Motion-Secondary: Alande Breazault Plaintiff vs. BMW of North America LLC Defendant

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                                Filing # 113281964 E-Filed 09/14/2020 09:13:14 AM

IN THE CIRCUIT COURT OF THE 17th
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA

CASE NO: CACE-19-025622
ALANDE BREZAULT,

Plaintiff,
vs.
BMW OF NORTH AMERICA LLC,

Defendant.
/

DEFENDANT BMW OF NORTH AMERICA, LLC'S REPLY TO PLAINTIFF’S
MEMORANDUM OF LAW IN OPPOSITION AND IN FURTHER SUPPORT OF

MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT WITH
INCORPORATED MEMORANDUM OF LAW

Now comes the Defendant, BMW of North America, LLC, (“BMW NA”), in the above-
captioned matter, who respectfully submits the within Reply to Plaintiff's Memorandum of Law
in Opposition (“Opposition”) and in further support of BMW NA’s Motion to Dismiss (“Motion”)
Plaintiff’s First Amended Complaint (“FAC”) with incorporated Memorandum of Law and in

support thereof states as follows:

As further discussed, herein, Plaintiff’s Opposition does nothing more than clarify the

propriety of granting BMW NA’s Motion to Dismiss pursuant to Rules 1.140(b)(1), 1.140(b)(3),

1.140(b)(7) and 1.140(b)(6) of the Florida Rules of Civil Procedure."

) Plaintiff repeatedly references other, irrelevant cases purportedly denying motions to dismiss filed by BMW NA.
However, in addition to such cases being inconsequential to the outcome of the present motion, they are in combination
not nearly as one-sided as plaintiff contends and inapposite. See e.g,. Mize v. BMW of North America, LLC, 2020 WL.
1526909 (N.D. Tx. Mar. 2020) (misrepresentation claims dismissed for lack of specificity in pleading); Hurley v.
BMW of North America, LLC, 2020 WL 1624861 (E.D. Penn. Apr. 2020) (dismissing unfair trade practices act claims
as barred by the economic loss doctrine and implied warranty claims brought under state law and MMWA as

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/14/2020 09:13:13 AM.****I. LEGAL ANALYSIS WITH INCORPORATED MEMORANDUM OF LAW

A. PURSUANT TO FLA. R. CIV. P. § 1.140(b)(1) PLAINTIFF’S CLAIMS
SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER
JURISDICTION AS THE AMOUNT IN CONTROVERSY IS BELOW THE
JURISDICTIONAL THRESHOLD OF THE CIRCUIT COURT

While Plaintiffs Opposition asserts that good faith allegations have been raised in the FAC
to satisfy the jurisdictional threshold of this Court, the FAC clearly demonstrates that his alleged
damages are speculative, hypothetical and constitute bare allegations within the meaning of
Florida’s decisional authority. See §§ 26.012(2)(a), 34.01, Fla. Stat.; Sullivan v. Nova Univ., 613

So. 2d 597 (Fla. Sth DCA 1993); Swindell v. Crowson, 712 So.2d 1162, 1164 (Fla. 2d DCA 1998).

First, Plaintiff's alleged damages are irreconcilable with the facts of this case. On the one
hand, he alleges damages based on the cost of repair for replacement of an engine, but in the same
breath, he reminds the Court that since “After purchasing the Vehicle” FAC § 16 over eleven (11)
years ago, the engine has not failed or been repaired or replaced. In his Opposition, Plaintiff
reiterates that because BMW NA’s authorized dealerships refused to repair the vehicle, he has

been forced to add additional engine oil, but not repair or replace the engine. See Opp. at p. 4.

untimely); Carroll v. BMW of North America, LLC, 1:19-cv-00224-JMS-TAB, 2019 WL 4243153 (S.D. Ind. Sept. 6,
2019) (The opinion strongly indicates that plaintiff-Carroll, who filed suit almost nine years after he purchased his
vehicle, may have run afoul of the statutes of limitations. He also failed to plead sufficient information to allow
decision on the tolling issue. While the court did not grant dismissal, it ordered discovery on the statute of limitations
issue only and invited BMW NA to file a motion for summary judgment on that issue once discovery was complete);
Schneider et al. v. BMW of North America, LLC, No: 1:18-cv-12239-IT, 2019 WL 47715671 (D. Mass. Sept. 27,
2019) (Judge Indira Talwani found that plaintiffs failed to adequately plead the amount in controversy and held that
the court lacked subject matter jurisdiction at this juncture. Notably, Judge Talwani provided that plaintiffs’ reliance
on Carroll was “instructive on the deficiency in this case”, and then reiterated the paucity of facts regarding their
alleged damages); Harris et al. v. BMW of North America, LLC, 4:19-cv-00016-ALM, 2019 WL 4861379 (E.D. Tex.
Oct. 2, 2019) (the court held that plaintiffs satisfied the amount in controversy requirement under 28 U.S.C. § 1332(a),
as there was still a “plausible set of facts” that would allow each plaintiff to recover more than $75,000, because
plaintiffs asserted claims under the Texas Deceptive Trade Practices Act (“TDTPA”), Tex. Bus. & Com. Code §
17.41, et seq., which allows treble damages upon a showing of intentional conduct); Torres ef al. v. BMW of North
America, LLC, No. 3:19-cv-00087-JD (N.D. Cal. Aug. 16, 2019) (the Torres Court found that plaintiffs plausibly
alleged claims under California law, which has no bearing on the instant matter).Plaintiff’s Opposition does nothing more than clarify that his damages continue to rely on an event
that has not (and may not ever) occur — engine failure. And, although Plaintiff claims damages
from increased service visits and maintenance costs, the $5,000 sum specified is significantly
below the jurisdictional threshold. FAC § 22.

Second, Plaintiff relies upon an improper measure of damages by attempting to use the cost
of repair for replacement of an engine, which has never occurred, as an estimate of the diminished
value of the vehicle. Specifically, Plaintiff maintains that the cost of repair for replacement of an
engine, approximately $12,500 to $15,000, together with $5,000 of incidental and consequential
damages are sufficient to satisfy this Court’s jurisdiction. See Opp. at p. 5. In so doing, he relies
on a string of inapposite Florida case law and cases from other jurisdictions.

