United States District Court, D. Connecticut
RULING ON MOTIONS TO DISMISS
Michael P. Shea, U.S.D.J.
Pro
se plaintiff Debbi Cotterell brought this action on May
29, 2019 against General Motors LLC (“GM”); ACAR
Leasing Ltd. d/b/a GM Financial Leasing[1] (“GM
Financial”); Richard Chevrolet, Inc. (“Richard
Chevrolet”); and H & L Chevrolet, Inc. (“H
& L”) (together, “Defendants”). ECF No.
1. She filed an amended complaint against these four
Defendants on July 19, 2019, alleging that they leased her a
defective vehicle, which caused a power steering failure in
September 2016 that injured her shoulder, and that they
failed to repair the problem, refused to provide a different
vehicle for the remainder of her lease, unfairly repossessed
the vehicle when she stopped making lease payments, and then
misleadingly reported the repossession to credit reporting
agencies. Am. Compl., ECF No. 29. Her Amended Complaint
alleges product liability, negligence, fraud, breach of
express warranty, breach of implied warranty of
merchantability, lender liability, and violations of state
and federal statutes.
Defendants
moved to dismiss the Amended Complaint under Fed.R.Civ.P.
12(b)(1) and 12(b)(6) on August 1, 2019 and August 2, 2019.
ECF Nos. 31, 34, 35, 39. Ms. Cotterell filed briefs in
opposition to each motion. ECF Nos. 43, 44, 45, 46. Defendant
H & L filed a reply. ECF No. 47. For the reasons below,
the Court GRANTS the motions to dismiss without prejudice to
Ms. Cotterell's bringing her state law claims in state
court and, in the case of her FCRA claim and one related
state law claim she might choose to bring, to repleading
those claims in this court.
I.
BACKGROUND
Ms.
Cotterell's Amended Complaint makes the following factual
allegations, which I accept as true for purposes of this
motion. On August 10, 2015 Plaintiff Debbi Cotterell (along
with Timothy Smith) leased a 2015 Chevrolet Impala sedan from
Defendant Richard Chevrolet, a business located in Cheshire,
Connecticut. Am. Compl., ECF No. 29 ¶¶ 17-19;
see also Motor Vehicle Lease, ECF No. 32-1 at
1.[2]
Ms. Cotterell reviewed advertising materials regarding the
2015 Impala before her decision to lease; Richard Chevrolet
marketed the vehicle as “safe and reliable” and
she leased the vehicle “believing [it] was free of any
defects.” Id. ¶19. On September 11, 2016,
Ms. Cotterell was driving the vehicle when a “Steering
Failure message popped up on the dashboard.”
Id. ¶ 21. She drove to a nearby Autozone and
then to H & L Chevrolet, a Chevrolet dealership in
Darien, Connecticut. En route, “the steering
began to gradually lock up which made steering
difficult.” Id. ¶¶ 22-23. She left
the vehicle at H & L, and the next day a service member
notified her that her power steering failed because she had
two nails in her front tires. Id. ¶ 25. She
gave H & L permission to repair the tires, the
suspension, and the steering issue, and she picked up the
vehicle on September 12, 2016. Id. The H & L
service member “did not mention anything about known
steering failures in the 2015 Chevy Impala or any General
Motors vehicles.” Id.
On
September 14, 2016, Ms. Cotterell was driving the vehicle
when the “Power Steering Failure message popped up on
the dashboard again.” Id. ¶ 26. It became
very difficult to “move and maneuver” the
vehicle, and “[a]t one point, her arm got twisted
around in the steering wheel.” Id. She brought
the vehicle back to H & L the next day, September 15, and
also “contacted General Motors Corporate office to
complain about the issue she was having with [the] 2015
Impala and the pain she had in her shoulder.”
Id. ¶¶ 26-27. Per instructions from
General Motors, H & L replaced the “Power Steering
Rack” in the vehicle and returned it to Ms. Cotterell
on September 21, 2016. Id. ¶ 27.
Following
the September 14, 2016 steering incident, Ms. Cotterell had
“pain in her right shoulder.” Id. ¶
28. She sought medical treatment on September 16, but the
pain persisted despite “cortisone injection[s]”.
