United States District Court, S.D. Ohio, Eastern Division
Terence P. Kemp Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion to Dismiss [ECF No.
8] filed by Defendant Cummins Inc. ("Cummins"). For
the following reasons, that Motion is GRANTED.
Wotring Towing has sued Cummins and Ford Motor Company
("Ford") for (1) breach of express and implied
warranty and (2) breach of contract. (Compl. at 1-4 [ECF No.
4].) These claims stem from a vehicle purchase. Plaintiff
alleges that it purchased a new 2011 Ford 650SC Rollback, VIN
3FNX6FC9BV453231, (the "Vehicle") for commercial
use from Speedway Wrecker Sales ("Speedway") for
$80, 000. (Id. ¶¶ 1-2.) The Vehicle's
engine was allegedly made by Defendant Cummins. (Id.
alleges that the newly-purchased Vehicle had numerous
problems that rendered it inoperable. (Compl. ¶ 5.) Some
of these problems persist, Plaintiff asserts, despite
multiple repair attempts. (Id. ¶ 6.)
connection with its purchase of the Vehicle, Plaintiff was
allegedly "given an express limited warranty, which
contains limited remedies." (Compl. ¶ 3.) As
evidence of the warranty, Plaintiff has attached a copy of a
2011 Ford Warranty Guide to its Complaint. (See id.;
Warranty at PagelD 68 [ECF No. 4].) Plaintiff alleges,
however, that the warranty and its remedies have "failed
their essential purposes as a result of the inability of
Defendant to correct certain defects and malfunctions in the
Vehicle." (Compl. ¶ 3.)
Plaintiff purportedly received a written limited warranty,
Plaintiff alleges that the implied warranties of
merchantability and fitness for a particular purpose also
apply to the Vehicle. (Compl. ¶ 4.)
originally filed this case in the Franklin County Court of
Common Pleas. (See Notice of Removal at 1 [ECF No.
1].) Cummins removed the case to this Court on December 22,
2016, and then moved to dismiss on January 19, 2017. (See
id.; Mot to Dismiss at 1 [ECF No. 8].) On February 9,
2017, Plaintiff moved for an extension of time to file its
response. (Mot. for Extension at 1 [ECF No. 9].) The United
States Magistrate Judge denied that motion without prejudice
due to Plaintiffs failure to indicate its compliance with
Local Civil Rule 7.3. (Feb. 10, 2017 Order at 1 [ECF No.
10].) Plaintiff has not attempted to refile its Motion for
Extension. Nor has Plaintiff otherwise attempted to file a
response in opposition to Cummins's Motion to Dismiss.
moves to dismiss each of Plaintiff s claims. (See
Mot. to Dismiss at 3 [ECF No. 8].) According to Cummins,
Plaintiff has failed to plead sufficient facts to raise a
plausible claim to relief, (See id.)
Rule of Civil Procedure 12(b)(6) provides for dismissal of
actions that fail to state a claim upon which relief may be
granted. Fed.R.Civ.P. 12(b)(6). Such an action will be
dismissed where "there is no law to support the claims
made" or where "the facts alleged are insufficient
to state a claim." Stew Farm, Ltd. v. Natural Res.
Conservation Serv,, No. 2:12-cv-299, 2013 WL 4517825, at
*3 (S.D. Ohio Aug. 26, 2013) (citing Rauch v. Day &
Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978)). To
state a claim, a pleading must contain "a short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2); see also
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To
meet this standard, a complaint must contain sufficient
factual allegations to "state a claim to relief that is
plausible on its face." Twombly, 550 U.S. at
570. "A claim has facial plausibility when the plaintiff
pleads factual content that 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). A complaint will not "suffice if
it tenders 'naked assertion[s]' devoid of further
factual enhancement'" or "[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements." Id. (quoting
Twombly, 550 U.S. at 557). Determining whether a
complaint states a plausible claim for relief is "a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Id. at 679.
considering a motion to dismiss, a court must construe the
complaint in the light most favorable to the plaintiff and
accept all of the complaint's well-pleaded factual
allegations as true. Grindstaff v. Green, 133 F.3d
416, 421 (6th Cir. 1998).
Breach of ...