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Case 6:13-cv-00555-RBD-GJK Document 38 Filed 07/26/13 Page 1 of 7 PageID 294




and EVA ANDREA PORTER, on behalf
of themselves and all others similarly





Case No. 6:13-cv-555-Orl-37GJK

This cause is before the Court on the following:




First Amended Complaint (Doc. 8), filed April 30, 2013;

Defendant Chrysler Group LLC’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Alternative Motion to Strike, and Incorporated

Memorandum of Law (Doc. 28), filed May 30, 2013;


Plaintiffs’ Opposition to Motion to Dismiss First Amended Complaint,

Alternative Motion to Strike and Incorporated Memorandum of Law

(Doc. 29), filed June 17, 2013; and


Defendant Chrysler Group LLC’s Reply in Support of Its Motion to Dismiss

Plaintiffs’ First Amended Complaint and Alternative Motion to Strike

(Doc. 36), filed June 25, 2013.

Upon review, the Court finds that the motion to dismiss is due to be granted in part and

denied in part, for the reasons set forth below.

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Plaintiffs are owners of Dodge Ram trucks manufactured and distributed by

Defendant. (Doc. 8, ¶ 2.) They brought this class action suit against Defendant for

breach of warranty and a violation of the Magnuson-Moss Warranty Act (“MMWA”),

alleging that the multi-displacement systems (“MDS”) of the trucks are defective and

that Defendant has failed to repair them as the warranty promises. (Id. ¶ 1.)

Plaintiffs rely on two express warranties: (1) the Basic Limited Warranty, which

covers all parts of the truck and lasts for three years or 36,000 miles (Doc. 8-1,

pp. 9–11); and (2) the Powertrain Limited Warranty, which covers only certain listed

parts and lasts for five years or 100,000 miles (id. at 13–16). The First Amended

Complaint largely refers to the Powertrain warranty, expressly alleges breach of that

warranty, and defines the proposed class by that warranty. (Doc. 8, ¶¶ 37, 39, 44,

54–55.) However, when the First Amended Complaint actually quotes the warranty, it

refers to the Basic warranty—though, confusingly, quotes it as if part of the Powertrain

warranty. (Id. ¶ 54 (“Plaintiffs’ vehicle, like all the subject vehicles, are [sic] covered by

Chrysler’s written 5 year/100,000 mile Powertrain Limited Warranty, which . . . provides,

in pertinent part, that: ‘The Basic Limited Warranty covers the cost of all parts and

labor . . . .’”).)

Defendant now moves to dismiss the First Amended Complaint, arguing that:

(1) it fails to identify a defect covered by the Powertrain warranty or any defect at all;

(2) it does not allege that Defendant refused to repair the trucks, only that Defendant

has yet to come up with a fix; (3) the MMWA claim fails for lack of required pre-suit

notice; and (4) the Court should strike Plaintiffs’ request that Defendant pay to notify the

class. (Doc. 28.) Plaintiffs oppose, contending that: (1) Defendant admitted that the


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defect is covered by the warranty, and in any case, Plaintiffs are not required to

specifically identify the defect; (2) Defendant has actually failed to repair the trucks;

(3) Defendant misreads the pre-suit notice requirement of MMWA; and (4) the issue of

who pays to notify the class is better taken up on summary judgment. (Doc. 29.) The

Court granted Defendant leave to reply to address the discrepancy between the Basic

and Powertrain warranties. (Doc. 33.) Defendant argues that the First Amended

Complaint fails to allege that the defective part is covered by the Powertrain warranty,

which Defendant contends is the true subject of the claim, rather than the Basic

warranty. (Doc. 36.) This matter is now ripe for the Court’s adjudication.


Federal Rule of Civil Procedure 8(a)(2) provides that a claimant must plead “a

short and plain statement of the claim.” On a motion to dismiss, the Court limits its

consideration to “the well-pleaded factual allegations.” La Grasta v. First Union Sec.,

Inc., 358 F.3d 840, 845 (11th Cir. 2004). The factual allegations in the complaint must

“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). In making this plausibility determination, the Court must accept the

factual allegations as true; however, this “tenet . . . is inapplicable to legal conclusions.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers mere “labels and

conclusions” is therefore insufficient. Twombly, 550 U.S. at 555.



Identification of the Defect

Defendant’s motion relies largely on the argument that because Plaintiffs only

identify “symptoms” of the defect, rather than the precise defect itself, the First

Amended Complaint fails to state a claim. (Doc. 28, p. 8.) The Court disagrees. At this


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stage, Plaintiffs are not required to specifically plead the details of the defect, as

information asymmetry is very much present before discovery. See Bailey v. Janssen

Pharmaceutica, Inc., 288 F. App’x 597, 605 (11th Cir. 2008) (“It is difficult for a plaintiff

at this stage in the litigation to know the source of the defect that was responsible for

the harm caused . . . .”). If Defendant cannot even figure out what is wrong with the

trucks with its superior knowledge of their manufacture and design, then the Court

cannot expect Plaintiffs to be able to specifically identify the defect at this time. It is

enough that Plaintiffs allege that the MDS is defective and that it is covered by the

warranties.1 See Krywokulski v. Ethicon, Inc., No. 8:09-CV-980-T-30MAP, 2010 WL

326166, at *3 (M.D. Fla. Jan. 21, 2010) (Moody, J.) (“Plaintiff’s allegation of a defect

alone is sufficient, as mere knowledge of a defect gives defendant enough notice to

produce a proper response . . . .”).

