United States District Court, E.D. Texas, Sherman Division
RODERICK HARRIS, SHAWN WILSON, JOHN MAY, ZHEN LIN, DERRICK DUNLAP, GEORGE WYNN, and ANDREW CARRIER, Plaintiffs,
BMW OF NORTH AMERICA, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion to Dismiss
Pursuant to Rules 12(b)(1) and 12(b)(6) or, in the
Alternative, to Sever Plaintiffs' Claims Pursuant to
Rules 20 and 21 (Dkt. #11).
Court, having considered all the pleadings, motions, and
relevant evidence, finds that the Defendant's Motion
should be DENIED.
Roderick Harris, Shawn Wilson, John May, Zhen Lin, Derrick
Dunlap, George Wynn, and Andrew Carrier
(“Plaintiffs”) are Texas residents and purchasers
of BMW vehicles. Defendant, BMW of North America, LLC
(“Defendant”), is a Delaware limited liability
company and the wholesale distributor of BMW vehicles sold in
North America. Specifically, Defendant is engaged in the
business of importing, assembling, marketing, distributing,
and warranting BMW vehicles that are ultimately sold or
leased in North America. Defendant does not itself sell or
lease BMW vehicles; instead, it leaves the business of
selling or leasing BMW vehicles to its network of regional
and local BMW dealers.
each own a BMW vehicle equipped with a V8, twin-turbocharged
engine, referred to as the “N63.” BMW released
the N63 in 2008, advertising it as the next generation high
performance engine designed for certain BMW vehicles,
including 5 series, 6 series, 7 series, X5, and X6 models
produced from 2009-2014. Apparently, vehicles equipped with
the N63 have experienced a variety of problems since the
engine's release in 2008. In particular, purchasers of
N63-powered vehicles, including Plaintiffs, claim that the
N63 consumes excessive amounts of engine oil, requiring
frequent oil changes and engine repairs. And this alleged oil
consumption defect, Plaintiffs claim, has diminished the
value of their vehicles.
amended complaint provided the following details about
Plaintiffs and the subject vehicles: Roderick Harris
purchased a 2010 BMW 5 Series 550i on October 30, 2013 for
$51, 312.80; Shawn Wilson purchased a 2009 BMW 7 Series 750i
on January 22, 2013 for $46, 202.80; John May purchased a
2012 BMW X5 XDrive 50i on December 26, 2015 for $51, 607.14;
Zhen Lin purchased a 2010 BMW 5 Series 550i on August 11,
2011; Derrick Dunlap purchased a 2014 BMW 5 Series 550i on
July 31, 2017 for $45, 810.72; George Wynn purchased a 2013
BMW 7 Series 750i on August 6, 2014 for $78, 776.40; and
Andrew Carrier purchased a 2012 BMW 7 series 750i on December
21, 2015 for $44, 974.50.
assert multiple grounds for relief. First, Plaintiffs claim
that Defendant made and subsequently breached express and
implied warranties as to each vehicle. Second, Plaintiffs
claim that Defendant's breach of warranty and failure to
disclose the engine defects despite having knowledge of the
defects constituted deceptive trade practices under the Texas
Deceptive Trade Practices-Consumer Protection Act.
submit that the Court has jurisdiction over the action
pursuant to the Magnuson-Moss Warranty Act (“Magnuson
Moss”), 15 U.S.C. § 2310; diversity jurisdiction,
28 U.S.C. § 1332; and supplemental jurisdiction, 28
U.S.C. § 1367.
filed their original Complaint against both Defendant and
Bavarian Motor Works on January 8, 2019 (Dkt. #1). On
February 6, 2019, Defendant and Bavarian Motor Works filed a
Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) or,
in the Alternative, to Sever Plaintiffs' Claims Pursuant
to Rules 20 and 21 (Dkt. #8). On February 20, 2019,
Plaintiffs filed their First Amended Complaint, in which they
made substantially the same allegations as in their original
Complaint but listed BMW of North America, LLC as the sole
Defendant (Dkt. #10).
March 6, 2019, Defendant filed a Motion to Dismiss asserting
substantially the same grounds for dismissal as asserted in
its February 6 Motion (Dkt. #11). On March 20, 2019,
Plaintiffs filed a Response (Dkt. #15). On March 27, 2019,
Defendants filed a Reply (Dkt. #16). On May 15, 2019,
Plaintiffs filed Notice of Supplemental Authority (Dkt. #17).
On May 29, 2019, Defendant filed a Response to
Plaintiffs' Notice of Supplemental Authority (Dkt. #19).
On August 21, 2019, Plaintiffs filed a second Notice of
Supplemental Authority (Dkt. #21). On September 16, 2019, the
Court ordered Plaintiffs to submit supplemental briefing
regarding Defendant's membership (Dkt. #22). On September
17, 2019, Plaintiffs filed briefing in response to that Order
Rule of Civil Procedure 12(b)(1) authorizes dismissal of a
case for lack of subject matter jurisdiction when the
district court lacks statutory and constitutional power to
adjudicate the case. Home Builders Ass'n of Miss.,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998). If a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the Court will consider the
jurisdictional attack under Rule 12(b)(1) before addressing
any attack on the legal merits. Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
deciding the motion, the Court may consider “(1) the
complaint alone; (2) the complaint supplemented by the
undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the
[C]ourt's resolution of disputed facts.” Lane
v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008)
(quoting Barrera-Montenegro v. United States, 74
F.3d 657, 659 (5th Cir. 1996)). The Court will accept as true
all well-pleaded allegations set forth in the complaint and
construe those allegations in the light most favorable to the
plaintiff. Truman v. United States, 26 F.3d 592, 594
(5th Cir. 1994). Once a defendant files a motion to dismiss
under Rule 12(b)(1) and challenges jurisdiction, the party
invoking jurisdiction has the burden to establish subject
matter jurisdiction. See Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980). The Court will
grant a motion to dismiss for lack of subject matter
jurisdiction only if it appears certain that the claimant
cannot prove a plausible set of facts to support a claim that
would entitle it to relief. Lane, 529 F.3d at 557.