Klingler v. Yamaha Motor Corp., USA

Decision Date23 April 1990
Docket NumberCiv. A. No. 89-6889.
Citation738 F. Supp. 898
CourtU.S. District Court — Eastern District of Pennsylvania


Glennis L. Clark, Allentown, Pa., for plaintiff.

Jonathan Dryer, Wilson, Elser, Moscowitz, Edelman & Dicker, Philadelphia, Pa., for defendant.


CAHN, District Judge.

In this products liability action, the defendants have moved to dismiss the entire action because of the absence of diversity, to strike paragraph six of the amended complaint as immaterial matter, and to dismiss Count Three of the amended complaint for failure to state a claim upon which relief may be granted. The motion to dismiss the entire action shall be denied; the other two motions shall be granted.


Michael Klingler, a citizen of Pennsylvania, alleges that, on September 26, 1987, he was thrown from an all-terrain vehicle manufactured by Yamaha Motor Corporation, U.S.A. ("Yamaha") and suffered severe injuries. Amended Complaint, ¶¶ 4, 5, 8, 15. As a result, he has brought this action. Yamaha is the only defendant named in the caption of the amended complaint. Paragraph six, however, states that there are Doe defendants in this action; it asks permission to amend the complaint "to show the true names and capacities of these Defendants when they have been ascertained." These Does are alleged to be liable for the injuries in the same manner as Yamaha. Amended Complaint, ¶ 6.

All but one count of the amended complaint set forth state law claims for breach of warranty, negligence, and the like. Court Three alleges that the all-terrain vehicle in question created a substantial product hazard as defined in the Consumer Product Safety Act, 15 U.S.C. § 2064(a), and that Yamaha's failure to comply with that section of the statute and the corresponding regulations (16 C.F.R. §§ 1115-16) caused the damages listed in the complaint. Amended Complaint, ¶¶ 26-28. Jurisdiction rests upon 28 U.S.C. § 1332.1

Yamaha has moved to dismiss Count Three because the statute under which Klingler purports to proceed does not create a private cause of action. It also has moved to dismiss the complaint as a whole because the presence of the Doe defendants defeats diversity. Alternatively, it argues that paragraph six of the complaint should be stricken, because Doe defendants are not permitted under the Federal Rules of Civil Procedure.


Section 23(a) of the Consumer Product Safety Act ("CPSA") allows private damages suits by "any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Consumer Product Safety Commission ..." 15 U.S.C. § 2072(a). No section allows private suits for violations of the statute itself, though the Consumer Product Safety Commission ("Commission") may act against statutory violations. 15 U.S.C. §§ 2069(a)(1), 2070, 2071. Section 15(b) of the CPSA requires that manufacturers, distributors, and retailers of consumer products distributed in commerce inform the Commission when such a product fails to comply with an applicable consumer product safety rule or contains a defect which could create a substantial product hazard. 15 U.S.C. § 2064(b). The Commission has set forth rules guiding the manner in which these reports are to be made. 15 C.F.R. § 1115 (1989).

Klingler alleges that, by failing to report a defect in the all-terrain vehicle to the Commission, Yamaha violated 15 C.F.R. § 1115 and thus may be sued under 15 U.S.C. § 2072(a) of the CPSA. Yamaha responds by arguing that there is no private cause of action for failing to report a possible hazard.

