AMATO et al v. SUBARU OF AMERICA, INC. et al, No. 1:2018cv16118 - Document 23 (D.N.J. 2019)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/5/2019. (dmr)

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AMATO et al v. SUBARU OF AMERICA, INC. et al Doc. 23 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY AMATO, ET AL Plaintiffs, v. SUBARU OF AMERICA, INC., ET AL : Hon. J oseph H. Rodriguez : Civil Action No. 18-16118 : OPINION : Defendants. : This m atter is before the Court on Defendants’ Motion to Dism iss pursuant to Fed. R. Civ. Pro. 12(b)(6). Having considered the parties’ subm issions, the Court decides this m atter without oral argum ent pursuant to Federal Rule of Civil Procedure 78(b). For the reasons stated below, the Court grants in part and denies in part Defendants’ Motion to Dism iss. I. Background This case concerns alleged engine defects in Subaru’s 20 0 9 through and including 20 18 m odel year Im preza WRX and WRX STi (“class vehicles” or “class vehicle”). Four nam ed Plaintiffs, J oseph Am ato, J am es Moore, Chris Lall, and George Sandoval (collectively “Plaintiffs”), bring this action against Defendants Subaru of Am erica, Inc. (“SoA”) and Subaru Corporation (“SRB”), (collectively “Subaru” or “Defendants”), individually and on behalf of all others sim ilarly situated. SRB is a J apanese corporation and m anufacturer of Subaru vehicles. According to Plaintiffs, it m anufactured and tested the class engine and engine m anagem ent system , and “drafted and published the Owner’s Manual and Warranty & Maintenance Booklet m aterials that accom panied class vehicles and/ or were published on the 1 Dockets.Justia.com Internet.” Com pl. ¶ 18. “SoA m anufactures, im ports, distributes and/ or sells Subaru m otor vehicles including all class vehicles and also acts as the authorized representatives of Subaru in the United States. SoA operates its national m arketing, warranty, consum er relations and engineering offices from its New J ersey facility.” Id. at ¶ 19. It also drafted and published the Owner’s Manual and Warranty & Maintenance Booklet.” Id. at ¶ 21. Plaintiffs now claim that the engines used in the class vehicles, including engine codes EJ 255, EJ 257, and FA20 (“class engines”), are “predisposed to prem ature engine failure.” Id. at ¶ 1-3. According to the facts alleged in Plaintiffs’ Com plaint: “Class vehicles are defective with respect to im properly designed and m anufactured pistons and an engine m anagem ent system and PCV (positive crankcase ventilation) system that subjects class engines to prem ature catastrophic engine piston ringlands failure (the ‘Piston Ringlands Defect’)” Id. at ¶ 4. This alleged defect “often” causes engine failure “at less than 50 % of [the engines] reasonably expected useful life.” Id. at ¶ 10 . 1 Plaintiffs claim that the class engine failure causes power loss, stalling, and “sudden and catastrophic engine selfdestruction as overheated internal parts seize.” Id. at ¶ 8. Therefore, Plaintiffs assert that the Piston Ringlands Defect causes serious safety issues for drivers of the class vehicle. Id. at ¶ 9. Plaintiffs contend that the predecessor engines had sim ilar issues, and instead of redesigning the engine, Defendants attem pted to m ake certain m odifications to the engine system . 1 The Court addresses Plaintiff’s allegations in m ore detail in its analysis of Plaintiffs’ specific claim s, including the causes of the Piston Ringlands Defect, as alleged in the Com plaint. See infra Part III.d 2 Plaintiffs filed a class action Com plaint with this Court against Defendants alleging class wide claim s for Breach of Express Warranty of Merchantability (Count I), Breach of Im plied Warranty of Merchantability (Count II), Violation of MagnusonMoss Warranty Act 15 U.S.C. § 2310 (D)(1(A) (Count III), Negligent Misrepresentation (Count VIII), and Injunctive and Declaratory Relief (Count IX); and state law claim s for certain subclasses under the New J ersey Consum er Fraud Act N.J . Stat. Ann. §§ 56:8-2 (Count IV), the Indiana Deceptive Consum er Sales Act, Ind. Code §§ 24-5-0 .5-1 (Count V), New York General Business Law § 349 Deceptive Acts and Practices (Count VI), and Arizona Consum er Fraud Act, A.R.S. §§ 44-1521 (Count VII). Plaintiffs claim that Defendants’ had actual knowledge of the alleged defect, which they concealed from consum ers. Specifically, that “defendants fraudulently, intentionally, negligently and/ or recklessly concealed . . . the Piston Ringland Defect in class engines even though the defendants knew or should have known of design, m aterials and m anufacturing defects in class vehicles.” Id. at ¶ 47. They claim that “prior to m anufacturing and then distributing a new part, defendants perform substantial field inspections, testing and quality review of vehicles in service to determ ine the root cause and diagnosis of a problem .” Id. at ¶ 38. In addition, Plaintiffs claim Defendants would have obtained knowledge of defect through (1) field inform ation and custom er feedback on warranty claim s that SoA m onitors, (2) inspections of class engines during replacem ent pursuant to warranty claim s, (3) sales and distribution of engines to dealerships and repair facilities, (4) internet com m unications and other consum er forum s, (5) inform ation concerning revisions m ade to subsequent engine specifications and m aterials, and (6) com m unications with class vehicle owners. Id. at ¶¶ 39-40 . 3 The class vehicles were subject to a warranty contained within the Owner’s Manual and Warranty & Maintenance Booklet m aterials. According to the Com plaint, these m aterials “do not contain any m aintenance or service information for class engine pistons or piston ringlands that are defective.” Id. at ¶¶ 10 , 53. Plaintiffs’ claim s that they tim ely notified the defendants of breach of warranties Id. at ¶ 55. The putative class contacted SoA directly and/ or through an authorized dealership and were notified that SoA would not replace engines incorporated in class engines or reim burse replacem ent costs “because their vehicles were outside of the express warranty period.” Id. at ¶¶ 5657. Now Plaintiffs’ plead that Defendants failed to cure the class vehicle defect, despite alleged knowledge of the defect, and have breached the term s of its express warranty. Id. at ¶ 58. The nam ed class representative Plaintiffs’ claim s arise out of the following alleged facts: Plaintiff Am ato was a resident of New J ersey at the tim e he leased his “new 20 16 Im preza WRX STi from an authorized Pennsylvania Subaru dealer in Novem ber 20 15.” At 65,0 0 0 m iles, Am ato’s class vehicle required replacem ent of the engine due to the Piston Ringland Defect. Am ato spent m ore than $ 6,50 0 replacing the class engine together with other incidental expenses. Id. at ¶ 14. Plaintiff Moore currently resides in Indiana. He “purchased a certified pre-owned 20 13 WRX from an authorized Subaru dealer in Indiana in Novem ber of 20 15.” At 66,0 0 0 m iles, Moore’s class vehicle required replacem ent of the engine. Moore spent m ore than $ 7,50 0 .0 0 repairing the class engine together with other incidental expenses. Id. at ¶ 15. 4 Plaintiff Lall currently resides in New York. He “purchased a new 20 16 Subaru WRX from Curry Subaru, an authorized Subaru dealer in New York in or about May of 20 16.” Id. at ¶ 16. At approxim ately 32,0 0 0 m iles, Bay Ridge Subaru worked on the clutch of his vehicle “and returned the vehicle to Lall without indicating any issue with the engine piston ringlands.” Id. “Upon inform ation and belief,” Bay ridge Subaru com pleted “a tear down and diagnostic of the vehicle” but did not address or advise about the Piston Ringland’s Defect. At approxim ately 33,0 0 0 m iles, within 1,0 0 0 m iles of receiving the vehicle back from Bay Ridge Subaru, “the vehicle suffered a catastrophic engine ringlands failure.” Id. Thereafter, Lall “dem anded” that SoA repair his vehicle’s engine under warranty. According to the Com plaint, SoA refused. Lall was required to pay for his engine repair and lost use of his vehicle in excess of 2 m onths. Id. Plaintiff Sandoval is a resident of Arizona. He “purchased a new 20 18 WRX STi from Auto Nation Subaru of Scottsdale, Arizona, an authorized Subaru dealer in Scottsdale, Arizona in 20 18 for approxim ately $ 41,0 0 0 .” Id. at ¶ 17. The engine in Sandoval’s class vehicle “has not experienced ringlands failure.” Sandoval claim s “he has suffered dim inution of value as a result of class engine ringlands failure becom ing public knowledge.” Id. He claim s that prospective purchaser(s) have told him “that because Subaru has publicized the fact that the pistons and piston ringlands required strengthening, an issue which Subaru revealed was fixed in the 20 19 version of the WRX STi vehicle, that such purchaser(s) would not want to purchase the earlier class vehicles which did not incorporate engines with the strengthened pistons and ringlands.” Id. Presently, Defendants m ove to dism iss all claim s alleged in Plaintiffs’ Com plaint. [Dkt. No. 10 ]. The Motion to Dism iss has been fully briefed and is ripe for decision. 5 II. Standard of Review 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, 896 F.2d 80 8, 812 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead evidence. 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 Labs., Ltd., 448 F. Supp. 2d 60 7, 6 60 9 (D.N.J . 20 0 6) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170 , 177 (3d Cir. 20 0 7) (quoting Evancho v. Fisher, 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 no m ore than conclusions are not entitled to the assum ption of truth). Further, although “detailed factual allegations” are not necessary, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlem ent to relief’ requires m ore than labels and conclusions, and a form ulaic recitation of a cause of action’s elem ents will not do.” Twom bly, 550 U.S. at 555 (internal citations om itted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elem ents of a cause of action, supported by m ere conclusory statem ents, do not suffice.”). 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. “[W]here the well-pleaded facts 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. III. Discussion At the outset, Defendants object to the application of New J ersey law to nonresident Plaintiffs’ claim s for breach of warranties and negligent m isrepresentation. In response, Plaintiffs contend that any conflict of laws analysis at the m otion to dism iss stage would be prem ature. But “courts in this Circuit have som etim es determ ined that the choice of law analysis in a putative class action can be done at the m otion to dism iss stage.” Snyder v. Farnam Com panies, Inc., 792 F. Supp. 2d 712, 718 (D.N.J . 20 11) 7 (collecting cases). If the Court were to conduct a choice of law analysis, it m ust apply the choice of law rules of the forum state, here, New J ersey. Barbey v. Unisys Corp., 256 Fed. Appx. 532, 533 (3rd Cir. 20 0 7). Under New J ersey rules, the “choice of law analysis m ust be undertaken on an issue-by-issue basis.” Harper v. LG Elecs. USA, Inc., 595 F. Supp. 2d 486, 490 (D.N.J . 