Grover v. BMW of N. Am., LLC

Decision Date24 January 2022
Docket NumberCase No. 1:19-cv-12
Citation581 F.Supp.3d 930
Parties Gary GROVER, et al., Plaintiffs, v. BMW OF NORTH AMERICA, LLC, Defendant.
CourtU.S. District Court — Northern District of Ohio

Vlad Hirnyk, Sergei Lemberg, Lemberg Law, Wilton, CT, for Plaintiffs Gary Grover, Reginald Williams, Dana Walling, Joshua Cribbs, Wendy Massey, John Webb, Parker Jarvis.

Sergei Lemberg, Lemberg Law, Wilton, CT, for Plaintiff Ava Littlejohn.

John R. McInerney, Timothy V. Hoffman, Sanchez Daniels & Hoffman, Chicago, IL, for Defendant.



This matter is before the Court on the cross motions of plaintiffs1 (Doc. No. 77)2 and defendant BMW of North America, LLC ("BMW") (Doc. No. 70) for summary judgment pursuant to Fed. R. Civ. P. 56 with respect to plaintiffs’ amended complaint (Doc. No. 13). As detailed below, the motions are fully briefed and ripe for resolution.

For the reasons that follow, plaintiffs’ motion is denied, and BMW's motion is granted in part and denied in part.


All plaintiffs in this action purchased different models and model years of BMW vehicles from different sellers.3 But the basic facts underlying each of plaintiffs’ claims have a common core, and those common factual allegations and claims as set forth in the amended complaint may be summarized as follows. Plaintiffs claim that their BMW vehicles, all equipped with N63 engines, consumed excessive amounts of engine oil. When they raised this issue with their respective dealers during the warranty period, they were told that the oil consumption was normal. Plaintiffs dispute this contention, asserting that the oil consumption was excessive and caused by a manufacturing defect in the N63 engine which BMW did not remedy under warranty. (See Doc. No. 13 ¶¶ 14, 22, 30, 41, 49, 57, 67, 85, 89–90.)

Based upon these factual allegations common to all plaintiffs, plaintiffs assert four (4) causes of action. First, for breach of express warranty pursuant to the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301, et seq. (Id. ¶¶ 142–148.) Second, for breach of implied warranty of merchantability pursuant to the MMWA, 15 U.S.C. § 2301, et seq. and Ohio Rev. Code § 1302.27. (Id. ¶¶ 149–155.) Third, for breach of express warranties pursuant to Ohio Rev. Code § 1302.26. (Id. ¶¶ 156–164.) And fourth, for violation of Ohio's Consumer Sales Practices Act ("CSPA") pursuant to Ohio Rev. Code § 1345.01 et seq. (Id. ¶¶ 165–186.)

BMW moved to dismiss plaintiffs’ claims on multiple grounds, including on the merits and the timeliness this action. The Court denied BMW's motion. See Grover v. BMW of N. Am., LLC , 434 F. Supp. 3d 617 (N.D. Ohio 2020). BMW also moved to exclude the testimony and opinion of plaintiffs’ expert witness Darren Manzari ("Manzari") and the Court ruled on that motion in a separately published memorandum opinion and order filed contemporaneously herewith. Relevant to the instant opinion, the Court granted BMW's motion as to Manzari's testimony and opinions concerning concealment and determined that his opinion concerning the ordinary purpose of the subject vehicles (claim 2) was moot, given the Court's disposition of claim 2.

Both sides now seek summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiffs seek partial summary judgment as to liability on their first, third, and fourth causes of action. (See Doc. No. 77.) BMW opposed plaintiffs’ motion (Doc. No. 85), and plaintiffs filed a reply (Doc. No. 89).

BMW seeks summary judgment against each plaintiff on all four claims. (Doc. No. 70.) Plaintiffs opposed BMW's motion (Doc. No. 80), and BMW filed a reply (Doc. No. 93).

A. Summary Judgment Standard of Review

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if its resolution might affect the outcome of the lawsuit under the governing law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed. 2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id.

