United States District Court, N.D. Illinois, Eastern Division
DAVID SCHIESSER, on behalf of himself and all others similarly situated, Plaintiff,
FORD MOTOR COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
W. DARRAH United States District Court Judge.
April 11, 2016, Plaintiff filed a First Amended Complaint, a
putative class action, alleging breach of express warranty;
violations of the Magnuson-Moss Act, 15 U.S.C. § 2301,
et seq.; violations of the Illinois Uniform
Deceptive Trade Practices Act, 815 ILCS 510/1, et
seq.; and the Illinois Consumer Fraud and Deceptive
Business Practices Act, 815 ILCS 505/1 et seq., as
well as a claim of common-law fraud related to
Defendant's sale and lease of certain vehicles from 2011
to 2015. Defendant filed a Motion to Dismiss the First
Amended Complaint  pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim for which
relief can be granted. For the reasons discussed below,
Defendant's Motion to Dismiss  is granted.
David Schiesser (“Plaintiff” or
“Schiesser”), is a resident of Illinois. (Am.
Compl. ¶ 3). Defendant, Ford Motor Company
(“Ford” or “Defendant”), is a
Delaware corporation with its principal place of business in
Dearborn, Michigan. (Id. ¶ 4). Defendant is a
merchant in the business of manufacturing, marketing, and
selling vehicles. (Id. ¶ 61).
First Amended Complaint (“FAC”), Plaintiff
alleges that in June 2012, he purchased a model year 2013
Ford Explorer vehicle (“Vehicle”) manufactured by
Defendant. (Id. ¶ 51.) Plaintiff alleges that
the warranty applicable to his vehicle, Ford's New
Vehicle Limited Warranty, states that it is limited to three
years from the date of purchase or 36, 000 miles
(“Warranty”). (Id. ¶¶ 58, 60).
The Warranty promises that, while under the applicable
coverage period, an authorized Ford dealership would, without
charge, repair, replace, or adjust all parts on a vehicle
that are affected by factory defects. (Id. ¶
58). The Warranty is “limited to repair, replacement,
or adjustment of defective parts and the duration of any
implied warranty ‘including the implied warranty of
merchantability and fitness for a particular purpose, are
limited to the duration of the original warranty.'”
(Id.). Ford's warranty allegedly purports to
disclaim responsibility for “loss of time, ”
“loss of your transportation or use of the vehicle,
” “the cost of rental vehicles, fuel, telephone,
travel, meals, or lodging, the loss of personal or commercial
property, the loss of revenue, or for any other incidental or
consequential damages you may have.” (Id.
alleges that since 2011, Defendant has been aware that the
exhaust system of certain vehicles it designed and
manufactured, including the vehicle he purchased, is
defective because exhaust odor and gases, including carbon
monoxide, enter into the vehicle's passenger compartment
(the “Defect”). (Id. ¶¶ 1, 8,
9, 10, 13, 23, 32, 34, 49, 64). Because of the Defect,
Plaintiff alleges, he is at risk of inhaling the fumes, which
could cause serious physical harm; and the Defect makes his
Vehicle unreasonably dangerous and unfit for safe operation.
(Id. ¶ 56). Plaintiff alleges that Defendant
actively represented that its cars were safe. (Id.
¶ 54). Plaintiff alleges that he would not have
purchased the Vehicle had he known of the Defect.
(Id. ¶ 55). Plaintiff further alleges that
Defendant has not recalled the vehicles nor has it notified
consumers that the vehicles could be dangerous and should be
replaced. (Id. ¶ 118).
September 2015, Plaintiff began to notice exhaust odor
accumulating in the passenger cabin of his Vehicle; and, in
October 2015, Plaintiff brought his Vehicle to the dealership
where he purchased the Vehicle, to service the problem.
(Id. ¶ 52-53). After being contacted by
Plaintiff's dealership, Defendant allegedly proposed two
repairs costing between $800 to $900, and neither was
guaranteed to fix the Defect. (Id.). Plaintiff
claims that the dealership informed him that Defendant knew
of the Defect but had no means to fix it. (Id.
¶ 84). Plaintiff alleges that he did not elect to
attempt to repair the Defect because neither repair was
guaranteed. (Id. ¶¶ 53, 106). As a result,
Plaintiff claims to have suffered loss of use and diminished
value in his Vehicle. (Id. ¶ 55.)
acknowledges that the Warranty had already expired when he
brought the Vehicle into the dealership for service.
(Id. ¶¶ 53, 58, 89). Plaintiff alleges
that the Warranty is procedurally and substantively
unconscionable. (Id. ¶¶ 59-63.) Plaintiff
alleges that at the time he purchased his Vehicle, Defendant
knew of the Defect because: (1) Ford's internal testing
systems likely demonstrated the Defect since before the first
vehicles were sold in 2010; and (2) Ford has received
numerous complaints on the issue in 2011 and 2012, prior to
the time that Plaintiff purchased the Vehicle. (Id.
¶¶ 22-30; 61-62.) Defendant also issued two
Technical Service Bulletins (“TSB”) in December
2012 and July 2014 in response to customers' complaints
of an exhaust odor in the passenger compartments of vehicles.
(Id. ¶¶ 32, 33). According to Plaintiff,
both TSBs failed to disclose that the exhaust odor included
carbon monoxide and failed to provide a specific and
effective fix to the exhaust fumes problem. (Id.
¶¶ 35, 37).
FAC, Plaintiff alleges the following: (Count I) breach of
express warranty; (Count II) violations of the Magnuson-Moss
Warranty Act; (Count III) violations of the Illinois Uniform
Deceptive Trade Practices Act (“IUDTPA”); (Count
IV) violations of the Illinois Consumer Fraud and Deceptive
Business Practices Act (“ICFA”); and (Count V)
12(b)(6) permits a defendant to move to dismiss a complaint
for “failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, a complaint must allege “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555). However,
plaintiffs are not required to “plead the elements of a
cause of action along with facts supporting each
element.” Runnion ex rel. Runnion v. Girl Scouts of
Greater Chicago & Nw. Indiana, 786 F.3d 510, 517
(7th Cir. 2015). Rather, the complaint must provide a
defendant “with ‘fair notice' of the claim
and its basis.” Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed.R.Civ.P. 8(a)(2)
and Twombly, 550 U.S. at 555). When evaluating a
Rule 12(b)(6) motion, the court accepts the complaint's
well-pleaded factual allegations as true and draws all
reasonable inferences in the plaintiff's favor.
Twombly, 550 U.S. at 555-56.
argues that the FAC should be dismissed for failure to state
a claim upon which relief can be granted. Defendant argues
that Count I of the Complaint (breach of express warranty)
should be dismissed because Plaintiff's Warranty expired
and that if Count I fails, Count II (violation of
Magnuson-Moss Warranty Act) also fails. Defendant argues that
Count III (violation of IUDTPA) should be dismissed because
Plaintiff does not demonstrate a plausible likelihood of
future harm. With respect to Count IV (violation of ICFA),
Defendant argues it should be dismissed because Plaintiff
does not plead that he received a communication from Ford
that omitted material information prior to purchasing his
Vehicle. Finally, Defendant argues that Count V (common-law
fraud) should be dismissed because Plaintiff failed to plead
in accordance with the requirements of Federal Rule of Civil
I (Breach of ...