Riaubia v. Hyundai Motor America

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.December 23, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOSHUA RIAUBIA, individually and for all persons similarly situated, Plaintiff, v. HYUNDAI MOTOR AMERICA, Defendant. CASE NO. 2:16-cv-05150-CDJ Oral Argument Requested HYUNDAI MOTOR AMERICA’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Hyundai Motor America hereby moves to dismiss the Plaintiff’s Class Action Complaint in the above-referenced action. In support of this Motion, Defendant relies upon their Memorandum of Law in Support of their Motion to Dismiss the Class Action Complaint and any attachments thereto, which are being filed contemporaneously with this Motion. Oral argument is also hereby requested. For all the reasons set forth in Defendant’s Memorandum in Support of their Motion to Dismiss the Class Action Complaint, Plaintiff’s Class Action Complaint should be dismissed. Respectfully submitted, BUCHANAN INGERSOLL & ROONEY, PC Dated: December 23, 2016 s/ Kenneth L. Racowski Kenneth L. Racowski Two Liberty Place 50 South 16th Street, Suite 3200 Philadelphia, Pennsylvania 19102 Telephone: 215.665.8700 kenneth.racowski@bipc.com Case 2:16-cv-05150-CDJ Document 10 Filed 12/23/16 Page 1 of 3 Christopher J. Dalton (Admitted Pro Hac Vice) Jacqueline M. Weyand (Admitted Pro Hac Vice) 550 Broad Street, Suite 810 Newark, New Jersey 07102 Telephone: 973.273.9800 christopher.dalton@bipc.com jacqueline.weyand@bipc.com Attorneys for Defendant Hyundai Motor America Case 2:16-cv-05150-CDJ Document 10 Filed 12/23/16 Page 2 of 3 CERTIFICATE OF SERVICE I, Kenneth L. Racowski, hereby certify that on December 23, 2016, I caused the foregoing to be electronically filed with the Clerk of the Court via CM/ECF. Notice of this filing will be sent by email to all parties by operation of the Court’s electronic filing system. Parties may access the filing through the Court’s CM/ECF System. s/ Kenneth L. Racowski Kenneth L. Racowski Case 2:16-cv-05150-CDJ Document 10 Filed 12/23/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOSHUA RIAUBIA, individually and for all persons similarly situated, Plaintiff, v. HYUNDAI MOTOR AMERICA, Defendant. CASE NO. 2:16-cv-05150-CDJ ______________________________________________________________________________ MEMORANDUM OF LAW IN SUPPORT OF HYUNDAI MOTOR AMERICA’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT ______________________________________________________________________________ Kenneth L. Racowski BUCHANAN INGERSOLL & ROONEY PC Two Liberty Place 50 South 16th Street, Suite 3200 Philadelphia, Pennsylvania 19102 215.665.8700 Christopher J. Dalton (Admitted Pro Hac Vice) Jacqueline M. Weyand (Admitted Pro Hac Vice) BUCHANAN INGERSOLL & ROONEY PC Incorporated in Pennsylvania 550 Broad Street, Suite 810 Newark, New Jersey 07102 973.273.9800 Attorneys for Defendant Hyundai Motor America Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 1 of 25 i TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................2 ARGUMENT ...................................................................................................................................3 I. TO SURVIVE DISMISSAL, THE PLAINTIFF MUST PLEAD FACTS THAT STATE A PLAUSIBLE CLAIM .........................................................................................3 II. PLAINTIFF LACKS STANDING TO PURSUE CLAIMS FOR VEHICLES HE DID NOT PURCHASE .......................................................................................................4 III. PLAITNIFF’S WARRANTY CLAIMS FAIL ....................................................................7 A. Plaintiff’s Claim for Breach of Implied Warranty of Merchantability Fails ..................................................................................................7 B. Plaintiff’s Claim for Breach of Express Warranty Fails .............................................8 C. The Magnusson-Moss Warranty Act Claims Fail as a Result of the Deficient Warranty Claims .......................................................................................10 IV. PLAINTIFF’S UNJUST ENRICHMENT CLAIM FAILS .................................................11 V. PLAINTIFF CANNOT PURSUE A NATIONWIDE CONSUMER-FRAUD CLASS ACTION UNDER CALIFORNIA LAW ..............................................................12 A. Plaintiff Cannot Invoke California Law ...................................................................12 B. California Law Cannot Be Applied Nationwide .......................................................16 CONCLUSION ..............................................................................................................................19 Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 2 of 25 ii TABLE OF AUTHORITIES Alin v. American Honda Motor Co., Inc., 2010 WL 1372308 (D.N.J. Mar. 31, 2010) ................................................................................ 8 Altronics of Bethlehem, Inc. v. Repco., Inc., 957 F.2d 1102 (3d Cir. 1992) ................................................................................................. 7, 9 AmerisourceBergen Drug Corp. v. Allscripts Healthcare, Inc., WL 3241356 (E.D. Pa. July 29, 2011) ..................................................................................... 12 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................................... 3 Beckermeyer v. AT&T Wireless and Panasonic Telecommunications Systems Company, 2003 WL 23005016 (Pa. Com. Pl. Ct. Dec. 3, 2003) ................................................................. 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................................... 3 Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012) ....................................................................................................... 4 BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) ................................................................................................................. 18 Cel-Tech Communications, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163 (1999) ............................................................................................................... 14 Chin v. Gen. Mills, Inc., 2013 WL 2420455 (D. Minn. June 3, 2013) .............................................................................. 6 ClubCom, Inc. v. Captive Media, Inc., 2009 WL 249446 (W.D. Pa. Jan. 31, 2009) ............................................................................. 15 Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663 (2006) .................................................................................................... 