Busler v. Nissan N. Am.
| Docket Number | 3:22-cv-00769 |
| Decision Date | 22 August 2023 |
| Parties | ABIGAIL BUSLER, CARL KIRKSEY, and CHANTEL YOUNG, individually and on behalf of all others similarly situated, Plaintiffs, v. NISSAN NORTH AMERICA, INC., Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
Nissan North America, Inc. (“Nissan”) has filed a Motion to Dismiss Plaintiffs' Amended Class Action Complaint (Doc. No. 41), to which the plaintiffs have filed a Response (Doc. No. 45), and Nissan has filed a Reply (Doc. No. 46). For the reasons set out herein, the motion will be granted in part and denied in part.
This is a putative class action regarding certain vehicles manufactured by Nissan from the 2016 model year through the 2022 model year. (Doc. No. 38 ¶ 1.) The plaintiffs allege that, due to “one or more design and/or manufacturing defects,” the Xtronic Continuously Variable Transmission (“CVT”) found in those vehicles exhibited several undesirable and potentially dangerous tendencies:
[The CVT] causes sudden, unexpected shaking and violent jerking (commonly referred to as “juddering” or [“]shuddering”) when drivers attempt to accelerate their vehicles; it causes the vehicle to lag or delay when the driver tries to accelerate, causing an unsafe, unpredictable acceleration; it exhibits a hard deceleration or “clunk” when drivers either slow down or accelerate at low speeds; it causes complete transmission failure in the middle of roadways and it suffers catastrophic failure, necessitating replacement.
(Id. ¶ 4.)
(Id. ¶ 58.) The plaintiffs assert that the “selection of the gear ratio by the CVT is defective” in a way that causes the vehicle to “take an inordinately long time to accelerate from a stop or low speed, exhibit a hard deceleration or ‘clunk' when drivers either slow down or accelerate at low speeds, shudder and shake or make a loud clunking or knocking sound when the CVT finally selects the appropriate gear ratio, and completely fail to accelerate.” (Id. ¶ 61.) They do not, however, offer a more detailed mechanical account of how or why the process of selecting a gear ratio exhibits these types of malfunctions. (Id.)
The vehicles at issue were sold with either a 5-year, 60,000-mile or 6-year, 70,000-mile Nissan powertrain warranty that, according to the plaintiffs, “purported to cover the CVT.” (Id. ¶ 5.) The plaintiffs say that they “are informed and believe that[,] since 2015, if not earlier, Nissan has been aware that” the CVT “would cause the symptoms” described by the plaintiffs and that the CVT “would require frequent replacement, including replacements just outside of warranty, [and] that the replacement transmissions installed would be equally defective as the originals.” (Id. ¶ 12.) The plaintiffs have identified Nissan Technical Service Bulletins, or “TSBs,” dating back to 2013 in which the company acknowledged issues with Nissan transmissions that, according to the plaintiffs, were attributable to the same defect or defects that form the basis of this case. (Id. ¶¶ 12-15.)
The National Highway Traffic Safety Administration (“NHTSA”) “requires manufacturers to submit [certain] information regarding vehicle safety issues.” Schall v. Suzuki Motor of Am., Inc., No. 4:14-CV-00074-JHM, 2020 WL 1225047, at *4 n.1 (W.D. Ky. Mar. 12, 2020) (citing 49 C.F.R. § 579). NHTSA also has an Office of Defects Investigation (“ODI”), to which consumers or others can complain directly. See 49 C.F.R. § 554.5. According to the plaintiffs, “[a]ll automobile manufacturers routinely monitor and analyze NHTSA complaints,” which, for several years, included complaints about the CVT. (Id. ¶ 68; see Doc. No. 38-1 (collection of complaints).) Accordingly, the plaintiffs suggest, Nissan either actually knew or, by ordinary industry practice, should have known about the problems. (Id.)
(Id. ¶ 71.)
