United States District Court, W.D. Virginia, Lynchburg Division
K. MOON UNITED STATES DISTRICT 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.
Facts as Alleged
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).
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. ¶¶
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).
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
Standard of Review
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).
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).
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
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 ...