Ries et al v. Car Gurus, Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.October 13, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA R. KEITH RIES and VALERIE RIES, Plaintiffs, v. CARGURUS, LLC, a/k/a www.cargurus.com, and MATTHEW VANSANT, individually and trading as SPORTS & IMPORTS OF TRENTON, and ROBERT KELLIHER, individually and trading as SPORTS & IMPORTS OF TRENTON, and TK HOLDINGS, INC. d/b/a TAKATA, and AMERICAN HONDA MOTOR CO., INC. Defendants. Case No. 2:16-cv-03762 Honorable Timothy J. Savage DEFENDANT CARGURUS, INC.’S MOTION TO DISMISS THE AMENDED COMPLAINT Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant CarGurus, Inc. (“CarGu- rus”1) respectfully moves this Court to dismiss the above-captioned action for failure to state a claim upon which relief may be granted, for the reasons set forth in the accompanying memoran- dum in support of this motion. 1 CarGurus, Inc. is incorrectly denominated as CarGurus, LLC in the caption. Case 2:16-cv-03762-TJS Document 39 Filed 10/13/16 Page 1 of 3 Dated: October 13, 2016 Respectfully submitted, By: /s/ Lily G. Becker Lily G. Becker Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Tel: (215) 963-5055 Fax: (215) 963-5001 E-mail: lily.becker@morganlewis.com Charles L. Solomont (pro hac vice pending) Julie V. Silva Palmer (pro hac vice pending) Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 Tel: (617) 341-7700 Fax: (617) 341-7701 Email: carl.solomont@morganlewis.com E-mail: julie.palmer@morganlewis.com Attorneys for Defendant CarGurus, Inc. Case 2:16-cv-03762-TJS Document 39 Filed 10/13/16 Page 2 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA R. KEITH RIES and VALERIE RIES, Plaintiffs, v. CARGURUS, LLC, a/k/a www.cargurus.com, and MATTHEW VANSANT, individually and trading as SPORTS & IMPORTS OF TRENTON, and ROBERT KELLIHER, individually and trading as SPORTS & IMPORTS OF TRENTON, and TK HOLDINGS, INC. d/b/a TAKATA, and AMERICAN HONDA MOTOR CO., INC. Defendants. Case No. 2:16-cv-03762 Honorable Timothy J. Savage [PROPOSED] ORDER AND NOW, this ______ day of _______________, 2016, upon consideration of CarGu- rus, Inc.’s Motion to Dismiss the Amended Complaint, the Memorandum in support thereof, and any response thereto, it is hereby ORDERED that said Motion is GRANTED. Hon. Timothy J. Savage, J. Case 2:16-cv-03762-TJS Document 39 Filed 10/13/16 Page 3 of 3 DB1/ 89411834.6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA R. KEITH RIES and VALERIE RIES, Plaintiffs, v. CARGURUS, LLC, a/k/a www.cargurus.com, and MATTHEW VANSANT, individually and trading as SPORTS & IMPORTS OF TRENTON, and ROBERT KELLIHER, individually and trading as SPORTS & IMPORTS OF TRENTON, and TK HOLDINGS, INC. d/b/a TAKATA, and AMERICAN HONDA MOTOR CO., INC. Defendants. Case No. 2:16-cv-03762 Honorable Timothy J. Savage MEMORANDUM OF DEFENDANT CARGURUS, INC. IN SUPPORT OF ITS MOTION TO DISMISS Dated: October 13, 2016 Lily G. Becker Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Tel: (215) 963-5055 Fax: (215) 963-5001 E-mail: lily.becker@morganlewis.com Charles L. Solomont (admitted pro hac vice) Julie V. Silva Palmer (pro hac vice pending) Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 Tel: (617) 341-7700 Fax: (617) 341-7701 Email: carl.solomont@morganlewis.com E-mail: julie.palmer@morganlewis.com Attorneys for Defendant CarGurus, Inc. Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 1 of 27 TABLE OF CONTENTS Page -i- I. PLAINTIFFS’ ALLEGATIONS........................................................................................3 II. ARGUMENT .....................................................................................................................5 A. Plaintiffs’ Claims Are Precluded by the Communications Decency Act...............6 B. Plaintiffs Fail to State Claims Under the Odometer Statutes ...............................11 C. Plaintiffs Fail to State a Claim for Intentional Misrepresentation........................14 D. Plaintiffs Fail to State a Claim for Negligence.....................................................16 E. Gross Negligence Is Not an Independent Tort in Pennsylvania...........................17 F. Plaintiffs Fail to State a Claim Under Pennsylvania’s Consumer Protection Act ........................................................................................................................18 G. Plaintiffs Fail to State a Claim Under New Jersey’s Consumer Protection Act ........................................................................................................................18 H. Plaintiffs Fail to Allege Facts Sufficient to Support a Claim for Punitive Damages ...............................................................................................................19 III. CONCLUSION ................................................................................................................20 Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 2 of 27 -ii- TABLE OF AUTHORITIES Cases Page(s) Ashcroft v. Iqbal, 556 U.S. 662 (2007) ..............................................................................................................5, 6 Baxter v. Kawasaki Motors Corp., U.S.A., No. 07 C 6745, 2008 WL 8901361 (N.D. Ill. July 17, 2008).....................................11 Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007) ........................................................................................................5, 6, 14 Bodine v. Graco, Inc., 533 F.3d 1145 (9th Cir. 2008) .................................................................................................11 Bortz v. Noon, 556 Pa. 489 (1999) ............................................................................................................14, 15 Chetty Holdings Inc. v. NorthMarq Capital, LLC, 556 F. App’x 118 (3d Cir.) ......................................................................................................16 Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) .....................................................................................................7 DeArmitt v. New York Life Ins. Co., 73 A.3d 578 (Pa. Super. 2013) ................................................................................................18 Dimeo v. Max, 433 F. Supp. 2d 523 (E.D. Pa. 2006).....................................................................................6, 7 Erickson v. Pardus, 551 U.S. 89 (2007) ....................................................................................................................3 Feld v. Merriam, 506 Pa. 383 (1984) ..................................................................................................................19 Fiorentino v. Cabot Oil & Gas Corp., 750 F. Supp. 2d 506 (M.D. Pa. 2010)......................................................................................17 Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) ..............................................................................................14, 15 Gentry v. eBay, Inc., 99 Cal. App. 4th 816 (Cal. App. 4th 2002) .......................................................................10, 11 Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 3 of 27 DB1/ 89411834.6 -iii- Green v. America Online, 318 F.3d 465 (3d Cir. 2003) ..................................................................................................6, 8 Hillelson v. Renner, 183 Pa. Super. 