15 Cooper v. Samsung Elecs. Am., Inc., 374 Fed. Appx. 250 (3d Cir. 2010)..................................................................................... 11, 16 D’Amelio v. Blue Cross of Lehigh Valley, 606 A.2d 1215 (Pa. Super. 1992) ............................................................................................... 6 De Lage Landen Financial Services, Inc. v. Rasa Floors, LP, 269 F.R.D. 445 (2010) .............................................................................................................. 16 Diener Brick Co. v. Mastro Masonry Contractor, 885 A.2d 1034 (Pa. Super. Ct. 2005).................................................................................. 11, 12 Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 3 of 25 iii Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595 (S.D.N.Y. 1982) ............................................................................................. 8 Fishbein v. Corel Corp., 29 Pa. D. & C. 4th 289 (Pa. Com. Pl. Ct. 1996) .......................................................................... 6 Ford Motor Co. v. Fairley, 398 S. 2d 216 (Miss. 1981) ........................................................................................................ 8 Gall v. Allegheny County Health Dep’t., 555 A.2d 786 (Pa. 1989) ............................................................................................................. 7 Gratz v. Bollinger, 539 U.S. 244 (2003) ................................................................................................................... 4 Green v. Green Mountain Coffee Roasters, Inc., 279 F.R.D. 275 (D.N.J. 2011) .................................................................................................... 6 Greene v. BMW of North America, LLC, 2012 WL 5986457 (D.N.J. Nov. 28, 2012) ................................................................................ 7 Hammersmith v. TIG Ins. Co., 480 F.3d 220 (3d Cir. 2007) ..................................................................................................... 13 Hornberger v. General Motors Corp., 929 F. Supp. 884 (E.D. Pa. 1996) ........................................................................................... 7, 8 In re Mercedes-Benz Tele Aid Contract Litigation, 257 F.R.D. 46 (D.N.J. 2009) .................................................................................................... 17 In re Shop-Vac Marketing and Sales Practice Litig., 964 F.Supp. 2d 355 (M.D. Pa. 2013) ........................................................................................ 11 In re Toyota Motor Corp., 785 F.Supp. 2d 925 (C.D. Cal. 2011) ....................................................................................... 16 Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) ....................................................................................................... 3 Johns v. Bayer Corp., 2010 WL 476688 (S.D. Cal. Feb. 9, 2010) ................................................................................. 6 Kaneff v. Del. Title Loans, Inc., 587 F.3d 616 (3d Cir. 2009) ..................................................................................................... 12 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ................................................................................................... 14 Keller v. Volkswagen of America, Inc., 733 A.2d 642 (Pa. Super. Ct. 1999).......................................................................................... 15 Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 4 of 25 iv Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) ................................................................................................................. 12 Leonhart v. Nature’s Path Foods, Inc., 2014 WL 1338161 (N.D. Cal. Mar. 31, 2014) ........................................................................... 6 Lewis v. Casey, 418 U.S. 343 (1996) ................................................................................................................... 4 Lieberson v. Johnson & Johnson Consumer Cos., Inc., 856 F. Supp. 2d 529 (D.N.J. 2011) ............................................................................................. 6 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................................................................... 4 Lyon v. Caterpillar, Inc., 194 F.R.D. 206 (E.D. Pa. 2000) ............................................................................................... 18 Maniscalco v. Brother Int’l (USA) Corp., 709 F.3d (2005) ............................................................................................................ 16, 17, 18 Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012) ..................................................................................................... 18 Mitchell v. Moore, 729 A.2d 1200 (Pa. Super. Ct. 1999)........................................................................................ 11 Nagel v. Twin Labs., Inc., 109 Cal. App. 4th 39 (2003) ...................................................................................................... 15 Obesity Research Institute, LLC v. Fiber Research Int’l, LLC 165 F. Supp. 3d 937 (S.D. Cal. 2016) ...................................................................................... 14 P.V. v. Camp Jaycee, 197 N.J. 132 (2008) .................................................................................................................. 17 Pac. Emp’r Ins. Co. v. Global Reinsurance Corp. of Am., 693 F.3d 417 (3d Cir. 2012) ..................................................................................................... 12 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ................................................................................................................. 16 Pratt v. Winnebago Industries, Inc., 463 F. Supp. 709 (W.D. Pa. 1979) ........................................................................................... 10 Reilly v. Amy’s Kitchen, Inc., 2013 WL 9638985 (S.D. Fl. Dec. 9, 2013) ................................................................................ 6 Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644 (3d Cir. 1998) ....................................................................................................... 4 Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 5 of 25 v Rozmus v. Thompson’s Lincoln-Mercury Co., 224 A.2d 782 (Pa. Super. Ct. 1966).......................................................................................... 10 Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d (Pa. 2011) ...................................................................................................................... 