In class actions, “such reasonable opportunity [to cure a failure to comply] will be afforded by the named plaintiffs and they shall at that time notify the defendant that they are acting on behalf of the class.” 15 U.S.C. § 2310(e) (emphasis added). “Reasonable opportunity to cure” means that “the seller has a practical opportunity to repair or replace defective parts of a contracted-for product.”

Ms. Scarlott is not, and was not, required to submit to Nissan’s IDR program. See 15 U.S.C. § 2310(a); Muller v. Winnebago Industries, Inc. 318 F. Supp .2d 844 (D. Ariz. 2004) (holding that the Better Business Bureau Autoline program, which is wholly funded by the automotive industry, is non-compliant with federal law based on failure to award incidental damages such as loss of use and aggravation and inconvenience damages, and that the plaintiff was not obligated to participate in Autoline program before filing suit).27 VI. NISSAN VIOLATED THE TEXAS DECEPTIVE TRADE PRACTICES ACT AT SECTION 17.

6 09-5582 (DMC) (JAD), 2010 U.S. Dist. LEXIS 83584, at *13, n.3 (D.N.J. Aug. 16, 2010). None of these courts held, as FCA implies, that 15 U.S.C. § 2310(e) is surplusage and that Congress intended for state law notice requirements to control under federal law. c.

F. Magnuson-Moss Warranty Act 2014 U.S. Dist. LEXIS 98075, *27 Case 3:17-cv-00294-ARC Document 13-1 Filed 05/08/17 Page 29 of 69 Page 9 of 11 Pamela Sandillo Defendants also move to dismiss Plaintiffs' implied and express warranty claims under the Magnuson-Moss Warranty Act (MMWA). Under the MMWA, 15 U.S.C. § 2310(d)(1), "a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief." Regarding warranty claims under the MMWA, "this court's disposition of the state law warranty claims determines the disposition of the Magnuson-Moss Act claims."

See Birdsong v. Apple, Inc., 590 F.3d 955, 958, n. 2 (9th Cir. 2009). Further, Plaintiffs’ failure to avail themselves of Toyota’s information dispute resolution procedures as required by 15 U.S.C. § 2310(a) requires dismissal of Plaintiffs’ Magnuson-Moss Warranty Act claim. Plaintiffs fail to otherwise allege an “unlawful” or “unfair” business practices that would give rise to any state consumer protection claim.

This was central to this the Court decision to dismiss the MMWA case in Kearney. See id. (noting that “Plaintiffs have—by their own admission—failed to comply with [§ 2310(a)(3)(C)(ii)]”). Cf. Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984)

Congress has declared that a consumer or a class of consumers may not proceed in a civil action unless the consumer or class representative first resorts to the warrantor's informal dispute settlement procedure. 15 U.S.C. § 2310(a)(3)(C)(i), (ii). By implication, Plaintiffs have conceded that all named Plaintiffs, with the exception of Susan Gonzalez and Carl Nyquist, have failed to resort to Toyota's informal dispute settlement procedures.

Tellingly absent from the Complaint is any allegation that ATTM made an express warranty for the iPhone (because it did not).12 While the MMWA provides consumers with a cause of action for violations of the statute, recovery is only permitted against the warrantor who made the written warranty. 15 U.S.C. § 2310(d)(1), (f) (2006) (“any rights arising [under the warranty] may be enforced under [the MMWA] only against such warrantor and no other person”). Where, as here, a complaint fails to allege the defendant made or adopted the written warranty, that claim should be dismissed.

See 15 U.S.C. § 2310(d)(1) (creating a “civil action” for a “consumer who is damaged by the failure of a . . . warrantor . . . to comply with any obligation . . . under a written warranty [or] implied warranty). Therefore, without a viable state breach of warranty claim, a Magnuson-Moss claim cannot proceed.

Plaintiffs’ MMWA claim also fails because Plaintiffs do not allege that they availed themselves of Toyota’s informal dispute resolution procedures, as required by 15 U.S.C. § 2310(a).