Dewey v. Volkswagen Ag
| Decision Date | 01 April 2008 |
| Docket Number | Civil Case No. 07-2369 (FSH).,Civil Case No. 07-2249 (FSH). |
| Parties | DEWEY, et al., Plaintiffs, v. VOLKSWAGEN AG, et al., Defendants. Delguercio, et al., Plaintiffs, v. Volkswagen of America, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Ashley Kim, Frank Rocco Schirripa, Schoengold Sporn Laitman & Lometti PC, New York, NY, Francis John Vernoia, Genova, Burns, & Vernoia, Esqs., Livingston, NJ, Adam M. Slater, Eric D. Katz, Matthew Ross Mendelsohn, Mazie, Slater, Katz & Freeman, LLC, Roseland, NJ, for Plaintiffs.
Keith Andrew Frederick, Herzfeld & Rubin PC, New York, NY, Peter J. Kurshan, Chase, Kurshan, Herzfeld & Rubin, LLC, Livingston, NJ, for Defendants.
This matter comes before the Court upon Defendant Volkswagen of America's ("VWoA") Motion to Dismiss the Dewey Plaintiffs' Complaint and Plaintiff Delguercio's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dewey DKT# 24; Delguerao DKT# 16), and Defendants' Motions to Quash Purported Service of Process on Volkswagen AG, Audi AG, and Volkswagen De Mexico, S.A. de C.V. in both cases (Dewey DKT# 29; Delguercio DKT# 18). The Court has considered the arguments of the parties on the papers pursuant to Federal Rule of Civil Procedure 78 and will grant Defendant's Motion to Dismiss in part and deny it in part, and will grant Defendant's motion to quash service in part and deny it in part.
On December 28, 2007, Plaintiff Delguercio delivered to an office of Volkswagen of America ("VWoA") summonses and Complaints directed to Volkswagen AG ("WAG"), Audi AG ("AAG"), and Volkswagen De Mexico, S.A. de C.V. ("VWDM") (collectively "the foreign Defendants"). Certification of Adam Slater, Esq., dated December 28, 2007, ("Slater Cert."), at ¶¶ 7-9;. Defendants' Reply Brief at 1-2. On October 15, 2007, the Dewey Plaintiffs delivered to CT Corporation ("CT") copies of the summonses and Complaints directed to the foreign Defendants. Declaration of Samuel P. Sporn, Esq., ("Sporn Dec"), dated Dec. 10, 2007, at Ex. 10.1 CT is VWoA's registered agent authorized to receive service on VWoA's behalf. Affirmation of Kenneth Uva ("Uva Aff.") at ¶ 3. CT did not accept the summons addressed to AAG and VWDM, stating that it lacked the authority to receive service for these entities. Id. at ¶¶ 6-7. On October 29, 2007, the Dewey Plaintiffs served CT with a summons and Complaint directed to VWoA "as an agent for Volkswagen AG." Affirmation of Daniel V. Gsovski, Esq., ("Gsovski Aff.") dated Dec. 14, 2007 at Ex. A. CT forwarded the documents to VWoA. Id.
These Class Actions arise from design defects allegedly present in certain Volkswagen and Audi automobiles ("Class Vehicles"). Plaintiff Delguercio brings suit individually and on behalf of a Plaintiff Class defined as those who have since 1997 purchased or leased Volkswagens, including Passats, Passat Wagons, Jettas, GTIs, Audis, and all other Volkswagen vehicles that suffer from the allegedly defective parts. See Delguercio First Amended Complaint and Jury Demand ("Delguercio Compl.") ¶ 1. The Dewey Plaintiffs bring suit on behalf of themselves and all others who currently own or lease, or have owned or leased, Volkswagens of model years 1998-2006 or Audis of model years 1997-2006, with the alleged defects. See Dewey First Amended Class Action Complaint ("Dewey Compl.") ¶ 2.
