Nаncy L. KUNS, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
No. 13-3364.
United States Court of Appeals, Sixth Circuit.
Nov. 19, 2013.
572
BEFORE: COLE, CLAY, Circuit Judges; BERTELSMAN, District Judge.*
COLE, Circuit Judge.
Plaintiff-Appellant Nancy Kuns appeals the district court‘s order granting summary judgment in favor of Defendant-Appellee, Ford Motor Company, on Kuns‘s claims that Ford violated the federal Magnuson-Moss Warranty Act and breached its express warranty under Ohio law. For the rеasons addressed below, we affirm.
I. BACKGROUND
A. Factual Background
In December of 2009, Kuns purchased a new 2010 Mercury Mariner from the Liberty Ford dealership in Vermillion, Ohio. About a year later, as Kuns‘s husband was closing the rear liftgate, its glass window suddenly “exploded and shattered.” (Id.)
In the course of this litigation, Kuns discovered that, by the fall of 2010, Ford was aware of problems with the rear liftgate glass. Over the following months, Ford issued several Technical Service Bulletins (“TSBs“) and other documents notifying Ford dealerships and the National Highway Traffic Safety Administration (“NHTSA“) of the defect and instructing dealerships to replace the glass using a revised striker design—essentially, a different means of affixing the glass to the liftgate. In one document, Ford acknowledged that “warranty coverage normally does not include glass repairs,” but announced that, due to the defect, “Ford would covеr the cost of glass repair” under its warranty “if there is no evidence of impact or external damage.”
B. Procedural History
In July of 2011, Kuns filed her complaint against Ford in the Northern District of Ohio alleging violations of the Magnuson-Moss Warranty Act (“MMWA“), breach of express warranty, and breach of implied warranty. The district court requested briefing to determine whethеr it had subject matter jurisdiction. The court determined that it did not have jurisdiction under the MMWA,
After resolving the jurisdictional question, the district court granted Ford‘s motion for summary judgment. The court determined that Ohio law applied, and held that Kuns could not successfully pursue a claim that Ford had violated the MMWA or Ohio law pertaining to warranties because Kuns had failed to give Ford a reasonаble opportunity to repair the defect after the first breakage, and because Ford‘s reluctance to repair the window after the second breakage was justified by the fact that Ford had not made the prior repair. Additionally, the court rejected Kuns‘s argument that Ford‘s issuance of TSBs acknowledging a defect in the window design “either expanded the new vehicle warranty or created an additional, separate warranty.” Lastly, the court dismissed Kuns‘s claims that Ford violated express and implied warranties, finding that no express warranty existed, and that the applicable Ohio law does not recognize a cause of action for breаch of implied warranty where the parties are not in privity of contract. Kuns appeals the district court‘s dismissal of her claims based on the MMWA and the express warranty only.
II. DISCUSSION
A. Federal Court Jurisdiction
As a threshold matter, we must ensure that we have subject matter jurisdiction over Kuns‘s claims, even though neither party raises the question on appeal. See Answers in Genesis of Ky., Inc. v. Creation Ministries Int‘l, Ltd., 556 F.3d 459, 465 (6th Cir.2009) (Cole, Gibbons, Bell, D.J.) (“[F]ederal courts have a duty to consider their subject matter jurisdiction in regard to every case and may raise the issue sua sponte.“). The district court, in its memorandum opinion, identified two potential problems with its jurisdiction: first, the jurisdictional requirements of the Magnuson-Moss Warranty Act, and secоnd, the amount-in-controversy requirement imposed by the Class Action Fairness Act.
The district court held that it had jurisdiction over Kuns‘s claims under the CAFA and not under the MMWA. To bring a class action pursuant to the MMWA, a complaint must list at least one hundred named plaintiffs. See
As the district court acknowledged, our circuit has not yet addressed the jurisdictional interplay of the CAFA and the MMWA. Nor, apparently, have most of our sister circuits. But see Birdsong v. Apple, Inc., 590 F.3d 955, 957 n. 1 (9th Cir.2009) (finding that district court had jurisdiction pursuant to the CAFA over purported class action alleging violations of the MMWA and state law). However, district courts have, as a general rule, held that the CAFA effectively supercedes the MMWA‘s more stringent jurisdictional requirements. See, e.g., Keegan v. Am. Honda Motor Corp., 838 F.Supp.2d 929, 954-55 (C.D.Cal.2012) (citing several other cases); Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F.Supp.2d 833, 837-38 (N.D.Ill.2008); McCalley v. Samsung Elecs Am., Inc., No. 07-2141(JAG), 2008 WL 878402, at *5 (D.N.J. Mar. 31, 2008); Chavis v. Fidelity Warranty Servs., Inc., 415 F.Supp.2d 620, 626 (D.S.C.2006) (“CAFA was passed with the clear intеntion of expanding federal court jurisdiction over class actions” (internal quotation marks omitted)); see also S.Rep. No. 109-14, at 27 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 27 (describing the CAFA as a “narrowly-tailored expansion of federal diversity jurisdiction to ensure that class actions that are truly interstate in character can be heard in federal court“). We agree that the district court had jurisdiction notwithstanding the MMWA‘s jurisdictional limitations.
Turning to the second jurisdictional hurdle, the CAFA imposes an amount-in-controversy requirement of $5 million in total.1 The district court held that Kuns‘s amended complaint satisfied this condition by “clarif[ying] that the size of the class at the time of the original complaint was over 800,000 members“—encompassing all individuals nation-wide who bought, leased, or otherwise acquired an affected vehicle, and who either suffered a broken window or still retain the vehicle in a defective state.