148 (1957) .......................................................................................................16 Indus. Indem. v. Arena Auto Auction, 638 F. Supp. 1030 (D. Minn. 1986) ........................................................................................12 Jackson v. Rohm & Haas Co., 56 Pa. D. & C. 4th 449 (Com. Pl. 2002)..................................................................................19 Jordan v. City of Philadelphia, 66 F. Supp. 2d 638 (3d Cir. 1999) ...........................................................................................17 Kaymark v. Bank of Am., N.A., 783 F.3d 168 (3d Cir. 2015) ....................................................................................................18 KNR, Inc. v. Copart, Inc., No. 1:14-cv-818, 2016 WL 1182727 (N.D. Ohio, March 28, 2016)...........................12, 13, 14 Lum v. Bank of Am., 361 F.3d 217 (3d Cir. 2004) ..............................................................................................14, 15 Manahawkin Convalescent v. O’Neill, 217 N.J. 99 (2014) ...................................................................................................................18 McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226 (1st Cir. 1980)....................................................................................................12 McLaughlin v. Bayer Corp., No. CV 14-7315, 2016 WL 1161578 (E.D. Pa. Mar. 22, 2016) .............................................16 Mickens v. Ford Motor Co., 900 F. Supp. 2d 427 (D.N.J. 2012)..........................................................................................18 Noah v. AOL Time Warner, 261 F. Supp. 2d 532 (E.D. Va. 2003) ........................................................................................7 Okeke v. Cars.com, 40 Misc. 3d 582 (Civ. Ct. of NYC, Queens County, May 28, 2013) ........................8, 9, 10, 11 Pyatkova v. Motorcars, No. 2:15-CV-3263, 2016 WL 674862 (D.N.J. Feb. 3, 2016)..................................................11 Riverside Lincoln Mercury Sales, Inc. v. Auto Dealers Exch. Co., No. 85 C 4649, 1987 WL 7280 (N.D. Ill. Feb. 25, 1987) .......................................................12 Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 4 of 27 DB1/ 89411834.6 -iv- Ryan v. Edwards, 592 F.2d 756 (4th Cir. 1979) ...................................................................................................12 Salvio v. Amgen, Inc., 810 F. Supp. 2d 745 (W.D. Pa. 2011) .....................................................................................17 Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. Dec. 14, 2010)........................................................................................6 Schneider v. Amazon.Com., Inc., 31 P.3d 37 (Wash. App. Ct. 2001) ............................................................................................8 Slappo v. J’s Dev. Assocs., Inc., 2002 Pa. Super. 18 (2002) .......................................................................................................19 Stoner v. eBay, Inc., 2000 WL 1705637 (Cal. Super. 2000) ......................................................................................8 Travelers Indem. Co. v. Cephalon, Inc., 620 Fed. App’x 82 (3d Cir. 2015) ...............................................................................11, 14, 15 Universal Comm. Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007)................................................................................................8, 10 Vasile v. Conley, 8 Pa. D. & C. 4th 387 (Com. Pl. 1990)....................................................................................13 Walter v. Magee-Womens Hosp. of UPMC Health Sys., 2005 Pa. Super. 131 (2005) .....................................................................................................15 Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) .....................................................................................................8 STATUTES 75 Pa. C.S.A. § 7132 ...............................................................................................................11, 12 75 Pa. C.S.A. § 7134 ...............................................................................................................12, 14 47 U.S.C. § 230 ...................................................................................................................6, 7, 8, 9 49 U.S.C. §§ 32703 ...........................................................................................................11, 12, 14 49 U.S.C. § 32704 .........................................................................................................................14 49 U.S.C. § 32705 ...................................................................................................................12, 13 Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 5 of 27 DB1/ 89411834.6 -v- 49 U.S.C. § 32710 .........................................................................................................................11 OTHER AUTHORITIES Fed. R. Civ. P. 8 ..............................................................................................................................5 Fed. R. Civ. P. 9 ................................................................................................................11, 14, 15 Fed. R. Civ. P. 12 ..........................................................................................................................11 Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 6 of 27 The claims of plaintiffs R. Keith Ries and Valerie Ries (the “Plaintiffs”) arise from an ac- cident involving a car (the “2003 Honda” or the “Car”) that they allegedly purchased from de- fendants Matthew Vansant and Robert Kelliher, doing business as Sports & Imports of Trenton (the “Dealer”). They claim that a “Carfax” report that they obtained after the accident disclosed that the Car had many more miles on it than reflected on the odometer when they purchased it, and that its manufacturer, Honda, had issued recall notices for repairs that were never made. Defendant CarGurus, Inc. (“CarGurus” 1 ) operates an online car listing service, www.cargurus.com. It allows people shopping for cars to review online listings of cars for sale in their geographical area. Plaintiffs allege that they used the CarGurus website to search for a car to