THIS MATTER is before the Court on four pending motions to dismiss: (1) Defendant Mercedes-Benz USA, LLC's ("MBUSA['s]" and, collectively with Defendant Daimler AG,
I. BACKGROUND
This case is about defective airbag control units ("ACUs") that are featured in an unascertained number of vehicles across the United States. As of September 8, 2016, 630,004 vehicles in the United States were subject to a "warning or recall" related to the defective ACUs. (DE 50 ¶ 1; see also DE 121 at 1). According to the National Highway Traffic Safety Administration ("NHTSA"), which initiated a preliminary investigation into the defective ACUs in August 2015, up to five million vehicles in the United States may eventually be subject to such warning or recall. (DE 50 ¶¶ 12, 19).
A properly functioning ACU "controls the airbag and other safety systems, including seatbelt pre-tensioners" within a vehicle, and causes these systems "to deploy rapidly during an automobile collision." (DE 50 ¶ 3). But a faulty electrical connection within the power supply component ("ASIC")
Plaintiffs purport to be the class representatives for a nationwide class (DE 50 ¶ 96), a Florida sub-class (DE 50 ¶ 97), a New Jersey sub-class (DE 50 ¶ 98), a Michigan sub-class (DE 50 ¶ 99), and a Louisiana sub-class (DE 50 ¶¶ 100). Their Complaint alleges that Defendants knew about the defective ACUs well before they disclosed this knowledge to NHTSA in late 2015 and early 2016. (DE 50 ¶¶ 6-18). Specifically, it alleges that Continental manufactured the defective ACUs from at least 2006 through the end of 2010, and that Continental, Atmel, and MBUSA became aware of the defective ACUs in January 2008 after "Continental ... received an air bag control unit that Mercedes Benz ... removed from a vehicle whose owner complained of an illuminated airbag warning light." (DE 50 ¶ 6). After Continental examined this unit and determined the ASIC to be the source of the defect, it sent the ACU to Atmel, which determined that "corrosion in the ASIC's semiconductor material could cause interruptions in electrical connections in the ASIC, leading to failure of the ASIC component." (DE 50 ¶ 6). Continental and Atmel then "allegedly implemented countermeasures to prevent the defect from continuing" but "these countermeasures failed, if they were implemented at all." (DE 50 ¶ 7).
The Complaint also alleges several other events in the years between 2008 and 2015 which suggest that Defendants had knowledge of the defective ACUs before disclosing the defects to NHTSA (DE 50 ¶¶ 13-14):
• In early 2011, Continental, Atmel, Mercedes Benz, and non-party FCA US LLC "became aware of two unexpected deployments of airbags and other safety systems" in vehicles featuring the defective ACU. (DE 50 ¶ 9).
• In March 2013, Mercedes Benz, "based on its actual knowledge" of the defective ACUs, "initiated a campaign outside the U.S. to address" the defective ACUs but "failed to take similar action" in the United States. (DE 50 ¶ 10) (emphasis in original).
• In early 2014, Continental "was named as a defendant in a suit relating to the recall of millions of General Motors-manufactured vehicles as a result of a defect that potentially caused Continental-manufactured *1211airbags in those vehicles not to deploy." (DE 50 ¶ 15).
• In late 2014, "Audi recalled approximately 850,000 vehicles as a result of a different defect in Continental-manufactured airbags that also potentially caused the Continental-manufactured airbags not to deploy." (DE 50 ¶ 15).
• In early 2015, Continental, Atmel, and Honda "became aware of additional cars" with defective ACUs that "caused airbags and other safety systems not to deploy during crashes," including one Honda vehicle "involved in an accident in 2013" that was the subject of a lawsuit against Honda and another Honda vehicle "involved in an accident in 2015" that was "the subject of a complaint" to NHTSA. (DE 50 ¶ 11).
• Finally, in August 2015, NHTSA began its investigation into the "scope, frequency, and consequence" of the defective ACUs in Honda-manufactured vehicles. (DE 50 ¶ 12).
Accordingly, Plaintiffs contend that even though Continental, Atmel, and Mercedes Benz knew about the defective ACUs "by 2008, at the latest" (DE 50 ¶¶ 17, 87) and that Honda knew about the defective ACUs "by early 2015, at the latest" (DE 50 ¶¶ 18, 87), Defendants "concealed their knowledge of the nature and extent of the defects from the public" (DE 50 ¶ 25).
On these facts, the Complaint advances-on behalf of various classes and sub-classes-four causes of action against MBUSA, five causes of action against Honda, ten causes of action against Continental, and thirteen causes of action against Atmel:
• Count 1 on behalf of a nationwide class against all Defendants for violations of the Magnuson-Moss Warranty Act ("MMWA");
• Count 2 on behalf of a nationwide class against all Defendants for fraudulent concealment;
• Count 3 on behalf of a nationwide class against the Airbag Manufacturer Defendants for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO");
• Count 4 on behalf of a Florida sub-class against all Defendants for violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA");
• Count 5 on behalf of a Florida sub-class against all Defendants for fraudulent concealment;
• Count 6 on behalf of a New Jersey sub-class against Continental, Atmel, and Honda for violation of the New Jersey Consumer Fraud Act ("NJCFA");
• Count 7 on behalf of a Michigan sub-class against Continental and Atmel for violation of the Michigan Consumer Protection Act ("MCPA");
• Count 8 on behalf of a Michigan sub-class against Continental and Atmel for silent fraud;
• Count 9 on behalf of a Michigan sub-class against Continental and Atmel for fraud;
• Count 10 on behalf of a nationwide class against Atmel for violations of the California Unfair Competition Law ("CUCL");
• Count 11 on behalf of a nationwide class against Atmel for violations of the California False Advertising Law ("CFAL");
• Count 12 on behalf of a nationwide class against Atmel for violations of the California Consumers Legal Remedies Act ("CLRA"); and
• Count 13 on behalf of a Louisiana sub-class against Continental and Atmel for fraudulent concealment.
