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Filing # 111342323 E-Filed 08/05/2020 03:50:13 PM
IN THE CIRCUIT COURT OF SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
Alande Brezault,
Plaintiffs, :
v. : CASE NO.: CACE-19-025622
BMW of North America, LLC,
Defendant.
PLAINTIFF’S NOTICE OF FILING OF EXHIBITS IN SUPPORT OF HIS
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
Plaintiff Alande Brezault, by and through undersigned counsel, hereby gives notice of filing
of Exhibits in Opposition of Defendant BMW of North America, LLC’s, Motion to Dismiss.
Dated: August 5, 2020 Respectfully submitted,
By: _/s/ Matthew Fornaro
Matthew Fornaro, Esq.
Florida Bar No. 0650641
Matthew Fornaro, P.A.
11555 Heron Bay Boulevard, Suite 200
Coral Springs, FL 33076
Telephone: (954) 324-3651
Facsimile: (954) 248-2099
Email: mfornaro@ fornarolegal.com
Secondary email: filings @lemberglaw.com
Attorneys for Plaintiff
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/05/2020 03:50:12 PM.****CERTIFICATE OF SERVICE
Thereby certify that on August 5, 2020, a true and correct copy of the foregoing Notice of
Filing of Exhibits in Opposition of Defendant’s Motion to Dismiss was served by e-mail via Florida
Courts E-Filing Portal system upon: Suzanne M. Valles, Esq., Attorneys for Defendant at
suzanne. valles@lawbhs.com.
Matthew Fornaro, Esq.
Matthew Fornaro, P.A.
11555 Heron Bay Boulevard, Suite 200
Coral Springs, FL 33076
Telephone: (954) 324-3651
Facsimile: (954) 248-2099
Email: mfornaro@fornarolegal.com
Secondary email: filings @lemberglaw.com
Attorneys for Plaintiff
By /s/ Matthew Fornaro
Matthew Fornaro, Esq.
Florida Bar No. 0650641EXHIBIT ASubject: FW: Activity in Case 1:18-cv-12239-IT Schneider et al v. BMW of North America, LLC et al
Order on Motion for Reconsideration
From: ECFnotice@mad.uscourts.gov [mailto:ECFnotice@mad.uscourts.gov]
Sent: Friday, November 22, 2019 3:40 PM
To: CourtCopy@mad.uscourts.gov
Subject: Activity in Case 1:18-cv-12239-IT Schneider et al v. BMW of North America, LLC et al Order on Motion for
Reconsideration
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United States District Court
District of Massachusetts
Notice of Electronic Filing
The following transaction was entered on 11/22/2019 at 3:40 PM EST and filed on 11/22/2019
Case Name: Schneider et al v. BMW of North America, LLC et al
Case Number: 1:18-cv-12239-IT
Filer:
Document Number: 59(No document attached)
Docket Text:
Judge Indira Talwani: ELECTRONIC ORDER: Defendant moves for reconsideration of the
court's Order [54] denying Defendant's Motion to Dismiss for Lack of Jurisdiction [47].
Defendant argues that it was manifest error of law, for the purposes of assessing the amount-
in-controversy, for the court to consider cost of repair as a proxy for value-as-delivered
without an allegation that Plaintiffs had performed the repairs. However, the cases cited by
Defendant do not stand for the proposition that cost of repair may only be used as a measure
of diminution in value if the repair has been performed by the time of filing. Defendant's
Motion for Reconsideration [57] is therefore DENIED.
The court notes that Defendant's counsel, for the second time in the course of this
proceeding, has accused Plaintiffs’ counsel of a serious violation of professional ethics.
(Kelly, Danielle)
1:18-cy-12239-IT Notice has been electronically mailed to:
1Bruce H. Norwell bhnorwell@norwelllaw.com
Sergei Lemberg slemberg@lemberglaw.com, filings@lemberglaw.com
Philip Semprevivo, Jr PHILIP.SEMPREVIVO@LAWBHS.COM, Sara. Thompson@lawbhs.com
1:18-ey-12239-IT Notice will not be electronically mailed to:
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LoginEXHIBIT BViad Hirnyk
Subject: FW: Activity in Case 1:18-cv-07168-MKB-CLP Shumakh et al v. BMW of North America, LLC
et al Order on Motion to Dismiss for Failure to State a Claim
From: ecf_bounces@nyed.uscourts.gov
Sent: Friday, March 20, 2020 2:30 PM
To: nobody@nyed.uscourts.gov
Subject: Activity in Case 1:18-cv-07168-MKB-CLP Shumakh et al v. BMW of North America, LLC et al Order on Motion to
Dismiss for Failure to State a Claim
This is an automatic e-mail message generated by the CIM/ECF system. Please DO NOT RESPOND to this e-
mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of
record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents
filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other
users. To avoid later charges, download a copy of each document during this first viewing. However, if the
referenced document is a transcript, the free copy and 30 page limit do not apply.
U.S. District Court
Eastern District of New York
Notice of Electronic Filing
The following transaction was entered on 3/20/2020 at 2:29 PM EDT and filed on 3/20/2020
Case Name: Shumakh et al v. BMW of North America, LLC et al
Case Number: 1:18-cv-07168-MKB-CLP
Filer:
Document Number: No document attached
Docket Text:
Minute Entry: Oral argument was held on March 20, 2020 before Judge Margo K. Brodie
regarding defendants motion to dismiss. Sergei Lemberg appeared on the behalf of plaintiffs;
Philip Semprevivo and Sara Elizabeth Thompson appeared on behalf of defendant. For the
reasons stated on the record, the Court denied defendant's motion to dismiss and declines to
sever plaintiffs’ claims. Although the MMWA and UCC claims as to plaintiff Castagna are
untimely, the Court grants plaintiffs’ request and delays the dismissal of those claims for 30
days. (Court Reporter Linda Danelcyk.) (Williams, Tenisha)
1:18-cv-07168-MKB-CLP Notice has been electronically mailed to:
Philip Semprevivo —Philip.Semprevivo@lawbhs.com
Sergei Lemberg slemberg@lemberglaw.com, filings@lemberglaw.com
Sara Elizabeth Thompson _ sara.thompson@lawbhs.comEXHIBIT CCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 1 of 18
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JERRY MOORE, YURIY
GOLONKO, NICOLE PASS, SONYA
DEWBERRY, DOROTHY
JACKSON, ANTHONY OSBORN
and DWAIN JONES,
Plaintiffs, CIVIL ACTION NO.
1:18-cv-05169-JPB
Vv.
BMW OF NORTH AMERICA, LLC
and BAVARIAN MOTOR WORKS,
Defendants.
ORDER
Before the Court is Defendant BMW of North America, LLC’s (“BMW”)
Motion to Dismiss Plaintiffs’ First Amended Complaint and, Alternatively, Motion
to Sever (“Motion”). ECF No. 15. Having reviewed and fully considered the
papers filed therewith,! the Court finds as follows:
! The Court notes that Plaintiffs filed six notices of supplemental authority,
attaching multiple decisions (and even a transcript of oral argument) from courts
across the country. Plaintiffs are cautioned that a notice of supplemental authority
should be used only for “pertinent and significant authorities.” See, e.g., Fed. R.