buy; requested further information through the website about the 2003 Honda (i.e., the price, the mileage, the Dealer’s location, and the Vehicle Identification Number); and requested that CarGurus advise the Dealer of their interest in the vehicle. The Dealer then contacted Plain- tiffs. The Amended Complaint alleges no other involvement of CarGurus with respect to the Plaintiffs’ purchase of the Car from the Dealer or any other interactions between CarGurus and Plaintiffs. Plaintiffs nonetheless baselessly claim that CarGurus is liable for their damages. They bring claims against CarGurus for intentional misrepresentation, violation of the Federal and Pennsylvania odometer statutes, violation of the Pennsylvania and New Jersey consumer protection acts, negligence, and gross negligence. Each of these causes of action fails as a matter of law. As a threshold matter, the Federal Communications Decency Act (“CDA”) bars all of Plaintiffs’ claims against CarGurus. The CDA immunizes a provider of interactive computer services, such as CarGurus, from liability that might otherwise flow from publishing information 1 CarGurus, Inc. is incorrectly denominated as CarGurus, LLC in the caption. Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 7 of 27 DB1/ 89411834.6 -2- generated by third parties -- under both Federal and state law. Courts have dismissed claims against shopping websites on virtually identical facts as those alleged here based on the broad immunity conferred by the CDA, even when (unlike in the instant case) the website owner had actual knowledge that the information provided was false. Where their Amended Complaint plausibly alleges nothing more than that CarGurus published information about the Car offered for sale by the Dealer, the CDA precludes Plaintiffs’ claims. Even if the Court were to ignore the CDA, each of Plaintiffs’ causes of action fails for other reasons. The Federal and Pennsylvania odometer statutes prohibit advertising, selling or using a device that makes an odometer register an incorrect mileage. The Amended Complaint contains no allegations concerning a device. The statutes prohibit altering an odometer or con- spiring to alter an odometer. Plaintiffs do not allege that CarGurus did either. The odometer statutes impose certain disclosure and other requirements solely on owners or people transferring ownership of cars. Liability under these provisions, however, does not apply to a defendant who never owned the vehicle, even if that defendant facilitated the sale of the vehicle. As Plaintiffs’ allegations show that CarGurus never owned the Car, their claims against it under the odometer statutes fail. Plaintiffs’ tort claims fail for the independent reasons that they fail to allege that CarGu- rus (1) bore any duty to confirm the accuracy of information (like mileage) about cars listed on its website; or (2) that any conduct of CarGurus proximately caused their injury. As to CarGu- rus, the Amended Complaint alleges nothing more than that Plaintiffs received an email generat- ed by the CarGurus website that referenced a mileage reading on an odometer that, because the odometer “had been tampered with,” was incorrect. CarGurus has no legal duty to ensure the accuracy of information provided by third parties, and Plaintiffs do not allege otherwise. The Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 8 of 27 DB1/ 89411834.6 -3- property damage and personal injuries they claim to have sustained resulted, according to the Amended Complaint, from the Car’s steering wheel having “locked”. Plaintiffs do not allege that the steering wheel locked because of the email they received from CarGurus or from any conduct of CarGurus. Nor do they even allege that, but for the email from CarGurus, they would not have purchased the Car. They fail to allege a duty, so their negligence claims fail. They fail to allege causation, so their tort claims fail. Their claims under the Pennsylvania and New Jersey consumer protection statutes fail because they allege no prohibited conduct, and because the conduct they do allege did not cause their injuries. For these and the reasons explained below, CarGurus respectfully moves the Court to dismiss all counts of the Amended Complaint as to CarGurus, with prejudice. I. PLAINTIFFS’ ALLEGATIONS CarGurus “is a Massachusetts corporation in the business of advertising vehicle sales[.]”2 Am. Compl. ¶ 3. In September 2015, “seeking to purchase a motor vehicle,” Plaintiffs “searched the internet on the website” of CarGurus[.]” Id. ¶ 8. They “requested information from CarGu- rus” concerning a listing for a 2003 Honda CR-V LX AWD that included its price, mileage, VIN number, and location. Id. ¶ 9. By email, CarGurus “confirmed Plaintiffs’ request” and informed them that they would be contacted by the seller. Id. ¶ 9, Exhibit A. Shortly afterward, Plaintiffs were contacted by the Dealer, defendants Matthew Vansant and Robert Kelliher, doing business as Sports & Imports of Trenton. Id. ¶¶ 10-11. Plaintiffs purchased the vehicle from the Dealer 2 CarGurus recites the facts here as alleged in the Amended Complaint for the purposes of this motion to dismiss only. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.”). Nothing stated herein is an admission of any fact or liability. In fact, the evidence would show that CarGurus did not “advertise” the Car. For the use of consumers in the market to purchase a vehicle, CarGurus displayed on its website a listing about the Car -- one of millions of listings of cars offered for sale by thousands of dealers that have appeared on the website. Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 9 of 27 DB1/ 89411834.6 -4- in October 2015. Id. ¶ 16. Plaintiffs do not allege that CarGurus sold them the Car or ever owned it. See id. ¶ 11 (“The sellers of the said vehicle was [sic] Defendants, Vansant and Kel- liher, individually and each trading as Sports and Imports.”). Nor do they allege any communi- cations or interactions with CarGurus beyond their using the CarGurus website to search for a car to buy and their request to have the Dealer contact them about it. In contrast to the dearth of allegations of any involvement in the sale of the Car by CarGurus, the Amended Complaint makes specific allegations about conduct of the Dealer (which does not relate to CarGurus):  the Dealer sold the Car to Plaintiffs, Am. Compl. ¶ 11;  the Dealer advertised the Car with the incorrect odometer reading, id. ¶¶ 12-13;  the Dealer “represented that [the Car] had no prior accidents, id. ¶ 15;  the Dealer “represented that . . . a Carfax [report] would be provided forthwith” “prior to the purchase” of the Car, id.;  the Dealer “had received the specific Carfax and chose to ignore its content and con- text in favor of misrepresentation and the sale of the [Car],” id. at 5 n.1;  Dealer “ignore[d] Plaintiffs’ requests to provide the promised ‘Carfax’ information on the [Car],” id. ¶ 21;  the Dealer “filed the Motor Vehicle Sales and Use Tax Exemption Report . . . con- firming, inter alia, the [incorrect] odometer reading,” id. ¶ 17. Despite the absence of any allegation that CarGurus was the source of any of the alleged misrepresentations that underlie Plaintiffs’ claims, the Amended Complaint conspicuously con- flates the allegations of the Dealer’s specific involvement in the sale of the Car with the absence of involvement of CarGurus. It does so by following the allegations that attribute specific “wrongdong” of the Dealer with conclusory allegations that misleadingly refer to all “Defend- ants.” By way of example only, paragraph 11 of the Amended Complaint alleges that the Dealer sold Plaintiffs the Car, paragraphs 12 and 13 allege that the Dealer “advertised” the Car “at [the Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 10 of 27 DB1/ 89411834.6 -5- allegedly incorrect] 87,694 miles,” and paragraph 15 alleges that the Dealer “represented that said motor vehicle had no prior accidents, and that a Carfax would be provided forthwith.” The succeeding paragraph, 16, however, then alleges that “[b]ased upon the representations of the Defendants . . . Plaintiffs purchased the vehicle from Defendants[.]” (emphasis added). Subse- quent paragraphs then likewise implausibly and in a conclusory fashion lump the Dealer and CarGurus together, despite that the foundational allegations attribute solely to the Dealer all al- legations of wrongdoing, such as possession of the Carfax that supposedly reflected the inaccu- racy of the odometer and that the car had been the subject of “recalls”. See e.g., Am. Compl. ¶ 18 (“Defendants . . . knew that the advertised motor vehicle had been involved in prior acci- dents”); id. ¶ 19 (“Defendants . . . knew that the [Car] was on four recall lists”); id. ¶ 20 (“De- fendants . . . knew that the advertised motor vehicle’s odometer had been tampered with”). In March 2016, plaintiff Valerie Ries was driving the Car when it “veered from its lane of travel, swiping a pole on the passenger side door, [and] sending her vehicle into a utility pole on the driver’s side.” Id. ¶¶ 25-27. A “locked steering wheel” allegedly caused the accident by rendering Ries “unable to control the motor vehicle.” Id. ¶ 27. “[T]he driver’s airbag did NOT deploy” and “resulted in serious bodily injury[.]” Id. ¶¶ 28-29. Following the accident, Plain- tiffs obtained the Carfax report for the car, which indicated that the true mileage may be higher than the mileage published in CarGurus’s online listing. Id. ¶¶ 9, 43, 58, Exhibit F. It also indi- cated that the car had been in prior accidents and was subject to open recalls. Id. ¶¶ 40-41, Ex- hibits F-G. II. ARGUMENT In order to survive a motion to dismiss, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp v. Twombly, 550 U.S. 544, 554 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2007) (Rule 8 “does not unlock the doors Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 11 of 27 DB1/ 89411834.6 -6- of discovery for a plaintiff armed with nothing more than conclusions.”). The Third Circuit has set forth a three step analysis under Twombly and Iqbal for determining the sufficiency of a com- plaint. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. Dec. 14, 2010) (citation omit- ted). The court must (1) “take note of the elements a plaintiff must plead to state a claim”; (2) “identify allegations that, because they are no more than conclusions, are not entitled to the as- sumption of truth”; and (3) “where there are well-pleaded factual allegations . . . assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. (in- ternal quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual con- tent that allows the court to draw the reasonable inference that the defendant is liable for the mis- conduct alleged.” Id. at 128. A. Plaintiffs’ Claims Are Precluded by the Communications Decency Act. Plaintiffs are barred from recovery on all of their claims against CarGurus by the Com- munications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230. The CDA “‘precludes courts from entertaining claims that would place a computer service provider in a publisher’s role,’ and therefore bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions -- such as deciding whether to publish, withdraw, postpone, or alter content.’” Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003) (quoting Zeran v. Ameri- ca Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). Congress enacted the CDA “to promote the free exchange of information and ideas over the Internet.” Dimeo v. Max, 433 F. Supp. 2d 523, 529 (E.D. Pa. 2006); 47 U.S.C. § 230(b) (the “policy of the United States” is “to preserve the vibrant and competitive free market that present- ly exists for the Internet” and “to encourage the development of technologies which maximize Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 12 of 27 DB1/ 89411834.6 -7- user control over what information is received by individuals . . . who use the Internet”).3 “The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for pos- sible problems. Faced with potential liability for each message republished by their services, in- teractive computer service providers might choose to severely restrict the number and type of messages posted.” Dimeo, 433 F. Supp. 2d at 529 (quoting Zeran, 129 F.3d at 331). The CDA immunizes “provider[s] . . . of an interactive computer service” from liability for “publish[ing] or speak[ing] . . . any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). It preempts both federal and state causes of action that are inconsistent with its provisions. Id. § 230(e)(3) (“No cause of action may be brought and no lia- bility may be imposed under any State or local law that is inconsistent with this section.”); Chi- cago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008) (“there is no liability under either state or federal law”); Noah v. AOL Time Warner, 261 F. Supp. 2d 532, 539 (E.D. Va. 2003) (granting motion to dismiss federal civil rights claim because the CDA “grants a broad immunity limited only by specific statutory exclu- sions[:] . . . claims involving ‘a Federal criminal statute,’ ‘any law pertaining to intellectual property,’ ‘any State law that is consistent with this Section,’ and ‘the Electronic Communica- tions Privacy Act.’”) (quoting 47 U.S.C. § 230(e)(1)-(4)). 3 The CDA contains statutory findings consistent with this purpose: “[t]he Internet and other in- teractive computer services offer a forum for a true diversity of political discourse, unique oppor- tunities for cultural development, and myriad avenues for intellectual activity,” 47 U.S.C. § 230(a)(3); “[i]ncreasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services,” id. § 230(a)(5); and the “rapidly developing array of Internet and other interactive computer services available to individual Americans repre- sent an extraordinary advance in the availability of educational and informational resources to our citizens,” id. § 230(a)(1). Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 13 of 27 DB1/ 89411834.6 -8- CarGurus is thus immune from the counts asserted in the Amended Complaint if “(1) [it] is a ‘provider or user of an interactive computer service’; (2) the claim is based on ‘information provided by another information content provider’; and (3) the claim would treat [it] ‘as the pub- lisher or speaker’ of that information.” Universal Comm. Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007) (quoting 47 U.S.C. § 230(e)(3)); Green, 318 F.3d at 470 (applying the same). This immunity is interpreted “broadly, so as to effectuate Congress’s ‘policy choice . . . not to deter harmful online speech through the . . . route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.’” Lycos, 478 F.3d at 418 (alteration original) (quoting Zeran, 129 F.3d at 330-31). An “interactive computer service” is “any information service . . . that provides or ena- bles computer access by multiple users to a computer server[.]” 47 U.S.C. § 230(f)(2). “[W]eb site operators . . . are providers of interactive computer services within the meaning of Section 230.” Lycos, 478 F.3d at 419. These include operators of shopping websites similar to cargu- rus.com. See, e.g., Schneider v. Amazon.Com., Inc., 31 P.3d 37, 40 (Wash. App. Ct. 2001) (hold- ing that amazon.com is a provider of interactive computer services); Stoner v. eBay, Inc., 2000 WL 1705637, at *1 (Cal. Super. 2000) (holding that eBay is a provider of interactive computer services); Okeke v. Cars.com, 40 Misc. 3d 582, 586 (Civ. Ct. of NYC, Queens County, May 28, 2013) (“Cars[.com] . . . is a provider of an interactive computer service.”). An “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). “This is a broad definition, covering even those who are responsible for the development of content only ‘in part.’” Lycos, 478 F.3d at 419. “Information content providers” include “third-party user[s] of the service.” Zeran, 129 Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 14 of 27 DB1/ 89411834.6 -9- F.3d at 330. According to the Complaint, the Dealer advertised the mileage and other infor- mation that are the subject of the Amended Complaint. Am. Compl. ¶¶ 12-13. CarGurus is not alleged to have, and could not plausibly have, originated that information itself. It simply main- tains a website of motor vehicle sale listings that “Plaintiffs, seeking to purchase a motor vehicle, searched.” Id. ¶ 3. The Amended Complaint alleges merely that in September 2015, CarGurus listed the car with the “exact same mileage” contained in advertisements by the Dealer. Id. ¶ 12, Exhibit B. Thus, the information listed by CarGurus was created “in whole or in part” by a “per- son or entity” other than CarGurus. See 47 U.S.C. § 230(f)(3). Where, as here, CarGurus is an interactive computer service provider, and the infor- mation at issue was created by a person or entity other than CarGurus, it cannot be liable for pub- lishing the information at issue. See 47 U.S.C. § 230(c)(1). In Okeke v. Cars.com, the court dismissed a complaint against another car shopping website, Cars.com, on facts virtually identi- cal to those alleged here. 40 Misc.3d at 588-89. There, the plaintiff alleged that he viewed on the cars.com website a listing for a car being sold by a third party. Id. at 584. “Using an interac- tive feature on Cars’ web page,” the plaintiff submitted his contact information, and “received an email from Cars indicating that the information [he] submitted through the site was being sent to the seller.” Id. After exchanging emails directly with the seller, he decided to purchase the car and wired money to the seller. Id. He never heard from the seller again. Id. When he com- plained to Cars.com customer service, he was informed that the “fraudulent advertising” was re- moved, and that it had been “previously determined not to be a legitimate listing[.]” Id. at 584- 85. He sued Cars.com for negligence. Id. at 585. The court granted Cars.com’s motion to dismiss. Id. at 588-89. It held that Cars.com, as a website, was an “interactive computer service.” Id. at 586. The information on the site was Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 15 of 27 DB1/ 89411834.6 -10- created by the seller, and was therefore “that of another information content provider.” Id. at 587. Plaintiff’s lawsuit sought to treat Cars.com “as the publisher of the fraudulent material” and was therefore barred by the CDA. Id. The court held that the plaintiff’s “assertions that Cars[.com] failed to verify the legitimacy of advertisements and to promptly remove the fraudu- lent material once it was brought to its attention falls squarely within the CDA’s immunity provi- sions.” Id.; see also Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 834 (Cal. App. 4th 2002) (“en- forcing appellants’ negligence claim would place liability on eBay for simply compiling false and/or misleading content created by the individual defendants and other coconspirators.”). This case is on all fours with Okeke. Plaintiffs’ causes of action all arise from infor- mation created by the Dealers, which CarGurus listed on its website. See Am. Compl. ¶¶ 8-13. Plaintiffs made a request for information on CarGurus’ website, and received an email indicating that they would be contacted by the seller. Id. ¶ 9, Exhibit A. They now assert causes of action based on the information provided by the third party seller. See generally, id. Just like in Okeke, Plaintiffs’ claims are barred by the CDA because they seek to treat CarGurus “as the publisher of the fraudulent material.” See Okeke, 40 Misc. 3d at 587. Even crediting Plaintiffs’ implausible, conclusory contention that CarGurus “knew or should have known that there was an issue with the mileage because of the Carfax,” Am. Compl. ¶ 59, does not change the analysis. “It is, by now, well established that notice of the unlawful nature of the information provided is not enough to make it the service provider’s own speech.” Lycos, 478 F.3d at 420 (holding that CDA immunized website operator against liability for post- ings created by others, even if it was “manifestly aware of the illegal nature of the subscriber postings” and “involved itself” or “rendered culpable assistance to its subscribers . . . through the construct and operation of its web site”) (citing Zeran, 129 F.3d at 332-33; Barrett v. Rosenthal, Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 16 of 27 DB1/ 89411834.6 -11- 146 P.3d 510, 525 (Cal. 2006)). See Gentry, 99 Cal. App. 4th at 835 (rejecting the appellant’s argument that eBay “knew or should have known” about the third party’s fraudulent posting, be- cause such a claim would “hold eBay responsible for having notice of illegal activities conducted by others on its Web site,” which “is the classic kind of claim . . . preempted by section 230”); Okeke, 40 