*1212Based on these causes of action, Plaintiffs request myriad relief, including: (1) certification of all proposed classes and subclasses; (2) a declaration that the defective ACUs were in fact defective; (3) a declaration that Defendants are financially responsible for notifying all class members about the defective nature of the vehicles containing the defective ACUs; (4) an injunction preventing Defendants from "further deceptive distribution, sales, and lease practices" with regards to vehicles containing the defective ACUs and requiring Defendants to "permanently, expeditiously, and completely repair" vehicles containing the defective ACUs and eliminate the defective ACUs; (5) compensatory, exemplary, and statutory damages; (6) damages for the return of the purchase prices of all vehicles containing the defective ACUs and the reasonable expenses occasioned by sale; (7) establishment of a Defendant-funded program under which out-of-pocket expenses and damages claims associated with the defective ACUs can be made and paid; (8) a declaration that Defendants disgorge "all or part of the ill-gotten profits received from the sale or lease of vehicles containing the defective ACUs; (9) attorneys' fees and costs; (10) pre-judgment and post-judgment interest; and (11) permission to amend the Complaint "to conform to the evidence produced during discovery and at trial." (DE 50 at 68-70).
II. LEGAL STANDARD
" Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction can be asserted on either facial or factual grounds." Carmichael v. Kellogg, Brown & Root Serv., Inc.,
On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the Court accepts as true all allegations in the complaint to determine whether the plaintiff has met his burden of establishing a prima facie case of personal jurisdiction. See Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino,
*1213Second, the Court determines whether the exercise of peronal jurisdiction comports with the due process requirements of the Fourteenth Amendment.
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is "plausible on its face." Ashcroft v. Iqbal,
In addition to the requirements of Twombly, Iqbal, and Federal Rule of Civil Procedure 12(b), causes of action sounding in fraud-such as "[c]ivil RICO claims, which are essentially a certain breed of fraud claims"-are subject to the heightened pleading standards of Federal Rule of Civil Procedure 9(b). Ambrosia Coal & Constr. Co. v. Pages Morales,
III. DISCUSSION
Four of the five named Defendants filed motions to dismiss: Honda, MBUSA, Atmel, and Continental. For the reasons below, the Court grants each motion. The Court considers Honda's motion and MBUSA's motion separately and then discusses Continental's and Atmel's motions-which raise similar legal issues-together.
A. Honda's Motion to Dismiss
The Complaint alleges five causes of action against Honda: Count 1 for violations of the MMWA, Counts 2 and 5 for fraudulent concealment on behalf of a nationwide class and Florida sub-class, respectively, Count 4 for violations of the FDUTPA, *1214and Count 6 for violations of the NJCFA. Honda argues that the allegations in the Complaint do not establish that it is subject to personal jurisdiction in this Court. The Court agrees and dismisses all claims against Honda without prejudice, pursuant to Rule 12(b)(2).
In determining the existence of personal jurisdiction, the Court assesses whether the defendant's alleged activities satisfy Florida's long-arm statute and whether the exercise of jurisdiction comports with the due process requirements of the Fourteenth Amendment. See Mosseri,
Pursuant to the long-arm statute, Florida courts can exercise personal jurisdiction over an out-of-state defendant in two ways. First, Florida courts can exercise general personal jurisdiction over any claims against a defendant-whether or not they involve the defendant's activities in Florida-if the defendant engages in "substantial and not isolated activity" in Florida. Carmouche v. Tamborlee Mgmt., Inc.,
Plaintiffs' Complaint fails to allege facts that establish a prima facie case of either general or specific personal jurisdiction over Honda pursuant to Florida's long-arm statute. The case law that Honda cites makes clear that Plaintiffs must allege much more than they have in the Complaint to establish general personal jurisdiction. In Daimler, the Supreme Court held that Daimler AG, the German parent company of MBUSA, was not subject to personal jurisdiction in California-rejecting the argument that the district court could exercise "jurisdiction over Daimler ... on the California contacts of MBUSA, a distinct corporate entity ... [and] indirect subsidiary." Daimler,
The Complaint here sets forth fewer connections between Honda and Florida than those alleged between the Panamanian defendant and Florida in Carmouche. Indeed, the only jurisdictionally relevant allegations about Honda are that it is a California corporation with its principal place of business in California. (DE 50 ¶ 84). The Complaint also states, without substantiating facts, that all "Defendants ... conduct substantial business in this District." (DE 50 ¶ 27). Plaintiffs do not support these statements with facts sufficient to allow the Court's exercise of general personal jurisdiction over Honda.
Plaintiffs' Complaint is similarly deficient as to specific personal jurisdiction. Plaintiffs contend that Honda has engaged in conduct that subjects it to specific personal jurisdiction pursuant to three provisions of Florida's long-arm statute:
1. Operating, conducting, engaging in, or carrying on a business or business venture in [Florida] or having an office or agency in this state.
2. Committing a tortious act within [Florida]
6. Causing injury to persons or property within [Florida] arising out of an *1216act or omission by the defendant outside [Florida], if, at or about at the time of the injury, either ... [t]he defendant was engaged in solicitation or service activities within this state; or ... [p]roducts, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.
Plaintiffs do not sufficiently allege, as Section 49.193(1)(a)(1) requires, that Honda operated, conducted, engaged in, or carried on business within Florida or had an office or agency within Florida
In light of the dearth of factual allegations in support of specific personal jurisdiction over Honda, Plaintiffs rely on a "stream of commerce" theory. They point out that Honda "has delivered a defective product into Florida for placement in the stream of commerce" (DE 98 at 7) such that specific personal jurisdiction over the Florida Plaintiffs' claims inheres pursuant to Section 48.193(1)(a)(2). They also assert that "some of Plaintiffs' claims arise out of Defendants'... committing a tortious act in this state[.]" (DE 98 at 6). But these generalized statements-devoid of specificity as to Honda and in tension with specific allegations elsewhere in the Complaint-do not support an inference that Honda committed a tortious act in Florida as contemplated by Section 48.193(1)(a)(2). Indeed, the Complaint states only that Honda "conducts the sale, marketing, and operational activities for Honda cars, trucks, and sport utility vehicles automobile parts in the United States" (DE 50 ¶ 84); "manufactures and assembles its vehicles for sale in the United States in automobile plants located in Greensburg, Indiana; East Liberty, Ohio; Lincoln, Alabama; and Marysville, Ohio" (DE 50 ¶ 84); and that four Florida Plaintiffs purchased or leased Honda vehicles in Florida (DE 50 ¶¶ 35, 38, 62, 65). Notably, and contrary to Plaintiffs' suggestion in their briefing,
Plaintiffs' reliance on Bolton v. Bunny's Pride & Joy, I, Inc.,
B. MBUSA's Motion to Dismiss
The Complaint alleges four causes of action against MBUSA: Count 1 for violations of the MMWA, Counts 2 and 5 for fraudulent concealment on behalf of a nationwide class and Florida sub-class, respectively, and Count 4 for violations of FDUTPA. MBUSA first argues that Plaintiffs lack Article III standing to pursue these claims and that their NHTSA-supervised recall of the defective ACUs renders Plaintiffs' claims prudentially moot. Next, MBUSA contends that Florida's economic loss rule bars the fraud claims against them. Finally, MBUSA asserts that Plaintiffs fail to state fraud claims for a variety of other reasons, including failure to allege supporting facts with the specificity required by Rule 9(b). The Court finds that although Plaintiffs have standing to pursue most of their claims against MBUSA, each of the Complaint's counts against MBUSA fail to sufficiently state a claim.