The plaintiffs allege that, as Nissan became increasingly aware of the problems with the CVT, it took steps to actively conceal them. (Id. ¶ 94.) Specifically, the plaintiffs state that, “[w]hen customers present their Class Vehicles to an authorized Nissan dealer for CVT repairs, rather than repair the problem under warranty, Nissan dealers either inform customers that their Vehicles are functioning properly or conduct repairs that merely mask the CVT Defect.” (Id. ¶ 95.)
Abigail Busler purchased a certified pre-owned 2019 Nissan Kicks in August of 2020 from a Tucson, Arizona-based Nissan dealership. (Id. ¶ 21.) Her car began experiencing transmission difficulties-specifically, a “lack of motive power and delayed and insufficient acceleration”- within about four months of the purchase. (Id. ¶ 25.) In January of 2022, Busler returned to the dealership complaining of the problem, but the dealership “failed to perform any repairs,” and her vehicle's difficulties with acceleration have continued. (Id. ¶ 26.) Busler says that, if she had known about the transmission problems with the 2019 Nissan Kicks, she “would not have purchased the Vehicle, or would have paid less for it.” (Id. ¶ 24.)
Carl Kirksey, who lives in Alabama, purchased a pre-owned 2016 Nissan Maxima from online dealership Vroom in December of 2021. (Id. ¶ 29.) Not long after the purchase, Kirksey's Maxima “began to suddenly and repeatedly lose motive power, including on the freeway.” (Id. ¶ 33.) In February of 2022, he took the vehicle to a local dealership, which told him that he needed a new CVT and new alternator. Kirksey complied with the dealership's recommendation and paid for the replacement-partly out of pocket and partly pursuant to an extended warranty he had purchased. Even after the replacement, however, his vehicle has “continued to run rough and jerk.” (Id. ¶¶ 34-35.) Like Busier, Kirskey says that, if he had known about the issues with the CVT, he would not have purchased the vehicle or would only have done so at a lower price. (Id. ¶¶ 31-32.)
Chantel Young purchased a new 2021 Nissan Kicks in April of 2021 from a Tifton, Georgia-based Nissan dealership. (Id. ¶ 37.) Within a few months, she began to notice “jerking” and “skipping” when trying to accelerate. (Id. ¶ 41.) In February of 2022, she took her vehicle to the dealership to have the problems assessed, and they told her that the “entire CVT assembly needed to be replaced.” (Id. ¶ 42.) Young had the replacement done, but her vehicle “continues to run roughly,” and she believes that it is “likely” that she will need another CVT replacement. (Id. ¶ 43.) Young makes the same claims as the other named plaintiffs about not purchasing or paying less for her vehicle if she had known about its problems. (Id. ¶ 40.)
On September 30, 2022, the plaintiffs-along with four other plaintiffs who are no longer part of the case-filed their initial Class Action Complaint. (Doc. No. 1.) The plaintiffs filed an Amended Class Action Complaint on February 7, 2023. (Doc. No. 38.) They state nine counts, some of which are on behalf of all three plaintiffs and the putative class as a whole, and some of which are on behalf of individual plaintiffs and state-based subclasses. Counts I, II, and III are on behalf of all plaintiffs and state claims for, respectively, breach of express warranty, breach of implied warranty, and violation of the Magnuson-Moss Warranty Act. (Id. ¶¶ 116-149.) Counts IV, V, and VI state plaintiff-specific claims under the respective consumer protection statutes of Alabama, Arizona, and Georgia. (Id. ¶¶ 150-97.) Count VII adds a claim under a second Georgia statute, the Georgia Uniform Deceptive Trade Practices Act. (Id. ¶¶ 198-215.) Counts VIII and IX are on behalf of all plaintiffs and state claims for unjust enrichment and fraudulent omission, respectively. (Id. ¶¶ 216-29.) On March 20, 2023, Nissan filed a Motion to Dismiss directed at all claims. (Doc. No. 41.)
In deciding a motion to dismiss for failure to state a...
To continue reading
Request your trial