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.
OPINION AND ORDER
L. ELLIS, UNITED STATES DISTRICT JUDGE
David Schiesser brings this putative class action against
Defendant Ford Motor Company (“Ford”), alleging
that certain Ford vehicles have a defect that allows harmful
exhaust gases to enter the passenger compartment of the
vehicles. The Court previously dismissed Schiesser's
first amended complaint. Doc. 44. In his second amended
complaint (“SAC”), Schiesser brings claims for
breach of express warranty, common law fraud, and violation
of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301
et seq., the Illinois Uniform Deceptive Trade
Practices Act (“UDTPA”), 815 Ill. Comp. Stat.
510/1 et seq., and the Illinois Consumer Fraud and
Deceptive Business Practices Act (“ICFA”), 815
Ill. Comp. Stat. 505/1 et seq. Ford moves to dismiss
the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6).
Because the Court agrees with Ford that Schiesser has failed
to correct the deficiencies identified by the Court in
dismissing the first amended complaint and that preemption
and comity concerns prevent the Court from adjudicating
Schiesser's UDTPA claim, the Court dismisses the SAC with
represents that its vehicles are “best-in-class”
that “lead in quality, fuel efficiency, safety, smart
design and value.” Doc. 46 ¶ 56 (quoting
Ford's 2011 Annual Report). But despite this general
representation, its Ford Explorer vehicles have experienced
exhaust odor issues stemming from an alleged design defect
that causes carbon monoxide to enter the passenger
compartment of the vehicle. In December 2012, Ford began
issuing Technical Service Bulletins (“TSBs”)
acknowledging exhaust odor in the cabins of some Ford
Explorer models (the “Defect”). The TSBs describe
the issue as merely an “unpleasant odor, ” when,
in reality, the exhaust seeping into the cabin contains
carbon monoxide. Id. ¶ 10. The TSBs include
instructions on correcting the exhaust odor, although the
proposed fixes do not effectively remedy the Defect. Ford
provided the TSBs to authorized dealerships, but not to
non-Ford automotive repair facilities. Ford also did not
disclose these TSBs to its customers.
learned of the Defect before issuing the December 2012 TSB
from Ford customers posting about the problem in online
discussion forums. In response to customer complaints on such
online forums, for example, in July 2011, an “Official
Ford Rep” offered to help customers by escalating their
problems concerning exhaust odors and arranging for Ford
representatives to contact the customers. Id.
¶¶ 24-27. Ford also responded to customer
complaints by letter in March 2014, noting that it had
“performed several inspections and sealing actions . .
. to help minimize the amount of odor coming into the
passenger compartment” but that the customer “may
still experience odor under certain driving conditions such
as, when performing wide open throttle (WOT) accelerations
with the climate control system in recirculation mode.”
Id. ¶ 32.
purchased a model year 2013 Ford Explorer (the
“Vehicle”) in June 2012 from Joe Rizza Ford in
Orland Park, Illinois. He purchased the Vehicle based on
Ford's reputation and believing the Vehicle to be safe.
The Vehicle came with a warranty, Ford's New Vehicle
Limited Warranty (the “Warranty”), limited to
three years from the date of purchase or 36, 000 miles. 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 affected by
August or September 2015, Schiesser began noticing exhaust
odor accumulating in the passenger cabin of his Vehicle. In
October 2015, Schiesser brought his Vehicle to the dealership
to service the problem. After being contacted by
Schiesser's dealership, Ford allegedly proposed two
repairs costing between $800 and $900 but could not guarantee
that either repair would fix the problem. Schiesser decided
not to incur the cost of repair because neither solution was
guaranteed to solve the problem.
National Highway Transportation Safety Administration
(“NHTSA”) began investigating the exhaust leak
issue in July 2016. Additionally, a federal district court in
Florida has preliminarily approved a nationwide settlement
addressing the same issues raised in this case, which
provides that Ford will issue a new TSB to address the
exhaust odor issue. See Sanchez-Knutson v. Ford Motor
Co., No. 14-61344-CIV, Doc. 434 (S.D. Fla. Nov. 18,
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion
to dismiss, the Court accepts as true all well-pleaded facts
in the plaintiff's complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). “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.” Iqbal, 556 U.S.
9(b) requires a party alleging fraud to “state with
particularity the circumstances constituting fraud.”
Fed.R.Civ.P. 9(b). This “ordinarily requires describing
the ‘who, what, when, where, and how' of the fraud,
although the exact level of particularity that is required
will necessarily differ based on the facts of the
case.” AnchorBank, 649 F.3d at 615 (citation
omitted). Rule 9(b) applies to “all averments of fraud,
not claims of fraud.” Borsellino v. Goldman Sachs
Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007). “A
claim that ‘sounds in fraud'- in other words, one
that is premised upon a course of fraudulent conduct-can
implicate Rule 9(b)'s heightened pleading
Breach of Express Warranty Claim (Count I)
state a claim for breach of express warranty, Schiesser
“must allege the terms of the warranty, the failure of
some warranted part, a demand upon the defendant to perform
under the warranty's terms, a failure by the defendant to
do so, compliance with the terms of the warranty by the
plaintiff, and damages measured by the terms of the
warranty.” In re Rust-Oleum Restore Mktg., Sales
Practices & Prods. Liab. Litig., 155 F.Supp.3d 772,
787 (N.D. Ill. 2016) (citations omitted) (internal quotation
marks omitted); Darne v. Ford Motor Co., No. 13 C
03594, 2015 WL 9259455, at *4-5 (N.D. Ill.Dec. 18, 2015).
Schiesser acknowledges that he brought his Vehicle to the
dealership for ...