i. Standing and Prudential Mootness
MBUSA's motion first seeks dismissal pursuant to Rule 12(b)(1), contending that the three Plaintiffs who purchased or leased Mercedes Benz vehicles-Leon, Paz, and Morrow-lack standing for four reasons. First, it contends that Mercedes Benz's voluntarily initiated program to recall certain vehicles and replace certain parts free of charge moots Leon and Paz's claims. Second, it argues that Morrow lacks standing because she does not own a vehicle that was subject to this recall and repair program. Third, it asserts that Leon, Paz, and Morrow-all of whom purchased Mercedes Benz C-Class vehicles-cannot bring claims on behalf of owners of Mercedes Benz vehicle models different from those that they did purchase. Fourth, it argues that Leon, Paz, and Morrow-all *1218Florida plaintiffs who purchased their vehicles in Florida-cannot bring claims on behalf of a nationwide class. Of these four claims, the Court finds that only the third argument is meritorious, and, therefore, that Leon, Paz, and Morrow have standing to bring all claims except those they purport to bring on behalf of purchasers of Mercedes Benz GLK-class vehicles.
It is axiomatic that "Article III of the Constitution of the United States limits the subject matter jurisdiction of federal courts to 'Cases' and 'Controversies.' " In re Checking Account Overdraft Litig.,
First, MBUSA raises a standing argument related to its voluntary recall and repair program. MBUSA relies on the declaration of its Product Analysis Engineer Timothy Lowery (DE 80) to assert that Leon's vehicle, through this program, has already received repairs at no cost to her, and that Paz was notified of his eligibility for a recall-related repair but has not sought a repair to date. MBUSA contends that their program thus deprives Leon and Paz of Article III standing to bring Counts 1, 2, 4, and 5 or, in the alternative, warrants dismissal of these claims as prudentially moot.
In support, MBUSA cites Hadley v. Chrysler Group LLC,
The Sixth Circuit affirmed the district court's holding that the Hadley plaintiffs lacked standing because New Chrysler-an entity incorporated in relation to the bankruptcy of another entity, Chrysler, LLC ("Old Chrysler")-did not manufacture the plaintiffs' vehicle. Because Old Chrysler had manufactured the plaintiffs' vehicle, the plaintiffs could not bring diminished value claims against New Chrysler.
Here, the Complaint alleges that Leon and Paz purchased vehicles manufactured by Mercedes Benz and that those vehicles contained the defect from the moment they were obtained. (DE 50 ¶¶ 29-34, 80-82). Accordingly, Leon and Paz seek to recoup the "lost benefit of the bargain [and] the diminished value of their [d]efective [v]ehicles" (DE 97 at 7) from Mercedes Benz-the same company that manufactured their vehicles. Moreover, the scope of the relief requested here-which includes "awarding Plaintiffs ... damages for the return of the purchase prices of the Defective Vehicles"; "establishing a Defendant-funded program ... under which out-of-pocket expenses and damages claims associated with the [defective ACUs] ... can be made and paid"; and "disgorg[ing] ... all or part of the ill-gotten profits received from the sale or lease of vehicles containing the defective ACUs-exceeds both the scope of the relief requested in Hadley and the scope of the already-performed recall and repairs here. (DE 50 at 68-70). Accordingly, the analysis in Hadley does not support dismissal of Leon's or Paz's claims.
MBUSA also relies on Winzler v. Toyota Motor Sales USA, Inc.,
Second, MBUSA attacks Plaintiff Morrow's standing to bring any claims against MBUSA because her vehicle was not subject to MBUSA's voluntary 2015 recall and reimbursement program. This argument also relies on Lowery's declaration, which states that Morrow's vehicle was "produced on April 24, 2009" and contains a "control unit module that was manufactured according to a different process than those at issue" in the vehicles that Mercedes Benz recalled in 2015. (DE 80 ¶ 9). Although Lowery's declaration brings into question the Complaint's allegation that Morrow's vehicle "is subject to the recall" (DE 50 ¶ 69), it has no impact on the Court's standing inquiry. The Complaint expressly states that some vehicles which contain the defective ACU have not yet been subject to recall; indeed, the Complaint states the "manufacturing defect in the [d]efective [ACUs] dates back to at least 2006 and continued through the end of 2010 " (DE 50 ¶ 6) (emphasis added) and that any "countermeasure[s]" taken to resolve the defect from March 2008 onward "failed, if they were implemented *1221at all" (DE 50 ¶ 8). Consequently, at this stage in the litigation, the Court cannot reasonably infer from Lowery's declaration that Morrow's vehicle does not contain the defective ACU and that Morrow lacks standing to bring claims against MBUSA.
