Nancy Kuns v. Ford Motor Company , 543 F. App'x 572 ( 2013 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 13a0988n.06
    No. 13-3364
    UNITED STATES COURT OF APPEALS
    FILED
    Nov 19, 2013
    FOR THE SIXTH CIRCUIT
    DEBORAH S. HUNT, Clerk
    NANCY L. KUNS,                                           )
    )        ON APPEAL FROM THE
    Plaintiff-Appellant,                              )        UNITED STATES DISTRICT
    )        COURT FOR THE NORTHERN
    v.                                                       )        DISTRICT OF OHIO
    )
    FORD MOTOR COMPANY,                                      )                          OPINION
    )
    Defendant-Appellee.                               )
    BEFORE:        COLE, CLAY, Circuit Judges; BERTELSMAN, District Judge.*
    COLE, Circuit Judge. Plaintiff-Appellant Nancy Kuns appeals the district court’s order
    granting summary judgment in favor of Defendant-Appellee, Ford Motor Company, on Kuns’s
    claims that Ford violated the federal Magnuson-Moss Warranty Act and breached its express
    warranty under Ohio law. For the reasons addressed below, we affirm.
    I. BACKGROUND
    A. Factual Background
    In December of 2009, Kuns purchased a new 2010 Mercury Mariner from the Liberty Ford
    dealership in Vermillion, Ohio. About a year later, as Kuns’s husband was closing the rear liftgate,
    its glass window suddenly “exploded and shattered.” (Id.) After looking over the warranty supplied
    *
    The Honorable William O. Bertelsman, United States Senior District Judge for the Eastern
    District of Kentucky, sitting by designation.
    No. 13-3364
    Nancy L. Kuns v. Ford Motor Company
    by Ford, Kuns and her husband determined that it would not cover the broken window, so they took
    the car to a repair shop not associated with Ford to have the glass replaced. Then, just over a month
    after the first incident, the rear window shattered again, this time while Kuns’s daughter was closing
    the liftgate. At this point, Kuns became aware that other owners of the 2010 Mariner had
    experienced similar breakages, and she asked the dealership to replace the window at no charge to
    her. The dealership initially refused, explaining that the initial repair had not been made by a Ford-
    authorized entity, but after Kuns spoke with another Ford representative by phone and threatened
    to stop making payments on the vehicle, Ford agreed to replace the window. Liberty Ford then
    completed the repair.
    In the course of this litigation, Kuns discovered that, by the fall of 2010, Ford was aware of
    problems with the rear liftgate glass. Over the following months, Ford issued several Technical
    Service Bulletins (“TSBs”) and other documents notifying Ford dealerships and the National
    Highway Traffic Safety Administration (“NHTSA”) of the defect and instructing dealerships to
    replace the glass using a revised striker design—essentially, a different means of affixing the glass
    to the liftgate. In one document, Ford acknowledged that “warranty coverage normally does not
    include glass repairs,” but announced that, due to the defect, “Ford would cover the cost of glass
    repair” under its warranty “if there is no evidence of impact or external damage.”
    B. Procedural History
    In July of 2011, Kuns filed her complaint against Ford in the Northern District of Ohio
    alleging violations of the Magnuson-Moss Warranty Act (“MMWA”), breach of express warranty,
    and breach of implied warranty. The district court requested briefing to determine whether it had
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    No. 13-3364
    Nancy L. Kuns v. Ford Motor Company
    subject matter jurisdiction. The court determined that it did not have jurisdiction under the MMWA,
    15 U.S.C. § 2031 et seq, which requires a class to consist of at least one hundred named plaintiffs.
    See Kuns v. Ford Motor Co., 
    926 F. Supp. 2d 976
    , 980 (N.D. Ohio 2013). However, after allowing
    Kuns to file an amended complaint, the court held that it nevertheless had jurisdiction pursuant to
    the Class Action Fairness Act (“CAFA”). Neither party now challenges this court’s or the district
    court’s jurisdiction.
