United States District Court, D. Kansas
MICHAEL KNOPKE, on behalf of himself and others similarly situated, Plaintiff,
FORD MOTOR COMPANY, Defendant.
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Plaintiff Michael Knopke brings this action against Defendant Ford Motor Company ("Ford"), on behalf of himself and others similarly situated, alleging that the throttle body component of the 2011 Ford Edge vehicle is defective, that Ford knew the throttle was defective yet concealed that information from consumers, and that Ford breached its warranties by denying any defect in the vehicle during the term of the extended warranty. Before the Court is Defendant Ford's Motion to Dismiss the Complaint and to Strike Nationwide Class Allegations (Doc. 4) and Plaintiff's Motion for Leave to File Sur-Reply (Doc. 11). The motions are fully briefed and the Court is prepared to rule. As explained more fully below, Plaintiff's motion for leave to file sur-reply is granted; the Court has considered the sur-reply attached to Plaintiff's motion for leave in deciding the motion to dismiss and strike. Defendant's motion to dismiss is granted as to Count II and otherwise denied; Defendant's motion to strike is denied.
I. Facts Alleged in the Complaint
The following facts are alleged in the Complaint and are assumed to be true for purposes of deciding these motions. On July 15, 2013, Plaintiff Michael Knopke purchased a used 2011 Ford Edge SEL from Speedway Chrysler-Dodge-Jeep, Inc. in Lansing, Kansas. At the time of purchase, Plaintiff's vehicle had a mileage reading of 32, 195. Prior to making this purchase, Plaintiff read materials provided by Ford regarding the 2011 Ford Edge, including the vehicle's sales brochure and material on the Ford website. In its sales brochure, Ford represented that the 2011 Ford Edge contained "smart new engines, " "maximum V6 efficiency and power no one in the class can beat, " and "state-of-the-art safety."
On October 31, 2013, Plaintiff was attempting to pass another vehicle on Interstate 435 in his Ford Edge when, without warning, the vehicle went "limp" and quickly decelerated, failing to respond to his depression of the accelerator. Plaintiff, his wife, and two young children were nearly rear-ended at high speed by another vehicle as a result. An amber wrench warning appeared in the vehicle's instrument cluster indicating "Powertrain malfunction/reduced power (RTT): Illuminates when a powertrain or an AWD fault has been detected." The failure was caused by a defective throttle body in Plaintiff's 2011 Ford Edge SEL.
Ford's New Vehicle Limited Warranty ("NVLW") on the Ford Edge covers all powertrain parts that "malfunction or fail during normal use" within five years of service or 60, 000 miles, whichever occurs first. Plaintiff took his vehicle to an authorized Ford dealer for warranty-covered service, but was told that they could not retrieve the error code, that there were no Technical Service Bulletins addressing the issue, and that they were unable to duplicate the problem. Plaintiff telephoned Ford customer service, and was told by a customer service agent that Ford was not aware of any such problems with the Class Vehicle.
On December 27, 2013, Plaintiff was attempting to accelerate on the highway when his 2011 Ford Edge SEL once again went "limp" and quickly decelerated, with no responsiveness upon depression of the accelerator pedal. The odometer reading at the time of this failure was 44, 950 miles and the vehicle was less than five years old, making it covered under the NVLW. Plaintiff again returned to his local authorized Ford dealer for service, but was told that they could not duplicate the problem.
On or about December 28, 2013, Plaintiff's wife Christina telephoned Ford's customer service department and informed Ford of the recurring throttle problem with their vehicle. Christina was told by a customer service agent that Ford was elevating the Knopkes' complaint because it was a safety issue, and a Ford representative would call them back. On or about December 30, 2013, Plaintiff received a phone call from a Ford customer service agent who identified himself as "Jason." Plaintiff informed Jason of the recurring problem, but was told by Jason that no Technical Service Bulletins had been issued addressing the problem, and that Ford did not see the issue as "technically relevant." Jason suggested that Mr. Knopke purchase an extended warranty from Ford.
The 2011 Ford Edge was originally manufactured with throttle body part number AT4Z9E926A, but at some point Ford "superseded" that part with a new part: AT4Z9E926B. As of May 7, 2014, 54 of the 190 (28%) official complaints about the 2011 Ford Edge registered with the National Highway Traffic Safety Administration ("NHTSA") relay issues with spontaneous rapid deceleration, throttle failure and stalling. Most of these consumers reported that they were operating their vehicles at highway speeds at the time of throttle failure. Many consumers reported being told by Ford service professionals that the throttle failure problem in the 2011 Ford Edge is the result of a defective throttle body, and that Ford is aware of the issue. Plaintiff's Complaint contains ten representative examples of official complaints about loss of throttle control in the 2011 Ford Edge, all of which describe failures that are substantially similar to that experienced by the Knopkes. The public complaints to NHTSA regarding this issue occurred as early as May 26, 2012, more than one year prior to Plaintiff's purchase.
Ford represented that purchasing a 2011 Ford Edge would entitle a consumer to certain rights and remedies under the NVLW. The warranty benefits promised by Ford's NVLW were part of the basis of the bargain for Plaintiff and the putative class. Ford knows and has known that the original throttle body in the Class Vehicle is defective, but it has concealed that information from its customers and refused to provide appropriate warranty benefits to correct the defect.
Plaintiff had no opportunity to negotiate the terms of the warranty (including its durational limits), and had no meaningful choice but to accept the unilaterally imposed warranty terms. Ford concealed its unique and superior knowledge as to the defective nature of the 2011 Ford Edge and its inability or unwillingness to offer adequate warranty repairs. Ford also attempts to exclude, modify or otherwise limit the implied warranty of merchantability's reach under Kansas law, stating that "You may not bring any warranty-related claim as a class representative" and "Ford and your dealer are not responsible for any time or income that you lose... or for any other incidental or consequential damages you may have."
II. Motion to Dismiss under Fed.R.Civ.P. 12(b)(6)
As to Counts II, IV, and the attorneys' fees and civil penalties claims in Count III, Ford moves to dismiss for failure to state a claim upon which relief may be granted. To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level" and must contain "enough facts to state a claim to relief that is plausible on its face." Under this standard, "the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." The plausibility standard does not require a showing of probability that "a defendant has acted unlawfully, " but requires more than "a sheer possibility."
The plausibility standard enunciated in Bell Atlantic v. Twombly,  seeks a middle ground between heightened fact pleading and "allowing complaints that are no more than labels and conclusions' or a formulaic recitation of the elements of a cause of action, ' which the Court stated will not do.'" Twombly does not change other principles, such as that a court must accept all factual allegations ...