Opinion
CIVIL 6:21-CV-00610-ADA-JCM
08-25-2023
DAVID M. RATHMANN, individually, and on behalf of a class of similarly situated individuals, Plaintiff, v. FORD MOTOR COMPANY, Defendant.
REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Plaintiff's Motion to Certify Class, to Appoint Class Representative, and to Appoint Class Counsel (ECF No. 72) and Defendant's Response (ECF No. 77) and Plaintiff's Reply (ECF No. 82). For the following reasons, the undersigned RECOMMENDS Plaintiff's Motion to Certify Class, to Appoint Class Representative, and to Appoint Class Counsel be DENIED.
I. BACKGROUND
Plaintiff, David Rathmann, brings suit on behalf of himself and those similarly situated against Defendant, Ford Motor Company, for breach of express warranty, breach of implied warranty of merchantability, violations of the Texas Deceptive Trade Practices Act (DTPA), violation of the Magnuson-Moss Warranty Act, common law fraud, and negligent misrepresentation. Pl.'s Compl. at 17-38 (ECF No. 1). Plaintiff alleges that Defendant misrepresented the payload capacity of the 2020 model year Ford F-350 pickup trucks with the 6.7L Diesel Engine, Single Rear Wheels, 4x4, Crew Cab, Long Box with either the 12k or 12.4k Gross Vehicle Weight Ratings (the “Class Vehicles”). Id. at 1-2. Plaintiff alleges that Defendant began selling the Class Vehicles in October 2017 and discovered in September 2020 that the Class Vehicles' TREAD label overstated the vehicle weight capacity by anywhere from 78 to 900 pounds. Id. at 7-8. Plaintiff alleges that in February 2021 Defendant issued a safety recall for the Class Vehicles to replace the incorrect labels. Id. at 9-10. Plaintiff claims he purchased his Class Vehicle in September 2020, before the recall. Id. at 10. Plaintiff claims that his decision to purchase the Class Vehicle was based on its payload capacity and that had he known the payload capacity was overstated he never would have paid the purchase price. Id. at 10, 14.
Plaintiff seeks to represent two subclasses of consumers: purchasers of the Class Vehicles residing in Texas and those residing in California. Pl.'s Mot. to Certify at 3. Plaintiff seeks certification of his consumer protection claims and claims for breach of express and implied warranties, fraud, and negligent misrepresentation. Id. Plaintiff, on behalf of himself and class members, seeks actual, special, and consequential damages, as well as reasonable attorneys' fees, costs, and all additional amounts permitted under Tex. Bus. & Com. Code § 17.50. Pl.'s Compl. at 28. Pursuant to this, Plaintiff filed the Motion to Certify that is now before the Court. Pl.'s Mot. to Certify.
II. LEGAL STANDARDS
Class certification is proper only where “the trial court is satisfied, after a rigorous analysis,” that the requirements of Rule 23 are met. Chavez v. Plan Benefit Services, Inc., 957 F.3d 542, 545 (5th Cir. 2020). One or more members of a class may sue or be sued as representative parties on behalf of all members Under Rule 23 only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). In addition to satisfying the above requirements, the parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Fed.R.Civ.P. 23(b). Certification under Rule 23(b)(3) is appropriate only when the Court finds that (1) the questions of law or fact common to class members predominate over any questions affecting only individual members, and (2) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed.R.Civ.P. 23(b)(3). The party seeking certification bears the burden of establishing that the requirements of Rule 23 have been met. Cruson v. Jackson Nat'l Life Ins. Co., 954 F.3d 240, 253 (5th Cir. 2020).
III. DISCUSSION
A. The class-action waiver bars certification of Plaintiff's warranty-related claims.
Plaintiff sues Defendant for breach of express warranty (Count I), breach of implied warranty of merchantability (Count II), and violation of the Magnuson-Moss Warranty Act (Count IV). Pl.'s Compl. at 17-20, 23-25. Plaintiffs claim for violations of the Texas Deceptive Trade Practices-Consumer Protect Act (Count III) is also based on breach of warranty. Pl.'s Compl. at 21. Defendant argues that all of Plaintiff's warranty-related claims are barred by the plain language of the warranty which includes a class action waiver providing that the purchaser may not bring any warranty-related claim as a “class representative, a private attorney general, a member of a class of claimants or in any other representative capacity.” Def's Resp. at 12. Thus, Defendant argues, unless the waiver is unenforceable for some reason, Plaintiff cannot pursue any warranty-related claims “as a class representative.” Id.
