Carrado v. Daimler AG

          ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO DISMISS

          William J. Martínez United States District Judge.

         The Estate of Cheri Marie Jolin and heirs to the estate, Natalie Carrado, Brittany Jolin, and Alexander Nemers (together, “Plaintiffs”), bring this action against Defendants Daimler AG (“Daimler”) and Mercedes-Benz USA (“MBUSA”) (together, “Mercedes” or “Defendants”). This action arises out of a collision between Cheri Marie Jolin's Smart ForTwo vehicle (the “Smart”)-allegedly designed, manufactured, and sold by Mercedes-and a Ford F-150 pickup truck, which resulted in Cheri Marie Jolin's death. (ECF No. 6 ¶¶ 22, 25.) Plaintiffs bring this wrongful death and survival action against Defendants alleging strict liability (id. ¶¶ 28-35); negligence (id. ¶¶ 36-56); breach of warranty (id. ¶¶ 57-68), and violations of the Colorado Consumer Protection Act (“CCPA”), Colorado Revised Statutes §§ 6-1-101 et seq. (id. at ¶¶ 106-125).

         Currently before the Court are MBUSA's Motion to Dismiss (ECF No. 31) and Daimler's “Amended Motion to Dismiss Pursuant to Rule 12(b)(6) and Joinder to MBUSA's Rule 12(b)(6) Motion to Dismiss” (ECF No. 77) (together, the “Motion”). Though the Defendants filed separate motions, they make the same arguments: (1) Plaintiffs impermissibly rely on “group pleading” and fail to allege facts showing each individual defendant's alleged wrongdoing; (2) Plaintiffs do not allege any facts, much less facts with the particularity required by Federal Rule of Civil Procedure 9(b), that would form the basis for a CCPA claim; and (3) Plaintiffs fail to allege facts showing any warranties made, much less breached. (ECF No. 31; ECF No. 77.) For the reasons discussed below, the Court agrees that Plaintiffs have not alleged facts with sufficient particularity to support a CCPA claim or alleged any warranties made or breached. The Court thus dismisses these claims without prejudice, and denies the remainder of Defendants' Motion.

         I. BACKGROUND

         A. Factual Background

         The following allegations are taken from the Complaint. (ECF No. 6.) The Court assumes these allegations to be true for purposes of this motion.

         On September 28, 2015, Cheri Marie Jolin (“decedent”) was driving her 2008 Smart (VIN WMEEJ31X78K207941) northbound on Interstate 25 near Greenwood Village, Colorado. (Id. ¶ 22.) At the time, decedent was wearing her seatbelt with lap belt and shoulder harness. (Id.) Near mile marker 199.1, traffic began to slow and the Smart was rear ended by a Ford F-150. (Id. ¶ 23.) Plaintiffs allege that in the car accident, the Smart's driver's seat, seating system, driver's safety restraint system, and structure failed, resulting in the decedent's death. (Id. ¶ 24.)

         Plaintiffs claim that Daimler and its wholly- or mostly-owned subsidiary MBUSA “designed, tested, engineered, assembled, fabricated, formulated, produced, constructed, approved, manufactured, packaged, labeled, marketed, licensed, imported, supplied, distributed, prepared for sale, and sold the Smart.” (Id. ¶¶ 9, 25.) Essentially, Plaintiffs claim that Mercedes was responsible for every aspect of the Smart, including any product design, manufacturing, or any other defects. Plaintiffs also allege that “express warranties, warranties of future performance, an implied warranty of merchantability, and/or an implied warranty of fitness existed.” (Id. ¶ 58.)

         B. Procedural Background

         On September 27, 2017, Plaintiffs filed a lawsuit in Denver District Court against Mercedes and several other entities. (Id.) MBUSA thereafter removed to this Court, invoking diversity jurisdiction under 28 U.S.C. § 1332(a). (ECF No. 1.)

         MBUSA filed its motion to dismiss on January 17, 2018. (ECF No. 31.) On February 7 and 8, 2018, Plaintiffs stipulated to dismissal of all other parties save MBUSA and Daimler. (See ECF Nos. 39, 41.) On June 27, 2018, Plaintiffs filed a certificate of service stating that Daimler had been served pursuant to the Hague Convention. Two days later, Daimler filed a “Motion to Dismiss Pursuant to Rule 12(b)(6) and Joinder to MBUSA's Rule 12(b)(6) Motion to Dismiss.” (ECF No. 75.) Daimler's motion was struck for failure to comply with the undersigned's practice standards, which require counsel to confer prior to filing a Rule 12(b)(6) motion to discuss whether deficiencies can be cured by amendment. (ECF No. 76.) Later that same day, Daimler re-filed its motion with a conferral statement. (ECF No. 77.) Plaintiffs contest that Daimler adequately conferred and suggest that Plaintiffs were amenable to filing an amended complaint. (ECF No. 79 at 1.)

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” In reviewing a Motion to Dismiss under Rule 12(b)(6), the Court will “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). “[T]o withstand a motion to dismiss, a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570). This means that “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief. ‘Factual allegations must be enough to raise a right to relief above the speculative level.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 & 556 (2007) (“Twombly”)). The plaintiff “does not need detailed factual allegations” but must plead more than merely “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Ridge at Red Hawk, 493 F.3d at 1177 (quoting Twombly, 550 U.S. at 556).

         III. ANALYSIS

         A. Procedural Issues with Daimler's Motion

         The Court will first address Daimler and Plaintiffs' spat over the conferral requirement as well as whether Daimler's Motion to Dismiss complies with Federal Rule of Civil Procedure 7(b)(1).

         Daimler's initial Motion to Dismiss was struck for non-compliance with the undersigned's practice standards at 12:27 p.m. MDT on June 29, 2018. (ECF No. 76.) Daimler re-filed its Amended Motion to Dismiss that included a statement of conferral at 5:02 p.m. MDT that same day. (ECF No. 77 at 1.) In its briefing, Daimler seemingly implies that it was not required to confer with Plaintiffs but did so out of an abundance of caution. (ECF No. 80 at 3.) Apparently, according to Daimler, Plaintiffs' refusal to amend in early 2018 prior to MBUSA's Motion to Dismiss and Plaintiffs' lack of sua sponte amendment within 21 days of serving Daimler excused Daimler's compliance with the rule. (Id.) ...