B. Standard of Review
We review the district court‘s grant of summary judgment de novo. United States v. Murphy, 937 F.2d 1032, 1036 (6th Cir.1991). Summary judgment may be granted only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
C. Violation of Magnuson-Moss Warranty Act
The MMWA imposes certain requirements on manufacturers and merchants who choose to issue consumer warranties. See generally
Kuns argues that Ford violated the MMWA because it “inadequately disclose[d] the terms of the [original] warranty,” specifically, whether breakage of the rear window was covered, and because it did not communicate the contents of its TSBs to car оwners, thereby informing them that the warranty covered glass breakages caused by the defect. Moreover, Kuns alleges that Ford “refused to authorize the necessary repairs to the rear window at no cost and without persistence by the consumer” following the second breakage.
We begin with Kuns‘s claim regarding the first incident. To state a claim under the MMWA, a plaintiff must present a “sustainable claim for breach of warranty.” Temple v. Fleetwood Enters., Inc., 133 Fed.Appx. 254, 268 (6th Cir.2005). Accordingly, “a plaintiff must demonstrate
As the district court correctly determined, Kuns did not give Ford the opportunity to cure the initial defect in her rear window following the first breakage. Rather, as Kuns explains, her husband “reviewed the written warranty provided with the vehicle and concluded ... that the rear glass breakаge was not covered.” Kuns then took the vehicle to a repair shop not authorized by Ford. Kuns argues that any request for a cure would have been futile in light of Ford‘s policy that window breakages were not typically covered by the new vehicle warranty. (Kuns Am. Compl., R.32-2, PageID 578; Ford Reply, R.29; PageID 461.) But Kuns does not cite—and we cannot lоcate—any case law indicating that this statutory requirement can be waived if a plaintiff subjectively determines that demand would be futile and does not so much as request the seller to cover the necessary repair. Moreover, at the time of the first breakage, Ford had already issued TSBs instructing its dealers that problems with the reаr liftgate window were covered by the warranty. Thus, we agree with the district court, and we need not reach the question of whether Ford‘s warranty or other disclosures meet the requirements of the MMWA. Kuns has no cognizable claim for the first breakage.
Turning to the second breakage, the district court noted that, although Kuns may have “raise[d] a quеstion of whether Ford cured the defect in a reasonable time and number of attempts,” Kuns did not show that the replacement window, installed by a third party, was covered by Ford‘s warranty. See Temple, 133 Fed.Appx. at 268 (requiring showing that “the item at issue was subject to a warranty“). Kuns argues that the warranty still applies because the defect pertains to the design of thе window—“the manner in which Ford affixed the rear window components to the glass“—rather than to the window itself.
We agree with the district court‘s dismissal of Kuns‘s claim, but for different reasons. Ford‘s warranty contains the following provision:
[I]f your Ford vehicle is properly operated and maintained, and was taken to a Ford dealership for a warranted repair during the warranty period, then authorized Ford Motor Company dealers, will, without charge, repair, replace, or adjust all parts on your vehicle that malfunction or fail during normal use during the applicable coverage period due to a manufacturing defect in facto-
ry-supplied materials or factory workmanship.
It further states that the warranty “doеs not cover any damage caused by ... the installation or use of a non-Ford Motor Company part.” However, as Kuns points out, it was not the window itself that was defective, but the design of the liftgate components, as Ford itself acknowledged in its communications with the NHTSA. Therefore, it is a question of fact whether Kuns‘s second breakage was “caused by ... the installation or use” of a non-Ford part, such that the warranty would not cover a second repair of the glass.
Nevertheless, Ford did repair the second breakage without charge to Kuns. Granted, it took some effort on her part: Kuns states that she “had more than one conversation” with Ford representatives, and that she wаs originally told that the warranty did not apply because she previously had the window replaced by a non-Ford servicer. However, after threatening to stop making payments on her car, Kuns received a phone call from the dealership “the next day” agreeing to replace the glass at no charge. A coрy of Kuns‘s service invoice, included in the record, indicates that the dealership accepted her vehicle for repair no later than January 31, 2011—three days after the breakage, which occurred on a Saturday—and that it completed the repair by that following Saturday, February 4. We accordingly decline to find a gеnuine issue of material fact as to whether the dealership “failed to cure the defects within a reasonable time and a reasonable number of attempts.” Temple, 133 Fed.Appx. at 268; cf. Abele, 11 F.Supp.2d 955, 961-62 (noting that whether a seller has been given a reasonable opportunity to cure is normally a question of fact, but granting summary judgment where “Plaintiff attempted to revoke acceptance” immediately after the second product failure and “refus[ed] to afford Defendant a second opportunity to repair or replace” the defective component). In light of the fact that the broken window was a non-factory part, the dealership‘s initial refusal to replace it was not unreasonable, and it is uncontroverted that Kuns‘s vehicle was repaired within a week of the breakage.
Finally, Kuns alleges that Ford engaged in an additional violation of the MMWA by failing to inform vehicle owners of the conclusion it reached in its TSBs, that is, that rear window breakages due to the design flaw were covered by Ford‘s new vehicle warranty. Kuns points to regulations promulgated under the MMWA, specifically
D. Breach of Express Warranty
As noted above, the elements a plaintiff must show to pursue a breach-of-warranty
III. CONCLUSION
We affirm the district court‘s grant of summary judgment in favor of Ford.