    After resolving the jurisdictional question, the district court granted Ford’s motion for
    summary judgment. The court determined that Ohio law applied, and held that Kuns could not
    successfully pursue a claim that Ford had violated the MMWA or Ohio law pertaining to warranties
    because Kuns had failed to give Ford a reasonable opportunity to repair the defect after the first
    breakage, and because Ford’s reluctance to repair the window after the second breakage was
    justified by the fact that Ford had not made the prior repair. Additionally, the court rejected Kuns’s
    argument that Ford’s issuance of TSBs acknowledging a defect in the window design “either
    expanded the new vehicle warranty or created an additional, separate warranty.” Lastly, the court
    dismissed Kuns’s claims that Ford violated express and implied warranties, finding that no express
    warranty existed, and that the applicable Ohio law does not recognize a cause of action for breach
    of implied warranty where the parties are not in privity of contract. Kuns appeals the district court’s
    dismissal of her claims based on the MMWA and the express warranty only.
    II. DISCUSSION
    A. Federal Court Jurisdiction
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    No. 13-3364
    Nancy L. Kuns v. Ford Motor Company
    As a threshold matter, we must ensure that we have subject matter jurisdiction over Kuns’s
    claims, even though neither party raises the question on appeal. See Answers in Genesis of Ky., Inc.
    v. Creation Ministries Int’l, Ltd., 
    556 F.3d 459
    , 465 (6th Cir. 2009) (Cole, Gibbons, Bell, D.J.)
    (“[F]ederal courts have a duty to consider their subject matter jurisdiction in regard to every case
    and may raise the issue sua sponte.”). The district court, in its memorandum opinion, identified two
    potential problems with its jurisdiction: first, the jurisdictional requirements of the Magnuson-Moss
    Warranty Act, and second, the amount-in-controversy requirement imposed by the Class Action
    Fairness Act.
    The district court held that it had jurisdiction over Kuns’s claims under the CAFA and not
    under the MMWA. To bring a class action pursuant to the MMWA, a complaint must list at least
    one hundred named plaintiffs. See 15 U.S.C. § 2310(d)(3). Kuns is the only named plaintiff in her
    case. However, the court reasoned that the CAFA—the more recent of the two statutes— “can
    render a district court a ‘court of competent jurisdiction’ and permit it to retain jurisdiction where
    the CAFA requisites are met but the MMWA requisites are not.” 
    Kuns, 926 F. Supp. 2d at 980
    .
    As the district court acknowledged, our circuit has not yet addressed the jurisdictional
    interplay of the CAFA and the MMWA. Nor, apparently, have most of our sister circuits. But see
    Birdsong v. Apple, Inc., 
    590 F.3d 955
    , 957 n.1 (9th Cir. 2009) (finding that district court had
    jurisdiction pursuant to the CAFA over purported class action alleging violations of the MMWA and
    state law). However, district courts have, as a general rule, held that the CAFA effectively
    supercedes the MMWA’s more stringent jurisdictional requirements. See, e.g., Keegan v. Am.
    Honda Motor Corp., 
    838 F. Supp. 2d 929
    , 954–55 (C.D. Cal. 2012) (citing several other cases);
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    No. 13-3364
    Nancy L. Kuns v. Ford Motor Company
    Stella v. LVMH Perfumes & Cosmetics USA, Inc., 
    564 F. Supp. 2d 833
    , 837–38 (N.D. Ill. 2008);
    McCalley v. Samsung Elecs Am., Inc., No. 07-2141 (JAG), 
    2008 WL 878402
    , at *5 (D.N.J. Mar. 31,
    2008); Chavis v. Fidelity Warranty Servs., Inc., 
    415 F. Supp. 2d 620
    , 626 (D.S.C. 2006) (“CAFA
    was passed with the clear intention of expanding federal court jurisdiction over class actions”
    (internal quotation marks omitted)); see also S. Rep. No. 109-14, at 27 (2005), reprinted in 2005
    U.S.C.C.A.N. 3, 27 (describing the CAFA as a “narrowly-tailored expansion of federal diversity
    jurisdiction to ensure that class actions that are truly interstate in character can be heard in federal
    court”).    We agree that the district court had jurisdiction notwithstanding the MMWA’s
    jurisdictional limitations.
