This matter is before the court on General Motors Corporation's ("defendant" or "GM") motions to dismiss*fn1 John Paikai's ("Florida plaintiff" or "Paikai") second amended complaint and David B. Sidner's ("Ohio plaintiff" or "Sidner") complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn2
Defendant asserts that both complaints fail to state a claim upon which relief can be granted under the relevant State's laws. Specifically, defendant contends that there is no claim of unjust enrichment under Florida or Ohio law when a valid contract governs the transaction (Fla. Def.'s Mem. of P. & A., filed Sept. 22, 2008 ("Fla. MTD"), at 1; Ohio Def.'s Mem. of P. & A., filed Oct. 23, 2008 ("Ohio MTD"), at 1.), and that Ohio plaintiff's unjust enrichment claim also fails because Sidner did not adequately plead that he conferred a benefit on defendant. (Ohio MTD at 1.) Defendant further contends that Paikai and Sidner failed to state claims under the Florida Deceptive and Unfair Trade Practices Act ("Florida DUTPA" or "FDUTPA") and the Ohio Consumer Sales Practices Act ("Ohio CSPA" or "OCSPA") respectively, or, alternatively, that plaintiffs failed to meet the heightened pleading requirements of Rule 9(b) for these claims. (Fla. MTD at 1-2; Ohio MTD at 1-2.) Lastly, defendant asserts that plaintiffs' class claims fail because the elements of the various claims make them "unsuitable for class treatment." (Fla. MTD at 2; Ohio MTD at 2.) Plaintiffs oppose the motions or, in the alternative, seek leave to amend their complaints.
For the reasons set forth below, defendant's motions to dismiss are GRANTED in part and DENIED in part. Plaintiff is granted leave to amend on the grounds set forth below.*fn3
Plaintiffs claims arise from the following alleged facts:
1. Facts Pertaining to Both Plaintiffs
The tires on 2004, 2005, and 2006 Pontiac GTOs are "prone to failure because the suspension system and alignment settings (and specifically the camber settings) are improperly designed, assembled, and/or installed, causing, inter alia, uneven and premature tire wear and failure, as well as causing the inside front tires to graze the struts during normal operation and use." (Fla. Pl.'s Second Am. Compl., filed Aug. 14, 2008 ("Fla. Compl."), ¶ 2; Ohio Pl.'s Compl., filed Oct. 23, 2008 ("Ohio Compl."), ¶ 2.) The subject GTOs were built by defendant GM on the same platform as Australia's Holden Monaro ("Monaro"), which is manufactured by the GM subsidiary GM Holden Limited. (Fla. Compl. ¶ 3; Ohio Compl. ¶ 3.) The Monaros were equipped with 235 mm wide tires mounted on 17" wheels. (Fla. Compl. ¶ 3; Ohio Compl. ¶ 3.) However, the vehicles at issue were equipped with 245 mm wide tires mounted on 17" wheels when sold as GTOs within the United States. (Fla. Compl. ¶ 3; Ohio Compl. ¶ 3.)
Defendant provided plaintiffs and each owner and lessee of the subject vehicles with a 3 year, 36,000 mile bumper-to-bumper factory warranty. (Fla. Compl. ¶ 20; Ohio Compl. ¶20.) The warranty, in relevant part, states:
The warranty covers repairs to correct any vehicle defect related to materials or workmanship occurring during the warranty period.
Warranty repairs, including towing, parts, and labor, will be made at no charge.
The tires supplied with your vehicle are covered against defects in material or workmanship under the Bumpter-to-Bumper coverage. Any tire replaced will continue to be warranted for the remaining portion of the Bumper-to-Bumper coverage period. (Fla. Compl. ¶ 20; Ohio Compl. ¶ 20.) In addition to the warranty, defendant made the following assertions in its GTO owner's manual:
The wheels on your vehicle were aligned and balanced carefully at the factory to give you the longest tire life and best overall performance. Scheduled wheel alignment and wheel balancing are not needed. (Fla. Compl. ¶ 21; Ohio Compl. ¶ 21.)
