United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge
Willard Claytor, Tammy Woods, Lisa Sleeper, Joshua Davis,
Michael DiCarlo, William Albert, and Douglas Lindamood filed
these related actions against Volkswagen Group of America,
Inc. ("Volkswagen") in the Circuit Court for the
County of Roanoke, seeking equitable relief and monetary
damages for alleged violations of Virginia statutory and
common law. On April 26, 2016, Volkswagen removed the cases
to this court, asserting that the court has subject matter
jurisdiction over the cases because the plaintiffs'
claims for equitable relief implicate a significant federal
issue. The plaintiffs have moved to remand the cases to state
court. Volkswagen opposes the plaintiffs' motions and has
moved to stay further proceedings pending a transfer decision
by the Judicial Panel on Multidistrict Litigation ("MDL
Panel"). For the reasons set forth below, the
plaintiffs' motion to remand will be granted and
Volkswagen's motion to stay will be denied as moot.
following facts are taken from the original complaints filed
by the plaintiffs. See Pinney v. Nokia. Inc.. 402
F.3d 430, 443 (4th Cir. 2005) ("Because amendment
occurred after removal, we look at the original complaints
rather than the amended complaints in determining whether
removal was proper.") (citing Pullman Co. v.
Jenkins. 305 U.S. 534, 537 (1939)).
September 18, 2015, the Environmental Protection Agency
("EPA") issued a Notice of Violation to Volkswagen
for alleged violations of the federal Clean Air Act
("CAA"). The EPA determined that Volkswagen had
installed software-based "defeat devices" in
certain model year 2009. through 2015 diesel vehicles, which
"bypass, defeat, or render inoperative elements of the
vehicles' emission control systems that exist to comply
with CAA . . . emission standards." No. 7:16CV00197
Compl. ¶ 20; No. 7:16CV00198 Compl. ¶ 22. The
software senses when the vehicles are being tested for
compliance with emission standards, and produces compliant
emission results during the testing. At all other times that
the vehicles are being operated, the software reduces the
effectiveness of the emission control systems. As a result,
the vehicles emit levels of pollutants up to forty times
above EPA-compliant levels during normal operation.
press release issued on September 18, 2015, the EPA advised
car owners that "although these vehicles have emissions
exceeding standards, these violations do not present a safety
hazard and the cars remain legal to drive and resell."
No. 7:16CV00197 Compl. ¶ 26; No. 7:16CV00198 Compl.
¶ 28. The EPA also indicated that "[i]t is
incumbent upon Volkswagen to initiate the process that will
fix the cars' emissions systems, " and that
"[o]wners of cars of these models do not need to take
any action at this time." Id.
EPA's Notice of Violation listed the Volkswagen models
equipped with the software-based defeat devices. Each of the
plaintiffs owns one of the models identified in the Notice.
The plaintiffs allege that Volkswagen knew about the defeat
devices, and yet marketed and sold their vehicles as
"clean diesel" models. The plaintiffs allege that
they relied upon Volkswagen's false representations
regarding the vehicles' environmentally friendly status
in electing to purchase their vehicles. The plaintiffs
further allege that the Volkswagen vehicles that they
purchased cannot be legally operated on the roads of
Virginia, and that they are being exposed to criminal charges
and traffic fines as a result of Volkswagen's fraudulent
April of 2016, the plaintiffs filed two complaints against
Volkswagen in the Circuit Court for the County of Roanoke.
The first complaint sought individual relief and the second
sought relief for all other similarly situated citizens of
Virginia. Both complaints include a claim for permanent
injunctive relief in the form of an order awarding the
plaintiffs immediate rescission of their vehicles' sales
contracts, and a motion for temporary injunctive relief in
the form of an order requiring Volkswagen to provide loaner
or rental vehicles at no expense. The first complaint also
includes claims for damages under the Virginia Motor Vehicle
Warranty Enforcement Act and the Virginia Consumer Protection
Act, as well as a claim for punitive damages for
Volkswagen's alleged fraud.
plaintiffs' claims for equitable relief, particularly
their requests for a temporary injunction, are premised on
the assertion that their Volkswagen vehicles are illegal to
drive in Virginia under a number of state statutory and
regulatory provisions. The statute on which the plaintiffs
primarily rely, Virginia Code § 46.2-1048, provides in
pertinent part as follows:
No motor vehicle registered in the Commonwealth and
manufactured for the model year 1973 or for subsequent model
years shall be operated on the highways in the Commonwealth
unless it is equipped with an air pollution control system,
device, or combination of such systems or devices installed
in accordance with federal laws and regulations.
It shall be unlawful for any person to operate a motor
vehicle, as herein described, on the highways in the
Commonwealth with its pollution control system or device
removed or otherwise rendered inoperable.
Va. Code § 46.2-1048.
April 26, 2016, Volkswagen removed the plaintiffs'
Roanoke County suits to this court. Thereafter, the
plaintiffs moved to remand the cases to state court,
asserting a lack of federal jurisdiction. The plaintiffs also
filed amended complaints in both cases.
meantime, Volkswagen moved to stay the cases pending transfer
to the multi district litigation currently pending in the
United States District Court for the Northern District of
California. See In re: Volkswagen "Clean Diesel
Marketing, " Sales Practices, and Products Liability
Litigation, MDL No. 2672 (N.D. Cal. 2015).
Volkswagen's motions were prompted by the issuance of
conditional transfer ...