United States District Court, D. Delaware
TIMOTHY CANFIELD, ANDREW CATTANO, JAMES LETT, DENNIS PECK, STEVEN SPRATLEY, SUSAN STEBBINS, and YVETTE TAYLOR, on behalf of themselves and all others Similarly situated, Plaintiffs,
FCA U.S. LLC, Defendant.
REPORT AND RECOMMENDATION
R. FALLON UNITED STATES MAGISTRATE JUDGE.
before the court in this putative class action suit
concerning alleged defective tire components is a motion to
dismiss for failure to state a claim upon which relief can be
granted pursuant to Federal Rule of Civil Procedure
filed by defendant FCA U.S. LLC ("FCA
(D.I. 12) For the following reasons, I recommend
granting-in-part and denying-in-part FCA US's motion.
U.S. is a Delaware limited liability company headquartered in
Auburn Hills, Michigan. (D.I. 11 at ¶ 20) The complaint
alleges that FCA U.S. is the United States subsidiary of
Italian multinational automaker Fiat S.p.A. (Id.)
FCA U.S. designs, manufactures, and sells automobiles
throughout the United States under various brand names,
including the "Jeep," "Dodge," and
"Chrysler" brands. (Id. at ¶ 24)
plaintiff Timothy Canfield ("Canfield") is a
citizen and resident of Marlette, Michigan. (Id. at
¶ 13) Named plaintiff Andrew Cattano
("Cattano") is a citizen and resident of Summit,
New Jersey. (Id. at ¶ 14) Named plaintiff James
Lett ("Lett") is a citizen and resident of North
Ridgeville, Ohio. (Id. at ¶ 15) Named plaintiff
Dennis Peck ("Peck") is a citizen and resident of
Jackson, Michigan. (Id. at ¶ 16) Named
plaintiff Steven Spratley ("Spratley") is a citizen
and resident of Brooklyn, New York. (Id. at ¶
17) Named plaintiff Susan Stebbins ("Stebbins") is
a citizen and resident of Rahway, New Jersey. (Id.
at ¶ 18) Named plaintiff Yvette Taylor
("Taylor") (together, with the other named
plaintiffs, "plaintiffs") is a citizen and resident
of Holyoke, Massachusetts. (Id. at¶ 19)
allege that Chrysler Town & Country, Dodge Grand Caravan,
Jeep Liberty, and Dodge Journey vehicles manufactured after
June 10, 2009 ("Class Vehicles") are equipped with
a defective component - a copper-bearing aluminum 2000 series
metal alloy ("AL2000") valve stem and nut on
vehicles equipped with a tire pressure monitoring system
("TPMS"). (Id. at ¶¶ 1, 5, 7, 24)
Plaintiffs allege that the valve stems are defective because
they are "subject to corrosion" when "exposed
to corrosive elements like road salt." (Id. at
¶ 4) Plaintiffs allege that when a valve stem fails,
"air can be rapidly released from the tire without
warning," which poses a significant safety risk.
(Id. at ¶¶ 4, 59)
vehicles come with a 3-year/36, 000 mile Basic Limited
Warranty, a 3-year/unlimited-mileage Corrosion Warranty, a
5-year/100, 000 mile Outer-Body Corrosion Warranty, a
5-year/l00, 000 Powertrain Warranty, and a 8-year/1000, 000
mile Emissions Warranty. (D.I. 13, Ex. A)
January 2013, Canfield purchased a used 2010 Dodge Journey
with 15, 000 miles from an undisclosed dealership in Caro,
Michigan. (Id. at ¶ 93) In December 2015, at an
undisclosed mileage, Canfield took his vehicle to a Walmart
to have a valve stem replaced. (Id. at ¶ 97) In
January 2016, at an undisclosed mileage, he took his vehicle
to a Belle Tire to have a second valve stem replaced.
(Id. at ¶ 98) In both instances, he sought a
repair because the "TPMS light flashed on his
dashboard," alerting him that a tire had low pressure,
"before a nearly instantaneous air-out of one of his
tires." (Id. at ¶ 96)
2010, Cattano purchased a 2010 Jeep Liberty with undisclosed
miles from a Chrysler dealership in Summit, New Jersey.