Third, MBUSA raises the meritorious argument that Leon, Paz, and Morrow-all of whom purchased Mercedes Benz C Class model vehicles in Florida-have no standing to bring Counts 1, 2, 4, and 5 on behalf of owners of Mercedes Benz GLK Class model vehicles. In support, MBUSA cites several cases from this District which hold that a class representative in a consumer class action may not bring claims on behalf of purchasers of a product that the representative did not herself purchase. See, e.g., Bohlke v. Shearer's Foods, LLC, No. 9:14-CV-80727,
Plaintiffs respond by citing to their allegation that the same defective ACU was installed in 2008-2009 Mercedes Benz C Class and 2010 Mercedes Benz GLK Class vehicles, meaning that Leon, Paz, and Morrow's C-Class vehicles contained the same defect as GLK Class vehicles. (DE 50 ¶¶ 1, 4). Next, they correctly point out that some courts in other districts have allowed class claims on behalf of purchasers of products that the named plaintiff did not purchase, so long as those products are sufficiently similar to a product that the named plaintiff did purchase. See, e.g., Glenn v. Hyundai Motor Am., No. SACV152052DOCKESX,
Fourth, MBUSA argues that the Florida Plaintiffs Leon, Paz, and Morrow cannot bring Counts 1 and 2 on behalf of a nationwide class. Plaintiffs respond that "the requirements for the [implied warranty] and fraudulent concealment claims asserted against MBUSA are substantively uniform across all states" (DE 97 at 12) such that the Court should permit these claims to *1222survive MBUSA's motion to dismiss. Without making any determination regarding the uniformity of state laws related to Plaintiffs fraudulent concealment or implied warranty claims, the Court agrees that, at this stage of the litigation, choice-of-law arguments are insufficient to warrant dismissal on standing grounds. See Ortiz v. Fibreboard Corp.,
In sum, Plaintiffs have Article III standing to bring their claims against MBUSA, with the exception of those claims advanced on behalf of owners of vehicle models they do not own. Thus, the Court dismisses Plaintiffs' claims against MBUSA, as they pertain to Mercedes Benz GLK Class vehicles, for lack of standing.
ii. Failure to state a claim
Proceeding to the Rule 12(b)(6) arguments in MBUSA's motion to dismiss, the Court finds that Plaintiffs' allegations are insufficient to support their implied warranty, fraudulent concealment, and FDUTPA claims. Specifically, the implied warranty claim fails for lack of contractual privity between Plaintiffs and MBUSA; the fraudulent concealment claims are barred by Florida's economic loss rule; and the FDUTPA claim is not pled with sufficient particularity. Consequently, the Court dismisses pursuant to Rule 12(b)(6) what remains of Plaintiffs' claims against MBUSA.
1. Count 1: Implied Warranty
MBUSA first attacks the claim that it failed to comply with the terms of an "implied warranty of merchantability" (DE 50 ¶ 124) in violation of the MMWA,
Here, Plaintiffs state that they "have had sufficient direct dealings with Defendants or their agents (dealerships) to establish privity of contract." (DE 50 ¶ 29). This legal conclusion, however, is unsupported by sufficient factual allegations. Indeed, Plaintiffs Leon, Paz, and Morrow allege only that they purchased their Mercedes Benz vehicles in Florida without naming the person or entity from whom they obtained the vehicles. (DE 50 ¶¶ 29, 32, 68). Therefore, Plaintiffs cannot establish privity of contract with MBUSA on the facts alleged, warranting dismissal of their implied warranty claim. See Davila v. Delta Air Lines, Inc.,
The decision in Takata is particularly instructive. In that multidistrict litigation, plaintiff Mickey Vukadinovic brought an MMWA claim against Mazda Motor of America, Inc. alleging a Florida breach of implied warranty in relation to an airbag defect contained in his vehicle. In dismissing Vukadinovic's claim, the court explained:
Mazda argues ... that Vukadinovic lacked privity with Mazda, and thus, cannot maintain a claim for breach of implied warranty. The Court agrees. Mazda is an automotive distributor, not a dealer. Vukadinovic could not have purchased his vehicle from Mazda. Thus, Vukadinovic lacks privity with Mazda and the implied warranty claim must fail.
Takata,
Plaintiffs respond in two ways. First, they argue that Florida law does not require privity of contract to establish an implied warranty, citing Manheim v. Ford Motor Co.,
Second, Plaintiffs argue that MBUSA may not raise the privity defense where Plaintiffs are the "intended third-party beneficiaries of MBUSA's warranty." (DE 97 at 14). This argument relies primarily on Sanchez-Knutson, in which another court of this District held that although Kramer overruled Manheim, a "[p]laintiff can pursue a claim of breach of implied warranty through third-party beneficiary status." Sanchez-Knutson, 52 F.Supp.3d at 1333-34. However, the complaint in Sanchez-Knutson featured specific allegations regarding how the plaintiff obtained her allegedly defective vehicle, including that she purchased it from an authorized dealership over which the defendant automobile manufacturer appeared to exercise control. Sanchez-Knutson v. Ford Motor. Co., No. 14-cv-61344, DE 1 ¶¶ 12, 34-35 (S.D. Fla. June 9, 2014). Here, Plaintiffs offer no facts about the persons or entities from whom they obtained their Mercedes Benz vehicles, let alone that MBUSA exercised any degree of control over them. A claim for a breach of implied warranty under a third-party beneficiary theory, if it exists, does not arise from the conclusory assertion that Plaintiffs were "the intended third-party beneficiaries of contracts between Defendants and its dealers." (DE 50 ¶ 129). Therefore, Plaintiffs' MMWA claim against MBUSA is dismissed.
2. Counts 2 and 5: Fraudulent Concealment
MBUSA next contends that Counts 2 and 5, which the Florida Plaintiffs Leon, Paz, and Morrow bring on behalf of a nationwide class and a Florida sub-class, respectively, fail pursuant to Florida's economic loss rule.
Plaintiffs respond by characterizing their fraudulent concealment claims as fraudulent inducement claims based on their allegations that Defendants including MBUSA "concealed and/or suppressed material facts concerning the safety" of Plaintiffs' vehicles (DE 50 ¶ 140) and that this "concealment was material" to Plaintiffs' purchasing decisions (DE 50 ¶ 195). Relying on this characterization, Plaintiffs argue that the Florida Supreme Court's decision in Tiara acknowledged an exception to Florida's economic loss rule for claims of "fraudulent inducement, and negligent misrepresentation." See Tiara,
The question before the Court, then, is whether Florida's Supreme Court, by its dicta, intended to abridge the economic loss rule in the products liability setting to allow fraudulent inducement and negligent misrepresentation claims (and by implication fraudulent concealment claims), even where the action for fraud depends upon precisely the same allegations as a warranty claim-i.e., a claim the product failed to work as promised. The Court agrees with other courts in this Circuit that have concluded that Florida's Supreme Court did not intend to allow such products liability claims to survive.
