaintiff,
v.
HYUNDAI MOTOR AMERICA, INCORPORATED,
Defendant - Appellee.
Appeals from the United States District Court for
the Western District of Virginia, at Charlottesville.
Norman K. Moon, Senior District Judge. (3:13-cv00030-NKM-RSB; 3:14-cv-00002-NKM-RSB; 3:14-cv00005-NKM-RSB)
Argued: May 9, 2018
Decided: July 13, 2018
A20
Before THACKER and HARRIS, Circuit Judges, and
SHEDD, Senior Circuit Judge.
Dismissed in part, affirmed in part by published
opinion. Judge Thacker wrote the opinion, in which
Judge Harris and Senior Judge Shedd joined.
ARGUED: James B. Feinman, JAMES B.
FEINMAN & ASSOCIATES, Lynchburg, Virginia,
for Appellants. Shon Morgan, QUINN EMANUEL
URQUHART & SULLIVAN LLP, Los Angeles,
California, for Appellees. ON BRIEF: Jakarra J.
Jones, Richmond, Virginia, James F. Neale,
MCGUIREWOODS LLP, Charlottesville, Virginia;
David Cooper, QUINN EMANUEL URQUHART &
SULLIVAN LLP, New York, New York, for
Appellees.
THACKER, Circuit Judge:
This appeal arises from the dismissal of three
consumer actions based on Virginia state law claims.
The actions focus on a series of misrepresentations
made by Hyundai Motor America (“Hyundai”)
regarding the Environmental Protection Agency
(“EPA”) estimated fuel economy for the 2011, 2012,
and 2013 models of the Hyundai Elantra. A Judicial
Panel on Multidistrict Litigation (“JPML”)
consolidated dozens of similar consumer suits in the
United States District Court for the Central District
of California (the “MDL court”). But the JPML
remanded to the United States District Court for the
Western District of Virginia the three actions at
issue in this appeal: Gentry v. Hyundai Motor Am.,
Inc., No. 3:13-cv-00030; Adbul-Mumit v. Hyundai
A21
Motor Am., Inc., No. 3:14-cv-00005; and
Abdurahman v. Alexandria Hyundai, LLC, No. 3:14cv-00002.
The Western District of Virginia dismissed with
prejudice the claims in all three actions, save one
claim in the Gentry action, for failure to satisfy
federal pleading standards. Because one claim
remains pending before the district court, we dismiss
the Gentry appeal for lack of jurisdiction. We affirm
the district court’s dismissal of the Adbul-Mumit and
Abdurahman actions and its denial of the plaintiffs’
post-dismissal request for leave to amend their
complaints in those actions.
I.
A.
In 2011 and 2012, a series of Hyundai
advertisements claimed that 2011–2013 models of
the Hyundai Elantra delivered an EPA fuel economy
rating of 40 miles per gallon. But according to the
United States Department of Justice and the
California Air Resources Board, Hyundai used
improper testing parameters to calculate greenhouse
gas emissions. See United States v. Hyundai Motor
Co., 77 F. Supp. 3d 197, 198–99 (D.D.C. 2015).
Hyundai used those parameters to compute an
inaccurate fuel economy estimate. On November 2,
2012, after discussions with the EPA, Hyundai
issued a press release adjusting the fuel economy
rating “by one or two mpg” for “most vehicle[s].” J.A.
398.1 Hyundai ultimately agreed to pay the largest
1 Citations to the “J.A.” refer to the Joint Appendix filed by the
parties in this appeal.
A22
civil penalty in the history of the Clean Air Act:
$93,656,600 to the United States and $6,343,400 to
the California Air Resources Board. See Hyundai
and Kia Clean Air Act Settlement, EPA,
https://www.epa.gov/enforcement/hyundai-and-kiaclean-air-act-settlement (June 19, 2018) (saved as
ECF opinion attachment). Hyundai also forfeited
greenhouse gas emissions credits valued “in excess of
$200 million.” Id.
B.
Numerous consumer lawsuits followed. On
February 6, 2013, the JPML consolidated more than
50 suits in the Central District of California. Shortly
after consolidation, plaintiffs in several consumer
suits claimed to have reached a settlement with
Hyundai for a single nationwide class. The proposed
class consisted of “[a]ny individual who owned or
leased a Class Vehicle on or before November 2,
2012.” J.A. 1061. The proposed settlement permitted
class members to either take a lump sum payment or
participate in a reimbursement program offered by
Hyundai.
In late 2013 and early 2014, consumers in
Virginia filed the three actions at issue in this
appeal, alleging state law consumer protection
claims. Each asserts the same three Virginia state
law causes of action: (1) a Lemon Law claim;2 (2) a
Virginia Consumer Protection Act claim; and (3) a
false advertising claim. Gentry involves a class
2 Pursuant to Virginia’s Lemon Law, “[a]ny consumer who
suffers loss by reason of” a motor vehicle manufacturer’s failure
to “conform the motor vehicle to any applicable warranty” may
bring a civil action. Va. Code §§ 59.1-207.13–14.
A23
action complaint with five named plaintiffs filed in
the District Court for the Western District of
Virginia on August 13, 2013. The named plaintiffs
purport to represent a class of similarly situated
consumers who purchased Elantras in Virginia.
Abdurahman and Adbul-Mumit are mass tort
actions filed in Virginia state court on December 18,
2013, and January 10, 2014, respectively. These two
actions were removed to the Western District of
Virginia in early 2014. Hyundai moved to dismiss
the complaints in all three actions.
In June 2014, before the district court ruled on
the motions to dismiss, the JPML transferred
Gentry, Adbul-Mumit, and Abdurahman to the MDL
court in the Central District of California so as to
participate in the ongoing settlement efforts. And, in
2015, the MDL court certified a class for settlement
purposes and approved the settlement that
permitted class members to either take a lump sum
payment or participate in a reimbursement program
offered by Hyundai. The JPML later entered remand
orders on September 9, 2015, with respect to Gentry,
Adbul-Mumit, and Abdurahman, remanding to the
Western District of Virginia all plaintiffs who either
(1) opted out of the settlement or (2) were not
members of the certified class (i.e., individuals who
purchased Elantras after November 2, 2012).
C.
Upon remand to the Western District of Virginia,
the parties filed status reports with the district
court. In its status report, Hyundai asserted, “[T]he
current complaints are outdated and will only
promote confusion going forward” because the
A24
complaints “include a mix of pre- and post November
2, 2012 consumers, as well as many settlement class
members who did not opt out of the settlement.”
Hyundai Status Report at 6, Gentry v. Hyundai
Motor Am., No. 3:13-cv-00030 (W.D. Va. Aug. 14,
2013; filed Jan. 8, 2016) ECF No. 82.3 Thereafter, on
June 21, 2016, the district court allowed the
plaintiffs in each action 21 days to amend their
respective complaints, observing that “the
complaints now may be stale and in need of
updating.” Order to Confer at 2, Gentry, ECF No. 86
(filed June 21, 2016). Of note, the district court
warned that, if the plaintiffs declined to amend, “the
original complaints will be deemed operative” and
Hyundai may “renew[] their original motions to
dismiss.” Id. at 3. The 21 day deadline passed
without amendment.
Nonetheless, the district court granted plaintiffs
an additional 20 days to amend. The district court
noted that Hyundai had “sought [clarification] from
Plaintiffs for almost two years” and that the “cases
ha[d] lingered in a state of inactivity for too long.”
Order Granting Extension at 2, Gentry, ECF No. 89
(filed July 22, 2016). The district court again warned
that it did “not intend to further extend this
deadline” and that the “prior complaints [will]
become operative” if the plaintiffs failed to amend.
Id. at 3. Once again, the plaintiffs failed to amend.
3 The district court did not consolidate the three actions.
However, all citations to court filings in this opinion appeared
in the proceedings before the Western District of Virginia.
Gentry v. Hyundai Motor Am., No. 3:13-cv-00030, No. 3:14-cv00002, No. 3:13-cv-00005, 2017 WL 354251 (W.D. Va. 2017).
A25
On August 22, 2016, Hyundai moved to dismiss
all pending claims in Gentry, Adbul-Mumit, and
Abdurahman. On January 23, 2017, the district
court granted the motion in part, dismissing all
claims with the exception of one claim in the Gentry
action. In doing so, the district court observed that
the complaints did not satisfy the Federal Rule of
Civil Procedure 8(a)(2) pleading standard, as
explained in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662
(2009). Specifically, the district court held that the
complaints “fail[ed] to identify the factual basis for
claims by any plaintiff or identify the plaintiffs
themselves in the body of the pleading.” J.A. 1471
(internal quotation marks omitted). The district
court also articulated several Virginia state law
grounds for dismissal. See id. at 1473 (“Aside from
insufficient pleading, there are additional legal bases
to dismiss the . . . claims.”).
The plaintiffs filed a motion to reconsider and
sought leave to amend their dismissed complaints.
At no point throughout the entirety of the litigation,
however, did the plaintiffs provide the district court
with proposed amended complaints. The district
court denied the motion to reconsider, and the
plaintiffs in each action filed a timely notice of
appeal. We consolidated the appeals.
II.
Appellate Jurisdiction
At the outset, we must determine the extent of
our jurisdiction. In consolidated appeals, “each
constituent case must be analyzed individually . . . to
A26
ascertain jurisdiction.” Hall v. Hall, 138 S. Ct. 1118,
1128 (2018); see Tri-State Hotels, Inc. v. F.D.I.C., 79
F.3d 707, 711 (8th Cir. 1996) (“[W]hen . . . the
consolidation is an arrangement for joint proceedings
and convenience, then each suit retains its
individual nature, and appeal in one suit is not
precluded solely because the other suit is still
pending before the district court.” (internal
quotation marks and citation omitted)); Americana
Healthcare Corp. v. Schweiker, 688 F.3d 1072, 1083
(7th Cir. 1982) (determining appellate jurisdiction of
each action consolidated on appeal). This court
possesses jurisdiction over appeals “from all final
decisions of the district courts of the United States.”
28 U.S.C. § 1291. A final decision “is one that ends
the litigation . . . and leaves nothing for the court to
do but execute judgment.” Calderon v. GEICO Gen.
Ins. Co., 754 F.3d 201, 204 (4th Cir. 2014) (quoting
Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l
Union of Operating Eng’rs & Participating Emp’rs,
571 U.S. 177, 183 (2014)).
We possess jurisdiction over the Adbul-Mumit
and Abdurahman appeals because the district court
dismissed those actions in their entirety. See J.A.
1477 (“[T]he motions to dismiss those cases will be
granted.”). But with respect to the Gentry appeal,
one claim remains pending before the district court.
Counsel for Gentry concedes that the district court
did not enter a final order in that action. Oral
Argument at 12:50, Adbul-Mumit v. Alexandria
Hyundai, LLC, No. 17-1582 (4th Cir. May 9, 2018)
http://www.ca4.uscourts.gov/oral-argument/listen-tooral-arguments. Mr. Gentry nonetheless urges us to
exercise jurisdiction over his appeal to “correct” a
jurisdictional mistake of the district court. Id. He
A27
alleges that the district court dismissed claims that
were never remanded to the Western District of
Virginia by the MDL court. The record belies this
allegation. The district court correctly noted, “Mr.
Gentry is the only remaining . . . plaintiff” in the
Gentry action because “the other four named class
representatives were not remanded by the MDL.”
J.A. 1451. Accordingly, we dismiss the Gentry appeal
for lack of appellate jurisdiction.
III.
Twombly and Iqbal
We turn to the remaining Adbul-Mumit and
Abdurahman appeals.4 The district court dismissed
those actions for failure to satisfy the federal
pleading standards pursuant to Bell Atl. Corp. v.
Twombly, 550 U.S. 554 (2007) and Ashcroft v. Iqbal,
556 U.S. 662 (2009). Yet Appellants make no
reference to Twombly or Iqbal in either their opening
or reply briefs. Instead, Appellants rely upon their
challenges to the district court’s alternate grounds
for dismissal, which rest on Virginia state law. We
must therefore determine whether Appellants
abandoned a challenge to the district court’s
dismissal of the complaints pursuant to Twombly
and Iqbal.
This court makes “no habit of venturing beyond
the confines of the case on appeal to address
arguments the parties have deemed unworthy of
orderly mention.” United States v. Holness, 706 F.3d
579, 591–92 (4th Cir. 2013). We apply abandonment
4 We refer to the plaintiffs in those actions as “Appellants.”
A28
and waiver principles to “provide a substantial
measure of fairness and certainty to the litigants
who appear before us.” Id. at 592. Accordingly,
“contentions not raised in the argument section of
the opening brief are abandoned.” United States v.
Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004).
Whether to decide pertinent, unraised arguments is
a matter vested to our discretion. See Rice v. Rivera,
617 F.3d 802, 808 n.4 (4th Cir. 2010); A Helping
Hand, LLC v. Baltimore Cty., 515 F.3d 356, 369 (4th
Cir. 2008).
On this record, we decline to invent an argument
in support of Appellants’ complaints. The district
court could not have been more clear that
Appellants’ failure to satisfy federal pleading
standards constituted an independent basis for
dismissal. Indeed, the order contained a separate
subheading dedicated to the issue: “Abdurahman
and Adbul-Mumit -- Analysis of Motions to Dismiss.
I. Failure to Properly Plead Claims.” J.A. 1471.5 The
district court framed all other grounds for dismissal
as alternative holdings. Id. at 1473 (“Aside from
insufficient pleading, there are additional legal bases
to dismiss.” (emphasis supplied)).
5 The district court’s core concern at dismissal was that “the
individual plaintiffs are simply named in the caption [of the
complaint] and not mentioned again by name” and that all
defendants are “lump[ed]” together with general allegations.
J.A. 1471, 1472. The district court held, quite clearly, that this
rendered their complaints deficient under Twombly and Iqbal.
See id. at 1472 (“While each and every unique fact is not
required, federal pleading standards nevertheless control in
federal court, and the Complaints here fail those standards.”
(internal quotation marks and citation omitted)).
A29
Upon denying Appellants’ motion to reconsider,
the district court again reiterated the insufficiency of
the pleading:
Most obviously, the Court provided
‘independent basis for dismissal’ by
concluding ‘the Abdurahman and AdbulMumit Complaints failed to satisfy federal
pleading standards’: The Complaints do not
make a single, specific allegation about even
one of hundreds of named plaintiffs, much
less about any of the seven, remaining . . .
plaintiffs. Other arguments . . . are simply
recapitulations of their previously-rejected
arguments that are improper on
reconsideration.
Mem. Op. Denying Mot. to Reconsider at 6, Gentry v.
Hyundai Motor Am., No. 3:13-cv-00030 (W.D. Va.
Aug. 14, 2013; filed Apr. 6, 2017) ECF No. 119.
Despite these clear holdings, Appellants make no
citation to Twombly, Iqbal, or even Rule 8 of the
Federal Rules of Civil Procedure (establishing the
federal pleading standard) in their 55 page opening
brief. And the Virginia state law arguments that
Appellants raise are irrelevant to the concern that
Appellants’ complaints failed to satisfy pleading
standards in federal court.6
6 Appellants filed their complaints in Virginia state court, and
the actions were later removed to federal court. Responsible
pleading practice compels counsel to carefully consider whether
his or her complaint satisfies federal pleading standards upon
removal. See 14B Charles Alan Wright et al., Federal Practice
and Procedure § 3738 (4th ed.) (“[I]t has been settled by
numerous cases that the removed case will be governed by the
Federal Rules of Civil Procedure and all other provisions of
federal law relating to procedural matters.”).
A30
Thus, we hold that Appellants have waived their
challenge to the district court’s conclusion that the
complaints failed to satisfy federal pleading
standards. Because this constituted an independent
basis for the order below, we affirm the district
court’s dismissal of the Abdurahman and AdbulMumit actions.
IV.
Denial of Leave to Amend
Appellants also argue that the district court
improperly denied their post judgment motions for
leave to amend their complaints. We review a
district court’s denial of a post-judgment motion for
leave to amend for abuse of discretion. See Laber v.
Harvey, 438 F.3d 404, 427–28 (4th Cir. 2006).
A.
Appellants contend that the district court abused
its discretion because Appellants did not have the
benefit of a “definitive ruling” before their
complaints were dismissed with prejudice. Oral
Argument at 6:55–9:05, Adbul-Mumit v. Alexandria
Hyundai, LLC, No. 17-1582 (4th Cir. May 9, 2018)
http://www.ca4.uscourts.gov/oral-argument/listen-tooral-arguments. According to Appellants, only a
district court’s “definitive ruling” on the pleadings is
sufficient to place a plaintiff on notice of any
deficiencies in the complaint and the possibility that
the action might be later dismissed with finality. In
other words, Appellants see “no need to amend until
there’s a reason to amend.” Id. at 7:30.
A31
Appellants’ position has some degree of support
in the Second and Seventh Circuits. See Lorely Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d
160, 190 (2d Cir. 2015) (“Without the benefit of a
[definitive] ruling [on the pleadings], many a
plaintiff will not see the necessity of amendment.”);
Runnion ex rel. Runnion v. Girl Scouts of Greater
Chi. and Nw. Ind., 786 F.3d 510, 523 n.3 (7th Cir.
2015) (“A district court does not have the discretion
to remove the liberal amendment standard by . . .
requiring plaintiffs to propose amendments before
the court rules on a Rule 12(b)(6) motion on pain of
forfeiture of the right to amend.”). Even so, those
circuits still allow the district court to dismiss with
prejudice, without first issuing a definitive ruling, in
some circumstances. See Lorely Fin., 797 F.3d at 190
(“Our opinion today . . . leaves unaltered the grounds
on which denial of leave to amend has been long held
proper.”); Runnion, 786 F.3d at 519–20 (“Unless it is
certain from the face of the complaint that any
amendment would be futile or otherwise
unwarranted, the district court should grant leave to
amend after granting a motion to dismiss.”
