Plаintiffs Santiago Padilla and Murray Shames (collectively, "Plaintiffs") filed a
I. BACKGROUND
Plaintiffs allege that Porsche sold its high-end performance vehicles as safe, despite knowing for more than a decade that it used a defective epoxy adhesive to join coolant pipes to the thermostat housing assembly. According to Plaintiffs, the "Cooling System Defect" occurs when the epoxy adhesive degrades, loosens, and eventually fails due to the contraction and expansion of coolant pipes caused by repeated heating and cooling over time; and when the epoxy adhesive fails, the cooling pipes separate from the thermostat housing assembly, causing a significant coolant leak that in turn causes the engine to overheat.
Plaintiff Padilla purchased his used 2011 Porsche Panamera from The Collection, a car dealership located in Miami, Florida. Plaintiff Shames bought his used 2011 Cayenne S from the Carmax in Tampa, Florida. Within two years of purchase, each high-end performance vehicle suffered the Cooling System Defect, which resulted in each Plaintiff having to pay thousands of dollars in repairs out of their pockets. After Shames's vehicle suffered the Cooling System Defect a second time, within seventeen months of the first occurrence, he wrote a letter to Porsche notifying them of the Cooling System Defect and demanded that Porsche pay for the repairs. When Porsche refused to pay, because the repairs were incurred outside the standard warranty period, Shames traded in his 2011 Cayenne S at a loss. Padilla apparently still owns his vehicle.
On November 29, 2018, Plaintiffs commenced this class actiоn lawsuit on behalf of themselves and a nationwide class of all current or former owners and/or lessees of certain Porsche models that suffer from the Cooling System Defect. On January 28, 2019, Porsche filed a Motion to Dismiss the Class Action Complaint.
II. LEGAL STANDARD
"A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive dismissal, the Class Action Complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
III. DISCUSSION
The Class Action Complaint asserts three claims against Porsche: (1) in Count I, violation of the Florida Deceptive and Unfair Trade Practices Act, Florida Statute Sections 501.201, et seq. ; (2) in Count II, breach of the implied warranty of merchantability under Florida law; and (3) in Count III, declaratory relief pursuant to 28 U.S.C. Section 2201. Porsche seeks to dismiss each Count with prejudice. The Court addresses each Count in turn.
A. COUNT I - FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT
In Count I, Plaintiffs assert one claim for violation of the Florida Deceptive and Unfair Trade Practices Act. Porsche argues this FDUTPA claim should be dismissed with prejudice as barred by the statute of limitations.
1. Statute of Limitations
"A statute of limitations bar is 'an affirmative defense, and ... [P]laintiff[s] [are] not required to negate an affirmative defense in [their] complaint.' " La Grasta v. First Union Sec., Inc. ,
The statute of limitations for Plaintiffs' claim under FDUTPA is four years. See
Here, Plaintiffs commenced this action on November 29, 2018. Plaintiffs Padilla and Shames allege they purchased their used vehicles in 2013 and 2014, respectively. (D.E. 1 at ¶¶ 13-14.) While Plaintiffs do not specify in the Class Action Complaint which month they purchased their respective vehicles, see
Porsche submits, as an exhibit to a declaration, a Vehicle Information Check from the Florida Department of Highway Safety and Motor Vehicles showing Shames purchased his vehicle in July 2014. (See D.E. 12-1.) Porsche requests that the Court take judicial notice of this Vehicle
Here, the Court will take judicial notice of the Vehicle Information Check bеcause Plaintiffs do not oppose Porsche's request (see D.E. 21 at 3), and because the Vehicle Information Check held by the Florida Department of Highway Safety and Motor Vehicles is a public record that is not subject to reasonable dispute. See
The Vehicle Information Check on Shames's vehicle reveals that it was purchased in July 2014. As such, the statute of limitations on Shames's FDUTPA claim ran in July 2018-four months before this action commenced in November 2018. Therefore, it is " 'apparent from the face of the complaint' that the [FDUTPA] claim is time-barred" under Section 95.11(3)(f). La Grasta ,
2. Fraudulent Concealment
Plaintiffs attempt to invoke the doctrine of fraudulent concealment to toll the statute of limitations on their time-barred FDUTPA claim. To invoke fraudulent concealment, Plaintiffs must plead facts establishing Porsche "engаge[d] in the willful concealment of the cause of action using fraudulent means to achieve that concealment." Raie v. Cheminova, Inc. ,
Moreover, "[a] fraudulent concealment claim is subject to Fed. R. Civ. P. 9(b)'s requirement that the circumstances
Here, Plaintiffs fail to allege with sufficient particularity any claims of fraudulent concealment. Plaintiffs' Opposition memorandum argues that Porsche "affirmatively concealed the Cooling System Defect from the public, thereby delaying Plaintiffs and others from knowing they had a claim." (D.E. 22 at 13.) Plaintiffs direct the Court to several allegations in the Class Action Complaint to support their argument.