9 Sessa v. Riegle, 427 F. Supp. 760 (E.D. Pa. 1977) ............................................................................................... 7 Sheris v. Nissan N.A., Inc., 2008 WL 2354908 (D.N.J. 2008) ............................................................................................... 8 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ..................................................................................................................... 4 Specialty Surfaces Int’l v. Cont’l Cas. Co., 609 F.3d 223 (3d Cir. 2010) ..................................................................................................... 13 Taliaferro v. Darby Twp. Zoning Board, 458 F.3d 181 (3d Cir. 2006) ....................................................................................................... 4 Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836 (Pa. Super. Ct. 1999)............................................................................................ 7 Villoresi v. Femminella, 856 A.2d 78 (Pa. Super. Ct. 2004)............................................................................................ 11 Wiernik v. PHH U.S. Mortgage Corp., 736 A.2d 616 (Pa. Super. Ct. 1999).......................................................................................... 11 Wright v. Ryobi Techs., Inc., 175 F. Supp. 3d 439 (E.D. Pa. 2016) .......................................................................................... 7 STATUTES Cal. Bus & Prof. Code §17500 .......................................................................................... 14 Cal. Civ. Code §1770(a) .................................................................................................... 15 Cal. Civ. Code §1783 ........................................................................................................ 15 N.J.S.A. 12A:2-314 ............................................................................................................. 7 Pa. C.S. §2314 ..................................................................................................................... 7 U.S.C.A. §§2303(a) ........................................................................................................... 10 U.S.C.A. §§2310(d)(1) ...................................................................................................... 10 RULES Fed. R. Civ. Pro. 12(b)(6) ................................................................................................ 1, 3 Fed. R. Civ. Pro. 23(b)(3) .......................................................................................... 8, 9, 10 Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 6 of 25 1 PRELIMINARY STATEMENT Defendant Hyundai Motor America (“HMA”) moves this court pursuant Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff Joshua Riaubia’s (“Plaintiff”) putative class action complaint (“CAC”), filed September 28, 2016. In August 2014, Plaintiff bought a new Hyundai Sonata Limited vehicle equipped with the smart trunk (“Smart Trunk”) feature, which automatically unlatches the trunk lid when the vehicle’s key fob is in the “proximity zone” behind the vehicle. Plaintiff alleges that the Smart Trunk did not open “wide enough”, requiring him to manually push open the trunk lid. As a result, Plaintiff has launched a putative nationwide class action accusing HMA of consumer fraud, breach of warranty, and unjust enrichment. Plaintiff’s claims fail. First, Plaintiff only purchased one type of make and model – the 2015 Sonata Limited. It is axiomatic that this single named plaintiff cannot bring claims based on any cars that he did not lease or purchase. So, as a threshold matter, all claims pertaining to vehicles other than the 2015 Sonata should be dismissed. Second, Plaintiff’s individual claims are without merit and should be dismissed. Plaintiff’s claims are actually undermined by his own allegations. In the CAC, Plaintiff acknowledges that the Smart Trunk feature actually opens the trunk. The only harm alleged is that it did not sufficiently open according to this particular purchaser’s subjective liking. Since the Smart Trunk does indeed work, Plaintiff is left with breach of warranty claims without an alleged breach. Under Pennsylvania law, as well as common sense, these allegations are insufficient to support any of the CAC’s consumer-fraud and other claims for relief. For this reason, Plaintiff’s consumer-fraud and implied- and express-warranty claims, along with their companion MMWA claims, should be dismissed. Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 7 of 25 2 Third, Plaintiff cannot bring an unjust enrichment or quasi-contract claim where an actual contract exists – as it does here. Finally, Plaintiff’s nationwide class-action allegations cannot stand, because as a resident of Pennsylvania, he cannot invoke California’s consumer-fraud laws based simply on HMA’s location there. Moreover, as discussed, Plaintiff cannot maintain a single-state class action under Pennsylvania law. Accordingly, Plaintiff’s class-action allegations should be dismissed in their entirety. FACTUAL BACKGROUND1 Plaintiff alleges that on August 8, 2014 he purchased a new 2015 Hyundai Sonata Limited automobile, which was designed and manufactured by Defendant, from an authorized dealer in Pennsylvania. (CAC, ¶¶ 9 & 92.) This vehicle came equipped with the Smart Trunk feature which automatically opens the vehicle trunk by standing behind the vehicle with the vehicle’s key fob in one’s hand, pocket, or purse – “no buttons on the key fob need to be pressed.” (Id. at ¶ 2.) Plaintiff does not contend that the Smart Trunk on his vehicle does not work; rather, Plaintiff alleges that the Smart Trunk was defectively designed and/or manufactured because the trunk did not open “wide enough” to Plaintiff’s desires. (Id. at ¶¶ 3-4, 101-102.) Plaintiff brought the vehicle to an authorized Hyundai service center in Pennsylvania, where repairs were made. (Id. at ¶¶105-112.) These repairs were covered under the manufacturer's 5 year/60,000 mile New Vehicle Limited Warranty (the “Warranty”). (Id. at ¶84.) Despite the repairs, Plaintiff alleges that the Smart Trunk failed to open as wide as he might have preferred. (Id. at ¶116.) Based on his experience, Plaintiff seeks to pursue claims for (1) Violation of the 1 Solely for the purposes of this motion to dismiss, HMA accepts as true the well-pled factual allegations in Plaintiff’s Complaint. Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 8 of 25 3 California Unfair Competition Law (“UCL”); (2) Violation of the California False Advertising Law (“FAL”); (3) Violation of the California Consumer Legal Remedies Act (“CLRA”); (4) Breach of Express Warranty; (5) Breach of the Implied Warranty of Merchantability; (6) Violation of the MMWA; and (6) Unjust Enrichment. Plaintiff seeks to pursue his claims on a nationwide class-action basis, and defines his class as “All individuals or entities in the United States who leased or purchased, not for resale, Hyundai vehicles equipped with a Smart Trunk.” (CAC, ¶133.) Alternatively, he seeks to pursue the claims for express warranty, implied warranty, and unjust enrichment under Pennsylvania law on behalf of a Pennsylvania Sub-Class, which he defines as “All individuals or entities in Pennsylvania who leased or purchased, not for resale, Hyundai vehicles equipped with a Smart Trunk.” (‘Sub-Class’).” (CAC, ¶ 134.) ARGUMENT I. TO SURVIVE DISMISSAL, THE PLAINTIFF MUST PLEAD FACTS THAT STATE A PLAUSIBLE CLAIM While the court must accept as true a plaintiff’s well-pled allegations and all reasonable inferences that may be drawn from them, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Twombly “requir[es] a flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007), rev’d o.g. sub nom. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rule 12(b)(6) requires the court to (1) outline the elements a plaintiff must plead to state a claim for relief; (2) peel away conclusory allegations not entitled to a presumption of truth; and (3) look for well-pled factual allegations, Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 9 of 25 4 assume their veracity, and “determine whether they plausibly give rise to an entitlement to relief,” in which the court draws on judicial experience and common sense. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations omitted). Further, although Plaintiff brings this matter as a putative class action, at the motion-to-dismiss stage the question is whether Plaintiff’s individual factual allegations suffice – not what he thinks putative class members might say. Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 659 (3d Cir. 1998) (“Until the putative class is certified, the action is one between the [named plaintiffs] and the defendants. Accordingly, the [Complaint] must be evaluated as to these particular plaintiffs”). II. PLAINTIFF LACKS STANDING TO PURSUE CLAIMS FOR VEHICLES HE DID NOT PURCHASE Plaintiff lacks standing to pursue his claims regarding the Hyundai Azera, Genesis, Elantra, or any other Hyundai vehicle with the Smart Trunk feature, because he does not allege that he leased or purchased those vehicles and, therefore, has not alleged an injury in fact. All claims regarding Hyundai vehicles other than the Hyundai Sonata should be dismissed. To have standing pursuant to Article III of the U.S. Constitution, a plaintiff must have suffered an “injury in fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Ibid. (internal citations omitted); Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006). The issue of standing is unchanged by a case’s status as a class action: “even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’” Gratz v. Bollinger, 539 U.S. 244, 289 (2003) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n. 20 (1976)); see also Lewis v. Casey, 518 U.S. 343, 347 (1996) Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 10 of 25 5 (same). Plaintiff’s Complaint seeks remedy for an alleged injury to all individuals who “leased or purchased, not for resale, a Hyundai vehicle equipped with a Smart Trunk.” (CAC, ¶ 133.) Although Plaintiff alleges that, “[w]ithout limitation,” the “Smart Trunk comes standard on the … 2015 Sonata … 2015 Azera … 2015 Genesis … 2016 Sonata … 2016 Azera …2016 Genesis …2017 Elantra … and 2017 Sonata …” and is “an available option on the … 2015 Sonata … 2016 Sonata … 2017 Sonata and the 2017 Elantra,” he acknowledges that the only vehicle he purchased was the “2015 Hyundai Sonata Limited.” (CAC, ¶¶ 15-16 & 92.)2 (Source: http://www.motortrend.com/cars/hyundai/sonata/2015/ (last accessed December 23, 2016)). These un-purchased vehicles are, however, by no means identical to the 2015 Sonata: 2015 Hyundai Elantra3 2015 Hyundai Santa Fe4 2015 Hyundai Genesis5 2 Additionally, certain models of the Santa Fe and Tucson are also equipped with a Smart Trunk. 3 Source: https://www.cargurus.com/Cars/2015-Hyundai-Elantra-Overview-c24470 (last accessed Dec. 23, 2016). 4 Source: http://www.automobilemag.com/news/2015-hyundai-santa-fe-sport-updated/ (last accessed Dec. 23, 2016). 5 Source: http://www.caranddriver.com/reviews/2015-hyundai-genesis-first-drive-review (last Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 11 of 25 6 Plaintiff does not claim to have ever leased or purchased the 2015 Azera, 2015 Genesis, 2016 Sonata, 2016 Azera, 2016 Genesis, 2017 Elantra, 2017 Sonata, or any of the Santa Fe and Tucson models. Therefore, Plaintiff could not have suffered any actual injury from these alleged vehicles, and he lacks standing to pursue claims individually or on behalf of a class regarding those un-purchased vehicles. See Lieberson v. Johnson & Johnson Consumer Cos., Inc., 865 F. Supp. 2d 529, 537 (D.N.J. 2011) (granting motion to dismiss and holding that plaintiff lacked standing to pursue claims against manufacturer based on products she had not personally purchased or used); Green v. Green Mountain Coffee Roasters, Inc., 279 F.R.D. 275, 281-281 (D.N.J. 2011) (dismissing class action complaint where consumer did not have standing to pursue claims for products he had neither purchased nor used himself). Other federal courts outside the Third Circuit have similarly dismissed claims based on lack of standing where the named plaintiff did not actually purchase one or more of the products at issue. 6 Pennsylvania state courts have also denied standing to plaintiffs seeking to bring claims against un-purchased products. See Fishbein v. Corel Corp., 29 Pa. D. & C. 4th 289, 293-94 (Pa. Com. Pl. Ct. 1996) (granting motion to dismiss for lack of standing where plaintiff did not purchase a specific product at issue and holding that “[plaintiff] cannot bring a claim on behalf of others who have purchased the product”) (citing D'Amelio v. Blue Cross of Lehigh Valley, 606 A.2d 1215 (Pa. Super. 1992)). Accordingly, all claims pertaining to vehicles other than the 2015 Sonata Limited must be dismissed. accessed Dec. 23, 2016). 6 See Reilly v. Amy's Kitchen, Inc., No. 13-21525, 2013 WL 9638985 (S.D. Fl. Dec. 9, 2013); Leonhart v. Nature’s Path Foods, Inc., No. 13-0492, 2014 WL 1338161, at *3-4 (N.D. Cal. Mar. 31, 2014); Chin v. Gen. Mills, Inc., No. 12-2150, 2013 WL 2420455, at *3-4 (D. Minn. June 3, 2013); Johns v. Bayer Corp., No. 09-1935, 2010 WL 476688, at *5 (S.D. Cal. Feb. 9, 2010). Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 12 of 25 7 III. PLAINTIFF’S WARRANTY CLAIMS FAIL A. Plaintiff’s Claim for Breach of Implied Warranty of Merchantability Fails Pennsylvania implies a warranty of merchantability in every contract for the sale of goods. Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102 (3d Cir. 1992); Wright v. Ryobi Techs., Inc, 175 F. Supp. 3d 439 (E.D. Pa. 2016). A plaintiff claiming breach of implied warranty of merchantability must demonstrate that: (1) the product malfunctioned, (2) plaintiff used the product as intended or reasonably expected by the manufacturer, and (3) the absence of other reasonable secondary causes. Wright, 175 F. Supp. 3d at 455. The implied warranty of merchantability does not mean that a manufacturer must produce a flawless product. See Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 840 (Pa. Super. Ct. 1999) (implied warranty of merchantability “serve[s] to protect buyers from loss where goods purchased are below commercial standards.”); Gall v. Allegheny County Health Dep’t, 555 A.2d 786, 789–90 (Pa. 1989) (“The concept of ‘merchantability’ does not require that the goods be the best quality…”); Sessa v. Riegle, 427 F. Supp. 760, 769 (E.D. Pa. 1977) (“The standard established does not require that goods be outstanding or superior.”); see also, Greene v. BMW of North America, LLC, No. 2:11-4220, 2012 WL 5986457 at *3 (D.N.J. Nov. 28, 2012) (“the implied warranty [of merchantability] comes nowhere close to guaranteeing perfection”).7 More specifically, “[t]o be merchantable, goods need only be of reasonable quality within expected variations and ‘fit for the ordinary purposes for which they are used.’” Hornberger v. General Motors Corp., 929 F. Supp. 884 (E.D. Pa. 1996). “Since cars are designed to provide transportation, the implied warranty of merchantability is simply a guarantee that they will 7 Pennsylvania and New Jersey have both adopted Section 2-314 of the Uniform Commercial Code, governing the implied warranty of merchantability. See 13 Pa. C.S. § 2314; N.J.S.A. § 12A:2-314. Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 13 of 25 8 operate in a ‘safe condition’ and ‘substantially free of defects.’ Thus, ‘where a car can provide safe, reliable transportation[,] it is generally considered merchantable.’” Id. at 888 (citations omitted); see also Sheris v. Nissan N.A., Inc., No. 2:07-2516, 2008 WL 2354908, at *6 (D.N.J. 2008); Alin v. American Honda Motor Co., Inc., No. 2:08-4825, 2010 WL 1372308 (D.N.J. Mar. 31, 2010). Viewed against this standard, Plaintiff’s claim for breach of implied warranty of merchantability is deficient. Even assuming, for the sake of argument, that there was a defect with the Smart Trunk, while perhaps inconvenient, it does not render the vehicle non-functional or unfit for purposes of transportation. Except for the brief periods when his vehicle was in the shop for repair, the CAC does not allege that Plaintiff has been deprived of its full use at any time since he purchased it in August 2014. A plaintiff may not recover for breach of the implied warranty of merchantability where he “‘ha[s] driven [his] car[] without problems for years.’” Sheris, 2008 WL 2354908, at *6 (citations omitted); Hornberger, 929 F. Supp. at 888 (where vehicle was unfit for the purpose of driving, there were issues of fact as to whether the implied warranty of merchantability was breached); Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595, 602 (S.D.N.Y. 1982); Ford Motor Co. v. Fairley, 398 So.2d 216, 218 (Miss. 1981). The alleged defect did not render Plaintiff’s vehicle unmerchantable under Pennsylvania law. Therefore, Plaintiff’s claim for breach of the implied warranty of merchantability should be dismissed. B. Plaintiff’s Claim for Breach of Express Warranty Fails Plaintiff’s claim for breach of express warranty is predicated on HMA’s written Warranty. (CAC, ¶¶ 213-226.) That Warranty provides that HMA will repair or replace parts that are defective in materials or workmanship. Plaintiff alleges that HMA has failed “to correct, Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 14 of 25 9 repair, or eliminate the defect” and, therefore, “Plaintiff and the Subclass have been injured” entitling Plaintiff to remedies outside the Warranty. (Id.) Plaintiff’s claim for breach of express warranty fails for the simple reason that the Smart Trunk works. To adequately state a claim for breach of warranty, the Plaintiff must allege: (1) the existence of a warranty made by the defendant; (2) a breach of such warranty; and (3) damages to plaintiff as a result of defendants’ breach of warranty. 13 Pa. C.S.A. § 2313; Altronics v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir. 1992); Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1 (Pa. 2011). A breach is a required element for a claim of breach of express warranty. Id. Plaintiff makes no allegation in the CAC that the Smart Trunk fails to open. To the contrary, he admits that the Smart Trunk on his own 2015 Sonata did, in fact, open as designed. (CAC, ¶ 76.) What Plaintiff actually complains about is that the Smart Trunk simply did not open as much as he would have liked. Specifically, Plaintiff alleges that the Smart Trunk “only opens a few inches,” “only opens a crack,” and opens “a small amount.” (CAC, ¶¶ 75-76, 78). “Any product could be considered defective in materials and workmanship when the only criteria to judge it by are the unbounded expectations of a purchaser.” Beckermeyer v. AT&T Wireless and Panasonic Telecommunications Systems Company, No. 00469, 2003 WL 23005016 (Pa. Com. Pl. Ct. Dec. 3, 2003) (holding that there was no breach of express warranty where the product simply did not live up to the purchaser’s expectations). Therefore, Plaintiff has failed to allege that the express warranty was breached. Furthermore, in Pennsylvania, all claims for breach of warranty relative to the sale of “goods” are governed by the Commonwealth’s version of Article 2 of the Uniform Commercial Code (UCC), which is found at 13 Pa. C.S.A. 2101, et. seq. A buyer’s ability to pursue a breach- of-warranty claim and revoke acceptance is limited to those instances where the warranty fails of Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 15 of 25 10 its essential purpose and the alleged defects “substantially impair” the value of the product. Rozmus v. Thompson's Lincoln-Mercury Co., 224 A.2d 782, 784 (Pa. Super. Ct. 1966) (holding that rescission can be denied for trivial breaches of express warranty for an automobile). “The reason why ‘a substantial impairment of value’ must take place before a revocation under Section 2-608 [of the UCC] may take force is to preclude revocation for trivial defects or defects that may be easily corrected.” Id. (citations omitted); see also Pratt v. Winnebago Industries, Inc., 463 F. Supp. 709 (W.D. Pa. 1979) (holding that alleged defects did not amount to a substantial impairment of value of defendant’s motor home). Similar to Rozmus and Pratt, a complaint as to such a trivial alleged defect does not justify revocation on the ground that it amounted to a substantial impairment of value. See Pratt, 463 F. Supp. at 714-715 (finding that a faulty transmission, and other purported defects, did not permit plaintiff to rescind vehicle contract for substantial impairment); Rozmus, 224 A.2d at 125 (finding that a misaligned drive shaft that caused “bumping and thumping” noise was insufficient basis to rescind vehicle contract).8 Like his implied-warranty claim, Plaintiff’s express-warranty claim is predicated on the provision of a perfect product. Under Pennsylvania law, Plaintiff’s express-warranty claim fails and should be dismissed. C. The Magnusson-Moss Warranty Act Claims Fail as a Result of the Deficient Warranty Claims The MMWA does not mandate that all consumer products be provided with a written warranty; it simply supplies standards where a seller chooses to provide a written warranty. 15 U.S.C.A. §§ 2303(a), 2304. While the MMWA also provides a federal cause of action, 15 U.S.C.A. § 2310(d)(1), it does not create a federal “common law” of warranty; rather, state law 8 Whereas the alleged defects in Rozmus and Pratt were trivial and could be resolved with minimal repairs, here no repair is even necessary because the Smart Trunk on Plaintiff’s vehicle is fully functional and in working order – i.e., it opened “hands-free.” (CAC ¶¶ 101-102). Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 16 of 25 11 governs warranty claims brought under the MMWA except when explicitly modified by the MMWA’s minimum standards, and if the state-law claims fail, so also do the MMWA claims. See In re Shop-Vac Marketing and Sales Practices Litig., 964 F.Supp.2d 355 (M.D. Pa. 2013) (“this court’s disposition of the state law warranty claims determines the disposition of the Magnuson–Moss Act claims.”); see also Cooper v. Samsung Elecs. Am., Inc., 374 Fed. Appx. 250, 254 (3d Cir. 2010) (affirming dismissal of MMWA claim because plaintiff failed to state viable state law warranty claim). As discussed above, Plaintiff’s claims under Pennsylvania state law for breach of express warranty and implied warranty of merchantability fail and, therefore, so too do his MMWA claims. IV. PLAINTIFF’S UNJUST ENRICHMENT CLAIM FAILS In the Seventh Count of his Complaint, Plaintiff asserts a claim for unjust enrichment under Pennsylvania law on behalf of himself and the Pennsylvania Subclass in the alternative to the allegations set forth in Counts IV, V, and VI. (CAC, ¶¶ 253-263.) “Unjust enrichment is a quasi-contractual doctrine based in equity; its elements include benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Wiernik v. PHH U.S. Mortgage Corp., 736 A.2d 616, 622 (Pa. Super. Ct. 1999) (quotation omitted). It is well settled under Pennsylvania law that a cause of action for unjust enrichment is not proper where there is an express or written contract. See Diener Brick Co. v. Mastro Masonry Contractor, 885 A.2d 1034, 1039 (Pa. Super. Ct. 2005); Villoresi v. Femminella, 856 A.2d 78, 84 (Pa. Super. Ct. 2004) appeal denied, 872 A.2d 1200 (2004); Mitchell v. Moore, 729 A.2d 1200 (Pa. Super. Ct. 1999). Unjust enrichment exists as an equitable remedy for situations where Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 17 of 25 12 “no real promises and none of the other elements of a real contract is present.” Diener Brick, 885 A.2d at 1039. In this case, an express contract, in the form of a limited warranty, existed between Plaintiff and HMA. Where, as here, it is undisputed that a contract governs the relationship of the parties, unjust enrichment is not available as a means of recovery, even when framed in the alternative. See, e.g., AmerisourceBergen Drug Corp. v. Allscripts Healthcare, Inc., No. 10- 6087, 2011 WL 3241356, at *3 (E.D. Pa. July 29, 2011) (dismissing claim for unjust enrichment and stating that where validity of agreement between parties is not in doubt, unjust enrichment claim is precluded, even when pled in the alternative). Though HMA disputes Plaintiff’s allegation of breach of the Warranty, it does not dispute that there was a Warranty between the parties. The claim for unjust enrichment should therefore be dismissed. V. PLAINTIFF CANNOT PURSUE A NATIONWIDE CONSUMER-FRAUD CLASS ACTION UNDER CALIFORNIA LAW Even if Plaintiff has stated a claim for relief – which he has not – in no event could he pursue his claims on a nationwide basis, let alone on a nationwide basis under California law. 9 A. Plaintiff Cannot Invoke California Law A federal court exercising diversity jurisdiction must apply the choice-of-law rules of the state in which the action was commenced. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Kaneff v. Del. Title Loans, Inc., 587 F.3d 616, 621 (3d Cir. 2009). Pennsylvania applies the flexible “interests/contacts” methodology to address choice-of-law questions. Pac. Emp’r Ins. Co. v. Global Reinsurance Corp. of Am., 693 F.3d 417, 432 (3d Cir. 2012) (citing 9 Plaintiff seeks to pursue claims under California law on behalf of a nationwide class only. He does not seek to pursue such claims on behalf of a California sub-class, nor could he: There is no plaintiff who claims to have leased or purchased a vehicle in California and, thus, no one to serve as a California sub-class representative for claims against HMA. Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 18 of 25 13 Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226-27, 230-31 (3d Cir. 2007)). “Pennsylvania applies a flexible rule which permits analysis of the policies and interests underlying the particular issue before the court and directs courts to apply the law of the state with the ‘most interest in the problem.’” Specialty Surfaces Int’l v. Cont’l Cas. Co., 609 F.3d 223, 229 (3d Cir. 2010) (citations omitted). Pennsylvania choice-of-law rules require a three-step analysis. Hammersmith, 480 F.3d at 229. The first step is to determine whether an actual conflict exists; if no conflict exists, the law of the forum state applies. Id. at 230. If a conflict exists, the court moves to the second step, which examines the governmental policies underlying each law in order to classify the conflict as true, false, or an un-provided-for situation. Id. Where each jurisdiction has a governmental policy or interest that would be impaired by the application of the other state’s law, a true conflict exists. Id. If a true conflict exists, the court turns to the third step to determine which state has the greater interest in the application of its law. Id. at 231. This determination demands that a court weigh the contacts each jurisdiction has with the dispute on a qualitative scale according to the extent they implicate the policies and interests underlying the particular dispute before the court. Id. Plaintiff is a Pennsylvania resident who purchased his vehicle in Pennsylvania based upon representations he received in Pennsylvania. Yet in Counts I, II, and III of the CAC, Plaintiff seeks to pursue claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act (the “California Consumer Protection Laws”). But Plaintiff was not harmed under California’s Consumer Protection Laws; he was harmed – if at all – under the laws of Pennsylvania. Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 19 of 25 14 1. Unfair Competition Law & False Advertising Law The UCL prohibits acts or practices that are: (1) unlawful; (2) fraudulent; or (3) unfair. Cal. Bus. & Prof. Code § 17200. Each prong of the UCL constitutes a separate and distinct theory of liability. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). The UCL proscribes “unfair competition,” which includes “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. The California Supreme Court has held that the UCL’'s “coverage is sweeping, embracing anything that can properly be called a business practice and that at the same time is forbidden by law.” Cel–Tech Communications, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999) (quotations omitted) (citation omitted). California’s False Advertising Law provides that it is: unlawful for any person ... to make or disseminate or cause to be made or disseminated before the public in this state ... in any advertising device ... or in any other manner or means whatever, including over the Internet, any statement, concerning ... personal property or services, professional or otherwise, or performance or disposition thereof, which is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading. Cal. Bus. & Prof. Code § 17500, et seq. Under both the UCL and FAL, there is no requirement that there be allegations of business dealings between the parties in order to establish standing. See Obesity Research Institute, LLC v. Fiber Research Int’l, LLC, 165 F. Supp. 3d 937 (S.D. Cal. 2016). Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201–3, requires that in a private right of action the consumer “purchased or leased goods or services primarily for personal, family or household purposes and thereby suffers ascertainable loss…” 73 P.S. § 201–9.2(a). Thus, “[a] significant difference in the law between Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 20 of 25 15 California and Pennsylvania is the issue of standing under each state’s unfair competition laws.” ClubCom, Inc. v. Captive Media, Inc., 2009 WL 249446, at *7 (W.D. Pa. Jan. 31, 2009). A true conflict exists because both Pennsylvania and California would be impaired by the application of the other state’s law since each has crafted specific statutes providing distinct protections for its respective citizens. Nonetheless, Pennsylvania has a greater interest in the application of its law. California is the place where Hyundai maintains its headquarters and is where the allegedly deceptive advertising was disseminated from. Plaintiff has no direct ties to California. Pennsylvania, on the other hand, is the place where the alleged injury initially occurred, where Plaintiff purchased the vehicle, where Defendant’s representations caused Plaintiff to purchase the vehicle, where Plaintiff drove the vehicle, where Plaintiff repaired the vehicle, and where Plaintiff lived at the time of the alleged injury. Pennsylvania has the most significant relationship to the transaction at issue and the greatest governmental interest in seeing its laws enforced. Pennsylvania law must apply to this dispute. 2. Consumer Legal Remedies Act California’s Consumer Legal Remedies Act prohibits “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” Cal. Civ. Code § 1770(a). Conduct that is “likely to mislead a reasonable consumer” violates the CLRA. Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663 (2006) (quoting Nagel v. Twin Labs., Inc., 109 Cal. App. 4th 39 (2003)). Importantly, there is a three-year limitations period for CLRA claims. Cal. Civ. Code § 1783. The UTPCPL, on the other hand, provides for a six-year limitations period. 73 P.S. § 201-1, et seq.; Keller v. Volkswagen of America, Inc., 733 A.2d 642 (Pa. Super. Ct. 1999). The disparity in limitations periods constitutes a true conflict because Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 21 of 25 16 each jurisdiction has interests that would be impaired by the application of the other state’s law. See In re Toyota Motor Corp., 785 F. Supp. 2d 925, 933 (C.D. Cal. 2011) (finding statutes of limitation to be material differences among state consumer-protection statutes). As discussed above, when this Court weighs the contacts with each jurisdiction, it is clear that Pennsylvania, not California, has the more significant contacts to the action. Thus, Plaintiff cannot invoke California law. B. California Law Cannot Be Applied Nationwide Even if Plaintiff could pursue claims under California’s Consumer Protection Laws – which he cannot – those laws cannot be applied nationwide. That is because, under the Due Process Clause, a court “may not take a transaction with little or no relationship to the forum and apply the law of the forum.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821 (1985). Rather, in nationwide class actions, choice-of-law constraints are constitutionally mandated and “[p]utative class members have a due process right to have their claims governed by the state law applicable to their dispute.” De Lage Landen Financial Services, Inc. v. Rasa Floors, LP, 269 F.R.D. 445 (2010) (citing Phillips Petroleum Co., 472 U.S.at 821-823). A complaint that ignores this choice-of-law requirement should be addressed at the pleading stage. Cooper v. Samsung Electronics America, Inc., 374 Fed. Appx. 250 (3d Cir. 2010). The Third Circuit has made clear that non-residents cannot invoke the consumer protection laws of a foreign jurisdiction simply because of the defendant’s presence there. Maniscalco v. Brother Int’l (USA) Corp., 709 F.3d 202 (3d Cir. 2013). In Maniscalco, Plaintiff was a South Carolina resident who purchased a Brother multi-function printer from an Office Depot store in South Carolina. 