(emphasis supplied)).
Other circuits do not categorically require a
district court to issue a definitive ruling before
dismissal with prejudice. See Rollins v. Wackenhut
Serv., Inc., 703 F.3d 122, 131 (D.C. Cir. 2012)
(affirming district court’s dismissal with prejudice of
a complaint without a prior definitive ruling); Pet
Quarters, Inc. v. Depository Trust & Clearing Corp.,
559 F.3d 772, 782 (8th Cir. 2009) (affirming
dismissal with prejudice on futility grounds without
prior opportunity to amend); Curley v. Perry, 246
F.3d 1278, 1284 (10th Cir. 2001) (affirming sua
A32
sponte dismissal with prejudice of meritless
complaint).
Categorically requiring a district court to first
provide a “definitive ruling” before dismissal with
prejudice impedes a district court’s inherent power
to manage its docket. See Dietz v. Bouldin, 136 S. Ct.
1885, 1892 (2016) (“[D]istrict courts have the
inherent authority to manage their dockets and
courtrooms with a view toward the efficient and
expedient resolution of cases.”). Likewise, such a
requirement would be at odds with our general rule
that the nature of dismissal is a matter for the
discretion of the district court. See Carter v. Norfolk
Cmty. Hosp. Ass’n, Inc., 761 F.2d 970, 974 (4th Cir.
1985) (“[D]ismissal under Rule 12(b)(6) is . . . with
prejudice unless it specifically orders dismissal
without prejudice. That determination is within the
district court’s discretion.” (emphasis supplied)).
Moreover, adopting the type of bright line rule
Appellants urge would place an unyielding impetus
on the district court to resolve pleading deficiencies,
regardless of previous opportunities to amend or
other extenuating circumstances. That is not the role
of the court. The district court does not serve as a
legal advisor to the parties, nor is a dispositive
motion a “dry run” for the nonmovant to “wait and
see” what the district court will decide before
requesting leave to amend.
Instead, we leave the nature of dismissal to the
sound discretion of the district court. See Carter, 761
F.2d at 974.
A33
B.
Plaintiffs whose actions are dismissed are free to
subsequently move for leave to amend pursuant to
Federal Rule of Civil Procedure 15(b) even if the
dismissal is with prejudice. See Laber, 438 F.3d at
427–28. Appellants here did just that. See Mem.
Supp. Mot. to Reconsider at 14, Gentry v. Hyundai
Motor Am., No. 3:13-cv-00030 (W.D. Va. Aug. 14,
2013; filed Feb. 8, 2017) ECF No. 112. We turn to
that issue now.
We review a district court’s denial of leave to
amend for abuse of discretion. Laber, 438 F.3d at
427–28. “A court should evaluate a postjudgment
motion to amend the complaint ‘under the same
legal standard as a similar motion filed before
judgment was entered.’” Katyle v. Penn Nat.
Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011)
(quoting Laber, 438 F.3d at 427). Motions for leave to
amend should generally be granted in light of “this
Circuit’s policy to liberally allow amendment.”
Galustian v. Peter, 591 F.3d 724, 729 (4th Cir. 2010).
However, a district court may deny leave to amend
“when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part
of the moving party, or the amendment would be
futile.” Johnson v. Oroweat Foods Co., 785 F.2d 503,
509 (4th Cir. 1986).
Prejudice to the opposing party “will often be
determined by the nature of the amendment and its
timing.” Laber, 438 F.3d at 427. Generally, “[t]he
further the case progressed before judgment was
entered, the more likely it is that [subsequent]
amendment will prejudice the defendant.” Id. We
look to the “particular circumstances” presented,
A34
including previous opportunities to amend and the
reason for the amendment. Scott v. Family Dollar
Stores, Inc., 733 F.3d 105, 118–19 (4th Cir. 2013)
(granting leave on a plaintiff’s first request for leave
where the “proposed amended complaint merely
elaborates on an allegation in the original
complaint”); see also Laber, 438 F.3d at 427–28
(considering both the timing of the amendment and
the “alternative theory” for relief it advanced).
Reviewing the record here, we discern no abuse
of discretion. The circumstances of the litigation
below compel our conclusion that the nature and
timing of the amendment would prejudice Hyundai.7
Throughout the litigation below, Hyundai repeatedly
challenged the sufficiency of Appellants’ complaints - specifically on the ground that the complaints
failed to plead facts pertinent to individual plaintiffs
and defendants. These pleading deficiencies were the
subject of status reports, meetings, and eventually a
motion to dismiss. See Hyundai Status Report at 6,
7 Moreover, the misleading and inconsistent assertions made on
behalf of Appellants here also indicate bad faith. During oral
argument, Appellants’ counsel contended that he “asked seven
times for leave to amend,” but later conceded that these
requests occurred “during” the period the district court had
already granted leave to amend. Oral Argument at 6:20, 10:30,
Adbul-Mumit v. Alexandria Hyundai, LLC, No. 17-1582 (4th
Cir. May 9, 2018) http://www.ca4.uscourts.gov/oralargument/listen-to-oral-arguments. This is nonsensical.
Further, these requests were only mentioned, in passing, in
emails to the district court. Counsel never brought forward
proposed amendments for the district court’s consideration.
Counsel also represents that although he repeatedly
“attempted” to seek leave, he “didn’t think there was
jurisdiction to amend” the complaints. Oral Argument at 34:30.
Surely both cannot be true. Again -- nonsensical.
A35
Gentry, ECF No. 82 (filed Jan. 8, 2016) (“Until the
plaintiffs and their claims are identified, the parties
do not have a meaningful reference point [to
proceed].”); Resp. to Appellants’ Letter at 2, Gentry,
ECF No. 88 (filed July 13, 2016) (“[Hyundai has]
been requesting this same information since August,
2014 . . . . The information is necessary to determine
who is actually a plaintiff in the remanded
matters.”); Meet and Confer Report at 4–5, Gentry,
ECF No. 90 (filed Aug. 22, 2016) (“It is in everyone’s
best interest to know who and how many plaintiffs
are involved in this case . . . . [Hyundai] should not
have to devote more resources trying to figure out
who is suing them.”); Mem. Supp. Mot. to Dismiss at
5, Gentry, ECF No. 91 (filed Aug. 22, 2016) (“Without
identification and verification of those individuals
actually alleging an injury, plaintiffs’ claims should
be dismissed.”). Given that the MDL court remanded
only some of the named plaintiffs’ cases because
these plaintiffs did not fall within the MDL class,
Hyundai’s demands were not unreasonable. Further,
because the MDL court remanded the claims of only
certain plaintiffs to the Western District of Virginia,
the barebones complaints rendered impossible the
district court’s efforts to determine the extent of its
jurisdiction.8
All of this time and energy, largely focused on
the deficiency of the complaints, spanned the
entirety of the 2016 calendar year. In June 2016 -- in
the heat of this litigation concerning the sufficiency
8 Appellants allege that Hyundai is also in possession of
information that would help inform the district court of the
extent of its jurisdiction. Appellants’ Br. at 41. This misses the
point. The plaintiff is the master of the complaint and it is not
incumbent on defendants to cure its deficiencies.
A36
of the complaints -- the district court twice granted
Appellants leave to amend and explained “that the
complaints may now be stale and in need of
updating.” Order to Confer at 2, Gentry, ECF No. 86
(filed June 21, 2016). Specifically, the district court
stated,
[Amendment] might be further warranted
because the [Adbul-Mumit and Abdurahman
actions] contain dozens, if not hundreds, of
named plaintiffs and defendants. Indeed,
parts or all of these cases may be duplicative
of Gentry. Furthermore, Defendants
previously filed motions to dismiss the
complaints in all three cases, but those
motions were not resolved on the merits . . . .
Given the proceedings in the MDL, the
voluminous nature of the complaints, their
possible duplication, and the fact Defendants
never had their motions to dismiss
adjudicated on the merits, the Court is
attuned to the possibility that the complaints
may now be stale and in need of updating.
Id. (internal citations omitted). After Appellants
failed to meet the district court’s original 21 day
deadline, the court granted Appellants an additional
20 days. But once again, Appellants failed to amend.
And still, even after status reports, opportunities
to amend, dispositive motions, dismissal with
prejudice, and a post-judgment motion for leave to
amend, Appellants have not once provided the
district court with a proposed amendment
purporting to cure the deficiencies. See Oral
Argument at 6:40–6:55, Adbul-Mumit v. Alexandria
A37
Hyundai, LLC, No. 17-1582 (4th Cir. May 9, 2018),
http://www.ca4.uscourts.gov/oral-argument/listen-tooral-arguments.
Faced with such resolute adherence to deficient
complaints, the district court’s decision to dismiss
with prejudice was well within its discretion under
the facts of this case.
V.
For the foregoing reasons, we dismiss the appeal
in the Gentry action and affirm the district court’s
dismissal of the Adbul-Mumit and Abdurahman
actions.
DISMISSED IN PART,
AFFIRMED IN PART
A38
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
CASE NO. 3:13–cv–00030
OPINION, JUDGE NORMAN K. MOON
JOHN WILLIAM GENTRY, ET AL.,
Plaintiffs,
v.
HYUNDAI MOTOR AMERICA, INC.,
Defendant.
***************************
CASE NO. 3:14–cv–00002
OPINION, JUDGE NORMAN K. MOON
ALIM ABDURAHMAN, ET AL.,
Plaintiffs,
v.
HYUNDAI MOTOR AMERICA, INC., ET AL.,
Defendants.
***************************
CASE NO. 3:14–cv–00005
OPINION, JUDGE NORMAN K. MOON
JIHAD ABDUL-MUMIT, ET AL.,
Plaintiffs,
v.
HYUNDAI MOTOR AMERICA, INC., ET AL.,
Defendants.
A39
These three cases are before the Court on
motions to dismiss. Each involves allegations that
Hyundai Motor America, Inc. (“HMA”) misstated or
misrepresented the gas mileage obtained by
Hyundai Elantras. Gentry is a class action against a
single defendant, HMA. Abdurahman is a mass
action of over 700 plaintiffs against 29 defendants:
HMA and various Virginia dealerships. AbdulMumit—also a mass action with substantively
identical allegations to Abdurahman—has over 500
named plaintiffs suing 27 defendants. The cases
previously were stayed, transferred to MDL 2424,
and then partially remanded by the MDL back to
this Court in September 2015. Each case contains a
claim under the Virginia Motor Vehicle Warranty
Enforcement Act (“Lemon Law”), Va. Code §§ 59.1207.9 et seq.; the Virginia Consumer Protection Act
of 1977 (“VCPA”), Va. Code §§ 59.1-196 et seq.; and
for false or misleading advertising, Va. Code §§ 18.2216 & 59.1-68.3.
An important date in these cases is November 2,
2012, when HMA announced its “recalculation” of
fuel economy estimates for certain vehicles
(“Announcement”). At the MDL, a class settlement
was reached for pre-November 2nd purchasers and
is now on appeal before the Ninth Circuit. Thus, the
MDL remanded these cases for proceedings on two
sets of claims: (1) any pre-November 2nd purchasers
who opted out of the settlement, and; (2) postNovember 2nd purchasers of 2011-13 Hyundai
Elantras sold in Virginia. (Gentry, dkt. 91).
The parties have presented numerous
jurisdictional and merits arguments. After briefing
and oral argument, the Court concludes that aspects
of the Lemon Law claim in Gentry based on the on-
A40
board mileage calculator may proceed. But the
aspect of the Lemon Law claim based on fuel
economy, as well as Mr. Gentry’s VCPA and false
advertising claims, will be dismissed because those
counts do not state a claim. As for Abdul-Mumit and
Abdurahman, the Court finds that it has jurisdiction
based on the Class Action Fairness Act (“CAFA”). In
addition to sharing some shortcomings with the
Gentry complaint, the complaints in Abdul-Mumit
and Abdurahman are devoid of facts pertaining to
any of the hundreds of named plaintiffs or to any
Defendant other than HMA. Therefore, those
complaints will be dismissed.
PROCEDURAL BACKGROUND
I. Gentry Filed and Stayed.
Gentry was filed in this Court in August 2013.
The complaint was amended that October, but
Defendant HMA moved both to dismiss the
complaint and to stay the case. The case was stayed
in November 2013 pending a decision from the MDL.
II. Abdurahman Filed and Removed, so AbdulMumit Is Filed (and Removed).
After Gentry was stayed, the Plaintiffs’ attorney,
Mr. Feinman, filed a mass action, Abdurahman, in
state court in December 2013. Defendants removed
the case to this Court on January 2014, citing the
Class Action Fairness Act (“CAFA”) as the basis for
removal.
The next day, Mr. Feinman filed Abdul-Mumit in
the Roanoke Circuit Court, a complaint which was
A41
substantively identical to Abdurahman, except that
the caption of named plaintiffs and defendants
differed somewhat. Predictably, Defendants removed
Abdul-Mumit in February 2014, although this
time—in addition to CAFA jurisdiction—they also
relied on traditional diversity jurisdiction (arguing
that that defendant dealerships in Virginia were
fraudulently joined or were nominal defendants) and
federal question jurisdiction (arguing that the
attempt to evade the Court’s stay in Gentry
implicated the Court’s authority to control its own
proceedings).
III. MDL Transfers, then Remands, the Cases
With motions to dismiss pending in all three
cases, the MDL on June 9, 2014 ordered the transfer
of all three cases to the Central District of
California.
After extensive proceedings, the MDL returned
the cases on September 15, 2015 to this Court,
identifying the two classes noted above: preNovember 2nd opt-outs and post-November 2nd
purchasers. From late 2015 to mid-2016, the
parties—at the Court’s repeated urging—attempted
with only modest success to resolve various case
management issues: e.g., deadlines; identification of
proper plaintiffs and possible duplication of cases;
and whether discovery, repleading, or both should
occur.
In June and July 2016, the Court ordered
Plaintiffs to amend their complaints to reflect
developments in the case, or else have their prior
complaints deemed operative. (See Gentry, dkts. 86,
A42
89). They chose the latter, and Defendants filed
renewed motions to dismiss in all three cases.
ALLEGATIONS IN GENTRY
Gentry was filed as a class action with five
named plaintiffs. Defendant HMA asserts—and
Plaintiff does not contest—that the four other named
class representatives were not remanded by the
MDL because those plaintiffs fell within the
settlement and did not opt out. Thus, Mr. Gentry is
the only remaining named plaintiff in Gentry.
The Complaint brings claims for violations of
Virginia’s “Lemon Law,” the VCPA, and deceptive
advertising law. (Dkt. 27 [hereinafter “Complaint”] ¶
4). The case involves allegedly deceptive practices
surrounding HMA’s 2011–2013 Elantra vehicle.
In November 2010, HMA’s CEO introduced the “All
New 40 MPG Hyundai Elantra.” (Complaint ¶ 5). Ad
campaigns represented that the Elantra would
obtain 40 miles per gallon (“MPG”) on the highway.
(Id.). Allegedly, 16,000 Virginians bought the 2011–
2013 edition. (Id.). Mr. Gentry was one of them. He
commutes several miles to work, and in early 2013
began researching a new vehicle. (Id. ¶ 7). He
recalled ads for the 2011–2012 Elantra touting its 40
MPG highway and later saw others about the 2013
Elantra claiming 38 MPG. (Id.). He thus purchased a
2013 Elantra on February 18, 2013 from a dealer in
Staunton, Virginia. (Id. ¶ 8). He asserts that his
“warranty book” stated his car would receive “up to”
40 MPG. (Id. ¶ 7).
Post-purchase, Mr. Gentry kept track of his car’s
MPG. Rather than obtaining 38 MPG, his Elantra
received only 30 to 33 MPG. (Complaint ¶ 9).
A43
Plaintiff returned to the local HMA dealership,
where employees relayed that his car should get 38
MPG on the highway. (Id. ¶¶ 9–10). Indeed, the
dealership’s owner drove the vehicle himself and
calculated that Gentry’s car was receiving 32 MPG,
and that the on-board mileage calculator was
overstating the actual gas mileage. (Id. ¶ 10).
Further testing by the dealership employees and
HMA representatives occurred.
On June 18, 2013, HMA employees performed
tests in Staunton, Virginia. (Complaint ¶ 11). Their
tests yielded 62 MPG and 42 MPG calculations,
while the on-board mileage calculator yielded 37–40
MPG and 38–44 MPG, respectively. (Id.). In
subsequent conversations with Mr. Gentry, the
dealership’s owner expressed doubt about the
accuracy of these calculations, which contradicted
his experiences, as well as Mr. Gentry’s, when
driving the car. (Id. ¶ 12). The dealership owner
claimed the HMA employees insisted that: the
Elantra obtained the proper gas mileage; Mr.
Gentry’s calculations were caused by his driving
style; and the car received the proper gas mileage.
(Id.).
Facing a nonresponsive HMA, Gentry sought
legal representation. During his search, he
discovered “for the first time” details of a separate
class action where HMA admitted in November 2012
that it has submitted false and incorrect mileage
calculations to the EPA for its 2011–2013 Elantras.
(Complaint ¶ 13). Plaintiff alleges additional facts
regarding two of his claims.
Lemon Law. Plaintiff alleges that HMA
published on its website in April 2012 statements
that 39% of Elantras obtain 40 MPG. (Complaint ¶
A44
21). HMA cannot fix its 2011–2013 Elantras to make
them produce 40 MPG. (Id. ¶ 24). Further, HMA
represented that Elantra’s on-board mileage
calculators would give “accurate” MPG assessments
but in fact do not. (Id. ¶ 25). Mr. Gentry alleges “on
information and belief” that HMA knew its MPG
tests for the Elantra model, as well as its on-board
mileage calculator, were inaccurate. (Id.).
VCPA. Plaintiff asserts several statements or
actions by HMA constituted violations of the VCPA:
(A) HMA’s statement that Elantras would receive 40
MPG; (B) HMA’s refusal to sell an Elantra to Mr.
