Ford also seeks to dismiss those who were added to the first amended complaint in April 1982, and who purchased their vehicles more than four years prior to that date. It argues that, based on the Court's prior decisions, it is evident the Court did not have jurisdiction over the case, and therefore, the filing of the complaint did not toll the statute of limitations.
In opposition, plaintiffs cite to the reasoning outlined in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974). That case provides that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 554 (footnote omitted) quoted in, Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S. Ct. 2392, 2395, 76 L. Ed. 2d 628 (1983). The Court concludes that when plaintiffs filed this complaint in August 1981, it effectively suspended the running of the statute of limitations for subsequent plaintiffs. Therefore, those twenty-two plaintiffs which defendant seeks to have dismissed on statute of limitations grounds must be considered as part of this action and further must be counted toward meeting the 100-named plaintiff requirement.
C. Implied Warranty Claim
The implied warranty claims in Count I of the complaint state in pertinent part that "Ford is in violation of the Act, 15 U.S.C. § 2310(d) (1), for breach of implied warranty of merchantable quality, for which Ford is liable to . . . plaintiffs. . . ." Plaintiffs' Complaint at para. 37.
In addressing this claim, Ford argues that numerous plaintiffs must be dismissed and cannot be counted towards meeting the 100-named plaintiff requirement because they fail to state a claim for relief. Specifically, it argues that certain plaintiffs with implied warranty claims, when examined under their own State law, cannot assert a claim for relief because they lack the required vertical privity with Ford. The requirement in certain states of vertical privity demands that a consumer, in order to bring warranty claims against the manufacturer, must have purchased the product in question directly from that manufacturer. It is undisputed that there are no plaintiffs in this action who purchased their vehicles directly from Ford. Therefore, plaintiffs are not in privity of contract with Ford, but rather only with independent Ford dealers or the former owners of the vehicle.
Ford argues that State privity laws are preserved under the Act and must be considered by the Court before a plaintiff may assert an implied warranty claim under Magnuson-Moss. Ford bases its privity argument on the express provisions of the Act. It notes that although the Act provides for a Federal cause of action for breach of implied warranty, the Act defines implied warranty as "an implied warranty arising under State law (as modified by sections 2308 and 2304(a) of this title) in connection with the sale by a supplier of a consumer product." 15 U.S.C. § 2301(7). Therefore, it argues that those States which require vertical privity in order to pursue implied warranty claims would bar certain plaintiffs from pursuing said claims.
In response, plaintiffs have argued that State law privity doctrines do not apply under Magnuson-Moss because the Act creates a new Federal private cause of action for breach of implied warranty. Therefore, plaintiffs assert, the requirement that vertical privity exist between the purchaser and Ford is eliminated under the Act and cannot serve as a barrier for pursuing implied warranty claims. Specifically, plaintiffs cite to the Act's definition of "consumer," "supplier," and "warrantor" as a basis for arguing that state privity law has been superseded. When reading those definitions into section 2310(d) (1), plaintiffs argue, the Court must conclude that any person to whom the vehicle is transferred during the life of the implied warranty is entitled to enforce that warranty by bringing suit.
Certainly, it is axiomatic that where the meaning of the statute is plain on its face, this Court need not take further inquiry into its purpose. See Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). Here, Congress has specifically provided that implied warranties "arise" under State law. 15 U.S.C. 2301(7). If, in this action, there are to be any implied warranty claims at all under Magnuson-Moss, they must "originate" from or "come into being" from state law.
Therefore, if a State does not provide for a cause of action for breach of implied warranty where vertical privity is lacking, there cannot be a Federal cause of action for such a breach.
The statutory history in this matter is also clear. In a Senate report from the Committee on Commerce, the committee stated that:
It is not the intent of the Committee to alter in any way the manner in which implied warranties are created under the Uniform Commercial Code. For instance, an implied warranty of fitness for a particular purpose which might be created by an installing supplier is not, in many instances, enforceable by the consumer against the manufacturing supplier. The Committee does not intend to alter currently existing state law on these subjects.
Senate Comm. on Commerce, S. Rep. No. 151, 93d Cong., 1st Sess. 21 (1973) (emphasis added). Other portions of the Act's statutory history support the conclusion that state implied warranties, including privity requirements, are not to be changed by the enactment of Magnuson-Moss. See, e.g., Hearings on Consumer Warranty Protection before the Subcomm. on Commerce & Finance of the House Comm. on Interstate and Foreign Commerce, 93d Cong., 1st Sess. 91, 94 (March 20, 1973).
Further, numerous cases have come to the same conclusion, finding that a plaintiff cannot assert an implied warranty claim for relief under Magnuson-Moss where he lacks vertical privity and where his State requires that such privity be present. See Illinois Collection Service, Inc. v. General Motors Corp., No. 82 C 2743, slip op. at 2 (N.D. Ill. Nov. 22, 1982); Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595, 605 n.13 (S.D.N.Y. 1982); Mendelson v. General Motors Corp., 105 Misc. 2d 346, 432 N.Y.S. 2d 132 (Nassau Co. 1980) aff'd, 81 A.D.2d 831, 441 N.Y.S. 2d 410 (2d Dept. 1981); Mikos v. Ed Napleton Pontiac, Inc., No. 80 L 3105 (Ill. Cir. Ct., Cook County Nov. 13, 1980). Contra Ventura v. Ford Motor Corp. [sic], 180 N.J. Super. 45, 433 A. 2d 801 (Ct. App. Div. 1981); Hyde v. General Motors Corp., No. 21306/80, slip op. (N.Y. Sup. Ct. N.Y. Co. Oct. 16, 1981).
In addition, a number of commentators have agreed that State privity rules do apply when determining the existence of an implied warranty cause of action under Magnuson-Moss. E.g., Miller & Kanter, Litigation Under Magnuson-Moss, 13 U.C.C.L.J. 10, 21 (1980). In his government regulation/practice handbook entitled, Consumer Protection Under the Magnuson-Moss Warranty Act, commentator Curtis R. Reitz notes that:
The Magnuson-Moss Act is not responsible for creating any new implied warranties for sales of goods. When referring to an implied warranty, the act means "an implied warranty arising under State law . . . in connection with the sale by a supplier of a consumer product." § 2301(7). The scope of consumer protection from implied warranties under the Magnuson-Moss Act is thus no greater than that previously recognized under state law.