In his Reply, Plaintiff argued that the Court “need not decide at this juncture whether the class action waiver” is enforceable. Pl.'s Reply at 7. Plaintiff also briefly argued that, if the Court decided the enforceability decision now, “it should hold that the class action waiver . . . is substantively unconscionable.” Id. at 8. After considering the arguments in the parties' original briefing, the Court ordered supplemental briefing on the enforceability of the class-action waiver. ECF No. 83. Plaintiff filed his supplemental briefing on the issue and Defendant responded. Pl.'s Supp. Br. (ECF No. 86); Def's Resp. to Pl.'s Supp. Br. (ECF No. 89). After considering the excellent briefing from both parties on the issue, the undersigned finds that the class-action waiver is enforceable.
1. The class-action waiver applies to Plaintiff's Texas warranty-related claims.
Plaintiff first argues that, if the waiver is enforceable, it “at most would preclude certification of Plaintiff's breach of express warranty claim under Texas law.” Pl.'s Supp. Br. at 3. Thus, under Plaintiff's argument, all of Plaintiff's remaining warranty claims under Texas law and all California state law claims are unaffected by the waiver. Id. at 3-4.
Defendant concedes that it “has never sought to apply the waiver to California claims.” Def's Resp. to Pl.'s Supp. Br. at 3. Additionally, in California class-action waivers are unconscionable as contracts of adhesion. Discover Bank v. Superior Ct., 113 P.3d 1100, 1112 (Cal. 2005); Cal. Civ. Code § 1751. Accordingly, the class-action waiver does not apply to any asserted California claims.
The other prong of Plaintiff's argument-that the waiver only applies to the breach of express warranty claim under Texas law-is unavailing. Plaintiff argues that based on the warranty booklet's own language, the limitations and disclaimers apply only to the warranties in the booklet. Pl.'s Supp. Br. at 5. Plaintiff relies on the following language to support this argument: “All of the warranties in this booklet are subject to the following limitations and disclaimers.” Pl.'s Supp. Br., Ex. A at 5. While this language alone is subject to the interpretation that only the warranties in the booklet are subject to the following disclaimers, courts may not interpret the meaning of a document by isolating one single line. Instead, courts interpreting contracts under Texas law “must examine and consider the entire writing and give effect to all provisions such that none are rendered meaningless.” Gonzalez v. Denning, 394 F.3d 388, 392 (5th Cir. 2004) (citations omitted).
The language of the waiver itself is particularly instructive here. The booklet provides that, “You may not bring any warranty-related claim as a class representative, a private attorney general, a member of a class of claimants or in any other representative capacity.” Pl.'s Supp. Br., Ex. A at 6 (emphasis added). Two paragraphs later, the booklet specifically acknowledges that the purchaser “may have some implied warranties.” Id. Accordingly, the plain language of the waiver clearly extends to any warranty-related claim arising under Texas law, including Plaintiff's implied warranty claims, claims under the Magnuson-Moss Act, and DTPA claim based on a warranty.
2. The class-action waiver is not substantively unconscionable.
Plaintiff argues that the class-action waiver is substantively unconscionable because it violates public policy. Pl.'s Supp. Br. at 7-8. Specifically, Plaintiff argues that the benefits of proceeding as a class-action are so enshrined in both Texas and federal public policy for cases such as this one that enforcement of the class-action waiver violates public policy. Id. at 9. Defendant argues that class waivers are not sufficiently shocking or gross so as to be substantively unconscionable. Def.'s Resp. to Pl.'s Supp. Br. at 6.
