United States District Court, E.D. Pennsylvania
MEMORANDUM RE: DEFENDANTS' MOTION TO DISMISS
PLAINTIFFS' SECOND AMENDED COMPLAINT
putative class action asserts violations of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”) (Count I), unjust enrichment (Count
II), breach of express warranty and implied warranty of
merchantability (Counts III and IV), and negligent
misrepresentation and fraud (Counts V and VI) against Volvo
Car Corporation (“VCC”) and two of its
subsidiaries, Volvo Cars of North America, Inc.
(“VCNA”) and Volvo Car UK Limited (“VCUK,
” and together with VCC and VCNA, “Volvo”).
before the Court is Defendants' Motion to Dismiss
Plaintiffs' Second Amended Complaint. For reasons stated
below, the Motion to Dismiss is GRANTED with prejudice.
claims are based on Defendants' alleged failure to
install a Side Impact Protection System (“SIPS”)
equipped with steel “door bars” in the rear
passenger-side doors of Volvo 850 vehicles. The named
plaintiff, Ana Webb, alleges that, on May 1, 2009, she
purchased one of these (used) vehicles based on advertising
that touted Volvo as a leader in automobile safety and that
claimed Volvo vehicles contained SIPS on all passenger doors.
case began with the filing of a class action complaint on May
1, 2013. After VCNA filed a Motion for More Definite
Statement (ECF 4), Plaintiffs filed an amended complaint on
September 16, 2013 (ECF 12). Then, on October 3, 2013, VCUK
filed a Motion to Dismiss for Lack of Jurisdiction (ECF 18),
and VCC and VCNA filed a joint Motion for More Definite
Statement (ECF 20), which the parties fully briefed. On
December 6, 2013, the Court held a hearing with all parties,
during which the Court granted leave to Plaintiffs to submit
a Second Amended Complaint, which they filed on December 19,
2013. (ECF 49) Also during the December 6, 2013 hearing,
Plaintiffs' counsel requested limited discovery in the
form of a corporate designee deposition of VCUK.
(Id.) The Court granted this request, but
Plaintiffs' counsel never took the requested deposition.
Thus, VCUK's Motion to Dismiss for Lack of Jurisdiction
was later granted, with the case proceeding only against VCC
and VCNA (hereinafter, “Volvo”). (ECF 90)
December 30, 2013, Defendants filed a Motion to Stay (ECF
56), in light of a very similar case pending between the
parties in the Philadelphia Court of Common Pleas. Defendants
also moved for an extension of time to respond to
Plaintiffs' Second Amended Complaint. (ECF 57) The Court
entered a stay in the case on January 31, 2014 (ECF 63). One
year later, the stay expired by its own terms. After the
parties engaged in additional motion practice, on June 23,
2015, the Court entered another stay, as the parallel case in
Philadelphia Court of Common Pleas had gone to trial but was
then pending on appeal. (ECF 92) On June 24, 2016, the
Pennsylvania Superior Court vacated part of the Court of
Common Pleas' judgment, on the grounds that, having
dismissed all negligence claims from the case, the Court
should not have instructed the jury that federal vehicle
safety standards were relevant to the question of strict
product liability. Webb v. Volvo Cars of North America,
LLC, 148 A.3d 473 (Pa. Super. Ct. June 24, 2016). As a
result, the Superior Court remanded the case to the
Philadelphia Court of Common Pleas for a retrial limited only
to the strict liability claims. Volvo then filed a request
for allocatur to the Pennsylvania Supreme Court.
Court entered an Order on July 19, 2016, maintaining the
federal case in “suspense status” pending the
outcome of the related state case. Then, on May 4, 2017, the
Pennsylvania Supreme Court denied allocatur. Following that
decision, Volvo filed in this Court a motion to lift the stay
in this federal case (ECF 97), as well as a Motion to Dismiss
Plaintiffs' Second Amended Complaint (ECF 98), and a
Motion for Partial Summary Judgment on Court I of
Plaintiffs' Second Amended Complaint. (ECF 101)
summary, more than four years since this case was first filed
in this Court,  the parties' parallel state case
remains where it began, before the Philadelphia Court of
Common Pleas- although its breadth has been limited
substantially. Similarly, the present federal case has not
moved past the Rule 12 phase.
being no further grounds for delay, it is now an appropriate
time to resolve Defendants' Rule 12(b)(6) Motion to
Dismiss. The parties have fully briefed the Motion
(ECF 98, 111, 115), and the Court held oral argument on March
1, 2009, Plaintiff Ana Webb purchased a used 1997 Volvo 850.
(SAC ¶ 30) During the period that the Volvo 850 was
manufactured, sold, marketed, and advertised by Volvo, steel
anti-intrusion door bars were an industry-standard safety
feature in passenger vehicles in the U.S. (Id.
