Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2583 Filed 10/25/22 Page 1 of 26
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`Plaintiffs,
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`LARRY SHARP, et al.,
`Individually and on behalf
`of themselves and all others
`similarly situated,
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`v.
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`FCA US LLC, f/k/a Chrysler
`Group, STELLANTIS N.V., and
`CUMMINS, INC.,
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`Defendants.
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`__________________________________/
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`Civil Case No. 21-12497
`Honorable Linda V. Parker
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`OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO
`DISMISS
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`On October 22, 2021, Plaintiffs filed this putative nationwide class action
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`alleging defects in the 6.7-liter turbodiesel engine installed in their heavy-duty
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`trucks. Defendant FCA US LLC (“FCA”) manufactured the trucks while
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`Defendant Cummins, Inc. manufactured the engine.1 In an almost 300-page, 776-
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`paragraph Second Amended Complaint (“SAC”), filed February 1, 2022, Plaintiffs
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`assert claims under the Magnuson-Moss Warranty Act (“MMWA”) and for
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`1 Defendant Stellantis is FCA’s parent corporation. (SAC ¶ 54, ECF No. 25 at Pg
`ID 1225.) It does not appear that Plaintiffs have served Stellantis with a summons
`or copy of the pleadings in this action.
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`

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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2584 Filed 10/25/22 Page 2 of 26
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`common law breach of contract, as well as claims under the laws of 18 different
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`States for unjust enrichment, breach of implied warranty of merchantability, and/or
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`violation of consumer-protection statutes. (ECF No. 25.)
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`The matter is presently before the Court on motions to dismiss filed by FCA
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`and Cummins. (ECF Nos. 27, 31.) The motions have been fully briefed, with
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`Plaintiffs filing a single response brief to both motions (ECF No. 36) and FCA and
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`Cummins filing reply briefs (ECF Nos. 37, 38). As well, Plaintiffs filed a sur-reply
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`brief (ECF No. 39-1), to which Defendants responded (ECF Nos. 40-1, 41-1).
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`Lastly, Plaintiffs filed supplemental authority (ECF Nos. 42-1, 43), to which
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`Defendants also responded (ECF Nos. 44, 45). The Court is prepared to rule on
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`the motions.
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`Cummins also filed a request for the Court to take judicial notice of certain
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`documents. (ECF No. 30.) Specifically, these documents are (i) from the official
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`website of the National Highway Traffic Safety Administration (“NHTSA”), part
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`of the United States Department of Transportation, and (ii) FCA’s limited
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`warranties, which are referred to in Plaintiffs’ pleadings and are central to their
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`claims. (ECF No. 30.) Plaintiffs do not oppose Cummins’ request (see id. at Pg
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`ID 2061-62), nor could they present a strong argument for doing so.
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`Courts frequently take judicial notice of federal regulatory agency materials
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`and materials available through federal agency websites pursuant to Federal Rule
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`2
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2585 Filed 10/25/22 Page 3 of 26
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`of Evidence 201(b)(2). See, e.g., Int’l Bhd. of Teamsters v. Zantop Air Transp.
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`Corp., 394 F.2d 36, 40 (6th Cir. 1968) (collecting cases); Gregorio v. Ford Motor
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`Co., 522 F. Supp. 3d 264, 279 n.5 (E.D. Mich. 2021) (citing Purry v. State Farm
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`Fire & Cas. Co., 350 F. Supp. 3d 631, 634 (E.D. Mich. 2018)); Winzler v. Toyota
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`Motor Sales USA, Inc., 681 F.3d 1208, 1212-13 (10th Cir. 2012) (“The contents of
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`an administrative agency’s publicly available files . . . traditionally qualify for
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`judicial notice, even when the truthfulness of the documents on file is another
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`matter.”). Further, when deciding a motion to dismiss, a court may consider
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`materials outside the pleadings that “are referred to in the complaint and are central
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`to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528
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`F.3d 426, 430 (6th Cir. 2008).
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`General Factual and Procedural Background
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`
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`Plaintiffs currently are 15 consumers,2 claiming residence in 18 States,3 who
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`seek to represent a nationwide class and subclasses of individuals from each of the
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`18 States, who purchased or leased the subject vehicles. (SAC ¶ 13, ECF No. 25 at
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`Pg ID 1197-98.) All Plaintiffs, except Larry Sharp, purchased or leased a MY
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`2 A sixteenth individual, William Wayne, voluntarily dismissed his claims against
`Defendants on April 21, 2022. (ECF Nos. 34, 35.)
