Cotterell v. General Motors LLC

          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 ...