Plaintiff Delguercio alleges that the class of vehicles described above "have defective pollen filters, pollen filter housing seals, plenum drains, powertrains, transmissions and transmission control modules ("TCM")." Delguercio Compl. ¶ 1. The Dewey Plaintiffs allege design defects in the Class Vehicles' pollen filter gasket areas and sunroof drains. See Dewey Compl. ¶ 1. Both putative classes allege that, as a result of these defects, the Class Vehicles were damaged by flooding. See Delguercio Compl. ¶ 7 (); Dewey Compl. 11 ("Both defects cause, inter alia, serious flooding in the body of the vehicle which significantly impairs the safety, usability and the value ... of the Class Vehicles.").
Both putative classes allege that Defendants were aware of these defects, but improperly failed to notify class members of the known defects. See Delguercio Compl. ¶ 33-34; Dewey Compl. ¶¶ 45-47, 52-67. Both putative classes bring claims for breach of express warranty, see Delguercio Compl. ¶¶ 27-35, Dewey Compl. ¶¶ 77-84; breach of implied warranty, see Delguercio Compl. ¶¶ 36-47, Dewey Compl. ¶¶ 85-93; breach of duty of good faith and fair dealing, see Delguercio Compl. ¶¶ 54-58, Dewey Compl. ¶¶ 109-113; negligent misrepresentation, see Delguercio Compl. ¶¶ 59-62, Dewey Compl. ¶¶ 102-108; violation of the New Jersey Consumer Fraud Act, see Delguercio Compl. ¶¶ 63-66, Dewey Compl. ¶¶ 68-76; unjust enrichment, see Delguercio Compl. ¶¶ 67-72, Dewey Compl. ¶¶ 114-118; and common law fraud, see Delguercio Compl. ¶¶ 73-76, Dewey Compl. ¶¶ 94-101. Plaintiff Delguercio includes separate counts for improper repair and breach of warranty, see Delguercio Compl. ¶¶ 48-53, and injunctive relief, see Delguercio Compl. ¶¶ 77-78.
For purposes of the analysis that follows, it is important to establish at the outset certain basic and undisputed facts as to each Class Representative and their Class Vehicle. These facts include the residence of each Class Representative, where each Class Representative purchased their Class Vehicle, the duration of the express warranty on their Class Vehicle, and when the alleged damage to their vehicle occurred.
• Plaintiff Delguercio is a New Jersey resident who purchased a" 2001 Passat in New Jersey on or around October 3, 2000 with a 2 year/24,000 mile warranty. See Delguercio Compl. ¶¶ 13, 18; Frederick Decl. Ex. F (Bill of sale), Ex. G (2001 Passat Warranty). The damage to Delgeureio's vehicle allegedly occurred after the vehicle "had been driven approximately 56,000 miles ..." Delguercio Compl. ¶ 9.
• Plaintiff Dewey is a Maryland resident who purchased a 2002 Volkswagen Passat in Maryland on or around April 27, 2002 with a 4 year/50,000 mile warranty. See Dewey Compl. ¶ 17; Frederick Decl. Ex. A (Warranty record for Dewey vehicle), Ex. B (2002 Passat Warranty). Dewey alleges the damage to his vehicle occurred in July 2006. See Dewey Compl. ¶ 18.
• Plaintiff DeMartino is a resident of New Jersey who owns a 1999 Passat. See id. ¶ 20. DeMartino's vehicle was originally sold in New Jersey on or around May 28, 1999 with a 2 year/24, 000 mile warranty. See Frederick Decl. Ex. C (Warranty record for DeMartino vehicle), Ex. D (1999 Passat Warranty). Mr. DeMartino alleges that the damage to his vehicle occurred "[i]n 2006 . ..." See Dewey Compl. ¶ 21.
• Plaintiff Romeo is a New York resident who purchased a 2003 Passat on or around May 14, 2003 in New York.2 See Dewey Compl. ¶ 23; Frederick Decl. Ex. E (Retail certificate for Romeo vehicle). Ms. Romeo alleges that the damage to her vehicle occurred "[i]n February of 2005 ...." See Dewey Compl. ¶ 24.