Gentry that conformed to the 40 MPG
representation; (C) HMA’s representation that the
on-board calculator was accurate; (D) statements
from a HMA website that 2013 Elantras could obtain
38 MPG had deceptively obscure and difficult-toread disclaimers; (E) HMA employees’ statements
about the gas mileage Mr. Gentry’s Elantra actually
received when they tested it. (See Complaint ¶ 31).
GENTRY—ANALYSIS OF MOTION
TO DISMISS
I. Additional Facts Presented by HMA.
HMA submitted several exhibits to its motion to
dismiss. HMA uses the first class of exhibits to
advance its legal arguments about preemption. The
second batch of documents is used in support of
HMA’s argument that the EPA has primary
jurisdiction over this case. Even if the Court were to
consider these documents, the arguments they
support do not succeed or fail by reference to the
exhibits.
A45
For Exhibits A through E, HMA urges judicial
notice of statements made by the government on its
websites. See Johnson v. Clarke, No. 7:12CV00410,
2012 WL 4503195, at *2 n.1 (W.D. Va. Sept. 28,
2012) (compiling cases). These exhibits contain
statements made on the EPA’s website about fuel
economy, HMA’s Elantra, and the relevant
regulatory regime. HMA observes that federal law
mandates fuel economy labels and authorizes the
EPA to issue effecting regulations. See 48 U.S.C. §
32908(b); 40 C.F.R. §§ 600.302-12(a)-(f), (h). One
regulation mandates that these labels state: “actual
results will vary for many reasons.” 40 C.F.R. §
600.302-12(b)(4). According to the EPA, the purpose
of the fuel estimates is to “help consumers compare
the fuel economy of different vehicles when shopping
for new cars.” (Dkt. 91-3 at ECF 2).
On November 2, 2012—before Gentry purchased
his car—EPA and HMA announced that, as a result
of a federal investigation, HMA would lower fuel
estimates on most 2012 and 2013 models by an
average of 1-2 MPG; the change for Elantras was 2
MPG. (Dkt. 91-5 at ECF 2; dkt. 91-6 at ECF 2). The
Announcement advised that HMA would be
submitting a plan to re-label all cars on dealership
lots with corrected mileage estimates. (Ex. D).
From this, HMA states that Gentry saw a
corrected label before he purchased his vehicle. And
from that purported fact, HMA asserts that the
Court may take judicial notice of a reproduced
sticker in its brief because it is integral to the
complaint. Based on the existence of the sticker—so
HMA’s argument goes—Gentry’s claims fail because
he had notice of the accurate MPG estimate for his
Elantra.
A46
However, this line of argument assumes that
HMA actually re-labeled the car Mr. Gentry bought
before he bought it. Indeed, HMA admits the sticker
is a “replica” of what Mr. Gentry “would have seen at
the time of purchase.” (Dkt. 91-1 at 7). At the motion
to dismiss stage, the Court cannot use the additional
facts HMA has submitted to make further factual
inferences that (1) HMA properly relabeled the car
Gentry bought, and (2) Gentry saw the corrected
mileage sticker before purchasing his vehicle. See
Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597,
607 (4th Cir. 2015).
HMA also relies upon a consent decree between
it, other parties, and the EPA entered on January 9,
2015 in a Washington, D.C. court. (Ex. I, J).
Specifically, HMA must submit a “Corrective
Measures Completion Report” by April 2018 and
annual reports for monitoring by the EPA. (Ex. J., ¶
19; Id. App’x A, ¶ 10). The import of these documents
is discussed, infra, where the Court finds that the
primary jurisdiction doctrine does not apply, and
thus the EPA’s consent decree is no impediment to
deciding these cases.
II. Standing
To bring a federal case, a “plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547, 194 L. Ed. 2d 635 (2016). HMA argues that
Gentry lacks standing because he did not suffer
injury in fact and, even if he did, such injury was not
A47
fairly traceable to HMA. The Court concludes that
Mr. Gentry has standing.
Under the injury-in-fact inquiry, an alleged
injury must affect the plaintiff in a personal and
individual way. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 n.1 (1992). HMA argues that Mr. Gentry
cannot base his claims on pre-Announcement fuel
estimates because those estimates were not in effect
when he purchased his car in February 2013. It says
that representations about models he did not
purchase are irrelevant, and Mr. Gentry never
claims to have seen (before his purchase) the
advertisements he cites about the 2013 Elantra.
(Dkt. 91-1 at 11). But the Announcement does not
affect Gentry’s claim, which is that he bought a 2013
Elantra falsely represented to achieve 38 MPG
highway mileage. (Complaint ¶ 7). The fact that
HMA or the EPA made a generic announcement
about an incorrect 40 MPG estimate for some
vehicles does not negate Plaintiff’s assertion that his
vehicle still did not achieve the corrected mileage.
HMA’s arguments simply go to the merits of whether
Mr. Gentry states a plausible claim for relief. See
infra Part III.
As for the “causal connection” prong, HMA
claims that the November 2, 2012 Announcement
and the window (or “Monroney”) sticker sever any
connection between the injury he suffered and the
conduct complained of. But HMA’s claim about the
sticker fails, as it implies the Court may assume
(against Gentry) the corrected sticker was placed on
Gentry’s vehicle and seen by him. At the motion-todismiss stage, the Court must make factual
inferences from the complaint (or judicially-noticed
materials) in favor of Gentry, not against him. See
A48
Zak, 780 F.3d at 607 (“when a court considers
relevant facts from the public record at the pleading
stage, the court must construe such facts in the light
most favorable to the plaintiffs”). Without this
inferential crutch, HMA’s argument fails and Mr.
Gentry has standing.
III. Preemption and Other Difficulties
HMA next claims that Gentry’s state law claims
are preempted by Section 32919(b), which states
that when a requirement under § 32908 is in effect,
“a State may adopt or enforce a law or regulation on
disclosure of fuel economy . . . only if the law or
regulation is identical to that requirement.” Section
32908(b) and the EPA’s effectuating regulations
specifically describe the content of the windowsticker fuel economy estimates. Moreover, the
Federal Trade Commission has declared that car
advertisements must include the relevant EPA
mileage estimates. See 16 C.F.R. 259.2; see also
Guide Concerning Fuel Economy Advertising of New
Automobiles, 60 Fed. Reg. 56230-01, 1995 WL
652912 (Nov. 8, 1995). Courts have thus found
that—to the extent a plaintiff’s claims are based on
ads or window-stickers using EPA estimates and not
defendants’ statements about “actual” fuel economy
calculations—such claims are preempted. See In re
Ford Fusion & C-Max Fuel Econ. Litig., No. 13-MD2450 KMK, 2015 WL 7018369, at *27 (S.D.N.Y. Nov.
12, 2015) (compiling cases). In other words, to avoid
preemption, statements made in advertisements
must go beyond the mere (and mandatory) disclosure
of EPA fuel economy estimates. See id. at 26.
A49
HMA argues that “construing” its (proclaimed)
use of EPA fuel economy estimates in
advertisements as anything more than that—for
instance, as a warranty, promise, or statement of
actual mileage (as in portions of Count I)—would
impose obligations not identical to the federal
regulatory regime. (Dkt. 91-1 at 13). This argument
has some force, although it does not reach Gentry’s
allegations about the on-board mileage calculator.
(See Complaint ¶ 25). Yet the argument also
overlooks the antecedent question: What was the
nature of HMA’s statements?
Gentry attempts to frame the relevant
statements not as mere disclosures of EPA estimates
but as affirmations of fact which would not conflict
with federal law (and thus not be the subject of
preemption). See, e.g., Yung Kim v. Gen. Motors,
LLC, 99 F. Supp. 3d 1096, 1103–04 (C.D. Cal. 2015);
see also dkt. 92 (Response Br.) at ECF 8. The parties’
positions were brought into sharp relief at oral
argument, where HMA claimed that the MPG
statements were EPA estimates but Gentry argued
they were warranties of fact. (See dkt. 105
[hereinafter “Tr.”] at 20, 25, 28, 31).
As an initial observation, it is hard to ascertain
what statements Gentry’s causes of action involve.
He bought a 2013 Elantra Coupe. (Complaint ¶ 8).
Prior to purchase, it is alleged he “had previously
seen advertisements touting the ‘40 MPG’ Hyundai
Elantra vehicles and found numerous
advertisements asserting that the 2013 Hyundai
Elantra obtained highway mileage of ‘38 MPG.’” (Id.
¶ 7). Further details of these ads are not provided,
but Gentry attached to his complaint a DVD
containing “representative sample[s] of the Hyundai
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Elantra advertisements, all believed to have been
disseminated in Virginia.” (Id.). It was “[b]ased on
the[se] Hyundai advertisements and many same or
similar affirmations of facts made by salesmen” that
Mr. Gentry bought his Elantra. (Id. ¶ 8; see id. ¶ 23).
The Court must therefore turn to the ads on the
DVD, which provide the only substantive basis on
which to evaluate what representations ostensibly
were made to Gentry.
Notably, it is never alleged that Mr. Gentry
himself viewed or relied upon these ads. Assuming
he did, the DVD contains twelve videos, none of
which aid his cause. The third, fourth, and twelfth
ones are HMA Super Bowl ads narrated by actor Jeff
Bridges; these ads disclose on-screen that the 40
MPG figures are “EPA Estimates.” Moreover, they
are for 2011 Elantras. Thus, these “representative
samples” cannot support Gentry’s claims because
they are both preempted and irrelevant to the model
he purchased.
The second video, “Save the Asterisks,” is an
HMA-produced online video which touts that all
Elantras receive 40 MPG without reference to EPA
estimates. But that video involves the 2011 Elantra
and thus cannot form the basis of Gentry’s claims.
See Jeremy Korzeniewski, Video: Hyundai launches
Save the Asterisks campaign for 40-mpg Elantra,
AUTOBLOG, http://www.autoblog.com/2010/
12/02/video-hyundai-launches-save-the-asteriskscampaign-for-40-mpg-e/ (Dec. 2, 2010). The same is
true for the first video, which depicts the unveiling of
the 2011 Elantra at a Los Angeles car show.
The remaining videos (5 through 11) fail as well.
All are made by local dealerships, which are not
defendants in the Gentry case, and Plaintiffs’ counsel
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conceded at oral argument that HMA would not be
liable for warranties made by dealerships. (Tr. at
30). The fifth video also is unhelpful because it
pertains to a 2011 Elantra.
In sum, while the complaint generically asserts
that HMA made various, unspecified statements
about the 40 MPG Elantra, the only factual
allegations before the Court involve statements that
(1) properly disclose that they are EPA estimates,
and thus are preempted, or (2) are from nondefendant dealerships, (3) are about an Elantra
model other than the one Gentry bought, or (4) some
combination thereof. While only this first category of
statements are preempted, the others categories
provide reasons why Gentry fails to state claims
against HMA based on his vehicle’s gas mileage.
IV. Primary Jurisdiction with EPA over Fuel
Estimates
Next, HMA urges primary jurisdiction, a
doctrine where “a claim pending before a court
‘requires the resolution of issues which, under a
regulatory scheme, have been placed within the
special competence of an administrative body,’ [so]
judicial proceedings are stayed ‘pending referral of
such issues to the administrative body for its views.’”
Advamtel, LLC v. AT & T Corp., 105 F. Supp. 2d
507, 511 (E.D. Va. 2000) (quoting United States v.
Western Pac. R.R. Co., 352 U.S. 59, 63–64 (1956)).
The primary jurisdiction doctrine does not apply to
this case.
HMA contends that EPA fuel economy estimates
for Hyundai vehicles are the subject of ongoing
regulatory activity. (Dkt. 91-1 at 14). Specifically,
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HMA is subject to the consent decree with EPA
requiring it to take corrective measures for its EPA
fuel economy. (Ex. J (dkt. 91-11) ¶ 19, App’x A).
HMA asserts without explanation that “orders by
this Court have the potential to interfere and
possibly conflict with the agency’s oversight.”
Primary jurisdiction presents little problem here.
Adjudication of the issues in this case—essentially,
compensation for unfair and deceptive advertising—
would not interfere with the EPA’s efforts to ensure
that HMA and other defendants take remedial
measures to avoid future miscalculations of EPA fuel
estimates; nor has the EPA appeared in or suggested
this litigation would intrude upon its regulatory
prerogatives. See Envtl. Tech. Council v. Sierra Club,
98 F.3d 774, 789 & nn. 23–24 (4th Cir. 1996) (despite
name, primary jurisdiction doctrine is a
discretionary decision by district court; noting that
EPA had not sought to intervene or participate as
amicus when party asserted primary jurisdiction).
V. Lemon Law Claim: Fuel Mileage and OnBoard Mileage Calculator
HMA attacks Mr. Gentry’s Lemon Law claim
that is rooted in both fuel mileage and the Elantra’s
on-board mileage calculator. The Lemon Law applies
to defects “which significantly impairs the use,
market value, or safety of the motor vehicle to the
consumer . . . .” Va. Code § 59.1-207.13(A). HMA
says that Gentry has not sufficiently alleged that the
purportedly erroneous MPG statements and onboard mileage calculator impaired his car’s use,
value, or safety.
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Whether a nonconformity significantly impairs a
car’s use, market value, or safety is an affirmative
defense. Va. Code § 59.1-207.13(G)(1). It is not
enough on a Rule 12(b)(6) motion that the complaint
fails to allege the car’s value, use, or safety was
affected; rather, the complaint must put forth facts
affirmatively showing that the value, use, or safety
was not affected. See Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007) (en banc) (A “motion to
dismiss filed under Federal Rule of Procedure
12(b)(6) . . . generally cannot reach the merits of an
affirmative defense [except] in the relatively rare
circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint . . .
.); see also id. at 466. “An affirmative defense
permits 12(b)(6) dismissal if the face of the
complaint includes all necessary facts for the defense
to prevail.” Leichling v. Honeywell Int’l, Inc., 842
F.3d 848, 850–51 (4th Cir. 2016). That is not the
situation here.
Nevertheless, for the reasons stated in the
Court’s preemption analysis, see supra Part III, the
Lemon Law claim will be dismissed to the extent it is
based on fuel mileage. It may proceed regarding the
on-board mileage calculator claim.
VI. VCPA Claim
A. Reliance and the On-Board Mileage
Calculator
Without the fuel mileage aspects of Gentry’s
claims, see supra Part III, the remaining portion of
the VCPA claim rests on the alleged inaccuracy of
his Elantra’s on-board mileage calculator.
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(Complaint ¶¶ 25, 28). “Virginia courts have
consistently held that reliance is required to
establish a VCPA claim.” Fravel v. Ford Motor Co.,
973 F. Supp. 2d 651, 658 (W.D. Va. 2013); see
Hamilton v. Boddie-Noell Enterprises, Inc., 88 F.
Supp. 3d 588, 591 (W.D. Va. 2015); Brown v.
Transurban USA, Inc., 144 F. Supp. 3d 809, 846
(E.D. Va. 2015); Cooper v. GGGR Investments, LLC,
334 B.R. 179, 189 (E.D. Va. 2005).
Mr. Gentry failed to plead reliance based on any
representation made to him before he purchased his
vehicle or in relation to the on-board mileage
calculator. (See dkt. 91-1 (Def’s Br.) at 18–19). The
Complaint only makes a generic reference to
representations made in an owner’s manual that the
calculator was accurate. Of course, one has an
owner’s manual only after purchasing a vehicle, and
Gentry makes no allegation that he read the manual
before buying his Elantra. (See Complaint ¶ 25).
Further, HMA points out that cases cited by Gentry
for the proposition that reliance need not be pled are
not VCPA cases. (Dkt. 93 at 11–12).1 For these
reasons, the VCPA claim cannot be premised on the
allegedly inaccurate on-board mileage calculator.2
1 Specifically, Daughtrey v. Ashe, 243 Va. 73 (Va. 1992), was an
express warranty case under the Uniform Commercial Code.
The Daughtrey Court explicitly did not pass on the contours of
reliance, because the statute contained no such requirement.
Id. at 77–79. Likewise, Martin v. American Medical Systems,
Inc., involved a warranty claim which—unlike a VCPA claim—
made it “unnecessary that the buyer actually rely upon” a
statement. 116 F.3d 102, 105 (4th Cir. 1997).
2 Mr. Gentry also relies on the on-board mileage calculator as
part of his false advertising claim. This fails for similar
reasons. He “has neither alleged that he viewed, nor that
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B. Pleading with Particularity
Gentry’s VCPA claim explicitly accuses HMA of
fraudulent conduct. (E.g., Complaint ¶¶ 31(A), (E)).
Several recent cases hold that VCPA claims, which
sound in fraud, must satisfy the heightened pleading
standards in Rule 9(b). See Wynn’s Extended Care,
Inc. v. Bradley, 619 F. App’x 216, 220 (4th Cir. 2015);
Vuyyuru v. Wells Fargo Bank, N.A., No. 3:15CV598HEH, 2016 WL 356087, at *4 (E.D. Va. Jan. 28,
2016); Brown v. Transurban USA, Inc., 144 F. Supp.
3d 809, 845 (E.D. Va. 2015); Maines v. Guillot, No.
5:16CV00009, 2016 WL 3556258, at *3 (W.D. Va.
June 16, 2016). Although creating a miasma of
impropriety, the complaint here alleges very view
details about what Mr. Gentry actually encountered
and relied upon before buying his vehicle; rather, the
complaint contains broad, generic references to
unspecified advertisements that HMA allegedly
made and Gentry was vaguely aware of at some
undisclosed time. (Complaint ¶¶ 7–8).3 Because
[HMA] ran, any advertisements for the on-board mileage
calculator.” (Dkt. 91-1 at 20). Without any allegations of what
advertisements Mr. Gentry saw, relied upon, or “induce[d]” him
“to enter into” an agreement for an Elantra, Va. Code. § 18.2216, he cannot establish any “loss as the result of” alleged false
advertising. Va. Code § 59.1-68.3.
