Kw Schramek Trucking v. Cummins, Inc.

MOTION to Dismiss for Lack of Jurisdiction

D.N.J.February 1, 2017

Kurt M. Mullen, Esq. W. Scott O’Connell, Esq. (pro hac vice forthcoming) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 Telephone: (617) 345-1000 J. A. “Jay” Felton (pro hac vice forthcoming) Kevin M. Kuhlman (pro hac vice forthcoming) Lathrop & Gage LLP 2345 Grand Boulevard, Suite 2800 Kansas City, MO 64108 Telephone: (816) 292-2000 Attorneys for Defendant Cummins Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY KW SCHRAMEK TRUCKING, Plaintiff, vs. CUMMINS, INC., Defendant. : : : : : : : : : : : Civil Action No. 2:17-cv-00309 (WHW) (CLW) NOTICE OF CUMMINS INC.’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(2) AND 12(b)(6) AND MOTION TO STRIKE TO: ALL COUNSEL IN THE CAPTIONED MATTER: PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law and all prior pleadings and proceedings herein, defendant Cummins Inc. (“Cummins”) will move this Court before the Honorable District Court Judge William H. Walls, at the United States District Court for the District of New Jersey, Martin Luther King, Jr. U.S. Courthouse and Federal Building, 50 Walnut Street, Room 4015, Newark, New Jersey, on March 6, 2017, for an Order granting Cummins’ motion to dismiss plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6), to strike plaintiff’s class allegations, and for such other and further relief as the Case 2:17-cv-00309-WHW-CLW Document 4 Filed 02/01/17 Page 1 of 3 PageID: 40 - 2 - Court deems just and proper. Cummins will rely upon a Memorandum of Law in support of its Motion. A proposed form Order is also submitted herewith. PLEASE TAKE FURTHER NOTICE that Cummins requests oral argument regarding the Motion. PLEASE TAKE FURTHER NOTICE that plaintiff must serve its opposition to Cummins’ Motion, if any, upon the undersigned counsel. Respectfully submitted, /s/ Kurt M. Mullen Kurt M. Mullen, Esq. W. Scott O’Connell, Esq. (pro hac vice forthcoming) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 Telephone: (617) 345-1000 kmullen@nixonpeabody.com sgoldblatt@nixonpeabody.com soconnell@nixonpeabody.com J. A. “Jay” Felton (pro hac vice forthcoming) Kevin M. Kuhlman (pro hac vice forthcoming) Lathrop & Gage LLP 2345 Grand Boulevard, Suite 2800 Kansas City, MO 64108 Telephone: (816) 292-2000 Counsel for Defendant Cummins Inc. Case 2:17-cv-00309-WHW-CLW Document 4 Filed 02/01/17 Page 2 of 3 PageID: 41 - 3 - CERTIFICATE OF SERVICE I hereby certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing on all counsel of record. /s/ Kurt M. Mullen An Attorney for Defendant Case 2:17-cv-00309-WHW-CLW Document 4 Filed 02/01/17 Page 3 of 3 PageID: 42 4813-3364-7681.1 Kurt M. Mullen, Esq. W. Scott O’Connell, Esq. (pro hac vice forthcoming) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 Telephone: (617) 345-1000 J. A. “Jay” Felton (pro hac vice forthcoming) Kevin M. Kuhlman (pro hac vice forthcoming) Lathrop & Gage LLP 2345 Grand Boulevard, Suite 2800 Kansas City, MO 64108 Telephone: (816) 292-2000 Attorneys for Defendant Cummins Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY KW SCHRAMEK TRUCKING, Plaintiff, vs. CUMMINS, INC., Defendant. : : : : : : : : : : : Civil Action No. 2:17-cv-00309 (WHW) (CLW) MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(2) and 12(b)(6) AND MOTION TO STRIKE Return Date: March 6, 2017 Oral Argument Requested Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 1 of 22 PageID: 43 4813-3364-7681.1 i TABLE OF CONTENTS I. PRELIMINARY STATEMENT .................................................................. 1 A. PLAINTIFF’S CLAIMS FAIL FOR LACK OF PERSONAL JURISDICTION OVER CUMMINS ................................................ 2 1. Plaintiff Must Make a Prima Facie Showing of Jurisdiction as to Each Claim. ....................................................................... 3 2. Plaintiff Cannot Establish Jurisdiction Over Cummins ....... 4 B. PLAINTIFF FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED ........................................................... 8 C. PLAINTIFF’S CLASS ALLEGATIONS SHOULD BE STRICKEN ........................................................................................ 11 1. Plaintiff is Not a Member of Either Class............................. 12 2. The Proposed Classes Include Individuals Who Lack Standing ................................................................................... 