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` 3
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` The States are Texas, Illinois, California, Oregon, Missouri, Kansas, New York,
`Idaho, Kentucky, Nevada, Utah, Washington, Arizona, Connecticut, Florida,
`Maine, North Carolina, and Georgia. (See ECF No. 27-1.)
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`3
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2586 Filed 10/25/22 Page 4 of 26
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`2019 or MY 2020 Ram 2500 or 3500 truck. Sharp purchased a MY 2018 3500
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`Ram truck. (Id.)
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`Plaintiffs allege that the Cummins engine contains a demonstrably defective
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`high-pressure fuel injection pump manufactured by Bosch (the “CP4 pump”), in
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`that, when used with American diesel fuel (which contains insufficient lubrication
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`compared to diesel made to European specifications), there is friction between
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`metal parts which causes metal shavings to contaminate the fuel system. (See, e.g.,
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`id. ¶¶ 1, 3, 10, Pg ID 1189, 1191, 1195-96.) This can lead to fuel starvation,
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`resulting in an unexpected loss of vehicle power without warning and potentially a
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`vehicular accident. (Id.)
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`On October 13, 2021—nine days before this lawsuit was filed—FCA opened
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`an investigation as a result of warranty claims associated with the CP4 pump
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`alleging loss of motive power on 2019-2020 MY Ram 2500, 3500, 4500, and 5500
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`vehicles. (NHTSA Safety Recall Report at 4, ECF No. 30-1 at Pg ID 2068.) After
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`receiving 22 complaints and two field reports alleging stall/loss of power incidents
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`in certain model year 2019-2020 Ram heavy duty trucks equipped with the CP4
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`pump, NHTSA opened its own investigation the following day. (SAC ¶ 2, ECF
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`No. 25 at Pg ID 1190 (citing https://static.nhtsa.gov/odi/inv/2021/INOA-PE21021-
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`2820.PDF).) On November 4, NHTSA issued a Safety Recall Report covering
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`4
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2587 Filed 10/25/22 Page 5 of 26
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`MY 2019-2020 Ram 2500, 3500, 4500, and 5500 pick-up trucks. (NHTSA Safety
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`Recall Report, ECF No. 30-1.) NHTSA describes:
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`Some 2019-2020 MY Ram 2500[, 3500, 4500, and 5500] vehicles
`equipped with the Cummins 6.7L Turbo Diesel engine may have
`been built with a high pressure fuel pump (“HPFP”) that could fail
`prematurely.
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`The suspect period began on October 11, 2018, when Cummins
`6.7L Turbo Diesel engines with suspect HPFPs were introduced
`into vehicle production, and ended on November 13, 2020, when
`Cummins 6.7L Turbo Diesel engines with suspect HPFPs were no
`longer used in vehicle production. The suspect period was
`determined using supplier and vehicle production records.
`Similar vehicles not included in the recall population are not
`equipped with the Cummins 6.7L Turbo Diesel engine, or were
`produced before or after the suspect period.
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`(Id. at 1-3, Pg ID 2064-66.) According to the Safety Recall Report, 222,410
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`vehicles are affected (id.), although Plaintiffs allege that 600,000 vehicles are
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`currently under NHTSA investigation (SAC ¶ 4, ECF No. 25 at Pg ID 1192).
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`NHTSA’s report reflects that FCA decided to conduct a voluntary safety
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`recall of the affected vehicles. (NHTSA Safety Recall Report at 5, ECF No. 30-1
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`at Pg ID 2069.) Pursuant to the recall, FCA agreed “to replace the HPFP [high
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`pressure fuel pump], update the Powertrain Control Module (‘PCM’) software, and
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`inspect and, if necessary, replace additional fuel system components.” (Id.) FCA
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`also agreed to reimburse owners who incurred the cost of repairing the problem.
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`(Id.)
