NEF 20 - Plfs' Response to Dft Bexco's MTD

8/8/2019 NEF 20 - Plfs' Response to Dft Bexco's MTD

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Case 4:10-cv-00247-GKF-PJC Document 20 Filed in USDC ND/OK on0711512010 Page 1 of 15

IN THE DISTRICT COURT OF THE UNITED STATESNORTHERN DISTRICT OF OKLAHOMAVITALIY BUZADZHI and MARINA )BUZADZHI, Husband and Wife, )Individually, and as Next Kin of J. 8., minor, )Deceased,vs.BEXCO ENTERPRISES,INC., and J.C.PENNEY, CORPORATION, INC.,

Plaintiffs,))))) Case No. I 0-CV-247 -GKF -PIC))))Defendants. )

PLAINTIFFS' RESPONSE TO DEFEI\DANTBEXCO'S MOTION TO DISMISSPlaintif Vitaliy Buzadzhi and Marina Buzadzhi purchased a dresser from Defendant

J.C. Penney, Corporation, Inc., (hereinafter J.C. Penney) in November 2006. The dresser wasspecifically marketed as suitable for use in a child's room. On November 28,2007,the dresserwas being used in theBuzadzhi's apartment in their children's bedroom. At that time, Plaintiffswere parents to I I month old twin boys, referred to herein as J.B and I.B. On information andbeliet J.B pulled himself onto one or more dresser drawers, causing the dresser to tip over andfall onto him. This resulted in his death.

Defendant Bexco Enterprises, Inc. (hereinafter Bexco) did business as Million DollarBaby and marketed dressers as Million Dollar Baby products. On information and belief,Defendant Bexco distributed the dresser into the chain of commerce as part of its business ofdesigning, manufacturing, marketing, assembling, selling and\or distributing dressers designedfor use in children's rooms.


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As explained below, Defendant Bexco, as a remote seller, was not entitled to notice of thebreach within a reasonable time. Even if it was, it received notice within a reasonable time.Further, it was in the chain of distribution and made an implied warranty of fitness for aparticular purpose. Lastly, Plaintif claims fall within the five (5) year statute of limitations forbreach of warranty actions.

ARGUMENTS AND AUTHORTIIESL Defendant Bexco was not the mmedate seller of the dresser and therere ntas notentitled to notice under I2A O.S. S 2-607,The dresser was sold directly to Plaintif by Defendant J.C. Penney, the immediate seller

of the dresser. Plaintif alleged in their complaint that Defendant Bexco was a distributor of thedresser. For purposes of reviewing a motion to dismiss, the Court "must accept as true all thefactualallegations in the complaint."l Defendant Bexco admitted in its Motion to Dismiss that itwas not the immediate seller of the dresser, stating "[Defendant Bexco] did not sell the subjectdresser to Plaintif."2 Moreover, on its website, Defendant Bexco states that "Million DollarBaby is a wholesaler and does not sell directly to the public."3 Since Defendant Bexco was notthe immediate seller of the dresser, but instead a remote wholesaler, it is not entitled toreasonable notice from the Plaintif under l2A O.S. $ 2-607(3)(a).

The Uniform Commercial Code as adopted in Oklahoma states in l2A O.S. $ 2-607 thatwhere a tender has been accepted "the buyer must within a reasonable time after he discovers orshould have discovered any breach noti$/ the seller of breach or be barred from any remedy."4

I Seamons v. Snow,84 F.3d 1226 (C.A.10. Utah., 1996)2 Defendant Bexco's Motion to Dismiss at page 8.3 Exhibit l,pagez.4 t2to.s. $ 2-607 (3)(a).