Misc. 3d at 588 (such a rule would “open an (Internet service provider) to liability for the wrongful acts of countless potential tortfeasors committed against countless potential victims. There is no justification for such a limitless field of liability.”) (quoting Lunney v. Prodigy Servs. Co., 94 N.Y.2d 242, 251 (N.Y. 1999)). Simply put, CarGurus cannot be liable for listing infor- mation from the Dealers’ advertisements on its website. B. Plaintiffs Fail to State Claims Under the Odometer Statutes. The Federal and Pennsylvania odometer tampering statutes contain virtually identical language. Accord Am. Compl. ¶¶ 73-74. They prohibit “advertis[ing] for sale, sell[ing], us[ing], install[ing], or hav[ing] installed . . . a device that makes an odometer of a motor vehicle register a mileage different from the mileage the vehicle was driven[.]”4 49 U.S.C. § 32703(1) (emphasis added); see also 75 Pa. C.S.A. § 7132(a). Plaintiffs allege that CarGurus made repre- sentations to them about the mileage of a car, not that CarGurus advertised “a device” to alter the mileage. Both statutes also prohibit altering an odometer, and the federal statute prohibits con- 4 “To survive a Rule 12(b)(6) motion to dismiss, a plaintiff suing under 49 U.S.C. § 32710 must allege that the defendant violated the Odometer Act with intent to defraud as to mile- age.” Bodine v. Graco, Inc., 533 F.3d 1145, 1151 (9th Cir. 2008) (citing Ioffe v. Skokie Motor- Sales, Inc., 414 F.3d 708, 715 (7th Cir.2005)). Accordingly, because these claims “sound[] in fraud, Plaintiffs’ pleadings must satisfy the ‘stringent’ Rule 9(b) requirements for particularity.” Travelers, 620 Fed. App’x 82 at 85. See also Pyatkova v. Motorcars, No. 2:15-CV-3263, 2016 WL 674862, at *2-*3 (D.N.J. Feb. 3, 2016) (dismissing Odometer Statute claim for failure to plead with particularity under Rule 9(b)), report and recommendation adopted, No. 15-CV-3263, 2016 WL 676371 (D.N.J. Feb. 18, 2016); Baxter v. Kawasaki Motors Corp., U.S.A., No. 07 C 6745, 2008 WL 8901361, at *2 (N.D. Ill. July 17, 2008) (“Fed. R. Civ. P. 9(b) applies to plead- ing Odometer Act claims[.]”). Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 17 of 27 DB1/ 89411834.6 -12- spiracy to violate the same section. See 49 U.S.C. § 32703(2), (4); 75 Pa. C.S.A. § 7132(b), (d). Plaintiffs do not allege that CarGurus itself altered the odometer in the car, nor do they allege that the defendants conspired to alter it, or even that it ever discussed the odometer reading with anyone. To the contrary, they allege that CarGurus knew of the incorrect mileage “because of [a] Carfax” that they nowhere allege CarGurus ever possessed or saw, not because of any (even allegedly) conspiratorial communications. Am. Compl. ¶ 59, 66. Because the plain language of the statutes does not apply to the conduct that Plaintiffs allege, Plaintiffs fail to state a cause of action against CarGurus for tampering with the odometer. See KNR, Inc. v. Copart, Inc., No. 1:14-cv-818, 2016 WL 1182727, at *5 (N.D. Ohio, March 28, 2016) (“Summary judgment is fur- ther warranted where Plaintiff’s Complaint fails to allege any facts supporting its claims that [de- fendant who auctioned car] did, in fact, advertise, sell, use or install a device to alter the odome- ter reading.”). Both the Federal and Pennsylvania statutes also contain disclosure requirements and oth- er provisions pertaining to owners and to “person[s] transferring ownership of a motor vehicle.” 49 U.S.C. § 32705; 75 Pa. C.S.A. § 7134. To be liable under these provisions, a defendant must own the vehicle. McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 230 (1st Cir. 1980) (af- firming dismissal and holding that because defendant did not own vehicle, it could not be liable as transferor; interpreting predecessor to § 32705), superseded by statute on other grounds; Ryan v. Edwards, 592 F.2d 756, 762 (4th Cir. 1979) (same); Riverside Lincoln Mercury Sales, Inc. v. Auto Dealers Exch. Co., No. 85 C 4649, 1987 WL 7280, at *5 (N.D. Ill. Feb. 25, 1987) (auction company was a mere agent and not owner, and could not be liable as a transferor under predeces- sor to § 32705); Indus. Indem. v. Arena Auto Auction, 638 F. Supp. 1030, 1033 (D. Minn. 1986) (“only entities or individuals which had an ownership interest in a vehicle could be liable under” Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 18 of 27 DB1/ 89411834.6 -13- the predecessor to § 32705)) (citing cases); Vasile v. Conley, 8 Pa. D. & C. 4th 387, 388 (Com. Pl. 1990) (auctioneer did not own vehicle and could not be liable as a transferor). Plaintiffs do not allege that CarGurus ever owned the car. They allege that in March 2014, defendants Vansant and Kelliher purchased the car “for themselves and for and on behalf of Sports & Imports” and recorded the mileage at 76,645. Am. Compl. ¶ 58(f). They allege that a previous owner of the car reported its mileage at 179,538 in February 2013. Id. ¶¶ 58(d)-(e). Plaintiffs allege that they purchased the car from Vansant and Kelliher, doing business as the Dealer. Id. ¶ 11. See also id. Exhibit B (Odometer Disclosure Statement listing “Sports & Im- ports” as the seller of the car); id. Exhibit E (Sales and Use Tax Report listing “Sports & Im- ports” as the “Motor Vehicle Dealer”). With respect to the odometer, the only action of CarGu- rus alleged in the Amended Complaint is that the information that CarGurus sent the Plaintiffs in response to their request for the same, see id. Exhibit A, included the mileage from the odometer that, according to the Amended Complaint, had been “tampered with” while the Car was in the Dealer’s exclusive control. Id. ¶ 65 (“The only persons who were in control of the [Car] during the time frame involving the odometer rollback were Defendants, Vansant and Kelliher, for themselves and for and on behalf of [the Dealer,] Sports & Imports”). Courts have held that parties who actually facilitated a sale, but never held title, are not liable as owners or transferors. For example, in KNR v. Copart, the plaintiff bought a car with an altered odometer through the defendant’s auction website. 