T.J. Mcdermott Transportation Co., Inc. v. Cummins, Inc. et al

MOTION to Dismiss for Lack of Jurisdiction Counts 3-9

D.N.J.February 1, 2017

Kurt M. Mullen, Esq. Samuel Goldblatt, Esq. (pro hac vice) W. Scott O’Connell, Esq. (pro hac vice) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 Telephone: (617) 345-1000 J. A. “Jay” Felton (pro hac vice) Kevin M. Kuhlman (pro hac vice) Lathrop & Gage LLP 2345 Grand Boulevard, Suite 2800 Kansas City, MO 64108 Telephone: (816) 292-2000 Attorneys for Defendant Cummins Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY T.J. McDERMOTT TRANSPORTATION CO., INC., DEMASE WAREHOUSE SYSTEMS, INC., HEAVY WEIGHT ENTERPRISES, INC., P&P ENTERPRISES CO., LLC, YOUNG'S AUTO TRANSPORT, INC., HARDWICK ALLEN, AND JOSE VEGA, Plaintiffs, vs. CUMMINS, INC., and PACCAR, INC. d/b/a PETERBILT MOTOR COMPANY AND KENWORTH TRUCK COMPANY, Defendants. : : : : : : : : : : : : : : : : : : : Civil Action No.: 2:14-cv-04209 (WHW)(CLW) NOTICE OF CUMMINS INC.’S MOTION TO DISMISS COUNTS 3-9 OF THE THIRD AMENDED COMPLAINT TO: ALL COUNSEL IN THE CAPTIONED MATTER: PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law and all prior pleadings and proceedings herein, defendant Cummins Inc. (“Cummins”) will move this Court before the Honorable District Court Judge William H. Walls, at the United States District Court for the District of New Jersey, Martin Luther King, Jr. U.S. Courthouse and Federal Case 2:14-cv-04209-WHW-CLW Document 130 Filed 02/01/17 Page 1 of 3 PageID: 2410 - 2 - Building, 50 Walnut Street, Room 4015, Newark, New Jersey, on March 6, 2017, for an Order granting Cummins’ motion to dismiss Counts 3-9 of the third amended complaint, and for such other and further relief as the Court deems just and proper. Cummins will rely upon a Memorandum of Law in support of its Motion. A proposed form Order is also submitted herewith. PLEASE TAKE FURTHER NOTICE that Cummins requests oral argument regarding the Motion. PLEASE TAKE FURTHER NOTICE that Plaintiffs must serve their opposition to Cummins’ Motion, if any, upon the undersigned counsel. Respectfully submitted, /s/ Kurt M. Mullen Kurt M. Mullen, Esq. Samuel Goldblatt, Esq. (pro hac vice) W. Scott O’Connell, Esq. (pro hac vice) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 Telephone: (617) 345-1000 kmullen@nixonpeabody.com sgoldblatt@nixonpeabody.com soconnell@nixonpeabody.com J. A. “Jay” Felton (pro hac vice) Kevin M. Kuhlman (pro hac vice) Lathrop & Gage LLP 2345 Grand Boulevard, Suite 2800 Kansas City, MO 64108 Telephone: (816) 292-2000 Counsel for Defendant Cummins Inc. Case 2:14-cv-04209-WHW-CLW Document 130 Filed 02/01/17 Page 2 of 3 PageID: 2411 - 3 - CERTIFICATE OF SERVICE I hereby certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing on all counsel of record. /s/ Kurt M. Mullen An Attorney for Defendant Case 2:14-cv-04209-WHW-CLW Document 130 Filed 02/01/17 Page 3 of 3 PageID: 2412 4849-8898-3617.1 Kurt M. Mullen, Esq. Samuel Goldblatt, Esq. (pro hac vice) W. Scott O’Connell, Esq. (pro hac vice) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 Telephone: (617) 345-1000 J. A. “Jay” Felton (pro hac vice) Kevin M. Kuhlman (pro hac vice) Lathrop & Gage LLP 2345 Grand Boulevard, Suite 2800 Kansas City, MO 64108 Telephone: (816) 292-2000 Attorneys for Defendant Cummins Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY T.J. McDERMOTT TRANSPORTATION CO., INC., DEMASE WAREHOUSE SYSTEMS, INC., HEAVY WEIGHT ENTERPRISES, INC., P&P ENTERPRISES CO., LLC, YOUNG'S AUTO TRANSPORT, INC., HARDWICK ALLEN, AND JOSE VEGA, Plaintiffs, vs. CUMMINS, INC., and PACCAR, INC. d/b/a PETERBILT MOTOR COMPANY AND KENWORTH TRUCK COMPANY, Defendants. : : : : : : : : : : : : : : : : : : : Civil Action No. 2:14-cv-04209 (WHW) (CLW) MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(2) and (6) Return Date: March 6, 2017 ORAL ARGUMENT REQUESTED Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 1 of 19 PageID: 2413 TABLE OF CONTENTS I. PRELIMINARY STATEMENT .................................................................. 1 II. RELEVANT BACKGROUND ..................................................................... 3 A. PLAINTIFFS’ OUT-OF-STATE CLAIMS FAIL FOR LACK OF PERSONAL JURISDICTION OVER CUMMINS ......................... 4 1. Plaintiff Must Make a Prima Facie Showing of Jurisdiction as to Each Claim. ....................................................................... 