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`5
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2588 Filed 10/25/22 Page 6 of 26
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`An FCA communication concerning the recall, dated November 18, 2021,
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`reported that a remedy was “not currently available.” (SAC ¶ 4, ECF No. 25 at Pg
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`ID 1192 (citing 11/18/21 New Safety Recall Advanced Commc’n-Y78 (“11/18/21
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`Commc’n”) at 2, ECF No. 25-46 at Pg ID 1879).) The communication advised
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`that dealers would be notified of the recall’s launch which was estimated to begin
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`during the first quarter of 2022. (11/18/21 Commc’n, ECF No. 25-46 at Pg ID
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`1879.) By December 16, FCA had announced the following recall schedule:
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`All owners will receive an interim letter on or about 01/04/2022.
`This will be a phased campaign launch: Phase 1 - all 2020 Ram
`2500, 3500, 4500, 5500 equipped with a Cummins 6.7L diesel
`engine owners will receive a final letter on or about 04/05/2022.
`Phase 2- all 2019 Ram 2500, 3500, 4500, 5500 equipped with a
`Cummins 6.7L diesel engine owners will receive a final letter on or
`about 06/17/2022.
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`(NHTSA Safety Recall Report at 5, ECF No. 30-1 at Pg ID 2069.)
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`Only four Plaintiffs have experienced engine failure: John Sullivan, Peter
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`Robinson, Michael Heath, and Neil McLeod. (See SAC ¶¶ 14-50, ECF No. 25 at
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`Pg ID 1198-1223.)
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`Robinson’s MY 2020 2500 Ram truck shut down around November 19,
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`2021, while towing a trailer on a highway in Utah. (Id.. ¶¶ 30-31, Pg ID 1210.)
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`The truck was towed to a dealership and Robinson was told that there were metal
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`shavings in the fuel system and that the entire fuel system, including the CP4
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`pump, had to be replaced. (Id. ¶ 31, Pg ID 1210.) Presumably the repairs were
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`6
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2589 Filed 10/25/22 Page 7 of 26
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`made and any costs were covered under warranty, as the only damages Robinson
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`allegedly sustained according to the SAC is that he did not receive the benefit of
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`the bargain (i.e., “[t]here is a substantial difference in the market value of the
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`vehicle promised by Defendants and the market value of the vehicle received”).
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`(Id. ¶ 32, Pg ID 1211-12.)
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`Sullivan experienced two CP4 pump failures on his MY 2019 3500 Ram
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`truck: (1) around October or November 2020, while hauling a trailer on an
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`interstate in Arkansas; and (2) on September 11, 2021, while pulling a trailer on a
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`highway in Nevada. (Id. ¶¶ 35-37, Pg ID 1213-14.) On both occasions the truck
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`was towed to a dealership, where repairs were made. (Id.) Both repairs were
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`covered under warranty. (Id.) According to the SAC, Sullivan lost several
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`thousand dollars in income while the truck was not operational. (Id.) Sullivan also
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`claims that he did not receive the benefit of the bargain. (Id. ¶ 38, Pg ID 1215.)
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`Heath’s MY 2020 2500 Ram truck shut off during Summer 2021, while
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`traveling through a residential area in Arkansas. (Id. ¶¶ 39-40, Pg ID 1215-16.)
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`The entire fuel injection system was replaced and the repair was covered under
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`warranty. (Id. ¶ 40, Pg ID 1216.) Heath alleges that he, too, did not receive the
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`benefit of the bargain. (Id. ¶ 41, Pg ID 1217.)
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`McLeod was at a red light while traveling a highway in Georgia, when the
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`CP4 fuel pump in his MY 2020 2500 Ram truck failed. (Id. ¶¶ 46-47, Pg ID 1220-
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`7
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2590 Filed 10/25/22 Page 8 of 26
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`21.) A repair was completed, which was covered under warranty. (Id. ¶ 47, Pg ID
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`1221.) McLeod alleges that, since the repair, the vehicle “has not been running
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`properly. The check engine light has come on multiple times.” (Id.) McLeod
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`indicates that two different dealerships have inspected the truck, although there is
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`no indication in the SAC as to what was found (if anything) or what McLeod was
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`told. He claims that there is a difference in the market value of the vehicle
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`Defendants promised and what he received. (Id. ¶ 48, Pg ID 1222.)
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`The remaining Plaintiffs similarly claim benefit-of-the-bargain damages.
