United States District Court, E.D. Pennsylvania
VICKIE THORNE, individually and on behalf of all others similarly situated, Plaintiff,
PEP BOYS - MANNY, MOE & JACK INC., Defendant.
MEMORANDUM AND ORDER
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.
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.
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).
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
is a resident of Rocky Mount, North Carolina. Id.
¶¶1, 38. On January 19, 2017, Plaintiff purchased
tires 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. 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.
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.
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.
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.
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.
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. Id. This Motion is fully briefed
and ripe for the Court's adjudication.
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).
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).
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
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”).
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.
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 ...