United States District Court, D. Colorado
NATALIE CARRADO, individually and as a surviving heir of Cheri Marie Jolin; BRITTANY JOLIN, individually and as a surviving heir of Cheri Marie Jolin; ALEXANDER NEMERS, individually and as a surviving heir of Cheri Marie Jolin; and the ESTATE OF CHERI MARIE JOLIN, by and through the heirs of decedent Cheri Marie Jolin, Plaintiffs,
DAIMLER AG, a foreign corporation; MERCEDES-BENZ USA, LLC, a Delaware corporation; PENSKE AUTOMOTIVE GROUP, INC., a Delaware corporation; and JOHN DOE NOS. 1-40, Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO
William J. Martínez United States District Judge.
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).
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
following allegations are taken from the Complaint. (ECF No.
6.) The Court assumes these allegations to be true for
purposes of this motion.
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. ¶
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.
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.)
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.)
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).
Procedural Issues with Daimler's Motion
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).
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.