App. P. 28(j) (emphasis added).Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 2 of 18
I. BACKGROUND
Plaintiffs Jerry Moore (“Moore”), Yuriy Golonko (“Golonko”), Nicole Pass
(“Pass”), Sonya Dewberry (“Dewberry”), Dorothy Jackson (“Jackson”), Anthony
Osborn (“Osborn”) and Dwain Jones (“Jones”) (collectively “Plaintiffs”) filed a
complaint against Defendants alleging Breach of Warranty Pursuant to the
Magnuson-Moss Warranty Act (Count I); Breach of Implied Warranty of
Merchantability Pursuant to the Magnuson-Moss Federal Act and O.C.G.A § 11-2-
314 (Count II); Breach of Express Warranty Under O.C.G.A. § 11-2-313 (Count
III); Violation of the Georgia Fair Business Practices Act (“GFBPA”) (Count IV);
and Violation of the Florida Deceptive and Unfair Trade Practices Act as to
Plaintiff Moore (Count V).
Plaintiffs allege that they purchased BMW vehicles designed with an N63
engine, which has “‘a manufacturing defect [that] causes each of the subject
vehicles to consume engine oil at an extremely rapid rate.” They assert that N63
engines are “widely recognized” to “require frequent engine repairs, especially as
compared to other, similar vehicles not containing N63 engines” and that “[s]ome
owners and enthusiasts blame the oil consumption on BMW’s decision to place the
N63’s twin-turbochargers between the cylinder heads, and inside of the engine V,Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 3 of 18
rather than outside of the engine V, away from sensitive components, where
turbochargers are typically located.”
Plaintiffs further claim that BMW assured them that the vehicles were free
of workmanship defects and failed to disclose the N63 engine defect to them prior
to their purchase of the vehicles. They also allege that in making their purchase
decision, they relied on the availability of BMW’s New Vehicle Limited Warranty,
which covers defects in material and workmanship for four years or 50,000 miles
following delivery of the vehicles.
As a result of their complaints regarding oil consumption, Plaintiffs allege
that their respective dealerships attempted to repair the vehicles, and BMW took
certain action, including providing repair or technical service bulletins to the
dealerships and releasing a “Care Package” to be applied to the vehicles.
Plaintiffs assert that they have suffered damages due to the alleged defect,
including being forced to add oil to their engines more frequently than expected
and prior to the recommended oil change intervals, more frequent service visits and
increased maintenance costs. They also claim they fear that “[i]f [they] continue to
drive without adding oil, their vehicles might catastrophically fail and strand them
or potentially cause a life-threatening accident.” They maintain the defect
discourages them from traveling long distances in their vehicles or forces them toCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 4 of 18
carry an extra supply of oil. They also expect to suffer “significant loss” when
they sell their vehicles due to the vehicles’ diminished reputation.
Although the allegation of the N63 engine defect is common to all Plaintiffs,
each Plaintiff owns a different make and model vehicle; purchased it from a
different dealer; experienced the alleged defect at a different level of severity; and
had a different experience with repair attempts at the respective dealerships:
¢ Moore owns a 2011 750i, which he purchased from an authorized dealer
in Jacksonville, Florida in July 2013. He alleges the defect made it
necessary to add one quart of oil to the car’s engine every 1,000 miles.
He claims he has spent $3,950 in out-of-pocket expenses related to the
issue.
¢ Golonko owns a 2011 X6, which he purchased from a dealer in Marietta,
Georgia in September 2013. He alleges the defect made it necessary to
add two quarts of oil to the car’s engine every 2,500 miles. He claims he
has spent $500 in out-of-pocket expenses related to the issue.
e Pass owns a 2011 750li, which she purchased from an authorized dealer
in Atlanta, Georgia in September 2013. She alleges the defect made it
necessary to add one quart of oil to the car’s engine every 2,500 to 2,800
miles. She claims she has spent $2,000 in out-of-pocket expenses related
to the issue.
e Dewberry owns a 2010 750LXi, which she purchased from a dealer in
Stockbridge, Georgia in March 2013. She alleges the defect made it
necessary to add one quart of oil to the car’s engine every 300 miles. She
claims she has spent $5,720 in out-of-pocket expenses related to the
issue.
e Jackson owns a 2011 550i, which she purchased from an authorized
dealer in Macon, Georgia in September 2013. She alleges the defect
made it necessary to add one quart of oil to the car’s engine every 1,000Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 5 of 18
miles. She claims she has spent $2,600 in out-of-pocket expenses related
to the issue.
e Osborn owns a 2011 X6 50i, which he purchased from an authorized
dealer in Atlanta, Georgia in 2014. He alleges the defect made it
necessary to add two quarts of oil to the car’s engine every 3,000 miles.
e Jones owns a 2013 X5 50i, which he purchased from a dealer in Atlanta,
Georgia in October 2016. He alleges the defect made it necessary to add
one quart of oil to the car’s engine every 2,000 miles.
Il. DISCUSSION
A. Standard of Review
In evaluating a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the court “accept[s] the allegations in the complaint as true and
constru[es] them in the light most favorable to the plaintiff.” Traylor v. P’ship
Title Co., LLC, 491 F. App’x 988, 989 (11th Cir. 2012). “[A] plaintiff's obligation
to provide the grounds of his entitlement to relief], however,] requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
punctuation omitted). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (A
complaint does not suffice “if it tenders naked assertions devoid of further factual
enhancement.”) (internal punctuation omitted) (quoting Twombly, 550 U.S. at
557).Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 6 of 18
Moreover, “[flactual allegations must be enough to raise a right to relief
above the speculative level.” /d. “This standard does not require a party to plead
facts with such particularity to establish a significant probability that the facts are
true, rather, it requires a party’s pleading of facts to give rise to a ‘reasonable
2
expectation that discovery will reveal evidence [supporting the claim].”” Burch v.
Remington Arms Co., LLC, No. 2:13-cv-00185, 2014 WL 12543887, at *2 (N.D.
Ga. May 6, 2014) (quoting 7wombly, 550 U.S. at 555). See also Twombly, 550
US. at 570 (dismissing complaint because the plaintiffs did not state facts
sufficient to “nudge[] their claims across the line from conceivable to plausible”).
At bottom, the complaint must contain more than “an unadorned, the-
defendant-unlawfully-harmed-me accusation” (/gbal, 556 U.S. at 678) and must
“plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Traylor, 491 F. App’x at 990
(quoting /gbal, 556 U.S. at 678).
B. Legal Analysis
Statute of Limitations
BMW argues that because Plaintiffs’ claims were filed outside the
limitations period, they should be dismissed as time-barred.Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 7 of 18
Plaintiffs counter that their claims are timely because the statute of
limitations was tolled as a result of a class action filed against BMW regarding the
same claims (the “Bang Class Action”), and the clock did not restart until Plaintiffs
filed notice that they were opting out of that action. They also argue that the
statute of limitations should be tolled due to BMW’s fraudulent concealment of the
N63 defect.