2016 WL 1182727 at *1. The plain- tiff argued that the defendant auctioneer violated § 32705 and a comparable Ohio statute because it “transferred” the car without the required disclosures. Id. at *3. The court rejected plaintiff’s argument, holding that “[b]ecause [defendant] never held title or ownership interest in the subject vehicle it is not a transferor since it lacked t[he] ability to transfer ownership. Instead, it merely Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 19 of 27 DB1/ 89411834.6 -14- facilitated the sale from buyer to seller.” Id. at *4. CarGurus is even further removed from the transaction than the auctioneer in KNR; it merely put the sellers in touch with the Plaintiffs, who bought the car directly from the then owner of the Car, the Dealer. Am. Compl. ¶¶ 10-11, 67. Having never owned the car, CarGurus cannot be liable under 49 U.S.C. §§ 32703-04 and 75 Pa. C.S.A. § 7134. C. Plaintiffs Fail to State a Claim for Intentional Misrepresentation. “The elements of intentional misrepresentation are as follows: (1) A representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and[] (6) the resulting injury was proxi- mately caused by the reliance.” Bortz v. Noon, 556 Pa. 489, 499 (1999) (reversing judgment for lack of evidence of intent). Plaintiffs allege that the “information advertised to consumers about this vehicle was knowingly and intentionally provided with knowledge that it was false, and to induce an unsus- pecting purchaser to purchase.” Am. Compl. ¶ 32. “Because this theory sounds in fraud, Plain- tiffs’ pleadings must satisfy the ‘stringent’ Rule 9(b) requirements for particularity.” Travelers Indem. Co. v. Cephalon, Inc., 620 Fed. App’x 82, 85 (3d Cir. 2015) (citing Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007)); Fed. R. Civ. P. 9(b) (a party alleging fraud must “state with particularity the circumstances of the alleged fraud”). To state a claim with particularity, a plaintiff “must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation.” Frederico, 507 F.3d at 200. A plaintiff “also must allege who made a misrepresentation to whom and the general content of the misrepresentation.” Lum v. Bank of Am., 361 F.3d 217, 224 (3d Cir. 2004), abrogated in part on other grounds by Twombly, 550 U.S. at 557. Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 20 of 27 DB1/ 89411834.6 -15- The only statement of CarGurus that Plaintiffs allege with particularity is contained in the email attached to the Amended Complaint as Exhibit A. The email lists the price, mileage, loca- tion, and VIN number of a 2003 Honda CR-V and instructs that the “seller of this vehicle should be in touch with you soon.” Am. Compl. ¶ 9, Exhibit A. Where this is the only representation pleaded with particularity, it is the only allegation that can form the basis of a misrepresentation claim against CarGurus.5 See Travelers, 620 Fed. App’x at 85. Plaintiffs claim that this website-generated email understated the true mileage of the ve- hicle. Am. Compl. ¶¶ 20, 37. Even if, however, Plaintiffs are correct in this assertion, their claim for intentional misrepresentation fails. First, there is no factual allegation on which it can plausibly be inferred that CarGurus knew that the mileage in the Car listing was inaccurate. See Bortz, 556 Pa. at 489 (representation must be made “with knowledge of its falsity or recklessness as to whether it is true or false”). Nor is there any allegation that the “resulting injury” was “proximately caused by the reliance.” Id. All of the damages Plaintiffs claim flow from the car accident caused by a “locked steering wheel,” id. ¶¶ 27, 50, but the Amended Complaint contains no allegations explaining how the vehicle’s true mileage caused the wheel to lock. Where the Amended Complaint does not allege knowledge of falsity or causation, the claim should be dis- missed. See Walter v. Magee-Womens Hosp. of UPMC Health Sys., 2005 Pa. Super. 131, ¶ 14 (2005) (affirming dismissal where alleged misrepresentation was not “the proximate cause of the 5 Plaintiffs generally allege that they “were assured by Defendants that the motor vehicle herein named was in good and workable and marketable condition, did not have any outstanding acci- dents, had no recalls and the understated odometer reading was accurate.” Am. Compl. ¶ 23. They allege that CarGurus “represented that the said vehicle had no prior record of accidents,” id. ¶ 40, and “no outstanding recall notices,” id. ¶ 41. See also ¶¶ 44-55. These allegations are insufficient under Rule 9(b) because they fail to “allege the date, time and place” of the state- ments, Frederico, 507 F.3d at 200, and fail to “allege who made a misrepresentation to whom,” Lum, 361 F.3d at 224. Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 21 of 27 DB1/ 89411834.6 -16- alleged injury”), aff’d sub nom. Walter v. Magee Womens Hosp. of UPMC Health Sys., 588 Pa. 739 (2006). D. Plaintiffs Fail to State a Claim for Negligence. In order to state a claim for negligence, a plaintiff “must allege (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) a causal connection between the breach and the resulting injury; and (4) actual loss or damages.” McLaughlin v. Bayer Corp., No. CV 14-7315, 2016 WL 1161578, at *6 (E.D. Pa. Mar. 22, 2016). “A plaintiff is required to show not only negligence on the part of the defendant ‘but that the injuries complained of were the result of such negligence.’” Hillelson v. Renner, 183 Pa. Super. 148, 151 (1957). Proximate causation is an issue of law that may be decided on a motion to dismiss. See Chetty Holdings Inc. v. NorthMarq Capital, LLC, 556 F. App’x 118, 121 (3d Cir.), cert. denied, 135 S. Ct. 115 (2014). Plaintiffs fail to allege that the car accident was caused by any breach of duty by CarGu- rus. As a threshold matter, the Complaint only plausibly alleges that CarGurus re-published in- formation about the Car -- and really only about the Car’s mileage -- contained in the Dealer’s advertisements. They do not allege that CarGurus owed them a duty to confirm the accuracy of the information posted. Moreover, Plaintiffs do not plausibly allege causation, even if one cred- its the wholly conclusory and unsubstantiated allegations in the Amended Complaint that “De- fendants,” including supposedly (albeit inconceivably) CarGurus, “represented that the said ve- hicle had no prior record of accidents,” Am. Compl. ¶ 40, “no outstanding recall notices,” id. ¶ 41, and the incorrect mileage, id. ¶¶ 39, 43. Plaintiffs allege that the accident was caused by a “locked steering wheel” and that Plaintiffs’ injury resulted from the “failure of the airbag to de- ploy” during the accident. Id. ¶¶ 27-29. None of the statements Plaintiffs attribute to CarGurus relate to the accident. Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 22 of 27 DB1/ 89411834.6 -17- As previously stated, Plaintiffs allege no connection between the mileage of the car and the locked steering wheel. Nor do they allege that the vehicle’s previous history of accidents caused the steering wheel to lock. None of the recall notices concern a locking steering wheel or the failure of an airbag to deploy. See Exhibit F at 20 (recall concerning potential that “low beam headlights may become inoperative); id. at 21 (recall concerning potential failure of “pow- er window switch,” which could cause fire); id. at 22 (recalls because “increased internal pres- sure [in airbags] may cause the inflator to rupture (break apart) and deploy abnormally”). In fact, Plaintiffs’ allegations concerning the airbag recalls explicitly rule out causation. Plaintiffs allege that Ries sustained injuries because “the driver’s airbag did NOT deploy” during the accident. Am. Compl. ¶ 28; id. ¶ 29 (“The failure of the airbag to deploy resulted in serious bodily injury to” Ries.). The airbag recalls concerned a defect that could cause injury when the airbag does deploy and “metal fragments [] pass through the airbag cushion material possibly causing serious injury or fatality[.]” Id. at Exhibit F; id. at Exhibit H (“The devices have ruptured in five fatal accidents[.]”). A defect that occurs upon deployment could not have caused Plaintiffs’ injuries when the airbag never deployed. Because Plaintiffs allege no duty owed by CarGurus and no causation between the purported breach and their injury, their claim for negligence fails. E. Gross Negligence Is Not an Independent Tort in Pennsylvania. “[A]ny cause of action for gross negligence should be dismissed because that cause of ac- tion is not recognized under Pennsylvania law.” Fiorentino v. Cabot Oil & Gas Corp., 750 F. Supp. 2d 506, 513-14 (M.D. Pa. 2010); see also Salvio v. Amgen, Inc., 810 F. Supp. 2d 745, 756 (W.D. Pa. 2011) (“‘gross negligence’ refers to a standard of care, rather than to a separate claim.”); Jordan v. City of Philadelphia, 66 F. Supp. 2d 638, 644-45 (3d Cir. 1999) (dismissing gross negligence claim where negligence was also alleged). Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 23 of 27 DB1/ 89411834.6 -18- F. Plaintiffs Fail to State a Claim Under Pennsylvania’s Consumer Protection Act. In order to maintain an action under the Pennsylvania Unfair Trade Practices and Con- sumer Protection Law, a plaintiff must plead “(1) ascertainable loss of money or property, real or personal, (2) as a result of the defendant’s prohibited conduct under the statute.” Kaymark v. Bank of Am., N.A., 783 F.3d 168, 180 (3d Cir. 2015) (internal quotation marks and citations omitted), cert. denied sub nom. Udren Law Offices, P.C. v. Kaymark, 136 S. Ct. 794 (2016). A plaintiff must be able to establish that the violation of the statute caused her loss. See id.; DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 592 (Pa. Super. 2013) (“[T]he legislature ‘nev- er intended [the] statutory language . . . to do away with the traditional common law elements of reliance and causation.’”). Plaintiffs’ claim fails because they do not allege “prohibited” conduct by CarGurus. CarGurus’s representations are immune from liability under the CDA; its in- volvement with the sales transaction did not violate the Federal or the Pennsylvania odometer statutes; and its conduct did not amount to either intentional misrepresentation or negligence. Also, as described above, Plaintiffs do not allege any facts to support the inference that CarGu- rus’s alleged conduct caused the car accident and attendant injuries and losses for which they seek compensation. G. Plaintiffs Fail to State a Claim Under New Jersey’s Consumer Protection Act. In order to state a claim under the New Jersey Consumer Fraud Act (“CFA”), a plaintiff must allege “1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss.” Manahawkin Con- valescent v. O’Neill, 217 N.J. 99, 121 (2014) (citation omitted). Any loss that the Plaintiffs claim must have been caused by the alleged unlawful conduct. Mickens v. Ford Motor Co., 900 F. Supp. 2d 427, 437 (D.N.J. 2012) (“CFA causation is not infinitely elastic in a but-for sense; a Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 24 of 27 DB1/ 89411834.6 -19- plaintiff’s losses must be ‘particularly proximate to a misrepresentation or unlawful act of the defendant condemned by the [CFA].’”). Plaintiffs fail to state a claim under the CFA for the same reasons their Pennsylvania Unfair Trade Practices claim fails: they allege no “unlawful conduct” by CarGurus and they fail to plead facts to explain how CarGurus’s alleged conduct caused their injury. H. Plaintiffs Fail to Allege Facts Sufficient to Support a Claim for Punitive Damages. Pennsylvania courts award punitive damages “for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Feld v. Merriam, 506 Pa. 383, 395 (1984) (citation omitted) (holding that trial court erred in submitting punitive damages to jury). “Punitive damages must be based on conduct which is malicious, wanton, reckless, willful, or oppressive.” Id. (internal quotation marks and citation omitted). The court must consider only the defendant’s act or failure to act, together with the surrounding circum- stances, including the defendant’s “intentional, reckless or malicious” state of mind, and not any conduct of a third party or the end result. Id. at 396 (state of mind is “vital”). Punitive damages may not be awarded for negligence of any kind. See Slappo v. J’s Dev. Assocs., Inc., 2002 Pa. Super. 18, ¶ 21 (2002). Where the defendant is charged with being reckless, punitive damages may only be awarded for conduct that the defendant knew created “a high degree of risk of phys- ical harm to another.” Jackson v. Rohm & Haas Co., 56 Pa. D. & C. 4th 449, 463 (Com. Pl. 2002). As a matter of law, the allegations of the Amended Complaint, even if true, do not rise to the level of recklessness required to sustain a claim of punitive damages. Plaintiffs’ allegations do not support the inference that CarGurus’s alleged failure to report the correct mileage of the vehicle posed “a high degree of physical harm to another.” Id. Nor do Plaintiffs demonstrate Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 25 of 27 DB1/ 89411834.6 -20- any other outrageous conduct committed with the necessary state of mind. The court should ac- cordingly rule that Plaintiffs may not recover punitive damages. III. CONCLUSION For the foregoing reasons, defendant CarGurus, Inc. respectfully requests that the Court enter an order dismissing the Amended Complaint in its entirety and with prejudice. Dated: October 13, 2016 Respectfully submitted, By: /s/ Lily G. Becker Lily G. Becker Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Tel: (215) 963-5055 Fax: (215) 963-5001 E-mail: lily.becker@morganlewis.com Charles L. Solomont (admission pro hac vice) Julie V. Silva Palmer (pro hac vice pending) Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 Tel: (617) 341-7700 Fax: (617) 341-7701 E-mail: carl.solomont@morganlewis.com E-mail: julie.palmer@morganlewis.com Attorneys for Defendant CarGurus, Inc. Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 26 of 27 -21- CERTIFICATE OF SERVICE I hereby certify that on October 13, 2016, I electronically filed Defendant CarGurus, Inc.’s Motion to Dismiss the Second Amended Complaint, Memorandum of Law, and Proposed Order with the Clerk of the Court using the CM/ECF system, which will send notice to all regis- tered ECF participants. I further certify that on October 13, 2016, a true and correct copy of the foregoing documents were sent to the following recipients via U.S. Mail: Robert Kelliher 1522 Lamberton Road Trenton, NJ 08611 Matthew Vansant 1522 Lamberton Road Trenton, NJ 08611 /s/ Lily G. Becker Attorney for Defendant CarGurus, Inc. Case 2:16-cv-03762-TJS Document 39-1 Filed 10/13/16 Page 27 of 27