(Id. at ¶ 99) On May 23, 2015, Cattano was
driving his vehicle on the highway when the TPMS light came
on. (Id. at ¶ 102) Almost instantaneously, his
right rear tire had an air-out. (Id.) Cattano
momentarily lost control of his car, but successfully pulled
his vehicle over. (Id.) He observed that the TPMS
module was missing, leaving a hole in the tire's sidewalk
(Id.) Eventually, on an undisclosed date and at an
undisclosed mileage, Cattano took his vehicle to an
undisclosed mechanic who recommended replacing and then
replaced four valve stems on his vehicle because the TPMS
valve stems on his other three tires had begun to crack.
(Id. at ¶ 103)
March 2010, Lett purchased a new 2010 Chrysler Town &
Country with undisclosed miles from a Chrysler dealership in
Avon Lake, Ohio. (Id. at ¶ 105) In June 2014,
Lett's wife was driving the vehicle when a tire suffered
an air-out at an undisclosed mileage. (Id. at ¶
107) Lett's wife initially lost control of the vehicle,
but successfully pulled the vehicle over. (Id.) Upon
inspecting the blown out tire, Lett observed a corroded valve
stem, which Lett had replaced on an undisclosed date and at
an undisclosed mileage. (Id.) In the summer of 2015,
Lett replaced four valve stems on his vehicle after observing
that three were cracked and one was corroded. (Id.
at ¶ 108)
approximately June 2010, Peck purchased a new 2010 Dodge
Journey with undisclosed miles from a Chrysler dealership in
Clinton, Michigan. (Id. at ¶ 109) On March 3,
2015, at an undisclosed mileage, Peck was driving when he
heard a loud noise and saw that the vehicle's TPMS
warning light had come on. (Id. at ¶ 112)
Initially, Peck "felt the car pull to the left,"
but he successfully pulled the vehicle to the side of the
road. (Id.) He then observed that the TPMS module
was missing and left a hole in the tire. (Id.) As a
result, Peck had a tire and TPMS valve stem replaced.
(Id. at ¶ 113)
undisclosed month in 2012, Spratley purchased a certified,
pre-owned 2010 Chrysler Town & Country with "about
65, 000 miles" from a Chrysler dealership in Jersey
City, New Jersey. (Id. at ¶ 114) In early 2015,
at an undisclosed mileage, Spratley took his vehicle to an
undisclosed mechanic after experiencing a leak in the tire.
(Id. at ¶ 117) The mechanic noted two cracked
valve stems, which Spratley had replaced. (Id. at
August 2012, Stebbins purchased a used 2010 Dodge Journey
with 37, 000 miles from an undisclosed seller in New Jersey.
(Id. at ¶ 119) On November 23, 2014, at an
undisclosed mileage, Stebbins saw the vehicle's TPMS
warning light come on and experienced an air-out of a tire.
(Id. at ¶ 122) She momentarily lost control of
her vehicle, but successfully pulled the vehicle over.
(Id.) Stebbins observed that the TPMS module was
missing and left a hole in her tire. (Id.)
Stebbins's car was serviced at International Tire and
Parts, where she had two tires and three TPMS valve stems
replaced. (Id. at ¶ 123)
November 2010, Taylor purchased a used 2010 Dodge Grand
Caravan with undisclosed miles from a third-party in Holyoke,
Massachusetts. (Id. at ¶ 124) On December 8,
2014, Taylor paid $140.43 for her mechanic at D.E. Bourque
& Sons, Inc. Automotive Service & Sales to
investigate her under-inflated tire and replace her leaking
TPMS. (Id. at ¶ 128) She returned to her
mechanic on February 5, 2015 and paid $134.49 to investigate
another under-inflated tire and replace another TPMS.