Since the parties agree that the claims would be time-barred if the statute of
limitations were not tolled, the Court will focus on Plaintiffs’ tolling argument.
Plaintiffs primarily cite Howell v. Bridge Terminal Transport, Inc., No.
1:08-cv-2085, 2009 WL 10699684, at *5—6 (N.D. Ga. Sept. 29, 2009) as support
for their position that tolling is appropriate here. In that case, the plaintiffs opted
out of a certified class and filed their complaint after the expiration of the
limitations period, but the district found that the action was not time-barred
because Supreme Court precedent permitting tolling of the statute of limitations for
plaintiffs who file an individual action after a class is decertified was similarly
applicable to cases where the plaintiffs opted out of a certified class to file a
separate action. /d. The court rejected the defendant’s argument that the plaintiffs
should not benefit from tolling because they chose to opt out of a certified class,
explaining that because most plaintiffs wait to learn the terms of a proposedCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 8 of 18
settlement before deciding whether to opt out, a rule that does not toll the
limitations period up to that point would potentially force plaintiffs to opt out well
before any possibility of the large scale resolution of claims that is at the heart of
the class action mechanism. /d.
Although the Eleventh Circuit has not addressed this issue, as Plaintiffs
point out, other circuits have likewise found that the class action tolling rule
applies when plaintiffs opt out of a certified class. See, e.g., Realmonte v. Reeves,
169 F.3d 1280, 1284 (10th Cir. 1999) (stating that “the fact that the [plaintiffs’]
participation in the class action terminated with a decision to opt out of a certified
class rather than with the denial of class certification is irrelevant to the
applicability of the [class action] tolling rule”); Adams Pub. Sch. Dist. v. Asbestos
Corp., 7 F.3d 717, 719 n.1 (8th Cir. 1993) (noting that class action tolling does not
depend on whether the plaintiff opts out of a certified class or whether class
certification was denied).
The Supreme Court’s decision in Crown, Cork & Seal Co. v. Parker, 462
U.S. 345 (1983) supports the reasoning of these courts. There, the Court stated
that the tolling rule for class actions applied to “class members who choose to file
separate suits” and emphasized that it would make no sense to allow class
members to elect to file their claims “separately” but at the same time prevent themCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 9 of 18
from doing so by finding that the limitations period had expired while the class
action was pending. /d. at 351. The Court further noted that a class action tolling
tule is not inconsistent with the purpose of a limitations period because the
commencement of a class action both puts the defendant on notice of adverse
claims and prevents the plaintiff from sleeping on his rights. /d. at 352-53.
Although the Crown Court decided the specific question of whether tolling
applied in class decertification cases, it did not expressly or implicitly limit its
decision to such cases, and as noted above, other courts have declined to make this
distinction. This Court sees no reason why it should go in a different direction.
BMW’s reliance on China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018) is
misplaced. That case involved a new class action filed after the plaintiffs opted
out of the initial class and is inapposite here.”
Based on the foregoing analysis, the Court finds that the applicable statutes
of limitation were tolled for almost three years during the pendency of the Bang
Class Action and until Plaintiffs filed their opt-out notices. Because the plaintiffs
? BMW’s claim that this action is “tantamount to a successive class action” is not
supported by the pleadings filed in this case.Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 10 of 18
filed this action within the time allowed by the statute of limitations (plus time
added for tolling), it is not time-barred.*
Il.
Breach of Express Warranty
The crux of BMW’s argument is that (i) the Complaint alleges that the N63
engine oil consumption issue was caused by a design defect, which is not covered
by the subject vehicles’ warranty; and (ii) because the vehicles’ Service and
Warranty Information Booklet notified Plaintiffs that they would need to add oil to
the engine between oil changes, Plaintiffs were not damaged by having to take
such action.
Plaintiffs do not contend that the New Vehicle Limited Warranty covers
design defects. Rather, they argue that they have adequately pleaded that the N63
engine issue was caused by a manufacturing defect, which is covered by the
warranty.
While the Complaint does allege that the N63 engine contains “a
manufacturing defect” that causes it to consume oil excessively, BMW argues that
another allegation in the Complaint that “[s]ome owners and enthusiasts” blame
3 In light of this ruling, the Court need not reach Plaintiffs’ fraudulent concealment
argument for tolling the statute of limitations.
10Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 11 of 18
the oil consumption issue on BMW’s design of the vehicle demonstrates that
Plaintiffs’ claim is actually one of design defect.
At the motion to dismiss stage, however, the court accepts the allegations in
the complaint as true and construes them in the light most favorable to the plaintiff.
See Traylor, 491 F. App’x at 989. Further, the court only tests the sufficiency of
the allegations and does not weigh the facts. See Reid v. Insuramerica Ins., Corp.,
No. 1:06-cv-1039, 2006 WL 8433559, at *8 (N.D. Ga. Aug. 14, 2006); Chartis Ins.
Co. of Canada v. Freeman, No. 1:11-cv-193, 2013 WL 12121864, at *3 (S.D. Ga.
Mar. 18, 2013). Accordingly, the Court will accept as true Plaintiffs’ allegation
that the oil consumption issue was caused by a manufacturing defect and will not
weigh in on the dispute of whether the defect was caused by a design or a
manufacturing defect.
With respect to damages, Plaintiffs have alleged not only that they were
required to add oil to their engines prior to oil change service visits but also that
their vehicles have diminished in value and may “catastrophically fail” due to the
alleged defect. These allegations are sufficient to state damages at the motion to
dismiss stage.
Accordingly, the Court finds that Plaintiffs have stated a claim for breach of
express warranty.
llCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 12 of 18
Il.
Breach of Implied Warranty
BMW argues that Plaintiffs’ breach of implied warranty of merchantability
claim should fail because the vehicles are operable and are therefore merchantable.
Further, BMW argues that Plaintiffs lack privity with it because (i) it is the
distributor and not the manufacturer of the vehicles and (ii) certain Plaintiffs did
not purchase their vehicles from an authorized dealer.
In response, Plaintiffs assert that their vehicles are not merchantable because
the alleged defect “go[es] to the heart of the vehicles’ safety.” They also argue that
they have privity with BMW because BMW, as the distributor of the vehicles, is
responsible for fulfilling the warranty covering the vehicles.
It is well-settled that “[i]mplied warranties ... arise out of a contract for sale
of goods and can only run to a buyer who is in privity of contract with the party
against whom the implied warranty is being asserted.” McQueen v. Minolta Bus.