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`(Id. ¶ 15, Pg ID 1199 [Sharp]; ¶ 17, Pg ID 1201 [Dockens]; ¶ 19, Pg ID 1202
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`[Palmer]; ¶ 21, Pg ID 1204 [Joslin]; ¶ 23, Pg ID 1205 [Galley]; ¶ 25, Pg ID 1207
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`[Smith]; ¶ 29, Pg ID 1210 [Cook]; ¶ 34, Pg ID 1213 [Haley]; ¶ 43, Pg ID 1217
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`[Crouse]; ¶ 45, Pg ID 1200 [McGahey]; ¶ 50, Pg ID 1223 [Dergosits].) This is the
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`only injury alleged by all Plaintiffs, except Sullivan who also claims lost income
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`while his truck was being repaired. Cook and Robinson also seek statutory
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`damages on behalf of themselves and the relevant putative subclasses under their
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`States’ consumer protection statutes (Kansas and Utah, respectively). (Id. ¶ 491,
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`Pg ID 1408 (citing Kan. Stat. Ann. § 50-634); ¶ 740, Pg ID 1474 (citing Utah Code
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`Ann. § 13-11-4).) Plaintiffs further seek “[i]njunctive relief in the form of an
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`adequate recall, free replacement, or vehicle buy-back program.” (Id. ¶ 298, Pg ID
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`1486.)
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`8
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2591 Filed 10/25/22 Page 9 of 26
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`FCA and Cummins seek dismissal of Plaintiffs’ claims pursuant to Rules
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`12(b)(1) and (6) of the Federal Rules of Civil Procedure. Defendants argue that
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`Plaintiffs lack standing, prudential mootness applies, and that the facts alleged fail
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`to state viable claims. FCA also argues that Plaintiffs with MY 2020 vehicles must
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`submit their claims to arbitration pursuant to the terms of their warranties.
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`Standards of Review
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`“Rule 12(b)(1) motions to dismiss for lack of jurisdiction generally come in
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`two varieties: a facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v.
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`Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack
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`challenges the sufficiency of the pleading itself. In that instance, the court accepts
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`the material allegations in the complaint as true and construes them in the light
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`most favorable to the nonmoving party. United States v. Ritchie, 15 F.3d 592, 598
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`(6th Cir. 1994) (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974)). A factual
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`attack, in comparison, challenges “the factual existence of subject matter
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`jurisdiction.” Id.
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`When a factual attack is raised, the district court must weigh the conflicting
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`evidence to arrive at the factual predicate that subject-matter does or does not
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`exist.” Gentek Bldg. Prods., 491 F.3d at 330 (citing Ohio Nat’l Life Ins. Co. v.
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`United States, 922 F.2d 320, 325 (6th Cir. 1990)). “In its review, the district court
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`has wide discretion to allow affidavits, documents, and even a limited evidentiary
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`9
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2592 Filed 10/25/22 Page 10 of 26
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`hearing to resolve jurisdictional facts.” Id. “[W]hen a defendant produces
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`evidence challenging the factual existence of [subject matter jurisdiction], a
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`plaintiff must generally prove [subject matter jurisdiction] with evidence, even at
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`the motion-to-dismiss stage.” Harris v. Lexington-Fayette Urban Cnty. Gov’t, 685
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`F. App’x 470, 472 (6th Cir. 2017) (citing Taylor v. KeyCorp., 680 F.3d 609, 613
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`(6th Cir. 2012); Superior MRI Servs., Inc. v. All Healthcare Servs., Inc., 778 F.3d
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`502, 504 (5th Cir. 2015)).
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`A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of
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`the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134
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`(6th Cir. 1996). “To survive a motion to dismiss, a complaint must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
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`on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
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`Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In deciding whether the plaintiff
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`has set forth a “plausible” claim, the court must accept the factual allegations in the
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`complaint as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). This presumption
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`is not applicable to legal conclusions, however. Iqbal, 556 U.S. at 668. Therefore,
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`“[t]hreadbare recitals of the elements of a cause of action, supported by mere
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`conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
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`10
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2593 Filed 10/25/22 Page 11 of 26
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`Standing4
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`Three elements are required to establish standing under Article III. Spokeo,
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`Inc. v. Robins, 578 U.S. 330, 338 (2016) (citing Lujan v. Defenders of Wildlife, 504
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`U.S. 555, 560 (1992)). Plaintiffs must allege facts showing that they “(1) suffered
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`an injury in fact, (2) that is fairly traceable to the challenged conduct of . . .