Contrary to Plaintiff’s position, the Florida cases that he relies on support that his alleged
damages must be consistent with actual damages incurred. See, e.g., Carpenter v. Forest River,
Inc., No. 8:18-CV-1622-T-36AEP, 2018 WL 8244571, at *3 (M.D. Fla. Aug. 15, 2018) (denying
the defendant’s motion to transfer for failure to demonstrate that costs of repair made thus far
(actual costs for repairs made) or the diminution of value of the RV at issue satisfied the court’s
jurisdiction); Grossman Holdings Lid. v. Hourihan, 414 So. 2d 1037 (Fla. 1982) (Addressing the
appropriate measure of damages in breach of construction contract matters pursuant to 346(1)(a)
of the Restatement (First) of Contracts (1932) and not in connection with the Magnuson-Moss
Warranty Act, 15 U.S.C. § 2301, et. seg., (““Mag-Moss”) § 627.313, Fla. Stat. or § 627.314, Fla.
Stat.); Matthews v. James Hardie Bldg. Prod., Inc., No. 3:16-CV-378-MCR-EMT, 2017 WL
6994567, at *1 (N.D. Fla. Nov. 21, 2017) (remanding the matter to state court where it was found,
in part, that the prospective cost of repairs for actual damages incurred would not satisfy the federal

court’s jurisdiction. “Hardi specifically warranted that the siding would not peel, crack, chip away,or experience other defects, and they are entitled to damages now that these defects have
occurred”); Miles v. Kavanaugh, 350 So. 2d 1090, 1091 (Fla. Dist. Ct. App. 1977) (the engine of
the product at issue, an aircraft, was recently “overhauled” with new mechanical parts and
subsequently suffered engine malfunction with loss of power, violent shaking and loud clanking.
This resulted in incurred expenses to transfer the aircraft in parts for a complete re-overhaul). In
this case it would be inappropriate to use any purported cost of repair for replacement of the engine
as an estimate of Plaintiff's damages, as the engine has never failed and no repair or replacement

costs have been incurred by Plaintiff.

Plaintiff belabors his position that the engine replacement is not hypothetical, but
“plausible” for the first time in his Opposition. However, the characterization that engine failure
is “plausible” still leads to the same unavoidable conclusion — the engine has not failed, nor has it
been repaired or replaced and no damages have been incurred. Similarly, Plaintiff’s contention
that BMW NA conceded the plausibility of an engine replacement by way of the Class Action
Settlement in Bang v. BMW of North America, LLC (Case No. 2:15-CV-6945) is merely a half-
truth. Specifically, the service campaign for class vehicles only offers potential engine
replacement where a list of lesser servicing options are performed and ineffective, and even then,
the consumer is required to contribute to the cost. This was also a campaign established pursuant
to settlement discussions. The fact remains that whether an engine replacement is necessary is
contingent on the condition and servicing of a specific vehicle. As Plaintiff’s FAC makes clear,
the condition and servicing history of his vehicle never required repair or replacement of the

engine. Id. see also FAC §§ 16-19.

Plaintiff has also failed to provide any Florida law supporting the position that “plausible”

damages are a sufficient substitute for actual damages incurred. Instead, it remains clear underFlorida law that damages cannot be speculative, hypothetical or “plausible”. To this end, “the mere
assertion in the complaint of an amount exceeding the jurisdictional minimum is not sufficient [to
confer jurisdiction] where on the face of the allegation in the complaint it appears that the required
minimum amount is actually not involved, or that the facts alleged cannot furnish any legal basis
for the claim raised.” Sullivan v. Nova Univ., 613 So. 2d 597 (Fla. 5th DCA 1993); see also
Swindell v. Crowson, 712 So.2d 1162, 1164 (Fla. 2d DCA 1998) (reversing the trial court’s
decision denying defendant’s motion to dismiss, in part, for speculative damages where plaintiff
expected to be paid for services, but had no documents to support her damages); 20
Am Jur.2d Courts § 155 (1965); Fla. Outdoor, Inc. v. Stewart, 318 So. 2d 414, 415 (Fla. Dist. Ct.
App. 1975); Director General of Railroads v. Wilford, 81 Fla. 430, 88 So. 256 (1921); Gannett v.
King, 108 So.2d 299 (Fla. 2d DCA 1959)

For the reasons, herein and further elaborated in BMW NA’s Motion, this Court lacks
subject matter jurisdiction and Plaintiff's FAC must be dismissed.

B. PURSUANT TO FLA. R. CIV. P. § 1.140(b)(3) PLAINTIFF’S CLAIMS SHOULD
BE DISMISSED FOR IMPROPER VENUE, TRANSFERRED TO THE
APPROPRIATE VENUE OR A MORE DEFINITE STATEMENT IS REQUIRED

Plaintiff's contention that venue is proper in Broward County is without legal or factual
merit as alleged, given that both his claims for breach of express warranty and violation of
FDUTPA support transferring venue to the location where delivery of the vehicle was made and
the contract was signed. Forms & Surfaces, Inc. v. Welbro Constructors, Inc., 627 So. 2d 594 (Fla.
Dist. Ct. App. 1993) (vacating and remanding trial court order denying defendant’s motion to

dismiss or transfer for improper venue and holding that for nonconforming goods, the alleged

? There is no arguable basis to refer to any of the cited authority from other jurisdictions, as Florida’s law is clear
regarding the circumstances under which cost of repair may be used to establish damages.breach of contract accrued for venue purposes at the location of delivery of the goods, rather than
where the defect was discovered; Whittington v. Laney, 566 So. 2d 599 (Fla. Dist. Ct. App. 1990)
(holding that the proper venue for the breach of warranty claim was where the product was
delivered); see also, Tech. Packaging, Inc. v. Hanchett, 992 So. 2d 309, 313 (Fla. Dist. Ct. App.
2008) and cases cited in BMW NA’s Motion.

Here, Plaintiff raises numerous allegations supporting venue in Palm Beach County where
the vehicle was purchased, including that “BMW knew all along the N63 engines were defective
and concealed its knowledge from Plaintiff at the time of purchase” FAC § 4; “Defendant,
however, failed to disclose the defect to consumers prior to or at the time of purchase or lease”
FAC § 47ehicl; “Defendant failed to disclose the existence of the defect to Plaintiff af the time of
the subject vehicle sale...” FAC § 76. As alleged, all of the foregoing misconduct occurred in an
unidentified county in Florida where the vehicle was sold.