    Turning to the second jurisdictional hurdle, the CAFA imposes an amount-in-controversy
    requirement of $5 million in total.1 The district court held that Kuns’s amended complaint satisfied
    this condition by “clarif[ying] that the size of the class at the time of the original complaint was over
    800,000 members”—encompassing all individuals nation-wide who bought, leased, or otherwise
    acquired an affected vehicle, and who either suffered a broken window or still retain the vehicle in
    a defective state. Given the size of the class, “any relief exceeding $5.78 per class member” would
    satisfy the requirement. Kuns, F. Supp. 2d at 982. Kuns alleges that repair of her shattered window
    cost her $250 and her insurance company $358.52. We “do not dismiss a complaint for lack of
    subject matter jurisdiction unless it appears to a legal certainty that the plaintiff[s] in good faith
    1
    The CAFA imposes no minimum amount-in-controversy on individual named plaintiffs and
    requires only minimal diversity of citizenship. 28 U.S.C. § 1332(d)(2)(A). Because Kuns is an Ohio
    citizen and Ford is incorporated in Delaware and has its principal place of business in Michigan,
    (Kuns Br. 2), this requirement is met.
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    No. 13-3364
    Nancy L. Kuns v. Ford Motor Company
    cannot claim the jurisdictional amount.” Charvat v. NMP, LLC, 
    656 F.3d 440
    , 447 (6th Cir. 2011).
    Therefore, the district court correctly held that it had jurisdiction pursuant to the CAFA, 28 U.S.C.
    § 1332(d)(2). We have jurisdiction under 28 U.S.C. § 1291, authorizing appeals of final decisions
    from the district courts.
    B. Standard of Review
    We review the district court’s grant of summary judgment de novo. United States v. Murphy,
    
    937 F.2d 1032
    , 1036 (6th Cir. 1991). Summary judgment may be granted only where “there is no
    genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
    Fed. R. Civ. P. 56(a). When a party bears the burden of proof at trial and “fails to make a showing
    sufficient to establish the existence of an element essential to that party’s case,” summary judgment
    is appropriate. Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986). The party seeking summary
    judgment “bears the initial responsibility” of identifying those portions of the pleadings and the
    record demonstrating that no genuine issue of material fact exists. 
    Id. at 323.
    The monmoving party
    must then respond by “set[ting] forth specific facts showing that there is a genuine issue for trial.”
    Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 249 (1986) (internal quotation marks omitted).
    C. Violation of Magnuson-Moss Warranty Act
    The MMWA imposes certain requirements on manufacturers and merchants who choose to
    issue consumer warranties. See generally 15 U.S.C. § 2301 et seq. For example, the Act mandates
    disclosure of particular information in warranties, requires that warranties be identified as either full
    or limited, and requires warrantors to remedy defective products “within a reasonable time and
    without charge.” 15 U.S.C. §§ 2302–2304. Further, the MMWA creates a federal right of action
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    No. 13-3364
    Nancy L. Kuns v. Ford Motor Company
    for violation of the Act’s terms, as well as for breaches of warranty arising from state substantive
    law. 15 U.S.C. § 2310(d)(1). Therefore, the elements that a plaintiff must establish to pursue a
    cause of action for breach of warranty under the MMWA are the same as those required by Ohio
    law. See Abele v. Bayliner Marine Corp., 
    11 F. Supp. 2d 955
    , 961 (N.D. Ohio 1997).
    Kuns argues that Ford violated the MMWA because it “inadequately disclose[d] the terms
    of the [original] warranty,” specifically, whether breakage of the rear window was covered, and
    because it did not communicate the contents of its TSBs to car owners, thereby informing them that
    the warranty covered glass breakages caused by the defect. Moreover, Kuns alleges that Ford
    “refused to authorize the necessary repairs to the rear window at no cost and without persistence by
    the consumer” following the second breakage.