Takata,
3. Count 4: FDUTPA
Finally, MBUSA attacks the viability of Plaintiffs' FDUTPA claim, Count 4, by arguing that the Complaint does not set forth allegations with the specificity required by Rule 9(b). Plaintiffs respond by arguing that Rule 9(b) does not apply to FDUTPA claims.
It is true that several courts in this District have found that "the requirements of Rule 9(b) do not apply to claims under the FDUTPA." Toback,
The Court is not persuaded, however, that all FDUTPA claims-even those clearly sounding in fraud like the claims here-are exempt from Rule 9(b) scrutiny. Rule 9(b) serves the important purposes of placing defendants accused of fraud on notice about the "precise misconduct with which they are charged" and "protecting defendants against spurious charges of immoral and fraudulent behavior." Ziemba v. Cascade Int'l, Inc.,
However, even assuming that Rule 9(b) standards are not applicable, Plaintiffs' allegations are insufficient to state a claim. This is because Plaintiffs make no particularized allegations about what MBUSA did to violate FDUTPA; instead, they rely on general allegations against all "Defendants" or against "Mercedes Benz"-which includes both MBUSA and Daimler AG.
iii. Conclusion
The three Florida Plaintiffs who own Mercedes Benz vehicles-with the exception of those claims advanced on behalf of owners of vehicle models they do not own-have Article III standing to bring their claims against MBUSA. Moreover, these claims are not prudentially moot. However, Florida's economic loss rule bars Plaintiffs' fraudulent concealment claims against MBUSA and the Complaint's failure to plead with the requisite specificity bars Plaintiffs' FDUTPA claim against MBUSA. Additionally, the three Florida Plaintiffs cannot bring implied warranty claims against MBUSA because the Complaint does not sufficiently allege privity between the Plaintiffs and MBUSA. For the foregoing reasons, the Court dismisses Counts 1, 2, 4, and 5 as alleged against MBUSA.
C. Atmel's and Continental's Motions to Dismiss
The Complaint sets forth thirteen causes of action against Atmel and all except the three California law claims-Counts 10, 11, and 12-against Continental. As the Court explains below, none of these claims survive the Airbag Manufacturer Defendants' motions to dismiss.
"[J]urisdictional questions generally should be decided before reaching the merits." See Courboin,
i. Personal Jurisdiction
1. Traditional two-part analysis
To exercise personal jurisdiction pursuant to the traditional two-part analysis, the Court must determine that the defendant's activities satisfy both Florida's long-arm statute and that the exercise of jurisdiction comports with the due process requirements of the Fourteenth Amendment. See Mosseri,
Plaintiffs argue that the Airbag Manufacturer Defendants have engaged in activities that subject them to specific personal jurisdiction pursuant to three provisions of Florida's long-arm statute:
1. Operating, conducting, engaging in, or carrying on a business or business venture in [Florida] or having an office or agency in this state.
2. Committing a tortious act within [Florida]
6. Causing injury to persons or property within [Florida] arising out of an act or omission by the defendant outside [Florida], if, at or about at the time of the injury, either ... [t]he defendant was engaged in solicitation or service activities within this state; or ... [p]roducts, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within *1228this state in the ordinary course of commerce, trade, or use.
As discussed above in relation to Honda's motion, the Complaint does not provide enough detail to support personal jurisdiction under either Section 48.193(1)(a)(1) or 48.193(1)(a)(6). There are no allegations in the Complaint that Atmel or Continental operated, conducted, engaged in, or carried on business in Florida or had an office or agency in Florida as Section 48.193(1)(a)(1) requires. Likewise, the Complaint does not claim that Plaintiffs suffered any personal injury or physical property damage as Section 48.193(1)(a)(6) requires. See Courboin,
Plaintiffs again must rely on a "stream of commerce" theory to support personal jurisdiction. They point out that Atmel "distribute[d] ... [ASICs] for airbags ... in the United States" (DE 50 ¶ 78), that Continental "distribute[d] ... [ACUs], in the United States" (DE 50 ¶ 77), and that Continental ACUs featuring Atmel ASICs made their way into the vehicles of eight Florida Plaintiffs who purchased or leased vehicles in Florida. They also point out that Atmel advertised the ASICs on the internet through an October 16, 2006 press release (DE 50 ¶ 176) and that Continental advertised its ACUs on the internet through press releases dated September 10, 2007 and September 2, 2009. (DE 50 ¶ 177). Plaintiffs claim these allegations establish that the Airbag Manufacturer Defendants committed tortious acts within Florida such that the Court may exercise specific
In support of their "stream of commerce" theory of personal jurisdiction, Plaintiffs again rely primarily on Bolton. But, as discussed in connection with Honda's motion, the out-of-state defendant in Bolton was an "installer of conversion packages in vans" and "pursuant to a contractual relationship" with a co-defendant Florida corporation "deliver[ed] conversion vans to [the Florida co-defendant] in Florida for placement into the stream of commerce in Florida."
Plaintiffs also rely on Vermeulen v. Renault, U.S.A., Inc.,
[t]hese contacts are sufficiently related to [the plaintiff's] cause of action to confer specific jurisdiction upon the United States.... RNUR intended its [its automobiles] to be brought to the United States and took numerous affirmative steps to bring that result about, and jurisdiction in this country would not violate RNUR's due process rights.
This holding-that a French corporation facing FSIA claims had sufficiently entered the United States' "stream of commerce" for due process purposes-is inapplicable to the Court's Section 48.193(1)(a)(2) analysis, where the relevant forum is Florida and not the United States. See Kozial,
Additionally, even assuming Vermeulen' s holding could be applicable, its facts are readily distinguishable. There, RNUR's advertising, customer service, and contractually-supported distribution network all showed that it had the intent and took the initiative to involve itself in the relevant forum, the United States. In contrast, the Plaintiffs allege superficial ties between the Airbag Manufacturer Defendants and the relevant forum, Florida. The Complaint alleges only that the Airbag Manufacturer Defendants distributed their products generally across the country and advertised their products over the internet.
