United States District Court, E.D. Michigan, Southern Division
ROY A. DAY, Plaintiff,
v.
GENERAL MOTORS COMPANY and MARY T. BARRA, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [ECF
NO. 16], DENYING AS MOOT DEFENDANTS'
MOTION TO CHANGE VENUE [ECF NO. 17], AND
DISMISSING PLAINTIFF'S CAUSE OF ACTION
DENISE
PAGE HOOD UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
Pro
se Plaintiff filed the instant cause of action on May 6,
2019, and filed an amended complaint on May 29, 2019 (the
“Amended Complaint”). Defendants filed a Motion
to Dismiss [ECF No. 16] and a Motion to Change Venue [ECF No.
17] on September 13, 2019. The motions have been fully
briefed, and the Court also is in receipt of a letter from
Plaintiff filed on November 7, 2019. [ECF Nos. 23, 25-29] The
Court, having concluded that the decision process would not
be significantly aided by oral argument, previously ordered
that the motion be resolved on the motion and briefs
submitted by the parties. E.D. Mich. L.R. 7.1(f)(2). For the
reasons set forth below, Defendants' Motion to Dismiss is
granted, Defendants' Motion to Change Venue is denied as
moot, Plaintiff's cause of action is
dismissed.[1]
II.
BACKGROUND
Plaintiff,
a Florida resident, brought this three-count action against
Defendant General Motors Company, a Michigan corporation
(“GM”), and Defendant Mary T. Barra, a Michigan
resident and the Chief Executive Officer of GM
(“Barra” or “MTB”). The action stems
from Plaintiff's purchase of a General Motors Chevrolet
Spark 1LT (“Spark” or “S”) from
Castriota Chevrolet (the “Dealership” of
“CC”) in Hudson, Florida. ECF No. 8, PgID 56
(¶6). On May 19, 2016, Plaintiff executed a contract
with the Dealership for purchase of the Spark and a loan
agreement with GM Financial (a GM subsidiary). Id.
The Spark came with a bumper-to-bumper 36, 000 mile/3-year
warranty.
Plaintiff
alleges that he had a number of issues with the Spark, as
follows:
The mileage on the “S” on February 19, 2017 was
12, 317 miles. On February 28, 2017 the “S” had a
Left HighBeam fail (First Time), and was replaced under
warranty. On September 13, 2017, Plaintiff delivered a letter
to Ms. Cathy Davidson at “CC” in Hudson, Florida
on the “S” HighBeam issue, and the probability
that an “electrical system” issue exist for the
“S” (See Exhibit “500” attached
hereto and by reference incorporated herein). On October 5,
2017, with 26, 435 miles, the “S” had a Right
Highbeam fail (First Time), and was replaced under warranty.
On January 4, 2018, the “S” had a Battery
Failure, and Plaintiff received a Jump Start with GM Roadside
Assistance after Plaintiff telephoned Defendant
“GM's” Road-Side Assistance. The
“S” on January 19, 2018 had 33, 856. On May 19,
2018, the “S” had a mileage of 42, 364.
CAVEAT: Pursuant to contract law, under a
“cunning, misleading, and deceptive”
interpretation, and a “planned obsolescence scam”
interpretation, an individual would “cunningly,
misleading, and deceptively, ” state the
“S” was now “out-of-warranty”
pertaining to the “paper-legal-defined-warranty,
” when in fact, based on the facts in the instant case,
Plaintiff's vehicle warranty for the “S” was
still valid, and full and complete. On June 29, 2018 the
“S” had another Dead Battery, and Plaintiff
received a Jump Start from GEICO RoadSide Assistance. The
mileage on June 19, 2018 was 44, 456 miles. With 45, 000
miles on July 3, 2018, Plaintiff had another battery failure,
and the “Cruise Control” failed (no longer
functional in the “set” mode). In addition, on
July 3, 2018, the “Traction Control/Electronic
Stability Control” failed (no longer functional in the
“set” mode) with the “icon constantly
appearing in the information display. Subsequently, on July
3, 2018, Plaintiff purchased a new battery from Advance Auto
Parts (Battery Gold ATOCF - EA 11348065 H4). With the
“W36” reflecting a “cunning, misleading,
and deceptive paper-expiration, ” even though Plaintiff
had documented the deficient HighBeam issue as associated
with a deficient electrical system issue on the
“S, (see Exhibit “500” attached hereto),
Plaintiff made an appearance at “CC” in Hudson,
Florida requesting service under the warranty for the
aforesaid Cruise Control issue, and Traction Control issue,
and the HighBeam issue, and the electrical system issue, but
was denied service under the “cunning, misleading, and
deceptive” paper-expiration-warranty, and was informed
that the diagnostic check would be $148.00. Plaintiff
refused, since Plaintiff contends that since
Plaintiff documented the HighBeam issue, as associated with
the electrical system on the “S” (see
Exhibit “500” attached hereto) that Plaintiff
was still under the “W36.” Defendants are
using “W36's” disclaimers on warranties in an
unfair or misleading manner! On July 19, 2018, the
“S” had 46, 498 miles. On July 23, 2018, the Left
HighBeam failed a “Second Time” with a NEW
BATTERY (since the electrical system, and/or HighBeams, were
deficient on the “S, ” Plaintiff expected the
HighBeam to fail again, when in fact, the Highbeam did fail
again, and will continue to fail). Accordingly, as Plaintiff
surmised in the letter (See Exhibit “500”
attached hereto) to Ms. Davidson (See Exhibit
“500” attached hereto) pertaining to the
electrical system and the HighBeam issue, Plaintiff was
correct, specifically, the “S” had a deficient
electrical system, and/or the HighBeam replacement was a
“planned-obsolescence” “scam” to
force and coerce a “cunning, misleading,
deceptive” maintenance schedule.