20 0 9) (citing Rowev . Hoffm an-La Roche, Inc., 917 A.2d 767, 771 (N.J .20 0 7)). Therefore, the Court will analyze each claim separately to determ ine whether an analysis is proper, and if so, determ ine which state’s law should be applied at that tim e. A. Co u n t I: Bre ach o f Exp re s s W arran ty Plaintiffs’ claim s for breach of express warranty are prem ised on the warranties Defendant SoA issued to the class vehicles, including the basic warranty and Powertrain Lim ited Warranty (“the Lim ited Warranty”). Com pl. ¶ 118. The basic warranty covered class vehicles for “3 years or 36,0 0 0 m iles, whichever com es first.” The Lim ited Warranty prom ised “any repairs needed to correct defects in m aterial or workm anship for 5 years or 60 ,0 0 0 m iles, whichever com es first.” Id. This Lim ited Warranty particularly covered the class vehicle’s engine, and “engine block and all internal parts.” Id.; see [Dkt No. 10 -2]. The relevant lim ited warranty m aterials state: THESE WARRANTIES ARE LIMTED IN DURATION TO THE TIME PERIOD OF THE WRITTEN WARANTIES. THESE WARRANTIES ARE IN LIEU OF ALL OTHER OBLIGATIONS, LIBILITIES, OR WARANTIES, WHETHER EXPRESS OR IMPLIED. ANY IMPLIED WARRNATIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE END AT THE SAME TIME COVERAGE ON THE PARTCULAR COMPONENT ENDS. [Dkt No. 10 -2]. As to Plaintiffs’ claim s under Count I of the Com plaint, the Court need not address or engage in any choice of law analysis. Defendants allege that a 8 conflict of law exists because New J ersey does not require privity or reliance to establish an express warranty claim , while the requirem ents under New York, Indiana, and Arizona law, include privity. Defendants, however, do not argue that Plaintiffs claim for breach of express warranty fails for lack of privity or reliance alike. Second, for the reasons stated below, the Court finds that Plaintiffs’ breach of express warranty claim fails prior to the need for an analysis under any specific state law. In fact, Defendants do not argue that a conflict of laws between states exists on the pertinent issue this Court will dism iss Count I pursuant to. Therefore, the potential conflict is inapposite to the Court’s analysis of Plaintiffs’ claim . Defendants argue that Plaintiffs’ breach of express warranty claim s against SoA fail and therefore, Count I should be dism issed because (1) the Lim ited Warranty does not cover the alleged design defect and (2) none of the Plaintiffs have pleaded “legitim ate breach of express warranty claim s.” Def. Brf. at 13-21. Defendants first argum ent that Count I should be dism issed against SoA claim s that the Lim ited Warranty that Plaintiffs rely on does not cover the alleged defect, because according to Defendants, Plaintiffs are alleging a design defect. The Lim ited warranty at issue covers only defects in “m aterial or workm anship.” Defendant argues that “m aterial or workm anship” pertains to m anufacturing defects and does not subsum e design defects. The Court agrees that the language of the Lim ited Warranty does not cover design defects. The Third Circuit has held that the plain and ordinary m eaning of the term “defect[s] in . . . m aterials or workm anship,” unam biguously excludes “design defects.” Coba v. Ford Motor Co., 932 F.3d 114, 121 (3d Cir. 20 19) (citations om itted). Prior to the Third Circuits ruling, a num ber of courts within this district, and the relevant 9 jurisdictions, held the sam e. See Cali v. Chrysler Grp. LLC, No. 10 CIV. 760 6, 20 11 WL 383952, at *2 (S.D.N.Y. J an. 18, 20 11), aff'd, 426 F. App'x 38 (2d Cir. 20 11) (“The term s ‘m aterial,’ ‘workm anship,’ or ‘factory preparation,’ . . . refer to the m echanical process of im plem enting [a] design.”); Nelson v. Nissan N. Am ., Inc., No. CIV. 11-5712, 20 14 WL 7331922, at *3 (D.N.J . Dec. 19, 20 14) (choosing “to join the vast weight of authority [by] holding that a workm anship and m aterials warranty cannot encom pass a design defect claim .”); Pegg v. Nexus RVs LLC, No. 3:16-CV-783, 20 19 WL 2772444, at *8 (N.D. Ind. J uly 2, 20 19) (sam e); Troup v. Toyota Motor Corp., 545 F. App’x 668, 668– 69 (9th Cir. 20 13) (sam e). The Court m ust then decide if the Piston Ringland Defect, as pled, is a design defect or one of m aterial and workm anship. In Coba, the court explained the difference between those types of defects as follows: [D]efects in “workm anship” and “m aterials” are flaws pertaining to the construction or m anufacture of a product, while defects in “design” are shortcom ings that arise in the plans for a product’s creation. More specifically, a “m aterials” defect is a failing in the quality of the actual substances used to m ake a product; a “workm anship” defect is a deficiency in the execution of a product’s assem bly or construction; and a “design” defect is a flaw inherent in the product’s intended operation and construction . . . Coba, 932 F.3d at 121. Here, Plaintiffs contend that they have sufficiently pled facts that the class vehicle defect, is covered under warranty as a m aterials and workm anship defect. The Com plaint alleges that “[c]lass vehicles are defective with respect to im properly designed and m anufactured pistons and an engine m anagem ent system and PCV (positive crankcase ventilation) system .” Com pl. ¶ 4. Plaintiffs also argue that their Com plaint supports a claim for a m anufacturing defect by claim ing “the class engine pistons should have been m anufactured differently by using forged pistons.” Pl. Opp. at 10 16; see Com pl. ¶ 5. Further allegations contained in the Com plaint claim that class engines were failing due to “m aterials, workm anship, m anufacture, or design defect.” Com pl. ¶ 44. Defendants argue that, in effect, Plaintiffs are “deliberately refusing” to identify the type of defect the Piston Ringland engine defect is, which Defendants insist is one of design. Def Brf. at 15. Defendants indicate that Plaintiffs’ pleading discusses the m odifications to the ECM program m ing and PCV system , both of which are issues of design and would constitute design defects. Additionally, Defendants stress that Plaintiffs criticize Defendants’ m aterial selections as causes for the engine defect, and such choices are design decisions. See Com pl. ¶¶ 5-7. At this stage, the Court is “required to accept as true all of the allegations in the com plaint and all reasonable inferences that can be drawn therefrom .” Morse v. Lower Merion Sch. Dist., 132 F.3d 90 2, 90 6 (3d Cir. 1997). Prior to discovery, som e courts have decided that “the distinction between defect in design and defect in m aterials or workm anship is a m atter of sem antics, and [when] sufficient facts are alleged to assert both, the defendant's characterization of the nature of the claim pre-discovery should not control whether the com plaint survives.” Alin v. Am . Honda Motor Co., No. CIV A 0 8-4825, 20 10 WL 137230 8, at *6 (D.N.J . Mar. 31, 20 10 ). In this case, Plaintiffs Com plaint concludes that the Piston Ringland Defect is one of design and m anufacture. However, even taking Plaintiffs’ allegations as true, their Com plaint fails to sufficiently plead facts supporting a m anufacturing defect or defect in “m aterials or workm anship.” Plaintiffs’ specifically claim that the class engine’s internal defect resulted from perform ance m odifications. According to the Com plaint, previous versions of the engine, “[t]he 2.0 liter and 2.5 liter high output class engine[,] share substantially 11 sim ilar piston ringland construction but are m anufactured differently. The earlier 2.0 liter STi engine had m ore durable forged pistons while class EJ and FA engines use m ore brittle cast pistons.” Com pl. ¶ 5 (em phasis added). Plaintiffs m ake clear that what caused the cast engine piston’s alleged durability issue, was the m aterial used in the casting. Therefore, as pled, the alleged defect in the class vehicles resulted from the type of m aterial used to case the engine pistons, which utilized a less expensive m anufacturing process. These issues present problem s in design, consistent with Plaintiffs’ allegation that the engines lacked internal m odifications to m eet their perform ance m odifications. Id. at ¶ 6.; see Coba, 932 F.3d at 123 (finding that a fuel tank defect, as alleged by plaintiff, was a design defect, noting that the problem was defendant’s “plan to use [certain] coatings . . . in constructing its fuel tanks”). There are no facts alleged to suggest that the Piston Ringlands were defective because the engine departed from its intended design. Instead, as Defendants point out, Plaintiffs criticize the m aterials and type of process chosen to m anufacture the alleged defective parts of the class vehicle. Such criticism fails to allege a problem in the process of constructing the engine, rather it alleges a flaw in the overall intended construction (a design decision).2 See Id. at 121. 2 Plaintiffs’ argue in their opposition brief that “it can reasonably be inferred that the piston casting process was flawed including tem perature regulation and/ or other m anufacture anom alies resulting in overly porous or brittle pistons.” Pl. Op. 16. Plaintiffs cite paragraphs 5 and 6 in their com plaint as supporting such an inference. The Com plaint, however, forgoes this inference. Those allegations in the com plaint are analyzed above and state that certain “perform ance m odifications in m any applications nearly doubled the horsepower for WRX and WRX STi engines over the standard base 2.5 liter and 2.0 engines. Although the perform ance m odifications created substantially increased power output, class engines did not include necessary internal m odifications to prevent dam age to the piston ringlands.” Paragraph 6 adds that “piston ringland durability was caused by casting the class engine pistons from hypereutectic alum inum silicon (Al-Si) alloy” and Al-Si selection results in m ore brittle piston ringlands. 12 Finally, Plaintiffs’ opposition does not address its allegations regarding an inadequate PCV or engine m anagem ent system . In fact, Plaintiffs’ Com plaint does not provide any factual assertions as to why the engine m anagem ent system contributed to the engine failures and alleges only that the defendants “experim ented with different PCV system configurations.” Therefore, at this tim e, the Court finds that Plaintiffs fail to state a claim for breach of express warranty, thus the Court will dism iss Count I.3 B. COU N T II: Bre ach o f Im p lie d W arran ty o f Me rch an tability Count II of Plaintiffs’ Com plaint alleges that Defendants breached the im plied warranty of Merchantability under UCC § 2-314. First, Defendants argue that Plaintiffs’ claim , with respect to Plaintiffs Am ato and Moore, fails “because any im plied warranty to which Plaintiffs were entitled was lim ited in duration to the sam e extent as the express written Lim ited Powertrain Warranty.” Defendants argue that Am ato and Moore’s class vehicles perform ed as warranted during the Lim ited Warranty period, and thus are precluded from a claim for breach of im plied warranty. Notwithstanding, Plaintiffs argue that they assert valid implied warranty claim s for two reasons: (1) because the prem ature ringlands failure and degradation in their class vehicles com m enced within the Lim ited Warranty period, and (3) the Lim ited Warranty’s durational lim its were unconscionable. Here, the Lim ited Warranty issued by SoA in turn lim its any im plied warranties available to Plaintiffs. The warranty states: 3 The Court is not ruling that the defect in question is in fact a design defect, rather, as pled, Plaintiffs have not sufficiently stated otherwise. Additionally, because the Court finds that Plaintiffs’ Count I, breach of express warranty fails entirely on this basis, it need not address Defendants’ argum ent that Plaintiff’s breach of express warranty claim m ust be dism issed against Defendant SBR because SBR was not a party to the express written warranties. 