Under Texas law, unconscionable contracts are unenforceable. In re Poly-Am., L.P., 262 S.W.3d 337, 348 (Tex. 2008). “A contract is unenforceable if, ‘given the parties' general commercial background and the commercial needs of the particular trade or case, the clause involved is so one-sided that it is unconscionable under the circumstances existing when the parties made the contract.'” Id. (citations omitted). Further, a contract or clause is substantively unconscionable “where its inequity shocks the conscience.” Muzquiz v. Para Todos, Inc., 624 S.W.3d 263, 276 (Tex. App.-El Paso 2021, pet. denied) citing Ridge Nat. Res., LLC v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 131 (Tex. App.-El Paso 2018, no pet.). Whether a contract is unconscionable is a question of law. In re Poly-Am., L.P., 262 S.W.3d at 349. The party asserting unconscionability bears the burden of proving such a ground. Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 500 (Tex. 2015) (citations omitted).
As Plaintiff points out, cases regarding the enforceability of an arbitration clause are not particularly helpful in determining whether the class-action waiver in question is unconscionable. Pl.'s Supp. Br. at 6-7. The Court has found only one case involving a class-action waiver that does not also involve an arbitration provision. In that case, the plaintiff signed four documents at a pay-day loan institution, each containing a class-action waiver provision. Ranzy v. Extra Cash of Tex., Inc., No. 09-CV-334, 2011 WL 13257274, at *1 (S.D. Tex. Oct. 14, 2011). The Southern District of Texas addressed two Texas cases and noted that, “While class action litigation received positive treatment in these two cases, they hardly represent a public policy interest that is so strong that parties may not contractually waive it.” Id. at *7. The court further observed that class action waivers have limited public policy favoring them, despite their tendency to make litigation more efficient and cost-effective, because they do not affect a plaintiff's substantive rights but instead render a procedural device unavailable to an individual. Id.; see also AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 199 - 200 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding) (noting a limited public policy in favor of class actions because they are procedural devices rather than a substantive right). The court then held that the class action waiver was enforceable.
The Court agrees with the Southern District of Texas that class action litigation has only limited public policy favoring it. Moreover, Plaintiff has presented no evidence that the clause is so inequitable that it shocks the conscience. Instead, Plaintiff has presented evidence that he would rather proceed in a class than on his own. But since class actions are merely a procedural device and Plaintiff has not waived any substantive rights, the Court is not persuaded that the waiver violates public policy or is so inequitable that it shocks the conscience. Accordingly, the Court should hold that the class action waiver is not substantively unconscionable.
3. Class action waiver is not procedurally unconscionable.
Plaintiff also argues that the class action waiver is procedurally unconscionable. Pl.'s Supp. Br. at 11. Plaintiff argues that, when viewed as a whole, the following facts render the class action procedurally unconscionable: (1) the parties to the waiver have unequal bargaining power; (2) no class member signed the warranty; (3) the waiver is buried in the warranty booklet; and (4) the waiver is a contract of adhesion. Id. at 11-15. Defendant argues that the waiver is not procedurally unconscionable. Def.'s Resp. to Pl.'s Br. at 9-14.
Procedural unconscionability refers to the circumstances surrounding adoption of a contractual provision. In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex. 2006). Unconscionability principles “do not negate a bargain because one party to the agreement may have been in a less advantageous bargaining position.” Id. at 679 (citations omitted). Instead, they are “applied to prevent unfair surprise or oppression.” Id. (citations omitted). The party alleging unconscionability has the burden of proving it. Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1077 (5th Cir. 2002) (citations omitted). The Fifth Circuit has further noted that the “only cases under Texas law in which an agreement was found procedurally unconscionable involve situations in which one of the parties appears to have been incapable of understanding the agreement. Id.
Plaintiff argues that the circumstances surrounding the waiver render it unconscionable when viewed as a whole. Pl.'s Supp. Br. at 11-15. First, Plaintiff argues that the parties have unequal bargaining power. To support his argument on this point, Plaintiff cites to a Texas Supreme Court case holding that the test for substantive unconscionability is whether the clause is so one-sided that it is unconscionable. Id. at 12 citing In re Palm Harbor Homes, Inc., 195 S.W.3d at 678. Defendant argues that, under Plaintiff's argument, large corporations “would never be able to enter into contracts with consumers without them being found procedurally unconscionable, because there will always be unequal size and bargaining power.” Def's Resp. to Pl.'s Supp. Br. at 10. The Court first notes that tests for substantive unconscionability are not applicable when determining whether a clause is procedurally unconscionable. Further, an imbalance in bargaining power and sophistication between the parties is insufficient to render an agreement unconscionable. Fleetwood, 280 F.3d at 1077. Accordingly, the parties' unequal bargaining power alone does not make the agreement unconscionable.