13 3. The Proposed Classes Include Individuals Whose Claims Are Not Governed by Pennsylvania or Utah Law ............... 14 II. CONCLUSION ............................................................................................ 15 Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 2 of 22 PageID: 44 4813-3364-7681.1 i TABLE OF AUTHORITIES Page(s) Cases Allen v. Wright, 468 U.S. 737 (1984) ............................................................................................ 14 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................... 8, 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .......................................................................................... 8, 9 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ............................................................................................ 15 Cagle v. Rubley, No. 3:14CV04-CSC, 2014 WL 5339314 (M.D. Ala. Oct. 20, 2014) ................... 9 Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141 (3d Cir. 1992) ................................................................................. 3 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ........................................................................................ 3, 5 DeMaria v. Nissan North Am., Inc., 2016 WL 374145 (N.D. Ill. Feb. 1, 2016) ........................................................ 7, 8 E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395 (1977) ........................................................................................ 2, 12 e-LYNXX Corp. v. InnerWorkings, Inc., No. 1-10-CV-02535, 2011 WL 3608642 (M.D. Pa. July 26, 2011) ..................... 9 Eisai Co. v. Teva Pharm. USA, Inc., 629 F.Supp.2d 416 (D.N.J.2009) ........................................................................ 12 Fairman v. Harper, No. 09-CV-741-BBC, 2010 WL 446458 (W.D. Wis. Feb. 2, 2010) .................. 10 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) .......................................................................................... 3, 5 Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 3 of 22 PageID: 45 4813-3364-7681.1 ii Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) .............................................................................................. 6 Idenix Pharm., Inc. v. Gilead Scis., Inc., 2014 WL 4222902 (D. Del. Aug. 25, 2014) ....................................................... 10 Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) .............................................................................................. 3 Jakks Pac., Inc. v. Conte, No. 11-479 ES, 2011 WL 6934856 (D.N.J. Dec. 30, 2011) ................................. 4 John v. Nat'l Sec. Fire and Cas. Co., 501 F.3d 443 (5th Cir.2007) ............................................................................... 11 Johnson v. Maynard, No. CIV.A. 11-4677 RMB, 2013 WL 6865584 (D.N.J. Dec. 23, 2013) ..................................................................................................................... 9 Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72 (3d Cir.2011) .................................................................................. 11 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ............................................................................................ 14 North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687 (3d Cir. 1990) ................................................................................. 6 O’Conor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312 (3d Cir. 2007) ................................................................................. 3 Plustwik v. VOSS of Norway ASA, 559 Fed. Appx. 785 (10th Cir. 2014) .................................................................. 11 Rapid Models & Prototypes, Inc. v. Innovated Sols., 71 F. Supp. 3d 492, 500-01 (D.N.J. 2014) ......................................................... 10 Remick v. Manfredy, 238 F.3d 248 (3d Cir. 2007) ............................................................................. 4, 6 Rink v. Cheminova, Inc., 203 F.R.D. 648 (M.D. Fla. 2001) ....................................................................... 13 Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 4 of 22 PageID: 46 4813-3364-7681.1 iii Smith v. Spina, 477 F.2d 1140 (3d Cir. 1973) ........................................................................... 