5 2. Plaintiffs Cannot Established Jurisdiction Over Cummins as to the Out-Of-State Claims .................................................. 6 B. THE CALIFORNIA PLAINTIFF’S CLAIMS LACK A SUFFICIENT FACTUAL BASIS AND SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(6) ................................ 9 III. CONCLUSION ............................................................................................ 14 Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 2 of 19 PageID: 2414 i TABLE OF AUTHORITIES Page(s) Cases AngioScore, Inc. v. TriReme Med., LLC, 70 F. Supp. 3d 951, 961 (N.D. Cal. 2014) .......................................................... 13 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................ 10 Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141 (3d Cir. 1992) ................................................................................. 5 Castaneda v. Fila USA, Inc., No. 11-CV-1033-H BGS, 2011 WL 7719013 (S.D. Cal. Aug. 10, 2011) ................................................................................................................... 12 D.G. v. Somerset Hills School Dist., 559 F. Supp. 2d 484 (D.N.J. 2008) ..................................................................... 11 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .................................................................................... 5, 7, 9 DeMaria v. Nissan N. Am., Inc., No. 15 C 3321, 2016 WL 374145 (N.D. Ill. Feb. 1, 2016) .......................... 2, 8, 9 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) ...................................................................................... 5, 7, 9 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) .......................................................................................... 7, 8 Jakks Pac., Inc. v. Conte, No. 11-479 ES, 2011 WL 6934856 (D.N.J. Dec. 30, 2011) ................................. 6 Kirkeby v. JP Morgan Chase Bank, N.A., No. 13CV377 ...................................................................................................... 13 KW Schramek Trucking v. Cummins, Inc., No. 2:17 cv 00309-WHW-CLW (D.N.J.)............................................................. 4 Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 3 of 19 PageID: 2415 ii N. Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687 (3d Cir. 1990) ................................................................................. 7 O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312 (3d Cir. 2007) ................................................................................. 5 Remick v. Manfredy, 238 F.3d 248 (3d Cir. 2007) ............................................................................. 6, 8 Reuben v. U.S. Airways Inc., 500 F. App'x 103 (3d Cir. 2012) ..................................................................... 9, 10 Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ................................................... 5 Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003) ................................................................................. 5 Walden v. Fiore, 134 S. Ct. 1115 (2014) ...................................................................................... 5, 9 Statutes Cal. Bus. & Prof. Code § 17200 .............................................................................. 13 Cal. Com. Code § 2313 ............................................................................................ 11 California’s Unfair Competition Law ................................................................ 13, 14 Other Authorities Fourteenth Amendment ............................................................................................. 5 N.J. Ct. R. 4:4-4 ......................................................................................................... 5 Fed. R. Civ. P. Rule 9(b) .................................................................................... 13, 14 Fed. R. Civ. P. Rule 12(b)(6) ..................................................................................... 9 Due Process Clause .................................................................................................... 5 Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 4 of 19 PageID: 2416 4849-8898-3617.1 1 Defendant Cummins Inc. (“Cummins”) respectfully submits this Memorandum of Law in support of its Motion to Dismiss Counts 3-9 of the Third Amended Complaint (Dkt. No. 104) (“TAC”) pursuant to Rules 12(b)(2) and 12(b)(6). 