Id. A week later, the doctor ordered an MRI, which
“showed a partial rotator cuff tear as well as
Impingement syndrome.” Id. Even with physical
therapy, Ms. Cotterell's “pain was severe and [she]
could not sleep at night, ” and her condition did not
improve. Id. Eventually, Ms. Cotterell had an
arthroscopic subacromial decompression surgery to repair her
partial cuff tear on December 27, 2016. Id. For
months, even though she continued physical therapy, she
continued to experience “severe pain” and
“developed a substance abuse problem and started to
self-medicate herself with street drugs.” Id.
¶ 29. She suffered “emotionally, mentally,
physically and financially” and “suffered loss of
consortium with [her] spouse.” Id.
After
the steering incidents, Ms. Cotterell also contacted General
Motors and “there was a claim opened because of the
injury.” Id. ¶ 30. She also contacted
General Motors Financial Leasing (“GM
Financial”), to which Richard Chevrolet had assigned
the lease, and asked it “to release her out of the
Lease Agreement with a new vehicle until her lease term was
up. GM Financial refused.” Id. ¶ 31;
see ECF No. 32-1 at 3 (listing “ACAR Leasing
Ltd.” as the “Assignee” of the Lease); ECF
No. 32 at 1 n.1 (GM Financial explaining that its proper
entity name is “ACAR Leasing Ltd. d/b/a GM Financial
Leasing”). Ms. Cotterell continued to make monthly
lease payments on the vehicle so as not to damage her credit
score, but she “called GM Financial monthly
complaining” and filed a complaint “through their
website under Contact Us - Complaints, ” but never
received a response. Id. ¶ 32. In September
2017, Ms. Cotterell ceased making monthly lease payments,
hoping to “get someone's attention.”
Id. ¶ 33. GM Financial “started to make
harassing phone calls to Plaintiff on [her] cell phone and
work phone, ” including the “main
operator[']s phone” at her workplace, even though
she “told GM Financial that she was not allowed to
receive debt collection calls at her place of
employment.” Id. GM Financial “continues
to send correspondences and/or statements to Plaintiff
requesting settlement and[/]or payment of debt.”
Id. Ms. Cotterell “asked GM to stop contacting
her regarding this debt and she does not owe the debt since
she was leased a defective vehicle that cause[d] her
injury.” Id.
On
December 18, 2017, the vehicle was repossessed, causing Ms.
Cotterell “even more financial harm and
embarrassment.” Id. ¶ 34. Ms. Cotterell
has asked GM Financial and its legal counsel “to stop
reporting the vehicle as a repossession to the credit bureaus
and update the account as in dispute . . . since the
Repossession reporting does not tell an accurate picture of
what happened with this consumer transaction.”
Id. ¶ 36. As of the filing of Ms.
Cotterell's Amended Complaint on July 19, 2019, the
tradeline was “still reported as Repossession.”
Id.
“[I]mmediately”
after the repossession on December 18, 2017, Ms. Cotterell
also “sent an email to Defendants General Motors and GM
Financial letting them know her intentions to sue and to
retain all materials in connection with this matter.”
Id. ¶ 34. GM also “acknowledged a
previous complaint the Plaintiff filed against General Motors
with the Michigan Consumer Protective Division.”
Id. Since the repossession, Ms. Cotterell “has
asked Defendant GM Financial for [the] location of [the]
vehicle and ha[s] not received a response.”
Id. ¶ 35.
On May
29, 2019, Ms. Cotterell filed this action against Defendants,
and she amended her complaint on July 19, 2019. Her Amended
Complaint states ten causes of action: (1) a products
liability claim against GM; (2) a fraud claim against GM,
Richard Chevrolet, and H & L; (3) a Connecticut Unfair
Trade Practices Act (CUTPA) claim against GM, Richard
Chevrolet, and H & L; (4) a Magnusson-Moss Warranty Act
(MMWA) claim and a breach of express warranty claim against
all defendants; (5) a breach of implied warranty of
merchantability claim against GM, Richard Chevrolet, and GM
Financial; (6) a negligent repair and failure to warn claim
against H & L and GM; (7) a fraud and negligence claim
against GM Financial; (8) a “lender liability”
claim against GM Financial; (9) a Fair Credit Reporting Act
(FCRA) claim against GM Financial; and (10) a Fair Debt
Collection Practices Act claim against GM Financial. ECF No.