13 THESE WARRANTIES ARE IN LIEU OF ALL OTHER OBLIGATIONS, LIBILITIES, OR WARANTIES, WHETHER EXPRESS OR IMPLIED. ANY IMPLIED WARRNATIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE END AT THE SAME TIME COVERAGE ON THE PARTCULAR COMPONENT ENDS. Therefore, the im plied warranty of m erchantability is expressly lim ited to the sam e duration as the express Lim ited Warranty that Plaintiffs’ received, which expired after 5 years or 60 ,0 0 0 m iles, whichever occurred first. The im plied warranty of m erchantability warrants that a consum er good is “fit for the ordinary purposes for which such goods are used.” U.C.C. § 2– 314(2)(c).4 Under U.C.C. § 2– 316 contracting parties are perm itted to m odify the im plied warranty of m erchantability; in relevant part, the UCC states: Subject to subsection (3), to exclude or m odify the im plied warranty of m erchantability or any part of it the language m ust m ention m erchantability and in case of writing m ust be conspicuous . . . U.C.C. § 2– 316(2); see also Dem orato v. Carver Boat Corps., No. CIV.A.0 6 240 J AP, 20 0 7 WL 145620 7, at *6 (D.N.J . May 16, 20 0 7), aff'd sub nom ., 30 4 F. App'x 10 0 (3d Cir. 20 0 8). Here, there is no dispute as to whether the express warranty’s lim itation of im plied warranties is proper, nor do the Plaintiffs’ contest that Am ato and Moore experienced engine failure after 60 ,0 0 0 m iles—post warranty expiration. Instead, Plaintiffs argue that “[a]lthough their respective vehicles’ engine failures occurred outside the unilateral express warranty period,” a claim for breach of warranty m ay survive because “the proposed class representatives’ class vehicle exhibited unm istakable sym ptom s (known only by the defendants) of degradation and im pending 4 Each of the relevant states here have adopted the UCC and, particularly, the pertinent section on im plied warranties. See AZ Rev Stat § 47-2A212; Ind. Code Ann. § 26-1-2-314; N.J .S.A. § 12A:2– 314(2)(c); N.Y. U.C.C. Law § 2-A-212. No choice of law analysis is required for this first argum ent. 14 prem ature failure within the express warranty period.” See Com pl. ¶ 57; Pl. Op. at 18. Plaintiffs’ cite no legal authority for their proposition. To be sure, Plaintiffs’ do not plead what these sym ptom s were or that they brought any such sym ptom s to the attention of SoA for repair or otherwise. In that regard, Plaintiffs allege that the sym ptom s were “known only by defendants,” which Plaintiffs could not recognize for lack of requisite expertise. Com pl. ¶¶ 57, 59. Therefore, the crux of Plaintiffs position—that the prem ature failure began within the warranty period—rests on their contention that only Defendants could recognize and, in fact have knowledge, of the im pending failure. In other words, Plaintiffs’ reason that because the class vehicle contained a latent defect, they should be able to assert breach of warranty claim s. That fact, alone, cannot revive Plaintiffs’ claim for breach of im plied warranty, when the breach occurred outside of the warranty period. As an initial m atter, courts have found that “latent defects discovered after the term of the warranty are not actionable.” Dewey v. Volkswagen AG, 558 F. Supp. 2d 50 5, 519 (D.N.J . 20 0 8) (quoting Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 616 (3d Cir. 1995)). However, “[w]here the alleged breach regards a latent defect that m anifests outside the period covered by the warranty, a plaintiff m ay som etim es state a claim if he alleges that the warranty was unconscionable.” Skeen v. BMW of N. Am ., LLC, No. 2:13-CV-1531-WHW-CLW, 20 14 WL 283628, at *12 (D.N.J . J an. 24, 20 14). Plaintiffs’ second argum ent alleges just that. They contend that Defendant SoA’s Lim ited Warranty is unconscionable, and therefore unenforceable. Accordingly, the Court will now address whether Plaintiffs bring a valid claim for breach of the im plied warranty of m erchantability provided that the warranty’s durational lim itation, established by the express warranty, is unconscionable. 15 Uniform Com m ercial Code Section 2-30 2 governs unconscionability and was adopted by the four states involved in this m atter. 5 Under that Section the “basic test” for unconscionability is “whether, in light of the general com m ercial background and the com m ercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circum stances existing at the tim e of the m aking of the contract.” U.C.C. § 2– 30 2. Generally, Plaintiff is required to allege facts to state a plausible claim that the contract was both procedurally and substantively unconscionable . Skeen, 20 14 WL 283628, at *14 (D.N.J . J an. 24, 20 14); Menchhofer v. Honeywell, Inc., No. IP99-1674, 20 0 2 WL 24454, at *4 (S.D. Ind. J an. 7, 20 0 2); Gillm an v. Chase Manhattan Bank, N.A., 534 N.E.2d 824, 828 (N.Y. 1988); Sw. Pet Prod., Inc. v. Koch Indus., Inc., 10 7 F. Supp. 2d 110 8, 1113 (D. Ariz. 20 0 0 ). In analyzing procedural unconscionability, courts look to the circum stance surrounding the form ation of the contract. In re Caterpillar, Inc., C13 & C15 Engine Prod. Liab. Litig., No. 1:14-CV-3722, 20 15 WL 4591236, at *20 (D.N.J . J uly 29, 20 15). “Procedural unconscionability includes, am ong other things, various inadequacies like age, literacy, and lack of sophistication.” Travelodge Hotels, Inc. v. Honeysuckle Enterprises, Inc., 357 F. Supp. 2d 788, 80 1 (D.N.J . 20 0 5) (citations om itted). “Substantive unconscionability describes an exchange of prom ises that is so one-sided as to “shock the conscience of the court.” Id.; Skeen at 20 14 WL 283628 at *13. 5 See N.J .S.A. 12A:2-30 2; N.Y. U.C.C. Law § 2-30 2; IC 26-1-2-30 2; A.R.S. § 47-230 2; see Dewey v. Volkswagen AG, 558 F. Supp. 2d 50 5, 518 (D.N.J . 20 0 8) (“Because the relevant UCC section is the sam e in all three states, there is no ‘conflict’ under New J ersey's ‘governm ental interest’ test. The Court m ay therefore proceed to consider the relevant UCC section without undertaking a detailed conflict-of-law analysis.”). 16 First, Defendants argue that the duration of the Lim ited Warranty is not inherently unconscionable or unreasonable citing a num ber of cases upholding warranties of shorter duration than SoA’s warranty in this case. See Merkin v. Honda N. Am ., Inc., No. 17CV0 3625PGSDEA, 20 17 WL 530 9623, at *4 (D.N.J . Nov. 13, 20 17); In re Caterpillar, Inc., 20 15 WL 4591236, at *20 (noting that the warranty’s term s, “lim iting the covered defects to m aterial and workm anship and setting a durational lim it of two years, are not categorically unconscionable”).6 Conversely, Plaintiffs argue that courts in this district have perm itted claim s for unconscionability to survive a m otion to dism iss based on sim ilar warranties. See Skeen, at *1 (holding that the plaintiff sufficiently pled that an express warranty, lim ited to a duration of 48 m onths or 50 ,0 0 0 m iles, whichever occurred first, was unconscionable); see also In re VW tim ing Chain Litig. at *11-12. There is no question that this district is divided, particularly with regard to whether a defendant’s knowledge that a product was defective when sold will suffice to allow a claim that a warranty’s durational lim itations are unconscionable. On the one end, this district has “held that a m anufacturer's knowledge that a part m ay ultim ately fail does not, alone, m ake a tim e/ m ileage lim itation unconscionable.” Merkin v. Honda N. Am ., Inc., No. 17CV0 3625PGSDEA, 20 17 WL 530 9623, at *5 (D.N.J . Nov. 13, 20 17) (citing Henderson v. Volvo Cars of N. Am . LLC, No. 0 9-4146, 20 10 WL 2925913 (D.N.J . J uly 21, 20 10 )). The court in In re Caterpillar described the “[t]wo lines of cases [that] have em erged” and explained that cases 6 Defendants also cite: Sm ith v. Ford Motor Co., 462 F. App’x 660 , 663 (9th Cir. 20 11) (finding three-year/ 36,0 0 0 m ile warranty not unconscionable); Garcia v. Chrysler Grp. LLC, 127 F. Supp. 3d 212, 228 (S.D.N.Y. 20 15) (rejecting conclusory allegations that three-year durational lim it of warranty was unconscionable); Popham , 20 16 U.S. Dist. LEXIS 1270 93, at *18 (N.D. Ind. Sep. 19, 20 16) (finding the RV’s one-year lim ited warranty was not unconscionable). 17 “rejecting conclusory allegations of unconscionability based on knowledge of a latent defect, represents the recent trend in this District and is consistent with the prevailing approach elsewhere.” Id. at *21 (collecting cases). Conversely, the other line of cases hold that durational lim itations in a warranty m ay be unconscionable “where the plaintiff has alleged that the m anufacturer has knowingly m anipulated the warranty term s to avoid coverage.” Merkin, 20 17 WL 530 9623, at *5 (citing In re VW, 20 17 WL 190 2160 , at *13; Skeen, 20 14 WL 283628, at *14). Here, Plaintiffs’ argum ent stresses that the Lim ited Warranty was substantively unconscionable because it “unfairly” shifted costs of prem ature engine failure to class vehicle purchasers. According to the Com plaint, “defendants acted to conceal the Piston Ringland Defect during the warranty period so that repair costs would be shifted . . . once the warranty expired and the class engine failed.” Com pl. ¶69.7 Plaintiffs contend that “Subaru unfairly form ulated the warranty term s,” and that such term s are “oppressive, unreasonable, [and] unconscionable” especially given the “incorrect m aintenance recom mendations.” Pl. Op. at 13. The Com plaint further alleges that the duration of the warranty was procedurally unconscionable because of: the disparity in bargaining power of the parties, the purchasers’ lack of knowledge that class vehicles contained the Piston Ringland Defect, the inability of class vehicle purchasers or lessees to bargain with the defendants to increase durational warranties . . . lack of m eaningful alternatives, disparity in sophistication of the parties . . . [and] absence of effective warranty com petition . . . Com pl. ¶ 80 . 7 See also ¶ 80 (claim ing unfair term s in the warranty included “durational warranties that unfairly favored the defendants particularly where there were class vehicle defects known only to the defendants and the warranty unfairly shifted repair costs to consum ers when class vehicles’ engines prem aturely fail.”). 