1 I. PRELIMINARY STATEMENT The Plaintiffs are different trucking companies from around the United States who purchased PACCAR trucks powered by Cummins engines. They claim certain components of their tractors did not perform as they expected. Based on the alleged shortcomings in the tractors and their engines, Plaintiffs assert breach of warranty claims arising under the law of six states, including New Jersey, California, Florida, Georgia, Michigan, and Connecticut, and consumer protection claims under state statutes in New Jersey, California, and Florida. Notably, none of the Plaintiffs claim to have purchased their trucks in New Jersey, or allege any conduct on the part of Cummins in New Jersey. The only claim even remotely associated with Cummins’ New Jersey activities, based on the allegations in the TAC, is the breach of express warranty claim asserted by McDermott and DeMase (the “New Jersey Plaintiffs”); they allege a Cummins authorized repair facility performed repairs in New Jersey that 1 Counts 1-2 are being pursued by New Jersey-based Plaintiffs and are not the subject of this Motion. Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 5 of 19 PageID: 2417 4849-8898-3617.1 2 were not covered by Cummins’ warranty. Cummins is not challenging the Court’s jurisdiction over this claim, but the fact that Cummins may be subject to the Court’s jurisdiction for one specific claim does not mean that Cummins is subject to the Court’s jurisdiction for other purposes. DeMaria v. Nissan N. Am., Inc., No. 15 C 3321, 2016 WL 374145, at *6-8 (N.D. Ill. Feb. 1, 2016). For Counts 3-9, the out-of-state claims, the Plaintiffs have not alleged any facts suggesting Cummins is subject to jurisdiction in New Jersey. The TAC is devoid of allegations associating this lawsuit with Cummins’ conduct in New Jersey. Plaintiffs cannot establish specific jurisdiction because these out-of-state claims do not arise out of Cummins’ conduct in New Jersey. And as recent U.S. Supreme Court decisions make clear, Plaintiffs cannot establish general jurisdiction over Cummins. The out-of-state claims must be dismissed. In addition, Counts 3 and 4, asserted by Jose Vega (“Vega” or “California Plaintiff”), should be dismissed because Vega did not purchase a tractor possessing a Subject Engine, as that term is defined by Plaintiffs. The TAC fails to allege facts sufficient to support a warranty claim or consumer fraud claim in California and those claims should be dismissed. For these reasons, as more fully discussed below, the Court should dismiss Counts 3-9 of the TAC. Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 6 of 19 PageID: 2418 4849-8898-3617.1 3 II. RELEVANT BACKGROUND This action started as a single plaintiff matter brought by T. J. McDermott Transportation Co., Inc. (“McDermott”). In January 2016, the action morphed into a putative class action by the joinder of DeMase Warehouse Systems, Inc., Heavy Weight Enterprises, Inc., P&P Enterprises Co., LLC, Young’s Auto Transport, Inc., Hardwick Allen, and Jose Vega, each asserting claims arising under the laws of 6 different states. Plaintiffs allege that they purchased Kenworth or Peterbilt heavy-duty trucks manufactured by defendant PACCAR, Inc. (“PACCAR”) equipped with Cummins ISX15 diesel engines, specifically, the Cummins ISX15 engines that were manufactured to comply with the Environmental Protection Agency’s (“EPA”) 2010 Heavy Duty On Highway Emissions Standard. Plaintiffs seek to represent members of classes and sub-classes under the laws of various states based on claims for breach of express warranty and various states’ consumer fraud laws. Plaintiffs have filed numerous complaints since the inception of this matter. The original Complaint was filed on July 2, 2014 (Dkt. #1) (single plaintiff action); the Amended Complaint was filed on September 2, 2014 (Dkt. #17) (single plaintiff action); the Second Amended Complaint was filed on January 8, 2016 (Dkt. #72) (putative class action with the joinder of new plaintiffs); and finally, the TAC was filed on September 6, 2016 (Dkt. #104) (attempt to expand definition of Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 7 of 19 PageID: 2419 4849-8898-3617.1 4 “Subject Engines” to include 2013 and later model years). The Court struck the Plaintiffs’ attempt to expand the definition of the Subject Engines on January 18, 2017. The TAC, without the expansion to the later model year engines, is now the operative Complaint. 