Plaintiff next argues that no class member signed the warranty. Pl.'s Supp. Br. at 12. Plaintiff contends that Ford “has the burden to show that the class action waiver is a valid agreement to which Plaintiff assented.” Id. at 13 (citations omitted). Defendant responds that, under Texas law, contracts prohibiting class actions need not be signed to be executed unless the parties explicitly require signatures. Def.'s Resp. to Pl.'s Supp. Br. at 12.
In Ranzy, the Southern District of Texas called into question the necessity to apply traditional waiver rules to class action waivers. Ranzy, 2011 WL 13257274 at *8. That court first noted that under Texas law, courts determining if a waiver has occurred “must examine the acts, words, or conduct of the parties and it must be ‘unequivocally manifested' that it is the intent of the party to no longer assert the right.” Id. citing Dep 't of Protective andRegul. Servs. V. Schutz, 101 S.W.3d 512, 516 (Tex. App.-Houston [1st Dist.] 2002, no pet.). The court went on to hold that because the class action mechanism is a procedural device and not a right, that an unequivocal manifestation is not necessary. Id. The court nonetheless held that because the plaintiff had signed the loan agreements, she intended to waive her ability to bring or participate in class action litigation against the defendants. Id.
Plaintiff here sues Defendant for a number of warranty related claims. See Pl.'s Compl. at 17-20, 23-25. It defies logic to say that a litigant can sue for breaches of warranties and deny knowledge of the existence of warranties. Plaintiff also presents no evidence that he was unaware of the existence of the warranty booklet or that Defendant took any actions to prevent Plaintiff from finding and reading the warranty booklet. Instead, Plaintiff alleges only that Defendant did not provide him a copy of the warranty booklet. But, as Defendant argues, the warranty booklet was readily available on Defendant's website. Def.'s Resp. to Pl.'s Supp. Br. at 12. That Plaintiff did not read it does not render the waiver procedurally unconscionable. Venture Cotton Coop. v. Freeman, 494 S.W.3d 186, 199 (Tex. App.-Eastland 2015, no pet.).
Plaintiff also argues that the “class action waiver is buried in the Limited Warranty.” Pl.'s Supp. Br. at 13. Plaintiff argues that other provisions are printed in bold, capital, or underlined letters, but the waiver is “printed in the very same font and font size as the majority of the Limited Warranty's terms, without any bolding, italicizing, or underlining for emphasis.” Id. citing Ex. A at 6. Defendant argues that the mere fact that the class action waiver is not hidden but acknowledges that the waiver itself is not particularly eye-catching. See Def.'s Resp. to Pl.'s Supp. Br. at 13. Plaintiff has not pointed the Court to any case supporting the proposition that it is somehow fraudulent, misrepresentative, or deceitful. In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005) (holding that a party is bound by a contract he entered absent fraud, misrepresentation, or deceit).
The Court also notes that the “Limitations and Disclaimers” section containing the waiver is the only multi-page gray textbox in the warranty booklet. Pl.'s Ex. A. It is also in the third section of twelve. Id. at 5. Finally, the title “Limitations and Disclaimers” is bolded, capitalized, and underlined. Id. Thus, it cannot fairly be said that the waiver provision is “buried” in the warranty booklet. Defendant did nothing to hide the waiver such as making the font size smaller or putting the waiver in an unrelated section. Defendant merely included a limitation on warranty claims in the section covering limitations on warranty claims in the only grey text box spanning multiple pages. Accordingly, Plaintiff's argument that Defendant hid or buried the waiver is unavailing.