2. RICO and Fifth Amendment Due Process
Although the Court is unable to exercise personal jurisdiction against the Airbag Manufacturer Defendants pursuant to the traditional personal jurisdiction analysis, it may still exercise personal jurisdiction over Plaintiffs' RICO based on RICO's nationwide service of process provision and the Fifth Amendment's Due Process Clause. See Republic of Panama v. BCCI Holdings (Luxembourg) S.A.,
A discussion of "[t]he constitutional question is considerably more involved. It is well established that when, as here, a federal statute provides the basis for jurisdiction, the constitutional limits of due process derive from the Fifth, rather than the Fourteenth, Amendment." Id. (citing Chase & Sanborn,
Under this Fifth Amendment framework, the Panama Court found that the district court should have exercised personal jurisdiction over two out-of-state corporate defendants who "may not have had significant contacts with Florida" but who "presented no evidence that their ability to defend this lawsuit will be compromised significantly if they are required to litigate in Miami." Id. at 948. Accordingly, the Court declined to "balance the federal interests at stake" and reversed the district court's Rule 12(b)(2) dismissal of the plaintiff's RICO claims against those defendants. Id. More recently, a district court in another RICO case applied Panama to exercise personal jurisdiction over a defendant who did not demonstrate how litigation in this District would be "so gravely difficult and inconvenient" as to raise Fifth Amendment concerns. Prou,
The facts of this case compel the same result as to Plaintiffs' RICO claim. Neither Atmel nor Continental have presented sufficient evidence to demonstrate Fifth Amendment concerns with having to litigate this suit in Miami. Accordingly, the Court exercises personal jurisdiction over Plaintiffs' RICO claim consistent with both RICO's nationwide service of process provision,
Having appropriately exercised personal jurisdiction over Count 3, the "pendent personal jurisdiction" doctrine comes into play and the Court may also "exercise[ ] personal jurisdiction over Defendants with respect to the state-law claims without engaging in the traditional personal jurisdiction analysis." See Koch v. Royal Wine Merchants, Ltd.,
ii. Failure to State a Claim
Count 3 of the Complaint alleges that the Airbag Manufacturer Defendants' actions violated RICO,
"Congress enacted RICO in 1970, prohibiting racketeering activity connected to interstate commerce." Ray v. Spirit Airlines, Inc.,
As to the first element, although "lower-level participants under the direction of upper management may be found to satisfy the 'operation or management' test[,] ... [a] defendant must knowingly implement and make decisions in order to be liable under the 'operation or management' test." United States v. Browne,
*1233McCulloch v. PNC Bank Inc.,
Moreover, because civil RICO actions sound in fraud, Plaintiffs must offer heightened specificity in the facts supporting their claim.
*1234(2) the time and place of and person responsible for the statement; (3) the content and manner in which the statements misled the Plaintiffs; and (4) what the Defendants gained by the alleged fraud." Ambrosia Coal,
In Ambrosia Coal and Brooks, the Eleventh Circuit affirmed two the decisions of two district courts that dismissed RICO claims for failure to satisfy Rule 9(b). In Ambrosia Coal, the Eleventh Circuit based its affirmance on the plaintiff's "fail[ure] to plead its civil RICO claims against each defendant with the required level of specificity." Id. at 1317. Examples of dispositive deficiencies with the plaintiff's allegations included failure to "discuss the nature of each defendant's participation in the scheme," failure to "discuss each alleged statement, document, or misrepresentation made with the proper level of precision," and reliance on "material misrepresentations without specifying the content or manner in which the statements misled" the plaintiffs. Id. at 1317 n.12.
Similarly, in Brooks, the Eleventh Circuit affirmed the district court's dismissal of the plaintiffs civil RICO claims pursuant to Rule 9(b) where the plaintiff "lumped together all of the Defendants in their allegations of fraud" and the complaint was "devoid of specific allegations with respect to the separate Defendants." Brooks,
When assessed under the framework set forth in Ambrosia Coal and Brooks, the Complaint fails to state a RICO claim because it does not offer the specificity required by Rule 9(b). Plaintiffs contend that eight facts contained in the Complaint-two of which are not alleged as part of the RICO cause of action-satisfy Rule 9(b) : (1) the Atmel and Continental enterprise implemented unspecified countermeasures to correct the defective ACUs and informed customers of these countermeasures while failing to issue a warning or recall (DE 50 ¶¶ 8, 156); (2) Atmel made "material statements about the safety and reliability" of the defective ACUs between 2007 and 2008 (DE 50 ¶ 277)
Plaintiffs claim that these allegations support the Complaint's conclusory statement that "Airbag Manufacturer Defendants comprised and comprise an association-in-fact enterprise ... [with] the common purpose to conceal ... the defective [ACU] problems ... [which] was formed by at least 2008." (DE 50 ¶¶ 154-56). They argue that the Airbag Manufacturer Defendants "operated or managed" this enterprise because they knew about the defective ACUs and made public statements about the ACUs, yet did not institute a recall or warn authorities or the public about the defect. (DE 50 ¶¶ 8, 154-58). However, as in Brooks, the allegations pertaining to whether Airbag Manufacturer Defendants "operated or managed" an "enterprise" do not distinguish between Atmel and Continental and therefore fail to provide each with fair notice of the claims against them. For instance, Plaintiffs do not specify which Defendant implemented what countermeasures, when each Defendant became aware of the unexpected deployments of airbags in 2011, and when each Defendant became aware of "additional cars" with the defective ACUs in early 2015.
Even putting aside the lack of specificity about the conduct of each Defendant, these allegations also do not establish that a RICO "enterprise" existed. For example, the "regular contact" between Airbag Manufacturer Defendants from 2008 to 2016 does not mention who at each company was in contact, what they were in contact about, or when, where, and how
Next, Plaintiffs' allegations pertaining to the purported predicate acts-mail and wire fraud-also do not rise to the level of specificity required to state a civil RICO claim pursuant to Rule 9(b). Plaintiffs respond that the Complaint sufficiently describes two or more acts of mail or wire fraud by including allegations regarding the Airbag Manufacturer Defendants' "knowing shipment of defective goods, specific communications between them conspiring to conceal the defect, failure to timely disclose the defect to both NHTSA and the public, and active concealment of ongoing malfunctions after countermeasures were implemented." (DE 99 at 17; DE 100 at 24; see also DE 50 ¶¶ 6, 8, 17, 23, 156-58). However, the Complaint fails to specify who at Continental shipped what remediated parts to Chrysler, Mercedes Benz, or Honda; when or where these shipments occurred; or how these shipments constituted part of a scheme to defraud. That "Continental sent the ASIC" (DE 50 ¶ 6) it received from Mercedes Benz in January 2008 to Atmel is similarly unhelpful in that there is no description of what role this played in the alleged scheme.