By way of examples, Plaintiffs allege that the Office of Defects Investigation ("ODI") of the National Highway Traffic Safety Administration opened an investigation into complaints about sudden, high volume coolant leakage in certain Porsche models, apparently caused by faulty epoxy used to adjoin pipes in the cooling systems. (D.E. 1 at ¶ 32.) Plaintiffs then allege that Porsche, in response to the ODI investigation, "identified a manufacturing quality issue with the supplier's application of adhesive to coolant pipe fittings that resulted in elevated failure rates" in certain Porsche models. Id. at ¶ 33. Plaintiffs further allege Porsche "admitted in its filings with the ODI that it 'did not conduct specific durability testing of the adhesive bonds used in the coolant pipe fittings,' " and that as part of the ODI investigation, Porsche "admitted that in 2007 - well before it designed and manufactured the Defective Vehicles - that it conducted an internal investigation into reported epoxy adhesive failures on coolant pipe fittings located at the 'water neck' of the water pump hоusing" in certain Porsche vehicles. Id. at ¶¶ 33-34. Plaintiffs also allege that as a result of the internal investigation, Porsche claimed that it "identified the cause as inadequate application of adhesive," and represented to ODI that Porsche's supplier "introduced an automated metering device for application of adhesive on pipe adapters." Id. at ¶ 35. Finally, Plaintiffs allege that Porsche represented to ODI that even though there was an epoxy problem, it was not a safety issue. Id. at ¶ 36.
At most, Plaintiffs allegations taken as true constitute mere "inactiоn"-which is "wholly insufficient" to constitute "active and willful concealment." Heuer ,
For these reasons, even when taking the allegations as true, the Court finds that Plaintiffs fail to establish fraudulent concealment, and thus they cannot toll the statute of limitations. In their Opposition memorandum, Plaintiffs request leave to "amend the complaint to allege additional facts regarding communications with Porsche and its authorized dealers." (D.E. 22 at 14 n.4.) Plaintiffs' request is granted, such that Plaintiffs may plead additiоnal facts to support fraudulent concealment. See Noah v. Assor ,
Finally, because the Court is granting Plaintiffs leave to amend their fraudulent concealment allegations, the Court need not address the sufficiency of Plaintiffs' FDUTPA claims at this time. Notwithstanding, the parties are granted leave to renew these arguments after Plaintiffs аmend the Class Action Complaint.
B. COUNT II - BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY UNDER FLORIDA LAW
In Count II, Plaintiffs assert one claim for breach of the implied warranty of merchantability under Florida law. Plaintiffs argue Porsche knew it was using a defective epoxy adhesive in the engine cooling system for certain Porsche models and that the Cooling System Defect rendered their vehicles not in merchantable condition and not fit for ordinary use. Porsche argues this claim should be dismissed for lack of contractual privity between Plaintiffs and Porsche, because Plaintiffs purchased their used vehicles from The Collection and Carmax dealerships-and not directly from Porsche.
1. Contractual Privity
"Under Florida law, a plaintiff cannot recover economic losses for breach
Time and again, Florida courts have dismissed breach of implied warranty claims under Florida law for lack of contractual privity where the plaintiff purchaser did not purchase a product directly from the defendant. See, e.g. , Rentas v. DaimlerChrysler Corp. ,
Consistent with the overwhelming weight of Florida law, this Court has repeatedly ruled that to establish contractual privity to state a breach of implied warranty claim, рlaintiffs must purchase the product at issue directly from the defendant. See, e.g. , In re Takata Airbag Prod. Liab. Litig. ,
Here, Plaintiffs did not purchase their vehicles directly from Porsche-who is "the exclusive importer and distributor of Porsche vehicles for the United States"
2. Third-Party Beneficiary Exception to Contractual Privity Requiremеnt
Nevertheless, Plaintiffs argue they can still establish contractual privity under the third-party beneficiary exception under Sanchez-Knutson v. Ford Motor Co. ,
In Tershakovec v. Ford Motor Co. , this Court confronted-and rejected-the very argument advanced by Plaintiffs here. Compare
Plaintiffs' third-party beneficiary exception argument also relies on the Eleventh Circuit's ruling in Glob. Quest, LLC v. Horizon Yachts, Inc. ,
Only then, the Eleventh Circuit addressed certain defendants' argument-an argument "in the alternative,"
