Heater v. Gen. Motors, LLC

568 F.Supp.3d 626

Roger HEATER, Individually and on behalf of all others similarly situated, Plaintiffs,

v.GENERAL MOTORS, LLC, Defendant.

Civil Action No. 1:21CV24

United States District Court, N.D. West Virginia.

Signed October 20, 2021

Adam J. Levitt, Pro Hac Vice, Daniel R. Ferri, Pro Hac Vice, John E. Tangren, Pro Hac Vice, DiCello Levitt Gutzler LLC, Chicago, IL, H. Clay Barnett, III, Pro Hac Vice, James Mitch Williams, Tyner D. Helms, Pro Hac Vice, W. Daniel Miles, III, Pro Hac Vice, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, AL, Larry Lee Javins, II, Taylor M. Norman, Bailey, Javins & Carter, LC, Charleston, WV, for Plaintiffs.

April N. Ross, Pro Hac Vice, Kathleen Taylor Sooy, Pro Hac Vice, Rachel P. Raphael, Pro Hac Vice, Crowell & Moring, LLP, Washington, DC, Paula Lynn Durst, Spilman, Thomas & Battle, PLLC, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [DKT. NO. 23]

IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE

This putative class action arises from an alleged engine defect existing in certain vehicles sold by the defendant, General Motors, LLC ("GM") in West Virginia and nationwide. On February 10, 2021, the plaintiff, Roger Heater ("Heater"), filed a class action complaint alleging that, although GM knew its vehicles excessively consumed oil, it failed to disclose, and actively concealed, this defect from consumers. Pending is GM's motion to dismiss Heater's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 23). For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the motion.

I. BACKGROUND

In 2012, Heater purchased a 2011 Chevrolet Silverado equipped with GM's Generation IV 5.3 Liter V8 Vortec 5300 LC9 engine ("Generation IV Engine") and covered by GM's Limited Warranty. Id. at 8.¹ He alleges that his vehicle, like the other Class Vehicles,² excessively consumes oil, which can result in low oil levels, insufficient lubricity levels, internal engine component damage, and engine failure. Id. at 2, 5–7. The primary cause of this "Oil Consumption Defect" is that the "piston rings that GM installed within the [Generation IV Engine] fail to keep oil in the crankcase." Id. at 3. Other issues with the Active Fuel Management System, the Positive Crankcase Ventilation ("PCV") system, the Oil Life Monitoring System, and the oil pressure gauge indicator on the dashboard exacerbate the defect. Id. at 3–5. Together, these defects cause "drivability problems" and place occupants at an increased risk of injury or death. Id. at 5.

Heater alleges that GM became aware of the Oil Consumption Defect as early as 2008 because, among others, GM consumers had filed a significant number of complaints regarding excessive oil consumption in the Class Vehicles. In addition, GM had issued several Technical Service Bulletins ("TSBs") to its dealers addressing excessive oil consumption in vehicles with the Generation IV Engine, and had abandoned the Generation IV Engine for its redesigned Generation V 5.3 Liter V8 Vortec 5300 LC9 engine ("the Generation V Engine"). Moreover, in 2009, Old GM³ had investigated the root cause of excessive oil consumption. Id. at 5–6, 14, 22–28.

Despite this knowledge, GM did not publicly disclose the Oil Consumption Defect and continued to sell Class Vehicles equipped with the Generation IV Engine to consumers like Heater. Id. at 6. Heater alleges that he first became aware of his vehicle's defect when there were fewer than 50,000 miles on its odometer. Had GM disclosed the Oil Consumption Defect, Heater contends he would not have purchased the vehicle, or "certainly would have paid less for it." Id. at 8.

Heater asserts six causes of action against GM: (1) violation of the West Virginia Consumer Credit and Protections Act ("WVCCPA"), (2) breach of express warranty, (3) breach of the implied warranty of merchantability, (4) fraudulent concealment, (5) unjust enrichment, and (6) violation of the Magnuson-Moss Warranty Act ("MMWA"). See Id. at 64–76. Heater asserts Counts One through Five on behalf of "[a]ll current and former owners or lessees of a Class Vehicle (as defined herein) that was purchased or leased in the state of West Virginia (‘the West Virginia Class’)," and purports to assert a claim in Count Six on behalf of a nationwide class consisting of "[a]ll current and former owners or lessees of a Class Vehicle (as defined herein) that was purchased or leased in the United States (‘the Nationwide Class’)." Id. at 61.