Sols., Inc., 620 S.E.2d 391, 393 (Ga. Ct. App. 2005). Thus, “when a buyer
purchases a product from a retailer, and there is no privity of contract between the
manufacturer and the buyer, no implied warranty runs from the manufacturer to the
purchaser.” Id. See also Chrysler Corp. v. Wilson Plumbing Co., 208 S.E.2d 321,
323 (Ga. Ct. App. 1974) (stating that “ordinarily ... there is no implied warranty
12Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 13 of 18
existing between a manufacturer and an ultimate consumer [because] no privity of
contract exists between the two”).
However, “where an automobile manufacturer, through its authorized
dealer issues to a purchaser of one of its automobiles from such dealer admittedly
as a part of the sale a warranty by the manufacturer running to the purchaser,
privity exists.” /d. (emphasis added). See also Hemmings v. Camping Time RV
Ctrs., LLC, No. 1:17-cv-1331, 2017 WL 4552896, at *6 (N.D. Ga. Oct. 11, 2017)
(stating that “where the manufacturer extends an express warranty to the end
consumer, privity is created that satisfies the requirements of the implied warranty
of merchantability”).
Here, BMW argues that because the Complaint does not allege that it is the
manufacturer of the vehicles, the plain language of Chrysler demonstrates that no
privity exists between it—the distributor—and Plaintiffs.
On the other hand, Plaintiffs argue that BMW’s “manufacturer” versus
“distributor” argument is a “distinction without a difference.” They contend the
Chrysler court “was concerned with situations where a warrantor provides a
warranty directly to the purchaser as part of the sale of a vehicle, but the seller of a
car is a warrantor’s authorized dealership, rather than the warrantor itself.”
13Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 14 of 18
Plaintiffs’ analysis of the Chrys/er decision is a stretch. In Chrys/er, the
manufacturer of the subject vehicle was a party to the action, so the court had no
reason to (and did not) address the specific circumstance of whether privity exists
with an automobile distributor or the entity fulfilling the vehicles’ warranty. Jd.
See also Helpling v. Rheem Mfg. Co., No. 1:15-cv-2247, 2016 WL 1222264, at *5
(N.D. Ga. Mar. 23, 2016) (noting that “Chrysler held that a warranty supplants
privity only in certain circumstances—specifically, when a manufacturer issues a
warranty to remote purchasers through an authorized dealer and when the warranty
is part of the remote consumer’s purchase’) (citing Jn re Porsche Cars N. Am.,
Inc., 880 F. Supp. 2d 801 (S.D. Ohio 2012)). Plaintiffs have not cited any decision
in which the court found privity with a distributor like BMW, and the Court is not
aware of any Georgia decision finding so.
Although the Tershakovec vy. Ford Motor Co. decision, which BMW cites,
involved Florida law, it nevertheless provides an example of a court finding no
privity for an implied warranty claim where the defendant is the distributor and not
the manufacturer. No. 17-21087, 2018 WL 3405245, at *10 (S.D. Fla. July 12,
2018).
14Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 15 of 18
The Court therefore finds that Plaintiffs lack privity with BMW.* Asa
result, they have failed to state a claim for breach of implied warranty, and Count
II of the Complaint is dismissed.
Iv.
The Georgia Fair Business Practices Act
BMW claims that Plaintiffs have not satisfied a condition precedent for
bringing a GFBPA claim because they did not allege that they provided the
requisite written demand for relief to BMW prior to filing this action.
Plaintiffs respond that they did provide the requisite notice to BMW and
dispute that they are required to plead such notice. In the alternative, they urge the
Court to allow them to amend the Complaint to allege such notice.
BMW has not cited any case law supporting its argument that a complaint
asserting GFBPA claims must be dismissed if it lacks allegation of notice, and it
did not even challenge Plaintiffs’ assertion that they did in fact provide the
requisite notice.
The Court does not rule on whether notice of claim must be alleged when
asserting a claim for violation of the GFBPA but will allow Plaintiffs to amend the
‘Tn light of this finding the Court need not reach BMW’s alternative argument that
the subject vehicles are merchantable.
15Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 16 of 18
Complaint to include such allegation. Amendment is proper given the early stage
of the litigation and because there is no prejudice to BMW since it does not dispute
that it received the notice. See Fed. R. Civ. P. 15(a)(2) (stating that the “[t]he court
should freely give leave [to amend] when justice so requires”).°
V.
Motion to Sever
BMW argues that Plaintiffs’ claims were improperly joined and asks the
Court to sever them because they arise out of different transactions, and each
vehicle has a different use and service history and will require testimony of
different witnesses. BMW maintains that keeping the claims together will
prejudice it and confuse the jury.
Plaintiffs oppose BMW’s motion because they contend that each Plaintiff's
vehicle contained the same defective N63 engine, and BMW had the same
knowledge regarding the defect and responded in the same way to the repair
requests. Plaintiffs conclude that because the claims share common questions of
law and fact, keeping and trying them together will conserve the Court’s resources.
5 Although “[f]iling a motion is the proper method to request leave to amend a
complaint” (Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999)), the Court grants
Plaintiffs’ request to amend in this instance in the interest of efficiency.
16Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 17 of 18
Joinder of claims “promote[s] trial convenience and expedite[s] the resolution
of disputes, thereby eliminating unnecessary lawsuits.” Alexander v. Fulton Cty.,
207 F.3d 1303, 1323 (11th Cir. 2000), overruled on other grounds by Manders v.
Lee, 338 F.3d 1304 (11th Cir. 2003). The prerequisites for joinder are: “1) a right
to relief arising out of the same transaction or occurrence, or series of transactions
or occurrences, and 2) some question of law or fact common to all persons seeking
to be joined” (id.), although courts have “virtually unfettered discretion in
determining whether ... severance is appropriate” (Tillis v. Cameron, No. 1:07-cv-
0078, 2007 WL 2806770, at *5 (M.D. Ala. Sept. 25, 2007)). See also Spinnaker
Int'l L.L.C. v. Greenfence, LLC, No. 1:17-ev-2749, 2017 WL 5952270, at *1 (N.D.
Ga. Dec. 1, 2017) (stating that it is “within the district court’s broad discretion
whether to sever a claim”).
Where there are countervailing considerations to joining claims such as where
efficiency benefits are outweighed by the potential for prejudice, Federal Rule of
Civil Procedure Rule 42(b) authorizes courts to order separate trials.
Here, the Court agrees with Plaintiffs that because the alleged defect in the
N63 engine is central to each Plaintiffs claim, the claims share common questions
of law and fact, and it makes sense to keep them together—at least prior to trial.
See, e.g., El Fakih v. Nissan N. Am., Inc., No. 18-cv-60638, 2018 WL 4193675, at
17Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 18 of 18
*5 (S.D. Fla. July 26, 2018) (allowing the plaintiffs’ claims to proceed together
because they arose from the same transaction or occurrence and presented
“multiple” common questions of law and fact where they all claimed damages
from an alleged defect in the same transmission installed in their Nissan vehicles).
This ruling is without prejudice to BMW’s ability to later seek separate trials
pursuant to Rule 42(b).
Because the Court concludes that BMW’s Motion does not warrant oral
argument, BMW’s Request for Oral Argument on its Motion to Dismiss (ECF No.