Finally, the Complaint also states that Airbag Manufacturer Defendants breached *1236a "duty to disclose" information to NHTSA and the public. But violation of the only statutory duty pled in the Complaint-the duty to disclose information to NHTSA pursuant to the Motor Vehicle Safety Act-cannot be a RICO predicate act. Ayres v. Gen. Motors Corp.,
iii. Remaining State Law Claims
Without a surviving RICO claim on which to base pendent personal jurisdiction, the Court cannot consider Plaintiffs' remaining state law claims. "Pendent personal jurisdiction is typically found where one or more federal claims for which there is nationwide personal jurisdiction are combined in the same suit with one or more state or federal claims for which there is not nationwide personal jurisdiction." Action Embroidery,
IV. CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that MBUSA's motion to dismiss (DE 78), Honda's motion to dismiss (DE 82), Atmel's motion to dismiss (DE 83), and Continental's motion to dismiss (DE 83) are GRANTED. Plaintiffs' motion for limited relief from the discovery stay to produce public documents (DE 139) is DENIED AS MOOT. This case is set for a status conference on April 18, 2017 at 10:00 a.m.
DONE AND ORDERED in chambers in Miami, Florida, this 17th day of March, 2017.
Defendant Daimler AG moved for an extension of time to file a responsive pleading (DE 141) and the Court granted Daimler AG's motion through an order dated December 29, 2016 (DE 143). Daimler AG shall file a responsive pleading within 30 days after any amended complaint is filed pursuant to this Order.
Neither the Parties nor the NHTSA report referenced in the Complaint (DE 50 ¶ 6 n.2) explain why the power supply component is abbreviated "ASIC."
Plaintiff Lourdes Leon, a resident and citizen of Miami-Dade County, Florida, "purchased a 2009 Mercedes Benz C Class, VIN WDDGF54X49R054322, in the state of Florida" (DE 50 ¶ 29) and learned about the airbag recall in December 2015 (DE 50 ¶ 30). Plaintiff Alexander Paz, a resident and citizen of Miami-Dade County, Florida, "purchased a 2008 Mercedes Benz C Class, VIN WDDGF56X38F107492, in the state of Florida" (DE 50 ¶ 32) and learned about the airbag recall in December 2015 (DE 50 ¶ 33). Plaintiff Seth Burack, a resident and citizen of Palm Beach County, Florida, "purchased a 2009 Honda Accord, VIN JHMCP26379CO17006, in the state of Florida" (DE 50 ¶ 35) and learned about the airbag recall in 2016 (DE 50 ¶ 36). Plaintiff Nuria Reina, a resident and citizen of Miami-Dade County, Florida, "purchased a 2009 Honda Accord, VIN 1HGCP26829A121428, in the state of Florida" (DE 50 ¶ 38) and learned about the airbag recall in 2016 (DE 50 ¶ 39). Plaintiff Giraldo Hernan-Mejia, a resident and citizen of Bergen County, New Jersey, "purchased a 2010 Honda Accord, VIN 1HGCP2F8XAA049947, in the state of New York" (DE 50 ¶ 44) and learned about the airbag recall in or about December 2015 (DE 50 ¶ 45). Plaintiff Chrystina Asman, a resident and citizen of Macomb County, Michigan, "purchased a 2009 Chrysler Town and Country, VIN 2A8HR54119R63000, in the state of Michigan" (DE 50 ¶ 47) and learned about the airbag recall in February 2016 (DE 50 ¶ 48). Plaintiff Kimberly Battle, a resident and citizen of Washtenaw County, Michigan, "purchased a 2009 Chrysler Town and Country, VIN 2A8HR44E79R503185, in the state of Michigan" (DE 50 ¶ 50) and learned about the airbag recall in February 2016 (DE 50 ¶ 51). Plaintiff Kristen Ward, a resident and citizen of Suffolk County, New York, "purchased a 2009 Honda Accord, VIN 1HGCP26839A196302, in the state of New York" (DE 50 ¶ 53) and learned about the airbag recall in December 2015 (DE 50 ¶ 54). Plaintiff Donald Galloway, a resident and citizen of Palm Beach County, Florida, "purchased a 2008 Honda Accord, VIN 1HGCP36888A020141, in the state of Florida" (DE 50 ¶ 62) and learned about the airbag recall in or about December 2015 (DE 50 ¶ 63). Plaintiff Jocelyn Cintron, a resident and citizen of Palm Beach County, Florida, "purchased a 2009 Honda Accord, VIN 1HGCP26449A194748, in the state of Florida" (DE 50 ¶ 65) and learned about the airbag recall in or about December 2015 (DE 50 ¶ 66). Plaintiff Colleen Morrow, a resident and citizen of Palm Beach County, Florida, "purchased a 2009 Mercedes Benz C Class, VIN WDDGF54X09R081341, in the state of Florida" (DE 50 ¶ 68) and learned about the airbag recall in or about December 2015 (DE 50 ¶ 69). Plaintiff Melissa Munoz-Ortiz, a resident and citizen of Palm Beach County, Florida, "purchased a 2009 Chrysler Town and Country, VIN 2A8HR64X48R631797, in the state of Florida" (DE 50 ¶ 71) and learned about the airbag recall in or about December 2015 (DE 50 ¶ 72). Plaintiff Glenda Johnson, a resident and citizen of Orleans Parish, Louisiana, purchased a 2009 Dodge Journey, VIN 3D4GG57V99T230888, in the state of Louisiana" (DE 50 ¶ 74) and learned about the airbag recall in or about March 2016 (DE 50 ¶ 75). The Complaint names three additional Plaintiffs who purchased Honda vehicles. However, as Plaintiffs stated in their opposition to Honda's motion to dismiss (DE 98 at 11 n.8) and conceded at the hearing held September 9, 2016 (DE 133 at 85:16-19), Angel Henriksen, Maria McArdle, and Manuela Valentina Churi Hernandez lack standing to proceed because their Honda-manufactured vehicles do not contain the defective ACUs. Accordingly, these three Plaintiffs' claims are dismissed.