4, 6 Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003) ................................................................................. 4 Walden v. Fiore, 134 S. Ct. 1115 (2014) .......................................................................................... 3 Yurcic v. Purdue Pharma, L.P., 343 F. Supp. 2d 386 (M.D. Pa. 2004) ................................................................. 11 Statutes Utah Code Ann. § 70A-2-313 .................................................................................. 11 Other Authorities Fed. R. Civ. P. 23(a)................................................................................................. 13 Fed. R. Civ. P. 8(a).................................................................................................... 8 Fed. R. Civ. P. 8(a)(1) ............................................................................................ 3, 6 Fed. R. Civ. P. 23 .................................................................................................... 11 Fed. R. Civ. P. 8 ................................................................................................... 9, 10 Fed. R. Civ. P. 12(b)(2) .............................................................................................. 2 Fed. R. Civ. P. 12(b)(6) ......................................................................................... 2, 8 Fed. R. Civ. P. 12(f) ............................................................................................. 2, 11 N.J. Ct. R. 4:4-4 ......................................................................................................... 3 Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 5 of 22 PageID: 47 4813-3364-7681.1 1 Defendant Cummins Inc. (“Cummins”) respectfully submits this Memorandum of Law in support of its Motion to Dismiss Plaintiff’s Class Action Complaint (“the Complaint”) (Dkt. No. 1) pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). I. PRELIMINARY STATEMENT Plaintiff is a Colorado corporation which purchased tractors in Pennsylvania and Utah for use in its Colorado-based business. Compl. ¶¶ 1, 33. Plaintiff claims the tractors did not perform as expected due to issues with Cummins-made engines. See generally id. ¶¶ 34-38. Based on the alleged shortcomings in the tractors and their engines, Plaintiff asserts breach of warranty claims arising under the laws of Pennsylvania and Utah and seek to bring these claims on behalf of a putative class. Plaintiff has not alleged any facts suggesting Cummins is subject to jurisdiction in New Jersey. None of the claims are even remotely associated with any New Jersey-related activities by Cummins. Strikingly, the name “New Jersey” is only found in Paragraph 6 of the Complaint and phrase “this District” only in Paragraph 5. The Complaint is devoid of allegations associating this lawsuit with Cummins’ conduct in New Jersey. As recent U.S. Supreme Court decisions make clear, Plaintiff cannot establish general jurisdiction over Cummins. Plaintiff also cannot establish specific jurisdiction because these out-of-state claims do not arise Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 6 of 22 PageID: 48 4813-3364-7681.1 2 out of Cummins’ conduct in New Jersey. The claims must be dismissed under Rule 12(b)(2). In the event this Court looks beyond the fatal jurisdictional flaw, certain aspects of this Complaint should be dismissed under Rule 12(b)(6), or should be struck from the Complaint. First, the Complaint attempts to assert claims against Cummins with respect to model year engines that Plaintiff does not claim to have purchased. Any claim associated with engines Plaintiff did not purchase should be dismissed or struck from the Complaint. In addition, Plaintiff’s class allegations should be struck from the Complaint because Plaintiff is not a member of either proposed class. Because the classes could not be certified as alleged, no matter how much discovery occurs, the class allegations should be struck pursuant to Rule 12(f). E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (noting longstanding requirement that “a class representative must be part of the class…”). A. PLAINTIFF’S CLAIMS FAIL FOR LACK OF PERSONAL JURISDICTION OVER CUMMINS The Complaint purports to bring Cummins into this District due to vague allegations of general conduct in the forum. These allegations are devoid of any facts supporting jurisdiction in this court for the claims. Thus, the Complaint should be dismissed. Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 7 of 22 PageID: 49 4813-3364-7681.1 3 1. Plaintiff Must Make a Prima Facie Showing of Jurisdiction as to Each Claim. Plaintiff brings this case under diversity jurisdiction. Compl. ¶ 4. A federal court sitting in diversity “typically exercises personal jurisdiction according to the law of the state where it sits.” O’Conor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007) (citing Fed. R. Civ. P. 4(k)). The New Jersey long-arm rule extends to the limits of the Fourteenth Amendment Due Process Clause. See N.J. Ct. R. 4:4-4; Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 145 (3d Cir. 1992). To satisfy the Due Process Clause, a court may exercise personal jurisdiction over a nonresident defendant if that defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted). Depending on the type of minimum contacts, personal jurisdiction can be specific or general. See generally Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014); Walden v. Fiore, 134 S. Ct. 1115, 1121 n. 6 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923-24 (2011). Federal Rule of Civil Procedure 8(a)(1) requires plaintiff provide a “short and plain statement of the grounds for the court’s jurisdiction…” “It is incumbent upon the plaintiff properly to allege the jurisdictional facts, according to the nature of the case. . . . He must allege in his pleadings the facts essential to show Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 8 of 22 PageID: 50 4813-3364-7681.1 4 jurisdiction.” Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir. 1973) (quoting McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182 (1936)). When facing a Motion to Dismiss based on the lack of jurisdiction, “the plaintiff bears the burden of demonstrating facts that support personal jurisdiction.” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003). “The plaintiff may not rely on the bare pleadings alone in order to withstand the defendant’s “motion, but instead “must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence.” Jakks Pac., Inc. v. Conte, No. 11-479 ES, 2011 WL 6934856, at *2 (D.N.J. Dec. 30, 2011) (citing Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984)). Where, as here, there are multiple claims arising from differing conduct occurring in different states, each claim must be analyzed independently to determine if there is personal jurisdiction over the defendant with respect to each claim. Remick v. Manfredy, 238 F.3d 248, 255-56 (3d Cir. 2007). 2. Plaintiff Cannot Establish Jurisdiction Over Cummins Plaintiff has not pleaded sufficient facts to establish personal jurisdiction over Cummins in New Jersey. Neither general nor specific jurisdiction exists. Cummins is not subject to general jurisdiction in New Jersey such that it should be required to respond to a lawsuit in New Jersey unrelated to its activities in this District. These claims also do not arise out of Cummins’ activities in the forum. Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 9 of 22 PageID: 51 4813-3364-7681.1 5 First, general jurisdiction does not exist over Cummins in New Jersey. General jurisdiction is only appropriate where a corporate defendant is “at home.” Daimler, 134 S. Ct. at 760. A corporation is generally held to be “home” where it has its “place of incorporation and principal place of business.” Id. Finding a corporation at “home” in every state in which it engages in substantial, continuous, and systematic business would be “unacceptably grasping.” Id. at 761. The Supreme Court has made clear that “[a]corporation’s ‘continuous activity of some sorts within a state . . . is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” Goodyear, 564 U.S. at 927 (quoting Int'l Shoe, 326 U.S. at 318). As Plaintiff acknowledges in the Complaint, Cummins is an Indiana corporation with its principal place of business in Indiana and is, thus, a citizen and resident of Indiana. Compl. ¶ 2. In an attempt to assert jurisdiction over Cummins in New Jersey, Plaintiff makes unsupported boilerplate allegations. Without any factual support, Plaintiff alleges Cummins “intentionally and purposefully placed the engines at issue herein into the stream of commerce within New Jersey…” Compl. ¶ 6. The closest Plaintiff gets to connecting its claims to New Jersey is alleging Cummins received revenue and profits from the sales of the engines at issue in New Jersey. Compl. ¶ 5. Undermining these allegations is the fact Plaintiff purchased its vehicles in Pennsylvania and Utah “for use in its Colorado-based business.” Compl. ¶ 33. Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 10 of 22 PageID: 52 4813-3364-7681.1 6 Plaintiff also alleges Cummins “maintains regular and systematic contacts with New Jersey and regularly does business within New Jersey.” Compl. ¶ 6. No facts are put forth regarding this alleged business activities. In the absence of facts underpinning Plaintiff’s allegation, jurisdiction is not established. See Fed. R. Civ. P. 8(a)(1); Smith, 477 F.2d at 1143. Put simply, the Complaint does not support the exercise of general jurisdiction over Cummins in New Jersey. Second, specific jurisdiction is lacking with respect to Plaintiff’s claims. “Specific jurisdiction is invoked when the cause of action arises from the defendant’s forum related activities.” North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 690 (3d Cir. 1990); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). Specific jurisdiction must be assessed claim-by-claim. Given general jurisdiction may not be exercised over Cummins, any claim not arising out of Cummins’ in-forum conduct must be dismissed. See id.; see also Remick, 238 F.3d at 255-56. Fatally for the Complaint, none of the claims arise from Cummins’ conduct in New Jersey. Plaintiff is a citizen and resident of Colorado. Compl. ¶1. There are no allegations suggesting that any of Plaintiff’s claims have anything to do with Cummins’ conduct in New Jersey. Plaintiff does not claim Cummins’ conduct in New Jersey caused it any harm whatsoever. The only causes of action purport to arise under Pennsylvania and Utah law based on purchases in those states. There is Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 11 of 22 PageID: 53 4813-3364-7681.1 7 no basis for subjecting Cummins to a lawsuit in New Jersey by an out-of-state plaintiff or the putative class members whom it seeks to represent. The analysis in DeMaria v. Nissan North Am., Inc., 2016 WL 374145 (N.D. Ill. Feb. 1, 2016), is instructive. In DeMaria, an Illinois plaintiff alleged a breach of warranty occurred in Illinois. Id. at 1. The plaintiff sought to represent a nationwide class of consumers, and purported to join parties from various other states to represent putative subclasses for claims arising elsewhere. Id. As here, all of the out-of-state claims stemmed from conduct occurring outside the forum state. See id. at*3-*4. The defendant challenged jurisdiction over the out-of-state claims. Applying the Supreme Court’s evolving jurisdictional standards, the DeMaria court concluded it lacked personal jurisdiction over the non-resident plaintiffs and claims without nexus to the forum because there was neither general nor specific jurisdiction. Id. at *5-8. As in our case, the DeMaria plaintiffs alleged personal jurisdiction existed because of broad statements regarding the defendant’s business activities; the plaintiffs alleged the defendant was registered to conduct business in Illinois, availed itself of the Illinois market, and manufactured, marketed, and distributed goods in the United States. Id. at *7. The court concluded these allegations did not support jurisdiction for any non-Illinois claims. Id. Here too, this Court and the New Jersey residents who may be called to serve as jurors have no business deciding controversies between parties that have no nexus with this Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 12 of 22 PageID: 54 4813-3364-7681.1 8 state. This Court should follow the DeMaria court’s reasoning and dismiss Plaintiff’s claims. B. PLAINTIFF FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED To the extent this Court looks beyond the fatal jurisdictional flaw, it should dismiss any claim associated with model year engines the Plaintiff did not purchase. Federal Rule of Civil Procedure 8(a) requires a complaint include a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the Rule is to give a defendant fair notice of the claim and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For a complaint to survive a motion to dismiss under Rule 12(b)(6), its facts, accepted as true, must state a claim to relief that is plausible on its face. See id. at 570. Facial plausibility requires a plaintiff to do more than