Fleury v. Gen. Motors

• Decision Date: 01 February 2023
• Docket Number: 1:22-cv-03862
• Parties: MICHAEL FLEURY, individually and on behalf of a class, Plaintiff, v. GENERAL MOTORS LLC, Defendant.
• Court: U.S. District Court — Northern District of Illinois

MICHAEL FLEURY, individually and on behalf of a class, Plaintiff,
v.
GENERAL MOTORS LLC, Defendant.

No. 1:22-cv-03862

United States District Court, N.D. Illinois, Eastern Division

February 1, 2023

MEMORANDUM OPINION AND ORDER

Virginia M. Kendall United States District Judge

Plaintiff Michael Fleury bought a used 2016 Chevrolet Impala Flex Fuel-a car which General Motors LLC (GM) had represented could run on a combination of E85 (85% ethanol) and gasoline. But when Fleury began using E85 exclusively, his car broke down. He filed this lawsuit on July 26, 2022 (Dkt. 1) and an amended complaint on September 20, 2022. (Dkt. 21). Fleury brings a putative class action, alleging a violation of the Illinois Consumer Fraud Act, 815 ILCS 505/2, and claims of fraud and breach of express warranty under Illinois law. GM moves to dismiss Fleury's amended complaint for failure to state a claim. (Dkt. 40). For the following reasons, GM's motion to dismiss is granted.

BACKGROUND

Unless otherwise noted, the following factual allegations are taken from the amended complaint (Dkt. 21) and are assumed true for purposes of the motion to dismiss. W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016). Defendant General Motors (GM) is a Delaware limited liability company with its principal place of business in Michigan. (Dkt. 21 ¶ 8).^[1]

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Plaintiff Michael Fleury, an Illinois resident, brings claims on behalf of over 100 proposed class members exceeding $5,000,000 in the aggregate. (Id. at ¶ 10).

In October 2019, Fleury bought a used 2016 Chevrolet Impala Flex Fuel from Advantage Chevrolet, an authorized GM dealer in Hodgkins, Illinois. (Id. at ¶¶ 7, 9, 14). The car he bought was first in service on June 3, 2016. (Dkt. 21-12). The Flex Fuel feature-allowing the car to operate on E85 (85% ethanol) fuel in addition to gasoline-incentivized Fleury to buy the 2016 Impala. (Dkt. 21 ¶¶ 1-2, 15, 20).^[2] Before Fleury bought the Impala, he saw “a prominent ‘E85' sticker in the window immediately above the fuel filler,” and he allegedly “relied on [the sticker] in purchasing the vehicle.” (Id.at ¶ 22; Dkt. 21-1). The car's fuel filler cap “was corn yellow, which GM uses to denote a Flex Fuel vehicle.” (Dkt. 21 ¶ 22; Dkt. 21-2).^[3]Advantage Chevrolet had advertised online that the 2016 Impala's engine “[i]ncludes E85 FlexFuel capability”-an advertisement that Fleury “saw and relied upon.” (Dkt. 21 ¶ 23; Dkt. 21-3 at 4). The specifications in Advantage Chevrolet's advertisement “came from GM.” (Dkt. 21 ¶ 24).

In addition to the representations Fleury alleges he relied on in buying his 2016 Impala, GM had “create[d] public understanding and secondary meaning as to what ‘Flex Fuel' means.” (Id. at ¶ 25). Specifically, GM represented to the public for many years that Flex Fuel vehicles “run on E85 ethanol, gasoline, or any combination of the two.” (Id. at ¶ 26; Dkt. 21-4). GM made similar statements in its annual report on SEC Form 10-K for the year 2017: “We offer a variety of FlexFuel vehicles in the U.S. for the 2018 model year to retail and commercial customers capable of operating on gasoline, E85 ethanol or any combination of the two.” (Dkt. 21 ¶ 29).

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GM's annual reports for 2018-2021 included “[t]he same statement.” (Id.) Further, GM has “promoted the benefits of Flex Fuel since about 2006.” (Id. at ¶ 68; Dkts. 21-4; 21-20, 21-21).

When he bought the car, Advantage Chevrolet gave Fleury a copy of the 2016 Impala owner's manual. (Dkt. 21 ¶ 31). Later, Fleury “read the owner's manual whenever he had a question about the vehicle's features, operation or care.” (Id. ¶ 36). The owner's manual included the following statements:

• “Vehicles with a yellow fuel cap can use either unleaded gasoline or ethanol fuel containing up to 85% ethanol (E85)....For all other vehicles, use only unleaded gasoline ....” (Dkt. 21 ¶ 37a; Dkts 21-5, 21-7).

• “If the vehicle has a yellow fuel cap, E85 or FlexFuel can be used in the vehicle.” (Dkt. 21 ¶ 37b; Dkt. 21-6).

• “The use of E85 or FlexFuel is encouraged when the vehicle is designed to use it. E85 or FlexFuel is made from renewable resources. To help locate fuel stations that carry E85 or FlexFuel, the U.S. Department of Energy has an alternative fuel website.” (Dkt. 21 ¶ 37d; Dkt. 21-7).

• “E85 or FlexFuel should meet ASTM Specification D 5798 or CAN/CGSB-3.512 in Canada. Do not use the fuel if the ethanol content is greater than 85%. Fuel mixtures that do not meet ASTM or CGSB specifications can affect driveability and could cause the malfunction indicator lamp to come on.” (Dkt. 21 ¶ 37e; Dkt. 21-8).