Plaintiffs allege that defendant, through its "marketing and sales campaign," and in its "sales and marketing materials, warranties, and through its sales representatives" concealed, failed to disclose, and misrepresented material information regarding the vehicles. (Fla. Compl. ¶ 22; Ohio Compl. ¶22.) Specifically, plaintiffs allege that defendant omitted and misrepresented information relating to defects in "the suspension system and alignment setting," that such defects would cause premature tire wear, and that defendant would not repair or provide full reimbursement for damages caused by the defects. (Fla. Compl. ¶ 22; Ohio Compl. ¶ 22.) According to plaintiffs, defendant was on notice and "had exclusive knowledge of the defects and reduced useful life of the tires that resulted." (Fla. Compl. ¶¶ 24-25; Ohio Compl. ¶¶ 24-25.) Had plaintiffs known of these defects, they "would not have purchased, or would have paid substantially less for, their Vehicles." (Fla. Compl. ¶ 23; Ohio Compl. ¶ 23.) For these reasons, plaintiffs maintain that "the limited warranties accompanying the Vehicles are unconscionable." (Fla. Compl. ¶ 26; Ohio Compl. ¶ 26.)
2. Facts Pertaining to Florida Plaintiff
On September 20, 2005, Paikai purchased a 2005 Pontiac GTO from Allen J. Pontiac ("Allen"), an authorized GM dealership in Florida, through a written sales contract. (Fla. Compl. ¶¶ 7, 27.) Paikai's GTO came with standard 17" wheels and BF Goodrich tires. (Id.) On April 20, 2006, plaintiff took his GTO to Yarbrough Tire ("Yarbrough") in Lake Placid, Florida in response to finding his tires significantly worn after 12,003 miles. (Id. ¶ 30.) Yarbrough determined that the tires needed replacement. (Id.) Paikai paid Yarbrough $1895.14 for four new wheels and tires. (Id.)
Paikai took his GTO to Allen in October 2007 because he thought it was pulling to the right. (Id. ¶ 34.) Allen realigned the vehicle, explaining that the alignment, specifically the camber, was out of specification. (Id.) Later, on December 17, 2007, plaintiff returned to Yarbrough to purchase four new tires due to inner shoulder wear, despite having used the tires for only 20,369 miles and rotating them according to schedule. (Id. ¶ 35.) The tires cost $568.13. (Id.)
Paikai filed the instant action on November 15, 2007 on behalf of himself and all others similarly situated. Plaintiff asserts class action claims for: (1) violations of the Florida DUTPA, Fla. Stat. section 501.201 et seq.; (2) breach of warranty; and (3) unjust enrichment. Plaintiff filed a first amended complaint on April 3, 2008 and a second amended complaint on August 14, 2008, modifying certain factual allegations but asserting the same causes of action against defendant. Defendant now moves to dismiss Paikai's second amended complaint for failure to state a claim upon which relief can be granted.
3. Facts Pertaining to Ohio Plaintiff
On April 4, 2006, Sidner purchased a new 2006 GTO from H & K Motor Sales, Inc., ("H & K"), an authorized GM dealership in Ohio. (Ohio Compl. ¶ 27.) He purchased the vehicle pursuant to a written contract for $29,200.00. (Id.) In early January 2008, Sidner telephoned Haydocy Pontiac GMC Buick ("Haydocy"), an authorized Pontiac dealer, to explain that he had tire damage. (Id. ¶ 31.) Upon the dealership's assertion that the tire wear was not covered under the warranty, Sidner called defendant's customer service to complain. (Id. ¶¶ 31-32.) He was directed to take the car back to Haydocy, where the service writer reaffirmed that the tire would not be covered by the warranty.
(Id. ¶ 32.) Sidner subsequently took the vehicle to a Firestone in Columbus, Ohio and paid $304.00 for a replacement tire. (Id. ¶ 33.)
Sidner filed the instant action on September 15, 2008 on behalf of himself and all others similarly situated. Plaintiff asserted class action claims for: 1) violations of the Ohio CSPA, Ohio Rev. Code section 1345.01 et seq.; 2) violation of the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. section 2301 3) breach of warranty, Ohio Rev. Code section 1302.26, and 4) unjust enrichment. Defendant now moves to dismiss Sidner's complaint for failure to state a claim upon which relief can be granted.
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Thus, the plaintiff need not necessarily ...