    We begin with Kuns’s claim regarding the first incident. To state a claim under the MMWA,
    a plaintiff must present a “sustainable claim for breach of warranty.” Temple v. Fleetwood Enters.,
    Inc., 133 F. App’x 254, 268 (6th Cir. 2005). Accordingly, “a plaintiff must demonstrate that (i) the
    item at issue was subject to a warranty; (ii) the item did not conform to the warranty; (iii) the seller
    was given reasonable opportunity to cure any defects; and (iv) the seller failed to cure the defects
    within a reasonable time or a reasonable number of attempts.” 
    Id. (citing Abele,
    11 F. Supp. 2d at
    961). Indeed, the requirement that a warrantor have an opportunity to cure is codified at section
    2310(e), which states that “no action . . . may be brought under subsection (d) of this section for
    failure to comply with any obligation under any written or implied warranty . . . unless the person
    obligated under the warranty . . . is afforded a reasonable opportunity to cure such failure to
    comply.” 15 U.S.C. § 2310(e); see also Anderson v. Gulf Stream Coach, Inc., 
    662 F.3d 775
    , 781
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    Nancy L. Kuns v. Ford Motor Company
    (7th Cir. 2011) (“To bring an action under § 2310(d)(1), the consumer must give the warrantor a
    reasonable opportunity to cure its failure to comply with an obligation under any written or implied
    warranty.”) (internal quotation marks omitted); Walsh v. Ford Motor Co., 
    807 F.2d 1000
    , 1004
    (D.C. Cir. 1986). With respect to class actions, “such reasonable opportunity [to cure] will be
    afforded by the named plaintiffs.” 15 U.S.C. § 2310(e).
    As the district court correctly determined, Kuns did not give Ford the opportunity to cure the
    initial defect in her rear window following the first breakage. Rather, as Kuns explains, her husband
    “reviewed the written warranty provided with the vehicle and concluded . . . that the rear glass
    breakage was not covered.” Kuns then took the vehicle to a repair shop not authorized by Ford.
    Kuns argues that any request for a cure would have been futile in light of Ford’s policy that window
    breakages were not typically covered by the new vehicle warranty. (Kuns Am. Compl., R.32-2,
    PageID 578; Ford Reply, R.29; PageID 461.) But Kuns does not cite—and we cannot locate—any
    case law indicating that this statutory requirement can be waived if a plaintiff subjectively
    determines that demand would be futile and does not so much as request the seller to cover the
    necessary repair. Moreover, at the time of the first breakage, Ford had already issued TSBs
    instructing its dealers that problems with the rear liftgate window were covered by the warranty.
    Thus, we agree with the district court, and we need not reach the question of whether Ford’s
    warranty or other disclosures meet the requirements of the MWAA. Kuns has no cognizable claim
    for the first breakage.
    Turning to the second breakage, the district court noted that, although Kuns may have
    “raise[d] a question of whether Ford cured the defect in a reasonable time and number of attempts,”
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    No. 13-3364
    Nancy L. Kuns v. Ford Motor Company
    Kuns did not show that the replacement window, installed by a third party, was covered by Ford’s
    warranty. See Temple, 133 F. App’x at 268 (requiring showing that “the item at issue was subject
    to a warranty”). Kuns argues that the warranty still applies because the defect pertains to the design
    of the window—“the manner in which Ford affixed the rear window components to the glass”—
    rather than to the window itself.
    We agree with the district court’s dismissal of Kuns’ claim, but for different reasons. Ford’s
    warranty contains the following provision:
    [I]f your Ford vehicle is properly operated and maintained, and was taken to a Ford
    dealership for a warranted repair during the warranty period, then authorized Ford
    Motor Company dealers, will, without charge, repair, replace, or adjust all parts on
    your vehicle that malfunction or fail during normal use during the applicable
    coverage period due to a manufacturing defect in factory-supplied materials or
    factory workmanship.
