United States District Court, D. Colorado
JUAN A. SANCHEZ, on behalf of himself and a Class of persons similarly situated, Plaintiff,
FORD MOTOR COMPANY, d/b/a Lincoln Motor Company, Defendant.
ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISMISS
R. BROOKE JACKSON, District Judge.
This is another case in which a plaintiff complains that Ford Motor Company's advertisements touting the fuel economy of various models misled buyers of those vehicles. See, e.g., Gilles v. Ford Motor Co., 13-cv-00357-RBJ, 2014 WL 544990 (Feb. 12, 2014) (denying Ford's motion to dismiss). Jurisdiction is proper under 28 U.S.C. § 1332(d).
Mr. Sanchez brings claims against Ford in connection with its advertisement of the 2010-2013 Lincoln MKZ hybrid vehicles. Ford responds with a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). [ECF No. 17.] Ford raises the same arguments it used in Mr. Gilles's case: that Mr. Sanchez's claims are defective by reason of federal preemption, insufficient pleading, abstention, standing, and the savings clause of the Colorado Consumer Protection Act ("CCPA"). Important differences exist between these cases, however, and because the only advertisements that Mr. Sanchez alleges that he actually saw appear to be compliant with the applicable federal regulations, I conclude that the only viable claims he brings are those based on the statements allegedly made by dealership employees.
Ford has also moved to strike the class allegations. [ECF No. 30]. Although that motion has been briefed, I suspect that the parties might approach it differently in light of the present ruling on the Rule 12(b)(6) motion. For example, they have not discussed the ascertainability issue that has been raised in Gilles. Accordingly, the parties may file short supplements to their briefing.
Mr. Sanchez purchased a 2012 MKZ Hybrid from Corley's Albuquerque Lincoln. [ECF No. 16 ¶ 34.] Prior to that purchase, he claims to have had discussions with dealership staff during which the staff indicated that Mr. Sanchez could expect to achieve the advertised fuel efficiency under normal driving conditions. Id. After being disappointed with the 2012 model's fuel efficiency, Mr. Sanchez considered purchasing the 2013 model. Mr. Sanchez saw a television advertisement for the 2013 model that indicated it would achieve 45 combined miles per gallon ("the 45 MPG COMBINED graphic"). Id. ¶ 37. The advertisement notes that the fuel economy data are EPA estimates. Mr. Sanchez then discussed the 2013 model with staff at Landmark Lincoln in Denver, and they indicated that the new model contained new technology that improved the fuel efficiency of the vehicle over previous models. Id. ¶ 38. Furthermore, the staff confirmed that consistent with Ford's advertisements the 2013 MKZ Hybrid would achieve 45 miles per gallon under both city and highway driving conditions. Id.
Mr. Sanchez identifies other advertisements that purportedly misrepresented the fuel efficiency of the MKZ Hybrid, although nowhere does he claim to have seen them himself. For instance, Mr. Sanchez describes a television advertisement in which the dashboard display depicts the EPA estimated mileage but lacks an accompanying indication that the estimate is derived from EPA testing or that individual consumer experiences will vary. Id. ¶ 29. He also singles out an advertisement from a Ford dealership in Arizona that he claims contains inadequate disclaimers and makes additional statements like "you'll save money on gas" and "717 miles on a single tank" that go beyond mere reporting of the EPA estimates. Id. Finally, he points to statements by Ford employees such as "everything is brand new about [the MKZ] from the powertrain line up..." and that the newer model had up to 20% better fuel economy than previous years. Id. ¶¶ 22, 23. He suggests that these advertisements might have been seen by other members of the purported class. [ECF No. 18 at 34.]
After years of driving the MKZ Hybrid, Mr. Sanchez "did not achieve the advertised fuel efficiency." [ECF No. 16 ¶¶ 35, 41, 43.] Mr. Sanchez now asserts multiple claims on his own behalf and on behalf of all members of a class of MKZ Hybrid purchasers: violation of the Colorado Consumer Protection Act ("CCPA"), violation of applicable state unfair trade practice laws, breach of express warranty, breach of contract, violation of the Magnuson-Moss Warranty Act, intentional and/or negligent misrepresentation, and unjust enrichment.
A. Standard of Review.
In reviewing a motion to dismiss, the Court must accept the well-pleaded allegations of the complaint as true and construe them in the plaintiff's favor. However, the facts alleged must be enough to state a claim for relief that is plausible, not merely speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plausible claim is a claim that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Allegations that are purely conclusory are not entitled to an assumption of truth. Id. at 681. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
B. Sufficiency of Pleadings.
Ford notes that many of the offending advertisements identified by Mr. Sanchez were either never seen by him prior to his purchase or pertained to model years that he did not purchase. Mr. Sanchez counters that he saw some of the advertisements, and that other members of the class may have seen the rest. I agree with Ford that Mr. Sanchez cannot rely on the rest of the class to meet the pleading requirements. I also agree that Mr. Sanchez's claims based upon the advertisements he did see are preempted by federal law.
In addition to the standard pleading requirements summarized above, the Federal Rules of Civil Procedure require claims of fraud to be pled with specificity. Fed.R.Civ.P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake."). In the Tenth Circuit a complaint alleging fraud must "set forth the time, place and contents of the false representation, the identity of the party making the false ...