3 To the extent Mr. Gentry does provide details about
statements or representations made by HMA, they are
unconnected to his purchase. For instance, the Complaint (¶
21) alleges that, on April 18, 2012, HMA posted a statement on
its website that 39% of vehicles sold achieved 40 MPG highway,
and suggested that Elantras would obtain that mileage. But
nowhere is it alleged that Mr. Gentry viewed this statement,
that the statement applied to the Elantra edition he purchased,
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Gentry must—but has not—plead “the time, place,
and contents of the false representations, as well as
the identity of the person making the
misrepresentation and what he obtained thereby,”
Wynn’s, 619 F. App’x at 220; see Brown, 144 F. Supp.
3d at 845, the VCPA fails in its entirety.
VII. Class Allegations
HMA seeks dismissal of the putative class
because the Complaint contains no allegations that
suggest Mr. Gentry (or for that matter, the other
named plaintiffs that are part of the MDL
settlement of the pre-November 2nd class) can
satisfy the requirements in Fed. R. Civ. P. 23(a) and
23(b). See EQT Prod. Co. v. Adair, 764 F.3d 347, 358
(4th Cir. 2014) (explaining test at certification
stage). The Court will dismiss the class allegations
without prejudice as to Mr. Gentry’s Lemon Law
claim based on the on-board mileage calculator, but
with prejudice as to all other aspects.
Mr. Gentry points out that assessment of a class
is usually reserved for the certification phase after
discovery. It is true that courts generally prefer to
wait until after discovery to make a definitive class
certification ruling. See, e.g., Govan v. WhitingTurner Contracting Co., 146 F. Supp. 3d 763, 769
(D.S.C. 2015); Scott v. Clarke, No. 3:12-CV-00036,
or that he relied on this statement when purchasing his
Elantra.
Similarly, the Complaint and DVD attachment attribute a
website screenshot about the 2013 Elantra’s fuel economy to
HMA. (Complaint ¶ 31(D)). But again there is no allegation
that Mr. Gentry saw this website page, relied on it, or was
mislead by it.
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2012 WL 6151967, at *9 (W.D. Va. Dec. 11, 2012).
But courts can still reject consideration of class
treatment if the face of the complaint does not
contain facts from which a colorable class might
exist. See, e.g., Waters v. Electrolux Home Prod., Inc.,
No. 5:13CV151, 2016 WL 3926431, at *4 (N.D.W. Va.
July 18, 2016); Cornette v. Jenny Garton Ins. Agency,
Inc., No. 2:10-CV-60, 2010 WL 2196533, at *2
(N.D.W. Va. May 27, 2010). So it is here. The sole
allegations about the class are:
The facts surrounding the purchase of a
2011-2013 Elantra by the five named class
representative are typical of what happened
to over 16,000 Virginians. This lawsuit can
be amended to include 50, 500, 5,000, or
15,000 victims of [HMA’s] misconduct, all of
whose stories will be similar to what these
five representatives experienced and
continue and experience.
(Complaint ¶ 18). This is simply a superficial
allusion to the legal prerequisites of a class in Rule
23(a)—commonality, typicality, adequacy, and
numerosity—unadorned by any supporting factual
allegations.
Moreover, the diversity of the class
representatives undercuts the allegations: Four of
the original five representatives are no longer
involved in this case because they were part of the
pre-November 2, 2012 settlement reached in the
MDL. This is in contrast to Mr. Gentry who, by
virtue of his purchase date, would fall within a
putative post-November 2nd class. This pre- versus
post-November 2nd dichotomy is problematic yet
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inherent in the class definitions corresponding to
each claim: i.e., “all persons who purchased or leased
a 2011-2013 Hyundai Elantra in Virginia.”
(Complaint ¶¶ 20, 29, 34). The fact that so many
would-be class members (and all but one of the
original named representatives) are already covered
by the nationwide class settlement in the MDL
further undermines the viability of the class. There
is little reason to think that Mr. Gentry’s postNovember 2nd claims are typical of pre-November
2nd buyers, or even typical of other post-November
2nd purchasers: As HMA observes, the reasons to
purchase a particular vehicle vary greatly from one
person to another, and performance issues at the
heart of this case, like gas mileage, will depend on
many idiosyncratic factors such as geography,
driving habits, and highway versus city driving.
In sum, these concerns cut to the commonality of
the class, as well as Mr. Gentry’s typicality. There
are also adequacy issues, since all claims (except a
portion of Mr. Gentry’s Lemon Law count) fail on the
merits. Accordingly, the Court will dismiss the class
allegations with prejudice as to the Lemon Law
claim based on fuel economy, the VCPA claim, and
the false advertising claim. The class allegations are
dismissed without prejudice as to Mr. Gentry’s
Lemon Law claim based on the on-board mileage
calculator, which survives on the merits.
ALLEGATIONS IN ABDURAHMAN
AND ABDUL-MUMIT
These cases involve claims by hundreds of
plaintiffs against HMA and dozens of its dealerships
in Virginia. Because the facts and legal theories in
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both cases are substantially the same (indeed, the
allegations are virtually identical to Gentry), record
citations are to the Abdul-Mumit Complaint unless
otherwise noted. The cases assert the same three
claims under Virginia law as in Gentry: Lemon Law;
VCPA, and; deceptive advertising. (Dkt. 1-3
[hereinafter “Complaint”] ¶ 2). As in Gentry, the
plaintiffs are alleged purchasers of 2011–2013
Hyundai Elantras.
In November 2010, HMA’s CEO introduced the
“All New 40 MPG Hyundai Elantra.” (Complaint ¶
5). Ad campaigns represented that the Elantra
would obtain 40 miles per gallon (“MPG”) on the
highway. (Id.). HMA also represented through
owners’ manuals that the Elantra’s on-board mileage
calculator was accurate, but it allegedly does not
accurately calculate or display the correct MPG
obtained. (Id. ¶ 6). Plaintiffs allege “on information
and belief” that HMA never performed standard
industry tests to assess Elantra’s MPG. (Id.).4
Plaintiffs allege that HMA published on its
website in April 2012 statements that 39% of
Elantras obtain 40 MPG. (Complaint ¶ 8). According
to the complaints, HMA cannot fix its 2011–2013
Elantras to make them produce 40 MPG. (Id. ¶ 11).
Plaintiffs assert that several statements or
actions by Defendants constituted violations of the
VCPA: (A) Defendants’ statements that Elantras
would receive 40 MPG; (B) Defendants’ refusal to
sell an Elantra to Plaintiffs that conformed to the 40
MPG representation; (C) Defendants’
representations that the on-board calculator was
4 This allegation contradicts the related one in Gentry, where
Plaintiff’s counsel wrote that HMA had conducted the tests but
made false representations about the on-board calculator.
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accurate; (D) statements from an HMA website that
2013 Elantras could obtain 38 MPG had deceptively
obscure and difficult-to-read disclaimers. (See
Complaint ¶ 16). The Complaints alleged that
“plaintiffs specifically relied upon [HMA’s and the
dealerships] advertisements as truthful and
accurate.” (Id. ¶ 17). It is alleged that HMA
“programmed and installed the on-board calculator
to show that the vehicle is getting higher mileage
than actually obtained.” (Id.).
JURISDICTIONAL ISSUES
Earlier in this litigation, the Court ordered the
parties to brief the question of subject matter
jurisdiction (dkt. 61), specifically as it relates to the
Class Action Fairness Act (“CAFA”), which provides
for jurisdiction over mass actions under certain
circumstances: i.e., typically when there is minimal
diversity of citizenship between the parties, an
aggregate amount-in-controversy over $5,000,000,
and there are 100 or more plaintiffs. See 28 U.S.C. §§
1332(d)(2), (d)(10)–(11)(B). Under § 1332(d)(11)(B)(i),
jurisdiction exists over these mass actions “except
that jurisdiction shall exist only over those plaintiffs
whose claims in a mass action satisfy the [$75,000]
jurisdictional amount” in controversy requirement.
The parties have briefed the import of the “except
clause” and Plaintiffs have filed a motion to remand.
I. The Except Clause Is a Jurisdictional
Carveout, not a Threshold for Removal
The except clause could be interpreted either as
a threshold to removal (i.e., every plaintiff must
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meet the amount-in-controversy requirement before
a case can be removed), or as a subsequent
jurisdictional limit (i.e., any plaintiff whose claims
fell below $75,000.01 must be severed and remanded
after removal). The weight of authority indicates
that the second interpretation is the better one. See
Robertson v. Exxon Mobil Corp., 814 F.3d 236, 240
n.2 (5th Cir. 2015); Lowery v. Alabama Power Co.,
483 F.3d 1184, 1203–07 (11th Cir. 2007); Anwar v.
Fairfield Greenwich Ltd., 676 F. Supp. 2d 285, 292
(S.D.N.Y. 2009); Haley v. AMS Servicing, LLC, No.
CIV. 13-5645 FSH JBC, 2014 WL 2602044, at *4
(D.N.J. June 11, 2014); see also Mississippi ex rel.
Hood v. AU Optronics Corp., 134 S. Ct. 736, 740
(2014). As Defendants put it, “the ‘except’ clause
permits individual plaintiffs to contest jurisdiction
and seek to have their individual cases remanded . . .
.” (Abdurahman, dkt. 113 at 1). Thus, the Court has
CAFA jurisdiction generally over the removed cases
as long as at least one plaintiff meets the individual
amount-in-controversy requirement; but if
challenged, a particular plaintiff must also meet the
individual amount-in-controversy requirement to
remain in federal court.
II. Plaintiffs Satisfy the Individual Amount-inControversy Requirement.
Both Abdurahman and Abdul-Mumit involve at
least one plaintiff that satisfies the individual
amount-in-controversy requirement, thus making
removal of the cases proper as a general matter. In
Abdurahman, Jeffrey Barber and Rufus Tunstall
purchased two Elantras each, for a total value of
$46,304 for each plaintiff. (Abdurahman, dkt. 1
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(Notice of Removal) ¶ 12). Plaintiffs request damages
in the form of the full purchase price of their vehicle,
plus treble damages (Abdurahman, dkt. 1-2 at ECF
8–29 ¶¶ 8, 13, 17–18, 20, Prayer for Relief), which
are allowed by statute. See Va. Code § 59.1-204(A).
Consequently, treble damages may be included in
the amount-in-controversy calculation. See Dell
Webb Communities, Inc. v. Carlson, 817 F.3d 867,
871 (4th Cir. 2016); Wall v. Fruehauf Trailer Servs.,
Inc., 123 F. App’x 572, 577 (4th Cir. 2005). This
takes the value of Barber and Tunstall’s respective
claims well over $75,000.
As for the remaining plaintiffs in Abdurahman
and those in Abdul-Mumit, all were alleged to
purchase defective Elantras roughly valued at
$23,000. (E.g., Abdul-Mumit, dkt. 1 (Notice of
Removal) ¶ 15; dkt. 1-3 (Complaint) ¶ 3). Statutory
trebling takes this value to $69,000 for each plaintiff.
Plaintiffs also requested attorneys’ fees (at
$350/hour), expert witness fees, and costs. (AbdulMumit, dkt. 1-3 ¶¶ 8, 13, 17–18, 20, Prayer for
Relief; Abdurahman, dkt. 1-2 ¶¶ 8, 13, 17–18, 20,
Prayer for Relief). These kinds of damages may be
included in the amount-in-controversy calculation if
they are permitted by statute, which they are here.
See Missouri State Life Ins. Co. v. Jones, 290 U.S.
199, 202–03 (1933); Dell Webb Communities, Inc. v.
Carlson, 817 F.3d 867, 871 (4th Cir. 2016); Francis v.
Allstate Ins. Co., 709 F.3d 362, 368 (4th Cir. 2013);
CPFilms, Inc. v. Best Window Tinting, Inc., 466 F.
Supp. 2d 711, 713 (W.D. Va. 2006) (compiling cases);
Va. Code § 59.1-207.14. The “complexity of the[se]
case[s] is sufficient to establish” that, when
accounting for these additional categories of
recoverable damages, the amount in controversy for
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each plaintiff exceeds $75,000.00. See Francis v.
Allstate Ins. Co., 709 F.3d 362, 369 (4th Cir. 2013).5
III. CAFA’s Local Controversy and Home State
Exceptions Do Not Apply
CAFA contains provisions whereby the Court is
required to decline jurisdiction over cases with
certain features of a local dispute. See 28 U.S.C. §
1332(d)(4). These carve-outs are known as the “local
controversy,” id. § 1332(d)(4)(A), and “home state”
exceptions. Id. § 1332(d)(4)(B). Plaintiffs contend in
their motion to remand that these provisions
warrant remand, but they are not applicable here.6
5 Even if CAFA jurisdiction were lacking, Defendants argue
that traditional diversity and supplemental jurisdiction over
each plaintiff exists because the dealership defendants were
fraudulently joined. Once their Virginia citizenship is
disregarded, so the argument goes, complete diversity exists.
The Court does not decide this issue because it finds CAFA
jurisdiction exists, but fraudulent joinder is discussed supra as
to other aspects of CAFA.
6 Many Circuits hold that these exceptions are not purely
jurisdictional and thus a motion to remand must be made in a
reasonable time. See, e.g., Watson v. City of Allen, Tx., 821 F.3d
634, 639–40 (5th Cir. 2016); Visendi v. Bank of Am., N.A., 733
F.3d 863, 869–70 & n.3 (9th Cir. 2013) (compiling cases); Gold
v. N.Y. Life Ins. Co., 730 F.3d 137, 142–43 (2d Cir. 2013);
Dutcher v. Matheson, No. 14-4085, 2016 WL 6471724, at *4
(10th Cir. Nov. 2, 2016); Mason v. Lockwood, Andrews &
Newnam, P.C., No. 16-2313, 2016 WL 6777325, at *7 (6th Cir.
Nov. 16, 2016). To the extent these cases reflect the law in this
Circuit, the motions to remand are untimely. Plaintiffs waited
over a year after the cases were returned to this Court by the
MDL before moving to remand them to state court. (AbdulMumit, dkts 46, 73).
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To qualify for remand under the “local
controversy exception,” there must have been “no
other class action . . . filed [in the three years before
removal of the instant case] asserting the same or
similar factual allegations against any of the
defendants on behalf of the same or other persons.”
28 U.S.C. § 1332(d)(4)(A)(ii) (emphasis added). As
shown both above and below, the factual allegations
in Gentry, Abdurahman, and Abdul-Mumit are
overwhelmingly similar. In many instances they are
exactly the same; they appear to have been copied
directly from Gentry into Abdurahman and AbdulMumit only days after the Court transferred Gentry
to the MDL. All three cases present identical claims
necessitating proof of similar facts, and the
complaints are lodged against HMA (i.e., the central
defendant in each case, and the only defendant
against whom there are substantive allegations). As
a result, the local controversy exception does not
apply and the Court retains jurisdiction. See Dutcher
v. Matheson, 840 F.3d 1183, 1191 (10th Cir. 2016)
(finding local controversy exception to jurisdiction
inapplicable where “complaint not only raises
similar factual allegations, but also asserts the same
basis of wrongdoing”; “We are struck by the
similarity of the factual allegations between the two
complaints, which allege, in nearly identical
language, the same acts of wrongdoing by the same
defendant.”).7
7 To apply, subsection (A) also requires that at least one
defendant “whose alleged conduct forms a significant basis for
the claims” be a citizen of Virginia. 28 U.S.C. §
1332(d)(4)(A)(i)(II)(bb), (cc) (emphasis added). This provision
also is not satisfied. As discussed elsewhere, Abdurahman and
Abdul-Mumit contain no substantive allegations against the
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As an alternative basis for remand, Plaintiffs
cite the home state exception in subsection (B),
which requires declining jurisdiction when, inter
alia, “the primary defendants” are citizens of
Virginia. 28 U.S.C. § 1332(d)(4)(B). Again, this
subsection fails. First, HMA—as the overwhelming
focus of the complaints, manufacturer of the
allegedly defective cars, and holder of the greatest
potential liability to the greatest number of
plaintiffs—is the primary defendant, not the in-state
dealership defendants (against whom there are no
specific factual allegations). See Watson v. City of
Allen, Tx., 821 F.3d 634, 641 (5th Cir. 2016) (“The
phrase ‘primary defendants’ indicates a chief
defendant or chief class of defendants”); Vodenichar
v. Halcon Energy Properties, Inc., 733 F.3d 497, 505–
06 (3d Cir. 2013) (setting forth factors in “primary
defendant” analysis). Second, the absence of any
factual allegations relating to the dealership
defendants is so conspicuous in these cases that
fraudulent joinder applies, and thus their citizenship
can be disregarded. See Weidman v. Exxon Mobil
Corp., 776 F.3d 214, 218–19 (4th Cir. 2015) (holding
that when “there is no factual detail at all to support
dealership defendants, which are the purported Virginia
citizens. Furthermore, Defendants argue (Abdurahman, dkt. 68
¶¶ 6–19; Abdul-Mumit, dkt. 1 ¶¶ 26–38), the procedural history
of this case suggests, and writings from Plaintiffs’ counsel show
(Abdurahman, dkt. 68-1; Abdul-Mumit, dkt. 1-5) that the
subsequent mass actions filed in state court named the in-state
dealership defendants to evade the stay in Gentry, prevent
removal, and avoid potential transfer of the suits to the MDL.
Fraudulent joinder would therefore apply to disregard the
dealership’s citizenship. See Weidman v. Exxon Mobil Corp.,
776 F.3d 214, 218–19 (4th Cir. 2015).
A66
any claims against” non-diverse defendants, and
plaintiff “has not in any way alleged” their
involvement or that “their actions were connected” to
plaintiff, then fraudulent joinder applies).8
IV. Removal Was Procedurally Proper.
Briefly in their written submissions (dkt. 72 at 8
¶11; dkt. 74 at ECF 3) and at oral argument (Tr. at
3–5, 15–16), Plaintiffs suggested that Defendants
improperly removed the case because they should
have first conducted discovery in state court to
ascertain the amount-in-controversy. This is not the
law.