simply state legal conclusions or recite the elements of a cause of action in boilerplate fashion. See id. at 555. Factual allegations must be sufficient to “raise a right to relief above the speculative level.” Id. The Court need not credit bare legal conclusions unsupported by factual underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). Here, Plaintiff makes the vague allegation that “Cummins and its partner, PACCAR, designed, manufactured, marketed, assembled and sold 2010 and later Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 13 of 22 PageID: 55 4813-3364-7681.1 9 model year Heavy Duty on Highway Diesel vehicles powered by the Cummins ISX15 diesel engine (“Subject Engines”).” See Complaint, Dkt. 1, ¶ 9. The Complaint, however, does not contain sufficient facts to state an actionable claim against Cummins with respect to any “later model year” Cummins engine. Plaintiff does not claim it purchased a “later model year” engine. 1 Plaintiff does not claim any failures of a “later model year” engine, or that Cummins breached a warranty with respect to any “later model year” engine. Courts have, unequivocally, rejected allegations and claims that require guesswork as to their meaning or how they support a claim asserted by plaintiffs. See, e.g., Johnson v. Maynard, No. CIV.A. 11-4677 RMB, 2013 WL 6865584, at *5 (D.N.J. Dec. 23, 2013) (“As this Court has already explained, the pleading standard of Rule 8 is that detailed in Iqbal; thus, Plaintiff cannot plead his mere guesses or his self-serving deducements, speculations, bold conclusions, or mere elements of his claims . . . .”); Cagle v. Rubley, No. 3:14CV04-CSC, 2014 WL 5339314, at *2 (M.D. Ala. Oct. 20, 2014) (“[T]he amended complaint falls so far short of the requirements of Twombly and Iqbal that the court can only guess what factual averments are supposed to be associated with which causes of action.”); e- 1 Although not dispositive to this Motion, based on the identification numbers provided, and the warranty attached, it can be determined that Plaintiff’s tractors were powered by the 2010 Cummins ISX15. Dkt. 1, ¶¶ 23, 33 and exhibit attached to the Complaint as Exhibit A. Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 14 of 22 PageID: 56 4813-3364-7681.1 10 LYNXX Corp. v. InnerWorkings, Inc., No. 1-10-CV-02535, 2011 WL 3608642, at *7 (M.D. Pa. July 26, 2011), report and recommendation adopted, No. 1:10-CV- 2535, 2011 WL 3608609 (M.D. Pa. Aug. 16, 2011) (“Plaintiff must clearly allege facts and not leave defendants to guess at plaintiff’s meaning.”); Idenix Pharm., Inc. v. Gilead Scis., Inc., No. CV 13-1987-LPS, 2014 WL 4222902, at *7 (D. Del. Aug. 25, 2014) (Stating that in the absence of clarity to the meaning of certain facts in defendants Counterclaim, “Plaintiffs and the Court are left to guess as to what Counts 6, 8 and 10 are meant to put at issue and why. Twombly and Iqbal do not sanction the need for such guesswork.”); Fairman v. Harper, No. 09-CV-741- BBC, 2010 WL 446458, at *2 (W.D. Wis. Feb. 2, 2010) (“To satisfy Rule 8, plaintiff must include enough detail about what each defendant did to make his claim for relief more than guesswork.”) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff makes no specific claim that any warranty other than the warranty applicable to the 2010 Cummins ISX15 is relevant to their claims. Without facts alleging that any warranty statement related to any “later model year” engines exists or was breached, Plaintiffs’ breach of warranty claims are insufficient and should be dismissed. See Rapid Models & Prototypes, Inc. v. Innovated Sols., 71 F. Supp. 3d 492, 500-01 (D.N.J. 2014) (Plaintiffs “at no point have they provided [sufficient facts] to apprise Defendants or the Court of the source for their express Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 15 of 22 PageID: 57 4813-3364-7681.1 11 warranty claim. Defendants cannot defend against a claim for breach of an express warranty when Plaintiffs do not provide facts sufficient to identify the warranty that was allegedly breached.”); Yurcic v. Purdue Pharma, L.P., 343 F. Supp. 2d 386, 394 (M.D. Pa. 2004) (“A successful claim for breach of express warranty must plead [seller’s] statements, reliance on behalf of the consumer, which presumes an awareness of the warranty, and, finally, damages.”); Plustwik v. VOSS of Norway ASA, 559 Fed. Appx. 785, 786 (10th Cir. 2014) (plaintiff must establish the elements