United States District Court, E.D. Michigan, Southern Division
R. Grand Magistrate Judge.
ORDER DENYING PLAINTIFFS' MOTION FOR
RECONSIDERATION  AND GRANTING IN PART MOTION TO STRIKE
AMENDED COMPLAINT 
J. MICHELSON UNITED STATES DISTRICT JUDGE.
own or owned GM vehicles which they allege developed cracks
in dashboards years after purchase. These cracks, they
allege, can pose a safety hazard. So, as a proposed class,
Plaintiffs bring claims of fraud, breach of implied and
express warranty, unjust enrichment and claims under the
Magnusson Moss Warranty Act. GM moved to dismiss the
complaint alleging deficiencies in standing and pleading.
(ECF No. 31.) Following oral argument, the Court granted
GM's motion, but allowed Plaintiffs an opportunity to
file an amended complaint to replead their implied warranty
claims. (ECF No. 43.) Plaintiffs filed an amended complaint
(ECF No. 45) as well as a motion for reconsideration (ECF No.
reasons stated below, the Court denies Plaintiffs' motion
December 2017, Plaintiffs filed their original complaint.
(ECF No. 1.) GM moved to dismiss that complaint. (ECF No.
12.) After Plaintiffs filed an amended complaint (ECF No.
14), GM again moved to dismiss. (ECF No. 31.) They relied in
large part on a virtually identical case pending in federal
court in Wisconsin, Mross v. General Motors Co.,
LLC, No. 15-00435, 2016 WL 4497300 (E.D. Wis. Aug. 25, 2016).
In response to that second motion, Plaintiffs likewise
“urge[d] this Court to follow Mross, which
actually supports the viability of Plaintiff's
claims.” (ECF No. 32, PageID.1382.)
Court did rely on Mross. But Mross was less
helpful to Plaintiffs than they believed, and the Court found
that only the implied-warranty claims had been adequately
pled. Plaintiffs now reverse course and make new arguments in
their request for the Court to reconsider its summary
judgment ruling. None persuade.
Rule 7.1 permits a party to move for “rehearing or
reconsideration . . . within 14 days after entry of the
judgment or order.” E.D. Mich. LR 7.1(h)(1). And the
moving party has a two-part burden. First the moving party
must “demonstrate a palpable defect by which the court
and the parties and other persons entitled to be heard on the
motion have been misled” and then “show that
correcting the defect will result in a different disposition
of the case.” E.D. Mich. Local Rule 7.1(h)(3).
first argue that the Court “reache[d] legal conclusions
based on arguments not raised by GM and without supporting
law.” (ECF No. 46, PageID.2267.) They so argue because
GM did not make any state-specific arguments for dismissal of
Plaintiffs' claims for fraudulent concealment, consumer
protection violations, and unjust enrichment. (Id.)
True, GM, relying on Mross and the Restatement
(Second) of Torts, did make general arguments that the claims
are subject to dismissal. (See ECF No. 31.) But
Plaintiffs did not object to GM's approach in its
response or argue that some states indeed had laws that
differed from the Restatement in legally significant ways.
Cf. Counts v. General Motors, LLC, 237 F.Supp.3d
572, 594, 597 (E.D. Mich. 2017) (refusing to address
state-specific arguments parties raised by citing to
appendices instead of integrating the information into the
briefing); In re Chrysler-Dodge-Jeep Ecodiesel Mktg.,
Sales Practices, & Prod. Liab. Litig., 295,
F.Supp.3d 927, 1015 (N.D. Cal 2018) (same); In re
Mercedes-Benz Emissions Litig., No. 16-881, 2019 WL
413541 (D.N.J. Feb 1, 2019) (same). To the contrary,
Plaintiffs stated that because GM made general arguments,
“this Court may evaluate the sufficiency of
Plaintiffs' fraud-based claims without engaging in an
arduous state-by-state analysis, and instead, may evaluate
them by simply addressing GM's generalized arguments for
dismissal.” (ECF No. 32, PageID.1387.) So that is what
the Court did. The Court is not responsible to sua
sponte raise and resolve legal arguments that the
parties have not briefed. See Counts, 237 F.Supp.3d
Plaintiffs argue that the Court erred in finding that
Plaintiffs needed to have pled the existence of a safety
defect and GM's knowledge of that safety defect, and that
they failed to state a claim of unjust enrichment. (ECF No.
46, PageID.2269-2276, 2283-2288.) But the Court did so by
applying the reasoning in Mross. And the Court
relied on Mross because both parties, including
Plaintiffs, asked the Court to do so. (See, e.g.,
ECF No. 32, PageID.1372 (Plaintiffs advised that this case
“presents no Gordian Knot for this Court to
untie” in part because the Court “has the benefit
of Mross”).) In their summary judgment
response brief, Plaintiffs included a separate section (not
under any particular claim) entitled “Mross v.
General Motors Company, LLC” in which they
“urge[d] this Court to follow Mross, which
actually supports the viability of Plaintiffs'
claims.” (ECF No. 32, PageID.1382.) That statement was
not conditioned or cabined to any particular claim. Although
Plaintiffs later argued that they should not need to plead
knowledge of the safety risk posed by the alleged defect, the
Court stated at the hearing that Plaintiffs “cannot
have it both ways.” (ECF No. 44, PageID.1550.) Further,
at numerous times during the hearing, the Court referenced
the parties' request that the Court follow
Mross. At no time did either party correct that
understanding or disagree with that characterization. And at
one point, Plaintiffs' counsel stated that the Court
should follow the rationale of the Mross rulings.
(ECF No. 44, PageID.1514.) The Court does not find its
reliance on Mross to be a palpable defect.
also argue that the Court applied the wrong legal standard in
finding that they did not adequately plead that GM knew about
the safety risk posed by the crack in the dashboard.
Plaintiffs argue that the Court required them to allege that
GM had subjective knowledge of the safety risk posed by the
defect. But the Court stated that Plaintiffs needed to plead
facts that make it plausible to infer that GM knew
about the safety issue. (ECF No. 44, PageID.1550.) Not that
GM subjectively knew. And the Court found that
Plaintiffs' bare allegations about testing and complaints
and warranty claims did not make it plausible that GM knew
about the safety risk. There is no palpable error.
also argue that the Court conflated their consumer protection
and fraudulent concealment claims. Not so. Instead, GM put
forth one general argument for why these two sets of claims
fail. And Plaintiffs' response to this general argument
was that “GM's arguments for the dismissal of
Plaintiffs' consumer protection claims are no different
and fail for the same reasons as discussed above.” (ECF
No. 32, PageID.1403.) Plaintiffs did go on to argue that
consumer protection claims “often” require less
proof than common law fraud and that “many consumer
protection statutes protect against deceptive or unfair
conduct even if it does not involve deceit.” (ECF No.
32, PageID.1404.) But Plaintiffs did not identify which state
laws had what requirements and how their claims were
adequately pled under those different elements. Instead, they
just asserted that different states have different laws. And
they never bothered to explain why their claims were ...