Finally, Plaintiff argues that the contract is procedurally unconscionable because it is a contract of adhesion. Pl.'s Supp. Br. at 14. Defendant argues that this fact alone does not render the waiver unconscionable. The Supreme Court of Texas has rejected the idea that adhesion contracts are inherently unconscionable. In re AdvancePCS Health L.P., 172 S.W.3d 603, 608 (Tex. 2008). Plaintiff's final argument is, therefore, also unavailing.
Plaintiff argues that none of these arguments independently renders the contract unconscionable, but rather the totality of the circumstances makes the waiver unconscionable. The Court has found no case in Texas or federal court holding that a class action waiver is unconscionable. Instead, courts addressing situations with multiple similar arguments as Plaintiff's have held the agreement was conscionable. For example, in Fat Butter, Ltd., the Southern District of Texas held that an arbitration provision was not procedurally unconscionable even though the plaintiff did not sign it, it was part of an adhesion contract, and the terms were buried in a lengthy and technical document. Fat Butter, Ltd. v. BBVA USA Bancshares, Inc., No. 4:09-CV-3053, 2010 WL 11646900, at *17 (S.D. Tex. Apr. 13, 2010), R. & R. adopted sub nom. Fat Butter, Ltd. v. BBVA Bancshares, Inc., No. Civ. A. H-0903053, 2010 WL 8756271 (S.D. Tex. Apr. 29, 2010). This case encompasses all four of Plaintiff's arguments. Accordingly, the Court is unpersuaded that Plaintiff has carried his very high burden of proving procedural unconscionability.
B. Certification of Plaintiff's claims requiring a showing of individualized reliance is improper under Rule 23(b)(3).
Defendant argues that Plaintiff fails to satisfy the predominance element of Rule 23(b)(3) for Count I and Count III, as well as for his common law fraud claim (Count V) and his negligent misrepresentation claim (Count VI) because they require a showing of individualized reliance. Def.'s Resp. at 8-9. Defendant specifically argues that Count V and VI require proof that Plaintiff and class members relied on the misrepresentation on the doorjamb label. Def.'s Resp. at 9.
The Fifth Circuit has repeatedly found that class issues fail to predominate when the plaintiff asserts fraud claims that require showing individualized reliance. Lee v. Samsung Elecs. Am., Inc., No. 4:21-CV-1321, 2022 WL 4663878, at *4 (S.D. Tex. Sept. 21, 2022), R. & R. adopted, No. 4:21-CV-01321, 2022 WL 7757471 (S.D. Tex. Oct. 12, 2022); Slade v. Progressive Sec. Ins. Co., 856 F.3d 408, 415 (5th Cir. 2017); McManus v. Fleetwood Enterprises, Inc., 320 F.3d 545, 550 (5th Cir. 2003). McManus, which Defendant claims is controlling here, is particularly helpful. Def.'s Resp. at 8. In McManus, the plaintiffs, Donnie and June McManus, jointly purchased a motorhome intending to tow a Jeep Cherokee behind it. McManus, 320 F.3d at 546. The plaintiffs claimed that they relied on a tag affixed to the wardrobe door stating that the motor home could tow 3,500 pounds. Id. According to the chassis manufacturers, however, the motor homes would require supplemental brakes to tow 3,500 pounds safely. Id. at 547. The plaintiffs sued and sought class certification. Id. The district court initially granted class certification, but on appeal, the Fifth Circuit held that certification was improper for the claims that required a showing of reliance because reliance would vary from plaintiff to plaintiff, depending on the circumstances surrounding the sale. Id. at 550.