Plaintiffs argue that "Honda does not appear to contest that ... Plaintiffs purchased" their vehicles from "Honda-affiliated dealerships in Florida or otherwise relied to their detriment on [Honda's] misrepresentations in Florida." (DE 98 at 6). This "straw-man" argument ignores the fact that Plaintiffs-not Honda-bear the burden of establishing a prima facie case of personal jurisdiction. See Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino,
Plaintiffs respond in their briefing with additional bases for jurisdiction that are not included in the Complaint-they assert that "Honda distributes, sells, warrants, and services Honda-manufactured vehicles in Florida and regularly concedes personal jurisdiction for claims arising from use of Honda-manufactured vehicles in this district." (DE 98 at 6). Even assuming the Court were to consider these additional statements supporting personal jurisdiction, they are arguably insufficient. For example, contacts such as consent to jurisdiction in other lawsuits do not support general personal jurisdiction pursuant to Florida's long-arm statute. See Carmouche,
Plaintiffs do allege generally that all "Defendants ... conduct substantial business in this District." (DE 50 ¶ 26). However, the Complaint contains no detail to support this statement as to Honda, leaving the Court unable to infer which of Honda's contacts with Florida support specific personal jurisdiction pursuant to Section 48.193(1)(a)(1).
It is well settled that allegations of economic injury alone do not establish the type of injury to persons or property within Florida required to establish personal jurisdiction pursuant to Section 48.193(1)(a)(6). See Courboin v. Scott,
In their response to Honda's motion to dismiss, Plaintiffs suggest that the Complaint alleges that the Florida Plaintiffs bought or leased Honda vehicles from "Honda's agents in Florida." (DE 98 at 8). A review of the Complaint, however, reveals no such allegations.
Because the Court is unable to exercise personal jurisdiction over Florida Plaintiffs' claims against Honda, there is no basis for the Court to exercise pendent personal jurisdiction over the New York and New Jersey Plaintiffs' claims against Honda-which bear no apparent "stream of commerce" connection to Florida at all. Prou v. Giarla,
MBUSA also invites the Court to dismiss Plaintiffs' claims in deference to NHTSA's ongoing investigation pursuant to the doctrines of preemption and primary jurisdiction. As to preemption, MBUSA cites cases in which courts dismissed plaintiffs' requests for court-ordered recalls. See , e. g. , In re Bridgestone/Firestone Inc., ATX, ATX II & Wilderness Tires Products Liability Litigation,
To the extent that Plaintiffs dispute application of Florida law to their MMWA claim, such application finds support in choice-of-law principles. In Florida, the lex loci contractus rule governs which state's implied warranty laws apply. Rose v. ADT Sec. Servs., Inc.,
Plaintiffs argue that privity is an affirmative defense which they are entitled to prove as fact at summary judgment. (DE 97 at 18). However, because the Florida law on which they rely requires privity of contract for the existence of an implied warranty, Plaintiffs' failure to allege sufficient facts to support privity is grounds for dismissal. See Cerasani v. Am. Honda Motor Co.,
Leon, Paz, and Morrow are all Florida residents who bought their vehicles in Florida. (DE 50 ¶¶ 29, 32, 68). Although they purport to bring Counts 2 and 5 of the Complaint against MBUSA on behalf of a "nationwide class," the Court evaluates the claim under Florida's law of fraudulent concealment.
The allegations Plaintiffs cite as demonstrating "particularity" include that "Defendants willfully failed to disclose and actively concealed the dangers and risks posed by the [defective ACUs]" and that "Defendants also engaged in unlawful trade practices by employing deception" (DE 50 ¶ 173); that "Mercedes Benz has known of the defect ... since at least 2008" (DE 50 ¶ 87); that had Plaintiffs known about this deception they "either would not have purchased their [d]efective [v]ehicles with [defective ACUs], or would have paid less for them than they did" (DE 50 ¶ 181). (DE 97 at 26). The Complaint also alleges generally that "Mercedes Benz also did not notify owners and lessees of Mercedes-Benz manufactured [vehicles containing the defective ACUs] until months" after notifying regulators and later advised that parts were not available (DE 50 ¶ 13); and that "Mercedes Benz initiated a campaign outside the U.S. to address" the defective ACUs in March 2013 (DE 50 ¶ 10) (emphasis in original).
Plaintiffs do not assert in either the Complaint or in briefing that Atmel or Continental is subject to general personal jurisdiction pursuant to
The mere presence of Atmel and Continental press releases on websites accessible in Florida does not establish personal jurisdiction pursuant to Florida Statute § 48.193(1)(a)(2) and the Due Process Clause of the Fourteenth Amendment. In Licciardello v. Lovelady,
It should be noted that five out-of-state Plaintiffs who have no discernable connection to Florida are also bringing claims against Atmel or Continental.
Importantly, the Eleventh Circuit in Panama noted the "distinction between what a plaintiff asserting jurisdiction must allege to survive a defendant's ... Rule 12(b)(2) motion on the one hand, and a defendant's 12(b)(6) motion on the other." Panama,
Independent of these four elements, the Complaint must also show that Plaintiffs have standing to bring a RICO claim by alleging "(1) the requisite injury to 'business or property,' and (2) that such injury was 'by reason of' the substantive RICO violation." Williams,
Plaintiffs cite a Second Circuit case for the proposition that "allegations regarding the existence of an 'enterprise' are not subject to Rule 9(b)." (DE 99 at 16). They claim that their generalized allegations about the Airbag Manufacturer Defendants' use of the mails and wires are therefore sufficient to show an "enterprise" for purposes of stating a RICO claim. They similarly argue for the lenient application of Rule 9(b) to their allegations on a "pattern of racketeering activity" because Plaintiffs "do not know all the ongoing actions of Atmel and Continental, but clearly allege 'there is a substantial threat that the activities will continue in the future.' " (DE 99 at 18-19; DE 50 ¶ 163); see also Hill v. Morehouse Med. Assocs., No. 02-14429,
This allegation is not specific to Plaintiffs' RICO claim, but instead corresponds to Plaintiffs' separate claim against Atmel pursuant to California's Consumer Legal Remedies Act.
This allegation is not specific to Plaintiffs' RICO claim, but instead corresponds to Plaintiffs' separate claim against all Defendants pursuant to FDUTPA.
Plaintiffs' briefing suggests that Atmel and Continental were in contact "by email and mail" (DE 99 at 18) but the paragraph of the Complaint that Plaintiffs cite in support (DE 50 ¶ 158) features no such allegations.