Federal Rule of Civil Procedure Rule 4(h) provides two methods for the service of a foreign corporation. First, Rule 4(h)(1)(A) permits service upon a foreign corporation "in the manner prescribed by Rule 4(e)(1) for serving an individual." FED. R. CIV. P. 4(h)(1)(A). Rule 4(e)(1) permits service upon an individual by following, among other things, "[the] state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located." FED R. CIV. P. 4(e)(1). New Jersey Court Rule 4:4-4(a)(6) provides that personal jurisdiction can be obtained over a non-New Jersey defendant corporation by "serving a copy of the summons and Complaint on any officer, director, trustee or managing or general agent, or any person authorized by appointment or by law to receive service of process on behalf of the corporation." N.J. CT. R. 4:4-4(a)(6).
Second, Rule 4(h)(1)(B) permits service Upon a foreign corporation "by delivering a copy of the summons and of the Complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process...." FED. R. CIV. P. 4(h)(1)(B). Thus, both Rule 4(h) and New Jersey law permit service of process upon a foreign corporation by serving an agent of the foreign corporation who is authorized by appointment or by law to receive it. See Signs by Tomorrow-USA, Inc. v. G.W. Engel Co., Inc., Civ. No. 05-4353, 2006 WL 2224416, *3-4 (D.N.J. Aug. 1, 2006); Glass v. Volkswagen of Am., Inc., 172 F.Supp.2d 743, 743 (D.Md.2001). Here, VWAG, VWDM and AAG claim that VWoA and its registered agent, CT, are not their appointed agents. Whether Rule 4(h) or New Jersey law is applied, the central inquiry is whether VWoA is an "agent by law" of any of the other Defendants.
Motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim result in a determination on the merits at an early stage of a plaintiffs case. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). As a result, "plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn." Id. In order to...
To continue reading
Request your trial
-
Arcand v. Brother Intern. Corp.
...properly plead this element, Plaintiffs must allege facts establishing a causal nexus with the particularity required by Rule 9(b). In Dewey v. Volkswagen, the court found that a plaintiff had not sufficiently plead a "causal nexus" within "Rule 9(b)'s strictures" by alleging misrepresentat......
-
Ponzio v. Mercedes-Benz USA, LLC
...Second, it is established that "latent defects discovered after the term of the warranty are not actionable." Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 519 (D.N.J. 2008) (quoting Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 616 (3d Cir. 1995) ).23 To be sure, courts in ea......
-
McNeary–Calloway v. JP Morgan Chase Bank, N.A.
...of Civil Procedure 9(b).” Capogrosso v. State Farm Ins. Co., 2009 WL 3447068, at *3 (D.N.J. Oct. 21, 2009) (quoting Dewey v. Volkswagen, 558 F.Supp.2d 505, 524 (D.N.J.2008)).2. Application of Law to Facts Plaintiff does not deny her CFA claim “sounds in fraud” and she is therefore required ......
-
Francis E. Parker Mem'l Home, Inc. v. Georgia-Pac. LLC
...on to a buyer and whose representations are made to or intended to be conveyed to the buyer”). 8.See also Dewey, et al. v. Volkswagen AG, et al., 558 F.Supp.2d 505 (D.N.J.2008) (denying the motion to dismiss the CFA claim for unconscionable commercial practices with leave to Defendant to re......
-
Rumors of Conley's demise have been greatly exaggerated: the impact of Bell Atlantic Corporation v. Twombly on pleading standards in environmental litigation.
...relief that is plausible on its face" (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 570)); Dewey v. Volkswagen AG, 558 F. Supp. 2d 505, 512 (D.N.J. 2008) (plaintiffs bringing class action defect claims against automobile manufacturers "must allege facts sufficiently detai......