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Thorne v. Pep Boys-Manny, Moe & Jack Inc.

United States District Court, E.D. Pennsylvania

July 17, 2019

VICKIE THORNE, individually and on behalf of all others similarly situated, Plaintiff,


          JOYNER, J.

         Before this Court are Defendant's Motion to Dismiss (Doc. No. 13), Plaintiff's Response in Opposition thereto (Doc. No. 20), and Defendant's Reply in further support thereof (Doc. No. 21). For the reasons set forth in this Memorandum, the Motion to Dismiss is GRANTED without prejudice and Plaintiffs are GRANTED leave to file an amended complaint within 20 days of the entry of this Order correcting the deficiencies noted in this Memorandum.

         I. BACKGROUND

         In 1966, the National Traffic and Motor Vehicle Safety Act (“the Safety Act”), 49 U.S.C. §30101, et seq., was enacted to reduce traffic accidents as well as deaths and injuries resulting from traffic accidents. The instant action concerns a regulation, promulgated under the Safety Act, aimed at facilitating notification to purchasers of defective or nonconforming tires in the interest of motor vehicle safety. 49 C.F.R. §574.2.

         Under this federal regulation, independent distributors and dealers of tires are required to assist tire manufacturers in the recordkeeping of new tire owners. Id. at §574.8. While independent distributors and dealers must comply with specific recordkeeping requirements under this regulation, ultimately, tire manufacturers shoulder the responsibility of maintaining new tire purchasers' contact information. See Tire Identification and Recordkeeping, 36 Fed. Reg. 9780 (May 28, 1971).

         This case arises from a putative class action brought by Plaintiff Vicki Thorne (“Thorne”) and all other unnamed Plaintiffs similarly situated (collectively “Class Members”) against Defendant Pep Boys - Manny, Moe & Jack Inc. (“Pep Boys”) alleging willful and noncompliant practices in the automobile retail market regarding tires sold by Pep Boys from October 1, 2012 to the present (“Class Period”). Compl. ¶¶3, 7 & n.2.

         Plaintiff is a resident of Rocky Mount, North Carolina. Id. ¶¶1, 38. On January 19, 2017, Plaintiff purchased tires[1] from a Pep Boys store located in Richmond, Virginia. Id. ¶39. At the time of this purchase, Plaintiff alleges that Defendant willfully failed to register tires sold to Plaintiff and also failed to provide federally-mandated forms, in compliance with tire identification and recordkeeping regulations.[2] Id. ¶¶3, 7, 10, 40, 43, 61-62, 71, 85, 99, 107-09, 113, 115. Not only did Defendant fail to provide Plaintiff with a tire-registration form at the time of the purchase, but Plaintiff's invoice/receipt also did not indicate that Pep Boys intended to electronically-transmit the relevant information for registration directly to the tire manufacturer. Id. ¶39.

         Defendant Pep Boys is a Delaware corporation, headquartered at 3111 West Allegheny Avenue, Philadelphia, Pennsylvania. Id. ¶2. Under the Safety Act, Defendant is an independent tire dealer/distributor, not owned or controlled by any tire manufacturer or brand name owner (“Independent Tire Dealer”). Id. ¶2.

         Plaintiff brought this action pursuant to the Class Action Fairness Act, 28 U.S.C. §1332, on behalf of herself and all other similarly situated consumers who purchased tire(s) from the Defendant or their subsidiaries during the class period, for their personal use rather than for resale or distribution, without receiving a registration card (“Nationwide Class”); as well as on behalf of the subclass of all consumers within the State of North Carolina who purchased a tire from the Defendant or their subsidiaries during the class period, for their personal use rather than for resale or distribution, without receiving a registration card (“North Carolina Subclass”). Id. ¶43.

         Plaintiff's allegations stem from Defendant's alleged failure to register or provide the appropriate means for registration of tires sold to consumers during the Class Period. Compl. ¶¶3-7. Plaintiff's principal claim is that Defendant's inaction exposed and continues to expose all Class Members, including Thorne, to harm. Plaintiff also claims that Defendant's practice deprived Class Members from the full benefit of their tire purchases, in that Class Members received only partial benefit of what they paid Defendant, id. ¶9, because the payment to Defendant encompassed not only the physical tire but also the cost of Defendant's compliance with federal law. Id. ¶9.

         In her Complaint, Plaintiff requests that this Court issue an order certifying this matter for class action status and ultimately providing Plaintiff with the means to recover for Defendant's failure to register or otherwise comply with federal requirements for tire registration in the form of monetary damages and restitution as well as injunctive and declaratory relief. Id. ¶3, p 25.

         Although Defendant's Brief in Support of its Motion to Dismiss Plaintiff's Complaint contains only the legal standard under Fed.R.Civ.P. 12(b)(6), its Motion contains explicit language requesting dismissal under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Id. The thrust of Defendant's motion is that Plaintiff lacks Article III standing under recent Supreme Court and Third Circuit decisions.[3] Id. This Motion is fully briefed and ripe for the Court's adjudication.


         When a court has jurisdiction, it possesses the “power to declare the law, and when [jurisdiction] ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 778 (2000) (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868) (“[I]f there is no jurisdiction there is no authority to sit in judgment of anything else.”)). Finally, “when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

         A party may move to dismiss a complaint for lack of subject-matter jurisdiction, under Fed.R.Civ.P. 12(b)(1). As here, “[a] motion to dismiss for want of standing is properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter.” Constitution Party v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). E.g., Harty v. Grand-Sasso, Inc., No. 18-CV-5474, 2019 WL 2423095, at *3 (E.D. Pa. June 7, 2019).

         When evaluating a Rule 12(b)(1) motion, a court must first determine whether the movant presents a facial or factual attack as “that distinction determines how the pleadings must be reviewed.” Constitution Party, 757 F.3d at 358 (citing In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012) & Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Cf. In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 2017) (internal quotations omitted) (“Two types of challenges can be made under Rule 12(b)(1)-either a facial or a factual attack.”).

         Under Third Circuit precedent, a facial attack “is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject-matter jurisdiction of the court.” Constitution Party, 757 F.3d at 358 (“[F]or example . . . because there is no indication of a diversity of citizenship among the parties, or because some other jurisdictional defect is present”). In contrast, a factual attack “is an argument that there is no subject-matter jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.” Id. (holding that when evaluating a factual attack, “the District Court may look beyond the pleadings to ascertain the facts”).

         In reviewing a facial challenge, which contests the sufficiency of the pleadings, “the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Gould Elec. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Defendant's Rule 12(b)(1) motion is properly understood as a facial attack because it contends that the Complaint lacks sufficient factual allegations to establish Article III constitutional standing. Def. Br. at 4-9.

         With regard to class actions, Third Circuit precedent holds that passive members of a class need not meet standing requirements, “so long as at least one named plaintiff has standing.” Neal v. Volvo Cars of N. Am., LLC, 794 F.3d 353 (3d Cir. 2015); see also 12B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure R. 23, at 485 (April 2018). It then follows that “federal courts lack jurisdiction if no named plaintiff has ...

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