2 A. PLAINTIFFS’ OUT-OF-STATE CLAIMS FAIL FOR LACK OF PERSONAL JURISDICTION OVER CUMMINS The Second Amended Complaint (“SAC”) was the first pleading that joined the non-New Jersey based plaintiffs and asserted claims on a putative class basis. In its Answer to the SAC, Cummins denied that personal jurisdiction was appropriate as to the newly asserted claims. (Dkt. #76, ¶13). That was the first opportunity to raise the defense of personal jurisdiction as to the claims at issue in this motion. PACCAR filed a partial motion to dismiss the SAC, which was granted in part and denied in part, resulting in Plaintiffs filing of the TAC on September 6, 2016. The TAC did nothing to address the blatant jurisdictional problems surrounding the newly raised parties and claims. The claims should be dismissed. 2 On January 17, 2017, the New Jersey counsel in this case filed another action against Cummins, titled KW Schramek Trucking v. Cummins, Inc., No. 2:17 cv 00309-WHW-CLW (D.N.J.). It is identified as a related case to the instant matter. KW Schramek raises personal jurisdiction issues as well, because the plaintiff in that action is from Colorado and purchased trucks in Utah and Pennsylvania. See KW Schramek Trucking v. Cummins, Inc., No. 2:17 cv 00309-WHW-CLW (D.N.J.) Dkt. No. 1. Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 8 of 19 PageID: 2420 4849-8898-3617.1 5 1. Plaintiff Must Make a Prima Facie Showing of Jurisdiction as to Each Claim. A federal court sitting in diversity “typically exercises personal jurisdiction according to the law of the state where it sits.” O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007) (citing Fed. R. Civ. P. 4(k)). The New Jersey long-arm rule extends to the limits of the Fourteenth Amendment Due Process Clause. See N.J. Ct. R. 4:4-4; see also Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 145 (3d Cir. 1992). To satisfy the Due Process Clause, a court may exercise personal jurisdiction over a nonresident defendant if that defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int.’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks omitted). Depending on the type of minimum contacts, personal jurisdiction can be specific or general. See generally Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014); Walden v. Fiore, 134 S. Ct. 1115, 1121 n.6 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923-24 (2011). When facing a Motion to Dismiss based on the lack of jurisdiction, “the plaintiff bears the burden of demonstrating facts that support personal jurisdiction.” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003). “The plaintiff may not rely on the bare pleadings alone in order to withstand the Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 9 of 19 PageID: 2421 4849-8898-3617.1 6 defendant’s “motion, but instead “must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence.” Jakks Pac., Inc. v. Conte, No. 11-479 ES, 2011 WL 6934856, at *2 (D.N.J. Dec. 30, 2011) (citing Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984)). Where, as here, there are multiple claims arising from differing conduct occurring in different states, each claim must be analyzed independently to determine if there is personal jurisdiction over the defendant with respect to each claim. Remick v. Manfredy, 238 F.3d 248, 255-56 (3d Cir. 2007). In this case, this Court lacks personal jurisdiction over Cummins with respect to those claims asserted by the nonresident plaintiffs. These claims arise out of alleged conduct occurring outside New Jersey, and Cummins is not subject to general jurisdiction in New Jersey. The nonresident plaintiffs’ claims should be dismissed accordingly. 2. Plaintiffs Cannot Established Jurisdiction Over Cummins as to the Out-Of-State Claims Plaintiffs have not pled sufficient facts to establish personal jurisdiction over Cummins in New Jersey with respect to the nonresident plaintiffs’ claims. These claims do not arise out of Cummins’ forum activities, nor is Cummins subject to general jurisdiction in New Jersey such that it should be required to respond to a lawsuit in New Jersey unrelated to its activities there. Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 10 of 19 PageID: 2422 4849-8898-3617.1 7 First, general jurisdiction does not exist over Cummins in New Jersey. General jurisdiction is only appropriate where a corporate defendant is “at home.” Daimler, 134 S. Ct. at 760. A corporation is generally held to be “home” where it has its “place of incorporation and principal place of business.” Id. Finding a corporation at “home” in every state in which it engages in substantial, continuous, and systematic business would be “unacceptably grasping.” Id. at 761. The Supreme Court has made clear that “[a]corporation’s ‘continuous activity of some sorts within a state . . . is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” Goodyear, 564 U.S. at 927 (quoting Int'l Shoe, 326 U.S. at 318). Cummins is an Indiana corporation with its principal place of business in Indiana. Plaintiffs’ TAC does not contain any facts to support the exercise of general jurisdiction over Cummins in New Jersey. Second, specific jurisdiction is lacking with respect to the nonresident plaintiffs’ claims. “Specific jurisdiction is invoked when the cause of action arises from the defendant’s forum related activities.” N. Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 690 (3d Cir. 1990); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). Specific jurisdiction must be assessed on a claim-by-claim basis, and because general jurisdiction may not be exercised over Cummins, any claim not arising out of Cummins’ in forum conduct Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 11 of 19 PageID: 2423 4849-8898-3617.1 8 must be dismissed. See id.; see also Remick v. Manfredy, 238 F.3d 248, 255-56 (3d Cir. 2007). Here, Plaintiffs McDermott and DeMase are residents of New Jersey. They allege that Cummins failed to cover engine repairs that were made in New Jersey. Cummins is not challenging jurisdiction as to their claims. 3 But there are no allegations suggesting that any of the nonresident plaintiffs’ claims have anything to do with Cummins’ conduct in New Jersey. Put simply, Plaintiffs do not claim that Cummins’ conduct in New Jersey caused them any harm whatsoever. There is no basis for subjecting Cummins to a lawsuit in New Jersey by out-of-state plaintiffs or the putative class members who they seek to represent. The analysis in DeMaria is instructive here. DeMaria v. Nissan N. Am., Inc., No. 15 C 3321, 2016 WL 374145 (N.D. Ill. Feb. 1, 2016). In DeMaria, an Illinois plaintiff alleged that a breach of warranty occurred in Illinois. Id. at *9. The plaintiff sought to represent a nationwide class of consumers, and similar to what the Plaintiffs have done here, joined parties from various other states to represent putative subclasses for claims arising elsewhere. Id. at *12-13. As here, all of the out-of-state claims stemmed from conduct occurring outside of the forum 3 While not part of this motion, Cummins expects that discovery will reveal McDermott and DeMase also do not have viable claims under New Jersey law as their purchase transactions have no connection to New Jersey. Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 12 of 19 PageID: 2424 4849-8898-3617.1 9 state. The defendant challenged jurisdiction over the out-of-state claims. 4 The DeMaria Court analyzed Daimler, Goodyear, and Walden, and dismissed all out- of-state claims because they did not arise out of the defendant’s forum conduct. Id. at *6-9. The Court concluded it had no legitimate basis for hearing claims originating from conduct occurring all over the country and not arising out of the defendant’s conduct in Illinois. Here, too, this Court and the New Jersey residents who may be called to serve as jurors have no business deciding controversies between parties that have no nexus with this state. This Court should follow the DeMaria court’s reasoning and dismiss Plaintiffs’ out-of-state claims. B. THE CALIFORNIA PLAINTIFF’S CLAIMS LACK A SUFFICIENT FACTUAL BASIS AND SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(6) In addition to the jurisdictional issue, this Court should dismiss the claims of the California Plaintiff (Jose Vega) pursuant to Rule 12(b)(6), because they lack a sufficient factual basis relating to the engine purchased by Vega. “A well-pleaded complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Reuben v. U.S. Airways Inc., 500 F. App'x 4 The Demaria case has facts strikingly similar to those at issue here. By applying the Supreme Court’s evolving standard on general jurisdiction as detailed in Daimler, 134 S. Ct. 746, 754 (2014) and Walden v. Fiore, 134 S. Ct. 1115, 1121 n. 6 (2014), the Demaria court concluded that it lacked personal jurisdiction over the non-resident plaintiffs and claims which had no nexus to the forum. Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 13 of 19 PageID: 2425 4849-8898-3617.1 10 103, 104 (3d Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)). A cause of action cannot be based upon allegations that are nothing more than “labels and conclusions” or “formulaic recitation[s] of the elements of [the] cause of action.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Indeed, the Supreme Court has decreed that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. at 678 (emphasis added). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The TAC alleges that California Plaintiff purchased “a new 2014 Peterbilt vehicle VIN #1XPXD49X2ED222242 for $132,581.88.” (Dkt. #104, ¶43). The Plaintiffs have admitted that Vega’s tractor did not contain a Subject Engine; it was powered by a 2013 Cummins ISX15. See Dkt. #122, pp. 6-8. 5 5 The Court could also review and rely on the documents referenced in the TAC in assessing this Motion. Because Plaintiffs incorporate the applicable Cummins warranty and its purchase documents as part of the TAC, the Court can properly consider their content in addressing this Motion to Dismiss. See D.G. v. Somerset Hills School Dist., 559 F. Supp. 2d 484, 491 (D.N.J. 2008) (noting an exception to the general rule on considering matters extraneous to the pleadings permits consideration of (1) exhibits to complaint; (2) matters of public record; and, (3) all documents that are integral to or explicitly relied upon in the complaint). Copies will be provided if needed, but this fact cannot be contested. Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 14 of 19 PageID: 2426 4849-8898-3617.1 11 First, the California Plaintiff asserts a claim based on an alleged breach of warranty. The California Express Warranty Statute (Cal. Com. Code §2313) provides: Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model. Thus, at a minimum, “[t]o prevail on a breach of express warranty claim, the plaintiff must prove (1) the seller’s statements constitute an affirmation of fact or promise or a description of the goods; (2) the statement was part of the basis of the bargain; and (3) the warranty was breached.” Castaneda v. Fila USA, Inc., No. 11- CV-1033-H BGS, 2011 WL 7719013, at *3 (S.D. Cal. Aug. 10, 2011) (interpreting California law). The TAC is virtually devoid of any facts pertaining to Cummins 2013 model year engine. Plaintiffs base their California warranty claim on a reference to “Cummins 2010 Heavy-Duty and MidRange Products Customer Q&A, © Cummins, Inc., dated March 2009” and other materials discussing the 2010 ISX: 91. Cummins provides a base engine warranty against defects in material and workmanship for 2 years, 250,000 miles, or 6,250 hours of operation, whichever occurred first. Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 15 of 19 PageID: 2427 4849-8898-3617.1 12 92. Cummins also expressly warranted that the Subject Engines, Exhaust Systems and their on-board diagnostic system in the Subject Vehicles were engineered to run without problems for at least 250,000 miles. 93. Cummins further warranted the Subject Vehicles’ DPF would operate without replacement for 200,000 miles. See Cummins 2010 Heavy-Duty and MidRange Products Customer Q&A, © Cummins, Inc., dated March 2009. See Dkt. #104 at Count 3. The California Plaintiffs claim that Cummins breached a warranty because it (1) placed its 2010 engine in the stream of commerce with known defects; (2) delivered the 2010 ISX that was worth less than what they believed they were purchasing; and, (3) did not repair or cover all expenses associated with fixing the 2010 ISX. See Dkt. #104, ¶¶94-97. But the California Plaintiff did not own a 2010 ISX or claim that Cummins performed any action, wrongful or not, with respect to the engine it actually purchased. Without asserting any facts to support his claim, Vega’s breach of warranty claim is insufficient and should be dismissed. Similarly, the California Unfair Competition Law claim (Count 4) is deficient and lacks factual support. California’s Unfair Competition Law (“CUCL”) prohibits any “unlawful, unfair