“When the plaintiff’s complaint does not state
the amount in controversy, the defendant’s notice of
removal may do so.” Dart Cherokee Basin Operating
Co., LLC v. Owens, 135 S. Ct. 547, 551 (2014) (citing
28 U.S.C. § 1446(c)(2)(A)); see Strawn v. AT & T
Mobility LLC, 530 F.3d 293, 298 (4th Cir. 2008);
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d
192, 200 (4th Cir. 2008). Although the Complaints
seek particular categories of damages—e.g.,
purchase price of Plaintiffs’ vehicles, treble damages,
attorneys’ fees—they do not request a sum certain.
(See generally Abdurahman, dkt.1-2 at ECF 8–29;
Abdul-Mumit, dkt. 1-3). Accordingly, Defendants put
forth allegations in their notices of removal
8 For similar reasons, the Court will not decline to exercise
jurisdiction based on 28 U.S.C. §1332(d)(3): the primary
defendants are not citizens of Virginia, the actions were
brought originally in state court to avoid federal jurisdiction,
and same or similar claims were asserted in a class action
within a preceding 3-year period. See id. § 1332(d)(3)(C), (E)(F).
A67
(dovetailed with supporting affidavits9 and the
allegations in the Complaints) that satisfy the
requisite amount in controversy, as the Court has
discussed above. See supra Parts I–II. The
requirements of § 1446 have therefore been
satisfied.10
ABDURAHMAN AND ABDUL-MUMIT—
ANALYSIS OF MOTIONS TO DISMISS
I. Failure to Properly Plead Claims
HMA (and the dealerships) first point out that,
as mass actions where individual plaintiffs proceed
against individual defendants, the Complaints do
not satisfy the pleading standards of Twombly and
Iqbal. They observe that the complaints fail “to
identify the factual basis for claims by any plaintiff”
or identify the plaintiffs themselves in the body of
the pleading. (Dkt. 104-1 at 2 (emphasis in original)).
Rather, the individual plaintiffs are simply named in
the caption and not mentioned again by name in the
9
The evidentiary submissions, though prudent, were not even required
from Defendants unless and until the Court or Plaintiffs questioned the
amount‐in‐controversy allegations from the notices of removal. See Dart
Cherokee, 135 S. Ct. at 551, 553–54.
10
Plaintiffs rely on 28 U.S.C. §§ 1446(b)(3) and (c)(3)(A). According to
them, those subsections do not permit removal until after Defendants
received in state court a filing establishing the grounds removal,
which—in their view—must be accomplished exclusively through
discovery in state court. (See Tr. at 4–5, 16). Even if Plaintiffs’
substantive understanding of this rule was correct (a point the Court
doubts), those statutes only apply when “the case stated by the initial
pleading is not removable,” which was not the situation here. See Dart
Cherokee, 135 S. Ct. at 551.
A68
complaint; the only general factual allegation about
them is: “plaintiffs are individual buyers” of 2011–
2013 Elantras in Virginia. (Abdul-Mumit, Complaint
¶ 3).
This problem also exists as to the dealership
defendants. As Defendants observe, “there is not a
single substantive allegation anywhere in either
Complaint about any dealer.” (Dkt. 104-1 at 3). The
complaints instead lump the dealers in with generic
statements made about HMA. As this Court has
observed before, “[i]n the Fourth Circuit and
elsewhere, courts have interpreted Twombly and
Iqbal to mean that generic or general allegations
about the conduct of ‘defendants,’ without more, fail
to state a claim.” See Marcantonio v. Dudzinski, 155
F. Supp. 3d 619, 626–27 (W.D. Va. 2015) (compiling
cases).
Plaintiffs’ response on this score states that
these lawsuits were filed pursuant to Virginia’s class
action/consolidation/coordination statute, Va. Code §
8.01-267.1, for “efficiency,” and “it would abate the
savings the statute was intended to provide if each
and every particular fact unique to each Plaintiff is
required.” (Abdurahman, dkt. 105 at ECF 11). While
“each and every” unique fact is not required, federal
pleading standards nevertheless control in federal
court, see generally Erie R. Co. v. Tompkins, 304 U.S.
64 (1938), and the Complaints here fail those
standards. (See Abdurahman, dkt. 107 at 6).
II. Standing
Defendants argue that Plaintiffs lack standing,
which is a jurisdictional issue that must be decided.
They observe that the Complaints allege that
A69
“someone sustained an injury, but that will not
suffice” because they must allege that they sustained
a redressable injury at the hands of HMA.
(Abdurahman, dkt. 104-1 at 5) (emphasis in
original). While the Complaints are deficient, the
shortcoming goes to the merits rather than to
standing. It is alleged that Plaintiffs purchased the
model of car that otherwise is at the heart of this
litigation; it is not, for instance, as if they bought a
Ford (or no car at all) and thus fell completely
outside the bounds of this case. Rather, the failing
here is that there are insufficient facts alleged to
show that Plaintiffs have stated a claim based on
their purchases. Thus, the better understanding of
the circumstances here is that Plaintiffs failed to
satisfy the pleading standards of Rule 8, not that
they lack constitutional standing.
III. Incorporation of Gentry Arguments on
Preemption and Primary Jurisdiction
Defendants incorporate by reference their
aforementioned arguments in Gentry about
preemption and primary jurisdiction. The Court
incorporates its rulings on those issues in Gentry
here to the extent they provide an alternative basis
for dismissal.
IV. Lemon Law Claim
Aside from insufficient pleading, there are
additional legal bases to dismiss the Lemon Law
claims in Aburahman and Abdul-Mumit.
A70
A. Failure to Provide Notice or Make
Attempts to Remedy
Virginia’s Lemon Law requires that “the
consumer . . . prior to availing himself of the
provisions of” that law, “notify the manufacturer of
the need for the correction or repair of the
nonconformity.” Va. Code § 59.1-207.13(E).
Notification under the statute requires that (1) “a
written complaint of the defect or defects has been
mailed to it or (2) it has responded to the consumer
in writing regarding a complaint, or (3) a factory
representative has either inspected the vehicle or
met with the consumer or an authorized dealer
regarding the nonconformity.” Va. Code § 59.1207.11.
Here, the Complaints contain no allegations
particular to any plaintiff, much less that any of
them notified HMA or the dealerships. It “is clear
that in order to avail herself of the extraordinary
relief provided in the Lemon Law, [a plaintiff is]
required to report the defects and the need for
correction by notification to the manufacturer of the
nonconformity.” Smith v. Gen. Motors Corp., 1994
WL 1031403, at *4, 35 Va. Cir. 112 (Va. Cir. Ct.
1994).
Faced with this shortcoming, Plaintiffs respond
that Subsection (D) obliges the manufacturer to
disclosure that written notice of nonconformity is
required, but that Defendants failed to so prove. The
fact that Defendants did not “alleg[e] and
establish[]” (Abdul-Mumit, dkt. 60 at ECF 6) that
they complied with Subsection (D) is immaterial,
because at the pleading stage an evidentiary
showing by Defendants is not required. More
A71
centrally, Subsection (D) requires the manufacturer
to inform customers only that “written notification of
the nonconformity to the manufacturer is required
before the consumer may be eligible for a refund or
replacement of the vehicle under this chapter.” Va.
Code § 59.1-207.13(D) (emphasis added). In other
words, Subsection (D) (or failure to abide by it) does
not relieve a consumer of his exhaustion/notification
prerequisite in Subsection (E). Moreover, Plaintiffs’
conclusory argument that notice would have been in
vain fails: No law is cited for the proposition that a
bare, self-serving allegation in a complaint can
overcome a statutory requirement. The Lemon Law
claim should thus be dismissed.
Likewise, a would-be plaintiff must make “a
reasonable number of attempts” to have a
manufacturer remedy the nonconformity. Va. Code §
59.1-207.13(A). The Complaints do not include any
allegations about whether any plaintiff made
reasonable attempts as defined in and required by
the statute. Id. § 59.1-207.13(B).
B. Dealerships as Improper Defendants
Under § 59.1-207.13(A), only the “manufacturer
shall” be liable for nonconformities, not the
dealerships. See Maggard v. A&L RV Sales, No.
2:08CV00013, 2008 WL 2677873, at *1 (W.D. Va.
July 3, 2008) (Jones, J.); Va. Code § 59.1-207.11. In
response, plaintiffs agree that “Lemon Law claims
are not pled against the dealerships.” (Dkt. 105 at
ECF 9).
A72
V. VCPA Claim: Failure to Satisfy Rule 9(b) and
Lack of Reliance
Again, Defendants correctly argue that the
VCPA claims are subject to Rule 9(b)’s heightened
pleading standard for fraud. The failure here is even
more apparent than in Gentry because these
Complaints involve hundreds of purchasers and do
not explain any details surrounding any of their
purchasers (e.g., where and when they bought the
vehicles, who made certain representations to them,
what those representations were, etc.). Plaintiffs’
response brief contains merely bald assertions of
particularity that are in turn built upon the
conclusory allegations in the Complaints. (Dkt. 105
at 10). The Complaints also fail to include
meaningful, non-conclusory allegations of reliance, a
necessary element for a VCPA claim. See supra
analysis in Gentry.
VI. Other Arguments
Defendants also make other arguments about
EPA mileage estimates, the false advertising claim,
and the duplicativeness of Abdurahman and AbdulMumit. In light of the Court’s other rulings and
decision to dismiss those Complaints in their
entirety, the arguments are not addressed.
NATURE OF DISMISSAL
Finally, the Court must decide whether to
dismiss the faulty claims in Gentry and the cases in
Abdurahman and Abdul-Mumit with or without
prejudice. After considering the circumstances of the
A73
cases and the applicable law, the Court will order
dismissals with prejudice, except as to the class
allegations regarding Mr. Gentry’s Lemon Law claim
based on the on-board mileage calculator, which are
dismissed without prejudice.
The Court previously suggested that the
Complaints in these cases should be amended, yet it
has been accommodating in allowing the respective
Plaintiffs to decide the matter for themselves. For
instance, in a June 21, 2016 case management order
entered in all three cases, the Court observed:
Given the proceedings in the MDL, the
voluminous nature of the complaints, their
possible duplication, and the fact that
Defendants never had their motions to
dismiss adjudicated on the merits, the Court
is attuned to the possibility that the
complaints now may be stale and in need of
updating.
(Gentry, dkt. 86 at 2). Nevertheless, because “a
plaintiff is the master of his complaint,” the Court
gave Plaintiffs the option of filing amended
complaints within 21 days or allowing their prior
filings to remain operative. (Id. at 2–3).
This deadline passed without amendment,
signalling that Plaintiffs wished to proceed with
their original filings. But Plaintiffs subsequently
filed a letter motion seeking a nunc pro tunc
extension, writing that “more time, and more
conferences among counsel, are necessary to
determine what amendments, if any, are necessary.”
(Abdurahman, dkt. 87 at 2). The Court granted what
amounted to a 20-day extension of the original
A74
deadline, but it also indicated that the three cases
had “lingered” for “too long” since remand from the
MDL and that further extensions of the deadline
were unlikely. (Dkt. 89 at 2–3). For a second time,
the deadline expired without amended complaints,
thus making the previous filings operative.
From this, the Court concludes that Plaintiffs
have nothing more to add to their Complaints. Well
over two years of litigation transpired between the
time the Complaints were filed and the Court’s
invitations to amend, but Plaintiffs—as was their
right—twice declined to do so, even though the
evolved circumstances of the cases might have
warranted it. Moreover, many of the reasons for
dismissal rest on purely legal grounds. See Cozzarelli
v. Inspire Pharm. Inc., 549 F.3d 618, 630 (4th Cir.
2008). And at no time during adjudication of the
motions to dismiss did Plaintiffs suggest that they
might seek leave to amend or had other facts to put
before the Court. See id. To the contrary, they
remained steadfast that the Complaints “state
causes of action and adequately put Hyundai on
notice of the claims against it and there is absolutely
no surprise.” (Aburdahman, dkt. 105 at ECF 13–14;
Gentry, dkt. 92 at ECF 17). Defendants, on the other
hand, specifically requested dismissal with prejudice
in their moving briefs. (Abdurahman, dkt. 104-1 at
15; Gentry, dkt. 91-1 at at 21–22).
“The determination whether to dismiss with or
without prejudice under Rule 12(b)(6) is within the
discretion of the district court.” Weigel v. Maryland,
950 F. Supp. 2d 811, 825 (D. Md. 2013) (citing, inter
alia, Carter v. Norfolk Cmty. Hosp. Ass’n, Inc., 761
F.2d 970, 974 (4th Cir. 1985)). Where there has been
no opportunity to amend the complaint, dismissal
A75
should generally be without prejudice. See Cosner v.
Dodt, 526 F. App’x 252, 253 (4th Cir. 2013); Adams
v. Sw. Virginia Reg’l Jail Auth., 524 F. App’x 899,
900 (4th Cir. 2013). Because Plaintiffs have been
offered (but forgone) opportunities to amend and
have not suggested the existence of additional facts,
and because the dismissals rest in large part on legal
deficiencies, they will be with prejudice.
SUMMARY
For the foregoing reasons, the motions to remand
Abdurahman and Abdul-Mumit will be denied, and
the motions to dismiss those cases will be granted.
The motion to dismiss in Gentry will be granted in
part and denied in part. All claims in Gentry will be
dismissed except for Mr. Gentry’s Lemon Law claim
based on the on-board mileage calculator.
The Clerk is requested to send a copy of this opinion
to counsel. An appropriate order will issue.
Entered this 23rd day of January, 2017.
/S/
NORMAN K. MOON
UNITED STATES DISTRICT
JUDGE
A76
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
CASE NO. 3:13–cv–00030
ORDER, JUDGE NORMAN K. MOON
JOHN WILLIAM GENTRY, ET AL.,
Plaintiffs,
v.
HYUNDAI MOTOR AMERICA, INC.,
Defendant.
***************************
CASE NO. 3:14–cv–00002
ORDER, JUDGE NORMAN K. MOON
ALIM ABDURAHMAN, ET AL.,
Plaintiffs,
v.
HYUNDAI MOTOR AMERICA, INC., ET AL.,
Defendants.
***************************
CASE NO. 3:14–cv–00005
ORDER, JUDGE NORMAN K. MOON
JIHAD ABDUL-MUMIT, ET AL.,
Plaintiffs,
v.
HYUNDAI MOTOR AMERICA, INC., ET AL.,
Defendants.
A77
In accordance with the accompanying opinions
applicable to the respective cases captioned above, it
is ORDERED as follows:
In Gentry, the motion to dismiss is GRANTED
in part and DENIED in part. Counts 2 and 3 and
the corresponding class allegations are DISMISSED
with prejudice. Count 1 is DISMISSED with
prejudice to the extent it relies on allegations
regarding fuel economy, but remains pending as to
allegations regarding an on-board mileage
calculator. The class allegations corresponding to
Count 1 are DISMISSED, with prejudice as to a fuel
economy class but without prejudice as to an onboard mileage calculator class.
In Abdurahman and Abdul-Mumit, the motions
to remand are DENIED. The motions to dismiss
those cases are GRANTED. Accordingly, those cases
are DISMISSED with prejudice. The Clerk is
requested to strike Abdurahman and Abdul-Mumit
from the active docket of the Court.
The Clerk is hereby directed to send a certified
copy of this Order to all counsel of record.
Entered this 23rd day of January, 2017.
/S/
NORMAN K. MOON
UNITED STATES DISTRICT
JUDGE
A78
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE HYUNDAI AND KIA FuEL
No.
1 5-560 1 4
ECONOMYLITIGATION,
D.C. No.
2 : 1 3-ml-02424KEHLIE R. ESPINOSA; NICOLE MARIE
HUNTER; JEREMY WILTON;
KAYLENE P. BRADY; GUNTHER
KRAUTH; ERIC GRAEWINGHOLT;
REECE PHILIP THOMSON;ALEX
MATURANI; NILUFAR REzAI; JACK
ROTTNER;LYDIA KIEVIT; REBECCA
SANDERS; BOBBY BRANDON
ARMSTRONG; SERGIO TORRES;
RICHARD WOODRUFF; MARSHALL
LAWRENCE GORDON; JOEL A.
LIPMAN; JAMES GUDGALIS; MARY P.
ROESSLER; STEPHEN M. HAYES;
BRIAN REEVES; SAM HAMMOND;
MARKLEGGETT; EDWIN NAYTHONS;
MICHAEL WASHBURN; IRA D.
DUNST; BRIAN WEBER; KAMNEEL
MAHARAJ; KIM IOCOVOZZI;
HERBERT J. YOUNG;LINDA HASPER;
LESLIE BAYARD; TRICIA FELLERS;
ORLANDO ELLIOTT; JAMES
BONSIGNORE; MARGARET SETSER;
GUILLERMO QUIROZ; DOUGLAS
KURASH;ANDRESCARULLO;LAURA
S. SUTTA; GEORGIAL. THOMAS;
GW-FFM
A79
2
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
ERIC J. OLSON; JENNIFER MYERS;
TOM WOODWARD; JEROLD
TERHOST;CAMERON JOHNCESTARO;
DONALD BROWN; MARIA FIGUEROA;
CONSTANCE MARTYN; THOMAS
GANIM; DANIEL BALDESCID;
LILLIAN E. LEVOFF; GIUSEPPINA
ROBERTO; ROBERT TRADER; SEAN
GOLDSBERRY;CYNTIDA NAVARRO;
OWENCHAPMAN; MICHAEL BREIN;
TRAVIS BRISSEY; RONALD
BURKARD; ADAM CLOUTIER;
STEVENCRAIG; JOHN J. DIXSON;
ERINL. F ANTHORPE; ERIC HADESH;
MICHAEL P. KEETH; JOHN KIRK
MACDONALD; MICHAEL MANDAHL;
NICHOLAS MCDANIEL; MARY J.
