Nyarko v. BMW of N. Am., LLC
| Decision Date | 27 March 2020 |
| Docket Number | Civil Action No. RDB-18-3618 |
| Parties | CHARLES NYARKO, et al. Plaintiffs, v. BMW OF NORTH AMERICA, LLC, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
In this case, thirteen Plaintiffs1 ("Plaintiffs") bring fraud and warranty-based claims against BMW of North America, LLC ("BMW NA") and Bavarian Motor Works ("BMW") arising from BMW's allegedly defective N63 engines. Plaintiffs' Amended Complaint brings four causes of action: Breach of Warranty Pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. (Count I); Breach of Implied Warranty of Merchantability Pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. and Md. Code Ann., Com. Law § 2-314 (Count II); Breach of Express Warranty Pursuant to the Md. Code Ann., Com. Law § 2-313 (Count III); Unfair and Deceptive Trade Practices, Md Code Ann., Com. Law, § 13-301, et seq. (Count IV).
Plaintiffs commenced this action on November 26, 2018 after opting out of a nationwide class action, Bang v. BMW of N. Am. LLC, No. CV 15-6945 (D.N.J.). Since thesettlement of the Bang action, scores of opt-out plaintiffs have filed lawsuits against BMW across the country.2 Now pending is BMW of North America, LLC's Motion to Dismiss Amended Complaint or for Summary Judgment and to Sever Claims of Misjoined Plaintiffs. (ECF No. 21.) This Court has reviewed the parties' submissions and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons stated herein, BMW NA's Motion (ECF No. 21) is DENIED.
Plaintiffs allege that BMW's N63 engines caused their BMW vehicles to consume an excessive amount of engine oil, requiring frequent replenishment of the oil, potentially damaging engine components, and posing a risk of injury. (Am. Compl. ¶¶ 157-59, ECF No. 14.) Each plaintiffs' allegations follow the same general pattern. Plaintiffs purchased BMW vehicles in the Maryland-Delaware-Virginia tristate area between 2010 and 2015. (Id. ¶¶ 11, 20, 26, 35, 43, 50, 58, 67, 76, 85, 93, 101, 110.) Most of the plaintiffs purchased used BMWs; a minority bought them new. (Id.) All the vehicles were equipped with the N63 engine. (Id. ¶ 131.) All Plaintiffs relied on Defendant's representations made in its New Vehicle LimitedWarranty, which promised repairs or replacements during a specified warranty period. (Id. ¶ 122.)
After buying their vehicles, plaintiffs discovered that they consumed an excessive amount of engine oil, requiring them to add engine oil several times between BMW's recommended oil change intervals. (Id. ¶¶ 13, 21, 28, 37, 45, 52, 60, 69, 78, 87, 95, 103, 112.) When they complained to authorized BMW dealership about the engine oil consumption, dealership employees told them that the oil consumption was "normal" or that "the type of engine you have, as you get more miles on it, it does this." (Id. ¶¶ 23, 30, 39, 46, 54, 62, 72, 89, 97, 105.) The BMW dealerships either did not repair the vehicles or made only limited repairs which did not resolve the problem. All Plaintiffs have paid out-of-pocket costs to supplement their engine's oil and some have paid for repairs. (Id. ¶ 33, 56, 65, 74, 91, 99, 108, 118.)
Plaintiffs contend that the excessive oil consumption is the product of "one or more defects" afflicting BMW's N63 engines. (Id. ¶ 212.) The N63 engine is a V8, twin-turbocharged engine placed in certain BMW 5 Series, 6 Series, 7 Series, X5, and X6 vehicles from the 2009 through 2014 model years. (Id. ¶ 129.) The engine' excessive consumption of engine oil is well known among car enthusiasts and BMW owners. (Id. ¶ 132.) Knowledge of the problem was widespread as of late 2011. (Id. ¶ 139-140.) Some theorize that the oil consumption problem is the result of the engine's unique configuration. (Id. ¶ 133.)
Plaintiffs allege that BMW tried to conceal the problem by issuing a series of technical service bulletins ("TSB") discussing the engine oil consumption of N63 engines but failing toacknowledge that the engine was defective. In a TSB issued in June 2013, BMW increased the engine oil consumption specifications for N63 engines and directed service technicians to add more engine oil during oil changes. (Id. ¶ 145.) Another TSB indicated that "[t]he additional engine oil consumption of a turbocharged engine, as compared to a normally aspirated engine, is normal and not a defect." (Id. ¶ 147.) On December 29, 2014, BMW launched a "customer care package" which, among other things, instructed BMW technicians to offer free replacements of various components within the N63 engine and adjusted the recommended intervals between oil changes. (Id. ¶¶ 152-154.)
On September 18, 2015, a class action lawsuit was filed in the United States District Court for the District of New Jersey which made allegations similar to those presented in this case. See Bang v. BMW of N. Am., LLC, No. CV 15-6945, 2016 WL 7042071 (D.N.J. Dec. 1, 2016). The Bang class action resulted in a settlement. The plaintiffs in this case opted out of the Bang class action and filed suit in this Court on November 26, 2018. (ECF No. 1.) An Amended Complaint followed on February 13, 2019. (ECF No. 14.) The Amended Complaint brings four causes of action: Breach of Warranty Pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. (Count I); Breach of Implied Warranty of Merchantability Pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. and Md. Code Ann., Com. Law, § 2-314 (Count II); Breach of Express Warranty Pursuant to the Md. Code Ann., Com. Law, § 2-313 (Count III); Unfair and Deceptive Trade Practices Md. Code Ann., Com. Law, § 13-301, et seq. (Count IV). BMW NA has moved to dismiss Plaintiffs' claims for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6), or, alternatively, for Summary Judgment underFed. R. Civ. P. 56. (ECF No. 21.) Should this Court deny these motions, BMW NA petitions this Court to sever the plaintiffs' claims under Fed. R. Civ. P. 21 so that each of the thirteen plaintiffs would be required to pursue this matter individually.
Defendant BMW NA moves to dismiss Plaintiffs' claims or, in the alternative, for summary judgment. To support its summary judgment motion, Defendant has attached several exhibits pertaining to Plaintiffs' warranty claims, including the warranties issued to each plaintiff and several Carfax vehicle history reports. A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." Sager v. Hous. Com'n of Anne Arundel Cty., 855 F. Supp. 2d 524, 542 (D. Md. 2012) (quoting 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2011 Supp.). This Court declines to consider these filings because summary judgment would be inappropriate at this early stage.
BMW NA has moved to dismiss for lack of subject matter jurisdiction, arguing that Plaintiffs have failed to satisfy the amount-in-controversy requirement applicable to their Magnuson-Moss Warranty Act claims. A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D.Md. 2005). A challenge to jurisdiction under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting "that the jurisdictional allegations of the complaint [are] not true." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). In a facial challenge, a court will grant a motion to dismiss for lack of subject matter jurisdiction "where a claim fails to allege facts upon which the court may base jurisdiction." Davis, 367 F. Supp. 2d at 799. Where the challenge is factual, however, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Kerns, 585 F.3d at 192. The court, therefore, "may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 650 (4th Cir. 2018).
BMW NA also seeks dismissal of Count IV of the Amended Complaint, which alleges violations of the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law § 13-301, et seq. Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see also Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). The sufficiency of a complaint is assessed by reference to the pleading requirements of Rule 8(a)(2), which provides that a complaint mustcontain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Bell Atl., Corp. v. Twombly, 550 U.S. 544, 570 (2007); ...
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