18 The Court finds that Plaintiffs’ pleadings, alleging both substantive and procedural unconscionability, consist of conclusory allegations and are therefore, insufficient to state a claim for unconscionability. In short, Plaintiffs in the present m atter plead that SoA’s Lim ited Warranty is substantively unconscionable because Defendants (1) knew about the Piston Ringland Defect prior sale of the class vehicle, (2) knew that the defect would arise after the warranty expiration, and (3) acted to conceal the Piston Ringland Defect. Plaintiffs’ allegations for substantive unconscionability are analogous to the num ber of decisions from this district and those of the other interested states, which held allegations prim arily based on defendant’s prior knowledge of the defect in question are insufficient to plead substantive unconscionability and survive a m otion to dism iss.8 Like here, Alban v. BMW of N. Am ., No. CIV. 0 9-5398, 20 11 WL 90 0 114, at *8 (D.N.J . Mar. 15, 20 11) (finding Plaintiff’s allegations insufficient to state a claim for un conscionability where Plaintiff’s com plaint pled that at the tim e he purchased his vehicle, BMW “(1) knew of the defect in the sound insulation, (2) knew that the defect would not becom e apparent until after the 4 year/ 50 ,0 0 0 m ile period had passed, and (3) as a result, concealed m aterial inform ation that prevented [him ] from bargaining for a warranty that would cover the known defect.” (internal quotations om itted)); Gotthelf v. Toyota Motor Sales, U.S.A., Inc., No. CIV.A. 11-4429, 20 12 WL 157430 1, at *20 (D.N.J . May 3, 20 12), aff'd, 525 F. App'x 94 (3d Cir. 20 13) (determ ining that the plaintiff’s allegations were “alm ost identical” to those in Alban: “that Defendants knew of the defect, knew that the defect would not becom e apparent until after the warranty expired, and that they concealed m aterial inform ation that prevented Plaintiff from bargaining for a warranty that would cover the known defect,” and holding that the plaintiff’s “breach of express warranty claim s as alleged cannot survive dism issal based on the facts stated regarding unconscionability”); In re Caterpillar, Inc., C13 & C15 Engine Prod. Liab. Litig., No. 1:14-CV3722 J BS-J S, 20 15 WL 4591236, at *22 (D.N.J . J uly 29, 20 15) (“[I]n the present action, the Court finds Plaintiffs’ allegations of unconscionability insufficient to alter the term s of the Engine Warranty. First, Plaintiffs have not alleged that Caterpillar knew of a defect which would m anifest for the first tim e beyond the warranty period. Plaintiffs allege instead that Caterpillar knew at the tim e of sale of an inherent defect in the em issions control system which was so pervasive that they could not have been surprised when purchasers experienced problem s and initiated warranty claim s im m ediately after the Engines hit the m arket.”); Majdipour v. J aguar Land Rover N. Am ., LLC, No. 2:12-CV-0 7849, 20 13 WL 5574626, at *20 (D.N.J . Oct. 9, 20 13)(“There is nothing substantively unconscionable about a 6 year/ 75,0 0 0 m ile warranty per se. The allegations that Land Rover knew that the Defect m ight m anifest after the express warranty term do not im plicate the conscionability of that term .” (citing Nelson, 894 F.Supp.2d at 565– 66)); Chiarelli v. Nissan N. Am ., Inc., No. 14-CV-4327, 20 15 WL 568650 7, at *7 8 19 Plaintiffs’ com plaint in both Alban and Gotthelf, alleged that their respective car m anufacturer’s warranty was unconscionable because of the m anufacture had knowledge that the defect existed at the tim e of sale, knowledge that the defect would m anifest outside of the warranty duration, and concealed certain inform ation that would prevent plaintiff’s from bargaining a better warranty. Alban v. BMW of N. Am ., No. CIV. 0 9-5398, 20 11 WL 90 0 114, at *8 (D.N.J . Mar. 15, 20 11); Gotthelf v. Toyota Motor Sales, U.S.A., Inc., No. CIV.A. 11-4429, 20 12 WL 157430 1, at *20 (D.N.J . May 3, 20 12). Those claim s were insufficient to state a claim that the warranties were substantively unconscionable. Additionally, the Court finds Nelson v. Nissan N. Am ., Inc, particularly persuasive. 894 F. Supp. 2d 558 (D.N.J . 20 12). The Nelson court also addressed the issue presented here; there, defendants allegedly knew of a defect that caused prem ature failure of the transm ission in the car at issue. The court held that the defendants 5 year/ 60 ,0 0 0 m ile warranty was not substantively unconscionable when plaintiff alleged defendants knew that the problem “would frequently m anifest just after the expiration of the warranty period, and that even when the [defect] m anifested before the expiration of the warranty period, Nissan dealerships could deny the existence of the problem until the warranty period expired.” Id. at 565. The Court finds no reason to depart from the num erous decisions in this district that reason nearly identical allegations pleaded in this m atter are insufficient to show unconscionability even at the m otion to dism iss stage. Most recently, a Court in this district noted “[a]s a m anufacturer, Defendant is within its right to create a lim ited (E.D.N.Y. Sept. 25, 20 15) (holding that plaintiff did not sufficiently plead a claim that defendant’s warranty was unconscionable, citing to New J ersey District Court cases, finding Alban particularly persuasive). 20 rem edy that m inim izes its costs and obligation s based on its prediction of the rate of failure of particular parts.” Argabright v. Rheem Mfg. Co., 20 1 F. Supp. 3d 578, 597 (D.N.J . 20 16) (agreeing with the m any cases discussed here in holding that plaintiffs failed to state a claim for substantive unconscionability despite pleading defendants knew of the defect at the tim e of sale and m anipulated its warranty). This Court agrees. The line of cases ruling in Plaintiffs favor—finding sim ilar allegations sufficient to state a claim that a warranty’s duration lim itations were unconscionable—are distinguishable. Those courts recognized that generally, the allegation that defendants knew of the defect is not itself sufficient to survive a m otion to dism iss. However, alleging such facts in conjunction with procedural unconscionability m ay suffice to plead a claim . See Henderson, 20 10 WL 2925913, at *9, *9 n.6 (perm itting plaintiff’s unconscionability claim to proceed because in addition to alleging defendant’s knowledge of latent defect, plaintiff asserted that “m em bers of the Class had no m eaningful choice in determ ining those tim e lim itations” and “a gross disparity in bargaining power existed as between Sam sung”). Although Plaintiffs have pled procedural unconscionability, the facts alleged in the Com plaint are conclusory and insufficient to perm it Plaintiffs’ unconscionability claim to proceed. The Court recognizes that the Skeen court ruled it was not conclusory for plaintiff to allege that as a consum er purchasing a car, he had less bargaining power than the m anufacturer and had “no m eaningful choice in setting the term s of the warranty.” Skeen, 20 14 WL 283628, at *14 (D.N.J . J an. 24, 20 14) (agreeing with Henderson’s analysis). However, the Third Circuit has stated: Although car purchasers—whether ordinary consum ers or businesses—m ay be unable to negotiate the specific details of their autom obile warranties, or m ay be able to select am ong only lim ited options, purchasers certainly do 21 not lack bargaining power. Purchasers have the freedom to chose[sic] a less expensive car with a lim ited warranty or a m ore expensive car with a longerterm warranty, and they often have the option of buying an extended warranty. Werwinski v. Ford Motor Co., 286 F.3d 661, 673 (3d Cir. 20 0 2); see also Sm ith v. Ford Motor Co., 462 F. App'x 660 , 663– 64 (9th Cir. 20 11) (“[P]laintiff was presented with a m eaningful choice, not just the option of purchasing a different vehicle from a different m anufacturer, but also the option of purchasing a different warranty with an extended durational lim it from Ford.”). Here, Plaintiffs’ allegations are alm ost identical to those alleged in Skeen, but also in the cases already aforem entioned. Given the Third Circuit’s analysis in Werwinski, and the fact that here, the Com plaint lacks any supporting facts as to their choices and bargaining power, the Court finds Plaintiffs’ allegations that Subaru’s warranty is procedurally unconscionable are “bare” conclusory statem ents that fail to state a claim under the Iqbal/ Twom bly standard. See Alban, 20 11 WL 90 0 114, at *9 (“[Plaintiff’s] bare-bones allegations that he “had no m eaningful choice in determ ining” the tim e and m ileage lim itation, and that “a gross disparity in bargaining power existed between” him and BMW are “no m ore than conclusions [that] are not entitled to the assum ption of truth.” (citations om itted)); In re Caterpillar, 20 15 WL 4591236, at *22 (finding the sam e allegations “offered in support of procedural unconscionability are entirely conclusory”). Therefore, Plaintiffs’ have not stated a claim that the Lim ited Warranty is unconscionable. Accordingly, Plaintiffs Am ato and Moore’s claim s for breach of im plied warranty m ust be dism issed as they are untim ely because each Plaintiff’s engine allegedly failed outside of the applicable warranty period. Having found that Plaintiffs fail to state a claim for unconscionability, the Court will address Defendants next argum ent, that Plaintiffs Sandoval and Lall’s im plied 22 warranty claim s fail for lack of requisite privity. As an initial m atter, Defendants assert that a conflict between New York, Indiana, and Arizona law and New J ersey law exists as to im plied warranties because New York, Indiana, and Arizona require a plaintiff to show vertical privity whereas New J ersey has no such requirem ent. In that regard, Defendants assert that each Plaintiff’s hom e state law should govern their im plied breach of warranty claim s, and therefore, to the extent those claim s are alleged under New J ersey law, they should be dism issed. 9 “While courts in this district have, in certain circum stances, found choice-of-law analyses prem ature at the m otion-to-dism iss stage, they have done so where either (i) the defendant failed to explain why there was a conflict between the laws of different relevant jurisdictions, or (ii) key facts relevant to a choice-of-law analysis were not available.” Kearney v. Bayerische Motoren Werke Aktiengesellschaft, No. CV1713544, 20 18 WL 4144683, at *4 (D.N.J . Aug. 29, 20 18). Here, Defendants explained and argued an existing conflict of law between states. Therefore, it is appropriate for the Court to begin an analysis, and if it finds that “no other facts are needed,” then the Court m ay decide which jurisdiction's law should apply. Montich v. Miele USA, Inc., 849 F. Supp. 2d 439, 453 (D.N.J . 20 12). “New J ersey has a flexible governm ental-interest approach to resolving choice of law questions that ‘requires application of the law of the state with the greatest interest in resolving the particular issue. . . .”’ Lebegern v. Form an, 471 F.3d 424, 428 (3d Cir. 20 0 6) (quoting Gantes v. Kason Corp., 679 A.2d 10 6, 10 9 (N.J . 1996)). The test requires 9 Plaintiff Moore’s claim will be dism issed because his class vehicle experienced engine failure outside of the Lim ited Warranty period as stated above. Accordingly, the Court will not address whether his claim fails for lack of privity, thus Indiana’s warranty law need not be evaluated. 23 two steps. At the first step, the court m ust determ ine whether an actual conflict exists. Id. Each of the relevant jurisdictions in this case have adopted the UCC. Consequently, each states’ uniform code on im plied warranties m irror one another. There is, however, a difference in how each state analyzes im plied warranty claim s with respect to the issue of privity, which Plaintiff concedes. Under New York and Arizona law, a plaintiff m ust show privity of contract to state a claim for breach of im plied warranty, while a plaintiff under New J ersey law need not. Cf. Spring Motors Distributors, Inc. v. Ford Motor Co., 489 A.2d 660 , 663 (N.J . 1985) (holding that “the buyer need not establish privity with the rem ote supplier to m aintain an action for breach of express or im plied warranties”); Lexow & J enkins, P.C. v. Hertz Com m ercial Leasing Corp., 50 4 N.Y.S.2d 192, 193-94 (N.Y. App. Div. 1986) (“[N]o im plied warranty will extend from a m anufacturer to a rem ote purchaser not in privity with the m anufacturer where only econom ic loss and not personal injury is alleged.”); Plagens v. Nat'l RV Holdings, 328 F. Supp. 2d 10 68, 10 73 (D. Ariz. 20 0 4) (“Arizona courts have consistently held that absent privity of contract, a purchaser cannot m aintain a claim for breach of im plied warranty under the U.C.C. against a m anufacturer.”); Chaurasia v. Gen'l Motors Corp., 126 P.3d 165, 171 (Ariz. Ct. App. 20 0 6) (“Under Arizona law, privity of contract is required to m aintain an action for breach of an im plied warranty.”). Therefore, Defendants correctly assert that there is a conflict of law as to Plaintiffs’ Count II. Where the court finds an actual conflict of laws exists it proceeds to step two, at which point it “m ust determ ine which jurisdiction has the ‘m ost significant relationship to the claim .”’ Skeen, 20 14 WL 283628, at *3 (quoting P.V. ex rel. T.V. v. Cam p J aycee, 962 A.2d 453, 460 (N.J . 