MORAN- SPICUZZA; GARY PINCAS;
BRANDON POTTER; THOMAS PURDY;
ROCCO RENGIDNI; MICHELLE
SINGLTEON; KEN SMILEY; GREGORY
M. SONSTEIN; ROMAN STARNO;
GAYLEA. STEPHENSON;ANDRES
VILLICANA; RICHARD WILLIAMS;
BRADFORDL. HIRSCH;ASHLEY
CEPHAS; DAVID E. HILL;CHAD
MCKINNEY; MORDECHAI SCIDFFER;
LISA SANDS; DONALD KENDIG;
KEVIN GOBEL; ERICLARSON;LIN
MCKINNEY; RYANCROSS; PHILLIP
HOFFMAN; DEBRA SIMMONS;
ABELARDO MORALES; PETER
BLUMER;CAROLYN HAMMOND;
A80
IN RE HYUNDAI AND KIA FUEL ECON. LITIG.
MELISSA LEGGETT; KELLY
MOFFETT; EVAN GROGAN; CARLOS
MEDINA; ALBERTO DOMINGUEZ;
CATHERINE BERNARD; MICHAEL
BREIEN; LAURA GILL; THOMAS
SCHILLE; JUDITH STANTON; RANDY
RICKERT; BRYAN ZIRKEL; JAMES
KUNDRAT; ROBERT SMITH; MARIA
KOTOVA; JOSIPACASEY; LUAN
SNYDER; BEN BAKER; BRIAN
NGUYEN; HATTIE WILLIAMS; BILL
HOLVEY; LoURDES VARGAS;
KENDALL SNYDER; NOMER MEDINA;
SAMERIA GOFF; URSULA PYLAND;
MARCELL CHAPMAN; KAYE
KURASH; HOLLY AMR.OMIN; JOHN
CHAPMAN; MARY D'ANGELO;
GEORGE RUDY; AYMAN MOUSA;
SHELLY HENDERSON; JEFFREY
HATHAWAY; DENNIS]. MURPHY;
DOUGLAS A. PATTERSON; JOHN
GENTRY; LINDA RUTH SCOTT;
DANIELLE KAY GILLELAND; JOSEPH
BOWE; MICHAEL DESOUTO,
Plaintiffs -Appellees,
GREG DIRENZO,
Petitioner-Appellee,
HYUNDAI MOTOR AMERICA; KIA
MOTORS AMERICA; KIA MOTORS
CORPORATION; GROSSINGER
AUTOPLEX, INC. , FKA Grossinger
3
A81
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
4
Hyundai; JOHN KRAFCIK; HYUNDAI
MOTOR COMPANY; SARAH
KUNDRAT,
Defendants-Appellees,
v.
CAITLIN AHEARN; ANDREW YORK,
Objectors-Appellants.
IN RE HYUNDAI AND KIA FUEL
No. 15-56025
ECONOMY LITIGATION,
D.C. No.
In Re,
2: 13-ml-02424GW-FFM
KEHLIE R. ESPINOSA; NICOLE MARIE
HUNTER; JEREMY WILTON;
KAYLENE P. BRADY; GUNTHER
KRAUTH; ERIC GRAEWINGHOLT;
REECE PHILIP THOMSON; ALEX
MATURANI; NILUFAR REzAI; JACK
ROTTNER; LYDIA KIEVIT; REBECCA
SANDERS; BOBBY BRANDON
ARMSTRONG; SERGIO TORRES;
RICHARD WOODRUFF; MARsHALL
LAWRENCE GORDON; JOEL A.
LIPMAN; JAMES GUDGALIS; MARY P.
HOESSLER; STEPHEN M. HAYES;
BRIAN REEVES; SAM HAMMOND;
MARK LEGGETT; EDWIN NAYTHONS;
MICHAEL WASHBURN; IRA D.
A82
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
DUNST; BRIAN WEBER; KAMNEEL
MAHARAJ; KIM lOCOVOZZI;
HERBERT J. YOUNG; LINDA HASPER;
LESLIE BAYARD; TRICIA FELLERS;
ORLANDO ELLIOTT; JAMES
BONSIGNORE; MARGARET SETSER;
GUILLERMO QUIROZ; DOUGLAS
KURASH; ANDRES CARULLO; LAURA
S. SurrA; GEORGIA L. THOMAS;
ERIC J. OLSON; JENNIFER MYERS;
TOM WOODWARD; JEROLD
TERHOST; CAMERON JOHN CESTARO;
DONALD BROWN; MARIA FIGUEROA;
CONSTANCE MARTYN; THOMAS
GANIM; DANIEL BALDESCHI;
LILLIAN E. LEVOFF; GIUSEPPINA
ROBERTO; ROBERT TRADER; SEAN
GOLDSBERRY; CYNTHIA NAVARRO;
OWEN CHAPMAN; MICHAEL BREIN;
TRAVIS BRISSEY; RONALD
BURKARD; ADAM CLOUTIER;
STEVEN CRAIG; JOHN J. DIXSON;
ERIN L. F ANTHORPE; ERIC HADESH;
MICHAEL P. KEETH; JOHN KIRK
MACDONALD; MICHAEL MANDAHL;
NICHOLAS MCDANIEL; MARY J.
MORAN-SPICUZZA; GARY PINCAS;
BRANDON POTTER; THOMAS PURDY;
ROCCO RENGHINI; MICHELLE
SINGLTEON; KEN SMILEY; GREGORY
M. SONSTEIN; ROMAN STARNO;
GAYLE A. STEPHENSON; ANDRES
VILLICANA; RICHARD WILLIAMS;
5
A83
6
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
BRADFORDL. HIRSCH; ASHLEY
CEPHAS; DAVID E. HILL; CHAD
MCKINNEY; MORDECHAI SCHIFFER;
LISA SANDS; DONALD KENDIG;
KEVIN GOBEL; ERICLARSON;LIN
MCKINNEY; RYAN CROSS; PHILLIP
HOFFMAN; DEBRA SIMMONS;
ABELARDO MORALES; PETER
BLUMER; CAROLYN HAMMOND;
MELISSALEGGETT; KELLY
MOFFETT; EVAN GROGAN; CARLOS
MEDINA; ALBERTO DOMINGUEZ;
CATHERINE BERNARD; MICHAEL
BREIEN; LAURA GILL; THOMAS
SCHILLE; JUDITH STANTON; RANDY
RICKERT; BRYAN ZIRKEL; JAMES
KUNDRAT; ROBERT S:MITH; MARIA
KOTOVA; JOSIPA CASEY;LUAN
SNYDER; BEN BAKER; BRIAN
NGUYEN; HATTIE WILLIAMS; BILL
HOLVEY; LOURDES VARGAS;
KENDALL SNYDER; NOMER MEDINA;
SAMERIA GOFF; URSULAPYLAND;
MARCELL CHAPMAN; KAYE
KURASH; HOLLYAMROMIN; JOHN
CHAPMAN; MARY D'ANGELO;
GEORGE RUDY; AYMAN MOUSA;
SHELLY HENDERSON; JEFFREY
HATHAWAY; DENNIS J. MURPHY;
DOUGLAS A. PATTERSON; JOHN
GENTRY; LINDA RUTH SCOTT;
DANIELLE KAY GILLELAND; JOSEPH
BOWE; MICHAEL DESOUTO,
A84
IN RE HYUNDAI AND KIA FUEL ECON.LITIG.
7
Plaintiffs -Appellees,
GREG DIRENZO,
Petitioner-Appellee,
HYUNDAI MOTORAMERICA; KIA
MOTORS AMERICA; KIA MOTORS
CORPORATION; GROSSINGER
AUTOPLEX, INC., FKA Grossinger
Hyundai; JOHN KRAFCIK; HYUNDAI
MOTOR COMPANY; SARAH
KUNDRAT,
Defendants-Appellees,
v.
ANTONIO SBERNA,
Objector-Appellant,
IN RE HYUNDAI AND KIA FUEL
No. 15-56059
ECONOMYLITIGATION
D.C. No.
2: 13-ml-02424KEHLIE R. ESPINOSA; NICOLE MARIE
HUNTER; JEREMY WILTON;
KAYLENEP. BRADY; GUNTHER
KRAUTH; ERIC GRAEWINGHOLT;
REECEPHILIP THOMSON; ALEX
MATURANI; NILUFAR REZAI; JACK
ROTTNER; LYDIA KIEVIT; REBECCA
SANDERS; BOBBY BRANDON
ARMSTRONG; SERGIO TORRES;
GW-FFM
A85
8
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
RICHARD WOODRUFF; MARSHALL
LAWRENCE GORDON; JOELA.
LIPMAN; JAMES GUDGALIS; MARYP.
ROESSLER; STEPHEN M. HAYES;
BRIAN REEVES; SAM HAMMOND;
MARKLEGGETT; EDWIN NAYTHONS;
MICHAEL WASHBURN; IRA D.
DUNST; BRIAN WEBER; KAMNEEL
MAHARAJ; KIM IOCOVOZZI;
HERBERT J. YOUNG;LINDA HASPER;
LESLIE BAYARD; TRICIA FELLERS;
ORLANDO ELLIOTT; JAMES
BONSIGNORE; MARGARET SETSER;
GUILLERMO QUIROZ; DOUGLAS
KURASH;ANDRESCARULLO;LAURA
S. SUTTA; GEORGIAL. THOMAS;
ERIC J. OLSON; JENNIFER MYERS;
TOM WOODWARD; JEROLD
TERHOST; CAMERON JOHN CESTARO;
DONALD BROWN; MARIA FIGUEROA;
CONSTANCE MARTYN; THOMAS
GANIM; DANIEL BALDESCHI;
LILLIAN E. LEVOFF; GIUSEPPINA
ROBERTO; ROBERT TRADER; SEAN
GOLDSBERRY; CYNTHIA NAVARRO;
OWEN CHAPMAN; MICHAEL BREIN;
TRAVIS BRISSEY; RONALD
BURKARD;ADAM CLOUTIER;
STEVEN CRAIG; JOHN J. DIXSON;
ERINL. FANTHORPE; ERIC HADESH;
MICHAELP. KEETH; JOHN KIRK
MACDONALD; MICHAEL MANDAHL;
NICHOLAS MCDANIEL; MARY J.
A86
IN RE HYUNDAI AND KIA FUEL ECON. LITIG.
MORAN-SPICUZZA; GARYPINCAS;
BRANDONPOTTER; THOMASPURDY;
ROCCO RENGHINI; MICHELLE
SINGLTEON; KEN SMILEY; GREGORY
M. SONSTEIN; ROMAN STARNO;
GAYLEA. STEPHENSON;ANDRES
VILLICANA; RICHARD WILLIAMS;
BRADFORD L. HIRSCH;ASHLEY
CEPHAS; DAVID E. HILL; CHAD
MCKINNEY; MORDECHAI SCHIFFER;
LISA SANDS; DONALD KENDIG;
KEVIN GOBEL; ERIC LARSON; LIN
MCKINNEY; RYAN CROSS;PHILLIP
HOFFMAN; DEBRA SIMMONS;
ABELARDO MORALES; PETER
BLUMER; CAROLYN HAMMOND;
MELISSA LEGGETT; KELLY
MOFFETT; EVAN GROGAN; CARLOS
MEDINA;ALBERTO DOMINGUEZ;
CATHERINE BERNARD; MICHAEL
BREIEN; LAURA GILL; THOMAS
SCHILLE; JUDITH STANTON; RANDY
RICKERT; BRYAN ZIRKEL; JAMES
KUNDRAT; ROBERT SMITH; MARIA
KOTOVA; JOSIPA CASEY; LUAN
SNYDER; BEN BAKER; BRIAN
NGUYEN; HATTIE WILLIAMS; BILL
HOLVEY; LOURDES VARGAS;
KENDALL SNYDER; NOMER MEDINA;
SAMERIA GOFF; URSULAPYLAND;
MARCELL CHAPMAN; KAYE
KURASH; HOLLYAMROMIN; JOHN
CHAPMAN; MARY D' ANGEW;
9
A87
10
IN RE HYUNDAI AND KIA FUEL ECON. LITIG.
GEORGE RUDY;AYMAN MOUSA;
SHELLY HENDERSON; JEFFREY
HATHAWAY; DENNIS J. MURPHY;
DOUGLASA. PATTERSON; JOHN
GENTRY; LINDA RUTH SCOTT;
DANIELLE KAY GILLELAND; JOSEPH
BOWE; MICHAEL DESOUTO,
Plaintiffs-Appellees,
GREG DIRENZO,
Petitioner-Appellee,
HYUNDAI MOTORAMERICA; KIA
MOTORSAMERICA; KIA MOTORS
CORPORATION; GROSSINGER
AUTOPLE:X, INC. , FKA Grossinger
Hyundai; JOHN KRAFCIK; HYUNDAI
MOTOR COMPANY; SARAH
KUNDRAT,
Defendants-Appellees,
v.
PERI FETSCH,
Objector-Appellant.
IN RE HYUNDAI AND KIA FUEL
No. 15-5606 1
ECONOMYLITIGATION
D. C. No.
2: 13-ml-02424-
KEHLIE R. ESPINOSA; NICOLE MARIE
HUNTER; JEREMY WILTON;
GW-FFM
A88
IN RE HYUNDAI AND KIA FUEL ECON. LITIG.
KA YLENE P . BRADY; GUNTHER
KRAUTH; ERIC GRAEWINGHOLT;
REECE PHILIP THOMSON; ALEX
MATURANI; NILUFAR REZAI; JACK
ROTTNER; LYDIA KIEVIT; REBECCA
SANDERS; BOBBY BRANDON
ARMSTRONG; SERGIO TORRES;
RICHARD WOODRUFF; MARSHALL
LAWRENCE GORDON; JOEL A.
LIPMAN; JAMES GUDGALIS; MARY P.
ROESSLER; STEPHEN M. HAYES;
BRIAN REEVES; SAM HAMMOND;
MARK LEGGETT; EDWIN NAYTHONS;
MICHAEL WASHBURN; IRA D.
DUNST; BRIAN WEBER; KAMNEEL
MAHARAJ; KIM lOCOVOZZI;
HERBERT J. YOUNG; LINDA HASPER;
LESLIE BAYARD; TRICIA FELLERS;
ORLANDO ELLIOTT; JAMES
BONSIGNORE; MARGARET SETSER;
GUILLERMO QUIROZ; DOUGLAS
KURASH;ANDRESCARULLO; LAURA
S. SUTTA; GEORGIA L. THOMAS;
ERIC J. OLSON; JENNIFER MYERS;
TOM WOODWARD; JEROLD
TERHOST;CAMERON JOHNCESTARO;
DONALD BROWN; MARIA FIGUEROA;
CONSTANCE MARTYN; THOMAS
GANIM; DANIEL BALDESCHI;
LILLIAN E. LEVOFF; GIUSEPPINA
ROBERTO; ROBERT TRADER; SEAN
GOLDSBERRY; CYNTHIA NAVARRO;
OWENCHAPMAN; MICHAEL BREIN;
11
A89
12
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
TRAVIS BRISSEY; RONALD
BURKARD; ADAMCLOUTIER;
STEVENCRAIG; JOHN J. DIXSON;
ERIN L. F ANTHORPE; ERIC HADESH;
MICHAEL P . KEETH; JOHN KIRK
MACDONALD; MICHAEL MANDAHL;
NICHOLAS MCDANIEL; MARY J.
MORAN-SPICUZZA; GARY PINCAS;
BRANDON POTTER; THOMAS PURDY;
ROCCO RENGHINI; MICHELLE
SINGLTEON; KEN SMILEY; GREGORY
M. SONSTEIN; ROMAN STARNO;
GAYLE A. STEPHENSON; ANDRES
VILLICANA; RICHARD WILLIAMS;
BRADFORD L. HIRSCH; ASHLEY
CEPHAS; DAVID E. HILL; CHAD
MCKINNEY; MORDECHAI SCHIFFER;
LISA SANDS; DONALD KENDIG;
KEVIN GOBEL; ERIC LARSON; LIN
MCKINNEY; RYANCROSS; PHILLIP
HOFFMAN; DEBRA SIMMONS;
ABELARDO MORALES; PETER
BLUMER;CAROLYN HAMMOND;
MELISSA LEGGETT; KELLY
MOFFETT; EVAN GROGAN; CARLOS
MEDINA; ALBERTO DOMINGUEZ;
CATHERINE BERNARD; MICHAEL
BREIEN; LAURA GILL; THOMAS
SCHILLE; JUDITH STANTON; RANDY
RICKERT; BRYAN ZIRKEL; JAMES
KUNDRAT; ROBERT SMITH; MARIA
KOTOVA; JOSIPACASEY; LUAN
SNYDER; BEN BAKER; BRIAN
A90
IN RE HYUNDAI AND KIA FUEL ECON. LITIG.
NGUYEN; HATTIE WILLIAMS; BILL
HOLVEY; LoURDES VARGAS;
KENDALL SNYDER; NOMER MEDINA;
SAMERIA GOFF; URSULA PYLAND;
MARCELLCHAPMAN; KAYE
KURASH; HOLLY AMROMIN; JOHN
CHAPMAN; MARY D'ANGELO;
GEORGE RUDY; AYMAN MOUSA;
SHELLY HENDERSON; JEFFREY
HATHAWAY; DENNIS J. MURPHY;
DOUGLAS A. PATTERSON; JOHN
GENTRY; LINDA RUTH SCOTT;
DANIELLE KAY GILLELAND; JOSEPH
BOWE; MICHAEL DESOUTO,
Plaintiffs-Appellees,
GREG DIRENZO,
Petitioner-Appellee,
HYUNDAI MOTOR AMERICA; KIA
MOTORS AMERICA; KIA MOTORS
CORPORATION; GROSSINGER
AUTOPLEX, INc., FKA Grossinger
Hyundai; JOHN KRAFCIK; HYUNDAI
MOTOR COMPANY; SARAH
KUNDRAT,
Defendants-Appellees,
v.
