Dack v. Volkswagen Grp. of Am.

• Decision Date: 30 September 2021
• Docket Number: Case No. 4:20-CV-00615-BCW
• Citation: 565 F.Supp.3d 1135
• Parties: Emily DACK, et al., individually and on behalf of others similarly situated, Plaintiffs, v. VOLKSWAGEN GROUP OF AMERICA, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

565 F.Supp.3d 1135

Emily DACK, et al., individually and on behalf of others similarly situated, Plaintiffs,

v.VOLKSWAGEN GROUP OF AMERICA, et al., Defendants.

Case No. 4:20-CV-00615-BCW

United States District Court, W.D. Missouri, Western Division.

Signed September 30, 2021

Adam R. Gonnelli, Pro Hac Vice, Law Office of Adam R. Gonnelli, L.L.C., Princeton, NJ, Bonner Charles Walsh, Pro Hac Vice, Walsh PLLC, Grangeville, ID, Matthew D. Schelkopf, Pro Hac Vice, Sauder Schelkopf, Berwyn, PA, Tim Eugene Dollar, Dollar, Burns, Becker, & Hershewe LLC, Kansas City, MO, for Plaintiffs.

Amir Nassihi, Pro Hac Vice, Shook, Hardy & Bacon L. L. P., San Francisco, CA, Homer B. Ramsey, Pro Hac Vice, Mark A. Weissman, Pro Hac Vice, Michael B. Gallub, Pro Hac Vice, Herzfeld & Rubin, P.C., New York, NY, Robert T. Adams, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendant Volkswagen Group of America, Inc.

Robert T. Adams, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendant AG Volkswagen.

ORDER

BRIAN C. WIMES, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants’ Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). (Doc. #17). The Court, being duly advised of the premises, grants in part and denies in part said motion.

BACKGROUND

Plaintiffs are current and former owners or lessees of model year 2015-2019 Volkswagen vehicles equipped with the "Front Assist" feature ("Class Vehicles"). According to the Complaint, Volkswagen describes Front Assist as follows:

Forward Collision Warning and Autonomous Emergency Braking (included in Front Assist) has a sensor in the front to help monitor traffic and can alert you to a potential collision. If the driver brakes too lightly in response to an audible and visual warning, Autonomous Emergency Braking (included in Front Assist) can increase braking pressure to help avoid or mitigate the impact of an impending collision. If the driver does not brake at all, the car can apply the brakes automatically.

(Complaint, Doc. #1, ¶ 126).

Plaintiffs brought this action against Defendants Volkswagen Group of America, Inc. and Volkswagen, AG (collectively, "Volkswagen") alleging a manufacturing defect, including defective software coding, that causes Front Assist to unexpectedly apply the brakes without reason at inappropriate times. Plaintiffs allege Volkswagen knew of the defect in October 2017 but failed to disclose it to consumers. Plaintiffs also allege they sought repairs from Volkswagen, but were told Front Assist was working as it was designed and thus no repair was available.

The fourteen Named Plaintiffs assert claims on behalf of themselves and similarly situated individuals under the applicable state laws of Missouri, California, Florida, Illinois, Massachusetts, New York, North Carolina, Pennsylvania, Utah, and Kansas for violation of consumer protection laws, breach of warranty, breach of implied warranty, and unjust enrichment, and under federal law for violation of the Magnuson-Moss Warranty Act (MMWA). Plaintiffs seek damages and injunctive relief requiring Volkswagen to repair, recall, or replace the Class Vehicles and to correct their advertisement of Front Assist.

In the instant motion, Volkswagen argues it is entitled to dismissal of Plaintiffs’ claims pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(1), and 12(b)(6). First, Volkswagen argues the Court lacks personal jurisdiction over Volkswagen in relation to the claims alleged by the twelve Named Plaintiffs who are not Missouri residents and dismissal is proper pursuant to Rule 12(b)(2). Second, Volkswagen argues the Court dismissal of the MMWA claim is proper pursuant to Rule 12(b)(1) because Plaintiffs do not satisfy the jurisdictional requirements of the MMWA such that the Court lacks subject matter jurisdiction. Third, Volkswagen argues all claims should be dismissed pursuant to Rule 12(b)(6) because Plaintiffs have not identified a defect to the Class Vehicles or otherwise sufficiently plead the elements of their claims.