(Id. at ¶ 129) She visited her mechanic again
on April 27, 2016 and paid $259.76 for her mechanic to remove
and replace TPMS on her rear passenger side and front driver
side tires. (Id. at ¶ 130) On all three visits,
Taylor's mechanic informed her that the TPMS was corroded
and causing her tire to lose air. (Id. at
October 12, 2017, plaintiffs initiated this action by filing
a class action complaint in the Superior Court of Delaware.
(D.I. 1, Ex. A) On December 12, 2017, FCA U.S. removed the
action to this court pursuant to 28 U.S.C. §§ 1441
and 1446. (D.I. 1) On January 18, 2018, FCA U.S. moved to
dismiss the original complaint pursuant to Rule 12(b)(6).
(D.I. 6) On February 1, 2018, plaintiffs filed an amended
complaint ("FAC") in response to the motion. (D.I.
11) On February 15, 2018, FCA U.S. filed the current motion
to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). (D.I. 12) The court heard oral argument on May 8,
August 3, 2016, plaintiffs Spratley, Canfield, Cattano, Lett,
Peck, Stebbins, and Taylor filed a complaint in the United
States District Court for the Southern District of New York
against FCA US. (D.I. 17 at 2) On January 23, 2017, the
Southern District of New York transferred the case sua
sponte to the United States District Court for the
Northern District of New York. (Id.) On September
12, 2017, the Northern District of New York dismissed
plaintiffs' claims for lack of personal jurisdiction with
the exception of one plaintiff, Thomas Hromowyk ("Mr.
Hromowyk"), who is not a named plaintiff in the case at
bar. See Spratley v. FCA US, 2017 WL 4023348
(N.D.N.Y. Sept. 12, 2017). The case remains pending before
the Northern District of New York, as to Mr. Hromowyk's
claims. See id.
12(b)(6) permits a party to move to dismiss a complaint for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). When considering a Rule 12(b)(6)
motion to dismiss, the court must accept as true all factual
allegations in the complaint and view them in the light most
favorable to the plaintiff. Umland v. Planco Fin.
Servs., 542 F.3d 59, 64 (3d Cir. 2008).
state a claim upon which relief can be granted pursuant to
Rule 12(b)(6), a complaint must contain a "short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). Although
detailed factual allegations are not required, the complaint
must set forth sufficient factual matter, accepted as true,
to "state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); see also Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009). A claim is facially plausible when the
factual allegations allow the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Iqbal, 556 U.S. at 663; Twombly,
550 U.S. at 555-56.
determining whether dismissal is appropriate, the court must
take three steps. See Santiago v. Warminster Twp.,
629 F.3d 121, 130 (3d Cir. 2010). First, the court must
identify the elements of the claim. Iqbal, 556 U.S.
at 675. Second, the court must identify and reject conclusory
allegations. Id. at 678. Third, the court should
assume the veracity of the well-pleaded factual allegations
identified under the first prong of the analysis, and
determine whether they are sufficiently alleged to state a
claim for relief. Id.; see also Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011). The third
prong presents a context-specific inquiry that "draw[s]
on [the court's] experience and common sense."
Iqbal, 556 U.S. at 663-64; see also Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). As the
Supreme Court instructed in Iqbal, "where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
- but it has not 'show[n]' - 'that the pleader is
entitled to relief" Iqbal, 556 U.S. at 679
(quoting Fed.R.Civ.P. 8(a)(2)).
Statutes of Limitations
preliminary matter, FCA U.S. argues that the claims at bar
were filed on October 12, 2017 - the date the complaint was
filed in Superior Court. (D.I. 13 at 8-10) Plaintiffs contend
that their complaint was re-filed in accordance with 28
U.S.C. § 1367(d), which provides for tolling of
plaintiffs' state law claims. (D.I. 17 at 2) Therefore,
according to plaintiffs, the operative date for the filing of
their claims was August 3, 2016, the date they filed the
complaint in the Southern District of New York.