of § 70A-2-313 to bring a claim for breach of express warranty); Utah Code Ann. § 70A-2-313 (express warranty requires affirmation by seller, forming basis of bargain, that goods shall confirm to affirmation). C. PLAINTIFF’S CLASS ALLEGATIONS SHOULD BE STRICKEN Class allegations that fail to meet the requirements of Federal Rule of Civil Procedure 23 must be stricken and disregarded. Under Rule 12(f), a party move to strike from a pleading “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Where, as here, the Complaint itself demonstrates that “the requirements for maintaining a class action cannot be met,” a motion to strike class allegations may be granted. See Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 93 n. 30 (3d Cir.2011); John v. Nat'l Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir.2007) (“Where it is facially apparent from the pleadings that there is no ascertainable class, a district court may dismiss Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 16 of 22 PageID: 58 4813-3364-7681.1 12 the class allegation on the pleadings”). If “the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues,” the Court may also strike pleadings. Eisai Co. v. Teva Pharm. USA, Inc., 629 F.Supp.2d 416, 425 (D.N.J.2009) (external citation omitted). Plaintiff’s proposed Pennsylvania class purports to encompass: All persons and entities, in the Commonwealth of Pennsylvania, who are users, purchasers, subsequent purchasers, owners, subsequent owners, and lessors (having purchased a TRAC option or some rights to residual purchase of the vehicle at lease end) of a vehicle powered by a Subject Engine. Compl. ¶ 40(a). Similarly, the proposed Utah class purports to encompass: All persons and entities, in the State of Utah, who are users, purchasers, subsequent purchasers, owners, subsequent owners, and lessors (having purchased a TRAC option or some rights to residual purchase of the vehicle at lease end) of a vehicle powered by a Subject Engine. Id. ¶ 40(a). These definitions are facially deficient and must be stricken. 1. Plaintiff is Not a Member of Either Class The proposed classes must be stricken because Plaintiff is not a member of either class. It is axiomatic that “a class representative must be part of the class” in order to represent the class. E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977). Plaintiff boldly makes the statement that it is a “member and putative Class representative” of both the Pennsylvania and Utah classes. Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 17 of 22 PageID: 59 4813-3364-7681.1 13 Compl. ¶¶ 40(a), (b). Belying this statement is the Complaint’s first paragraph: “Plaintiff is a Colorado corporation with its principal place of business at 7395 Southmoor Drive, Fountain, Colorado, and, thus, is a citizen and resident of Colorado.” Id. ¶ 1. The proposed classes relate to persons and entities “in” the respective states. Id. ¶ 40. Plaintiff cannot be a member of either the Pennsylvania or Utah class when it is a citizen and resident of Colorado. Plaintiff does not make any allegation that it is “in” Pennsylvania or Utah. It only alleges it purchased used tractors in the two states for use in its Colorado-based business. Id. ¶ 33. This is not a sufficient connection to establish Plaintiff is “in” the states it purports to represent. Plaintiff has not adequately alleged it is a member of either class and, therefore, it cannot serve as the classes’ representative. Without a class representative, the proposed action fails as a matter of law. See Fed. R. Civ. P. 23(a) (class representative is a prerequisite to a class action). 2. The Proposed Classes Include Individuals Who Lack Standing Plaintiff’s proposed class definitions are not limited to those individuals or entities with potential claims against Cummins. Instead, the proposed definitions seek to include all users, purchasers, owners, and lessors of any vehicle whatsoever powered by a Cummins ISX 15 engine. Compl. ¶ 9, 30. Without restricting the proposed class in any meaningful way connected to the Complaint’s specific allegations, the definitions are unduly broad. See Rink v. Cheminova, Inc., 203 Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 18 of 22 PageID: 60 4813-3364-7681.1 14 F.R.D. 648, 666 (M.D. Fla. 2001) (denying class certification when proposed class included individuals who were not harmed by defendant’s chemical). Individuals who did not suffer any harm from a Cummins ISX 15 engine have no standing to sue for Plaintiff’s alleged warranty breaches related to a Cummins engine. Two essential elements of standing are that the “plaintiff must have suffered an ‘injury in fact’” and that the injury must be fairly traceable to the challenged action of the defendant. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984). The proposed class includes individuals who never suffered any “injury in fact” from the named engines, including drivers, financing companies, and entities whose engines never failed, to name a few. “[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan, 504 U.S. at 560. Plaintiff cannot confer standing on the proposed class members who did not suffer any injury due to a Cummins ISX 15 engine simply by including them in the class definition. By including individuals who lack standing, the proposed class definition is legally insufficient and must be stricken. 3. The Proposed Classes Include Individuals Whose Claims Are Not Governed by Pennsylvania or Utah Law The vague definition of the both classes includes putative plaintiffs whose claims are not actually governed by the law in those states. The definitions include “all persons and entities in” Pennsylvania or Utah. Compl. ¶ 40. Clearly, just Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 19 of 22 PageID: 61 4813-3364-7681.1 15 because someone is present in Pennsylvania or Utah today does not determine if their warranty claims should be governed by the laws of those states. A State may not punish a defendant “for conduct that was lawful where it occurred and that had no impact” on the state’s residents. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 573 (1996). To sufficiently identify the individuals over whom any particular state’s law governs the Complaint must allege much more. The proposed definitions are not tied to states where any alleged injury occurred, where the engines were purchased, locations where any repairs were attempted, or any other meaningful connection to the geographic boundary of the classes. Facts such as these are necessary in order to ascertain if the proposed states’ laws actually apply to putative plaintiffs’ claims. As drafted, the proposed definitions encompass persons and entities over which neither Pennsylvania nor Utah law governs; the definitions should be struck from the Complaint. II. CONCLUSION For the foregoing reasons, this Court should dismiss Plaintiff’s Complaint. Dated: February 1, 2017 Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 20 of 22 PageID: 62 4813-3364-7681.1 16 Respectfully submitted, /s/ Kurt M. Mullen Kurt M. Mullen, Esq. W. Scott O’Connell, Esq. (pro hac vice forthcoming) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 Telephone: (617) 345-1000 kmullen@nixonpeabody.com sgoldblatt@nixonpeabody.com soconnell@nixonpeabody.com J. A. “Jay” Felton (pro hac vice forthcoming) Kevin M. Kuhlman (pro hac vice forthcoming) Lathrop & Gage LLP 2345 Grand Boulevard, Suite 2800 Kansas City, MO 64108 Telephone: (816) 292-2000 Counsel for Defendant Cummins Inc. Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 21 of 22 PageID: 63 4813-3364-7681.1 17 CERTIFICATE OF SERVICE I hereby certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing on all counsel of record. /s/ Kurt M. Mullen An Attorney for Defendant Case 2:17-cv-00309-WHW-CLW Document 4-1 Filed 02/01/17 Page 22 of 22 PageID: 64 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY KW SCHRAMEK TRUCKING, Plaintiff, vs. CUMMINS, INC., Defendant. : : : : : : : : : : : Civil Action No. 2:17-cv-00309 (WHW) (CLW) [PROPOSED] ORDER Defendant Cummins Inc. (“Cummins”), having moved this Court pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6) for an Order granting its Motion to Dismiss Plaintiff’s Complaint, and alternatively for an Order pursuant to Fed. R. Civ. P. 12(f) striking the Complaint’s class allegations, and said matter having come before the Court to be heard, and Upon consideration of the papers submitted in support of and in opposition to said motion, and any oral argument, and good cause having been shown, it is by the Court this ____ day of ________________, 2017 Ordered, adjudged and decreed that the Court grants Cummins’ Motion to Dismiss Plaintiff’s Complaint. SO ORDERED, ____________________________________ Hon. U.S.D.J. W. H. Walls Case 2:17-cv-00309-WHW-CLW Document 4-2 Filed 02/01/17 Page 1 of 1 PageID: 65