DANA ROLAND,
Objector-Appellant.
13
A91
14
IN RE HYUNDAI AND KIA FUEL ECON. LITIG.
IN RE HYUNDAI AND KIA FUEL
ECONOMY LmGATION,
KEHLIE R. ESPINOSA; NICOLE MARIE
HUNTER; JEREMY WILTON;
KAYLENE P. BRADY; GUNTHER
KRAUTH; ERIC GRAEWINGHOLT;
REECE PHILIP THOMSON; ALEX
MATURANI; NILUFAR REZAI; JACK
ROTTNER; LYDIA KIEVIT; REBECCA
SANDERS; BOBBY BRANDON
ARMSTRONG; SERGIO TORRES;
RICHARD WOODRUFF; MARSHALL
LAWRENCE GORDON; JOEL A.
LIPMAN; JAMES GUDGALIS; MARY P.
ROESSLER; STEPHEN M. HAYES;
BRIAN REEVES; SAM HAMMOND;
MARK LEGGETT; EDWIN NAYTHONS;
MICHAEL WASHBURN; IRA D.
DUNST; BRIAN WEBER; KAMNEEL
MAHARAJ; KIM IOCOVOZZI;
HERBERT J. YOUNG; LINDA HASPER;
LESLIE BAYARD; TRICIA FELLERS;
ORLANDO ELLIOTT; JAMES
BONSIGNORE; MARGARET SETSER;
GUILLERMO QUIROZ; DOUGLAS
KURASH; ANDRES CARULLO; LAURA
S . SUTTA; GEORGIA L. THOMAS;
ERIC J. OLSON; JENNIFER MYERS;
TOM WOODWARD; JEROLD
TERHOST; CAMERON JOHN CESTARO;
DONALD BROWN; MARIA FIGUEROA;
No. 1 5-56064
D . C . No.
2 : 1 3-ml-02424GW-FFM
A92
lNRE HYUNDAI AND KlA FuEL ECON. LITIG.
CONSTANCE MARTYN; THOMAS
GANIM; DANIEL BALDESCHI;
LILLIAN E. LEVOFF; GIUSEPPINA
ROBERTO; ROBERT TRADER; SEAN
GOLDSBERRY; CYNTHIA NAVARRO;
OWEN CHAPMAN; MICHAEL BREIN;
TRAVIS BRISSEY; RONALD
BURKARD; ADAM CLOUTIER;
STEVEN CRAIG; JOHN J. DIXSON;
ERIN L. F ANTHORPE; ERIC HADESH;
MICHAEL P. KEETH; JOHN KIRK
MACDONALD; MICHAEL MANDAHL;
NICHOLAS MCDANIEL; MARY J.
MORAN-SPICUZZA; GARY PINCAS;
BRANDON POTTER; THOMAS PURDY;
ROCCO RENGHINI; MICHELLE
SINGLTEON; KEN SMILEY; GREGORY
M. SONSTEIN; ROMAN STARNO;
GAYLE A. STEPHENSON; ANDRES
VILLICANA; RICHARD WILLIAMS;
BRADFORD L. HIRSCH; ASHLEY
CEPHAS; DAVID E. HILL; CHAD
MCKINNEY; MORDECHAI SCHIFFER;
LISA SANDS; DONALD KENDIG;
KEVIN GOBEL; ERIC LARSON; LIN
MCKINNEY; RYAN CROSS; PHILLIP
HOFFMAN; DEBRA SIMMONS;
ABELARDO MORALES; PETER
BLUMER; CAROLYN HAMMOND;
MELISSA LEGGETT; KELLY
MOFFETT; EVAN GROGAN; CARLOS
MEDINA; ALBERTO DOMINGUEZ;
CATHERINE BERNARD; MICHAEL
15
A93
16
IN RE HYUNDAI AND KIA FUEL ECON. LITIG.
BREIEN; LAURA GILL; THOMAS
SCHILLE; JUDITH STANTON; RANDY
RICKERT; BRYAN ZIRKEL; JAMES
KUNDRAT; ROBERT SNITTH;NUuliA
KOTOVA; JOSIPACASEY; LUAN
SNYDER; BEN BAKER; BRIAN
NGUYEN; HATTIE WILLIAMS; BILL
HOLVEY; LOURDES VARGAS;
KENDALL SNYDER; NOMER MEDINA;
SAMERIA GOFF; URSULA PYLAND;
MARCELLCHAPMAN; KAYE
KURASH; HOLLY AMROMIN; JOHN
CHAPMAN; MARY D'ANGELO;
GEORGE RUDY; AYMAN MOUSA;
SHELLY HENDERSON; JEFFREY
HATHAWAY; DENNIS J. MURPHY;
DOUGLAS A. PATTERSON; JOHN
GENTRY; DANIELLE KAY
GILLELAND; JOSEPH BOWE;
MICHAEL DESOUTO,
Plaintiffs-Appellees,
GREG DIRENZO,
Petitioner-Appellee,
HYUNDAI MOTOR AMERICA; KIA
MOTORS AMERICA; KIA MOTORS
CORPORATION; GROSSINGER
AUTOPLE:X, INC., FKA Grossinger
Hyundai; JOHN KRAFCIK; HYUNDAI
MOTORCOMPANY; SARAH
KUNDRAT,
Defendants-Appellees.
A94
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
17
v.
LINDA RUTH SCOTT,
Objector-Appellant.
IN RE HYUNDAI AND KIA FUEL
ECONOMY LIDGATION
JOHN GENTRY; LINDA RUTH SCOTT;
DANIELLE KAY GILLELAND; JOSEPH
BOWE; MICHAEL DESOUTO,
PlaintiffS,
and
JAMES BEN FEINMAN,
Appellant,
v.
HYUNDAI MOTOR AMERICA; KIA
MOTORS AMERICA; KIA MOTORS
CORPORATION; GROSSINGER
AUTOPLE:X, INC., FKA GROSSINGER
HYUNDAI; JOHN KRAFCIK; HYUNDAI
MOTOR COMPANY; SARAH
KUNDRAT,
Defendants-Appellees.
No. 1 5-56067
D.C. No.
2 : 1 3-ml-02424GW-FFM
OPINION
A95
18
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted February 1 0, 20 1 7
Pasadena, California
Filed January 23 , 20 1 8
Before: Andrew J. Kleinfeld, Sandra S . lkuta,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge lkuta;
Dissent by Judge Nguyen
A96
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
19
SUMMARY*
Class Action
The panel vacated the district court's order granting class
certification in a nationwide class action settlement arising
out of misstatements by defendants Hyundai Motor America,
Inc. and its affiliate, Kia Motors, Inc., regarding the fuel
efficiency of their vehicles; and remanded for further
proceedings.
The district court had jurisdiction under the Class Action
Fairness Act ("CAFA"). In June 20 1 5, the district court gave
its final approval of the class settlement. Obj ectors brought
five consolidated appeals raising challenges to class
certification, approval of the settlement as fair and adequate,
and approval of attorneys' fees as reasonable in proportion to
the benefit conferred on the class.
The panel held that the district court abused its discretion
in concluding that common questions predominated, and in
certifying the settlement class under Fed. R. Civ. P . 23(b)(3).
The panel noted that Rule 23(b)(3 ) ' s predominance inquiry
was far more demanding than Rule 23(a) ' s commonality
requirement. The panel further noted that where plaintiffs
bring a nationwide class action under CAFA and invoke Rule
23(b)(3), a court must consider the impact of potentially
varying state laws.
Finally, in determining whether
predominance was defeated by variations in state law, the
·This sununary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
A97
20
IN RE HYUNDAI AND KIA FUEL ECON. LmG.
panel proceeded through several steps as outlined in Mazza
v. Am. Honda Motor Co. , 666 F.3d 58 1 , 590 (9th Cir. 20 1 2).
The panel held that in failing to apply California choice
of law rules, the district court committed a legal error. The
panel further held that the district court' s reasoning - that the
settlement context relieved it of its obligation to undertake a
choice oflaw analysis and to ensure that a class met all of the
prerequisites of Rule 23 - was wrong as a matter of law.
The panel held that the district court erred in failing to
define the relevant class "in such a way as to include only
members who were exposed to advertising that is alleged to
be materially misleading," Mazza, 688 F.3d at 5 96, because
the record did not support the presumption that used car
owners were exposed to and relied on misleading advertising.
Because the district court could determine, after a
rigorous Rule 23 analysis, that it would certify a settlement
class and approve a settlement, the panel briefly clarified
some principles of attorneys' fee approval for the district
court on remand.
Judge Nguyen dissented because she believed that the
district court committed no error, and she would affirm.
Judge Nguyen wrote that in decertifying the class, the
majority relied on arguments never raised by the objectors,
contravened precedent, and disregarded reasonable factual
findings made by the district court after years of extensive
litigation. Judge Nguyen further wrote that contrary to Ninth
Circuit case law and that of other circuits, the maj ority shifted
the burden ofproving whether foreign law governed from the
foreign law proponent - here, the obj ectors - to the district
court or class counsel, thereby creating a circuit split and
A98
IN RE HYUNDAI AND KIA FUEL ECON. LITIG.
21
violating the doctrine of Erie R.R. v. Tompkins, 3 04 U.S. 64
( 1 938). Also, Judge Nguyen wrote that in excluding used car
owners from the class, the majority misapplied the rule that
consumer claims merely required proof that the public - not
any individual - was likely to be deceived. Finally, Judge
Nguyen wrote that the majority based its clarification of the
district court' s attorneys ' fees award on a flawed reading of
the record and a disregard of deferential review.
A99
22
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
COUNSEL
James B. Feinman (argued), James B . Feinman & Associates,
Lynchburg, Virginia, for Appellants James Ben Feinman,
John Gentry, Linda Ruth Scott, Danielle Kay Gilleland,
Joseph Bowe, Michael Desouto.
Edward W. Cochran (argued), Shaker Heights, Ohio; George
W. Cochran, Streetsboro, Ohio; John J. Pentz, Sudbury,
Massachusetts; for Appellants Caitlin Ahearn and Andrew
York.
Steve A. Miller, Steve A. Miller P.C., Denver, Colorado, for
Appellant Antonio Sberna.
Matthew Kurilich, Tustin, California, for Appellant Peri
Fetsch.
Dennis Gibson, Dallas, Texas, for Appellant Dana Roland.
Elaine S . Kusel (argued), Basking Ridge; Richard D .
McCune, McCuneWright LLP, Redlands, California; for
Appellees Kehlie R. Espinosa, Lilian E. Levoff, Thomas
Ganim, and Daniel Baldeschi.
Benjamin W. Jeffers and Dommond E. Lonnie, Dykema
Gossett PLLC, Los Angeles, California, for Appellees Kia
Motors America Inc. and Kia Motors Corp.
Shon Morgan (argued) and Joseph R. Ashby, Quinn Emanuel
Urquhart & Sullivan LLP, Los Angeles, California; Karin
Kramer, Quinn Emanuel Urquhart & Sullivan LLP, San
Francisco, California; Dean Hansell, Hogan Lovells LLP, Los
A100
IN RE HYUNDAI ANDKlAFuEL ECON. LITIG.
23
Angeles, California; for Appellees Hyundai Motor America
and Hyundai Motor Co.
Robert B. Carey and John M. DeStefano, Hagens Berman
Sobol Shapiro LLP, Phoenix, Arizona, for Appellees Kaylene
P. Brady and Nicole Marie Hunter.
A101
24
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
OPINION
IKUTA, Circuit Judge:
This appeal involves a nationwide class action settlement
arising out of misstatements by defendants Hyundai Motor
America, Inc. (Hyundai) and its affiliate, Kia Motors
America, Inc. (KiaY regarding the fuel efficiency of their
vehicles. The district court had jurisdiction under the Class
Action Fairness Act (CAFA), 28 U.S.C. § 1 332(d), because
the matter in controversy exceeded $5,000,000, the putative
class comprised at least 1 00 plaintiffs, and at least one
plaintiff class member was a citizen of a state different from
that of at least one defendant. We have jurisdiction pursuant
to 28 U.S.C. § 1 29 1 . We hold that the district court abused
its discretion in concluding that common questions
predominate and certifying this settlement class under Rule
23(b)(3) of the Federal Rules of Civil Procedure, and we
remand to the district court for further proceedings consistent
with this opinion. Because the district court may still certify
a class on remand, we briefly clarify some principles of
attorneys' fees awards in the class action context for the
district court on remand.
I
"The class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only." Wal-Mart Stores, Inc. v. Dukes,
1 Defendants-Appellees also include Hyundai and Kia affiliates Kia
Motors Corporation; Grossinger Autoplex, Inc., FKA Grossinger Hyundai;
John Krafcik; Hyundai Motor Company; and Sarah Kundrat. We refer to
all Hyundai entities as "Hyundai" and all Kia entities as "Kia."
A102
IN RE HYUNDAI AND KIA FUEL ECON. LITIG.
25
564 U.S. 338, 348 (20 1 1 ) (internal quotation marks omitted).
"To come within the exception, a party seeking to maintain
a class action must affirmatively demonstrate his compliance
with Rule 23." Comcast Corp. v. Behrend, 5 69 U. S . 27, 3 3
(20 1 3) (internal quotation marks omitted). "Before certifying
a class, the trial court must conduct a rigorous analysis to
determine whether the party seeking certification has met the
prerequisites of Rule 23 ." Zinser v. Accujix Research Inst.,
Inc. , 253 F .3d 1 1 80, 1 1 86 (9th Cir. 200 1 ) (internal quotation
marks omitted). A district court's certification "must be
supported by sufficient findings to be afforded the traditional
deference given to such a determination." Molski v. Gleich,
3 1 8 F.3d 937, 946-47 (9th Cir. 2003) (internal quotation
marks omitted). "When a district court, as here, certifies for
class action settlement only, the moment of certification
requires heightened attention[.]" Ortiz v. Fibreboard Corp.,
527 U.S. 8 1 5, 848-49 ( 1 999) (internal quotation marks and
citation omitted).
We review the district court' s decision to certify a class
for an abuse of discretion. Parra v. Bashas ', Inc. , 536 F.3d
975, 977 (9th Cir. 2008). A district court abuses its discretion
when it makes an error of law or when its "application of the
correct legal standard was ( 1 ) illogical, (2) implausible, or
(3) without support in inferences that may be drawn from the
facts in the record." United States v. Hinkson, 5 85 F .3d 1 24 7,
1 262 (9th Cir. 2009) (en bane) (internal quotations omitted).
"We reverse if the district court's certification is premised on
legal error." Molski, 3 1 8 F.3d at 947.
Rule 23 "does not set forth a mere pleading standard."
Comcast, 569 U.S. at 33. The plaintiff seeking class
certification bears the burden of demonstrating that all the
requirements of Rule 23 have been met. See Zinser, 253 F .3d
A103
26
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
at 1 1 88 . This requirement means that the plaintiff must first
demonstrate through evidentiary proof that the class meets
the prerequisites of Rule 23(a), which provides that class
certification is proper only if: "( 1) the class is so numerous
that joinder of all members is impracticable; (2) there are
questions of law or fact common to the class; (3) the claims
or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative
parties will fairly and adequately protect the interests of the
class." Fed. R. Civ. P. 23(a); see also Comcast, 5 69 U. S . at
3 3 . The Rule 23(a) prerequisites "effectively limit the class
claims to those fairly encompassed by the named plaintiffs
claims." Dukes, 564 U.S. at 349 (internal quotation marks
omitted). To meet the commonality requirement of Rule
23(a)(2), the plaintiffs ' claims "must depend upon a common
contention" that is "of such a nature that it is capable of
classwide resolution-which means that determination of its
truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke." Id. at 350.
After carrying its burden of satisfying Rule 23(a) ' s
prerequisites, the plaintiff must establish that the class meets
the prerequisites of at least one of the three types of class
actions set forth in Rule 23(b). Fed. R. Civ. P. 23(b);
Comcast, 569 U. S . at 3 3 . Here, the district court certified the
class under Rule 23(b)(3), which provides that a class action
may be maintained only if "the court finds that the questions
of law or fact common to class members predominate over
any questions affecting only individual members, and that a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy," and which lists
A104
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
27
a number of matters "pertinent to these findings." Fed. R.
Civ. P. 23(b)(3).2
The Rule 23(b)(3) predominance inquiry is "far more
demanding" than Rule 23( a) ' s commonality requirement.
Amchem Prods., Inc. v. Windsor, 52 1 U . S . 59 1 , 624 ( 1 997).
The "presence of commonality alone is not sufficient to fulfill
Rule 23(b)(3)." Hanlon v. Chrysler Corp. , 1 50 F.3d 1 0 1 1 ,
1 022 (9th Cir. 1 998). Rather, a court has a "duty to take a
close look at whether common questions predominate over
individual ones," and ensure that individual questions do not
2 Rule 23(b) provides, in relevant part:
A class action may be maintained if Rule 23(a) is
satisfied and if: . . .
(3) the court finds that the questions of law or fact
common to class members predominate over any
questions affecting only individual members, and that
a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy. The
matters pertinent to these findings include:
(A) the class members' interests in individually
controlling the prosecution or defense of separate
actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by or
against class members;
(C) the desirability or undesirability of
concentrating the litigation of the claims in the
particular forum; and
(D) the likely difficulties in managing a class
action.
A105
28
IN RE HYUNDAI AND KIA FuEL ECON. LITIG.
