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Allen v. FCA U.S. LLC

United States District Court, W.D. Virginia, Lynchburg Division

May 10, 2017

Stacey Allen, Plaintiff,
v.
FCA U.S. LLC, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE.

         Judge Norman K. Moon Plaintiff brings several claims related to her injuries suffered in an automobile accident while driving a Dodge Avenger vehicle made by Defendant. Defendant has moved to dismiss Plaintiff's Virginia Consumer Protection Act, Virginia Code Ann. §§ 59.1-196 to -207 (“VCPA”) claim. The Court finds that Plaintiff's VCPA claim is inadequately pled because Plaintiff does not allege the knowing falsity of Defendant's misrepresentations. As this is Plaintiff's second unsuccessful attempt to plead this VCPA claim with sufficient particularity, the Court will dismiss the claim with prejudice.

         I. Facts as Alleged

         In 2012, Plaintiff purchased a 2010 Dodge Avenger sedan (“the Vehicle”) manufactured by Defendant. (Dkt. 35 ¶¶ 70, 10). On October 7, 2016, Plaintiff lost control of the Vehicle and collided with an embankment at approximately 55 miles per hour. (Id. ¶¶ 12, 13). During the course of this accident, the Vehicle's airbag failed to deploy and its seatbelt failed to secure Plaintiff, causing her to slam into the steering wheel and side panel of the Vehicle. (Id. ¶ 13) Plaintiff suffered injuries as a result of the accident. (Id. ¶¶ 14-16).

         Prior to the accident, on October 1, 2016, Defendant had issued a recall affecting the 2010 Dodge Avenger model. (Id. ¶ 17). The recall related to the potential failure of the air bag and seatbelt pretensioner in the event of an accident, which could “increase the risk of an injury in a crash.” (Id. ¶ 19). Defendant had known about these issues for “more than a year” prior to the October 2016 recall. (Id. ¶¶ 30, 31).

         Plaintiff also alleges that, prior to purchasing the Vehicle, she saw several advertisements discussing the Dodge Avenger's safety and reliability. (Id. ¶ 23). In 2010, Defendant produced an advertisement stating in part that “Behind the wheel of an Avenger, you're surrounded by advanced features designed to help keep you safe and secure in the event of a collision.” (Id. ¶ 24). The same advertisement also stated that the Avenger received the “highest Government Frontal Crash Test Rating.” (Id.) Further, in 2012, Defendant encouraged potential buyers to “PICK [the Avenger] FOR ITS SAFETY.” (Id. ¶ 24). The advertisement also specified that the Avenger was a “IIHS TOP SAFETY PICK” and contained “six airbags, active front head restraints, Electronic Stability Control and an advanced Antilock Brake System.” (Id.) Because Plaintiff believed the vehicle to be particularly safe based on advertisements she viewed, she paid a premium to obtain it. (Id. ¶ 26).

         II. Procedural History

         Plaintiff's original complaint consisted of six claims: (1) negligence, (2) negligent design, (3) failure to warn, (4) breach of express warranty, (5) breach of implied warranty, and (6) a violation of the VCPA. Defendant FCA U.S. LLC filed a 12(b)(6) motion to dismiss counts (2), (3), (4), and (6). In response, Plaintiff amended her complaint to assert the following four claims: (1) negligence, (2), products liability, (3) breach of implied warranty, and (4) a violation of the VCPA. Defendant has filed a second motion to dismiss asserting that Plaintiff's VCPA claim is not properly pled.

         III. Standard of Review

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Although a complaint “does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

         A court need not “accept the legal conclusions drawn from the facts” or “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). “Factual allegations must be enough to raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555, with all allegations in the complaint taken as true and all reasonable inferences drawn in the plaintiff's favor. Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Consequently, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         IV. Discussion

         The issue here is whether Plaintiff has pled adequate facts to state a claim under the VCPA. The Court concludes that Plaintiff's VCPA claim should be dismissed because it does not adequately allege false representations by Defendant.

         “A party alleging fraud must prove by clear and convincing evidence (1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.” Branin v. TMC Enterprises, LLC, 832 F.Supp.2d 646, 652 (W.D. Va. 2011) (citing State Farm Mut. Auto. Ins. Co. v. Remley, 270 Va. 209, 218 (2005)). Because the VCPA prohibits “fraudulent acts or practices, ” a claim under it is subject to the heightened pleading standards of Rule 9(b). See Va. Code Ann. § 59.1-200(A); Wynn's Extended Care, Inc. v. Bradley, 619 F. App'x 216, 220 (4th Cir. 2015). Under Rule 9, Plaintiff must “state with particularity the circumstances constituting fraud or mistake, ” including “the time, place, and ...


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