20 0 8)). Such an analysis “relies on factors outlined in the Restatem ent (Second) of Conflict of Laws and varies depending on the nature of the 24 claim .” Id. Contract claim s, like those present here, rely on Restatem ent Section 188. Id. That section states: “The rights and duties of the parties with respect to an issue in contract are determ ined by the local law of the state which, with respect to that issue, has the m ost significant relationship to the transaction and the parties under the principles stated in § 6.” See Restatem ent (Second) of Conflict of laws § 188. The general principles in Restatem ent § 6, provide a relevant foundation in any conflict’s analysis. The New J ersey Suprem e Court has stated that, “[r]educed to their essence, the section 6 principles are: ‘(1) the interests of interstate com ity; (2) the interests of the parties; (3) the interests underlying the field of . . . law; (4) the interests of judicial adm inistration; and (5) the com peting interests of the states.”’ Cam p J aycee, 962 A.2d at 463 (quoting Erny v. Estate of Merola, 792 A.2d 120 8, 1217 (N.J . 20 0 2)). Additionally, § 188 further calls for the following contacts to be considered in determ ining the law applicable where the parties to the contract have not chosen a governing law: (a) place of contracting; (b) place of negotiation of the contract; (c) place of perform ance; (d) location of the subject of the contract; and (e) dom icile, residence, nationality, place of incorporation and place of business of the parties. With lim ited exception, the Restatem ent also provides that “If the place of negotiating the contract and the place of perform ance are in the sam e state, the local law of this state will usually be applied.” Id. § 188. Considering the factors involved at this step, the court is satisfied that the Com plaint alleges the facts required to conduct the choice of law analysis at this stage. In addition, Plaintiffs’ do not provide what other relevant facts, if any, would arise with further developm ent of this case and therefore, the Court finds that a choice of law analysis is appropriate. 25 In light of all the relevant choice of law factors, the Court finds that each of Plaintiffs’ hom e states m aintain m ost significant relationship to the claim . Here, all Plaintiffs, including Moore, Lall and Sandoval negotiated contracts in connection with the purchase of their class vehicle in their hom e state. The Com plaint alleges that Plaintiff Lall purchased his class vehicle in New York, the state where he resides; and the work done on Lall’s vehicle also took place in New York. Finally, Plaintiff Sandoval purchased his class vehicle in Arizona, the state where he resides. Accordingly, each Plaintiff negotiated their contracts in their respective states. Aside from Plaintiff Am ato, the nam ed Plaintiffs have alm ost no connection to New J ersey. In fact, each Plaintiff’s hom e state was the (a) place of contracting; (b) place of negotiation of the contract; (c) place of perform ance; (d) location of the class vehicle; and (e) dom icile, or residence of the parties. Moreover, the general choice of law principles set forth in § 6 supports a finding that New York and Arizona have m ost significant relationship to the breach of warranty claim brought by a citizen of its state. According to the Third Circuit, “the interests of interstate com ity [the first factor of § 6] favor applying the law of the individual claim ant's own state. Applying New J ersey law to every potential out-of-state claim ant would frustrate the policies of each claim ant’s state.” Maniscalco v. Brother Int'l (USA) Corp., 70 9 F.3d 20 2, 20 9 (3d Cir. 20 13). Second, in a case such as this, where the only contacts between the out-of-state Plaintiffs and Subaru took place in their own states, the interest of the parties favors applying the law of that state. Id. at 210 (“applying South Carolina law: because the only contacts between the parties took place in South Carolina, it is reasonable to assum e that they expected that South Carolina law would apply”). Finally, the interest if Plaintiffs’ hom e states outweighs New J ersey’s interest considering “[e]ach plaintiff's 26 hom e state has an interest in protecting its consum ers from in-state injuries caused by foreign corporations and in delineating the scope of recovery for its citizens under its own laws.” Ford Motor Co. Ignition Switch Prod. Liab. Litig., In re, 174 F.R.D. 332, 348 (D.N.J . 1997) (“These interests arise by virtue of each state being the place in which plaintiffs reside, or the place in which plaintiffs bought and used their allegedly defective vehicles or the place where plaintiffs' alleged dam ages occurred.”). The Court finds that each Plaintiffs’ respective state’s law should apply to each of their im plied warranty claim s. Notwithstanding, the Court rejects Defendants’ assertion that Count II should be dism issed because of such finding. Count II of the com plaint specifically alleges breach of im plied warranty of m erchantability under uniform com m ercial code §2-314 “(on behalf of the nationwide class or, alternatively, the New J ersey, New York, Arizona and Indiana State Subclasses).” Pl. Com pl. Count II (em phasis added). Because Plaintiffs’ have pled Count II, in the alternative, as subclass claim s the Court will analyze each claim applying the law of that Plaintiff’s state. First, the Court will analyze Plaintiff Lall’s claim for breach of im plied warranty. As discussed, “[u]nder New York law, absent privity of contract, a purchaser cannot recover m ere econom ic loss against a m anufacturer under a theory of breach of im plied warranty.” Westchester County v. General Motors Corp., 555 F. Supp. 290 , 294 (S.D.N.Y. 1983); Hubbard v. General Motors Corp., 95– CV– 4362, 1996 WL 2740 18, at *5 (S.D.N.Y. May 22, 1996). But New York Law recognizes the following exceptions to that general privity requirem ent: (1) privity is not required where the product in question is a “thing of danger;” and (2) privity is satisfied where plaintiff is asserting the claim as a third-party beneficiary. Westchester County, 555 F. Supp. at 294. Plaintiffs’ argue that both exceptions to the privity rule apply to Lall’s claim , asserting that “[t]he 27 im plied warranty relates to a m otor vehicle (“a thing of danger”) and Plaintiffs were the intended beneficiary of Subaru’s warranties in transferring their vehicles to authorized Subaru dealerships for sale and benefit to purchasers.” Pl. Op. at 19. New York case law explains that the exception to the privity requirem ent for things of danger applies “at least where an article is of such a character that when used for the purpose for which it is m ade it is likely to be a source of danger to several or m any people if not properly designed and fashioned, the m anufacturer as well as the vendor is liable, for breach of law-im plied warranties, to the persons whose use is contem plated.” Goldberg v. Kollsm an Instrum ent Corp., 191 N.E.2d 81, 83 (N.Y. 1963). The Court agrees with Plaintiffs, in that Plaintiff Lall was not required to plead privity because his claim , as pled, m eets the “thing of danger” exception. Here, Plaintiffs have adequately pled that the class vehicle’s alleged defect has warranted the vehicles unsafe. According to the Com plaint: “The failures in the class engines due to the Piston Ringland Defect pose a serious safety issue while the vehicle is being operated since there is loss of engine power without warning and the loss of power-assisted steering and reduced braking caused by lack of engine vacuum if the engine stalls.” Com pl. ¶ 9. A m otor vehicle is intended to be driven. One that experiences loss of power, reduced braking, and “unexpected” engine shutdown poses a likely danger to the driver of that vehicle, and others on the road. Id. ¶ 77 n.16; Hubbard, 1996 WL 2740 18, at *5 (“[A] vehicle equipped with a defective braking system is likely to be a source of danger when driven.”). Accordingly, Plaintiffs’ sufficiently allege that class vehicles, when driven, pose a likely danger to som e or m any people. Furtherm ore, Plaintiff Lall, as “the purchaser of an autom obile is certainly a person whose use of the product is 28 contem plated by the m anufacturer.” Id. Therefore, he has stated a plausible claim against Defendants for breach of im plied warranty under New York law. Next, Plaintiff Sandoval’s claim for im plied breach of warranty should be analyzed under Arizona law. As previously m entioned, Arizona also requires privity before a plaintiff can bring a claim for breach of im plied warranty. Unlike New York, Arizona has not adopted the sam e exceptions to that requirem ent. See Reger v. Arizona RV Centers, LLC, No. 3:16-CV-778 J D, 20 17 WL 3593822, at *2 (N.D. Ind. Aug. 21, 20 17) (“In other words, Arizona law only provides for im plied warranties by the seller in a given transaction, not by other parties that m anufacture the goods being sold.” (citations om itted)). Plaintiffs’ do not contest the lack of privity between Plaintiff Sandoval and Defendants. Plaintiffs’ also do not contest Defendants’ second argum ent, that Plaintiff Sandoval’s claim further fails because his class vehicle is, in fact, m erchantable. See Pl. Op. (citing only New York law concerning the issue of privity and failing to address Defendants’ argum ent that Plaintiff Sandoval’s class vehicle is m erchantable.) Therefore, the Court will grant Defendants’ m otion as to Plaintiff Sandoval’s claim for breach of im plied warranty and will dism iss that claim with prejudice. Accordingly, as to Count II, the Court finds that three of the four nam ed Plaintiffs have failed to state a claim for im plied breach of warranty, and thus, the Court will grant Defendants’ Motion to Dism iss COUNT II of Plaintiffs’ Com plaint as to Plaintiffs Am ato, Moore, and Sandoval, but deny that m otion as to Plaintiff Lall. 29 C. COU N T III: Vio latio n o f Magn u s o n -Mo s s W arran ty Act Plaintiffs’ bring a claim under the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §2310 , for Defendants’ breach of the express and im plied warranties accom panying their class vehicles. Com pl. ¶¶ 156-58. Defendants argue that “Plaintiffs cannot pursue a warranty claim under the MMWA without looking to the underlying state law governing such claim s.” Def. Brf. at 9. The Court agrees; each Plaintiffs’ hom estate law governs their MMWA claim s. The MMWA provides that “a consum er who is dam aged by the failure of a supplier, warrantor, or service contractor to com ply with any obligation under this chapter, or under a written warranty, im plied warranty, or service contract, m ay bring suit for dam ages and other legal and equitable relief.” 15 U.S.C.A. § 2310 . The Court has already ruled that no Plaintiff has stated a claim for breach of express warranty (Count I) and only Plaintiff Lall has stated a claim for breach of im plied warranty (Count II). Given that claim s brought under the MMWA rely on the underlying state law claim s, Plaintiffs cannot sustain a MMWA claim against Defendants based on breach of express warranty. See J ohansson v. Cent. Garden & Pet Co., 80 4 F. Supp. 2d 257, 265 (D.N.J . 