"overwhelm questions common to the class." Comcast,
569 U.S. at 34 (internal quotation marks omitted). In short,
"[t]he main concern of the predominance inquiry under Rule
23(b)(3) is the balance between individual and common
issues." Wang v. Chinese Daily News, Inc., 737 F.3d 538,
545-46 (9th Cir. 20 1 3) (internal quotation marks omitted).
Where plaintiffs bring a nationwide class action under
CAFA and invoke Rule 23(b)(3), a court must consider the
impact of potentially varying state laws, because "[i]n a
multi-state class action, variations in state law may swamp
any common issues and defeat predominance." Castano v.
Am. Tobacco Co., 84 F.3d 734, 74 1 (5th Cir. 1 996).
"Variations in state law do not necessarily preclude a 23(b)(3)
action." Hanlon, 1 50 F.3d at 1 022. For instance, even when
some class members "possess slightly differing remedies
based on state statute or common law," there may still be
"sufficient common issues to warrant a class action." Id. at
1 022-23 ; see also Sullivan v. DB Investments, Inc., 667 F .3d
273 , 3 0 1 -02 (3d Cir. 20 1 1 ) (discussing the "pragmatic
response to certifications of common claims arising under
varying state laws," and citing a case that affirmed "the
district court' s decision to subsume the relatively minor
differences in state law within a single class" as illustrative)
(citing In re Prudential Ins. Co. ofAm. Sales Practice Litig.
Agent Actions, 1 48 F.3d 283, 3 1 5 (3d Cir. 1 998)); In re Mex.
Money Transfer Litig. , 267 F.3d 743 , 747 (7th Cir. 200 1 )
(noting that even though "state laws may differ in ways that
could prevent class treatment if they supplied the principal
theories of recovery," class representatives in that case met
the predominance requirement in part by limiting "their
theories to federal law plus aspects of state law that are
uniform"). On the other hand, where "the consumer
protection laws of the affected States vary in material ways,
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29
no common legal issues favor a class-action approach to
resolving [a] dispute." Pilgrim v. Universal Health Card,
LLC, 660 F.3d 943 , 947 (6th Cir. 20 1 1 ) .
In determining whether predominance i s defeated by
variations in state law, we proceed through several steps. See
Mazza v. Am. Honda Motor Co. , 666 F.3d 58 1 , 590 (9th Cir.
20 1 2). First, the class action proponent must establish that
the forum state' s substantive law may be constitutionally
applied to the claims of a nationwide class. !d. at 5 89-90.3
If the forum state' s law meets this requirement, the district
court must use the forum state' s choice of law rules to
determine whether the forum state' s law or the law of
multiple states apply to the claims. !d. at 590. "[I] f the
forum state' s choice-of-law rules require the application of
only one state' s laws to the entire class, then the
representation of multiple states within the class does not
pose a barrier to class certification." Johnson v. Nextel
Commc'ns Inc. , 780 F.3d 1 28, 1 4 1 (2d Cir. 20 1 5). But if
class claims "will require adjudication under the laws of
multiple states," Wash. Mut. Bank, FA v. Superior Court,
24 Cal. 4th 906, 922 (200 1 ), then the court must determine
whether common questions will predominate over individual
issues and whether litigation of a nationwide class may be
managed fairly and efficiently. !d. As with any other
requirement of Rule 23 , plaintiffs seeking class certification
bear the burden of demonstrating through evidentiary proof
3 The Supreme Court has explained that in order to apply the forum
state's law to out-of-state defendants, the state must have a "significant
contact or significant aggregation of contacts" to the claims asserted by
each member of the plaintiff class. Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 822 (1985). There is no dispute that California has
significant contacts with the defendants in this case.
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that the laws of the affected states do not vary in material
ways that preclude a finding that common legal issues
predominate. See Castano, 84 F.3d at 74 1 (indicating that
class action proponents must show that variations in state
laws will not affect predominance; "[a] court cannot accept
such an assertion on faith.") (quoting Walsh v. Ford Motor
Co., 807 F.2d 1 000, 1 0 1 6 (D.C. Cir. 1 986) (Ruth Bader
Ginsburg, J.)).
We undertook this predominance inquiry in Mazza v.
American Honda Motor Co ., which is closely analogous to
our case. Mazza considered a car manufacturer' s challenge
to a district court' s decision to certify a nationwide class of
consumers claiming that Honda had misrepresented material
information regarding Acura RLs. Honda contended that the
district court erred in certifying this class under Rule
23(b)(3), because "California' s consumer protection statutes
may not be applied to a nationwide class with members in
44 jurisdictions," Mazza, 666 F.3d at 589, and therefore
plaintiffs had not demonstrated "that the questions of law or
fact common to class members predominate over any
questions affecting only individual members." Fed. R. Civ.
Pro. 23(b)(3).
Mazza addressed this argument by undertaking the
following analysis. The plaintiffs first established that
defendants had adequate contacts to the forum state, and
therefore the court should apply California' s choice of law
rules. 666 F.3d at 590.4 Under these rules, the foreign law
4 Under California choice of law rules, there are "two different
analyses for selecting which law should be applied in an action": one
considering a contractual choice-of-law provision, and the other requiring
an application of the governmental interest test. See Wash. Mut. Bank,
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31
proponent had the burden of showing that the law of multiple
states, rather than California law, applied to class claims. !d.
Mazza therefore walked through the three parts of
California's governmental interest test. First, we determined
that Honda showed there were material differences between
the plaintiffs ' California misrepresentation claims and the
laws of other states. !d. at 59 1 . Second, we determined that
each of the 44 different states where the car sales took place
"has a strong interest in applying its own consumer protection
laws to those transactions." !d. at 592 . Turning to the third
step of the test, we determined that "if California law were
applied to the entire class, foreign states would be impaired
in their ability to calibrate liability to foster commerce." !d.
at 593 . Therefore, we held that "each class member' s
consumer protection claim should be governed by the
consumer protection laws of the jurisdiction in which the
transaction took place." !d. at 594.
Our conclusion that the plaintiffs' class claims "will
require adjudication under the laws of multiple states," Wash.
Mut. Bank, 24 Cal. 4th at 922, led to the next question:
whether this conclusion defeated predominance. Although
Mazza did not expressly address the predominance question,
24 Cal. 4th at 914-15. The governmental interest test has three steps.
"Under the first step of the governmental interest approach, the foreign
law proponent must identify the applicable rule of law in each potentially
concerned state and must show it materially differs from the law of
California." !d. at 920. If "the trial court finds the laws are materially
different, it must proceed to the second step and determine what interest,
if any, each state has in having its own law applied to the case." !d. If
"each state has an interest in having its own law applied, thus reflecting
an actual conflict" the court "must select the law of the state whose
interests would be more impaired if its law were not applied." Id.; see
also Mazza, 666 F.3d at 589-90.
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its vacatur of the district court's class certification order
established that plaintiffs had failed to show that common
questions would predominate over individual issues.5
Because the Rule 23(b)(3) predominance inquiry focuses
on "questions that preexist any settlement," namely, "the
legal or factual questions that qualify each class member' s
case as a genuine controversy," Amchem, 52 1 U.S. at 623 , a
district court may not relax its "rigorous" predominance
inquiry when it considers certification of a settlement class,
Zinser, 253 F.3d at 1 1 8 6. To be sure, when "[c]onfronted
with a request for settlement-only class certification, a district
court need not inquire whether the case, if tried, would
present intractable management problems, for the proposal is
that there be no trial." Amchem, 52 1 U.S. at 620 (citation
omitted). But "other specifications of the Rule-those
designed to protect absentees by blocking unwarranted or
overbroad class definitions-demand undiluted, even
heightened, attention in the settlement context."
!d.
"Heightened" attention is necessary in part because a court
asked to certify a settlement class "will lack the opportunity,
present when a case is litigated, to adjust the class, informed
by the proceedings as they unfold." !d. Indeed, in Amchem
itself, the court determined that both factual differences
among class members and differences in the state laws
5 California takes the same approach in applying a choice-of-law
analysis to class claims. Under California law, if the court concludes "that
class claims will require adjudication under the laws of multiple states,"
then "the court must determine "whether common questions will
predominate over individual issues and whether litigation of a nationwide
class may be managed fairly and efficiently." Wash. Mut. Bank, 24 Cal.
4th at 922. In California, "the class action proponent bears the burden of
establishing the propriety of class certification." Id.
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33
applicable to class members ' claims defeated predominance
for a single nationwide settlement class. Id. at 624.
A court may not justify its decision to certify a settlement
class on the ground that the proposed settlement is fair to all
putative class members. 6 Indeed, federal courts "lack
authority to substitute for Rule 23 ' s certification criteria a
standard never adopted-that if a settlement is fair, then
certification is proper." Id. at 622; see also Ortiz, 527 U. S . at
849 (holding that "a fairness hearing under Rule 23( e) is no
substitute for rigorous adherence to those provisions of the
Rule designed to protect absentees[.]") (internal quotation
marks omitted)) . This prohibition makes sense: "[i] f a
common interest in a fair compromise could satisfy the
predominance requirement of Rule 23(b)(3), that vital
prescription would be stripped of any meaning in the
settlement context," and the safeguards provided by the Rule,
which "serve to inhibit appraisals of the chancellor' s foot
kind-class certifications dependent upon the court's gestalt
judgment or overarching impression of the settlement' s
fairness," would be eviscerated. Amchem, 52 1 U . S . at 62 1 ,
623 .
II
We now tum to the facts of this case. Under the Clean
Air Act, all new vehicles sold in the United States must be
covered by an Environmental Protection Agency (EPA)
certificate of conformity demonstrating compliance with fuel
6 A court must make such a fairness finding under Rule 23(e) of the
Federal Rules of Civil Procedure, which prohibits a court from approving
a settlement unless it concludes that "it is fair, reasonable, and adequate."
Fed. R. Civ. P. 23(e)(2).
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efficiency and greenhouse gas emission standards. See
42 U.S.C. § 7522(a) ( 1 ) . To obtain such a certificate, a
vehicle manufacturer must submit an application to the EPA
with information about the fuel efficiency for each model
year. /d. § 7525(a)( l ) . In November 20 1 1 , a consumer
advocacy group sent a letter to the EPA regarding complaints
that Hyundai and Kia had overstated the fuel efficiency of a
number of their vehicles and asked the EPA to audit the
manufacturers.
In response, the EPA initiated an
investigation into Hyundai' s and Kia' s fuel efficiency test
procedures. About a year later, in November 20 1 2, the EPA
investigation confirmed that Hyundai and Kia used improper
test procedures to develop the fuel efficiency information
submitted for certain 20 1 1 , 20 1 2 , and 20 1 3 models.7 These
improper procedures resulted in overstated fuel efficiency
estimates.
At the same time as the EPA announced its findings,
Hyundai and Kia announced that they would lower their fuel
efficiency estimates for approximately 900,000 Hyundai and
Kia vehicles from model years 20 1 1 , 20 1 2, and 20 1 3 . At the
same time, Hyundai and Kia announced the institution of a
voluntary Lifetime Reimbursement Program (LRP) to
compensate affected vehicle owners and lessees for the
additional fuel costs they had incurred and would incur in the
future as a result of the overstated fuel efficiency estimates.
Under the LRP, anyone who owned or leased an affected
7 According to the EPA, the improper procedures included selecting
results from test runs that were aided by a tailwind, selecting only
favorable results from test runs rather than averaging a broader set of
results, restricting testing times to periods when the temperature allowed
vehicles to coast farther and faster, and preparing vehicle tires to improve
the test results.
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35
Hyundai or Kia vehicle on or before November 2 , 20 1 2 was
entitled to periodic reimbursements based on the number of
miles driven, the difference between the original and revised
fuel efficiency estimate, and the average fuel price in the area
where the car was driven, plus an extra 1 5 percent to account
for the inconvenience caused by the overstated fuel efficiency
estimates. In order to receive these benefits, class members
could enroll in the LRP and then periodically visit a Hyundai
or Kia dealership to verify their odometer readings. Car
owners could register for the LRP until December 3 1 , 20 1 3 ,
although the program would continue for those who
registered for as long as they owned or leased their vehicles. 8
After the EPA commenced its investigation, but before
announcing its results, a number of plaintiffs filed suit against
Hyundai and Kia. In January 20 1 2, plaintiffs filed a putative
nationwide class action in state court in Los Angeles County.
See Espinosa v. Hyundai Motor Am. , No. BC 476445 (Cal.
Super. Ct. filed Jan. 6, 20 1 2). The complaint raised claims
under California' s consumer protection laws and common
law, alleging that Hyundai had falsely advertised that its 20 1 1
and 20 1 2 Elantra and Sonata vehicles got 40 miles per gallon
(MPG) on the highway, when in fact these vehicles got far
lower MPG.9 The plaintiffs sought damages, rescission,
8 In October 2014, Hyundai and Kia entered into a $100 million
consent decree with the United States and the California Air Resources
Board to settle claims arising from the EPA investigation.
9 Specifically, the Espinosa plaintiffs asserted claims for violations of
California Unfair Competition Law, Cal. Bus. & Prof. Code
§§ 17200-17209; violations of California False Advertising Law, id.
§§ 17500-17509; violations of California Consumer Legal Remedies Act,
id. §§ 17 50-1784; fraud; negligent misrepresentation; and deceit, id.
§ 1710.
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36
restitution, and injunctive relief in the form of corrective
advertising on behalf of a putative nationwide class of owners
of specified vehicles who purchased or leased their vehicles
in the United States.
After Hyundai removed the Espinosa action to federal
court, see No. 2 : 1 2-cv-800 (C.D. Cal. filed Jan. 30, 20 1 2), the
plaintiffs moved for certification of a nationwide class. In its
opposition to class certification, Hyundai argued, among
other things, that differences in state consumer protection
laws precluded the application of California law to consumers
who are not Californians and defeated predominance.
Hyundai supported this argument with a thirty-four page
"Appendix of Variations in State Laws," which detailed the
numerous differences in the burden of proof, liability,
damages, statutes of limitations, and attorneys' fees awards
under different state consumer protection laws and common
law fraud actions. Hyundai also argued that there were
individual questions regarding whether each class member
was exposed to or relied on Hyundai' s advertising, and that
these questions prevented class certification.10
10
During the period from January 2012, when the Espinosa plaintiffs
filed their complaint, until November 2012, the date the EPA announced
the result of its investigation and Honda announced its LRP program, the
Espinosa plaintiffs focused their efforts on certifying a class. The
plaintiffs otherwise limited their actions to filing two amended complaints
(one to join additional class representatives) and responding to Hyundai's
motion to dismiss, which was denied by the district court on April 24,
2012. (Hyundai's prior motion to dismiss had been vacated when
Espinosa filed its amended complaint.) Hunter v. Hyundai Motor
America, No. 8:12-CV-01909 (C.D. Cal. filed Nov. 2, 2012), and Brady
v. Hyundai Motor America, No. 8:12-cv-1930 (C.D. Cal. filed Nov. 6,
2012) were not filed until after the LRP program was announced.
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37
In November 20 1 2 , the district court issued a tentative
ruling on the motion for class certification in Espinosa.
Plaintiffs sought to certify two classes, an Elantra class
(including purchasers and lessees of 20 1 1 - 1 2 model year
Elantras) and a Sonata class (including all purchasers and
lessees of20 1 1-20 1 2 model year Sonatas). The court stated
it would likely find that the plaintiffs demonstrated both the
Rule 23(a) commonality and Rule 23(b)(3) predominance
requirements were met as to statutory, but not common law
claims. With respect to the question whether plaintiffs could
show individualized reliance on advertising, the court stated
that it would likely find that class-wide reliance on the
challenged advertising could be presumed due to the
"extensive sweep" of Hyundai' s marketing efforts. U
Turning to the question whether plaintiffs could certify a
nationwide class, despite the fact that their complaint invoked
only California law, the district court held it was required to
perform a choice of law analysis. The court stated that
California had sufficient contacts to support the
extraterritorial application of California law to all claims, but
''just as in Mazza, the three-part choice of law test . . . comes
out in Defendant' s favor." In reaching this conclusion, the
court relied on three factors. First, Hyundai' s submission of
its appendix of variations in state law "unquestionably
demonstrates that there are material differences as between
11 Although the court indicated that the marketing efforts related to
"the fuel efficiency of the Elantra and Sonata vehicles," the campaign
identified by the court was limited to the 2011 Elantra. Specifically, the
court noted that Hyundai had purchased advertising for the 2011 Elantra
during the NFL playoffs, the Super Bowl, and the Academy Awards,
placed Elantra ads on Amazon, Facebook, Yahoo, and other internet sites,
used print advertising, and placed billboard ads for the 2011 Elantra in
Times Square in New York and on certain California freeways.
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the various states ' laws that would 'make a difference in this
litigation. "' (quoting Mazza, 666 F .3d at 5 90-9 1 , specifically
considering the scienter requirements and remedies). Second,
the court ruled that as in Mazza, each of the states "has an
interest in balancing the range of products and prices offered
to consumers with the legal protections afforded to them."
Mazza, 666 F .3d at 592. Third, the court determined that "the
interests of the other states would be more impaired were
California law imposed upon their citizens than California
would be impaired were this action limited to a class of only
California consumers." In sum, the court found "that
certification of a nationwide class where California law is
applied to out-of state consumers is foreclosed by the Ninth
Circuit' s decision in Mazza, a case virtually on all fours with
the instant matter."
Because California law could not be applied to out-of
state class members, the court thought it was obvious that the
class could not be certified: "were the laws of the other
various states applied to out-of-state purchasers, class
certification would be precluded because common questions
of law and fact would no longer predominate." The court
held that it would consider certifying a class of California
consumers, defined to include only those California
consumers who actually viewed one of the challenged
advertisements or marketing materials. On November 29,
20 1 2, the Court held a hearing on the class certification
motion pending in Espinosa, but did not make a final ruling,
instead requesting supplemental briefing.
Immediately following Hyundai' s November 2, 20 1 2
announcement o f the
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