United States District Court, D. Massachusetts
UTICA NATIONAL INSURANCE GROUP, as Subrogee of Pro Automotive Repair, Inc., Plaintiff
BMW OF NORTH AMERICA, LLC, Defendant
For Utica National Insurance Group, as Subrogee of Pro Automotive Repair, Inc., Plaintiff: Brett R. Corson, LEAD ATTORNEY, Sloane & Walsh, Boston, MA; Michael P Guagenty, LEAD ATTORNEY, Sloane & Walsh LLP, Boston, MA.
For BMW of North America, LLC, Defendant: Peter M. Durney, LEAD ATTORNEY, James P. Kerr, Justin J. Shireman, Cornell & Gollub, Boston, MA.
MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S MOTION TO DISMISS COUNTS III AND IV (Document No. 11)
KENNETH P. NEIMAN, U.S. Magistrate Judge.
This is a products liability action instituted by an insurance company, Utica National Insurance Group (" Utica" ), as subrogee for an automotive garage and sales company, Pro Automotive Repair, Inc. (" Pro Auto" ), which allegedly sustained damages caused by what is claimed to have been a defective Mini Cooper manufactured and designed by the defendant, BMW of North America, LLC (" BMW" ). Utica seeks redress for negligence (Count I), " [b]reach of [w]arranties" (Count II), " [s]trict [l]iability" (Count III), and violations of Mass. Gen. Laws ch. 93A (Count IV). The action, originally filed in the Hampden County Superior Court, was removed to this court by BMW pursuant to 28 U.S.C. § 1441. Before the court is BMW's motion to dismiss Counts III and IV pursuant to Fed.R.Civ.P. 12(b)(6), the motion being opposed by Utica with respect to Count IV only.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the jurisdiction of this court. For the reasons that follow, the court will allow BMW's motion, subject to Utica's right to seek to amend its complaint.
I. STANDARD OF REVIEW
When faced with a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept the allegations of the complaint as true, drawing all reasonable inferences in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir. 1992). Moreover, " Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what that . . . claim is and the grounds upon which it rests.'" Sepú lveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 28 (1st Cir. 2010). The Supreme Court has made clear that, under Bell A. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a complaint that states a plausible claim for relief on its face will survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868. The Court explained that " [a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Pursuant to these standards, the First Circuit has directed that motions to dismiss should be evaluated with a " two-pronged approach." Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, mere " 'legal conclusion[s]'" and " '[t]hreadbare recitals of the elements of a cause of action'" should be identified and disregarded. Id. (quoting Iqbal, 556 U.S. at 678-679). Then, based on the remaining, " [n]on-conclusory factual allegations," the court should analyze the " inference of liability that the plaintiff is asking [it] to draw." Id. at 12-13 (citing Iqbal, 556 U.S. at 681). In doing so, a court should employ its own " 'judicial experience and common sense,'" but only to determine whether the inference of liability is a reasonable one, that is, the court must excise unreasonable inferences but it may not eliminate improbable, or even incredible, allegations. Id. (citing and quoting Iqbal, 556 U.S. at 679, 681). If the inference of liability is reasonable, the claim " has facial plausibility" and should survive the motion. Id. at 12 (citing Iqbal, 556 U.S. at 679). See also Medina-Velá zquez v. Hernández-Gregorat, 767 F.3d 103, 2014 WL 4628506, at *3 (1st Cir. Sept. 17, 2014) (describing two-step approach to resolving motions to dismiss).
As to the Chapter 93A claim, the remaining count targeted here, the facts needed to create a reasonable inference of liability " must be determined from the circumstances of each case." Spence v. Boston Edison Co., 390 Mass. 604, 459 N.E.2d 80, 87 (Mass. 1983) (citations and quotation omitted). Thus, " the boundaries of what may qualify for consideration as a c. 93A violation is a question of law," but the unfairness or deceptiveness of a " a particular set of acts, in their factual setting, is . . . a question of fact." Commercial Union Ins. Co. v. Seven Provinces Ins. Co., 217 F.3d 33, 40 (1st Cir. 2000) (quoting Schwanbeck v. Federal-Mogul Corp., 31 Mass.App.Ct. 390, 578 N.E.2d 789, 803-804 (Mass.App.Ct. 1991)).
The following facts come directly from the complaint, including one attachment thereto, and are stated in a light most favorable to Plaintiff. Young ...