Fabian v. Fulmer Helmets, Inc., No. 10-5009

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: SUTTON
• Citation: 628 F.3d 278
• Parties: Robert FABIAN, Plaintiff-Appellant, v. FULMER HELMETS, INC., Defendant-Appellee.
• Docket Number: No. 10-5009
• Decision Date: 23 December 2010

628 F.3d 278

Robert FABIAN, Plaintiff-Appellant,
v.
FULMER HELMETS, INC., Defendant-Appellee.

No. 10-5009.

United States Court of Appeals,
Sixth Circuit.

Argued: Oct. 19, 2010.
Decided and Filed: Dec. 23, 2010.

628 F.3d 279

ARGUED: Michael J. Wall, Branstetter, Stranch & Jennings, PLLC, Nashville, Tennessee, for Appellant. Oscar C. Carr, III, Glankler Brown, PLLC, Memphis, Tennessee, for Appellee. ON BRIEF: James G. Stranch, III, J. Gerard Stranch, IV, Steven J. Simerlein, Branstetter, Stranch & Jennings, PLLC, Nashville, Tennessee, for Appellant. Oscar C. Carr, III, Glankler Brown, PLLC, Memphis, Tennessee, for Appellee.

Before: MOORE, SUTTON and FRIEDMAN,^* Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Robert Fabian, a representative of a yet-to-be-certified class, seeks recovery from a helmet manufacturer for misrepresenting the safety of its helmets. The district court granted the defendant's motion to dismiss the suit, holding that Fabian's complaint fails to state a cognizable claim. Because Fabian's factual allegations, when construed in his favor, state a plausible claim for relief, we reverse.

I.

Tucked within the Department of Transportation is the National Highway Traffic Safety Administration (NHTSA), which regulates the performance of motorcycle helmets (among other vehicle products) under the National Traffic and Motor Vehicle Safety Act of 1966. 49 U.S.C. § 30101 et seq. In accordance with the Safety Act, NHTSA promulgated Standard No. 218, which spells out the testing procedures that helmets sold in the United States must satisfy. 49 C.F.R. § 571.218. One of these procedures is an "impact attenuation test," which involves the dropping of a helmet from a minimum height of six feet onto an anvil to measure the effect of the impact on the helmet. Id. at S7.1. Another test applies force to a helmet's chin strap to determine whether the helmet will remain in place during a crash. See id. at S7.3.

Standard 218 relies on self-certification, which means that companies test and certify their own helmets rather than having NHTSA do it for them. When helmets pass the test, the companies place a "DOT" label on them. 49 C.F.R. § 571.218 at S5.6. 1(e). NHTSA enforces these requirements by randomly purchasing helmets, employing independent companies to run compliance tests on them and publishing the results.

Headquartered in Memphis, Tennessee, Fulmer Helmets designs, manufactures and distributes the AF-50 Trooper motorcycle helmet. The AF-50 helmet comes in at least two sizes: small and large.

In 2000, NHTSA selected the large AF-50 helmet for testing. The helmet passed each component of the test. In 2002, NHTSA selected the small AF-50 for testing and it failed two components of the test. It failed the impact attenuation test (because the helmet's absorption of impact, measured in time, exceeded the regulatory requirement of 2.0 milliseconds by 0.2 milliseconds), and it failed the labeling requirement (because the "DOT" symbol appeared an eighth of an inch too high from the bottom of the helmet). Fulmer Helmets did not issue a recall, take any action to inform purchasers or retailers that it had failed the test, or fix or remove the DOT symbol.

628 F.3d 280

On July 22, 2004, Fabian bought two large Fulmer AF-50 helmets. In 2007, Fabian sold one of the helmets to a friend, who later died of severe brain trauma in a motorcycle crash while wearing the helmet.

In April 2009, Fabian filed a complaint against Fulmer Helmets in Tennessee state court, which was later removed to federal court on diversity grounds. The federal complaint alleged (1) fraudulent misrepresentation, (2) negligent misrepresentation, (3) breach of the implied warranty of merchantability and (4) unjust enrichment. Fabian claimed he had "relied on Fulmer's material misrepresentations that such helmets were 'DOT approved,' " causing him to purchase an "unsafe," "inferior-quality" helmet that created a "heightened risk of serious physical injury or death." R.5 ¶¶ 3, 4, 23. Fabian sought class certification for all persons who had purchased the AF-50 since the failed 2002 test, while excluding "anyone seeking to recover for physical injuries suffered due to the failure of the subject helmets." R.5 ¶ 24. Fabian asked for damages in the form of a refund and disgorgement of profits.

Fulmer Helmets filed a Rule 12(b)(6) motion to dismiss the case for these reasons, among others: (1) Fabian failed to state a claim as a matter of law; (2) the Safety Act preempted the lawsuit; and (3) Tennessee's statute of limitations barred the claims.

The district court granted Fulmer Helmets' motion to dismiss. It held that Fabian failed to state a claim because Fabian had purchased two large helmets, and only small helmets failed the 2002 test. The court reasoned that Fabian had not purchased "helmets similar in all respects to the helmets which allegedly failed the August 2002 testing forming the basis for [Fabian's] claims." R.24 at 27. At the same time, however, the court rejected one of Fulmer Helmets' alternative arguments, holding that the Safety Act did not expressly or impliedly preempt Fabian's claims. It reasoned that the Act's savings clause carves state common law claims from the preemptive scope of the statute and that the state law claims would not "present an obstacle to the federal objective of 'self-certification.' " Id. at 24. Lastly, the court held that Tennessee's statute of limitations barred Fabian's claims for breach of implied warranties.

Fabian appeals the failure-to-state-a-claim ruling but not the breach-of-implied-warranties ruling. Fulmer Helmets challenges the preemption ruling.

II.

To survive a motion to dismiss, Fabian must plead "enough factual matter" that, when taken as true, "state[s] a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires showing more than the "sheer possibility" of relief but less than a "probab[le]" entitlement to relief. Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

In granting the motion to dismiss, the district court used the following chain of reasoning: (1) NHTSA performed a safety test on a large AF-50 helmet in 2000, and the helmet passed all components of the test; (2) NHTSA performed a safety test on a small AF-50 helmet in 2002, and the helmet failed at least one component of the test; and (3) because Fabian premises his claim on the purchase of large AF-50 helmets, his claim is implausible on its face given that Fulmer Helmets passed a 2000 NHTSA test on a large AF-50 helmet.

628 F.3d 281

The problem with this chain of reasoning is that it turns on potential inferences, not necessary ones. There are at least two legitimate ways to think about the significance of the NHTSA tests, and...