Plaintiff's position that he has also alleged ongoing wrongful misconduct in Broward
County to warrant venue here is unsupported by Florida’s decisional authority, which supports that
venue is proper for ongoing injuries where the first alleged wrongful act occurred. See Allen v.
Walker, 810 So. 2d 1090 (Fla. Dist. Ct. App. 2002) (Proper venue for action brought on behalf of
child when father and her private investigator allegedly kidnapped child from school was the
county in which school was located, on grounds that this is where the wrongful acts first took
place, even though child may have suffered ongoing injury).

That said, plaintiff's choice of venue is usually favored if the election is one which has been
properly exercised under applicable statutes. Allen at 1090. In this case, Plaintiff supports his

choice of venue based on the location where the cause of action accrued. Given that the causes ofaction raised support venue where the vehicle was originally delivered, this case should be
transferred to Palm Beach County.
The location of the property is also not an appropriate basis for venue selection here, as
only economic damages are sought. See e.g., McDaniel Reserve Realty Holdings, LLC v. B.S.E.
Consultants, Inc., 39 So. 3d 504, 508-09 (Fla. Dist. Ct. App. 2010) (“Because Reserve Realty's
claims against BSE have no effect on the title or possession of the property and the complaint
seeks only an award of money damages, there is no “property in litigation”); Goedmakers v.
Goedmakers, 520 So.2d 575, 579 (Fla.1988) (“Clearly, many in personam actions involve real
property.... However, when the suit is merely for payment of money, such as the purchase price of
the property, there is no ‘property in litigation’ and the third alternative location specified in
the venue statute is not available to the plaintiff.”) (emphasis in original, citations omitted); see
also Greene v. A.G.B.B. Hotels, Inc., 505 So.2d 666, 667-68 (Fla. 5th DCA 1987).
Cc PURSUANT TO FLA. R. CIV. P. § 1.140(b)(7) PLAINTIFF’S CLAIMS SHOULD
BE DISMISSED FOR THE FAILURE TO JOIN AN INDISPENSABLE PARTY
Plaintiff has failed to add an indispensable party. In this case, the repair orders indicate
that Fabienne Brezault was also a “consumer”. While Plaintiff claims that BMW NA has not
demonstrated that Ms. Brezault is a co-owner or co-purchaser of the vehicle, Plaintiff also does
not deny same. And, as a non-party with a joint interest in the vehicle and any benefits and
responsibilities relating to same, Ms. Brezault must be added as an indispensable party. See Bry-
Man's, Inc. v. Stute, 312 F.2d 585 (5th Cir. 1963) (holding on appeal that action could not be
maintained without party who shared join interest in the subject of the lawsuit); Citibank, N.A. v.
Villanueva, 174 So. 3d 612 (Fla. Dist. Ct. App. 2015) (holding on appeal that foreclosure judgment

rendered by trial court was void as title owner was not a party); Nat'l Title Ins. Co. v. Oscar E.Dooly Assocs., Inc., 377 So. 2d 730 (Fla. Dist. Ct. App. 1979), dismissed, 385 So. 2d 759 (Fla.

 

1980) (holding purchasers were indispensable parties to the lawsuit); Al/man v. Wolfe, 592 So. 2d
1261 (Fla. Dist. Ct. App. 1992) (holding that parties with legal title to property at issue were
indispensable parties); Davanzo v. Resolute Ins. Co., 346 So. 2d 1227 (Fla. Dist. Ct. App. 1977)
(holding in part that person with legal title to property was an indispensable party); McAdoo v.
Moses, 101 Fla. 936, 132 So. 638 (1931) (“The general rule in equity is that all persons materially
interested, either legally or beneficially, in the subject-matter of a suit, must be made parties...”).

D. PURSUANT TO FLA. R. CIV. P. § 1.140(B)(6) PLAINTIFF’S FAC SHOULD
BE DISMISSED FOR FAILING TO STATE A CAUSE OF ACTION

f) Plaintiff's FAC Fails to State a Cause of Action For Breach of Express
Warranty Under § 672.313, Fla. Stat. and Mag-Moss Because The Limited

Warranty Does Not Cover The Design Defects Alleged, Plaintiff Lacks
Privity of Contract with BMW NA and Plaintiff Has Failed to Allege Actual

Injury

As set forth in BMW NA’s Motion, the express warranty at issue, only covers repairs
needed to correct “defects of workmanship,” FAC § 24, whereas the FAC alleges a design defect.
Although Plaintiff attempts to mask his design defect claim with “alternate” allegations of defects
in workmanship and claims that any design defect allegations are taken out of context, as discussed
in BMW NA’s Motion, similar pleadings have been dismissed by courts in support of a claim for
breach of Mag-Moss and express warranty. “[T]he vast weight of authority hold[s] that a
workmanship and materials warranty cannot encompass a design defect claim.” Nelson v. Nissan
N.Am., Inc., No. 11-5712, 2014 WL 7331075, at *3 (D.N.J. Dec. 19, 2014) (emphasis added); see
Bruce Martin Constr. v. CTB, Inc., 735 F.3d 750 (8th Cir. 2013) (“[w]here a product is
manufactured correctly but designed inappropriately, the defect is one of design and not ‘material
or workmanship.””); Troup v. Toyota Motor Corp., 545 F. App’x 668, 668-69 (9th Cir. 2013);

Mack Trucks Inc. v. BorgWarner Turbo Sys., Inc., 508 F. App’x 180, 184-85 (3d Cir. 2012)(finding that the ordinary meaning of “manufacture” does not include design); Hindsman v. Gen.
Motors LLC, No. 17-05337, 2018 WL 2463113, at *2-3 (N.D. Cal. June 1, 2018) (dismissing
warranty claims grounded on design defects causing excessive oil consumption). Plaintiff has also
failed to address the highly persuasive outcome of the court in Cali, which dismissed the plaintiff’s
complaint based on similar design defect allegations.

