United States District Court, N.D. California
IN RE VOLKSWAGEN “CLEAN DIESEL” MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION This Relates To Dkt. Nos. 5782, 5783 Nemet, 317-cv-4372-CRB
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS TO DISMISS THE FIRST AMENDED
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE.
The Misrepresentation Claims
Court previously gave Plaintiffs leave to amend their
misrepresentation claims, which were deficient under Rule
9(b). (See Nemet I, Dkt. No. 5374 at 37-39, 50.) In
their amended complaint, Plaintiffs have made no attempt to
cure the previously identified deficiencies. Named plaintiff
Jennifer Nemet, for example, continues to allege simply that
the car she purchased did not deliver “the
advertised” combination of low emissions, high
performance, and fuel efficiency. (FAC ¶ 21, Dkt. No.
6252.) As in the original complaint, “[s]he does not
identify when and where she saw this advertising, what type
of advertising it was, or what the advertising actually
represented.” (Nemet I at 37.) The other named
plaintiffs' allegations are materially the same as
than add new allegations, Plaintiffs argue they do not need
to. They note that in their original and amended complaints
they did identify specific Volkswagen advertisements; they
just didn't allege that the named plaintiffs saw and
relied upon those advertisements. They argue that this second
step is not required because “courts have regularly
interpreted [Rule 9(b)] to mean that its heightened pleading
requirements do not apply to the element of reliance.”
(Opp'n, Dkt. No. 6085 at 51-52 (citing O'Shea v.
Epson Am., Inc., No. 09-CV-8063 PSG, 2010 WL 11459911,
at *6 n.5 (C.D. Cal. Mar. 5, 2010); Lee Myles Assocs.
Corp. v. Paul Rubke Enters., Inc., 557 F.Supp.2d 1134,
1143 (S.D. Cal. 2008); Anthony v. Yahoo!, 421
F.Supp.2d 1257, 1264 (N.D. Cal. 2006)).)
from Plaintiffs' briefing is any attempt to engage with
Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir.
2009), the controlling authority relied upon in Nemet
I. They have not tried to distinguish Kearns;
they have not argued that Nemet I incorrectly
applied Kearns; and they have not suggested that
Kearns is no longer good law. They instead rely on
three district court cases, two of which predate
Kearns and the third of which relies only on one of
those pre-Kearns cases in stating that Rule 9(b)
does not apply to allegations of reliance.
makes clear that for false advertising claims, Rule 9(b)
requires the plaintiff to identify “what the . . .
advertisements . . . specifically stated[, ]”
“when he was exposed to them, ” “which ones
he found material, ” and “which sales material he
relied upon in making his decision to buy [the product in
question].” 567 F.3d at 1126. To the extent that the
district court decisions cited by Plaintiffs stand for a
different rule, they are not binding. Kearns is
binding and Plaintiffs have not attempted to satisfy its
Plaintiffs' misrepresentation claims do not satisfy Rule
9(b), Volkswagen's motion to dismiss them is GRANTED. And
as Plaintiffs made no attempt to cure these claims'
deficiencies, dismissal is with prejudice. See,
e.g., Eng v. Hargrave, No. C 10-01776 RS, 2012
WL 116560, at *3 (N.D. Cal. Jan. 13, 2012) (dismissing with
prejudice claims that the plaintiff “made no effort to
correct” in an amended complaint); Subramani v.
Wells Fargo Bank N.A., No. C 13-1605 SC, 2014 WL 309437,
at *3 (N.D. Cal. Jan. 28, 2014) (same).
The Remaining Claims
the remaining claims in the amended complaint,
Volkswagen's and Bosch's motions to dismiss them are
DENIED. The denial is without prejudice; Defendants may renew
any of the arguments they have raised for dismissal of these
claims at summary judgment.
streamline adjudication of issues that have been raised with
respect to damages, the Court orders each side, Plaintiffs on
one side and Volkswagen and Bosch on the other, to select two
named plaintiffs (four in total) for which Plaintiffs will be
required to offer proof of damages before the case proceeds
further. The parties may engage in discovery to help
determine which named plaintiffs to select. The parties may
also engage in discovery as reasonably needed to prove and
defend against the selected plaintiffs' claims of
damages. After evidence of damages has been submitted, the
Court will consider whether the evidence is admissible,
whether the methodologies offered to prove damages can be
used to calculate damages on a class-wide basis, and whether
the trier of fact could reasonably conclude that the
identified damages are recoverable under the relevant causes
of action, assuming that all other elements of those causes
of action are satisfied. The Court orders the parties to meet
and confer and to propose a schedule to facilitate this
process. The parties must file the proposed schedule by
Thursday, November 14, 2019.