or fraudulent business act or practices” and “unfair, deceptive, untrue or misleading advertising.” See Cal. Bus. & Prof. Code § 17200. Generally, plaintiffs must allege “some form of economic loss” because CUCL claims can only be brought by a person who “has suffered injury in Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 16 of 19 PageID: 2428 4849-8898-3617.1 13 fact and has lost money or property as a result of the fair competition.” See AngioScore, Inc. v. TriReme Med., LLC, 70 F. Supp. 3d 951, 961 (N.D. Cal. 2014) (citing Cal. Bus. & Prof. Code § 17204). When a CUCL claim sounds in fraud, federal courts have required plaintiffs to plead their claims with particularity pursuant to Rule 9(b). See Kirkeby v. JP Morgan Chase Bank, N.A., No. 13CV377 WQH-MDD, 2014 WL 4364836, at *5 (S.D. Cal. Sept. 3, 2014) (“Plaintiff's UCL claim is based on Defendants' fraudulent concealment or failure to disclose the true nature of marked-up, default-related fees. Because this claim sounds in fraud, it is subject to the heightened pleading standard of Rule 9(b).”). Plaintiffs’ CUCL claim is fraud based. Plaintiffs allege that Defendants’ purported misrepresentations to Vega and the California Class induced them to purchase Defendants’ products. Plaintiffs allege that Defendants committed “fraudulent” actions “because of the omissions regarding the defective nature of the Subject Engines and its Exhaust Systems,” and that Defendants’ “misrepresentations regarding the defective nature of the Subject Engines” caused Vega and the California Class suffer injury. See Third Amended Complaint, Count 4, Dkt. #104 at ¶¶ 105-108. Therefore, Plaintiffs’ CUCL claim must meet Rule 9(b)’s heightened pleading standard. Here, Plaintiffs fail to allege any facts that demonstrate that Cummins violated the CUCL with respect to the Cummins’ 2013 ISX15 engine purchased by Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 17 of 19 PageID: 2429 4849-8898-3617.1 14 Vega. Indeed, the TAC does not identify any misrepresentations that Cummins allegedly made with respect to the product actually purchased by Vega. Plaintiff’s formulaic allegations pertaining to a different product purchased by others outside of California are insufficient to support a plausible CUCL claim against Cummins. III. CONCLUSION For the foregoing reasons, this Court should dismiss Counts 3-9 of Plaintiffs’ TAC. Dated: February 1, 2017 Respectfully submitted, /s/ Kurt M. Mullen Kurt M. Mullen, Esq. Samuel Goldblatt, Esq. (pro hac vice) W. Scott O’Connell, Esq. (pro hac vice) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 Telephone: (617) 345-1000 kmullen@nixonpeabody.com sgoldblatt@nixonpeabody.com soconnell@nixonpeabody.com J. A. “Jay” Felton (pro hac vice) Kevin M. Kuhlman (pro hac vice) Lathrop & Gage LLP 2345 Grand Boulevard, Suite 2800 Kansas City, MO 64108 Telephone: (816) 292-2000 Counsel for Defendant Cummins Inc. Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 18 of 19 PageID: 2430 4849-8898-3617.1 15 CERTIFICATE OF SERVICE I hereby certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing on all counsel of record. /s/ Kurt M. Mullen An Attorney for Defendant Case 2:14-cv-04209-WHW-CLW Document 130-1 Filed 02/01/17 Page 19 of 19 PageID: 2431 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY T.J. McDERMOTT TRANSPORTATION CO., INC., DEMASE WAREHOUSE SYSTEMS, INC., HEAVY WEIGHT ENTERPRISES, INC., P&P ENTERPRISES CO., LLC, YOUNG'S AUTO TRANSPORT, INC., HARDWICK ALLEN, AND JOSE VEGA, Plaintiffs, vs. CUMMINS, INC., and PACCAR, INC. d/b/a PETERBILT MOTOR COMPANY AND KENWORTH TRUCK COMPANY, Defendants. : : : : : : : : : : : : : : : : : : : Civil Action No.: 2:14-cv-04209 (WHW)(CLW) [PROPOSED] ORDER Defendant Cummins Inc. (“Cummins”), having moved this Court for an Order granting its Motion to Dismiss Counts 3-9 of the Third Amended Complaint, and said matter having come before the Court to be heard, and Upon consideration of the papers submitted in support of and in opposition to said motion, and any oral argument, and good cause having been shown, it is by the Court this ____ day of ________________, 2017 Ordered, adjudged and decreed that the Court grants Cummins’ Motion to Dismiss Counts 3-9 of the Third Amended Complaint. SO ORDERED, ____________________________________ Hon. U.S.D.J. W. H. Walls Case 2:14-cv-04209-WHW-CLW Document 130-2 Filed 02/01/17 Page 1 of 1 PageID: 2432