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`[D]efendant[s], and (3) that it is likely to be redressed by a favorable judicial
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`decision.” Id. (citing Lujan, 504 U.S. at 560-61). Defendants argue that Plaintiffs
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`fail to plead facts establishing the first element as only four of the named plaintiffs
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`experienced a failure of the CP4 pump, the failed engines and affected fuel systems
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`were repaired, and the warranties covered the repair costs.
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`“To establish injury in fact, a plaintiff must show that he or she suffered ‘an
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`invasion of a legally protected interest’ that is ‘concrete and particularized’ and
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`‘actual or imminent, not conjectural or hypothetical.’” Id. at 339 (quoting Lujan,
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`504 U.S. at 560). To be “particularized,” the injury must impact “the plaintiff in a
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`personal and individual way.” Id. (quotation marks and citations omitted). A
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`“concrete” injury is one that actually exists. Id. at 340.
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`4 Defendants’ standing argument must be addressed first because the Court’s
`authority to decide the other issues raised by Defendants is dependent upon
`Plaintiffs’ standing to sue. “Standing is ‘the threshold question in every federal
`case.’” Coal Operators & Assocs., Inc. v. Babbitt, 291 F.3d 912, 915 (6th Cir.
`2002) (quoting Warth v. Seldin, 422 U.S. 498, 490 (1975)). Without standing, the
`Court lacks subject matter jurisdiction over this lawsuit, period. Lyshe v. Levy, 854
`F.3d 855, 857 (6th Cir. 2017) (citations omitted).
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`11
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2594 Filed 10/25/22 Page 12 of 26
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`It is not necessary for Plaintiffs to have already experienced a failure of the
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`CP4 pump in their vehicles to allege an injury in fact. The defect alleged is not the
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`failure of the pump but the asserted “fragile and unstable design which causes
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`metal parts to rub against each other . . . generat[ing] metal shavings that
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`contaminate the fuel system, eventually leading to catastrophic engine failure.”
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`Plaintiffs plead sufficient facts to establish that the defectively designed pump was
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`installed in MY 2019-20 Ram 2500, 3500, 4500, and 5500 trucks. “When a
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`manufacturer sells a product that is defective, which causes consumers to be misled
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`at the point of sale into paying more and getting less than they believed they were
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`purchasing, the consumers suffer an injury in fact, even if that defect does not
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`manifest itself in every individual unit.” In re FCA US LLC Monostable Elec.
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`Gearshift Litig., MDL No. 2744, 2017 WL 1382297, at *5 (E.D. Mich. Apr. 18,
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`2017) (citing In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722
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`F.3d 838, 857 (6th Cir. 2013)); see also Raymo v. FCA US LLC, 445 F. Supp. 3d
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`680, 692 (E.D. Mich. 2020) (“Because defective trucks are just not worth as much
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`as defect-free trucks, Plaintiffs have adequately alleged an economic injury
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`sufficient to establish standing under Article III. . .”). There are insufficient facts,
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`however, to show that Sharp, who owns a MY 2018 truck, has suffered any injury.
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`The SAC is devoid of allegations reflecting a defect in the fuel pump
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`installed in MY 2018 vehicles. Plaintiffs maintain that owners and lessees of MY
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`12
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2595 Filed 10/25/22 Page 13 of 26
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`2018 trucks are properly included in the proposed nationwide class and subclasses
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`because NHTSA’s formal investigation included those vehicles. (See Resp. Br. at
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`3 n.3, ECF No. 36 at Pg ID 2311.) However, there are no facts in the SAC or
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`information in the referenced NHTSA documents suggesting—much less
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`finding—that the pumps installed in MY 2018 vehicles are defective. The
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`existence of a defect in these vehicles, in other words, is pure conjecture.