• “If the vehicle has E85 fuel capability, the fuel cap will be yellow and state that E85 or gasoline can be used.” (Dkt. 21 ¶ 37f; Dkt. 21-8).

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• “The starting characteristics of E85 or FlexFuel make it unsuitable for use when temperatures fall below -18 °C (0 °F). Use gasoline or add gasoline to the E85 or FlexFuel” (Dkt. 21 ¶ 38a; Dkt. 21-7).

• “Because E85 or FlexFuel has less energy per liter (gallon) than gasoline, the vehicle will need to be refilled more often.” (Dkt. 21 ¶ 38b; Dkt. 21-7).

The owner's manual includes “no warning about alternating E85 with gasoline” by “filling up with gasoline every other tank or every third tank to prevent damage.” (Dkt. 21 ¶ 39). GM has further stated to the public: “Initiatives to expand the infrastructure for flex-fuel vehicles are extremely important . . . and . . . additional pumps need to be put where the vehicles are located.” (Dkt. 21 ¶ 43; Dkts. 21-9, 21-10).

In 2022, following an increase in gasoline prices, Fleury “began using E85 regularly.” (Dkt. 21 ¶ 45). Fleury had used E85 several times before without issue. (Id.at ¶ 47). Nonetheless, before using E85 regularly, Fleury “consulted the owners manual to see if there were any warnings or prohibitions about his intended use of E85.” (Id. at ¶ 46). Yet, in early April 2022-following Fleury's regular use of E85-the check-engine light and a warning light displayed while he was driving his Impala in temperatures above 0 °F. (Id. at ¶¶ 48-49). Then, the car “lost power, such that it could not be safely driven on public roads.” (Id. at ¶ 48). Fleury brought his Impala to Advantage Chevrolet on April 5, 2022, where the service department found that the car had “low fuel pressure from [the] high pressure fuel pump,” that the “high pressure fuel pump need[ed] to be replaced per bulletin #18-NA-072,” and that the problems stemmed from Fleury's use of E85 fuel. (Id. at ¶ 50; Dkt. 21-12).^[4] A service advisor at Advantage Chevrolet, Owen Suarez, also

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informed Fleury “that he should have been alternating fillups between E85 and gasoline, and that failing to do so caused the problems” with his Impala. (Dkt. 21 ¶ 51). Fleury alleges “GM knew of the fuel pump problem caused by ‘excessive use' of E-85 since . . . early 2016.” (Dkt. 21 ¶ 57).

On January 9, 2022, Fleury's 2016 Impala “failed the Illinois emissions test.” (Id. ¶ 60; Dkt. 21-19). To pass the test, Fleury's car “would need a new mass air flow sensor” due to “the ongoing failure of the high pressure fuel pump.” (Dkt. 21 ¶ 61-62). Advantage Chevrolet required Fleury to pay for the diagnosis and repairs of his car. (Id. ¶ 63). GM later offered to fix the fuel pump after Fleury complained to the Better Business Bureau. (Id. ¶ 64). Yet, fixing the fuel pump would not allow Fleury to operate his car using only E85 without risking damage. (Id. ¶¶ 65-66).

Fleury filed this lawsuit on July 26, 2022 (Dkt. 1) and amended his complaint on September 20, 2022. (Dkt. 21). Seeking to represent a class of GM Flex Fuel vehicle owners with Illinois addresses, Fleury brings three claims against GM.^[5]First, Fleury alleges a violation of the Illinois Consumer Fraud Act (ICFA), 815 ILCS 505/2. (Dkt. 21 ¶¶ 76-96). Second, Fleury alleges common-law fraud. (Id. at ¶¶ 97-117). Third, Fleury alleges breach of express warranty. (Id. at ¶¶ 118-33). On November 21, 2022, GM moved to dismiss Fleury's amended complaint for failure to state a claim. (Dkt. 40).

LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim, the complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Kaminski v. Elite Staffing, 23 F.4th 774, 776 (7th Cir. 2022) (quoting Fed.R.Civ.P. 8(a)(2)). Thus, “a plaintiff must allege ‘enough facts to state a claim that is plausible on its face.'” Allen v. Brown Advisory, LLC,

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41 F.4th 843, 850 (7th Cir. 2022) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009)). The Court accepts the well-pled factual allegations in the plaintiff's complaint as true, “drawing all reasonable inferences in his favor.” Id. (citing W. Bend. Mut. Ins., 844 F.3d at 675). Yet, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are not enough. Oakland Police & Fire Ret. Sys. v. Mayer Brown, LLP, 861 F.3d 644, 649 (7th Cir. 2017) (quoting Iqbal, 556 U.S. at 678). The complaint's factual content must “raise a right to relief above the speculative level.” Kaminski, 23 F.4th at 776 (quoting Twombly, 550 U.S. at 555).

In addition, for claims “rest[ing] on allegations of deceptive conduct,” Federal Rule of Civil Procedure 9(b) requires the plaintiff to “plead with particularity the circumstances constituting fraud.” Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019) (quoting Vanzant v. Hill's Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 2019)); Fed.R.Civ.P. 9(b). This means the plaintiff “must identify the ‘who, what, when, where, and...