Selinger v. Ford Motor Co.

Decision Date05 April 2023
Docket Number2:22-CV-08883-SPG-KS
PartiesMARK SELINGER Plaintiff, v. FORD MOTOR COMPANY, and DOES 1 through 10, inclusive, Defendants.
CourtU.S. District Court — Central District of California



Before the Court is Plaintiff Mark Selinger's (Plaintiff) motion to remand case to Los Angeles County Superior Court (“Motion”). (ECF No. 12 (“Mot.”)). Having considered the parties' submissions, the relevant law, the record in this case, and the hearing on the Motion, the Court DENIES the Motion.

A. Factual Background

The complaint alleges as follows: Plaintiff is a resident of California. (ECF No. 13 ¶ 1 (“Compl.”)). Ford Motor Company (Defendant) is incorporated in Delaware and “has designated a principal place of business within California ....” (Id. ¶ 2). On or about January 4, 2019, Plaintiff purchased a 2019 Ford Fusion, VIN 3FA6POHD3KR148844 (“Subject Vehicle”) from Defendant's authorized retailer in California. (Id. ¶ 4). The Subject Vehicle was manufactured and distributed by Defendant and equipped with Defendant's 1.5L EcoBoost engine. (Id. ¶ 5). Defendant gave Plaintiff an express written warranty wherein Defendant undertook to preserve or maintain the utility or performance of the Subject Vehicle or provide compensation if there was a failure in utility or performance. (Id. ¶ 6). The warranty provided that if the Subject Vehicle were to malfunction due to a defect, then Plaintiff could present the Subject Vehicle to Defendant's authorized repair facility(ies) during the warranty period for repairs of such defect. (Id.).

During the warranty period, the Subject Vehicle contained and/or developed defect(s) which manifested in symptoms including but not strictly limited to, engine overheating; loss of coolant; coolant leaks; activation of diagnostic trouble codes (“DTCs”) P0300, P0301-P0304, P0316, P0217, P1285 and/or P1299; coolant intrusion into the engine cylinders; rough running; excessive smoking from the exhaust; lack of power; sensation that the vehicle was struggling to accelerate; and failure of turbocharger. (Id. ¶ 7). Plaintiff presented the Subject Vehicle for repairs to Defendant's authorized repair facility(ies). (Id. ¶ 8). However, Defendant, through its authorized repair facility(ies), was unable to repair the Subject Vehicle within a reasonable number of opportunities. (Id.).

The complaint then alleges that, [t]hrough its communications with its authorized repair facilities and other information available to it (including [Defendant's] numerous service bulletins and recall campaigns, internal communications, and investigations into the nature of the same defects in 2019 Ford Fusion vehicles equipped with the 1.5L EcoBoost engine, warranty claims submitted to it, communications from its authorized repair facilities, communication from its consumer, etc.), [Defendant] knew or should have known that it was required to provide restitution (i.e., a repurchase) or replace the [Subject Vehicle]. Notwithstanding such knowledge, [Defendant] willfully refused to do so.” (Id. ¶ 9).

B. Procedural History
1. Complaint

On July 29, 2022, Plaintiff filed a complaint against Defendant in Los Angeles County Superior Court. (Compl.). The complaint asserts four causes of action, all of which are under state law: (1) Breach of Warranty Obligation to Provide Restitution or Replacement, Cal. Civ. Code § 1793.2(d)(2), (id. ¶¶ 10-21); (2) Breach of Obligation to Commence or Complete Repairs Within Thirty (30) Days, Cal. Civ. Code § 1793.2(b), (id. ¶¶ 22-28); (3) Breach of Implied Warranty of Merchantability, Cal. Civ. Code § 1792, (id. ¶¶ 29-33); and (4) Fraudulent Inducement-Concealment, (id. ¶¶ 34-60).

For its first cause of action, the complaint asserts that Plaintiff is entitled to damages, including restitution or replacement, for [Defendant's] failure to comply with its obligations under the Song-Beverly Consumer Warranty Act.” (Id. ¶ 18). The complaint further alleges as to both the first and second causes of action that Defendant acted willfully when it refused to comply with its obligations under the Song-Beverly Consumer Warranty Act, and therefore under Cal. Civ. Code § 1794(c) Plaintiff is entitled to civil penalty damages of up to two times the amount of actual damages.” (Id. ¶¶ 20, 28).

For its third cause of action, the complaint asserts that Plaintiff “is entitled to[] justifiably revoke acceptance of the [Subject Vehicle]. Accordingly, Plaintiff seeks remedies provided in Cal. Civ. Code 1794(b), including recovery of the entire contract price. Alternatively, Plaintiff seeks the diminution in value of the [Subject Vehicle] resulting from the defect(s).” (Id. ¶ 33).