At the outset, it may be noted that the great weight of authority favors Yamaha. Every federal appellate court that has decided this issue has held that there is no private cause of action to enforce the reporting requirements of section 15(b). Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1457-58 (10th Cir.1990); Benitez-Allende v. Alcan Aluminio do Brasil, S.A., 857 F.2d 26, 34-35 (1st Cir.1988) (Breyer, J.); Zepik v. Tidewater Midwest, Inc., 856 F.2d 936, 940-44 (7th Cir.1988); Kelsey v. Muskin, Inc., 848 F.2d 39, 42-43 (2d Cir.1988); Copley v. Heil-Quaker Corp., No. 86-3360, slip op. at 3 (6th Cir. May 20, 1987) (per curiam) 818 F.2d 866 (table); Drake v. Honeywell, Inc., 797 F.2d 603, 605-10 (8th Cir.1986). Although some courts have upheld a private cause of action, almost every court since Drake has held otherwise. Compare Ekx v. Diamondlac Corp., 722 F.Supp. 625, 627-29 (D.Nev. 1989) (no private cause of action); Sara Lee Corp. v. Homasote Co., 719 F.Supp. 417, 424-25 (D.Md.1989) (same); Crouse v. Kawasaki Heavy Indus. Ltd., 716 F.Supp. 723, 724-26 (N.D.N.Y.1989) (same); O'Connor v. Kawasaki Motors Corp., 699 F.Supp. 1538, 1544-45 (S.D.Fla.1988) (same); DesLauriers v. Honda Motor Co., No. 88-407, 1988 WL 212476 (W.D.Pa. June 27, 1988) (same); Kukulka v. Holiday Cycle Sales, Inc., 680 F.Supp. 266, 268-69 (E.D.Mich.1988) (same); Martin v. International Dryer Corp., 637 F.Supp. 101, 103-04 (E.D.N.C.1986) (same); Kahn v. Sears, Roebuck and Co., 607 F.Supp. 957, 958-59 (N.D.Ga.1985) (same); Morris v. Coleco Indus., 587 F.Supp. 8, 9-10 (E.D.Va. 1984) (same); and Howard v. Poseidon Pools, Inc., 134 A.D.2d 926, 522 N.Y.S.2d 388 (1987) (same) with Brown v. Daisy Mfg. Co., 724 F.Supp. 44, 46-48 (N.D.N.Y. 1989) (private cause of action); Hughes v. Segal Enters., Inc., 627 F.Supp. 1231, 1240 (W.D.Ark.1986) (same); Wilson v. Robertshaw Controls Co., 600 F.Supp. 671, 674-75 (N.D.Ind.1985) (same); Payne v. A.O. Smith Corp., 578 F.Supp. 733, 738 (S.D. Ohio 1983) (same); Young v. Robertshaw Controls Co., 560 F.Supp. 288, 292-93 (N.D.N.Y.1983) (same); Butcher v. Robertshaw Controls Co., 550 F.Supp. 692, 698-700 (D.Md.1981) (same); and Swenson v. Emerson Elec. Co., 374 N.W.2d 690, 698-705 (Minn.1985) (same).2 Cf. Mason v. Bernzomatic Corp., No. 87-7380, 1988 WL 75983 (E.D.Pa. July 6, 1988) (Green, J.) (court "inclined" to hold in favor of private cause of action, but reserves judgment).

The weight of authority alone suggests strongly that there is no private cause of action. However, the cases holding that no such cause of action exists differ in approach. One line, typified by Drake, comes to that conclusion by focusing on the difference between interpretative and substantive3 rules, holding that the reporting rules are interpretative and hence not capable of violation (put otherwise, that violation of the interpretative rules is really violation of the statute they interpret, which does not create a private cause of action). The courts in Kloepfer, Benitez-Allende, Copley, Ekx, Sara Lee, Crouse, O'Connor, DesLauriers, Kukulka, Kahn, and Morris have adopted this approach. The other, typified by Zepik, states instead (or, at times, in addition) that the chain of causation needed to proceed from failure to report to injury is too attenuated to survive the statute's requirement that private causes of action only arise when an injury occurs "by reason of" the violation of a rule. This view has been adopted by the Kelsey, Martin, and Howard courts; in addition, the Brown court, though holding Drake incorrect, found no causation. Brown, 724 F.Supp. at 48-49. In part because of this split in authority, and in part because our Court of Appeals has not ruled on the issue and because no judge in this district has ruled definitively on it, I shall discuss both arguments.

A. Nature of the Reporting Rules

For this court to hold that there is no private cause of action for the reasons stated in Drake and its relations, this court must make two distinct findings. First, it must find that the distinction between substantive and interpretation rules matters; if section 23(b) of the CPSA applies to all rules, substantive and interpretation alike, then this court's analysis must stop and, at least on this ground, the motion to dismiss would have to be denied. Indeed, the courts that have held that a private cause of action exists have done just that. See, e.g., Hughes, 627 F.Supp. at 1240; Payne, 578 F.Supp. at 738; Butcher, 550 F.Supp. at 698-700. Second, it must find that the reporting rules are interpretation.

Before the analysis begins, it is necessary to state the difference between substantive and interpretation rules. The Administrative Procedure Act ("APA") does not contain explicit definitions of these terms; indeed, the APA defines "rule" to include both interpretation and substantive rules. 5 U.S.C. § 551(4). However, the APA contains two significant differentiations between the two types of rules. The notice and comment requirements of the APA do not apply "to interpretation rules, general statements of policy, or rules of agency organization, procedure, or practice ..." 5 U.S.C. § 553(b). In addition, the normal thirty-day notice before a rule takes effect is not required for "interpretation rules and statements of policy ..." 5 U.S.C. § 553(d)(2). In commenting on these sections, the Department of Justice offered what it termed "working definitions" of these terms. Substantive rules were defined as "rules ... issued by an agency pursuant to statutory authority and which implement the statute ... Such rules have the force and effect of law." U.S. Dep't of Justice, Attorney General's Manual on the Administrative Procedure Act 30 n. 3 (1947).4 In contrast, the Manual defined interpretative rules as "rules or statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers." Id.

The difference is not merely taxonomic. Substantive rules have the force of law; courts must follow them, and may only strike them if the promulgating agency abused its discretion, exceeded its statutory authority, or otherwise failed to act legally. Batterton v. Francis, 432 U.S. 416, 425-26, 97 S.Ct. 2399, 2405-06, 53...

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