WILSON v. KIA MOTOR AMERICA, INC. et al, No. 1:2013cv01069 - Document 35 (D.N.J. 2015)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 6/25/15. (js)
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WILSON v. KIA MOTOR AMERICA, INC. et al Doc. 35 U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF N EW JERSEY __________________________ KATHLEEN WILSON, individually and on behalf of all others sim ilarly situated, : : : : Plaintiff, : : v. : : KIA MOTORS AMERICA, INC., : : Defendant. : _____________________________ Hon. J oseph H. Rodriguez Civil Action No. 13-10 69 OPIN ION This m atter com es before the Court on Defendant’s Motion to Dism iss [29]. The Court has considered the written subm issions of the parties. 1 For the reasons set forth below, the m otion is granted. I. Backgro u n d This is a proposed class action against defendant, Kia Motors Am erica, Inc. (“KMA”). Plaintiff, individually and on behalf of all others sim ilarly situated, filed an Am ended Com plaint alleging two violations of the New J ersey Truth-in-Consum er Contract, Warranty, an d Notice Act (“TCCWNA”), N.J .S.A. 56:12-15 (1981). 2 Plaintiff 1 On J uly 15, 20 14, the Court heard oral argum ent on Defendant’s m otion to dism iss the original com plaint. The original com plaint contains the sam e allegation contain ed in Count I: a violation of the TCCWNA predicated upon KMA’s certified m ail notice requirem ent. Durin g oral argum ent, Plaintiff also argued that the language of the notice contradicted the m andatory “statem ent to consum er” lan guage of N.J .A.C. 13:45A-26.3. The Am ended Com plaint added Count II, which consum m ates that argum ent. Given that the issues discussed at the J uly 15, 20 14 hearing are relevant to the present m otion , the Court incorporates the record of that hearing. 2 The Original Com plaint was transferred to the United States District Court for the Central District of Californ ia. (Civil Docket Case # 1:13-cv-0 10 69-J HR-KMW Entry # 5.) Count I of the Com plaint was separated from the Com plaint and rem anded from the Central District of Californ ia to this Court. Counts II and III of the Com plaint rem ain under the jurisdiction of the Central District of Californ ia. (Civil Docket Case # 1:13-cv-0 10 69-J HR-KMW Entry # 8.) On August 22, 20 14, Plaintiff filed the Am ended Com plaint, which added the claim for KMA’s failure to use the exact, word for word, language of the New J ersey Division of Consum er Affairs, codified as N.J .A.C. 13A:45-26.3, in its Lem on Law disclosure. 1 Dockets.Justia.com claim s that KMA’s Lem on Law disclosure violates the TCCWNA because it requires a consum er to notify KMA of an alleged defect by “certified” m ail and because it does not state verbatim the Lem on Law disclosure developed by the New J ersey Division of Consum er Affairs (“DCA”) and codified as N.J .A.C. 13:45A-26.3. On or about May 16, 20 12, Plaintiff purchased a vehicle from KMA. (Am . Com pl. ¶ 16.) At the tim e of purchase, Plaintiff was issued a warranty notice inform ing Plaintiff of her protection under New J ersey’s Lem on Law. (Id. at ¶ 44.) Plaintiff claim s that the warranty m isstates the Lem on Law and therefore violates the TCCWNA. (Id. at ¶¶ 4850 .) The warranty states that to seek rem edies under the Lem on Law, the consum er m ust (1) notify KMA by certified m ail of the problem and (2) give KMA an opportunity to repair the problem . (Id. at ¶¶ 96-10 3.) Plaintiff claim s that the requirem ent that KMA be notified by certified m ail is not required by statute, and violates a legal right of the consum er to file suit without sending such a letter or m aking arrangem ents for repair attem pts. In addition, Plaintiff claim s that the notice provided by KMA fails to use the prescribed language of N.J .A.C. 13A:45-26.3 and therefore violates the TCCWNA. For these reasons, Plaintiff alleges two violations of the TCCWNA. (Id.) II. Stan d ard o f Re vie w Federal Rule of Civil Procedure 12(b)(6) allows a party to m ove for dism issal of a claim based on “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a m otion to dism iss pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are taken into consideration. See Chester County Interm ediate Unit v. Pa. Blue Shield, 8 96 F.2d 8 0 8, 2 8 12 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead eviden ce. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultim ately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (20 0 7). Instead, the Court sim ply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7). “A claim has facial plausibility” when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (citing Twom bly, 550 U.S. at 556). “Where there are well-pleaded factual allegations, a court should assum e their veracity and then determ ine whether they plausibly give rise to an entitlem ent to relief.” Iqbal, 556 U.S. at 679. The Court need not accept “‘unsupported conclusions and unwarranted inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 20 0 7) (citation om itted), however, and “[l]egal conclusions m ade in the guise of factual allegations… are given no presum ption of truthfulness.” Wyeth v. Ranbaxy, Ltd., 423 F.3d 347, 351 (3d Cir. 20 0 5). (“[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a com plaint when deciding a m otion to dism iss.”)). Accord Iqbal, 556 U.S. at 678 -80 (finding that pleadings that are not m ore than conclusions are not entitled to the assum ption of truth). Thus, a m otion to dism iss should be granted unless the plaintiff’s factual allegations are “enough to raise a right to relief above the speculative level on the assum ption that all of the com plaint’s allegations are true (even if doubtful in fact).” Twom bly, 550 U.S. at 556 (internal citations om itted). “[W]here the well-pleaded facts 3 do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8 (a)(2)). III. An alys is Plaintiff’s Am ended Com plaint fails to state a claim under the TCCWNA. Fed. R. Civ. P. 12(b)(6). KMA’s certified m ail reporting requirem ent is not a violation of a clearly established right under the TCCWNA and Plaintiff fails to dem onstrate that she is entitled to relief. In addition, the Court finds Plaintiff’s claim s in Count II are not cognizable under the TCCWNA because Plaintiff has not dem onstrated a violation of a clearly established right and has not plead sufficient facts to dem onstrate that she has incurred an ascertain able loss. As a result, the m otion to dism iss is granted. A. Co u n t I In Count I, Plaintiff contends that KMA’s requirem ent that a certified letter be sent to KMA is a violation of the TCCWNA, which states, in relevant part: No seller… shall in the course of his business offer to any consum er or prospective consum er or enter into any written consum er contract or give or display any written consum er warranty, notice or sign… which includes any provision that violates any clearly established legal right of a consum er… as established by State or Federal law at the tim e the offer is m ade or the consum er contract is signed or the warranty, notice or sign is given or displayed. N.J .S.A. 56:12-15. Plaintiff claim s that KMA’s notice violates New J ersey’s Lem on Law, which states, in relevant part: “If a consum er reports a nonconform ity in a m otor vehicle to the m anufacturer..., the m anufacturer… shall m ake…, within a reasonable tim e, all repairs necessary to correct the nonconform ity.” N.J .S.A. 56:12-31 (1988). In order to bring a Lem on Law claim , there m ust be a “report” of the alleged nonconform ity. Although the statute does not specify a requisite m ethod of reportin g the alleged 4 nonconform ity, “[a] sim ple and reliable way to ‘report’ a problem … is to send a letter via certified m ail.” Gordon v. Mazda Motor Corp., No. 13-CV-3142, 20 14 WL 1978 21, *3 (D.N.J . J an. 13, 20 14); Gillette v. Toyota Motor Sales, U.S.A., Inc., No. 13-CV-3191, 20 13 WL 59440 96, *6 (D.N.J . Nov. 7, 20 13). Since the requirem ent that the alleged nonconform ity be reported is specified within the statute, KMA sim ply clarified a preexisting requirem ent by requiring that Defen dant be notified by certified m ail of the problem . KMA has not im posed an additional requirem ent by requiring the certified letter. See Gordon, 20 14 WL 197821 at *3; Gillette, 20 13 WL 59440 96 at *6. “While it is true that the statute does not require written notice