20 11). Sim ilarly, Plaintiffs Am ato, Moore, and Sandoval cannot m aintain a claim under the MMWA for breach of im plied warranty, as their Com plaint fails, under relevant state law, to state a claim for such. However, Plaintiff Lall states a plausible claim for breach of im plied warranty under New York law, therefore, his MMWA claim will survive. See DeFillippo v. Whirlpool Corp., No. 118CV12523NLHAMD, 20 19 WL 4127162, at *14 (D.N.J . Aug. 30 , 20 19) (finding that because plaintiffs pled viable state law claim s for express and im plied warranty claim s, “their MMWA claim s m ay proceed as well”). Count III, therefore, is dism issed as to all nam ed Plaintiffs’, excluding Plaintiff Lall. 30 D . Plain tiffs ’ Co n s u m e r Frau d Claim s Defendants argue that all Plaintiffs’ statutory fraud claim s, brought under the relevant states’ consum er fraud statutes, fail to state a claim because the pleadings lack the particularity required by Fed. R. Civ. Pro. 9(b).10 Defendants contend that Plaintiffs’ Com plaint falls short of the heighted pleading standard because it contains generalized om issions and unidentified affirm ative m isrepresentations. Rule 9(b) requires that plaintiff plead the details of the alleged “circum stances” of the fraud with specificity sufficient to “place defendants on notice of the precise m isconduct with which they are charged.” Seville Indus. Mach. Corp. v. Southm ost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). To that end, “[a]lthough the rule states that [m ]alice, intent, knowledge, and other conditions of a person's m ind m ay be alleged generally, and does not require the plaintiff to plead every m aterial detail of the fraud, the plaintiff m ust use alternative m eans of injecting precision and som e m easure of substantiation into their allegations of fraud.” Argabright v. Rheem Mfg. Co., 20 1 F. Supp. 3d 578, 590 – 91 (D.N.J . 20 16) (quoting In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir. 20 0 2) (internal quotations and citations om itted)). At a m inim um , a plaintiff “m ust allege who m ade a m isrepresentation to whom and the general content of the m isrepresentation.” Lum v. Bank of Am . ., 361 F.3d 217, 224 (3d Cir. 20 0 4). 10 Despite Defendants initial argum ent that each Plaintiffs’ fraud claim s are subject to Rule 9(b) pleading standard, New York Law does not require a heighted pleading standard for claim s under § 349 of the New York General Business Law. Plaintiff Lall’s claim under that statue will be addressed separately below. Arizona, Indiana, and New J ersey do require a heightened pleadings standard as suggested by the Defendants. See Frederico v. Hom e Depot, 50 7 F.3d 188, 20 0 (3d Cir. 20 0 7); J ones v. Bridgepoint Educ., Inc., 20 17 U.S. Dist. LEXIS 8620 4, at *11 (N.D. Ind. J une 5, 20 17; Curry v. Stillwater Ins. Co., 20 15 U.S. Dist. LEXIS 1798 33, at *5 (D. Ariz. Feb. 6, 20 15). 31 Under Arizona, Indiana, New J ersey, and New York Law, “[f]alse prom ises, m isrepresentations, and concealm ent or om ission of m aterial facts all constitute deceptive practices.” Argabright, 20 1 F. Supp. 3d at 60 5– 0 6 (analyzing the NJ CFA, NYGBL § 349, and A.R.S. § 44– 1522(A)); see also Ind. Code Ann. § 24-5-0 .5-3. Plaintiffs have pled that Defendants engaged in unlawful conduct through both m isrepresentations and om issions. The Defendants allege plaintiffs have failed to establish either. a. Affirm ative Misrepresentations With respect to affirm ative m isrepresentations, Plaintiffs’ Com plaint alleges that Defendants m ade m isrepresentations in their Owner’s Manual and Warranty & Maintenance Booklet m aterials accom panying class vehicles, which “incorporated incorrect engine service, m aintenance and critical system s replacem ent recom m endations” Com pl. ¶¶ 10 , 10 0 . It alleges that Plaintiffs’ had “an independent and legitim ate consum er expectation that the class vehicle would last well in excess of 10 years and 120 ,0 0 0 m iles before requiring any m ajor engine repairs based on industry standards, the defendants’ publications, com petitor products, consum er product m agazines prior vehicle ownership and reputation of the defendants for m anufacturing durable quality vehicles.” Id. ¶ 148. Defendants argue that, still, the “Com plaint pleads no actual statem ent, by any actual person, at any actual tim e.” According to the Com plaint, however, “defendants (and particularly the sales and m arketing executives at SoA) advertised and otherwise created the reasonable expectation (including but not lim ited to scheduled class engine m aintenance recom m endations) that class vehicles would last over 120 ,0 0 0 m iles or ten years before experiencing engine failure.” Id. ¶ 73. Plaintiffs’ further allege that Defendants’ Owner’s 32 Manual and Warranty & Maintenance Booklet m aterials contain m aintenance schedules that extend to 120 ,0 0 0 m iles, but “no scheduled m aintenance or replacem ent” recom m endations for the class engine or its in ternal com ponents at issue. Id. ¶ 10 n.8. Second, Plaintiffs’ plead that they were subjected to m isrepresentations “prior to” and “at the tim e of sale” of their class vehicles, wherein Subaru vehicle dealers referenced publications including the Owner’s Manual and Warranty & Maintenance Booklet m aterials, which “created a reasonable belief that the useful life expectancy of the engine in the class vehicles without a m ajor failure was in excess of 120 ,0 0 0 m iles” Com pl. ¶ 61. Particularly, Plaintiffs’ claim that “these representations specifically related that the class engine’s piston m aintenance consisted of following instructions for recom m ended engine oil and change interval.” Id. Plaintiffs’ further allege that despite these representations “class engines in class vehicles often fail at less than 50 % of their reasonably expected useful life.” Id. at ¶ 10 . The Court finds that Plaintiffs’ sufficiently allege the general content of the m isrepresentation, who m ade the m isrepresentation, where it was m ade, and when Plaintiffs were exposed to that m isrepresentation. The Court is therefore satisfied that Plaintiffs’ Com plaint “sufficiently place Defendant on notice regarding the specific m isconduct that Plaintiffs' assert was fraudulent and deceptive in connection with the statutory fraud [claim ].” In re Volkswagen Tim ing Chain, 20 17 WL 190 2160 , at *23 (finding plaintiffs sufficiently pleaded statutory fraud claim s, where plaintiffs alleged “how they were supposedly m isled about the defective Tim ing Chain System , along with m isrepresentations by Defendant regarding . . . the useful life of the vehicle and its engine components, as well as the necessary m aintenance and repairs associated with the Class Vehicle.”). 33 a) Om issions “Although allegations of fraud m ust m eet the heightened pleading standards of Rule 9(b), plaintiffs pleading a fraud by om ission claim are not required to plead fraud as precisely as they would for a false representation claim .” Feldm an v. Mercedes-Benz USA, LLC, No. 2:11-CV-0 0 984, 20 12 WL 6596830 , at *10 (D.N.J . Dec. 18, 20 12) (citing Falk v. Gen. Motors Corp., 496 F. Supp. 2d 10 88, 10 98– 99 (N.D.Cal. 20 0 7)). Defendants argue that Plaintiffs fail to plead any facts that sufficiently allege Defendants’ fraudulently om itted to disclose m aterial facts in connection with the existence of the class engine defects. Again, the Court disagrees. First, Defendants argue that the Com plaint fails to allege actual knowledge by anyone at Subaru. Plaintiffs’ Com plaint, however, sufficiently alleges Defendants presale knowledge of the alleged defect. As Plaintiffs’ point out, the Com plaint alleges the following facts: (1) com plaints on record with the National Highway Traffic Safety Adm inistration (NHTSA) dem onstrate the engine defect, concerning ringland failure; (2) consum er com plaints, which Defendants are required to m onitor under TREAD Act; and (3) Defendants’ redesign and/ or m anufacturing change to the class engines. Com pl. ¶¶ 33, 48, 52. Defendants’ contest that such allegations can show Defendants’ knowledge of any defect. For exam ple, Defendants’ stress that the NHTSA com plaints were not m ade to Subaru and refer to earlier m odels, not included in the definition of class vehicle in this case. The NHTSA com plaints provided by Plaintiffs’ date from 20 0 9 to 20 10 and concern m odel years 20 0 8, 20 0 9, and 20 10 . To be sure, class vehicles, according to Plaintiffs, include Subaru’s 20 0 9 through and including 20 18 m odel year Im preza WRX and WRX STi, leaving the 20 0 8 m odel out. But class engines do include 20 0 8 m odels. Id. at ¶ 3. 34 Moreover, the NHTSA com plaints specifically state that the engine issues were reported to Subaru by way of warranty claim s, replacem ent, and one com plaint in 20 0 9 stated that the problem was “dealer diagnosed as Ringland/ piston failure.” See Com pl. at 14. The NHTSA com plaints, in effect, show reason for Defendants to know of the defect years prior to Plaintiffs’ purchases of the class vehicle and of an ongoing problem . To that extent, Plaintiffs further allege that Defendants’ were m onitoring NHTSA and re-designed the Class Engine com ponents and m anagem ent system . According to the com plaint, those m odifications were m ade in an effort to address the apparent problem with predecessor engines, “well known to Subaru.” Id. ¶¶ 34-35. “Those attem pted m odifications dem onstrate that there was a continuing problem with the EJ 255 and 257 engines since their introduction in early 20 0 0 and FA class engines introduced in 20 15 that has yet to be fully resolved.” Id. Additionally, Plaintiffs’ allege that in 20 18 Defendants issued a press release and advertisement concerning the 20 19 WRX STI, announcing that the m odel included a “retuned ECU and stronger pistons [that] contribute to the increased engine perform ance.” Id. at ¶ 36. According to the Com plaint, “[t]his adm ission confirm s that the WRX and WRX STi class engines had existing insufficient strength pistons because a m ere 1.6% increase in engine horse power wouldn’t require higher strength pistons given dynam ic factor of safety overload design considerations.” Id. Finally, Plaintiffs allege inter alia detailed allegations explaining Defendants field inspections, testing, and quality review protocol. Id. at ¶ 38-39.11 “Additional inform ation supporting 11 Defendants suggest that these are general allegations “about a car com pany’s business operations” and fail to im pute knowledge of the alleged defects on to Defendants. Def. Brf. at 3435 (citing Gotthelf v. Toyota Motor Sales, U.S.A., 525 F. App’x 94, 10 4 (3d Cir. 20 13)). This case is distinguishable from Gotthelf, in that Plaintiffs’ Com plaint further details how Subaru 35 allegations of fraud and fraudulent conduct is in the control of the defendants.” Id. at ¶ 71. Together, the factual allegations contained in the Com plaint support a reasonable inference that Subaru knew about the Piston Ringland Defect. Craftm atic Securities Litigation v. Kraftsow, 890 F.2d 628, 645 (3d Cir. 1989) (“Particularly in cases of corporate fraud, plaintiffs cannot be expected to have personal knowledge of the details of corporate internal affairs. Thus, courts have relaxed the rule when factual inform ation is peculiarly within the defendant’s knowledge or control.”). Despite Defendants’ next contention, that Plaintiffs have failed to establish “who at SoA or SBR supposedly knew about the alleged defect or when that knowledge supposedly cam e about,” the Com plaint states “knowledge is im puted to all defendants because SoA was m onitoring warranty claim s and class vehicles perform ance in the United States, and reporting back to its parent com pany located in J apan” and “the proposed class representatives and proposed class m em bers are entitled to the reasonable inference that the defendants’ sales, m arketing, engineering and warranty departm ents and their executives were involved in the om issions.” Id. at ¶ 111. The Com plaint also alleges that Defendants knew about the defect as early as 20 0 8, stating that SoA issued “an im m ediate stop sale order on April 7, 20 0 8 for 20 0 8-20 0 9 Subaru vehicles sold in the United States. The purpose of the stop sale was to allow Subaru and SoA to investigate ‘Engine Knocking Noise’ affecting the 2.5 liter engines after ‘[a]n internal investigation confirm [ed] an internal wear issue on the failed units.”’ Com pl. m onitors defects and the position of those responsible for certain protocol. In Gotthelf, the plaintiff provided “no factual support . . . he does not state when the alleged com plaints were received, or to whom at Toyota these alleged com plaints were sent. Nor does he provide any facts relating to the alleged books of knowledge, in ternal testing, or dealership repair orders. Id. at 10 4 (em phasis added). 36 n.3. Therefore, taking into consideration the totality of the factual allegations, Plaintiffs’ have pled Defendants knew of the alleged engine defect prior to the sale of class vehicles to Plaintiffs. Finally, Defendants argue plaintiffs fail to plead any fraudulent om issions. “A plaintiff who asserts a fraud claim based on om ission m ust ‘allege what the om issions were, the person responsible for failing to disclose the inform ation, the context of the om ission and the m anner in which it m isled plaintiff and what defendant obtained through the fraud.’” Henderson, 20 10 WL 2925913, at *5 (D.N.J . J uly 21, 20 10 ) (quoting In re Gen. Motors Corp. Anti-Lock Brake Prod. Liab. Litig., 966 F. Supp. 1525, 1536 (E.D. Mo. 1997), aff'd sub nom ., Briehl v. Gen. Motors Corp., 172 F.3d 623 (8th Cir. 1999)). With regard to Defendants’ particular om issions, Plaintiffs’ allege that they “failed to inform class vehicle owners and lessees prior to purchase or lease or during the express warranty period that their engine was defective as a result of the Piston Ringlands Defect and would fail shortly after the warranty period expired.” Com pl. ¶ 49. Additionally, “[a]t the tim e of purchase, the defendants fraudulently om itted to disclose m aterial m atter regarding the defects in class vehicles as described in this com plaint, including their im pact on future repairs, operating costs and vehicle reliability.” Id. at 10 8. Next, Plaintiffs’ allege that that “the defendants’ sales, m arketing, engineering and warranty departm ents and their executives were involved in the om issions,” and that the inform ation was concealed in order for Defendants to sell class vehicles. And if the proposed class knew of the alleged defect, they would not have purchased their vehicles or, if inform ed of the defect after purchase, could have had their class engines repaired during the warranty period. Id. at ¶¶ 112-113. Courts in this district have found sim ilar allegations were sufficient to withstand a m otion to dism iss. See, e.g., Dewey, 558 F. 37 Supp. 2d at 527 (finding the following allegations sufficient “Volkswagen did not fully and truthfully disclose to its custom ers the true nature of the inherent design defects, which were not readily discoverable until years later, often after the warranty has expired. As a result, Plaintiffs and the other Class Mem bers were fraudulently induced to lease and or purchase the Class Vehicles with the said design defects and all of the resultant problem s . . . .”). While the Com plaint could be m ore detailed, for exam ple, as to the responsibility of defendants in disclosing these om issions, this does not defeat their claim at this early stage. See Henderson, 20 10 WL 2925913, at *5 (upholding the plaintiffs’ statutory fraud claim despite finding “certain aspects of Plaintiffs' pleadings are sparse—e.g., what party should have disclosed the defect (Volvo or a dealer), how the disclosures should have been m ade, and to what types of consum er m ust the disclosures be m ade (new car purchasers or all purchasers)”). Having found that the Com plaint m eets Rule 9(b)’s pleading standard, the Court will now address Defendants’ argum ent’s pertaining to each individual nam ed Plaintiffs’ statutory consum er fraud claim . 1. COUNT IV: New Jersey Consum er Fraud Act Plaintiff Am ato brings a consum er fraud claim under the New J ersey Consum er Fraud Act. Defendants put forth a num ber of argum ents calling for the dism issal of Plaintiff Am ato’s Claim . As an initial m atter, Defendants point out that Plaintiff Am ato has not provided his current place of residence in the Com plaint before the Court. The Com plaint states that Plaintiff Am ato leased a 20 16 Im preza WRX STi from an authorized Pennsylvania Subaru dealer while residing in New J ersey. ¶ 14. Plaintiffs’ also concede that “[t]here were no Com plaint allegations as to what state law was applicable to the lease.” Pl. Op. 28. Accordingly, Defendants’ also argue that Am ato’s 38 claim m ust also be dism issed because he is not a part of the sub-class he purports to represent—persons who “purchased or leased their class vehicles in the State of New J ersey.” ¶24. The Court finds that these gaps in the pleadings warrant the dism issal of Plaintiff Am ato’s claim under the NJ CFA, as these facts are necessary to determ ine whether Am ato m ay properly bring a claim under the statute and whether he m ay do so on behalf of the alleged class. The Court disagrees with Defendants contention, however, that Am ato’s claim should be dism issed with prejudice, therefore Count IV is dism issed without prejudice, with leave to am end.12 2. COUNT V: The Indiana Deceptive Consum er Sales Act Plaintiff Moore brings his consum er fraud claim under the Indiana Deceptive Consum er Sales Act (“IDCA”). Defendants’ argum ent that Plaintiff Moore’s claim is tim e barred. Plaintiff Moore purchased a certified pre-owned 20 13 WRX (his class vehicle) in 20 15. Under the IDCSA: “Any action brought under this chapter m ay not be brought m ore than two (2) years after the occurrence of the deceptive act.” Ind. Code Ann. § 24- 12 Defendants’ argum ent is based on their contention that Plaintiff Am ato is precluded from bringing a NJ CFA claim because the alleged defect m anifested after the expiration of his express warranty. In m aking this argum ent, Defendants rely on Perkins v. Daim ler Chrysler Corp.; the Court finds this case distinguishable. Perkins did not address circum stances “in which safety concerns m ight be im plicated”—which is pleaded here, and thus, im plicated in this case. Perkins, 890 A.2d 997 at 10 0 4 (“Our determ ination is driven by the fact that, in this case, it was not alleged that the deterioration or failure of such a part represented a danger to others.”). Here, Plaintiffs go further by alleging that their class engines failed, that Defendants knew of the defect, and that such defect would cause prem ature engine failure, and that Defendants concealed that inform ation. See Maniscalco v. Brother Int'l Corp. (USA), 627 F. Supp. 2d 494, 50 1-0 2 (D.N.J . 20 0 9) (distinguishing Perkins from the facts in its case, on the basis that plaintiffs in Perkins did not allege defendant’s knowledge or concealm ent of the alleged defect, finding that Perkins “stands for the proposition that m erely alleging that the warranty is shorter than the industry standard useful life of the product does not state a claim under the CFA”); see also In re Gen. Motors LLC Ignition Switch Litig., 339 F. Supp. 3d 262, 283– 84 (S.D.N.Y. 20 18). 39 5-0 .5-5(b). Defendants argue that “his purchase occurred two years after any original representations about the vehicle were m ade, and m ore than two years have passed since any representations could have been m ade to him in connection with his purchase.” Fraudulent concealm ent, however, will toll the two-year statute of lim itations. Morgan v. Koch, 419 F.2d 993, 998 (7th Cir. 1969). Plaintiffs argue that their Com plaint alleges further deceptive post-sale acts of Subaru that “reset the IDCSA lim itations period when Moore inquired into his engine failure.” Pl. Op. at 29. “Indiana law narrowly defines concealm ent. . . . [it] m ust be active and intentional; passive silence is insufficient to trigger the fraudulent concealm ent doctrine, absent allegations that the defendant was in a continuing fiduciary relationship with the plaintiff.” Tolen v. A.H. Robins Co., 570 F. Supp. 1146, 1151 (N.D. Ind. 1983) (citations om itted). Still, “[a]n exception to the affirm ative acts requirem ent exists where there is a fiduciary or confidential relationship giving rise to a duty to disclose m aterial inform ation between the parties.” Id. at 1152. Plaintiffs’ Com plaint includes allegations that Defendants owed a duty to disclose. See Com pl ¶¶ 77 n.16, 10 2, 173. Defendants do not argue that Plaintiffs’ have inadequately pled that there was a duty to disclose m aterial facts. Absent such an argum ent, the Court will not dism iss Count V at this early stage. 3. COUNT VII: Arizona Consum er Fraud Act, A.R.S. §§ 44-1521 et seq. Plaintiff Sandoval asserts a statutory consum er fraud claim under the Arizona Consum er Fraud Act (“ACFA”). The ACFA’s purpose “is to provide injured consum ers with a rem edy to counteract the disproportionate bargaining power often present in consum er transactions.” Waste Mfg. & Leasing Corp. v. Ham bicki, 90 0 P.2d 1220 , 1224 40 (Ariz. Ct. App. 1995). Arizona courts have held that “[i]t is clear that before a private party m ay exert a claim under the [ACFA] he m ust have been damaged by the prohibited practice.” Peery v. Hansen, 585 P.2d 574, 577 (Ariz. Ct. App. 1978); Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 831 (D. Ariz. 20 16); Nataros v. Fine Arts Gallery of Scottsdale, Inc., 612 P.2d 50 0 , 50 4 (Ariz. Ct. App. 1980 ) (“[I]t is clear that the m isled consum er m ust have suffered som e dam age as a result of the m isrepresentation.”). Under the ACFA, an individual’s dam ages are “his actual dam ages suffered as a result of the unlawful act or practice.” Holem an v. Neils, 80 3 F. Supp. 237, 242 (D. Ariz. 1992). Actual dam ages include out of pocket expenses which encom passes consideration paid on the contract and “all sum s needed to restore a party to the position it occupied before the wrongful conduct.” Horowitch v. Diam ond Aircraft Indus., Inc., No. 6:0 6-CV-170 3, 20 0 9 WL 3790 415, at *5 (M.D. Fla. Nov. 9, 20 0 9) (applying Arizona law). Here, Defendants assert that Mr. Sandoval is precluded from bringing a claim under the ACFA because Mr. Sandoval’s class vehicle “perform ed, and continues to perform , as expected” and therefore, he has no basis for relief. Plaintiffs’ do not contest this, to the extent that Mr. Sandoval’s class engine has not experienced ringlands failure. Instead, Plaintiffs’ argue that Mr. Sandoval still m aintains a plausible claim for relief because the dim inution of value in his class vehicle, and the fact that all Plaintiffs’ “would not have purchased their respective class vehicle or paid less if they had been m ade aware of the [defect]”—as alleged in the com plaint—qualify as “appreciable loss” under Arizona law. Pl. Op. at 29; Com pl. ¶¶ 17, 10 3. In support, Plaintiff cites Cheatham v. ADT Corp., in which the plaintiff alleged that she would not have purchased an allegedly defective product “but for” the defendant's conduct that allegedly violated the ACFA. 161 F.Supp.3d 815, 820 – 22, 831 (D. Ariz. 41 20 16). The District Court for the District of Arizona held that plaintiff’s allegations were “sufficient to establish the dam ages elem ent” under the ACFA. Id. (citing Parks v. Macro-Dynam ics, Inc., 121 Ariz. 517, 521, 591 P.2d 10 0 5 (Ct. App. 1979)). In Cheatham , the Plaintiff had further alleged that she suffered loss, as she was bound to a contract with Defendant that required a penalty paym ent if Plaintiff were to cancel it. Id. The Court in In re Arizona