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Phillip Johnson, Jimmy Aldridge v. Harley-Davidson Motor Company Group

May 23, 2012

PHILLIP JOHNSON, JIMMY ALDRIDGE,
RANDY VANDERMOLEN, AND MATTHEW WEYUKER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
HARLEY-DAVIDSON MOTOR COMPANY GROUP, LLC, HARLEY-DAVIDSON, INC., WHICH WILL DO BUSINESS IN CALIFORNIA AS: (WISCONSIN) HARLEY-DAVIDSON, INC., HARLEY- DAVIDSON MOTOR COMPANY, INC., AND DOES 1-50, DEFENDANTS.



ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

This matter comes before the Court on Plaintiff Matthew Weyuker's ("Weyuker") Motion for Class Certification (Doc. #56).*fn1

Defendants Harley-Davidson Motor Company Group, LLC, Harley-Davidson, Inc., and Harley-Davidson Motor Company, Inc. ("Defendants" or "Harley-Davidson") oppose the motion (Doc. 2 #78). A hearing on this motion was held on May 2, 2012.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case involves an alleged defect in the V-Twin Cam 6 motorcycles produced and sold by Defendants. Plaintiffs allege 7 that the degree of engine heat generated when V-Twin Cam 8 motorcycles are used as intended presents an unreasonable risk 9 of burns to users and also causes premature wear of mechanical systems. The core class allegation is that the air-cooled V-Twin design is defective under existing emission standards. Plaintiffs allege that to alleviate the excessive heat generated from the air-cooled design, Defendants attempted a fix called the Engine Idle Temperature Management System ("EITMS"), which shuts off fuel to just the rear cylinder when the engine is idle. Plaintiffs allege the EITMS is ineffective. Plaintiffs aver that the allegedly excessive heat produced by Defendants' motorcycles can distract riders, which presents a serious safety hazard to the operator, passengers, and even to others using public roadways.

Harley-Davidson motorcycles with TC88 and TC96 engines come in three families: Dyna, Softail, and Touring. The proposed class includes 14 different models within the Dyna family, 27 within the Softail family, and 23 within the Touring family. Considering each model and model year combination as a separate configuration, Defendants argue that the proposed class includes purchasers of 130 distinct configurations of motorcycles sold new between 2005-2011. Plaintiffs do not dispute that there are 130 configurations.

The named Plaintiff is Matthew Weyuker. He purchased a 3 2009 Harley-Davidson Softail Cross Bones motorcycle on June 29, 4 2010 in Sacramento, California. Weyuker's 2009 Harley-Davidson 5 Cross Bones has an air-cooled V-Twin Cam 96 cubic inch engine.

Although Weyuker purchased his motorcycle new, it was not in 7 factory condition. The exhaust shield had been removed and the 8 exhaust pipes had been wrapped with aftermarket exhaust pipe 9 wrap. Weyuker's friend rode the motorcycle from the dealer to Weyuker's home and immediately noticed excessive heat. Weyuker noticed uncomfortable heat from the engine the first time he rode the motorcycle for more than 20 minutes. Weyuker declares that on approximately six occasions, his pants have burned as a result of the heat coming off the engine. In July 2010, while driving in stop and go traffic, Weyuker's pants literally caught on fire. Weyuker went back to the dealer where he bought the motorcycle to complain on one occasion. The dealer suggested a race tuner, which Weyuker elected not to install because he believed it would void the warranty. At the time of his deposition, he had ridden his motorcycle 9,700 miles, about 6,000 miles per year.

Plaintiffs filed their Complaint (Doc. #1) on September 10, 2010. After filing amended complaints and surviving a motion to dismiss, Plaintiffs filed their Fourth Amended Complaint (Doc. #48) on August 11, 2011. Plaintiffs allege six causes of action: (1) Strict Products Liability; (2) Violations of California Business & Professions Code §§ 17200, et seq. ("UCL"); (3) Violations of the Breach of Express and Implied Warranty; (4) Negligence; (5) Unjust Enrichment; and 2 (6) Violations of the Consumers Legal Remedies Act ("CLRA"), 3 Cal. Civ. Code §§ 1750, et seq. On August 25, 2011, Defendants 4 filed their Answer (Doc. #51). On January 6, 2012, Plaintiffs 5 filed the instant Motion to Certify Class ("MCC") (Doc. #56).