by certified m ail prior to filing a com plaint…, the notice does n ot violate [a] clearly established right.” Gordon, 20 14 WL at *6-7. There is no provision in the Lem on Law or in the TCCWNA that prohibits im posing a requirem ent that the report be m ade by certified m ail. Further, even if there is a violation of the TCCWNA, the violation is am biguously drawn and not clearly in violation of the TCCWNA. As provided in McGarvey v. Penske Auto Group, Inc., “clearly established legal right” does not cover action s where the violation of the right is “unclear.” McGravey v. Penske Auto Group, Inc., 486 Fed. Appx. 276, 282 (3d Cir. 20 12). As succinctly stated by the district courts in Gordon and Gilette, requiring certified m ail benefits the consum er and “opens all of the consum er’s avenues to relief” and does not establish a violation of a “clearly established legal right.” Gordon, 20 14 WL 197821 at *3; Gillette, 20 13 WL 59440 96 at *6. Moreover, Plaintiff does not allege that she intended to enforce her Lem on Law rights, that she was dissuaded from doing so because of the certified letter requirem ent, or even that she read the disclosure of her Lem on Law rights. Accordingly, Plaintiff has not pled facts that “perm it the court to infer m ore than the m ere possibility of 5 m isconduct” and has thus not shown that Plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8 (a)(2)). Defendant’s Motion to Dism iss is granted as to this Count I. B. Co u n t II In Count II, Plaintiff com plains that KMA’s Lem on Law disclosure violates the consum er’s clearly established rights because the disclosure contains language different from that prescribed by the DCA as set forth in N.J .A.C. 13:45A-26.3. By statute, m otor vehicle m anufacturers and dealers are required to provide consum ers with statem ent of their rights under the Lem on Law at the tim e of sale or lease. See N.J .S.A. 56:12-34. The statute provides in relevant part: At the tim e of purchase in the State of New J ersey, the m anufacturer, or, in the case of an authorized em ergen cy vehicle, the m anufacturer, co-m anufacturer, or post-m anufacturing m odifier, through its dealer or distributor, or at the tim e of lease in the State of New J ersey, the lessor, shall provide directly to the consum er a written statem ent prescribed by the director, presented in a conspicuous and understandable m anner on a separate piece of paper and prin ted in both the English and Spanish languages, which provides inform ation concerning a consum er's rights and rem edies under P.L.1988, c. 123 (C.56:12-29 et seq.), and shall include, but not be lim ited to, a sum m ary of the provisions of: (1) section 3 of P.L.1988, c. 123 (C.56:12-31), concerning the m iles of operation of a m otor vehicle and tim e period within which the consum er m ay report a nonconform ity and seek rem edies; (2) sections 4 and 5 of P.L.1988, c. 123 (C.56:12-32 and 56:12-33), concerning a m anufacturer's, co-m anufacturer's, or post-m anufacturing m odifier's obligations to a consum er based upon the m anufacturer's, com anufacturer's, or post-m anufacturing m odifier's, or its dealer's or distributor's, inability to repair or correct a nonconform ity; and (3) any other provision s of P.L.1988, c. 123 (C.56:12-29 et seq.) the director deem s appropriate. N.J .S.A. 56:12-34 (em phasis added). 6 Although KMA’s notice is substantively sim ilar, it does not use the precise language of N.J .A.C. 13:45A-26.3, which Plaintiff contends is a per se violation of the TCCWNA. Plaintiff attem pts to support this claim by riding the coattails of The New J ersey Consum er Fraud Act (“CFA”), N.J .S.A. 56:8 – 1 to – 20 et. seq. Specifically, Plaintiff claim s that a violation of a “clearly established right” under the CFA constitutes a violation of a “clearly established right” under the TCCWNA. Under the CFA, KMA’s failure to provide the correct notice is a per se violation. There is som e precedent for Plaintiff’s argument. “New J ersey courts have held that a CFA violation constitutes a violation of a “clearly established legal right” for TCCWNA purposes.” Martina v. LA Fitness Int’l, LLC, No. Civ. 12-20 63, 20 12 WL 38 220 93 (D.N.J . Sept. 4, 20 12) (citing Dugan v. TGI Friday's, Inc., No. L– 0 126– 10 , 20 11 WL 50 41391, at *8 (N.J . Super. Ct. App. Div. Oct. 25, 20 11) (“We conclude that Dugan has alleged sufficient facts to establish that the offer violated the CFA. Those allegations are therefore sufficient facts to establish a potential violation of the TCCWNA.”); Bosland v. Warnock Dodge, Inc., 396 N.J .Super. 