Faltermeier v. Fca US Llc

MOTION for summary judgment

W.D. Mo.August 19, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION DAVID FALTERMEIER, on behalf of ) himself and all others similarly situated, ) ) Plaintiff, ) ) Case No. 4:15-cv-00491-DGK vs. ) ) FCA US LLC, ) ) Defendant. ) __________________________________________________ FCA US LLC’S MOTION FOR SUMMARY JUDGMENT __________________________________________________ THOMPSON COBURN LLP Kathy A. Wisniewski kwisniewski@thompsoncoburn.com Sharon B. Rosenberg srosenberg@thompsoncoburn.com Stephen A. D’Aunoy sdaunoy@thompsoncoburn.com One US Bank Plaza St. Louis, Missouri 63101 Telephone: (314) 552-6000 Facsimile: (314) 552-7000 Attorneys for FCA US LLC Case 4:15-cv-00491-DGK Document 132 Filed 08/19/16 Page 1 of 4 1 COMES NOW DEFENDANT FCA US LLC and moves pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.1 for summary judgment on Plaintiff’s claim, which is brought under the Missouri Merchandising Practices Act (“MMPA”). FCA US states as follows in support of its motion and submits herewith its supporting memorandum and statement of facts pursuant to Local Rule 56.1(a): 1. Plaintiff David Faltermeier’s sole claim in this case is that FCA US violated the MMPA by affirmatively misrepresenting the safety of the fuel tank in his Jeep vehicle during the course of an investigation by NHTSA and related recall proceedings. But, according to Faltermeier’s own deposition testimony and admissions, he never saw a single statement by FCA US prior to his purchase of a 2003 Jeep Liberty. 2. To prove a “misrepresentation” claim under the MMPA, Faltermeier must present evidence showing that (1) FCA US made affirmative statements constituting “misrepresentations” or “deception,” (2) “in connection with the sale or advertisement” of his vehicle, and that (3) he incurred an “ascertainable loss” (4) “as a result.” See Toben v. Bridgestone Retail Operations, LLC, 2013 WL 5406463, **1–2 (E.D.Mo. 2013), aff’d, 751 F.3d 888 (8th Cir. 2014); Wivell v. Wells Fargo Bank, N.A., 2015 WL 7259836, *3 (W.D.Mo. 2015). 3. Faltermeier cannot meet any element of his claim. 4. The statements on which Faltermeier premises his MMPA claim are not actionable and are not, as a matter of law, “misrepresentations” or “deceptions.” a. First, by his own admission, no person could be deceived or misled by any of the articles he read because those articles told both FCA US’s and NHTSA’s competing viewpoints. See Statement of Facts (“SOF”) ## 16, 18, 19, 21, 22. b. Second, the statements at issue are simply non-actionable puffing in any case. Case 4:15-cv-00491-DGK Document 132 Filed 08/19/16 Page 2 of 4 2 See, e.g., Budach v. NIBCO, Inc., 2015 WL 3853298, *7 (W.D.Mo. 2015). c. Third, Faltermeier admits that all of the statements underlying his claim were made in relation to an investigation by a federal government agency, and thus are protected, privileged communications See FAC, ¶¶ 3, 33-36; SOF ## 17, 20. 5. In addition, the MMPA declares acts unlawful only when they are committed in connection with the “sale or advertisement” of merchandise. Mo. Rev. Stat. § 407.020.1. Thus, a false or misleading statement made after a sale does not support an MMPA claim. See, e.g., Wivell v. Wells Fargo Bank, N.A., 773 F.3d 887, 895 (8th Cir. 2014). 6. FCA US is further entitled to summary judgment for the separate and independent reason that there is absolutely no evidence that Faltermeier suffered “an ascertainable loss of money or property,” as required for an MMPA claim. See Mo. Rev. Stat. § 407.025.1. a. There is no evidence of any out-of-pocket loss or any “benefit of the bargain” damages, and further Faltermeier has always intended to, and still intends to, keep his Jeep Liberty vehicle for its entire useful life. SOF # 28. b. For this same reason, Faltermeier fails to meet the Article III standing requirement of an “injury in fact.” U.S. Const. art. III, § 2; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 7. Moreover, the “MMPA demands a causal connection between the ascertainable loss and the unfair or deceptive merchandising practice.” Owen v. Gen. Motors Corp., 533 F.3d 913, 922 (8th Cir. 2008). Even assuming that Faltermeier had some “ascertainable loss,” the requisite causal connection is missing because Faltermeier admits that prior to purchasing his Liberty vehicle he never saw or heard anything FCA US said or did. SOF ## 8, 9, 13. 8. Finally, a bankruptcy court sale order bars Faltermeier’s claim because it is, at Case 4:15-cv-00491-DGK Document 132 Filed 08/19/16 Page 3 of 4 3 bottom, a product defect claim. Claims against FCA US related to the design and manufacture of Faltermeier’s Liberty vehicle are barred by a valid and enforceable Bankruptcy Court Sale Order. See In re Old Carco LLC (f/k/a Chrysler LLC), Case No. 09-50002 (Bankr. S.D.N.Y.), June 10, 2009 Sale Order, at ¶¶ 12-13, 35. Faltermeier testified that his only complaint against FCA US is “that the fuel tank in the Jeep Liberty is defective” in its “design and placement.” SOF # 39. WHEREFORE, FCA US respectfully requests that this Court grant its motion for summary judgment and dismiss Faltermeier’s First Amended Complaint with prejudice. THOMPSON COBURN LLP By: /s/ Sharon B. Rosenberg Kathy A. Wisniewski, MO #38716 kwisniewski@thompsoncoburn.com Sharon B. Rosenberg, MO #54598 srosenberg@thompsoncoburn.com Stephen A. D’Aunoy, MO #54961 sdaunoy@thompsoncoburn.com One US Bank Plaza St. Louis, Missouri 63101 (314) 552-6000 (314) 552-7000 (fax) Attorneys for Defendant FCA US LLC CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 19th day of August, 2016, a true copy of the foregoing was filed electronically with the Clerk of the Court to be served via operation of the Court’s electronic filing system upon the following: Christopher S. Shank David L. Heinemann Stephen J. Moore SHANK & HAMILTON, P.C. 2345 Grand Blvd., Suite 1600 Kansas City, Missouri 64108 /s/ Sharon B. Rosenberg Case 4:15-cv-00491-DGK Document 132 Filed 08/19/16 Page 4 of 4