On April 13, 2021, GM moved to dismiss Heater's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and to strike Heater's nationwide class allegation pursuant to Federal Rule of Civil Procedure 12(f) (Dkt. No. 24). This motion is fully briefed and ripe for review.

II. MOTION TO DISMISS

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move for dismissal on the grounds that a complaint does not "state a claim upon which relief can be granted." When reviewing a complaint, the Court "must accept as true all of the factual allegations contained in the complaint." Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ). "While 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted).

A court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). "[A] complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.’ " Anderson, 508 F. 3d at 188 n.7 (quoting Twombly, 550 U.S. at 547, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A. Violation of the West Virginia Consumer Credit and Protections Act ("WVCCPA") – Count One

Heater first alleges that GM violated the WVCCPA by omitting material facts about the Oil Consumption Defect (Dkt. No. 1 at 65– 66). GM opposes Heater's WVCCPA claim on two bases: first, that he failed to sufficiently plead a cause of action; and second, that his claim is barred because he did not comply with the statute's pre-suit notice requirement (Dkt. No. 24 at 14-16).

Under the WVCCPA, a consumer who suffers a monetary loss as a result of an unfair or deceptive act may bring an action to recover damages. See W. Va. Code § 46A–6–106(a). To state a claim under the WVCCPA, a consumer must allege: (1) unlawful conduct by a seller; (2) an ascertainable loss on the part of the consumer; and (3) proof of a causal connection between the alleged unlawful conduct and the consumer's ascertainable loss. White v. Wyeth, 227 W.Va. 131, 705 S.E.2d 828, 837 (2010). But a consumer cannot bring a claim for a violation of the WVCCPA "until [he] has informed the seller ... in writing and by certified mail of the alleged violation and provided the seller ... twenty days from receipt of the notice of violation to make a cure offer." Bennett v. Skyline Corp., 52 F. Supp. 3d 796, 812 (N.D.W. Va. 2014) (citing W. Va. Code § 46A–6–106(b) ). "[T]he plaintiff's failure to comply with the mandatory prerequisite set forth in Section 46A–6–106(b) bars [him] from bringing a [WVCCPA] claim." Stanley v. Huntington Nat. Bank, 2012 WL 254135, at *7 (N.D.W. Va. Jan. 27, 2012).

Regardless of whether Heater has sufficiently pleaded a WVCCPA claim, he has not complied with the statute's mandatory prerequisites because he did not inform GM of the Oil Consumption Defect or provide it twenty (20) days to make a cure offer before bringing this lawsuit. Thus, he is barred from asserting a WVCCPA claim in this action.

Heater, however, argues that he was exempt from the WVCCPA's pre-suit notice requirement because West Virginia law does not require a plaintiff to perform a futile act as a pre-condition to seeking a remedy (Dkt. No. 29 at 17-18). In support, he cites to Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747, 754 (1949), where, the Supreme Court of Appeals of West Virginia held that, "[a]s a general rule, the petitioner, before instituting a proceeding in mandamus, must demand performance of the act or the duty which he seeks to enforce; but when it appears that a demand would be useless or unavailable it need not be made."⁴ Id. at Syl. Pt. 1, 754 (emphasis added) ("If mandamus be the proper remedy to obtain the relief to which the petitioners are entitled, they will not be required to do a useless or futile act before proceeding to invoke that remedy.").

Heater attempts to apply the holding in Carter to his WVCCPA claim. He contends that, under that statute, he was not required to give GM prior notice of the Oil Consumption Defect because it had actively concealed the defect for years, and so any pre-suit notice would have been futile (Dkt. No. 29 at 17-18).

Heater is mistaken in his contention. He seeks damages under a statutory scheme containing specific notice requirements. Thus, whether a petitioner must complete certain actions prior to seeking mandamus relief is irrelevant. The WVCCPA unequivocally requires that, before bringing a claim for relief, a consumer such as Heater must put GM on notice of its violative conduct and give it an opportunity to cure the resulting harm. Because the WVCCPA makes no exception for futility, the Court GRANTS GM's motion to dismiss his WVCCPA claim.

B. Breach of Express Warranty – Count Two

Heater asserts that GM breached his...