Finally, for its fourth cause of action, the complaint asserts that [a]s a result of [Defendant's] fraudulent misconduct, Plaintiff has suffered and will continue to suffer actual damages. Such damages include recission of the contract, restitution of all payments towards the purchase of the [Subject Vehicle], out of pocket expenses, diminution in value, in addition to noneconomic damages (i.e., emotional distress).” (Id. ¶ 59).

The complaint's prayer for relief requests the following in recovery: (1) Plaintiff's actual economic damages (including the right of restitution, incidental damages, and consequential damages, as outlined in Cal. Civ. Code 1793.2(d)(2) & 1794(b)) in an amount according to proof”; (2) noneconomic damages; (3) “civil penalty damages of no more than two times Plaintiff's actual damages, as per Cal. Civ. Code 1794(c) or (e); (4) punitive damages; (5) “costs and expenses, including Plaintiff's attorney's fees, pursuant to Cal. Civ. Code § 1794(d) and Cal. Code Civ.. Proc. § 1032 & 1033.5; (6) prejudgment interest at the legal relief; and (7) “such other relief as the Court may deem proper.” (Id. at 14). Notwithstanding these requests, the complaint does not state an amount-in-controversy.

2. Defendant's Notice of Removal

On December 7, 2022, Defendant removed the action to this Court based on diversity jurisdiction. (ECF No. 1 (“Removal”)). In the Notice of Removal, Defendant explains that [a]t the outset of this litigation, the amount in controversy could not be ascertained on the face of the Complaint.” (Id. ¶ 2). Defendant then states:

On October 5, 2022, [Defendant] served Requests for Production on Plaintiff, which asked Plaintiff to provide any and all documents that refer or relate to Plaintiff's purchase of the Subject Vehicle. See [(ECF No. 1-6)]. On November 7, 2022, Plaintiff served documents in response to [Defendant's Requests for Production including a copy of the sales contract which indicated that the total purchase price was “$33,526.80.” [(ECF No. 1-9)]. Further in his Prayer for Relief, Plaintiff states that he seeks “restitution,” “civil penalty damages of no more than two times Plaintiff's actual damages,” and “punitive damages.” [(ECF No. 1-3 at 12)]. Consequently, the total amount of damages Plaintiff seeks exceed $75,000 ($33,526.80 + ($33,526.80 x 2 [Song Beverly Act civil penalty]) + $33,526.80 x 9 [punitive damages]) = $402,321.60).

(Id. ¶ 12). The Notice of Removal also asserts that [a] mileage offset calculation does not need to be accounted for” in determining whether the amount-in-controversy requirement was met, see (id. ¶¶ 13-14), and that Defendant “anticipates that past and future attorney's fees will total at least $50,000” were Plaintiff to succeed in his action. See (id. ¶ 15). Finally, to argue that complete diversity exists, the Notice of Removal asserts that Defendant “is, and was at the time Plaintiff commenced this action, a corporation organized under the laws of the State of Delaware with its principal place of business in Michigan.” (Id. ¶ 17). The Notice of Removal includes a declaration by Defendant's counsel, along with eight different exhibits labelled A through H. (ECF Nos. 1-1; 1-2; 1-3; 1-4; 1-5; 1-6; 1-7; 1-8; 1-9).

3. Plaintiff's Motion to Remand

On December 20, 2022, Plaintiff filed the instant Motion, supported by a declaration of Plaintiff's counsel and exhibits. (Mot.); (ECF Nos. 12-1; 12-2). The Motion argues that remand is appropriate because Defendant's removal was not filed within 30 days of service of the pleadings and, therefore, is untimely under 28 U.S.C. § 1446(b)(1). See (id. at 5-6). The motion also argues that Defendant has not sufficiently established the amount-in-controversy requirement for a number of reasons. (Id. at 7-12). On January 6, 2023, Plaintiff filed a supplemental memorandum, which argued that Defendant also failed to account for a manufacturer's rebate and negative equity in its amount-in-controversy calculations. See (ECF No. 13 (“Supp.”)). On January 25, 2023, Defendant filed an opposition to the Motion, along with a declaration from Defendant's counsel and exhibits. (ECF Nos. 19 (“Opp.”); 19-1; 19-2; 19-3). Plaintiff filed a reply to Defendant's opposition on January 27, 2023. (ECF No. 20 (“Reply”)).


“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute....It is to be presumed that a cause lies outside this limited jurisdiction . . . and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S 375, 377 (1994) (internal citations omitted). A suit filed in a state court may be removed to federal court if the federal court would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Federal courts have original jurisdiction where an action presents a federal question under ...

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