On March 26, 2012 Defendants filed their Motion to Exclude 7 Expert Declaration and Testimony of Russell Darnell ("Motion to 8 Exclude") (Doc. #71). That same day, Defendants filed their 9 Motion for Summary Judgment (Doc. #73). On April 24, 2012 the Court granted Plaintiffs' Request to Defer Defendants' Motion for Summary Judgment (Doc. #98).

At the hearing on May 2, 2012, the Court denied Defendants' Motion to Exclude. Plaintiffs had voluntarily withdrawn those portions of Russell Darnell's ("Darnell") declaration that contained expert opinions concerning issues going to the merits of this case (paragraphs 33, 38, 42, 43, and 46) and the Court held it would consider the remaining portion of Darnell's declaration only in so far as it concerned class certification issues.

Plaintiffs' proposed class for purposes of their Motion for Class Certification is as follows:

All persons who between October 1, 2006 and the date the class may be certified, purchased in California a motorcycle manufactured by Defendants with an air-cooled 88 or 96 cubic inch V-Twin Cam engine.*fn2

II. OPINION

A. Legal Standard Motion for Class Certification 3

According to Federal Rule of Civil Procedure 23(a), a 4 plaintiff hoping to certify a class must demonstrate that 5 (1) the class is so numerous that joinder of all members is 6 impracticable; (2) there are questions of law or fact common to 7 the class; (3) the claims or defenses of the representative 8 parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). The plaintiff must also meet one of the requirements of Federal Rule of Civil Procedure 23(b). Only one such requirement is at issue in this litigation: "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3).

Certification is proper "only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Frequently that 'rigorous analysis' will entail some overlap with the merits of the plaintiff[s'] underlying claim. That cannot be helped." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (internal citations omitted).

B. Rule 23(a)

1. Numerosity

Plaintiffs estimate that the number of class members likely exceeds 44,000. William Kershaw Decl. in Support of Pls.' Mot. 2 for Class Certification (Doc. #62) ¶ 5 and Ex. 5. Plaintiffs 3 maintain that the size of the class and their identity can be 4 ascertained from Defendants' records. Thus, this class is 5 ascertainable and so numerous that joinder of all members would 6 be impracticable. Fed.R.Civ.P. 23(a)(1). Accordingly, the 7 Court finds that Plaintiffs satisfy the numerosity requirement.

2. Typicality

Rule 23(a)(3) requires that the claims or defenses of the class representative "be typical of the claims or defenses of the class." "A class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Wal-Mart, 131 S. Ct. at 2550 (citation omitted). The typicality requirement is satisfied only when "each class member's claim arise from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1019 (9th Cir. 2011).

While this is a close issue because Defendants raise arguments that Weyuker's motorcycle is not substantially similar to other class vehicles, the Court finds that Weyuker is typical. Like all members of the prospective class, he was injured by reason of the same alleged undisclosed defect in the cooling system on his V-Twin Cam motorcycle and seeks to recover pursuant to the same legal theories under California consumer protection laws. Accordingly, the Court finds that Plaintiffs satisfy typicality.

3. Adequacy

Rule 23(a)(4) has two requirements: (1) that the named 3 plaintiffs and their counsel do not have conflicts of interest 4 with the proposed class; and (2) that the named plaintiffs and 5 their counsel can prosecute the action vigorously on behalf of 6 the class. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Challenges to adequacy are not relevant unless they 8 bear on the existence of conflicts among class members or 9 plaintiffs' ability to vigorously prosecute their case. Id.

The Court finds that Plaintiffs satisfy the adequacy requirement. Plaintiffs' attorneys are members in good standing of the California bar and have extensive background in prosecuting complex litigation and class actions. Weyuker has vigorously prosecuted this action and he declares he will continue to do so. Though Defendants proffer an argument about claims splitting creating a potential conflict of interest, the Court finds that Weyuker and his counsel do not have any conflicts that would bear on their ability to vigorously prosecute their case.

4. Common Questions of Law and Fact

The central disputed issue in this Motion for Class Certification with respect to the Rule 23(a) requirements is whether there are questions of law or fact common to the class. Plaintiffs argue that there are common questions relating to design defect, materiality, knowledge, and economic harm.

a. Design Defect

Plaintiffs argue all of the class vehicles have the same design defect -- the air-cooled V-Twin Cam engines produce excessive heat. Plaintiffs contend that stringent emissions 2 standards require engines to run on a "lean" fuel mixture which 3 essentially means that there is less fuel and more oxygen in the 4 fuel mixture, resulting in ...


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