1367(d) provides that: "[t]he period of limitations for
any claim asserted under subsection (a), and for any other
claim in the same action that is voluntarily dismissed at the
same time as or after the dismissal of the claim under
subsection (a), shall be tolled while the claim is pending
and for a period of 30 days after it is dismissed unless
State law provides for a longer tolling period." 28
U.S.C. § 1367(d). However, the Northern District of New
York dismissed plaintiffs' claims for lack of personal
jurisdiction. See Spratley, 2017 WL 4023348, at *6,
8-9. Relevant case authorities establish that the tolling
provision set forth in § 1367(d) does not preserve
claims dismissed for lack of personal jurisdiction (as well
as improper venue). See, e.g., Malone v. Bayerische
Hypo-Und Vereins Bank, 2010 WL 391826, at *8 & n.10
(S.D.N.Y. Feb. 4, 2010), aff'd sub nom. Malone v.
Bayerische Hypo-Und Vereins Bank, AG, 425 Fed.Appx. 43
(2d Cir. 2011) (citing Zychek v. Kimball Int'l Mktg.
Inc., 2006 WL 1075452, at *3 (D. Idaho Apr. 21, 2006)
("The dismissal of all claims (federal and state)... was
not pursuant to 28 U.S.C. § 1367. Therefore, the
Plaintiff cannot rely on 28 U.S.C. § 1367(d) to toll the
statute of limitations."); Parrish v. HBO &
Co., 85 F.Supp.2d 792, 796-97 (S.D. Ohio 1999)
("[T]he court concludes that, for § 1367(d) to be
applicable, the supplemental claim brought pursuant to §
1367(a) must have been dismissed by the court pursuant to
§ 1367(c).")); Flores v. Predco Servs.
Corp., 2011 WL 883640, at *l-2 & n.5 (D.N.J. Mar.
11, 2011) (noting that at oral argument, the court ruled 28
U.S.C. § 1367(d) did not apply following the trial
court's granting of defendants' motion to dismiss.
The motion to dismiss was premised on lack of personal
jurisdiction and was granted without a written opinion).
Therefore, the court recommends that the applicable filing
date is the date of the complaint in the instant action filed
in the Delaware Superior Court - October 12, 2017.
Counts II and III (Ohio Law)
II and III of the FAC allege causes of action by Lett on
behalf of the Ohio Class for deceptive and unfair
violation of the Ohio Consumer Sales Practices Act
("OCSPA"), Ohio Rev. Code Ann. § 1345.01,
et seq. (D.I. 11 at¶¶ 156-186) Plaintiffs
assert that FCA U.S. violated the OCSPA by "knowingly
placing into the stream of commerce Class Vehicles equipped
with defective TPMS valve stems that result in, among other
problems, sudden and unexpected tire air-outs," and
"concealing the defect in the Class Vehicles [and]
failing to inform Plaintiff Lett and the other Ohio Class
members of this defect." (Id. at ¶¶
brought under the OCSPA "may not be brought more than
two years after the occurrence of the violation which is the
subject of suit." Ohio Rev. Code Ann. § 1345.10(C).
Lett claims to have purchased his new 2010 Chrysler Town
& Country in March 2010. (D.I. 11 at ¶ 105) Because
this action was not filed until October 12, 2017, FCA U.S.
contends that Lett's claims in Counts II and III are
time-barred by the applicable statute of limitations. (D.I.
13 at 8-9) Plaintiffs contend that Lett's claims under
the OCSPA are timely. (D.I. 17 at 7) Lett does not allege any
further acts or omissions by FCA U.S. beyond his claims
related to an omission at the time of sale, but instead
contends continuing violations are not time-barred based on
allegations that FCA U.S. did not recall, replace, or
reimburse him for allegedly defective valve stems after his
purchase, and within the last two years. (Id. at
party seeks damages under the OCSPA, the two-year limitations
period is "absolute, and the discovery rule does not
apply." Zaremba v. Marvin Lumber & Cedar
Co., 458 F.Supp.2d 545, 552 (N.D. Ohio 2006) (citing
Lloyd v. Buick Youngstown GMC, 686 N.E.2d 350 (Ohio
Ct. App. 1996)); see also Quetot v. M&M Homes,
Inc., 2013 WL 793219, at *3 (Ohio Ct. App. Feb. 25,
2013) ("No discovery rule applies to claims for monetary
damages under the [OCSPA]."). The statute of limitations
under the OCSPA applies to "an unfair or deceptive act
or practice in connection with a consumer transaction . . .