That being said, the Court agrees with Defendant that the First Amended

Complaint’s references to Basic and Powertrain warranties are confusing and unclear.

(See Doc. 36.) Plaintiffs may allege that the defect is covered by the Basic warranty, or

the Powertrain warranty, or both, but they must do so explicitly and in separate counts

so that Defendant can adequately prepare an answer. As pled, the Court could not ask

Defendant to intelligently respond to a paragraph which states that Defendant breached

one warranty but quotes another. (See Doc. 8, ¶ 54.) Therefore, the First Amended

Complaint is due to be dismissed with leave to amend to remedy this ambiguity.2

1 The Court finds Defendant’s argument that Plaintiffs fail to adequately allege
breach to be similarly unavailing. (Doc. 28, pp. 10–11.) Plaintiffs have sufficiently
alleged that the MDS is covered by the warranty, they have complained about the MDS,
and the MDS has not been fixed. (Doc. 8, ¶¶ 28–36.) This is enough to state a breach.

2 The Court notes, however, that it considers the pleading to be deficient in form,
not substance. As discussed above, Defendant’s argument that Plaintiffs must


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The MMWA provides:

No action (other than a class action . . .) may be brought under subsection
(d) of this section for failure to comply with any obligation under any
written or implied warranty or service contract, and a class of consumers
may not proceed in a class action under such subsection with respect to
such a failure except to the extent the court determines necessary to
establish the representative capacity of the named plaintiffs, unless the
person obligated under the warranty or service contract is afforded a
reasonable opportunity to cure such failure to comply. In the case of such
a class action . . . , such reasonable opportunity will be afforded by the
named plaintiffs and they shall at that time notify the defendant that they
are acting on behalf of the class.

15 U.S.C. § 2310(e). The plain language of this provision makes clear that an individual

plaintiff must notify the defendant before filing suit so as to provide a reasonable

opportunity to cure. However, representative plaintiffs may file a class action suit—

without first notifying the defendant that they are proceeding as a class—so that the

Court can determine

the named plaintiffs’ representative capacity; once


determination is made, the suit cannot then go forward until the defendant has a

reasonable opportunity to cure. See, e.g., Walsh v. Ford Motor Co., 807 F.2d 1000,

1004 (D.C. Cir. 1986) (“The Act also provides that a plaintiff may file a class action, but

may not proceed with that action, until she has afforded the defendant a reasonable

opportunity to cure its alleged breach. While the class action is held in abeyance

pending possible cure, the district court may rule on the representative capacity of the

named plaintiffs . . . .”); In re Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801, 824–25

(S.D. Ohio 2012) (conducting an in-depth analysis of the statutory language and

specifically identify a defect in a part covered by the Powertrain warranty is not well-
taken. Plaintiffs may simply plead that there is a defect and that it is covered by the
warranty—the second amended complaint need only make clear which warranty is at
issue in each count.


Case 6:13-cv-00555-RBD-GJK Document 38 Filed 07/26/13 Page 6 of 7 PageID 299

concluding that the MMWA does not require pre-suit notice of the class, only that a

previously filed class action cannot proceed until the defendant is given an opportunity

to cure).3 As such, Plaintiffs were not required to notify Defendant that they were

proceeding on behalf of a class prior to filing this suit, and that part of Defendant’s

motion is due to be denied.


Cost of Class Notification

As to the question of who will bear the cost of notifying the potential class, that

determination is premature. While the usual rule is for class action plaintiffs to pay that

cost, there are certain exceptions dependent on what happens later in the litigation—as

Defendant acknowledges. (Doc. 28, p. 13 n.7.) This issue may therefore be raised again

at an appropriate stage. That portion of Defendant’s motion is due to be denied without



Accordingly, it is hereby ORDERED AND ADJUDGED:


Defendant Chrysler Group LLC’s Motion to Dismiss Plaintiffs’ First

Amended Complaint, Alternative Motion to Strike, and Incorporated

Memorandum of Law (Doc. 28) is GRANTED IN PART AND DENIED IN



First Amended Complaint

(Doc. 8)


3 Porsche Cars, 880 F. Supp. 2d at 825, distinguishes as outliers the three cases
that Defendant cites in support of its position that pre-suit notice of the class is required:
Rehberger v. Honeywell Int’l, Inc., No. 3:11-0085, 2011 WL 780681, at *11 (M.D. Tenn.
Feb. 28, 2011); Bearden v. Honeywell Int’l Inc., 720 F. Supp. 2d 932, 936 (M.D. Tenn.
2010); and Stearns v. Select Comfort Retail Corp., No. 08-2746 JF (PVT), 2009 WL
4723366, at *10 (N.D. Cal. 2009). (Doc. 28, pp. 1–12.) This Court agrees with the
Porsche Cars court that those cases are inapposite, in that they conflict with the plain
language of the statute.


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Plaintiffs have leave to file a second amended complaint that complies

with the directives in this Order on or before Wednesday, August 14,


DONE AND ORDERED in Chambers in Orlando, Florida, on July 25, 2013.


Counsel of Record