709 F.3d at 205. Defendant Brother International (USA) Corp. (“BIC”) was a Delaware corporation with its principal place of business in New Jersey. Id. at Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 22 of 25 17 204. Plaintiff contended BIC executives in New Jersey knowingly concealed a defect in the printer. Id. at 205-06. The District Court granted summary judgment, finding that South Carolina law, not New Jersey law, governed Plaintiff’s claims. Id. at 206. In Maniscalco, there was an actual conflict between the consumer-fraud laws of New Jersey and South Carolina because, for example, South Carolina’s consumer-fraud statute prohibits class actions. Maniscalco, 709 F.3d at 206 (citing P.V. v. Camp Jaycee, 197 N.J. 132 (2008)).10 The Third Circuit applied Restatement (Second) Conflict of Laws §148(2), because the representations and omissions were made in one state (New Jersey) but received in a different state (South Carolina). After examining the factors set out in Restatement §148(2), the court determined that the majority of those factors favored South Carolina law; “[t]he only remaining questions are whether the place where BIC’s alleged omissions took place, factor (c), weighs in favor of applying New Jersey law, and, if so, whether this contact is of such significance that it outweighs the contacts in favor of applying South Carolina law. We find that it does not.” Id. at 208. The Third Circuit “adopt[ed] the overwhelming majority of courts’ application of New Jersey choice-of-law rules under similar circumstances.” Maniscalco, 709 F.3d at 209 (citations omitted). The court disagreed with those cases applying New Jersey law to class actions involving out-of-state consumers based simply upon the defendant’s location in New Jersey, in particular In re Mercedes-Benz Tele Aid Contract Litigation, 257 F.R.D. 46 (D.N.J. 2009). As the Third Circuit held: 10 New Jersey applies a “most significant relationship” choice-of-law analysis. Maniscalco, 709 F. 3d at 206. This two-part test requires the court to determine whether a true conflict exists and, if so, to determine which jurisdiction has the “most significant relationship” to the claim, applying the appropriate factors from the Restatement (Second) of Conflict of Laws. Id. at 206- 07. Like Pennsylvania’s choice-of-law analysis, those factors are evaluated on a qualitative basis. Id. at 208. Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 23 of 25 18 While, to be sure, New Jersey has an interest in deterring misconduct by corporations headquartered within its borders, it is far from clear that this interest would be sufficient to outweigh other significant contacts with a plaintiff’s home state. New Jersey’s deterrent interest might well be served by actions involving in-state plaintiffs or actions involving additional contacts within New Jersey without opening the floodgates to nation-wide consumer fraud class actions brought by out-of-state plaintiffs involving transactions with no connection to New Jersey other than the location of the defendant’s headquarters. 709 F.3d at 210; see also, id. at 208 n.3. As Maniscalco and other courts have recognized, conflicts exist across the consumer- protection statutes of the various states. BMW of North America, Inc. v. Gore, 517 U.S. 559, 568-69 (1996) (“No one doubts that a State may protect its citizens by prohibiting deceptive trade practices… But the States need not, and in fact do not, provide such protection in a uniform manner… The result is a patchwork of rules representing the diverse policy judgments of lawmakers in 50 States”); Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 591 (9th Cir. 2012) (examining differences, concluding, “these are not trivial or wholly immaterial differences”); Lyon v. Caterpillar, Inc., 194 F.R.D. 206 (E.D. Pa. 2000) (examining differences, and refusing to apply one particular state’s consumer protection laws to purchasers who lived in forty one different states as “a violation of the due process rights of those plaintiffs…”). Here, Plaintiff’s only basis for applying California law is HMA’s location in California. Plaintiff is a resident of Pennsylvania, purchased the vehicle in Pennsylvania, drove the vehicle on the roads of Pennsylvania, and filed his complaint in Pennsylvania. As in Maniscalco, Plaintiff here cannot pursue a nationwide class action under California’s Consumer Protection Laws, nor could non-California members of Plaintiff’s proposed nationwide class. Accordingly, in order to pursue a nationwide class action, the laws of the various states would all be applicable. A fifty-plus state class action is clearly unmanageable. Plaintiff cannot pursue a Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 24 of 25 19 nationwide class action under the California Consumer Protection Laws or the consumer- protection law of any one particular state. Plaintiff’s nationwide consumer-fraud class-action allegations should be dismissed. CONCLUSION Plaintiff’s claims are without merit and should be dismissed. Plaintiff lacks standing to pursue a putative class action for vehicles he did not purchase. Plaintiff’s warranty claims fail because the Smart Trunk, while not perfect, still functions and his MMWA claim also fails as a result. Plaintiff’s unjust enrichment claim fails because the existence of a limited warranty bars such a claim. As a resident of Pennsylvania, Plaintiff cannot invoke the consumer-fraud laws of California based simply on HMA’s location there. Accordingly, Plaintiff’s class-action complaint should be dismissed. BUCHANAN INGERSOLL & ROONEY, PC Dated: December 23, 2016 s/ Kenneth L. Racowski Kenneth L. Racowski Two Liberty Place 50 South 16th Street, Suite 3200 Philadelphia, Pennsylvania 19102 Telephone: 215.665.8700 kenneth.racowski@bipc.com Christopher J. Dalton (Admitted Pro Hac Vice) Jacqueline M. Weyand (Admitted Pro Hac Vice) 550 Broad Street, Suite 810 Newark, New Jersey 07102 Telephone: 973.273.9800 christopher.dalton@bipc.com jacqueline.weyand@bipc.com Attorneys for Defendant Hyundai Motor America Case 2:16-cv-05150-CDJ Document 10-1 Filed 12/23/16 Page 25 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOSHUA RIAUBIA, individually and for all persons similarly situated, Plaintiff, v. HYUNDAI MOTOR AMERICA, Defendant. CASE NO. 2:16-cv-05150-CDJ [PROPOSED] ORDER AND NOW, this _______ day of _______________, 201__, upon consideration of Hyundai Motor America’s Motion to Dismiss Plaintiffs’ Class Action Complaint, all responses and replies thereto, IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiffs’ Class Action Complaint is GRANTED. BY THE COURT: _________________________ HON. C. DARNELL JONES, II United States District Judge Case 2:16-cv-05150-CDJ Document 10-2 Filed 12/23/16 Page 1 of 1