whether it occurs before, during, or after the
transaction." Ohio Rev. Code Ann. § 1345.02(A).
argue that "[i]n the case of remedial legislation such
as the [OCSPA], the term 'occurrence of the
violation,' where the violation is a continuing or
episodic one, will denote the time when the violation
ceases," and cites RY/EH, Inc. v. Arthur
Treacher's, Inc., 685 N.E.2d 316, 318 (Ohio Ct. App.
1996) as support. (D.I. 17 at 7) (internal quotation marks
and emphasis omitted) However, Treacher's makes
no such holding, and that case does not examine the OCSPA,
but rather interprets the Ohio Business Opportunity
Purchasers Protection Act, Ohio Rev. Code Ann. §
1334.01, et seq., which provides remedies to those
who have been misled by dishonest or negligent franchisors.
See Treacher's, 685 N.E.2d at 318-19. The
statute of limitations begins to run from the date of the
occurrence of the violation, which is not necessarily the
date of any underlying transaction. See Ohio Rev.
Code Ann. §§ 1345.01(A), 1345.10(C); Varavvas
v. Mullet Cabinets, Inc., 923 N.E.2d 1221, 1225 (Ohio
Ct. App. 2009). Ohio courts have rejected arguments similar
to plaintiffs' argument that, as long as FCA U.S. or a
defendant failed to act in accordance with its alleged
representations, the statute of limitations did not begin to
run. See Montoney v. Lincoln Logs, Ltd., 2007 WL
155451, at *12 (Ohio Ct. App. Jan. 23, 2007); see also
Varavvas, 923 N.E.2d at 1226 (holding that limitations
period began at time of sale, not when seller failed to fix
defect). Otherwise, there would be an open ended limitations
period in those instances where a seller fails to remedy the
original alleged violation.
the statute of limitations began to run in March 2010, at the
time of purchase. As such, I recommend that plaintiffs'
claims under Counts II and III be dismissed as time-barred by
the applicable two-year statute of limitation under the
Counts IV and V (Michigan Law)
IV and V of the FAC assert causes of action by
Peck on behalf of the Michigan Class for deceptive and unfair
trade practices in violation of the Michigan Consumer
Protection Act ("MCPA"), Mich. Comp. Laws Ann.
§ 445.903, et seq. (D.I. 11 at ¶¶
the MCPA, "an action under this section shall not be
brought more than six years after the occurrence of the
method, act, or practice which is the subject of the action .
. .." Mich. Comp. Laws Ann. § 445.911(7). In
analyzing the MCPA, Michigan courts have concluded that
"failure to reveal a material fact, the omission of
which tends to mislead or deceive the consumer and which fact
could not reasonably be known by the consumer, is an unfair,
unconscionable, or deceptive method, act, or practice in the
conduct of trade or commerce." Laura v.
DaimlerChrysler Corp., 711 N.W.2d 792, 794 (Mich. Ct.
App. 2006). When a MCPA claim is predicated on an alleged
omission, the limitations period begins to run at the time of
purchase, not when the product first fails. Id.
Here, plaintiffs proceed on a material omissions theory.
(D.I. 17 at 10 n.7)
2010, Peck purchased a new 2010 Dodge Journey. (D.I. 11 at
¶ 109) Because this action was initiated seven years
after the date of purchase, FCA U.S. argues that the MCPA
claims must be dismissed as time-barred. (D.I. 13 at 9)
Plaintiffs argue that Peck never received any reimbursement
from FCA US. (D.I. 17 at 7) Additionally, plaintiffs assert
that Peck brings both pre-sale and post-sale claims under the
MCPA, both of which are timely. (Id.) Plaintiffs do
not directly address how Peck's claims related to an
omission at the time of sale survive the statute of
limitations bar. (See ...