United States District Court, D. Massachusetts
JOHN SCHNEIDER, POSNETT OMONYI, BARBARA REYES, RAINERIO REYES and OSCAR ROSARIO, Plaintiffs,
BMW OF NORTH AMERICA, LLC, and BAVARIAN MOTOR WORKS, Defendants.
MEMORANDUM & ORDER
Talwani United States District Judge
the court is Defendant BMW of North America, LLC's
(“BMW”) Motion to Dismiss or in the
Alternative Sever [#21] Plaintiffs John Schneider,
Posnett Omonyi, Barbara Reyes, Rainerio Reyes, and Oscar
Rosario's First Amended Complaint [#15]
(“Complaint”). Plaintiffs bring their action
based on alleged defects in their BMW vehicles. BMW argues
that the Complaint must be dismissed in whole or in part for
lack of subject-matter jurisdiction and failure to state a
claim upon which relief may be granted. BMW argues in the
alternative that the claims should be severed or dismissed
because they are not appropriately joined. As set forth
below, the court ALLOWS BMW's motion to dismiss with
leave to amend the complaint.
Factual Background as Alleged in the
each purchased BMW vehicles between 2010 and 2013. Compl.
¶¶ 11, 21, 28, 37. When Plaintiffs purchased their
vehicles, BMW made representations regarding the
vehicles' performance and quality and assured Plaintiffs
that their vehicles were free from defects of workmanship.
Compl. ¶ 44. Furthermore, Plaintiffs relied on a
warranty provided by BMW at the time of sale that promised
that BMW would repair or replace components found to be
defective in material or workmanship for four years or 50,
000 miles after delivery. Compl. ¶¶ 45-46.
vehicles that BMW sold to Plaintiffs were all equipped with
the “N63” model engine. Compl. ¶ 55. The N63
engine is subject to a manufacturing defect that causes the
vehicle to consume oil at an abnormally high rate. Compl.
¶ 51. Specifically, BMW initially marketed the vehicles
with a recommended oil service interval of 15, 000 miles or
two years, but Plaintiffs have experienced oil consumption at
a level that requires them to frequently add oil to the
engine (“make-up oil”) during this interval.
Compl. ¶¶ 15, 25, 34, 38.
first became aware of these oil consumption issues no later
than 2008 through sources not currently available to
Plaintiffs. Compl. ¶ 84. These sources include but are
not limited to pre-release testing data, durability testing,
early consumer complaints about the oil consumption defect,
testing conducted in response to those complaints, aggregate
data from BMW dealers, including dealer repair orders and
high warranty reimbursement rates, as well as other internal
acknowledged the oil consumption problem through the issuance
of technical service bulletins (“Bulletins”) and
incentive offers intended to appease dissatisfied customers.
Compl. ¶¶ 67-80. The Bulletins evince the severity
of the oil consumption problem, reflecting that some engines
will consume oil at the rate of 2.5 quarts per 1, 000 miles.
Compl. ¶ 71. Based on this level of consumption,
consumers would have to add almost 40 quarts of make-up oil
between the recommended 15, 000-mile oil service intervals.
It is not normal to add any oil between scheduled oil
changes. Compl. ¶ 75.
have asked BMW to address the issue under the terms of their
warranty agreements. BMW has disclaimed any problem with the
engines, calling the oil consumption experienced by
Plaintiffs “normal.” Compl. ¶¶ 14, 17,
were members of a certified class of plaintiffs in an action
filed in the District of New Jersey in 2015. See Bang v.
BMW of North America, LLC, No. CV 15-6945 (D.N.J.)
(“Bang Class Action”). Plaintiffs Omonyi, Reyes,
and Schneider opted out of the certified class on August 10,
2018, and Plaintiff Rosario opted out on August 23, 2018.
See Pls.' Opp'n, Exhs. C, D [#23-3],
initiated this action on October 26, 2018. In their First
Amended Complaint [#15], Plaintiffs allege: (1) that BMW
violated the Magnuson-Moss Warranty Act (“Warranty
Act”) by failing to remedy the defects in the
Plaintiffs' vehicles, (2) that BMW violated the Warranty
Act and Mass. Gen. L. ch. 106, § 2-314 by selling
vehicles that were not merchantable, (3) that BMW violated
the Warranty Act and Mass. Gen. L. ch. 106, § 2-313 by
breaching express warranties, and (4) that BMW violated Mass.
Gen. L. ch. 93A, § 2 (“ch. 93A”) by engaging
in unlawful or deceptive trade practices. Compl. ¶¶
responded with the pending Motion to Dismiss [#21].
BMW contends that dismissal is required in whole or part on
the following grounds: (1) that the court lacks subject
matter jurisdiction, (2) that Plaintiffs have failed to state
a claim for breach of express warranty, (3) that Plaintiffs
have failed to state a claim for breach of the implied
warranty of merchantability, (4) that Plaintiffs' claims
are time-barred, and (5) that Plaintiffs failed to state a
claim for violation of Massachusetts' consumer protection
statute. BMW moves in the alternative that the claims should
be severed or dismissed because they are not appropriately
joined. The court proceeds first with the question of subject
matter jurisdiction. Although the motion is allowed on this
ground, the court proceeds to the related issue of joinder,
and then addresses the 12(b)(6) arguments, and concludes that
the complaint survives these other challenges such that leave
to amend is allowed.
Subject Matter Jurisdiction under the Warranty
the Warranty Act, a United States district court may exercise
subject-matter jurisdiction over claims for breach of express
and implied warranty:
(A) if the amount in controversy of any individual claim is
less than the sum or value of $25;
(B) if the amount in controversy is less than the sum or
value of $50, 000 (exclusive of interests and costs) computed
on the basis of all claims to be determined in this suit; or
(C) if the action is brought as a class action, and the
number of named plaintiffs is less than one hundred.
15 U.S.C. § 2310(d)(3). BMW contends that the court
lacks subject-matter jurisdiction over Plaintiffs' claims
because “Plaintiffs, to a legal certainty, do not meet
the $50, 000 amount in controversy threshold” for
claims brought under the Warranty ...