    It further states that the warranty “does not cover any damage caused by . . . the installation or use
    of a non-Ford Motor Company part.” However, as Kuns points out, it was not the window itself that
    was defective, but the design of the liftgate components, as Ford itself acknowledged in its
    communications with the NHTSA. Therefore, it is a question of fact whether Kuns’s second
    breakage was “caused by . . . the installation or use” of a non-Ford part, such that the warranty
    would not cover a second repair of the glass.
    Nevertheless, Ford did repair the second breakage without charge to Kuns. Granted, it took
    some effort on her part: Kuns states that she “had more than one conversation” with Ford
    representatives, and that she was originally told that the warranty did not apply because she
    previously had the window replaced by a non-Ford servicer. However, after threatening to stop
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    No. 13-3364
    Nancy L. Kuns v. Ford Motor Company
    making payments on her car, Kuns received a phone call from the dealership “the next day” agreeing
    to replace the glass at no charge. A copy of Kuns’ service invoice, included in the record, indicates
    that the dealership accepted her vehicle for repair no later than January 31, 2011—three days after
    the breakage, which occurred on a Saturday—and that it completed the repair by that following
    Saturday, February 4. We accordingly decline to find a genuine issue of material fact as to whether
    the dealership “failed to cure the defects within a reasonable time and a reasonable number of
    attempts.” Temple, 133 F. App’x at 268; cf. Abele, 
    11 F. Supp. 2d 955
    , 961–62 (noting that whether
    a seller has been given a reasonable opportunity to cure is normally a question of fact, but granting
    summary judgment where “Plaintiff attempted to revoke acceptance” immediately after the second
    product failure and “refus[ed] to afford Defendant a second opportunity to repair or replace” the
    defective component). In light of the fact that the broken window was a non-factory part, the
    dealership’s initial refusal to replace it was not unreasonable, and it is uncontroverted that Kuns’s
    vehicle was repaired within a week of the breakage.
    Finally, Kuns alleges that Ford engaged in an additional violation of the MMWA by failing
    to inform vehicle owners of the conclusion it reached in its TSBs, that is, that rear window breakages
    due to the design flaw were covered by Ford’s new vehicle warranty. Kuns points to regulations
    promulgated under the MMWA, specifically 16 C.F.R. § 701.3, which require warrantors to identify
    the “components covered by[,] and where necessary for clarification, excluded from the warranty.”
    However, Kuns first raised this claim in her response to Ford’s motion for summary judgment, and
    did not include it in her subsequent amended complaint. The portion of Kuns’s amended complaint
    addressing the MMWA focuses solely on the vehicles’ defective performance, not on Ford’s
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    Nancy L. Kuns v. Ford Motor Company
    obligations to disclose particular information. While the district court considered this claim, and
    dismissed it on the basis that the TSBs are not considered warranties within the meaning of the
    MMWA, the court need not have reached it at all, and we decline to do so. See Carter v. Ford
    Motor Co., 
    561 F.3d 562
    , 568 (6th Cir. 2009); Tucker v. Union of Needletrades, Indust. & Textile
    Emps., 
    407 F.3d 784
    , 788 (6th Cir. 2005) (“A non-moving party plaintiff may not raise a new legal
    claim for the first time in response to the opposing party’s summary judgment motion.”) (citation
    omitted). We affirm the district court’s grant of summary judgment to Ford on Kuns’s MMWA
    claims.
    D. Breach of Express Warranty
    As noted above, the elements a plaintiff must show to pursue a breach-of-warranty claim in
    Ohio are the same as those required by the MMWA. See 
    Abele, 11 F. Supp. 2d at 961
    . These
    include the requirement that the seller have a reasonable opportunity to cure the defect and that it
    fail to do so. See 
    id. Thus, Kuns
    cannot prevail on a cause of action pertaining to the express
    warranty for all of the reasons addressed above. The district court correctly dismissed Kuns’s state-
    law claim.
    III. CONCLUSION
    We affirm the district court’s grant of summary judgment in favor of Ford.
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