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Presti v. Toyota Motor Sales U.S.A., Inc.

United States District Court, D. Massachusetts

February 8, 2018

JOSEPH PRESTI, on behalf of plaintiff and the class members described herein, Plaintiff,


          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Joseph Presti (“Presti”) has filed this lawsuit against Toyota Motor Sales U.S.A., Inc. (“Toyota”) and Colonial Imports Corp., doing business as Toyota of Nashua (“Colonial”) (collectively, the “Defendants”), alleging deceptive practices under Massachusetts and New Hampshire consumer protection law, Mass. Gen. L. c. 93A (“Chapter 93A”) and N.H. Rev. Stat. § 358-A (“NHCPA”), respectively, and unjust enrichment. D. 21. Toyota and Colonial now have moved to dismiss Presti's second amended complaint in its entirety under Fed.R.Civ.P. 12(b)(6). D. 23; D. 25. For the reasons stated below, the Court ALLOWS both motions and dismisses Presti's second amended complaint in its entirety.

         II. Standard of Review

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). The Court “must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

         When alleging fraud, a pleading party “must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). This requires the pleader to “allege with particularity the who, what, when, where, and how of the fraud.” D'Agostino v. ev3, Inc., 845 F.3d 1, 10 (1st Cir. 2016); see also SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010). Rule 9(b) requires a complaint to “specify the statements that the plaintiff contends were fraudulent” and “explain why the statements were fraudulent.” Suna v. Bailey Corp., 107 F.3d 64, 68 (1st Cir. 1997). Furthermore, “where there are multiple defendants, the specific role of each must be alleged.” Rick v. Profit Mgmt. Assocs., Inc., 241 F.Supp.3d 215, 224 (D. Mass. 2017). This applies not only to fraud claims, but also to claims that “effectively charge fraud.” N. Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 15 (1st Cir. 2009).

         III. Factual Background

         The following facts are based upon the allegations in Presti's second amended complaint, D. 21, and are accepted as true for the consideration of the motion to dismiss. Toyota, a California corporation, imports, advertises and sells Toyota products within the United States. D. 21 ¶ 5. Colonial operates a Toyota dealership in Nashua, New Hampshire and advertises to customers both in New Hampshire and in certain towns in Massachusetts. D. 21 ¶¶ 6, 8. One town where Colonial advertises is Littleton, Massachusetts, where Presti resides. D. 21 ¶¶ 4, 8.

         In September and October 2016, Toyota advertised a “tire savings event” at Toyota locations throughout the United States, including at Colonial's Nashua location, offering “[t]hree tires at regular price, fourth tire for one dollar.” D. 21 ¶¶ 8-9. Presti alleges that Toyota “had a cooperative advertising program for Toyota dealers” like Colonial, by which Toyota funded “a substantial portion of the cost of the advertising” and “either required prior approval for the mailers . . . or was familiar with their content.” D. 21 ¶¶ 19, 22. Colonial distributed this promotion advertising “throughout its market area” and “repeated the representations” to customers visiting the dealership. D. 21 ¶ 25.

         Presti traveled to Colonial in New Hampshire “in response” to this advertisement.[1] D. 21 ¶ 13. Upon arriving at Colonial, Presti was offered three tires at $173 each and a fourth tire at $1, bringing the total price of the four tires to $520. D. 21 ¶ 14; D. 21 at 42. Presti alleges that the price of $173 per tire was not the “regular price, ” as they had been previously sold at $149.30 per tire prior to the promotion. D. 21 ¶¶ 10, 15. Presti complained of this discrepancy to Colonial and received a $35 “loyalty” discount in return. D. 21 ¶ 16. After the promotion ended, Presti claims that the price of the tires was “reduced to under $150 each.” D. 21 ¶ 17.

         IV. Procedural History

         Presti instituted this action on February 27, 2017, D. 1, and filed the second amended complaint on September 5, 2017, D. 21. Defendants have now moved to dismiss that amended pleading. D. 23; D. 25. The Court heard the parties on the pending motions and took the matters under advisement. D. 36.

         V. Discussion

         A. Presti Has Failed to State a Claim under the Massachusetts or New ...

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