29 ¶¶ 37-125. She requests an “injunction
requiring General Motors to recall and replace all defective
steering systems, ” and seeks both compensatory and
punitive damages. Id. at 28. Each of the four
defendants filed a motion to dismiss the amended complaint
under Rules 12(b)(1) and/or 12(b)(6). ECF Nos. 31, 34, 35,
39.
In
addition to the request for injunctive relief in her
complaint, Ms. Cotterell also filed a motion requesting that
the Court order GM Financial “to immediately update the
tradeline disputed in this matter, ” such that the
tradeline would no longer be listed as a
“Reposession.” ECF No. 48 at 1. I construe this
motion as a motion for a preliminary injunction. GM Financial
filed a brief in opposition to this motion, ECF No. 49, and
Ms. Cotterell filed a reply, ECF No. 50. In her Reply, filed
October 30, 2017, she states that the tradeline is reported
as “Paid, ” but argues that “[t]his is
still inaccurate credit reporting.” ECF No. 50 at 1.
II.
LEGAL STANDARDS
The
“pleadings of a pro se plaintiff must be read
liberally and should be interpreted to ‘raise the
strongest arguments that they suggest.'” Graham
v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
A pro se complaint is “held to less stringent
standards than formal pleadings drafted by lawyers.”
Bromfield v. Lend-Mor Mortg. Bankers Corp., No.
3:15-CV-1103 (MPS), 2016 WL 632443, at *3 (D. Conn. Feb. 17,
2016).
“A
case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it
. . . . A plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that
it exists.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000).
In
deciding a motion to dismiss under Rule 12(b)(6), the Court
must determine whether the plaintiff has alleged
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the pleaded factual content allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The Court accepts the
complaint's factual allegations as true, and
“draw[s] all reasonable inferences in favor of the
non-moving party.” Vietnam Ass'n for Victims of
Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d
Cir. 2008). “However, the tenet that a court must
accept a complaint's allegations as true is inapplicable
to ‘[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.'”
Gonzales v. Eagle Leasing Co., No. 3:13-CV-1565 JCH,
2014 WL 4794536, at *2 (D. Conn. Sept. 25, 2014) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
In
deciding a motion to dismiss under Rule 12(b), the Court may
consider documents attached to, integral to, or incorporated
by reference in the complaint. Chambers v. Time
Warner, 282 F.3d 147, 153 (2d Cir. 2002) (“For
purposes of [Rule 12(b)], the complaint is deemed to include
any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference. Even
where a document is not incorporated by reference, the court
may nevertheless consider it where the complaint relies
heavily upon its terms and effect, which renders the document
integral to the complaint.” (internal citations and
quotation marks omitted)). Because Ms. Cotterell's
Amended Complaint makes reference to and relies on the terms
of her vehicle lease, I may consider the lease as part of her
complaint. E.g. Am. Compl., ECF No. 29 ¶ 19
(alleging she “leased the 2015 Impala”),
id. ¶ 31 (alleging she asked GM Financial to
“release her out of the Lease Agreement”),
id. ¶¶ 80-83 (alleging breach of express
warranties); Chambers, 282 F.3d at 153 (finding that
contracts, attached to defendants' motions to dismiss,
were properly considered “when disposing of a Rule
12(b)(6) motion” since the contracts were
“integral to the Amended Complaint”).
III.DISCUSSION
I find
that Ms. Cotterell fails to state a federal cause of action
in her Amended Complaint. Without any federal question
adequately pled, I dismiss the federal claims and decline to
exercise supplemental jurisdiction over the state law claims.
As discussed below, Ms. Cotterell may replead any of her
claims in state court, and I grant leave to replead one of
her federal law claims, plus one related state law claim, in
this court.
A.
Fair Debt Collection ...