This case bears a substantial resemblance to McManus. Here, Plaintiff claims that classwide proof is available to show reliance because payload is the most important factor influencing Class Vehicle purchasers. The TREAD label contains each vehicle's exact payload capacity. Pl.'s Mot. to Certify at 23. Defendant, however, offers the testimony of ten purchasers of the Class Vehicle who declared they did not look at the TREAD label before purchasing. Def.'s Exs. 2-11. Defendant also offers a declaration from Plaintiff's sales consultant, who states that he has sold hundreds of Super Duty trucks and purchasers do not normally look at the TREAD label. Def.'s Ex. 12. Finally, Defendant offers a survey of putative class members showing that 91% of putative class members did not look at the TREAD label for payload or towing information before purchasing. Def.'s Ex. 13. Plaintiff has shown that if purchasers were to rely on the exact payload, they would have to rely on the TREAD label, but Plaintiff has not shown that such reliance occurred. Thus, Plaintiff has not established that the potential variables in reliance between class members are sufficiently uniform to justify class treatment. See McManus 320 F.3d at 550 (“[o]ther potential class members certainly may have read the wardrobe door tag . . . as being silent on the issue of supplemental brakes-and certainly some class members may have actually known at the time of purchase that supplemental brakes would be needed.”). Accordingly, Plaintiff has failed to satisfy the predominance element of Rule 23(b)(3) for Count I, III, V, and VI because they require a showing of individualized reliance.
C. The certification of a California class is improper.
Plaintiff also seeks to represent a certified subclass of California residents, with claims under California law that correspond to his Texas claims. Pl.'s Mot. to Certify at 3, 26. Plaintiff's California claims, like his Texas claims, will turn on the individual issue of exposure to the TREAD label.
To prevail on a breach of express warranty claim under California law, a plaintiff must prove: (1) the seller made an affirmation of fact or a promise, or otherwise described the goods; (2) the statement formed part of the basis of the bargain; (3) the express warranty was breached; (4) the plaintiff was harmed; and (5) the breach of warranty was a substantial factor causing the plaintiffs harm. Rosales v. FitFlop USA, LLC, 882 F.Supp.2d 1168, 1178 (S.D. Cal. 2012). Product advertisements, brochures, or packaging can serve to create part of an express warranty. Id. While this does not require that a plaintiff relied on the individual advertisements, it does require that a plaintiff was actually exposed to the advertising. Id. Further, California cases “require that plaintiffs bringing express warranty claims founded on statements in marketing materials and elsewhere outside an express written warranty . . . must allege that they at least heard, read, or were otherwise aware of the statements to satisfy the basis-of-the-bargain requirement in U.C.C. §2-313.” In re Toyota RAV4 Hybrid Fuel Tank Litig., 534 F.Supp.3d 1067, 1090 (N.D. Cal. 2021).
Here, some plaintiffs may have been aware of the allegedly misleading TREAD label, while others may not have been exposed to it. Exposure to a misleading statement for the sake of a California express warranty claim is an individualized issue that defeats predominance. See Hadley v. Kellogg Sales Co., 324 F.Supp.3d 1084, 1100 (N.D. Cal. 2018) (denying certification to a subclass because the court would have to engage in individualized inquiries to discover which members of the proposed subclass actually saw the allegedly misleading labeling and which did not).
Plaintiff's common law fraud claim, his negligent misrepresentation claim, and his claim under the California Consumer Legal Remedies Act (CLRA)-the California equivalent to the DTPA- all require a showing of reliance. See Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 794 (9th Cir. 2012) (“[C]onsumers seeking to recover damages under the CLRA based on a fraud theory must prove “actual reliance on the misrepresentation and harm.”); Lazar v. Superior Court, 909 P.2d 981, 984 (Cal. 1996) (“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.”); Wells Fargo Bank, N.A. v. FSI, Fin. Sols., Inc., 127 Cal.Rptr.3d 589, 600 (2011) (“The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.'”). Because these claims require a showing of reliance, McManus is controlling, and it would be inappropriate to certify a California subclass for these claims.
Plaintiff also argues that while he was not a resident of California when he purchased his truck, there are no material differences in the elements and burdens between the governing state laws that would make him unfit to represent the California purchasers. Pl.'s Mot. to Certify at 20. A class representative must be part of the class and “possess the same interest and suffer the same injury” as the class members. E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977). Here, in the absence of a Texas class, Plaintiff would represent only the California class. Plaintiff is not a member of the California subclass because he did not purchase his Class Vehicle in California. Accordingly, Plaintiff is not fit to represent a California class.
IV. CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS Defendant's Motion to Certify Class, to Appoint Class Representative, and to Appoint Class Counsel (ECF No. 72) be DENIED, consistent with the discussion above.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.