To further undermine his design defect claim, Plaintiff also asserts for the first time in his
Opposition that the oil consumption problem is not universal.* However, his inherently
inconsistent position is evidenced by numerous allegations referring to issues with N63 engines
generally. See, e.g., FAC §§ 4, 38, 39.

Additionally, in order to state a claim for breach of express warranty, Plaintiff must do
more than provide a formulaic recitation of elements. Bell Ail. Corp. v. Twombly, 550 U.S. 544,
570 (2007), Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).4 Here, Plaintiff's allegations do nothing
more than just that. Plaintiff’s breach of warranty claim hinges on BMW NA’s purported refusal
or failure to repair Plaintiff’s vehicle. However, this is unsupported by Plaintiff's allegations that
his vehicle has not suffered from any engine failure, nor has the engine been repaired or replaced
since its purchase and discovery of the alleged oil consumption defect for over eleven (11) years
ago. See FAC §§ 15-19. The dealership’s representations that the vehicle did not require any repair

is consistent with its history. Plaintiff was also informed at the outset that he was expected to check

3 See Bruhl v. Price Waterhouse Coopers Int'l, No. 03-23044, 2007 WL 997362, at *4 (S.D. Fla. Mar.27, 2007) (a
plaintiff may not replace allegations in a complaint with new allegations raised in response to a motion to dismiss);
accord Walker v. City of Orlando, No. 07-651, 2007 WL 1839431, at *5 (M.D. Fla. Jun. 26, 2007) (consideration is
limited to the allegations in the complaint, even when new allegations are raised in response to a Motion to Dismiss)

4 “When Florida rules of procedure are patterned after federal rules, Florida has a longstanding tradition of
relying on federal case law.” Commonwealth Land Title Ins. Co. v. Higgins, 975 So. 2d 1169, 1175 n.5 (Fla. 1st
DCA 2008) (emphasis added); see also Smith v. Southern Baptist Hosp., Inc., 564 So. 2d 1115, 1117 n.2 (Fla. Ist
DCA 1990), citing Delta Renta-A-Car, Inc. v. Rihl, 218 So.2d 467 (Fla. 4th DCA 1969) (noting that when a Florida
rule of civil procedure is patterned after a federal rule, federal case law discussing the rule is “pertinent and highly
persuasive”).his oil regularly and that he may need to add oil as a part of the routine maintenance of his vehicle.
He has done as instructed consistent with the expectations set forth in the warranty; that does not
constitute harm capable of supporting a breach of warranty claim.

Relatedly and as more fully set forth above, Plaintiff has not alleged any actual damages
to support his claim for breach of express warranty.* In this regard, Collins v. DaimlerChrysler
Corp., No. 2002-CA-6634-O, 2003 WL 25899984 (Fla.Cir.Ct. July 08, 2003) is instructive on the
propriety of granting the instant Motion. In Collins, the Court acknowledged that claims for breach
of express or implied warranty require that the plaintiff suffer some injury or damage caused by
the breach. State Farm Ins. Co. v. Nu Prime Roll-A-Way of Miami, Inc., 557 So. 2d 107, 108 (Fla.
3d DCA 1990) (“Liability for breach of warranty arises where persons or property are
damaged because of a product's failure to live up to an express or implied representation by a
manufacturer or supplier.” (Emphasis added)); Sansing v. Firestone Tire & Rubber Co., 354 So.
2d 895, 896 (Fla. 4th DCA 1978) (elements of breach of implied warranty include that “defect
caused the injury.”). The Collins-Plaintiff asserted a breach of warranty claim and alleged that the
type of seat belt installed in her minivan was defective, without any allegation that the seat belts
failed to perform in the manner they were supposed to. Nonetheless, Plaintiff alleged damages
insofar as the minivan was diminished in value as measured by replacing the defective seat belts
with non-defective seat belts. However, the court found that this failed to assert a claim of injury
or damage, as there was no allegation that she actually incurred a loss due to the diminished value

and that plaintiff was attempting to recover for a product that performed satisfactorily.

§ Plaintiff's reliance on Vazquez v. Gen. Motors, LLC, 2018 WL 447644, at *4 (S.D. Fla. Jan. 16, 2018) is misplaced
as the motion to dismiss was denied, in part, because of ambiguity with the warranty’s terms, which has not been
alleged here.Accordingly, the court granted defendant’s motion to dismiss the Amended Class Action
Complaint at issue. Courts considering similar claims have reached the same conclusion.
See, Briehl vy. General Motors Corp.\172 F. 3d 623 (8th Cir. 1999) (affirming trial
court's dismissal of potential class action claims for breach of consumer protection laws and
implied and express warranties where plaintiffs! vehicles never manifested alleged
defect); Carlson v. General Motors Corp., 883 F.2d 287 (4th Cir. 1989) (buyers of cars that
performed as warranted could not recover for breach of implied warranty based solely on
diminishment of resale value); Weaver v. Chrysler Corp., 172 F.R.D. 96 (S.D.N.Y. 1997) (court
granted motion to dismiss implied warranty and consumer protection claims where plaintiff failed
to plead any damages resulting from defective child seat that never malfunctioned); Hubbard v.
General Motors Corp.,No. 95 Civ. 4362, 1996 WL 274018 (S.D.N.Y. May 22,
1996)(court dismissed claims for breach of express and implied warranty where plaintiff failed to
allege that his vehicle experienced performance problems or that he tried to resell it and the value
decreased); Lee v. General Motors Corp.,950  F. Supp. 170 (S.D. Miss.
1996) (court dismissed breach of implied warranty claim based on defective car roofs where
plaintiffs did not sustain any personal injury); Barbarin v. General Motors Corp., Civ. A. No. 84-
0888 (TPJ.), 1993 WL 765821 (D.D.C. Sept. 22, 1993) (court dismissed breach of express and
implied warranty claims based on defective cars where plaintiffs' cars never experienced defect);
and Yost v. General Motors Corp.,651 F. Supp. 656 (D.N.J. 1986) (court granted motion
to dismiss breach of warranty claim based on plaintiffs lack of damages where plaintiff alleged
potential leak in car resulted in the car's lost value in used car market).