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`Prudential Mootness
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`The doctrine of mootness is a corollary to the “cases” and “controversies”
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`requirement of Article III. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78
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`(1990); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). There are different
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`“moods” of mootness, as now Justice Neil Gorsuch described while sitting as a
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`circuit judge on the Tenth Circuit Court of Appeals:
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`Always the doctrine describes a situation where events in the world
`have so overtaken a lawsuit that deciding it involves more energy
`than effect, a waste of effort on questions now more pedantic than
`practical. In some cases mootness bears a constitutional
`countenance, acting as a jurisdictional bar against even entertaining
`a case. Other times mootness carries a more prudential
`complexion, permitting us to withhold relief we have the authority
`to grant. Other times still, a case finds itself mooted by a tangle of
`constitutional and prudential considerations.
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`Winzler v. Toyota Motor Sales USA, Inc., 681 F.3d 1208, 1209 (2012). The
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`present case, like Winzler, involves the question of mootness in its prudential
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`sense.
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`13
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2596 Filed 10/25/22 Page 14 of 26
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`Most Circuits, including the Sixth, have adopted the doctrine of prudential
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`mootness. See Nasoordeen v. FDIC, No. CV-08-05631, 2010 WL 1134888, at *6
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`(C.D. Cal. Mar. 17, 2010) (collecting cases, including Greenbaum v. EPA, 370
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`F.3d 527, 534-35 (6th Cir. 2004)). The doctrine is discretionary, allowing a court
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`to withhold its authority to provide relief in the face of “circumstances under which
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`[the] controversy, not constitutionally moot, is so ‘attenuated that considerations of
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`prudence and comity for coordinate branches of government counsel the court to
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`stay its hand.” Id. (quoting Fletcher v. United States, 116 F.3d 1315, 1321 (10th
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`Cir. 1997)) (additional citations omitted); see also Deutsche Bank Nat’l Trust Co.
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`v. FDIC, 744 F.3d 1124, 1135 (9th Cir. 2014) (quoting Hunt v. Imperial Merch.
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`Servs. Inc., 560 F.3d 1137, 1142 (9th Cir. 2009)) (explaining that the doctrine
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`“permits a court to dismiss [a lawsuit] not technically moot if circumstances have
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`changed since the beginning of litigation that forestall any occasion for meaningful
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`relief”). “[I]f events so overtake a lawsuit that the anticipated benefits of a
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`remedial decree no longer justify the trouble of deciding the case on the merits,
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`equity may demand not decision but dismissal.” Winzler, 681 F.3d at 1210. It is
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`the burden of the party asserting mootness to establish that there is no effective
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`relief the court can provide. See id.
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`The “[p]rudential mootness doctrine often makes its appearance in cases
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`where a plaintiff starts off with a vital complaint but then a coordinate branch of
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`14
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2597 Filed 10/25/22 Page 15 of 26
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`government steps in to promise the relief [the plaintiff] seeks.” Id. As the Tenth
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`Circuit reasoned in Winzler:
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`[O]nce the plaintiff has a remedial promise from a coordinate
`branch in hand, [courts] will generally decline to add the promise of
`a judicial remedy to the heap. While deciding the lawsuit might
`once have had practical importance, given the assurance of relief
`from some other department of government it doesn’t any longer.
`
`
`Id. “[R]emedial commitments of the coordinate branches of the United States
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`government bear special gravity.” Id. at 1211 (citations omitted). They are taken
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`seriously “because they are generally trustworthy” and “because affording a
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`judicial remedy on top of one already promised by a coordinate branch risks
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`needless inter-branch disputes over the execution of the remedial process and the
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`duplicative expenditure of finite public resources.” Id.
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`
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`Plaintiffs, like the named plaintiff in Winzler and the plaintiffs in other cases
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`where courts found their claims prudentially moot, “ha[ve] in hand a remedial
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`commitment from our coordinate branches all the same. By filing documents with
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`NHTSA notifying it of a defect, [FCA] set into motion the great grinding gears of a
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`statutorily mandated and administratively overseen national recall process.”