¶ 32) Moreover, Volvo expressly and implicitly
advertised and marketed solid-steel anti-intrusion bar doors
as a safety feature of the Volvo 850 “in advertising,
marketing, promotions, sales materials, owner's manual
materials, safety materials, express and implied warranties,
and press statements and releases.” (Id.
¶ 37) Consistent with this, Volvo's
marketing and advertising messages are frequently focused on
safety. (See, e.g., id. ¶¶ 40-45)
Thus, Plaintiff Webb bought her Volvo 850 under the belief
that it was safe and that it included solid steel
anti-intrusion door bars on all four doors. (Id.
¶ 2-3) However, the Volvo 850 did not contain door bars
in its rear passenger doors. (Id. ¶ 4) As a
result, Plaintiff Webb filed this class action lawsuit on
behalf of herself and a nationwide class of current owners
and lessees of the Volvo 850 for the model years 1992-1997,
alleging consumer protection violations, express and implied
warranty violations, fraudulent and negligent
misrepresentations, and unjust enrichment. (Id.
¶¶ 1, 59-99)
The Parties' Contentions
The Second Amended Complaint
Plaintiffs allege six causes of action:
Count I: Volvo violated Pennsylvania's Unfair Trade
Practices and Consumer Protection Law (“UTPCPL”)
by: (1) falsely representing that its 1992-1997 Volvo 850
vehicles had a Side Impact Protection System and
anti-intrusion door bars, and, (2) by failing to comply with
the terms of a written warranty.
Count II: Through its material misrepresentations regarding
known design defects in its Volvo 850 vehicles, Volvo was
unjustly enriched by Plaintiffs.
Count III: Volvo violated its express warranty that its Volvo
850 vehicles were of good quality, free of defects, and were
Count IV: Volvo violated its implied warranty that its Volvo
850 vehicles were of marketable quality.
Count V: Volvo negligently provided false information to
Plaintiffs that Volvo 850 vehicles had steel anti-intrusion
door bars in their rear passenger doors.
Count VI: Volvo made material false misrepresentations that
its Volvo 850 vehicles had door bars in their rear passenger
doors and were safer than other vehicles in the event of a
The Motion to Dismiss
their Motion to Dismiss, Defendants contend that Counts I
(UTPCPL), V (Negligent Misrepresentation), and VI (Fraud)
should be dismissed because they lack allegations of
justifiable reliance on any statement or advertising by
Defendants contend that Count II (Unjust Enrichment) should
be dismissed because Plaintiffs have not adequately alleged a
benefit conferred on Defendants by Plaintiffs, knowledge or
appreciation of those benefits by Defendants, or inequitable
acceptance and retention of such benefits.
also contend that Count III (Express Warranty) should be
dismissed. To the extent that the claim
is based on Volvo's 1997 New
Car Limited Warranty (“Volvo Limited Warranty”),
the warranty included a time and mileage limitation that
expired long before Plaintiff Webb purchased her vehicle. To
the extent that the claim is not based on
the Volvo Limited Warranty, Defendants assert, Plaintiffs
have not adequately alleged reliance on a specific misleading
advertisement or other representation.
Defendants contend that, to the extent Plaintiffs rely on a
breach of express warranty for their UTPCPL claim (Count I),
that should also be dismissed for the same reasons that Count
III, mentioned immediately above, should be dismissed.
Defendants urge the Court to dismiss Plaintiffs' Implied
Warranty claim (Count IV) because the Volvo Limited Warranty
confined any implied warranties to four years from the time
of sale to the original retail purchaser, which expired long
before Plaintiff purchased the used vehicle and the four-year
statute of limitations expired.
Plaintiffs' Response in Opposition to the Motion to
response to Defendants' Motion to Dismiss, Plaintiffs
assert that they adequately pled justifiable reliance and
thus provided sufficient notice to Defendants as to Counts I
(UTPCPL), V (Negligent Misrepresentation), and VI (Fraud).
similarly disagree that their Unjust Enrichment (Count II)
claim is inadequately pled, because they alleged that
Plaintiffs conferred both direct and indirect benefits on
Defendants, Defendants knew that they obtained those
benefits, and Defendants acted inequitably in accepting and
retaining such benefits.
respect to their Implied Warranty (Count IV) claim, as well
as their Express Warranty (Count III) claim-and the
derivative UTPCPL claim-Plaintiffs assert that they
adequately highlight the specific written warranties in
Volvo's advertising and safety materials that Volvo
violated. They also assert that any disclaimer by Volvo was
ineffective because it did not state that it applied to
design defects and was not conspicuously featured in the
relevant materials. Plus, they contend, the four year statute
of limitations does not apply because the doctrine of
equitable estoppel bars Volvo from lulling Plaintiffs into a
sense of false security during the limitations period to
prevent timely accountability.
Plaintiffs move under Fed.R.Civ.P. 15(a)(2) to file a fourth
complaint, should the Court find that their third complaint
Defendants' Reply in Support of the ...