Further, Plaintiff has apparently pled two causes of action for breach of express warranty
under Mag-Moss and Count II should be dismissed. To this end, Count I of the FAC alleges breach

of express warranty pursuant to Mag-Moss and Count II alleges the same breach of expresswarranty pursuant to Mag-Moss, but adds § 672.313, Fla. Stat. However, a claim for breach of
express warranty under Mag-Moss and breach of express warranty under § 672.313, Fla. Stat. are
mutually exclusive. See, e.g., Ocana v. Ford Motor Co., 992 So. 2d 319 (Fla. Dist. Ct. App. 2008)
(“The Magnuson Moss Warranty Act creates a federal private cause of action for consumers
damaged by the failure of a warrantor to comply with any obligation under a written warranty.”)
While state law serves to bridge the gaps in a cause of action under Mag-Moss, it does not supplant
same. See, e.g. Rentas v. DaimlerChrysler Corporation, 936 So.2d 747 (Fla. 4th DCA 2006). The
duplicative breach of express warranty claim under Mag-Moss appears to have led Plaintiff to
misapprehend BMW NA’s position that privity of contract is required for a state claim of breach
of express warranty under § 672.313, Fla. Stat. This is clearly distinguished in BMW NA’s Motion
and not disputed by Plaintiff’s Opposition. See Opp. at p. 10. Instead, by Plaintiff’s own admission
in his Opposition, he has clarified that § 672.313, Fla. Stat. is only nominally included in Count II
and that Count I and Count II are one and the same cause of action. See id.

To the extent that Plaintiff does claim a separate state cause of action under § 672.313, Fla.
Stat., which is unsupported by the FAC, his state law claim for breach of express warranty is
independent from Mag-Moss and does require privity of contract. Notably, this is acknowledged
by Plaintiff in his Opposition by reference to Borchardt v. Mako Marine Int'l, Inc., No. 08-61199-
CIV, 2011 WL 2084177, at *1 (S.D. Fla. May 24, 2011) (“Under Florida law, in order to recover
for breach of a warranty, either express or implied, the plaintiff must be in privity of contract with
the defendant.”); see also Weiss v. Johansen, 898 So.2d 1009 (Fla. 4th DCA 2005); Williams v.
Bear Stearns & Co., 725 So.2d 397 (Fla. 5th DCA 1998), rev. den. 737 So.2d 550 (Fla.1999);
Intergraph Corp. v. Stearman, 555 So.2d 1282 (Fla. 2d DCA 1990); American Coach Lines of
Orlando, Inc. v. North American Bus Industries Inc., 2011 WL 653524 (M.D.Fla.2011); Levine v.

Wyeth, Inc., 684 F.Supp.2d 1338, 1345 (M.D.Fla.2010) (collecting Florida cases); TWM & SM v.American Med. Systems, Inc., 886 F.Supp. 842 (N.DFla.1995), citing Kramer v. Piper Aircraft
Corp., 520 So.2d 37 (Fla.1988).)

Plaintiff’s Opposition now makes it unquestionably clear that Count I and Count II are
duplicative of each other, as they both allege breach of express warranty under Mag-Moss. And,
any argument by Plaintiff that he may plead in the alternative is rendered futile by the absence of
privity to support a breach of express warranty claim under state law. See e.g., Hill v. Hoover Co.,
899 F. Supp. 2d 1259 (N.D. Fla. 2012).

Accordingly, Plaintiff has failed to state a cause of action for breach of express warranty
and Count I and Count II of the FAC should be dismissed.

(ii) Plaintiff's FAC Fails to State Cause of Action for Violation of the Florida

Deceptive and Unfair Trade Practices Act (“FDUTPA”) and Should be
Dismissed

Plaintiff cannot cite to any standard vehicle purchase with similar facts to the case herein
that provides a claim under FDUTPA. To create a non-existent claim, Plaintiff alleges that BMW
NA had a duty to disclose the oil consumption defect and cites Rudolph v. Arthur Andersen & Co.,
800 F.2d 1040, 1042 (11th Cir. 1986) for the proposition that there is a duty to disclose “[w]here
a defendant’s failure to speak would render the defendant’s own prior speech misleading or
deceptive.” However, Plaintiff does not provide any “prior speech” of BMW NA that was
misleading and all alleged misrepresentations were by third-party dealerships during transactions
that BMW NA was not privy to including the sale and servicing of his vehicle. See e.g., FAC $9
14-19.

That said, the cases cited in support of Plaintiff’s position that dismissal of his FDUTPA
claim is improper have materially different facts, which pertinently include alleged

misrepresentations from the defendant itself. See Carriuolo v. Gen. Motors LLC, 72 F. Supp. 3d1323, 1325 (S.D. Fla. 2014) (noting that plaintiffs plead that defendant conspicuously advertised
that its car received safety ratings that in fact it did not); Collins v. DaimlerChrysler Corp., 894
So. 2d 988, 989 (Fla. Dist. Ct. App. 2004) (plaintiff’s allegations included that she based her
decision to purchase a Chrysler, in part, on Chrysler's advertising of its vehicles as safe and
compliant with all relevant safety standards). Plaintiff can point to no similar “misrepresentations”
by BMW NA.

While Plaintiff sets forth certain provisions of the warranty, there are no allegations that
anything in the warranty itself was misleading or false. In fact, there was nothing misleading about
the warranty, which offered repair or replacement of component parts found to be defective.
During the servicing of Plaintiff’s vehicle, there was no finding of any defects warranting repair
or replacement of the engine. This is supported by the absence of any engine failure during
Plaintiff’s 11-year ownership of the vehicle. See FAC §§ 15-19. And, although he claims that
because of nonconformities, he cannot reasonably rely on the vehicle for “safe, comfortable and
efficient transportation” FAC § 104, again, he has used the vehicle for over eleven (11) years
without any engine failure, repair or replacement. See FAC §§ 15-19.

In lieu of any misrepresentations by BMW NA, Plaintiff also relies on conclusory
allegations that BMW NA actively concealed the defect from Plaintiff, had a duty to disclose
because the defect poses an unreasonable safety hazard and that BMW NA had exclusive
knowledge of same. However, these contentions are all refuted by the facts. First, BMW NA
maintains that the excessive oil consumption is not a defect. Therefore, any allegations that BMW
NA made statements that the oil consumption was normal and issued technical service bulletins
(“TSB”) and a “Customer Care Package” related to the oil consumption can hardly be considered

active concealment or misleading of such issue sufficient to establish a duty to disclose. Ifanything, these actions brought attention to the issue. And again, while Plaintiff references
provisions of the limited warranty, there are no allegations that any of the representations in the
warranty were false.

