Morano v. BMW of North America, LLC, 928 F. Supp. 2d 826

Morano, a Florida resident, sues BMW of North America, LLC (BMWNA) for FDUTPA, breach of contract, breach of warranty, and punitive damages related to a defective battery in a new BMW 650i that dealer allegedly refused to replace.
BMWNA does not sell cars directly to consumers; it distributes through dealers, raising privity and notice issues for warranty/contract claims.
Plaintiff alleges BMWNA promoted a no-cost maintenance and warranty program (Ultimate Service Maintenance Program and New Passenger Vehicle Limited Warranty) that should cover battery failures under normal use.
Maintenance Program and Warranty include exclusions for damage from neglect, improper operation, and failure to maintain the vehicle; battery care warnings exist.
Morano’s car allegedly failed after frequent short trips; dealer notes indicate battery issues and replacement actions; Morano incurred replacement costs.
Court has diversity jurisdiction under CAFA; standards for pleading and class certification are at issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the FDUTPA claim subject to Rule 9(b) heightened pleading?	Morano's FDUTPA claim is fraud-based and pled with specificity.	FDUTPA claims must meet Rule 9(b) where premised on fraud; otherwise, Rule 8 applies.	Rule 9(b) applied; Count I survives.
Does privity bar BMWNA’s express warranty claim?	Privity not required due to manufacturer’s warranty and dealer distribution chain.	No privity between Morano and BMWNA bars warranty claim.	Privity not required; Count IV survives.
Are Counts II–III (breach of contract and implied covenant) viable given privity concerns?	Dealer/manufacturer relationship and control over warranties create implied agency; discovery may reveal agency/privity relevance.	Lack of privity defeats contract claim.	Counts II–III survive; privity arguments rejected at this stage.
Should punitive damages be dismissed for lack of factual support?	Allegations show intentional misconduct and knowledge of wrongfulness.	Factual showing insufficient at pleading stage.	Count V survives; punitive damages remain at issue.
May the class allegations proceed or be dismissed at this stage?	Class is numerous with common questions; discovery will clarify predominance.	Individual causation may predominate; class definition unsustainable.	Class allegations not dismissed; certification to be addressed after discovery.

State of Fla. Office of Atty. Gen. v. Tenet Healthcare Corp., 420 F. Supp. 2d 1288 (S.D. Fla. 2005) (FDUTPA requires deceptive act or unfair practice plus causation and damages)
Hackett & Associates v. GE Capital Information Technical Solutions, 744 F. Supp. 2d 1305 (S.D. Fla. 2010) (FDUTPA not necessarily fraud-based; Rule 9(b) not always required)
In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256 (3d Cir. 2006) (fraud pleadings require sufficient background under Rule 9(b))
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997) (standard for 9(b) background information in fraud cases)
Norfolk Southern Ry. Co. v. Basell USA Inc., 512 F.3d 86 (3d Cir. 2008) (predicting state-law outcomes when highest state court guidance is absent)
Manheim v. Ford Motor Co., 201 So.2d 440 (Fla. 1967) (recognizes manufacturer liability without privity in implied warranty)
Mesa v. BMW of N. Am., LLC, 904 So.2d 450 (Fla. Dist. Ct. App. 2005) (recognizes relaxation of privity in certain warranty contexts)
Rentas v. DaimlerChrysler Corp., 936 So.2d 747 (Fla. Dist. Ct. App. 2006) (MMWA influence on express warranty claims and privity considerations)
David v. Am. Suzuki Motor Corp., 629 F. Supp. 2d 1309 (S.D. Fla. 2009) (express warranty claims and privity considerations in Florida)
Aldon Industries, Inc. v. Don Myers & Assocs., Inc., 517 F.2d 188 (5th Cir. 1975) (Restatement-based conflicts of law and applicable state law)