ECF No. 8, PgID 56-57 (¶6) (emphasis in original).
Plaintiff alleges that he was forced to file this action
because:
To ensure the record was clear and certain and full and
satisfactory, Plaintiff sent a letter to Defendant
“MTB” documenting the “cunning, misleading,
and deceptive” warranty (See Exhibit “501”
attached hereto and by reference incorporated herein).
Plaintiff received no response to the aforesaid Exhibit
“501” so Plaintiff sent a second letter to
Defendant “MTB” (See Exhibit “502”
attached hereto and by reference incorporated herein).
Plaintiff received an email response that indicating to
contact Defendants via a telephone conversation, but
Plaintiff was not duped. Plaintiff sent a reply email
indicating all correspondence must in writing via an email
response (See Exhibit “503” attached hereto and
by reference incorporated herein) (See Exhibit
“504” attached hereto and by reference
incorporated herein).
ECF No. 8, PgID 58 (¶7) (emphasis in original).
Count
One of Plaintiff's Amended Complaint is for breach of
contract, Count Two is for fraud, and Count Three is for
negligence. As to GM, Plaintiff alleges that:
[GM] is an automobile manufacturing parent-holding company
with various affiliates, subsidiaries, agents, servants, and
co-conspirators, including but not limited to, Castriota
Chevrolet (hereafter, “CC”) in Hudson, Florida.
Defendant “GM” is engaged in the business of
manufacturing vehicles in the various States across the
United States, and the various Nations on Planet Earth. At
all times pertinent to this Complaint, and at all times
mentioned, Defendant “GM” was acting through its
principal agents, and servants, including but not limited to,
Castriota Chevrolet in Hudson, Florida, and Defendant Mary T.
Barra, and various agents, and servants, and co-conspirators,
and employees, of Defendant “GM, ” including but
not limited to, various subsidiaries and affiliates of
Defendant “GM, ” whose names are not known to
Plaintiff at this stage of litigation. Defendant
“GM” was acting individually and in concert, with
each and all agents and servants and co-conspirators and
employees, including but not limited to, Defendant Mary T.
Barra, and “CC” in Hudson, Florida.
CAVEAT: For the purpose of the instant complaint,
Defendant “GM” refers, relates, pertains and
mentions each and all subsidiaries and affiliates, and
agents, and servants, and co-conspirators, and employees,
whose names are not know to Plaintiff at this stage of
litigation.
ECF No. 8, PgID 54-55 (¶2) (emphasis in original).
Plaintiff makes the following allegations about Barra:
Defendant is Mary T. Barra, Chairman and President and Chief
Executive Officer (hereafter, Defendant “MTB”) of
Defendant “GM.” At all times pertinent to this
Complaint, Defendant “MTB, ” was employed by
Defendant “GM” as the Chairman and Chief
Executive Officer, with her legal residence and domicile in
the State of Michigan. In doing the acts and
things hereinafter set forth, Defendant “MTB” was
acting individually and in concert with
“CC” in Hudson, Florida, and its
various subsidiaries and affiliates, and agents, and
servants, and co-conspirators, and employees, in
Defendant “MTB's” capacity as Chairman and
Chief Executive Officer of Defendant “GM.” Each
and all acts of Defendant “MTB” set forth herein
were done by Defendant “MTB,
” acting individually and in concert under pretense and
by virtue of, and under the authority of, Defendant
“MTB's” office as Chairman and Chief
Executive Officer of Defendant “GM,
” and its various subsidiaries and affiliates, and
agents, and servants, and co-conspirators, and employees, and
its various subsidiaries and affiliates, and agents, and
servants, and co-conspirators, and employees.
ECF No. 8, PgID 55 (¶3) (emphasis added). Plaintiff also
alleges that he sent Barra two letters, but Barra never
responded to either of them. ECF No. 8, PgID 58 (¶7).
III.
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