Fleury v. Gen. Motors

Docket Number22 C 03862
Decision Date02 June 2023
PartiesMICHAEL FLEURY, individually and on behalf of a class,Plaintiff, v. GENERAL MOTORS LLC, Defendant.
CourtU.S. District Court — Northern District of Illinois
Virginia M. Kendall Judge

Plaintiff Michael Fleury's 2016 Chevrolet Impala Flex Fuel broke down after he ran the car exclusively on E85 (85% ethanol). Fleury claims General Motors LLC (GM) failed to disclose the dangers of excessive E85 use to consumers. After this Court dismissed Fleury's Amended Complaint for failure to state a claim, (Dkt. 56), Fleury filed a Second Amended Complaint. (Dkt. 57). Again, GM moves for dismissal. (Dkt. 58). For the reasons below, GM's motion is granted in part and denied in part. (Id.)


The Court assumes familiarity with the facts of this case from its prior Opinion. Fleury v. Gen. Motors LLC, 2023 WL 1450284 (N.D. Ill. Feb. 1, 2023). In short, Fleury bought a used 2016 Chevrolet Impala Flex Fuel from an authorized GM dealer in 2019. (Dkt. 57 ¶ 12). He wanted a Flex Fuel car because it can use E85 in addition to gasoline, allowing fuel savings. (Id. at ¶¶ 1314, 18). Before buying the Impala, Fleury saw and relied on an “E85” window sticker above the fuel filler. (Id. at ¶ 20). Fleury also saw and relied on an online advertisement, which stated that the car's engine [i]ncludes E85 FlexFuel capability.” (Id. at ¶¶ 28-29; Dkt. 57-4 at 4).

Fleury points to several other of GM's representations-none of which he claims to have relied on in purchasing the car. Fleury's Impala had a “corn yellow” fuel-filler cap, indicating that it was a Flex Fuel vehicle. (Dkt. 57 ¶ 21). The fuel-filler cap stated: “E85 / Gasoline . . . Do not use additives with E85 Fuel.” (Id. at ¶¶ 22, 52; Dkt. 57-3). GM had “create[d] public understanding and secondary meaning” for the term “Flex Fuel.” (Dkt. 57 ¶ 30). For example, GM represented that Flex Fuel vehicles “run on E85 ethanol, gasoline, or any combination of the two.” (Id. at ¶¶ 31-32; Dkt. 57-5). Similar statements appeared in GM's annual reports on SEC Form 10-K for 2017 through 2021. (Dkt 57 ¶ 34).

At the time of purchase, Fleury received a copy of the 2016 Impala owner's manual. (Id. at ¶¶ 36-40; Dkts. 57-6, 57-7). He bought the car with the belief that the owner's manual included accurate instructions and warnings to use and maintain the car. (Dkt. 57 ¶¶ 41-46, 48-49). Fleury asserts his belief stemmed from GM's intention that consumers rely on the owner's manual for accurate information about the car. (Id. at ¶¶ 40-43). Similarly, Fleury alleges he “relied on . . . [t]he fact that an accurate manual for the vehicle existed and was being provided, prior to purchase.” (Id. at ¶ 49). Fleury read the owner's manual later, “whenever he had a question about the vehicle's features, operation or care.” (Id. at ¶ 47). 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. 57 ¶ 50a; Dkt. 57-6 at 27).
“If the vehicle has a yellow fuel cap, E85 or FlexFuel can be used in the vehicle.” (Dkt. 57 ¶ 50b; Dkt. 57-7 at 238).
“Vehicles with a yellow fuel cap can use either unleaded gasoline or fuel containing up to 85% ethanol (E85). All other vehicles should use only . . . unleaded gasoline ....” (Dkt. 57 ¶ 50c; Dkt. 57-7 at 240).
“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. 57 ¶ 50d; Dkt. 57-7 at 240).
“If the vehicle has E85 fuel capability, the fuel cap will be yellow and state that E85 or gasoline can be used.” (Dkt. 57 ¶ 50e; Dkt. 57-7 at 241).
“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. 57 ¶ 51a; Dkt. 57-7 at 240).
“Because E85 or FlexFuel has less energy per liter (gallon) than gasoline, the vehicle will need to be refilled more often.” (Dkt. 57 ¶ 51b; Dkt. 57-7 at 240).
“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. 57 ¶ 51c; Dkt. 57-7 at 240).