Plaintiff has also cited sources of publicly available information that existed as early as
2011 that would have alerted him to any purported defect. See, e.g., FAC §§ 44, 45. (“A fellow
BMW enthusiast responded with four separate links about the consumption issue and explained
that the defect “was a hot topic back in September 2011.”). In fact, he readily admits that in 2012
and 2013, BMW NA publicly disclosed the very issue complained of when it published multiple
TSBs related to the oil consumption issue before his vehicle purchase. Plaintiff’s attempt to
marginalize these disclosures by claiming that TSBs are directed “only to automotive dealers” Id.
¥ 48 n.3. is contradicted by the TSBs Plaintiff references in the FAC, which clearly show that the
TSBs were also submitted to the National Highway Traffic Safety Administration (“NHTSA”) and
published to the public by NHTSA. See Slater v. A.G. Edwards & Sons, Inc.,719 F.3d 1190, 1196
(10th Cir. 2013) (“When there are allegations that certain disclosures were not made in publicly
available documents, we may look to those documents to see whether such disclosures were in fact
made.”). Additionally, his reliance on TSBs for knowledge of the purported defect is misplaced,
as they merely confirm that the N63 oil consumption rate is not a defect. Instead, the TSB explains
that higher oil consumption in the N63 engines is normal and provides assistance and direction for
the proper care and maintenance.

A claim for fraudulent concealment must also be pled with sufficient particularity and
Plaintiff has failed to plead many of the necessary elements of fraud based on the heightened
standard of Fla. R. Civ. P. 1.120(b). See also Burgess v. Religious Tech. Ctr., Inc., 600 F. App'x

657, 662 (11th Cir. 2015); Vazquez v. Gen. Motors, LLC, No. 17-22209-CIV, 2018 WL 447644,at *6 (S.D. Fla. Jan. 16, 2018) (noting that the time and place of each statement, the person
responsible for making same and how they were misleading are required by the heightened
pleading standard). Here, Plaintiff fails to cite any specific statements, the identities of the speaker,
dates of the statements and how they were misleading, given that his engine never failed. See FAC
99 14-19.

Plaintiff’s allegations that an unidentified BMW dealership representative told him the
excessive oil consumption was normal and his allegations regarding the statements made in the
TSBs and the “Customer Care Package” are not sufficient to meet this standard because these acts
are not fraudulent or deceptive.

Moreover, Plaintiff's conclusory allegation in the FAC that BMW NA’s “network of
independently owned dealerships across the United States are agents of BMW,” see FAC at J 10,
does not further his claim. And, while Plaintiff cites no authority for the proposition that
independently owned dealerships are agents of BMW NA, courts have held to the contrary. See,
e.g., Connor v. Ford Motor Co., No. 96 C 8343, 1997 WL 724528,*2 (N.D.IIl. Nov.12, 1997);
Herremans v. BMW of North America, LLC, No. CV 14-02363 MMM PJWX, 2014 WL 5017843,
at *6 (C.D. Cal. Oct. 3, 2014); Friedman v. Mercedes Benz USA LLC, No. CV 12-7204 GAF
(CWx), 2013 WL 8336127, *6 (C.D. Cal. June 12, 2013); Ocana v. Ford Motor Co., 992 So. 2d
319, 326 (Fla. Dist. Ct. App. 2008) (Notwithstanding allegations of the 1) dealer location, size,
and number of dealer logos on dealer's premises; 2) prizes given to dealer's employees; 3) number
of bathrooms dealer must make available to the public; 4) training and certification of sales and
service personnel; and also requires that its dealers 5) use manufacturer-supplied computer
software; 6) report vehicle sales and sale details, including name and address of purchaser and

related information, to manufacturer; 7) provide warranty service paid for by Ford MotorCompany; and 8) afford Ford the right to enter the dealer's business premises to audit the records
and operations of the dealership as to sales and service, the complaint was devoid of any allegation
of some of the tell-tale signs of a principal-agent relationship, such as the ability of the principal
to hire, fire, or supervise dealership employees or dealer ownership).

Further, Plaintiff’s fraud-based claims are also barred by the economic loss doctrine. See,
e.g. Tiara Condo. Ass'n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399, 404 (Fla.
2013); Burns v. Winnebago Indus., Inc., No. 8:13—cv-1427-T-24, 2013 WL 4437246, at *4 (M.D.
Fla. Aug. 16, 2013); Vazquez v. Gen. Motors, LLC, No. 17-22209-CIV, 2018 WL 447644, at *6
(S.D. Fla. Jan. 16, 2018) (Fraudulent concealment claims in the products liability sphere that seek
to recover only economic damages are clearly barred by Florida’s economic loss rule).

For the reasons previously discussed, Plaintiff has also failed to allege damages as required
for a claim under FDUTPA. Rodriguez v. Recovery Performance & Marine, LLC, 38 So. 3d 178,
180 (Fla. 3d DCA 2010) (citation omitted) (“[W]hen a plaintiff in her complaint fails to allege a
recoverable loss under FDUTPA, the complaint fails to state a cause of action
under FDUTPA.”); Winston v. Stillman, No. 13000312, 2014 WL 1688458, at *2 (Fla. Cir. Ct.
Apr. 23, 2014) (dismissing plaintiff's claim under FDUTPA with prejudice at the motion to
dismiss phase where the alleged damages were “unsupported by fact, purely speculative, and
incapable of being calculated under FDUTPA's standard for determining actual damages”);
Maroone Chevrolet, Inc. v. Nordstrom, 587 So. 2d 514, 518 (Fla. 4th DCA 1991), (holding that
the plaintiff could not recover under FDUTPA because she did not prove that she suffered a loss
due to the defendant's conduct...the court looked at Section 501.211(2), Florida Statutes, which

states, “In any individual action brought by a consumer who has suffered a loss as a result of aviolation of this part ...” Jd. at 518-19. From this section, the court found that “it is clear that an
actual loss must be shown prior to recovery under chapter 501 ....”).
Accordingly, dismissal of Count III of the FAC is appropriate.

(iii) Plaintiff’s FAC is Time-Barred and not Otherwise Preserved by any Doctrine of
Tolling

As demonstrated by the face of the FAC, Plaintiff is negligent and guilty of laches for
failing to timely file his lawsuit. Based on the date of Plaintiff’s vehicle purchase, July 13, 2009
and discovery of the alleged defect, “After purchasing the Vehicle,” all claims are time-barred.
See FAC 9 14, 16. Specifically, all of Plaintiffs’ claims expired on or about July 13, 2014.6

Florida courts have routinely dismissed time-barred claims under similar circumstances,
including at the motion to dismiss phase. See, ¢.g., Castellanos v. Midland Funding LLC, No.
215CV559FTM99MRM, 2016 WL 25918 (M_D. Fla. Jan. 4, 2016) (Granting defendant’s motion
to dismiss certain time-barred claims); McKnight v. Reynolds, No. 2:14-CV-185-FTM-38, 2014
WL 4232557, at *3 (M.D. Fla. Aug. 27,2014) (Granting defendant’s motion to dismiss a 10-count
Complaint as all claims were time-barred); Ryan v. Lobo De Gonzalez, 841 So. 2d 510 (Fla. Dist.
Ct. App. 2003) (Affirming trial court’s decision granting summary judgment to defendant for
plaintiffs time-barred claims, notwithstanding claim that delayed discovery doctrine and estoppel

were applicable.)

© Although the statute of limitations for breach of express warranty under Florida law is five years from
discovery of the breach, the warranty at issue is a four-year limited warranty and the terms of the express
warranty control. See Aprigliano v. Am. Honda Motor Co.,979 F. Supp. 2d 1331, 1339-40 (S.D. Fla. 2013)
(“A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms
of that warranty.”); see also, Weinreich v. Toyota Motor Sales, U.S.A., Inc., No. CV 2:18-3294-RMG, 2019
WL 5684376, at *3 (D.S.C. Oct. 31, 2019); Fairchild v. Kubota Tractor Corp., No. 1:18CV69, 2018 U.S.
Dist. LEXIS 143227, at *11 (W.D.N.C. Aug. 23, 2018)While Plaintiff does not dispute that his claims are time-barred by the applicable statutes
of limitation, he maintains that his claims were tolled due to fraudulent concealment, estoppel,
discovery rule tolling and class action tolling. Each of these tolling doctrines are inapplicable and
addressed in turn below.

For the reasons that Plaintiff’s FDUTPA claim fails, so too do his claims for tolling based
on fraudulent concealment and estoppel. As above-discussed, although Plaintiff claims that BMW
NA actively concealed the excessive oil consumption, his multiple references to publicly available
information, including internet links and TSBs from soon after his vehicle purchase, completely
undermines same. Notably, the United States Supreme Court has dismissed claims as untimely,
notwithstanding purported fraudulent concealment. In Klehr v. A.O. Smith Corp., 521 U.S. 179,
117 S. Ct. 1984, 138 L. Ed. 2d 373 (1997), the Court specifically held that plaintiffs could assert
fraudulent concealment only if they were reasonably diligent in trying to discover their claims.
This is clearly not the case here where a simple internet search would have placed Plaintiff on
notice of his purported claims. Under such circumstances, dismissal of Plaintiff's FAC is
appropriate. See e.g., W. Brook Isles Partner's 1, LLC v. Com. Land Title Ins. Co., 163 So. 3d 635
(Fla. Dist. Ct. App. 2015) (affirming trial court’s decision granting summary judgment to
defendant based on the absence of any evidence of fraudulent concealment).

Similarly, Plaintiff fraudulent concealment claim is barred by the economic loss doctrine.
While Plaintiff posits that the doctrine is inapplicable to fraudulent concealment in the tolling
context, he proffers no case law supporting this position. Given that Plaintiff is attempting to use
tolling based on alleged fraudulent concealment to recover purely economic damages in the
products liability context, there is no appreciable difference. See e.g., Vazquez v. Gen. Motors,

LLC, No. 17-22209-CIV, 2018 WL 447644, at *6 (S.D. Fla. Jan. 16, 2018) (Fraudulentconcealment claims in the products liability sphere that seek to recover only economic damages
are clearly barred by Florida’s economic loss rule).

Plaintiff’s claims are also not tolled by discovery rule tolling as the FAC clearly reflects
that he was aware of the purported defect “After purchasing the Vehicle”. See FAC 916.
Plaintiff’s attempt for the first time to distinguish “symptoms” of the defect from the purported
defect itself is unsupported by the facts or any case law. The issue with Plaintiff’s vehicle has
remained the same since his purchase, i.e., adding oil to the vehicle, without any actual engine
failure, and in any event, the “symptoms” were again sufficient to place him on inquiry notice of
his alleged claim by a simple internet search. This is clearly the type of reasonable diligence
required by Plaintiff pursuant to Klehr v. A.O. Smith Corp. for tolling to be arguable.

Finally, Plaintiff’s allegations that class action tolling is applicable is also without merit
and Plaintiff offers absolutely no Florida law in support of same. The Bang class settlement
agreement allows individuals who opt out from pursuing their own claims against BMW NA, so
long as those claims were the same claims as those raised in the Bang Class Action. See, e.g.,
Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345,76 L. Ed. 2d 628. This is not the case here,
as Plaintiff’s state-based claims are not alleged in Bang. As further discussed below, Florida also
strictly construes available tolling doctrines and has not_adopted American Pipe tolling.
Moreover, Plaintiff has added new allegations regarding the applicable time periods for tolling for
the first time in his Opposition and as such, they should not be considered in response to BMW
NA’s Motion. Further, all of Plaintiff's claims expired before Bang and cannot otherwise benefit
from class action tolling even if it was applicable.

As an initial matter, American Pipe tolls claims after denial of certification. The doctrine

does not apply when a class has been certified pursuant to a settlement. See, e.g., Chazen v.Deloitte & Touche, llp 247 £. supp 2d 1259, 1272 (N.D. Ala.), aff'd in part, and rev’d in part, 88
def. app’x 390 (11 cir. 2003) (table disposition) (“The more persuasive reasoning rests in those
cases that have refused to extend the equitable tolling doctrine to cases in which plaintiff
consciously chooses not to participate in the class action.”); Chemco, Inc. v. Stone, McGuire &
Benjamin, np. 91-5041, 1992 U.S. Dist (“Only if class certification is denied... would the putative
class members be able to bring suits individually under American Pipe.”)