LEGAL STANDARD

A. Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2)

To survive a motion to dismiss for lack of personal jurisdiction, "a plaintiff need make only a prima facie case that personal jurisdiction exists." Downing v. Goldman Phipps, PLLC, 764 F.3d 906, 911 (8th Cir. 2014) (internal citation omitted). "When assessing whether personal jurisdiction exists over a nonresident defendant, jurisdiction must be authorized by Missouri's long arm statute and the defendant must have sufficient minimum contacts with the forum state to satisfy due process." Id. "[I]f a defendant transacts business within the state the statute provides for jurisdiction to ‘the full extent permitted by the due process clause.’ " Id. (citing State ex rel. Metal Serv. Ctr. of Ga., Inc., v. Gaertner, 677 S.W.2d 325, 327 (Mo. 1984) ). To comport with due process, "[t]he exercise of specific jurisdiction is permissible if a defendant purposefully directs its activities at residents of the forum state, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities[.]" Krumm v. Kittrich Corp., No. 19-00182, 2019 WL 6876059, at *4 (E.D. Mo. Dec. 17, 2019) (quoting Myers v. Casino Queen, Inc., 689 F.3d 904, 912 (8th Cir. 2012) ).

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Rule 12(b)(1)

To survive a motion to dismiss for lack of subject matter jurisdiction, the party asserting jurisdiction has the burden of proving jurisdiction. Guggenberger v. Minnesota, 198 F. Supp. 3d 973, 990 (D. Minn. 2016). Subject matter jurisdiction is a threshold requirement which must be assured in every federal case. Id. (citations and quotations omitted).

C. Motion to Dismiss for Failure to State a Claim Pursuant to Rule 12(b)(6)

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must "contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Factual allegations in the complaint must be sufficiently alleged to raise a right to relief above the speculative level. Twombly, 550 U.S. at 554-55, 127 S.Ct. 1955. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" do not show that a pleader is entitled to relief.

Iqbal, 556 U.S. at 663, 129 S.Ct. 1937. Additionally, Federal Rule of Civil Procedure 9(b) requires that "a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). When ruling on a motion to dismiss, the Court "must accept as true all of the complaint's factual allegations and view them in the light most favorable to the [nonmoving party]" and must draw all reasonable inferences in favor of the nonmoving party. Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008) (citations omitted). However, the Court need not accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

ANALYSIS

I. Volkswagen's motion to dismiss all non-Missouri Named Plaintiffs for lack of personal jurisdiction is granted.

The Court begins by addressing the issue of personal jurisdiction. The Named Plaintiffs in this action are two individuals who reside in Missouri and twelve individuals who do not reside in Missouri. The twelve non-Missouri Named Plaintiffs ("nonresident Plaintiffs") do not allege they suffered injuries in Missouri related to their claims. Volkswagen argues the Court should dismiss all claims asserted by the nonresident Plaintiffs pursuant to Bristol-Myers Squibb Co. v. Superior Court of California, ––– U.S. ––––, 137 S. Ct. 1773, 198 L.Ed.2d 395 (2017), because the Court does not have personal jurisdiction over Volkswagen relative to the nonresident Plaintiffs’ claims. Volkswagen does not dispute that the Court has personal jurisdiction over them as to the Missouri residents’ claims.¹

In opposition, Plaintiffs argue Bristol-Myers involved mass tort claims and therefore does not apply to class actions. Plaintiffs also argue that even if the Court lacks personal jurisdiction, it can exercise pendant jurisdiction over the nonresident Plaintiffs’ claims because it has personal jurisdiction as to the Missouri Named Plaintiffs’ claims.

In reply, Volkswagen argues Bristol-Myers requires personal jurisdiction as to all named plaintiffs in class actions, even if it does not require personal jurisdiction over the claims of unnamed, putative class members. Volkswagen further argues pendant jurisdiction is inapplicable.

In Bristol-Myers, the Supreme Court reiterated the "settled principles" of specific jurisdiction that the suit must "aris[e] out of or relat[e] to the defendant's contacts with the forum," Daimler AG v. Bauman, 571 U.S. 117, 127, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), and "[a] corporation's ‘continuous activity of some sorts within a state ... is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.’ " Bristol-Myers, 137 S. Ct. at 1781 (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 927, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011), quoting Int'l Shoe Co. v. Washington, Off. of Unemployment Comp. and Placement, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). In Bristol-Myers, more than 600 plaintiffs filed a mass tort action in California state court against an out-of-state defendant. Id. Finding that many of the plaintiffs lacked connection to the forum state because they did not reside in California or sustain injuries in connection with their claims in California, the Court held that "[t]he mere fact that other plaintiffs were harmed [by the defendant] in California does not allow the State to assert specific...