Theranos, Inc., Litig., 256 F.Supp.3d 10 0 9, 10 28 (D. Ariz. 20 17), upheld plaintiffs’ ACFA claim where plaintiffs sole allegation pertaining to dam ages included that they “would not have purchased Theranos blood tests if they had known that defendants were using their blood sam ples for research and product developm ent”). reconsideration granted in part on other grounds, No. 2:16-CV-2138, 20 17 WL 4337340 (D. Ariz. Sept. 29, 20 17). The court in, In re Gen. Motors LLC Ignition Switch Litig., found that these two Arizona rulings supported the determ ination that plaintiffs ACFA claim pleaded dam ages despite the fact that plaintiffs allegations were based on an unm anifested defect that did not cause personal injury or property dam age. 339 F. Supp. 3d 262, 285 (S.D.N.Y. 20 18) (applying Arizona law). In this case, Plaintiff Sandoval, like the plaintiffs in Cheatham , In re Arizona Theranos, and In re Gen. Motors, has pled out-of-pocket expenses to the extent that “but for” Defendants’ alleged fraudulent conduct, Plaintiff would not have purchased his car; and has actual dam ages resulting from the decrease in value of his class vehicle. See Parks, 591 P.2d at 10 0 9 (dam ages under ACFA include “out-of-pocket expenses necessary to perform the contract prior to discovering the fraud”). Therefore, the Court finds sufficient pleading of dam ages to sustain a claim under the ACFA and will deny Defendants m otion to dism iss Plaintiff Sandoval’s claim under Count VII. 42 4. COUNT VI: New York General Business Law §349 Deceptive Acts and Practices Plaintiff Lall brings a claim under § 349 of the New York General Business Law. Section 349 m akes unlawful “[d]eceptive acts or practices in the conduct of any business, trade or comm erce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 349. , “[A]n action under § 349 is not subject to the pleading-withparticularity requirem ents of Rule 9(b), Fed.R.Civ.P., but need only m eet the bare-bones notice-pleading requirem ents of Rule 8(a), Fed.R.Civ.P.” Pelm an ex rel. Pelm an v. McDonald's Corp., 396 F.3d 50 8, 511 (2d Cir. 20 0 5). Defendants’ m ake no separate argum ent that Plaintiff Lall failed to state a claim under Rule 8’s standards in its m oving brief or provide another reason that his claim under New York law should be dism issed. Instead, in reply, Defendants’ suggest that even without application of the heightened 9(b) standard, Plaintiff fails to state a claim , noting that Plaintiff was still required to allege that “m isrepresentations were the but-for cause of the alleged injury.” Def. Reply at 12. Without any argum ent that the Com plaint fails to do so here, the Court finds no reason to dism iss Plaintiff Lall’s consum er fraud claim on behalf of him self and the New York sub-class. Therefore, the Court will deny Defendants’ m otion to dism iss Count VI. E. COU N T VIII: N e glige n t Mis re p re s e n ta tio n Defendants assert that there are conflicts between New J ersey, Indiana, New York, and Arizona law concerning negligent m isrepresentation, and that each Plaintiffs’ hom e states’ law should govern. See Def. Brf. at 9. Notwithstanding, Defendants’ only set forth differences between New York, New J ersey, an d Arizona law. Then, in their substantive argum ent to dism iss Count VIII, Defendants contend only one argum ent that addresses any specific jurisdiction’s law. That argum ent further negates any existing conflict, as Defendants argue that New York Plaintiff, Lall, and New J ersey Plaintiff, Am ato, fail to 43 state a claim for the sam e reason: “the negligent m isrepresentation claim m ust be dism issed as to Plaintiffs Am ato and Lall due to Plaintiffs’ failure to plead a special relationship beyond that of purchaser and m anufacturer.” Def Brf. at 30 . In fact, Defendants’ prim arily argue that Plaintiffs’ claim for negligent m isrepresentation should be dism issed on separate and unrelated grounds to the conflicts they present to the Court. Defendants argue that Plaintiffs’ fail to state a claim for negligent m isrepresentation because (1) the claim is barred by the econom ic loss doctrine, and (2) Plaintiffs’ have not pled the claim with the requisite particularity.13 Because Defendants fail to sufficiently explain a conflict between laws of the relevant jurisdictions, the Court finds that it is prem ature at this stage to engage in a conflict of laws analysis. As a result, the analysis of Plaintiffs’ negligent m isrepresentation claim will proceed under New J ersey law. First, as previously ruled, Plaintiffs’ have adequately pled both m isrepresentations and om issions under the Rule 9(b) and 8 standards. For those sam e reasons stated above, Plaintiffs’ Count VIII will not be dism issed on that basis. As to Defendants’ econom ic loss argum ent, the Suprem e Court of New J ersey has held that” [a]n incorrect statem ent, negligently m ade and justifiably relied upon, m ay be the basis for recovery of dam ages for econom ic loss or injury sustained as a consequence of that reliance.” H. Rosenblum , Inc. v. Adler, 461 A.2d 138, 142– 43 (N.J . 1983) (citing Pabon v. Hackensack Auto Sales, Inc., 164 A.2d 773 (N.J . Super. App. Div. 1960 ). The econom ic loss doctrine stands for the principle that a plaintiff who is dissatisfied with a product m ust bring a breach of contract or warranty claim . Alloway v. Gen. Marine Indus., L.P., 632, 695 A.2d 13 Defendants’ contend that all states have adopted analogous econom ic doctrines and that they all require the claim s to be pleaded with particularity. 44 264, 270 ( N.J . 1997) (“When the harm suffered is to the product itself, unaccom panied by personal injury or property dam age, we concluded that principles of contract, rather than of tort law, were better suited to resolve the purchaser's claim . Consequently, we held that the U.C.C. provided the appropriate period of lim itations.”). Notwithstanding, the doctrine does not always bar claim s for negligent m isrepresentation. In re Volkswagen Tim ing Chain Prod. Liab. Litig., 20 17 WL 190 2160 , at *21 (applying, inter alia, New J ersey law; finding that “Plaintiffs' negligent m isrepresentation claim [was] independent of any contractual claim . . . . [and] alleged that potential for personal injury in connection with the allegedly defective [product]”). Though it seem s clear that the econom ic loss rule is not uniform ly applied to negligent m isrepresentation claim s, the threshold question regarding the econom ic loss doctrine’s applicability is “whether the allegedly tortuous conduct is extraneous to the contract.” Atlas Acquisitions, LLC v. Porania, LLC, et al, No. 18-Cv-17524, 20 19 WL 6130 774, at *3 (D.N.J . Nov. 19, 20 19). Here, “Defendants’ argue that Plaintiffs fail to include any allegations even suggesting that the negligent m isrepresentation claim arises out of different facts than the warranty claim s.” Def. Brf. at 29. Plaintiffs provide no direct argument that the econom ic loss doctrine should not bar their claim . Instead, their opposition highlights the factual allegations that pertain to Defendants superior knowledge of the Piston Ringland Defect, and Defendants duty to disclose. Com pl. ¶¶ 75-76, 173-174. To that end, Plaintiff’s argue Defendants’ owed an independent duty to disclose, one outside of any contractual duty. See Saltiel v. GSI Consultants, Inc., 788 A.2d 268, 280 (20 0 2). Negligent m isrepresentation claim s based on econom ic loss, have survived dism issal in such situations. See Tim ing Chain Litig., 20 17 WL 190 2160 , at *18. Here, Defendants do not contend that Plaintiffs’ allegations 45 regarding an independent duty to disclose are insufficient, therefore, the Court will not dism iss Count VIII as precluded by the econom ic loss doctrine. Defendants suggest that under New J ersey law, the Plaintiffs’ negligent m isrepresentation claim further fails for “failure to plead a special relationship beyond that of purchaser and m anufacturer.” Def. Brf. at 30 . Defendants’ cite to Coba for the proposition that there is no special relationship here to sustain a negligent m isrepresentation claim . The Court disagrees with Defendants’ argum ent. First, the Coba court was not asked to analyze a claim for negligent m isrepresentation. As explained in a later ruling, the court in that case ruled that the defendant, a car m anufacturer,—in connection with “concealm ent tolling the statute of lim itations”—did “not owe any com m on law duty to disclose to [plaintiff].” Coba v. Ford Motor Co., No. 12-1622, 20 16 WL 5746361, at *12 (D.N.J . Sept. 30 , 20 16), aff'd, 932 F.3d 114 (3d Cir. 20 19), and aff'd, 932 F.3d 114 (3d Cir. 20 19). More specifically: “To the extent [plaintiff’s] allegations of fraudulent concealm ent are based on silence or concealm ent, New J ersey courts will not im ply a duty to disclose, unless such disclosure is necessary to m ake a previous statem ent true or the parties share a special relationship.” Coba v. Ford Motor Co., No. CIV. 12-1622, 20 13 WL 244687, at *12 (D.N.J . J an. 22, 20 13). Thus, while “New J ersey Courts have found no special relationship between individual consum ers and autom obile m anufacturers that would im pose a duty to disclose on the m anufacturers,” they have also found “specific am biguous partial disclosures or statem ents by [m anufactures]” m ay im pose such duty. Id.; Timing Chain Prod. Liab., 20 17 WL 190 2160 , at *21 (“[A]ffirm ative m isrepresentations and om issions by a vehicle m anufacturer m ay lie when the 46 m anufacturer has exclusive or superior knowledge regarding the defect or if the defect relates to a safety concern.”). Here, Plaintiffs have included allegations that Defendants’ disclosure was necessary to m ake their previous representations true. Com pl. ¶¶ 61, 73, 120 , 171. Defendants’ do not address this argum ent in their reply. Furtherm ore, courts have perm itted negligent m isrepresentation claim s between consum ers and car m anufactures. See Dewey, 558 F. Supp. 2d at 529. Therefore, the Court will perm it the claim and will deny Defendants’ m otion as to Count VIII. F. COU N T IX: In ju n ctive an d d e clarato ry re lie f In Count IX of the Com plaint, Plaintiffs “request a declaratory judgm ent declaring that going forward all rem edial work necessary to correct the defective engine incorporated in class engines together with all resulting dam ages are covered under the class vehicles’ warranty.” Com pl. ¶ 246. For the reasons set forth supra, this Court will dism iss Plaintiffs’ breach of warranty claim for failure to plead that the alleged defect was in fact covered under Subaru’s Lim ited warranty for defects in m aterials and workm anship, and for failure to plead that the warranty was unconscionable. Accordingly, the Court will dism iss Count IX which seeks declaratory judgm ent. Furtherm ore, “declaratory relief and injunctive relief, as their nam es im ply, are rem edies, not causes of action.” Cole v. NIBCO, Inc., No. 3:13-CV-0 7871, 20 15 WL 2414740 , at *15 (D.N.J . May 20 , 20 15). In fact, Plaintiffs have pled injunctive relief including a declaratory judgm ent, to the extent perm itted under surviving claim s. As a result, a separate cause of action for such relief, is unnecessary. See Chruby v. Kowaleski, 534 F. App'x 156, 160 (3d Cir. 20 13). Therefore, Defendants’ Motion to Dism iss Count IX will be granted. 47 IV. Conclusion For the foregoing reasons, the Court will grant in part and deny in part Defendants’ Motion to Dism iss Plaintiffs’ Com plaint. An appropriate Order shall issue. Dated: Decem ber 5, 20 19 / S/ J oseph H. Rodriguez, _ _ _ Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 48

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