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`Winzler, 681 F.3d at 1211; see also Hadley v. Chrysler Grp., LLC, 624 F. App’x
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`374, 379 (6th Cir. 2015) (finding case moot when “[t]here was never a dispute
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`between the parties as to whether a safety defect exist[ed] in the vehicles or
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`whether [the defendant] would repair that defect . . . as [the defendant]
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2598 Filed 10/25/22 Page 16 of 26
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`acknowledged the safety defect in the recall notice and promised to repair it, for
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`free, ‘as quickly as possible’”); Cheng v. BMW of NA, LLC, No. CV-12-09262,
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`2013 WL 3940815, at *4 (C.D. Cal. July 26, 2013) (emphasis in original) (finding
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`Winzler “highly analogous,” as the “[p]laintiff filed th[e] lawsuit . . . just days after
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`BMW announced a recall of [the defective vehicles]—following a lengthy and
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`cooperative investigation with NHTSA”). Even without a commitment from a
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`coordinate branch of government, the court in Flores v. FCA US, LLC, No. 19-cv-
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`10417, 2020 WL 7024850 (E.D. Mich. Nov. 30, 2020), found the case prudentially
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`moot where FCA, independent of a statutorily mandated recall, promised to repair
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`the defective vehicles, had repaired vehicles presented for repair, and reimbursed
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`owners who submitted valid repair receipts. Id. at *4. The facts here are “highly
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`analogous” to these cases.
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`
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`Plaintiffs filed this lawsuit within days of FCA and NHTSA initiating
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`investigations of the subject Ram trucks. Within two weeks of the lawsuit being
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`filed, FCA announced a voluntary recall of MY 2019-2020 Ram 2500, 3500, 4500,
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`and 5500 vehicles, whereby FCA promised to replace the defective fuel pump and
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`affected fuel system components, update software, and reimburse owners who
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`already paid for repairs. “[T]he ‘recall is being conducted under the auspices of
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`the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. § 30101 et seq.’”
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`Cheng, 2013 WL 3940815, at *4 (quoting Winzler, 681 F.3d at 1209). Thus,
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2599 Filed 10/25/22 Page 17 of 26
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`“[FCA] has subjected itself to the continuing oversight of (and potential penalties
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`imposed by) NHTSA.” Winzler, 681 F.3d at 1211 (citing 49 U.S.C. §§ 30120(c)-
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`(e), 30165(a); 49 C.F.R. § 1.50(a)). Through the statutory authority conferred
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`upon it, NHTSA “has the ability to ensure [FCA]’s full compliance through fines.”
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`Cheng, 2013 WL 3940815, at *4 (citing Winzler, 681 F.3d at 1209). “Given all
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`this,” it seems “there remains not enough value left for the courts to add in this
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`case to warrant carrying on with the business of deciding its merits.” Winzler, 681
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`F.3d at 1211.
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`
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`Plaintiffs dispute this conclusion for several reasons. First, they maintain
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`that prudential mootness applies only where the plaintiffs seek to invoke the
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`equitable remedial powers of the court and are not seeking monetary damages.
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`(Resp. Br. at 5-6, ECF No. 36 at Pg ID 2313-14.) Here, Plaintiffs point out, they
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`are claiming damages based on their overpayment for defective vehicles.5 (Id.)
`
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`5 According to the SAC, Plaintiff John Sullivan lost income between the time his
`engine failed and it was repaired. (SAC ¶¶ 36-37, ECF No. 25 at Pg ID 1214.)
`Cummins asserts that such consequential damages are expressly disclaimed in the
`applicable warranty (Chart of Plaintiffs at n.2, ECF No. 27-1 at Pg ID 1958 (citing
`2019 Warranty for Ram 2500/3500 § 1.1 at 7, ECF No. 30-4 at Pg ID 2081)), and
`that such a disclaimer is enforceable in the States (California and Oregon)
`associated with Sullivan’s claims (id. (citations omitted)). In their response brief,
`Plaintiffs do not dispute this assertion, nor do they argue Sullivan’s consequential
`damages as an injury rendering the prudential mootness doctrine inapplicable.
`Similarly, Plaintiffs do not rely on the claims for statutory damages asserted by
`Peter Robinson or Damon Cook, which are sought under Utah’s and Kansas’
`consumer protection statutes, respectively. (See SAC ¶¶ 491, 740, ECF No. 25 at
`Pg ID 1408, 1475 (citing Kan. Stat. Ann. § 50-634 and Utah Code Ann. § 13-11-
`
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2600 Filed 10/25/22 Page 18 of 26
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`Second, Plaintiffs assert that “FCA’s recall is utterly ineffective . . . as FCA admits
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`that ‘the remedy for this condition is not currently available.’” (Id. at 3, Pg ID
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`2311 (quoting 11/18/21 Safety Recall Notice, ECF No. 25-46 at Pg ID 1879).)