Purchasers of Flex Fuel vehicles did not receive any warning to “alternat[e] ¶ 85 with gasoline . . . every other tank or every third tank to prevent damage.” (Dkt. 57 ¶ 53). 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. While the largest concentrations of flex-fuel vehicles are found in the highest-population areas, two thirds of the current E85 stations, are in 10 Midwestern states. Ninety percent of registered flex-fuel vehicles don't have an E85 station in their zip code, and nearly 50%, don't have E85 in their county ....

(Id. at ¶ 60; Dkt. 57-8).

Fleury drove his Impala for a few years without issue, occasionally refilling with E85. (Dkt. 57 ¶¶ 67, 73). In 2022, after consulting with the owner's manual, Fleury ditched gas in favor of additive-free E85. (Id. at ¶¶ 65, 68). Then, the car's check-engine and warning lights turned on, and the car lost power. (Id. at ¶ 69). At the GM dealer, Fleury learned that his exclusive use of E85 had caused the fuel pump to fail, requiring its replacement. (Id. at ¶¶ 72-73). A service advisor told Fleury his car required alternating between E85 and gas to avoid problems with the fuel pump. (Id. at ¶¶ 73-75). GM has known since 2016 that excessive E85 use causes fuel-pump issues in Flex Fuel vehicles. (Id. at ¶¶ 77-84).

On January 9, 2022, Fleury's Impala “failed the Illinois emissions test.” (Id. at ¶ 85; Dkt. 57-21). His car's mass air flow sensor requires replacement due to the fuel-pump failure. (Dkt. 57 ¶ 87). Although the authorized dealer asked Fleury to pay for the car's diagnosis and repairs, GM later offered to fix the fuel pump. (Id. at ¶¶ 88-89). Yet, even after the fuel-pump repair, Fleury will risk damaging his car again if he uses only E85. (Id. at ¶¶ 90-91). If Fleury had known about the problem with excessive E85 use, he would not have bought a Flex Fuel vehicle or “would not have paid as much for it.” (Id. at ¶ 99). And if Fleury had received instructions to alternate between E85 and gas, he would have done so. (Id. at ¶ 100).

Fleury filed this action on July 26, 2022 (Dkt. 1) and amended his complaint on September 20, 2022. (Dkt. 21). Following the dismissal of the Amended Complaint on February 1, 2023, (Dkt. 56), Fleury filed a Second Amended Complaint on February 20, 2023. (Dkt. 57). Seeking to represent a class of GM Flex Fuel vehicle owners in Illinois, Fleury claims GM violated the Illinois Consumer Fraud Act (ICFA) through deceptive conduct (Count I) and unfair conduct (Count II); and committed common-law fraud (Count III). (Dkt. 57 ¶¶ 104-52).[1]On March 1, 2023, GM moved to dismiss Fleury's Second Amended Complaint for failure to state a claim. (Dkt. 58).


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, 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-pleaded factual allegations in the plaintiff's complaint as true, “drawing all reasonable inferences in his favor.” Id. (citing W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016)). 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).

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 how' of the alleged fraud.” Benson, 944 F.3d at 646 (quoting Vanzant, 934 F.3d at 738).

I. Law of the Case

Initially GM argues that the law-of-the-case doctrine bars consideration of Fleury's repleaded claims. (Dkt. 58-1 at 4). The Court disagrees. Promoting “consistency, finality, and judicial economy,” the law-of-the-case doctrine “presumes that once a court has decided a particular issue in a case, the issue should not be reopened without good cause.” Boyer v. BNSF Ry. Co., 824 F.3d 694, 710-11 (7th...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT