Hickman v. Subaru of Am.
| Decision Date | 19 October 2022 |
| Docket Number | 1:21-cv-02100-NLH-AMD |
| Parties | AIMEE HICKMAN, JARED HICKMAN, WILLIAM TREASURER, KELLY DROGOWSKI, FRANK DROGOWSKI, JOHN TAITANO, RICHARD PALERMO, LORI WOIWODE, SHAWN WOIWODE, CAROLYN PATOL, CASSANDRA SEMBER, AND STEVEN SEMBER, individually and on behalf of all others similarly situated, Plaintiffs, v. SUBARU OF AMERICA, INC. and SUBARU CORPORATION f/k/a FUJI HEAVY INDUSTRIES, LTD., Defendant. |
| Court | U.S. District Court — District of New Jersey |
ABIGAIL GERTNER NATALIE LESSER RUSSELL D. PAUL AMEY J. PARK BERGER MONTAGUE PC On behalf of Plaintiffs
NEAL D. WALTERS CASEY GENE WATKINS BALLARD SPAHR LLP On behalf of SOA and SBR
Before the Court is Subaru of America, Inc.'s (“SOA”) motion to dismiss Plaintiffs' Amended Complaint. (ECF 18). Also before the Court is Subaru Corporation's (“SBR”) motion to dismiss the Amended Complaint. (ECF 28). Finally, before the Court is Plaintiffs' motion for judicial notice. (ECF 31). For the reasons expressed below, the motions to dismiss will be granted in part and denied in part. The Court will grant the motion for judicial notice in its entirety.
Plaintiffs brought this putative class action suit against SOA and SBR (collectively, “Subaru” or “Defendants”) alleging that since, 2019, Subaru has manufactured, marketed, and sold the Ascent model of their cars with dangerous and defective transmissions. The transmission in question, the TR690 transmission, a type of Continuously Variable Transmission (“CVT”) allegedly “causes hesitation, jerking, shuddering lurching, squeaking, whining, or other loud noises, delays in acceleration, inconsistent shifting, stalling, and a loss of power or ability to accelerate at all.” (ECF 16 at 2).
Plaintiffs claim that when they purchased or leased their vehicles, they did so pursuant to an express warranty covering their cars for “defects in materials or workmanship” over a period of “three-year/36,000-mile[s].” (Id. at 29). Plaintiffs contend that Subaru was aware of these defects at least as early as 2011. (Id. at 2). Plaintiffs claim that with discovery they will be able to prove that the transmission issues stem from one or a combination of the following:
1) material and/or workmanship defects with transmission components, specifically the sensors for the hydraulic pressure system which determines the gear ratio, the CVT chain, and, the transmission wiring harness; 2) improper design and/or calibration of the software which controls the transmission's function, the Transmission Control Module (the “TCM”); 3) improper design and/or calibration of the transmission's features, including X-MODE, with other features of the vehicle, including Pre-Collision Throttle Management; and/or 4) design defects which did not properly account for the size, shape, and weight of the Ascent model compared to other Subaru models which also use the TR690 (“Transmission Defect” or “Defect”).
(Id. at 2-3).
Plaintiffs contend that Subaru has recalled the Ascent multiple times for various issues, including some related to the transmission, but has failed to fix the central issue with the transmission. (Id. at 3 (); id. at 19 ()). Plaintiffs principally complain that the transmission issues make their cars unsafe “because it severely affects the driver's ability to control the car's speed, acceleration, and deceleration.” (Id.) Plaintiffs allege that it can be problematic for their Ascents “to move smoothly through intersections and other commonplace driving situations such as entering and exiting highways, changing lanes, and even controlling speed on inclines and declines on the road.” (Id.)
They further allege that Subaru has known for quite some time that the transmission defect exists but that has refused to sufficiently rectify it, going so far as to conceal ongoing issues to prospective customers and Ascent owners. (Id.) Plaintiffs state that they will seek to certify a nationwide class and several subclasses. (Id. at 58-59). The subclasses include ones for (i) Maryland, (ii) North Carolina, (iii) Pennsylvania, (iv) California, (v) Song-Beverly[1], (vi) Massachusetts, (vi) North Dakota, (vii) New York, and (vii) Virginia. (Id.)
Plaintiffs originally filed a complaint in this matter on February 8, 2021. (ECF 1). SOA moved to dismiss that complaint on April 12, 2021 (ECF 14). However, on May 14, 2021, before briefing was completed on that motion, Plaintiffs superseded that complaint with an amended complaint, (the “Amended Complaint”). (ECF 16). SOA moved to dismiss the Amended Complaint on June 11, 2021, (ECF 18), and SBR moved to dismiss on December 3, 2021.[2] (ECF 28).
During the course of briefing, on January 21, 2022, Plaintiffs filed a Motion for Judicial Notice of a Part 573 Safety Recall Report (the “Recall Report”) dated December 9, 2021, submitted by SOA to the National Highway Transportation Safety Administration (“NHTSA”). (ECF 31). Then, on February 4, 2022, the parties proposed a further briefing schedule to address whether the Recall Report mooted any or all of the claims in the Amended Complaint.[3] (ECF 35). Briefing was completed on March 18, 2022, (ECF 43), and this matter is now ripe for the Court's consideration.
Aimee and Jared Hickman (“the Hickmans”) purchased their Subaru Ascent in June 2020 in Maryland. (ECF 16 at 6). The Hickmans contend that they made the decision to purchase the vehicle after conducting internet searches on Subaru's website, reviewing the window sticker in the car, and speaking to a Subaru sales representative at the dealership who assured them of the safety and the quality of the vehicle. (Id. at 7). The Hickmans allege that their car began revving, lurching, and shuddering around November 2020. (Id. at 8). The Hickmans also state that “[o]n or about January 27, 2021, with approximately 11,600 miles on the odometer, Aimee Hickman took her vehicle to Heritage Subaru and complained about the transmission.” (Id.) They allege that the dealership stated that there were no error codes on the car and therefore did not attempt any repairs. (Id.) The Hickmans allege that they still experience these defects even though they drive their vehicle in a foreseeable manner. (Id.)
William Treasurer (“Treasurer”) purchased his Subaru Ascent in November 2018 in North Carolina. (Id. at 8-9). Treasurer alleges that prior to purchasing the vehicle, he relied on internet articles about the car, the car's window sticker, conversations with a Subaru sales representative, and a test drive he conducted. (Id. at 9). He claims that Subaru should have disclosed the transmission defect through these types of media and if he had known about the defect, it would have been material to his decision to purchase the car. (Id.) On July 31, 2020, brought his car to the dealership so that the dealership could perform several recalls, including one on his transmission. (Id.) However, no error codes showed on his transmission. (Id.) He also alleges that a transmission defect caused his car to completely stall at a red light in January 2021, causing his car to be towed to a Subaru dealership where they completely replaced his transmission. (Id. at 10.) He states that this experience has resulted in his loss of confidence that his vehicle could provide safe and competent transportation. (Id. at 11).
Kelly and Frank Drogowski (the "Drogowskis”) purchased their Subaru Ascent in December 2019 in Pennsylvania. (Id. at 11). Similar to the Hickmans and Treasurer, they alleged that they relied on internet articles about the car, the car's window sticker, conversations with a Subaru sales representative, and a test drive in making their decision to buy the car. (Id.) The Drogowskis allege that shortly after they purchased their Ascent, they began to experience "pulling, shuddering, and hesitating, especially when trying to accelerate from a stop.” (Id.) These problems were particularly pronounced where they were driving on an incline. (Id.)
When they took their car into the dealership in mid-July 2019, they allege that they complained about the transmission defect, but the dealership did not do anything about it.
(Id. at 12). They allege that they continued to experience issues and brought the car back within 10 days, but that the dealership did not attempt to fix the transmission. (Id.) After further issues, the Drogowskis brought their car to the dealership once again in September 2019 and that time the dealership discovered a transmission issue and replaced it. (Id.) However, this did not fix the issue and that they have brought the car back to the dealership multiple times since then and the dealership has not fixed the issue. (Id.)
John Taitano (“Taitano”) alleges that he purchased his Subaru Ascent in California in August 2019. (Id. at 14). Taitano alleges that he relied on internet articles about the car, the car's window sticker, conversations with a Subaru sales representative, and a test drive in making his decision to buy the car. (Id. at 15). He states that “[i]n June 2020, when the vehicle's mileage was about 15,000 miles, Taitano experienced the vehicle having limited power while ascending hills, losing power while being driven, jerking at stop lights, and emitting a white cloud from the exhaust pipe.” (Id. at 16). In July 2020 and March 2021, Taitano took his car to the dealership, complaining of these issues but the dealership told him that there was nothing wrong with the car. (Id. at 16). He states that he brought the car back later that March and that the...
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