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`Accordingly to Plaintiffs, “there is no known fix” and “owners are faced with a
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`series of repairs that will not deliver the truck they anticipated or were promised.”
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`(Id. (quoting SAC ¶ 4, ECF No. 25 at Pg ID 1192).)
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`
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`Plaintiffs are correct that the vehicle owners in Winzler and Cheng sought
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`only declaratory and injunctive relief. See Winzler, 681 F.3d at 1209; Cheng, 2013
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`WL 3940815, at *4 (finding the plaintiff’s argument that he was seeking damages
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`“belied” by his pleading where he alleged “at this time he does not pray for any
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`monetary damages”). Yet, contrary to Plaintiffs’ belief, the plaintiffs in Flores and
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`Hadley sought damages in addition to equitable relief. Flores, 2020 WL 7024850,
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`at *2 (indicating that the plaintiffs “request restitution, damages, and appropriate
`
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`4).) It is not the Court’s role to manufacture arguments on behalf of any party. See
`Nali v. Ekman, 355 F. App’x 909, 914015(6th Cir. 2009) (Sutton, J., dissenting)
`(explaining that “our adversarial system” is “undermine[d]” and the “appropriate
`constraints” on the court’s powers are “overstep[ped]” when judges craft
`arguments for parties). The Court observes, however, that the consumer protection
`statutes in both Kansas and Utah preclude the recovery of statutory penalties in
`class actions. See Kan. Stat. Ann. § 50-634(b) (emphasis added) (“A consumer
`who is aggrieved by a violation of this act may recover, but not in a class action,
`damages or a civil penalty as provided in subsection (a) of K.S.A. 50-636 and
`amendments thereto, whichever is greater.”); Utah Code Ann. § 13-11-19(2)
`(emphasis added) (“A consumer who suffers loss as a result of a violation of this
`chapter may recover, but not in a class action, actual damages or $2,000,
`whichever is greater, plus court costs.”).
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2601 Filed 10/25/22 Page 19 of 26
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`injunctive, declaratory, and equitable relief”); Hadley, 2014 WL 988962, at *5
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`(listing the damages the plaintiffs alleged they suffered, including “diminished
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`value and lost enjoyment of their vehicles”). What the courts there concluded,
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`however, was that the recalls rendered moot the plaintiffs’ request for any actual or
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`imminent injuries:
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`Analogous to the present matter, the plaintiffs in Hadley sought
`damages, along with declaratory and injunctive relief after New
`Chrysler recalled the airbags for a safety defect. [Hadley, 624 F.
`App’x at 375]. The court found that because [the] defendant
`acknowledged the defect prior to the lawsuit, “promised to repair
`the defect for free as quickly as possible, and did in fact repair the
`plaintiffs’ vehicle,” there was no evidence that plaintiffs had
`suffered an actual injury, so the complaint was dismissed for
`mootness. Id.
`
`
`Flores, 2020 WL 7024850, at *4. The repairs of the plaintiffs’ vehicles through
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`the recalls, the Flores and Hadley courts reasoned, “removed the defect upon
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`which the plaintiffs’ diminished-value injury claim is based[.]”6 Id. (quoting
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`Hadley, 624 F. App’x at 378).
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`
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`Plaintiffs rely on two distinguishable cases: Philips v. Ford Motor Company,
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`No. 14-cv-02989, 2016 WL 693283 (N.D. Cal. Feb. 22, 2016) and Sater v.
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`Chrysler Group, LLC, No. EDCV-13-00700, 2014 WL 11412674 (C.D. Cal. Oct.
`
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`6 Similarly, while the district court in Cheng found that the plaintiff did not plead a
`claim for monetary damages, it nevertheless noted that “simply as a practical
`matter, it is unclear how [the p]laintiff can demonstrate injury in light of BMW’s
`offer to completely repair the rollaway defect.” 2013 WL 3940815, at *4.
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`Case 2:21-cv-12497-LVP-CI ECF No. 46, PageID.2602 Filed 10/25/22