267, 933 A.2d 942, 949 (N.J .Super.Ct.App.Div.20 0 7) (“a consum er contract that violates a clearly established legal right under the CFA regulations is also a violation of the TCCWNA”). Because Plaintiff fails to plead a cognizable claim under the CFA, her argum ent fails. To state a cognizable claim under the CFA claim , the consum er m ust allege “(1) an unlawful practice, (2) an ‘ascertainable loss,’ and (3) ‘a causal relationship between the unlawful conduct and the ascertainable loss.’ ” Gonzalez v. Wilshire Credit Corp., 20 7 N.J . 557, 25 A.3d 110 3, 1115 (N.J . Sup. Ct. 20 11) (quoting Lee v. Carter– Reed Co., 20 3 N.J . 496, 4 A.3d 561 (N.J . Sup. Ct. 20 10 )). Here, Plaintiff has not plead an ascertain able 7 loss. Plaintiff does not allege that she was foreclosed from enforcing her Lem on Law rights or that she in curred a loss of m oney or property. Under the CFA, Plaintiff, as a private party, m ust allege facts which dem onstrate that “she has suffered an ascertainable loss of m oney or property in order to bring a cause of action under the Act.” Weinberg v. Sprint Corp., 173 N.J . 233, 250 (20 0 1). It is not enough to plead perfunctory or speculative loss. Thiedem ann v. Mercedes-Benz USA, LLC, 183 N.J . 234, 252 (20 0 5) (“[S]ubjective assertions without m ore are insufficient to satisfy the requirem ent of an ascertain able loss that is expressly necessary for access to the CFA rem edies[.]”). Plaintiff’s claim of a per se violation under the CFA is perm itted only by the Attorney General. Id. at 246. The New J ersey Suprem e Court expressly held that “in contrast to the Attorney General, a private plaintiff m ust have an ascertainable loss in order to bring an action under the Act.” Weinberg, 173 N.J . at 250 (citing Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J . 464, 473 (1988) (citing Daalem an v. Elizabethtown Gas Co., 77 N.J . 267, 271 (1978) (interpreting N.J .S.A. 56:8– 19 as allowing private party to bring action if he or she “suffers a loss due to a m ethod, act[,] or practice declared unlawful under the [A]ct, to sue and recover threefold the dam ages sustained, together with reasonable attorney's fees and costs of suit”), and Ram an adham v. New J ersey Mfrs. Ins. Co., 18 8 N.J . Super. 30 , 33 (App. Div. 1982) (holding that Act requires causal relationship between ascertain able loss and unlawful practice an d rem anding case for new trial to establish “the extent of any ascertainable loss, particularly proxim ate to a m isrepresentation or other unlawful act of the defendant condem ned by the Consum er Fraud Act”)). 8 In a private party action, the loss requirem ent is essential. “The lim iting nature of the requirem ent allows a private cause of action only to those who can dem onstrate a loss attributable to conduct m ade unlawful by the CFA.” Thiedem ann, 183 N.J . at 246. Plaintiff here pleads n o such loss an d her claim fails as a m atter of law. As a result, Plaintiff cannot establish a violation of a “clearly established legal right” under the CFA and therefore cannot, by proxy, establish a violation of the TCCWNA. Defendant’s m otion to dism iss Count II is granted. 3 IV. Co n clu s io n For the reasons stated above, Defendant’s Motion to Dism iss pursuant to Federal Rule of Civil Procedure 12(b)(6) is granted because Defendant did not im pose an additional obligation on Plaintiff by requiring a certified letter be sent to report a problem and because Plaintiff has not plead a violation of a “clearly established legal right” under the TCCWNA. An appropriate Order shall issue. Dated: J une 25, 20 15 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 3 In light of the Court’s ruling, the Court will not address Defendant’s other arguments in favor of dismissal. 9
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