The Court interprets this language as non-binding dicta and does not construe it (or the cited Florida cases) as confirming-let alone establishing under Florida law-a third-party beneficiary exception to the contractual privity requirement. But, to the extent this language is not dicta, Glob. Quest, LLC and the cited Florida cases are distinguished from the immediate case for a simple crucial reason: the plaintiff purchasers in those cases had direct negotiations with, or received direct reprеsentations through agents from, the defendants. In Glob. Quest, LLC , the Eleventh Circuit's analysis centered around the direct negotiations between the parties. Specifically, the Eleventh Circuit noted that a jury could find the plaintiff received "a unique limited express warranty that was provided and specifically negotiated as part of the purchase," and later noted that there was evidence that certain defendants were "directly involved in the negotiation of the purchase and limited warranty." Glob. Quest, LLC ,
Here, unlike in those cases, Plaintiffs do not allege any factual matter that Porsche was "directly involved in the negotiation of the purchase and limited warranty" of the used vehicles, Glob. Quest, LLC ,
Finally, even if the third-party beneficiary exception exists under Florida law, Plaintiffs' conclusory allegations-that they were the intended third-party beneficiaries of "contacts between Porsche and its dealers" and "Porsche's implied warranties" (D.E. 1 at ¶ 78)-fall short of invoking this exception to the privity requirement. See Leon v. Cont'l AG ,
Simply put, Plaintiffs purchased their used Porsche vehicles from The Collection and Carmax dealerships-not directly from Porsche. Because Porsсhe did not directly sell, or negotiate the sale of, the used vehicles to Plaintiffs, there is no contractual privity, and thus Plaintiffs cannot state a claim for breach of the implied warranty of merchantability under Florida law. Therefore, Porsche's Motion to Dismiss Count II is granted. Furthermore, Count II is dismissed with prejudice because any amendment would be futile. See Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep't of Educ. ex rel. Univ. of S. Fla. ,
C. COUNT III - DECLARATORY RELIEF
In Count III, Plaintiffs seеk declaratory relief under the Declaratory Judgment Act,
"Declaratory relief is a procedural device which depends on an underlying substantive cause of action and cannot stand on its own." Eveillard v. Nationstar Mortg. LLC , No. 14-CIV-61786,
Furthermore, because actions for declaratory relief do not have their own statute of limitations, it is the substantive right sued upon that governs the applicable limitations period. Rosenbaum v. Becker & Poliakoff, P.A. , No. 08-81004-CIV,
Notwithstanding, the Court notes that assuming Plaintiffs' FDUTPA claim is not barred by the statute of limitations, the declaratory relief claim appears to be redundant and superfluous. In determining whether Porsche violated FDUTPA, the Court will very likely have to resolve issues for which Plaintiffs seeks declaratory relief. Consequently, when filing an amended class action complaint, Plaintiffs should consider whether their declaratory relief claim is necessary as a separate cause of action. See MSP Recovery, LLC v. Allstate Ins. Co. , No. 15-20788-CIV,
IV. CONCLUSION
For the foregoing reasons, it is
ADJUDGED that Porsche's Motion to Dismiss (D.E. 11) is GRANTED IN PART as follows:
(1) Counts I and III are DISMISSED WITHOUT PREJUDICE, and Plaintiffs' request fоr leave to amend the Class Action Complaint is GRANTED such that Plaintiff may allege additional facts regarding fraudulent concealment in support of tolling the statute of limitations on the FDUTPA claim in Count I;
(2) Count II is DISMISSED WITH PREJUDICE ;
(3) Plaintiffs must file an amended complaint no later than Wednesday, June 12, 2019. Failure to do so will result in a final order of dismissal; and
(4) Should Plaintiffs file an amended complaint, Porsche must answer or respond to the amended complaint no later than Wednesday, June 26, 2019.
It is also
ADJUDGED that Porsche's Motion for Judicial Notice (D.E. 13) is GRANTED IN PART, such that the Court takes judicial notice only of Exhibits A and B (D.E. 12-1, 12-2).
Notes
In light of the reasons discussed infra regarding the sufficiency of Plaintiffs' FDUTPA allegations, the Court need not address at this time whether it will judicially notice the remaining exhibits attached to Porsche's declaration (D.E. 12-2, 12-3), which arе also the subject of Porsche's Motion for Judicial Notice (D.E. 13).
Porsche also requests that the Court take judicial notice of the ODI Resume. (See D.E. 13 (requesting judicial notice of D.E. 12-2).) The Court grants Porsche's Motion to judicially notice the ODI Resume because is a public record, see Domond ,
The Court notes that other federal district courts applying Florida law to breach of implied warranty claims have also declined to follow Sanchez-Knutson . See, e.g. , Johnson v. Nissan N. Am., Inc. , No. 17-CV-00517-WHO,
Because the Court need not address the sufficiency of Plaintiffs' FDUTPA claim at this time, the Court also need not address the parties' other contentions regarding the declaratory relief claim. As such, the parties are granted leave to renew these arguments after Plaintiffs amend the Class Action Complaint.