And, the mere adoption of American Pipe tolling by a state’s courts does not
automatically render the doctrine applicable when the initial class action is filed in a different
state. See 3 NewBerg on Class Actions Sec 9:67 (5" ed. 2013) (noting three possibilities regarding
tolling under state law, including when “the statute of limitations ... recognizes American Pipe
tolling, but only if the initial class suit was filed in that state’s courts”). Tolling Plaintiff’s claims
in Florida because of a class settlement in New Jersey is inequitable to BMW NA and serves none
of American Pipe’s policy goals and is rejected under Florida law, as elaborated upon below. See
Quinn v. La. Citiens Prop. Ins.,2012 WL 5374255, at *18 (La. 2012) (holding cross-jurisdictional

tolling “underscore[s] the unfairness to defendants, and to the state itself, of permitting another
jurisdiction’s laws and the efficiency (or inefficiency) of its operations to control the
commencement of a statute of limitations ... undermining the very purpose of statutes of
limitations”).

Under Florida law, § 95.051 (2016), Fla. Stat. addresses tolling of the statute of
limitations and there is no provision in the statute that permits tolling based on class actions. That
said, Florida courts strictly construe their interpretation of the statute. See, e.g., Foxworth v. Kia

Motors Corp., 377 F. Supp. 2d 1196, 1203 n.9 (N.D. Fla. 2005) (“Florida law does not allow the

tolling of statutes of limitation for any reasons other than those specifically enumerated in Fla.Stat. § 95.051.”); Senger Bros. Nursery v. E.I. Dupont de Nemours & Co., 184 F.R.D. 674, 685
(MLD. Fla. 1999) (“Florida Statute § 95.051 does not permit tolling of statutes of limitation for
any reason, other than those specifically included in the statute.”); In re Se. Banking Corp., 855
F. Supp. 353, 357 (S.D. Fla. 1994) (“Only those circumstances expressly provided by the statute
will toll the statute of limitations.”); Major League Baseball v. Morsani, 790 So. 2d 1071, 1075
(Fla. 2001) (“Section 95.051 delineates an exclusive list of conditions that can ‘toll’ the running
of the statute of limitations . . . .”); Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000)
(deferring to legislative intent that no tolling exceptions exist to § 95.051); HCA Health Servs. of
Fla., Inc. v. Hillman, 906 So. 2d 1094, 1098 (Fla. Dist. Ct. App. 2004) (“[T]he legislature has
made clear its intent to exclude all tolling exceptions not listed in the statute . . . [and] unlike the
majority of states, Florida has chosen not to adopt a ‘savings statute’ that allows a plaintiff whose
case has been dismissed otherwise than on the merits to pursue the action even though the statute
of limitations has run.”).

Consistent with Florida’s strict construction of § 95.051 (2016), Fla. Stat., Florida courts
have specifically not adopted American Pipe tolling as law. See Hromyak v. Tyco Int’l, Ltd., 942
So. 2d 1022 (Fla. Dist. Ct. App. 2006) (explaining that the Hromyak “court applied American Pipe
tolling to a federal statute of limitations, and thus has ‘little persuasive value’ on the issue of
Florida law”); see also Becnel v. Deutsche Bank, AG, 507 Fed. App’x 71,73 (2d Cir. 2013) (citing
§ 95.051(2) (2012), Fla. Stat.) (“Florida does not allow tolling during the pendency of class action
lawsuits no matter where they are filed”); Jn re Vitamins Antitrust Litig., 183 Fed. App’x 1 (D.C.
Cir. 2006) (noting with reference to § 95.051(2), Fla. Stat. that “...the Florida Supreme Court has
plainly stated this list represents the exclusive list of conditions that can ‘toll’ the running of the

statute of limitations.”)Further, Plaintiff’s reliance on the Notice of Settlement (“Notice”) in the Bang Class
Action as grounds to toll his otherwise time-barred claims is unavailing. Bang was not resolved
on the merits and has no bearing, whatsoever, on the timeliness of Plaintiffs claims. While the
Notice may have advised Plaintiff of the right to opt-out of the class action settlement, it in no
way provided any representations or assurances regarding the merits of Plaintiff’s independent
claims, including the timeliness of same under state law. See Bang v. BMW of North America,
LLC, No. 15-cv-06945 (ECF No. 112 at p. 15 of 38). Plaintiff was at all times free to consult with
counsel prior to deciding to opt-out. Therefore, it is not patently unjust for this Court to dismiss
Plaintiff’s time-barred claims due to his own lack of due diligence. Conversely, it would be
inequitable and inconsistent with Florida’s decisional authority, to allow Plaintiff’s time-barred
claims to proceed.

Based on the foregoing, and as further discussed in BMW NA’s Motion, Plaintiff’s FAC
should be dismissed in its entirety.

WHEREFORE, Defendant, BMW of North America, LLC, respectfully asks this
Honorable Court to enter an Order dismissing Plaintiff's First Amended Complaint, with
prejudice, pursuant to Rules 1.140(b)(1), 1.140(b)(3), 1.140(b)(7) and 1.140(b)(6) of the Florida
Rules of Civil Procedure; and to the extent that Plaintiff's claims are not dismissed, requiring that
Plaintiff provide a more definite statement, as to Count I, Count II and Count III in compliance
with applicable Florida law; and for such other and further relief that this Court deems just and

proper.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail
via the Florida Courts E-Filing Portal system on this 14" day of September, 2020, upon: Matthew
Fomaro, Esq., and Vlad Hirnyk, Attorneys for Plaintiff at mfornaro@fornarolegal.com and

filings @lemberglaw.com.

 

BIEDERMANN HOENIG SEMPREVIVO, P.A.
601 Brickell Key Drive, Suite 700

Miami, Florida 33131

(646) 218-7541 Ext. 541- Telephone

(646) 218-7510- Fascimile

E-mail: suzanne.valles@lawbhs.com

By: /s/ Suzanne M. Valles
SUZANNE M. VALLES
Florida Bar No. 124546