16) is DENIED. See N.D. Ga. Civ. R. 7.1(E) (“Motions will be decided by the
Court without oral hearing, unless a hearing is ordered by the Court.”); Maid of the
Mist Corp. v. Alcatraz Media, LLC, No. 1:06-cv-0714, 2009 WL 10690300, at *4
(N.D. Ga. Dec. 22, 2009) (denying motion for oral argument pursuant to Local
Rule 7.1(E)).
SO ORDERED this 6th day of March, 2020.
0A
J. P. BOULEE
United States District Judge
18
Preview
Filing # 111342323 E-Filed 08/05/2020 03:50:13 PM IN THE CIRCUIT COURT OF SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Alande Brezault, Plaintiffs, : v. : CASE NO.: CACE-19-025622 BMW of North America, LLC, Defendant. PLAINTIFF’S NOTICE OF FILING OF EXHIBITS IN SUPPORT OF HIS OPPOSITION TO DEFENDANT’S MOTION TO DISMISS Plaintiff Alande Brezault, by and through undersigned counsel, hereby gives notice of filing of Exhibits in Opposition of Defendant BMW of North America, LLC’s, Motion to Dismiss. Dated: August 5, 2020 Respectfully submitted, By: _/s/ Matthew Fornaro Matthew Fornaro, Esq. Florida Bar No. 0650641 Matthew Fornaro, P.A. 11555 Heron Bay Boulevard, Suite 200 Coral Springs, FL 33076 Telephone: (954) 324-3651 Facsimile: (954) 248-2099 Email: mfornaro@ fornarolegal.com Secondary email: filings @lemberglaw.com Attorneys for Plaintiff *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/05/2020 03:50:12 PM.****CERTIFICATE OF SERVICE Thereby certify that on August 5, 2020, a true and correct copy of the foregoing Notice of Filing of Exhibits in Opposition of Defendant’s Motion to Dismiss was served by e-mail via Florida Courts E-Filing Portal system upon: Suzanne M. Valles, Esq., Attorneys for Defendant at suzanne. valles@lawbhs.com. Matthew Fornaro, Esq. Matthew Fornaro, P.A. 11555 Heron Bay Boulevard, Suite 200 Coral Springs, FL 33076 Telephone: (954) 324-3651 Facsimile: (954) 248-2099 Email: mfornaro@fornarolegal.com Secondary email: filings @lemberglaw.com Attorneys for Plaintiff By /s/ Matthew Fornaro Matthew Fornaro, Esq. Florida Bar No. 0650641EXHIBIT ASubject: FW: Activity in Case 1:18-cv-12239-IT Schneider et al v. BMW of North America, LLC et al Order on Motion for Reconsideration From: ECFnotice@mad.uscourts.gov [mailto:ECFnotice@mad.uscourts.gov] Sent: Friday, November 22, 2019 3:40 PM To: CourtCopy@mad.uscourts.gov Subject: Activity in Case 1:18-cv-12239-IT Schneider et al v. BMW of North America, LLC et al Order on Motion for Reconsideration This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. United States District Court District of Massachusetts Notice of Electronic Filing The following transaction was entered on 11/22/2019 at 3:40 PM EST and filed on 11/22/2019 Case Name: Schneider et al v. BMW of North America, LLC et al Case Number: 1:18-cv-12239-IT Filer: Document Number: 59(No document attached) Docket Text: Judge Indira Talwani: ELECTRONIC ORDER: Defendant moves for reconsideration of the court's Order [54] denying Defendant's Motion to Dismiss for Lack of Jurisdiction [47]. Defendant argues that it was manifest error of law, for the purposes of assessing the amount- in-controversy, for the court to consider cost of repair as a proxy for value-as-delivered without an allegation that Plaintiffs had performed the repairs. However, the cases cited by Defendant do not stand for the proposition that cost of repair may only be used as a measure of diminution in value if the repair has been performed by the time of filing. Defendant's Motion for Reconsideration [57] is therefore DENIED. The court notes that Defendant's counsel, for the second time in the course of this proceeding, has accused Plaintiffs’ counsel of a serious violation of professional ethics. (Kelly, Danielle) 1:18-cy-12239-IT Notice has been electronically mailed to: 1Bruce H. Norwell bhnorwell@norwelllaw.com Sergei Lemberg slemberg@lemberglaw.com, filings@lemberglaw.com Philip Semprevivo, Jr PHILIP.SEMPREVIVO@LAWBHS.COM, Sara. Thompson@lawbhs.com 1:18-ey-12239-IT Notice will not be electronically mailed to: Total Control Panel To: filings@lemberglaw.com Remove this sender from my allow list From: ecfnotice@mad.uscourts.gov You received this message because the sender is on your allow list. LoginEXHIBIT BViad Hirnyk Subject: FW: Activity in Case 1:18-cv-07168-MKB-CLP Shumakh et al v. BMW of North America, LLC et al Order on Motion to Dismiss for Failure to State a Claim From: ecf_bounces@nyed.uscourts.gov Sent: Friday, March 20, 2020 2:30 PM To: nobody@nyed.uscourts.gov Subject: Activity in Case 1:18-cv-07168-MKB-CLP Shumakh et al v. BMW of North America, LLC et al Order on Motion to Dismiss for Failure to State a Claim This is an automatic e-mail message generated by the CIM/ECF system. Please DO NOT RESPOND to this e- mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court Eastern District of New York Notice of Electronic Filing The following transaction was entered on 3/20/2020 at 2:29 PM EDT and filed on 3/20/2020 Case Name: Shumakh et al v. BMW of North America, LLC et al Case Number: 1:18-cv-07168-MKB-CLP Filer: Document Number: No document attached Docket Text: Minute Entry: Oral argument was held on March 20, 2020 before Judge Margo K. Brodie regarding defendants motion to dismiss. Sergei Lemberg appeared on the behalf of plaintiffs; Philip Semprevivo and Sara Elizabeth Thompson appeared on behalf of defendant. For the reasons stated on the record, the Court denied defendant's motion to dismiss and declines to sever plaintiffs’ claims. Although the MMWA and UCC claims as to plaintiff Castagna are untimely, the Court grants plaintiffs’ request and delays the dismissal of those claims for 30 days. (Court Reporter Linda Danelcyk.) (Williams, Tenisha) 1:18-cv-07168-MKB-CLP Notice has been electronically mailed to: Philip Semprevivo —Philip.Semprevivo@lawbhs.com Sergei Lemberg slemberg@lemberglaw.com, filings@lemberglaw.com Sara Elizabeth Thompson _ sara.thompson@lawbhs.comEXHIBIT CCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 1 of 18 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JERRY MOORE, YURIY GOLONKO, NICOLE PASS, SONYA DEWBERRY, DOROTHY JACKSON, ANTHONY OSBORN and DWAIN JONES, Plaintiffs, CIVIL ACTION NO. 1:18-cv-05169-JPB Vv. BMW OF NORTH AMERICA, LLC and BAVARIAN MOTOR WORKS, Defendants. ORDER Before the Court is Defendant BMW of North America, LLC’s (“BMW”) Motion to Dismiss Plaintiffs’ First Amended Complaint and, Alternatively, Motion to Sever (“Motion”). ECF No. 15. Having reviewed and fully considered the papers filed therewith,! the Court finds as follows: ! The Court notes that Plaintiffs filed six notices of supplemental authority, attaching multiple decisions (and even a transcript of oral argument) from courts across the country. Plaintiffs are cautioned that a notice of supplemental authority should be used only for “pertinent and significant authorities.” See, e.g., Fed. R. App. P. 28(j) (emphasis added).Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 2 of 18 I. BACKGROUND Plaintiffs Jerry Moore (“Moore”), Yuriy Golonko (“Golonko”), Nicole Pass (“Pass”), Sonya Dewberry (“Dewberry”), Dorothy Jackson (“Jackson”), Anthony Osborn (“Osborn”) and Dwain Jones (“Jones”) (collectively “Plaintiffs”) filed a complaint against Defendants alleging Breach of Warranty Pursuant to the Magnuson-Moss Warranty Act (Count I); Breach of Implied Warranty of Merchantability Pursuant to the Magnuson-Moss Federal Act and O.C.G.A § 11-2- 314 (Count II); Breach of Express Warranty Under O.C.G.A. § 11-2-313 (Count III); Violation of the Georgia Fair Business Practices Act (“GFBPA”) (Count IV); and Violation of the Florida Deceptive and Unfair Trade Practices Act as to Plaintiff Moore (Count V). Plaintiffs allege that they purchased BMW vehicles designed with an N63 engine, which has “‘a manufacturing defect [that] causes each of the subject vehicles to consume engine oil at an extremely rapid rate.” They assert that N63 engines are “widely recognized” to “require frequent engine repairs, especially as compared to other, similar vehicles not containing N63 engines” and that “[s]ome owners and enthusiasts blame the oil consumption on BMW’s decision to place the N63’s twin-turbochargers between the cylinder heads, and inside of the engine V,Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 3 of 18 rather than outside of the engine V, away from sensitive components, where turbochargers are typically located.” Plaintiffs further claim that BMW assured them that the vehicles were free of workmanship defects and failed to disclose the N63 engine defect to them prior to their purchase of the vehicles. They also allege that in making their purchase decision, they relied on the availability of BMW’s New Vehicle Limited Warranty, which covers defects in material and workmanship for four years or 50,000 miles following delivery of the vehicles. As a result of their complaints regarding oil consumption, Plaintiffs allege that their respective dealerships attempted to repair the vehicles, and BMW took certain action, including providing repair or technical service bulletins to the dealerships and releasing a “Care Package” to be applied to the vehicles. Plaintiffs assert that they have suffered damages due to the alleged defect, including being forced to add oil to their engines more frequently than expected and prior to the recommended oil change intervals, more frequent service visits and increased maintenance costs. They also claim they fear that “[i]f [they] continue to drive without adding oil, their vehicles might catastrophically fail and strand them or potentially cause a life-threatening accident.” They maintain the defect discourages them from traveling long distances in their vehicles or forces them toCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 4 of 18 carry an extra supply of oil. They also expect to suffer “significant loss” when they sell their vehicles due to the vehicles’ diminished reputation. Although the allegation of the N63 engine defect is common to all Plaintiffs, each Plaintiff owns a different make and model vehicle; purchased it from a different dealer; experienced the alleged defect at a different level of severity; and had a different experience with repair attempts at the respective dealerships: ¢ Moore owns a 2011 750i, which he purchased from an authorized dealer in Jacksonville, Florida in July 2013. He alleges the defect made it necessary to add one quart of oil to the car’s engine every 1,000 miles. He claims he has spent $3,950 in out-of-pocket expenses related to the issue. ¢ Golonko owns a 2011 X6, which he purchased from a dealer in Marietta, Georgia in September 2013. He alleges the defect made it necessary to add two quarts of oil to the car’s engine every 2,500 miles. He claims he has spent $500 in out-of-pocket expenses related to the issue. e Pass owns a 2011 750li, which she purchased from an authorized dealer in Atlanta, Georgia in September 2013. She alleges the defect made it necessary to add one quart of oil to the car’s engine every 2,500 to 2,800 miles. She claims she has spent $2,000 in out-of-pocket expenses related to the issue. e Dewberry owns a 2010 750LXi, which she purchased from a dealer in Stockbridge, Georgia in March 2013. She alleges the defect made it necessary to add one quart of oil to the car’s engine every 300 miles. She claims she has spent $5,720 in out-of-pocket expenses related to the issue. e Jackson owns a 2011 550i, which she purchased from an authorized dealer in Macon, Georgia in September 2013. She alleges the defect made it necessary to add one quart of oil to the car’s engine every 1,000Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 5 of 18 miles. She claims she has spent $2,600 in out-of-pocket expenses related to the issue. e Osborn owns a 2011 X6 50i, which he purchased from an authorized dealer in Atlanta, Georgia in 2014. He alleges the defect made it necessary to add two quarts of oil to the car’s engine every 3,000 miles. e Jones owns a 2013 X5 50i, which he purchased from a dealer in Atlanta, Georgia in October 2016. He alleges the defect made it necessary to add one quart of oil to the car’s engine every 2,000 miles. Il. DISCUSSION A. Standard of Review In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court “accept[s] the allegations in the complaint as true and constru[es] them in the light most favorable to the plaintiff.” Traylor v. P’ship Title Co., LLC, 491 F. App’x 988, 989 (11th Cir. 2012). “[A] plaintiff's obligation to provide the grounds of his entitlement to relief], however,] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal punctuation omitted). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (A complaint does not suffice “if it tenders naked assertions devoid of further factual enhancement.”) (internal punctuation omitted) (quoting Twombly, 550 U.S. at 557).Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 6 of 18 Moreover, “[flactual allegations must be enough to raise a right to relief above the speculative level.” /d. “This standard does not require a party to plead facts with such particularity to establish a significant probability that the facts are true, rather, it requires a party’s pleading of facts to give rise to a ‘reasonable 2 expectation that discovery will reveal evidence [supporting the claim].”” Burch v. Remington Arms Co., LLC, No. 2:13-cv-00185, 2014 WL 12543887, at *2 (N.D. Ga. May 6, 2014) (quoting 7wombly, 550 U.S. at 555). See also Twombly, 550 US. at 570 (dismissing complaint because the plaintiffs did not state facts sufficient to “nudge[] their claims across the line from conceivable to plausible”). At bottom, the complaint must contain more than “an unadorned, the- defendant-unlawfully-harmed-me accusation” (/gbal, 556 U.S. at 678) and must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Traylor, 491 F. App’x at 990 (quoting /gbal, 556 U.S. at 678). B. Legal Analysis Statute of Limitations BMW argues that because Plaintiffs’ claims were filed outside the limitations period, they should be dismissed as time-barred.Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 7 of 18 Plaintiffs counter that their claims are timely because the statute of limitations was tolled as a result of a class action filed against BMW regarding the same claims (the “Bang Class Action”), and the clock did not restart until Plaintiffs filed notice that they were opting out of that action. They also argue that the statute of limitations should be tolled due to BMW’s fraudulent concealment of the N63 defect. Since the parties agree that the claims would be time-barred if the statute of limitations were not tolled, the Court will focus on Plaintiffs’ tolling argument. Plaintiffs primarily cite Howell v. Bridge Terminal Transport, Inc., No. 1:08-cv-2085, 2009 WL 10699684, at *5—6 (N.D. Ga. Sept. 29, 2009) as support for their position that tolling is appropriate here. In that case, the plaintiffs opted out of a certified class and filed their complaint after the expiration of the limitations period, but the district found that the action was not time-barred because Supreme Court precedent permitting tolling of the statute of limitations for plaintiffs who file an individual action after a class is decertified was similarly applicable to cases where the plaintiffs opted out of a certified class to file a separate action. /d. The court rejected the defendant’s argument that the plaintiffs should not benefit from tolling because they chose to opt out of a certified class, explaining that because most plaintiffs wait to learn the terms of a proposedCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 8 of 18 settlement before deciding whether to opt out, a rule that does not toll the limitations period up to that point would potentially force plaintiffs to opt out well before any possibility of the large scale resolution of claims that is at the heart of the class action mechanism. /d. Although the Eleventh Circuit has not addressed this issue, as Plaintiffs point out, other circuits have likewise found that the class action tolling rule applies when plaintiffs opt out of a certified class. See, e.g., Realmonte v. Reeves, 169 F.3d 1280, 1284 (10th Cir. 1999) (stating that “the fact that the [plaintiffs’] participation in the class action terminated with a decision to opt out of a certified class rather than with the denial of class certification is irrelevant to the applicability of the [class action] tolling rule”); Adams Pub. Sch. Dist. v. Asbestos Corp., 7 F.3d 717, 719 n.1 (8th Cir. 1993) (noting that class action tolling does not depend on whether the plaintiff opts out of a certified class or whether class certification was denied). The Supreme Court’s decision in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983) supports the reasoning of these courts. There, the Court stated that the tolling rule for class actions applied to “class members who choose to file separate suits” and emphasized that it would make no sense to allow class members to elect to file their claims “separately” but at the same time prevent themCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 9 of 18 from doing so by finding that the limitations period had expired while the class action was pending. /d. at 351. The Court further noted that a class action tolling tule is not inconsistent with the purpose of a limitations period because the commencement of a class action both puts the defendant on notice of adverse claims and prevents the plaintiff from sleeping on his rights. /d. at 352-53. Although the Crown Court decided the specific question of whether tolling applied in class decertification cases, it did not expressly or implicitly limit its decision to such cases, and as noted above, other courts have declined to make this distinction. This Court sees no reason why it should go in a different direction. BMW’s reliance on China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018) is misplaced. That case involved a new class action filed after the plaintiffs opted out of the initial class and is inapposite here.” Based on the foregoing analysis, the Court finds that the applicable statutes of limitation were tolled for almost three years during the pendency of the Bang Class Action and until Plaintiffs filed their opt-out notices. Because the plaintiffs ? BMW’s claim that this action is “tantamount to a successive class action” is not supported by the pleadings filed in this case.Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 10 of 18 filed this action within the time allowed by the statute of limitations (plus time added for tolling), it is not time-barred.* Il. Breach of Express Warranty The crux of BMW’s argument is that (i) the Complaint alleges that the N63 engine oil consumption issue was caused by a design defect, which is not covered by the subject vehicles’ warranty; and (ii) because the vehicles’ Service and Warranty Information Booklet notified Plaintiffs that they would need to add oil to the engine between oil changes, Plaintiffs were not damaged by having to take such action. Plaintiffs do not contend that the New Vehicle Limited Warranty covers design defects. Rather, they argue that they have adequately pleaded that the N63 engine issue was caused by a manufacturing defect, which is covered by the warranty. While the Complaint does allege that the N63 engine contains “a manufacturing defect” that causes it to consume oil excessively, BMW argues that another allegation in the Complaint that “[s]ome owners and enthusiasts” blame 3 In light of this ruling, the Court need not reach Plaintiffs’ fraudulent concealment argument for tolling the statute of limitations. 10Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 11 of 18 the oil consumption issue on BMW’s design of the vehicle demonstrates that Plaintiffs’ claim is actually one of design defect. At the motion to dismiss stage, however, the court accepts the allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Traylor, 491 F. App’x at 989. Further, the court only tests the sufficiency of the allegations and does not weigh the facts. See Reid v. Insuramerica Ins., Corp., No. 1:06-cv-1039, 2006 WL 8433559, at *8 (N.D. Ga. Aug. 14, 2006); Chartis Ins. Co. of Canada v. Freeman, No. 1:11-cv-193, 2013 WL 12121864, at *3 (S.D. Ga. Mar. 18, 2013). Accordingly, the Court will accept as true Plaintiffs’ allegation that the oil consumption issue was caused by a manufacturing defect and will not weigh in on the dispute of whether the defect was caused by a design or a manufacturing defect. With respect to damages, Plaintiffs have alleged not only that they were required to add oil to their engines prior to oil change service visits but also that their vehicles have diminished in value and may “catastrophically fail” due to the alleged defect. These allegations are sufficient to state damages at the motion to dismiss stage. Accordingly, the Court finds that Plaintiffs have stated a claim for breach of express warranty. llCase 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 12 of 18 Il. Breach of Implied Warranty BMW argues that Plaintiffs’ breach of implied warranty of merchantability claim should fail because the vehicles are operable and are therefore merchantable. Further, BMW argues that Plaintiffs lack privity with it because (i) it is the distributor and not the manufacturer of the vehicles and (ii) certain Plaintiffs did not purchase their vehicles from an authorized dealer. In response, Plaintiffs assert that their vehicles are not merchantable because the alleged defect “go[es] to the heart of the vehicles’ safety.” They also argue that they have privity with BMW because BMW, as the distributor of the vehicles, is responsible for fulfilling the warranty covering the vehicles. It is well-settled that “[i]mplied warranties ... arise out of a contract for sale of goods and can only run to a buyer who is in privity of contract with the party against whom the implied warranty is being asserted.” McQueen v. Minolta Bus. Sols., Inc., 620 S.E.2d 391, 393 (Ga. Ct. App. 2005). Thus, “when a buyer purchases a product from a retailer, and there is no privity of contract between the manufacturer and the buyer, no implied warranty runs from the manufacturer to the purchaser.” Id. See also Chrysler Corp. v. Wilson Plumbing Co., 208 S.E.2d 321, 323 (Ga. Ct. App. 1974) (stating that “ordinarily ... there is no implied warranty 12Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 13 of 18 existing between a manufacturer and an ultimate consumer [because] no privity of contract exists between the two”). However, “where an automobile manufacturer, through its authorized dealer issues to a purchaser of one of its automobiles from such dealer admittedly as a part of the sale a warranty by the manufacturer running to the purchaser, privity exists.” /d. (emphasis added). See also Hemmings v. Camping Time RV Ctrs., LLC, No. 1:17-cv-1331, 2017 WL 4552896, at *6 (N.D. Ga. Oct. 11, 2017) (stating that “where the manufacturer extends an express warranty to the end consumer, privity is created that satisfies the requirements of the implied warranty of merchantability”). Here, BMW argues that because the Complaint does not allege that it is the manufacturer of the vehicles, the plain language of Chrysler demonstrates that no privity exists between it—the distributor—and Plaintiffs. On the other hand, Plaintiffs argue that BMW’s “manufacturer” versus “distributor” argument is a “distinction without a difference.” They contend the Chrysler court “was concerned with situations where a warrantor provides a warranty directly to the purchaser as part of the sale of a vehicle, but the seller of a car is a warrantor’s authorized dealership, rather than the warrantor itself.” 13Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 14 of 18 Plaintiffs’ analysis of the Chrys/er decision is a stretch. In Chrys/er, the manufacturer of the subject vehicle was a party to the action, so the court had no reason to (and did not) address the specific circumstance of whether privity exists with an automobile distributor or the entity fulfilling the vehicles’ warranty. Jd. See also Helpling v. Rheem Mfg. Co., No. 1:15-cv-2247, 2016 WL 1222264, at *5 (N.D. Ga. Mar. 23, 2016) (noting that “Chrysler held that a warranty supplants privity only in certain circumstances—specifically, when a manufacturer issues a warranty to remote purchasers through an authorized dealer and when the warranty is part of the remote consumer’s purchase’) (citing Jn re Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801 (S.D. Ohio 2012)). Plaintiffs have not cited any decision in which the court found privity with a distributor like BMW, and the Court is not aware of any Georgia decision finding so. Although the Tershakovec vy. Ford Motor Co. decision, which BMW cites, involved Florida law, it nevertheless provides an example of a court finding no privity for an implied warranty claim where the defendant is the distributor and not the manufacturer. No. 17-21087, 2018 WL 3405245, at *10 (S.D. Fla. July 12, 2018). 14Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 15 of 18 The Court therefore finds that Plaintiffs lack privity with BMW.* Asa result, they have failed to state a claim for breach of implied warranty, and Count II of the Complaint is dismissed. Iv. The Georgia Fair Business Practices Act BMW claims that Plaintiffs have not satisfied a condition precedent for bringing a GFBPA claim because they did not allege that they provided the requisite written demand for relief to BMW prior to filing this action. Plaintiffs respond that they did provide the requisite notice to BMW and dispute that they are required to plead such notice. In the alternative, they urge the Court to allow them to amend the Complaint to allege such notice. BMW has not cited any case law supporting its argument that a complaint asserting GFBPA claims must be dismissed if it lacks allegation of notice, and it did not even challenge Plaintiffs’ assertion that they did in fact provide the requisite notice. The Court does not rule on whether notice of claim must be alleged when asserting a claim for violation of the GFBPA but will allow Plaintiffs to amend the ‘Tn light of this finding the Court need not reach BMW’s alternative argument that the subject vehicles are merchantable. 15Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 16 of 18 Complaint to include such allegation. Amendment is proper given the early stage of the litigation and because there is no prejudice to BMW since it does not dispute that it received the notice. See Fed. R. Civ. P. 15(a)(2) (stating that the “[t]he court should freely give leave [to amend] when justice so requires”).° V. Motion to Sever BMW argues that Plaintiffs’ claims were improperly joined and asks the Court to sever them because they arise out of different transactions, and each vehicle has a different use and service history and will require testimony of different witnesses. BMW maintains that keeping the claims together will prejudice it and confuse the jury. Plaintiffs oppose BMW’s motion because they contend that each Plaintiff's vehicle contained the same defective N63 engine, and BMW had the same knowledge regarding the defect and responded in the same way to the repair requests. Plaintiffs conclude that because the claims share common questions of law and fact, keeping and trying them together will conserve the Court’s resources. 5 Although “[f]iling a motion is the proper method to request leave to amend a complaint” (Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999)), the Court grants Plaintiffs’ request to amend in this instance in the interest of efficiency. 16Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 17 of 18 Joinder of claims “promote[s] trial convenience and expedite[s] the resolution of disputes, thereby eliminating unnecessary lawsuits.” Alexander v. Fulton Cty., 207 F.3d 1303, 1323 (11th Cir. 2000), overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003). The prerequisites for joinder are: “1) a right to relief arising out of the same transaction or occurrence, or series of transactions or occurrences, and 2) some question of law or fact common to all persons seeking to be joined” (id.), although courts have “virtually unfettered discretion in determining whether ... severance is appropriate” (Tillis v. Cameron, No. 1:07-cv- 0078, 2007 WL 2806770, at *5 (M.D. Ala. Sept. 25, 2007)). See also Spinnaker Int'l L.L.C. v. Greenfence, LLC, No. 1:17-ev-2749, 2017 WL 5952270, at *1 (N.D. Ga. Dec. 1, 2017) (stating that it is “within the district court’s broad discretion whether to sever a claim”). Where there are countervailing considerations to joining claims such as where efficiency benefits are outweighed by the potential for prejudice, Federal Rule of Civil Procedure Rule 42(b) authorizes courts to order separate trials. Here, the Court agrees with Plaintiffs that because the alleged defect in the N63 engine is central to each Plaintiffs claim, the claims share common questions of law and fact, and it makes sense to keep them together—at least prior to trial. See, e.g., El Fakih v. Nissan N. Am., Inc., No. 18-cv-60638, 2018 WL 4193675, at 17Case 1:18-cv-05169-JPB Document 36 Filed 03/06/20 Page 18 of 18 *5 (S.D. Fla. July 26, 2018) (allowing the plaintiffs’ claims to proceed together because they arose from the same transaction or occurrence and presented “multiple” common questions of law and fact where they all claimed damages from an alleged defect in the same transmission installed in their Nissan vehicles). This ruling is without prejudice to BMW’s ability to later seek separate trials pursuant to Rule 42(b). Because the Court concludes that BMW’s Motion does not warrant oral argument, BMW’s Request for Oral Argument on its Motion to Dismiss (ECF No. 16) is DENIED. See N.D. Ga. Civ. R. 7.1(E) (“Motions will be decided by the Court without oral hearing, unless a hearing is ordered by the Court.”); Maid of the Mist Corp. v. Alcatraz Media, LLC, No. 1:06-cv-0714, 2009 WL 10690300, at *4 (N.D. Ga. Dec. 22, 2009) (denying motion for oral argument pursuant to Local Rule 7.1(E)). SO ORDERED this 6th day of March, 2020. 0A J. P. BOULEE United States District Judge 18