In order to obtain summary judgment, the moving party must provide evidence to the court that demonstrates the absence of a genuine dispute as to any material fact. Once the moving party meets this initial burden, the opposing party must come forward with specific evidence showing that there is a genuine issue for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed. 2d 265 (1986) ; Anderson , 477 U.S. at 250, 106 S.Ct. 2505. The nonmoving party may oppose a summary judgment motion "by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves[.]" Celotex , 477 U.S. at 324, 106 S.Ct. 2548. The Court must view all facts and evidence, and inferences that may be reasonably drawn therefrom, in favor of the nonmoving party. United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S. Ct. 993, 8 L.Ed. 2d 176 (1962).

General averments or conclusory allegations of an affidavit do not create specific fact disputes for summary judgment purposes. See Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 888–89, 110 S. Ct. 3177, 111 L.Ed. 2d 695 (1990). " ‘The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].’ " Street v. J.C. Bradford & Co. , 886 F.2d 1472, 1477 (6th Cir. 1989) (quoting Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ).

The district court's review on summary judgment is a threshold inquiry to determine whether there is the need for a trial due to genuine factual issues that must be resolved by a finder of fact because those issues may reasonably be resolved in favor of either party. Anderson , 477 U.S. at 250, 106 S.Ct. 2505. Put another way, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251–52, 106 S. Ct. 2505 ; see also Wexler v. White's Fine Furniture, Inc. , 317 F.3d 564, 578 (6th Cir. 2003).

Summary judgment is required:

against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.

Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 (internal quotation marks and citation omitted).

The typical summary judgment standard of review "poses unique issues" when cross motions for summary judgment are filed. B.F. Goodrich Co. v. U.S. Filter Corp. , 245 F.3d 587, 592 (6th Cir. 2001). In such cases, the district court must evaluate each party's motion on its own merits, drawing all reasonable inferences against the moving party. Id. (citation omitted). If it is possible to draw inferences in either direction, then both motions for summary judgment should be denied. Id. at 592–93. The making of contradictory claims on summary judgment does not mean that if one is rejected the other must be accepted. Id.

Both BMW and plaintiffs contend that they are entitled to judgment on the merits of plaintiffs’ claims. In addition, BMW contends that plaintiffs’ claims are barred by the applicable statute of limitations.

B. Claims 1 and 3 - Express Warranty Claims

Both claims 1 and 3 assert claims for breach of express warranty, so the Court will address them together. In their first and third causes of action, plaintiffs claim breach of express warranty under the MMWA and Ohio Rev. Code § 1302.26, respectively—namely, that BMW failed to repair or replace a manufacturing defect in plaintiffs’ vehicles’ N63 engines that caused excessive oil consumption.

The MMWA "sets forth guidelines, procedures and requirements for warranties, written or implied, on consumer products." Temple v. Fleetwood Enter., Inc. , 133 F. App'x 254, 268 (6th Cir. 2005) (citing 15 U.S.C. §§ 2301 – 2312 ). "The MMWA creates a federal cause of action for violations of the MMWA itself and for breaches of warranty arising from state law." Mayernik v. CertainTeed LLC , 476 F. Supp. 3d 625, 631 (S.D. Ohio 2020) (citing Kuns v. Ford Motor Co. , 543 F. App'x 572, 575 (6th Cir. 2013) ; Albright v. Sherwin-Williams Co. , No. 1:17-cv-2513, 2019 WL 5307068, at *10 (N.D. Ohio Jan. 29, 2019) (The MMWA "is a vehicle to assert state law breach of warranty claims in federal court."); Powell v. Airstream, Inc. , 140 N.E.3d 1172, 1187 (Ohio Ct. App. 2019) ("The outcome of the state law warranty claims determines the disposition of the Magnuson-Moss Act claims.") (applying Washington state law)). " ‘Therefore, the elements that a plaintiff must establish to pursue a cause of action for breach of warranty under the MMWA are the same as those required by Ohio law.’ "4 Mayernik , 476 F. Supp. 3d at 631 (quoting Kuns , 543 F. App'x at 575 ).

1. Genuine issues of material facts as to the merits of claims 1 and 3

Ohio law defines an express warranty as "[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain[.]" Ohio Rev. Code § 1302.26(A)(1). "To establish a claim for...

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