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In interpreting language identical to l2A O.S. $ 2-607(3)(a), an lllinois courr stared thato'Because section 2-607(3)(a) provides for notifcation to the seller '(w)here a tender has beenaccepted,' we believe that the word 'seller' as used in that section necessarily refers only to theimmediate seller and, accordingly, we conclude that a buyer is required to give notice of breachonly to his immediate seller."s The Supreme Court of Colorado agreed, stating that "From theperspective of the unsophisticated consumer, this interpretation of the statute promotes fairnessby requiring the consumer to give notice only to the party with whom the consumer has dealt."6

In discussing the notice provision, a North Carolina court explained that "The majority ofcourts in other jurisdictions that have construed this notice provision in the Code have held thatbuyers need notifr only their immediate sellers."T

Here, Plaintif were ordinary retail consumers shopping for children's furniture, notcommercial purchasers. The idea that they should give notice to a party whom they had nodealings with and did not even know existed until they consulted an attorney stretches the noticerequirement beyond its limits. The Colorado Supreme Court recognized this distinction betweencommercial purchasers and ordinary consumers who are injured by a defective product, statingthat "As between the immediate parties to the sale, [the notice requirement] is a soundcommercial rule, designed to protect the seller against unduly delayed claims for damages. Asapplied to personal injuries, and notice to a remote seller, it becomes a booby-trap for theunwary. The injured consumer is seldom 'steeped in the business practice which justifies the

t Goldtteinv. G. D. Searle & Co,,378 N.E.2d 1083, 1086 (Ill.App. I Disr.,6 Palmerv. A.H. Robins Co.,Inc.,684P.2d 187 (Colo. 1984).7 Halprinv. Ford Motor Co.,l07 N.C.App.423 (N.C. App. lgg2).le78).


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rule,' and at least until he has legal advice it will not occur to him to give notice to one withwhom he has had no dealings."s

Defendant Bexco cited Wilcox v. Hllcrest Memorial Park of Dallas where the Texasappellate court held that the notice requirement extended beyond the immediate seller to amanufacturer.e However, that case is inapposite because it did not involve a personal injury. InWilcox, the court reasoned that notice to a manufacturer from the purchaser of a casket wasnecessary to give the manufacturer "an opportunity to remedy the defect to the buyer'ssatisfaction" and "to inspect the product to ascertain if indeed a defect existed ."10 This analysisis incongruent when applied to cases involving personal injury because the two concerns raisedby llcox are not concerns in this action. In this case, the major injury to the Plaintif was theloss of their child caused by the defective dresser, not the economic loss of purchasing adefective dresser. Defendant Bexco could not provide an adequate remedy by simply fixing orreplacing the defective dresser. Second, Plaintiffs are still in possession of the dresser. Thus,Defendant Bexco could inspect the dresser.

Here, Defendant Bexco was a remote wholesaler of the dresser. Plaintif did notpurchase the dresser from Defendant Bexco and had no other dealings with it. Plaintiffs didprovide notice of breach to Defendant J.C. Penney who was the immediate seller of the dresserby filing suit against Defendant J.C. Penney on April 19,2010. As such, Defendant Bexco is notentitled to notice within a reasonable time from the Plaintiffs under l2A O.S. $ 2-607(3)(a).Nevertheless, Oklahoma has not discussed whether l2A O.S. $ 2-607(3Xa) requires that buyersnotiff the non-immediate seller of a product within a reasonable time after the buyers discover or8Id. quoting W. Prosser, Handbook of the Law of Torts $ 97 at 655 (4th ed.l97l).e Wilcoxv. Hillest Memorial Parkof Dallas,696 S.W.2d423 (Ct.App.Tex. l9S5).to Id. at423.


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should have discovered any breach. Therefore, Plaintiffs have filed a Motion to Certify thisquestion to the Oklahoma Supreme Court.

II llhether the Plaintffs provded notce wthin a resonble time to Defendant Bexco isa qaestion offact.Defendant Bexco argues that Plaintiffs' claims should be dismissed because it was not

given notice of the breach within a reasonable time. Assuming arguendo that Defendant Bexcowas entitled to notice of the breach, whether that notice was given within a reasonable time is aquestion of fact for a jury, not an issue to be raised in a motion to dismiss. The OklahomaSupreme Court has held that "the sufficiency of notice and what is considered to be a reasonabletime within which to give notice of breach of warranty are ordinarily questions of fact for thejury, based upon the circumstances in each case."ll Moreover, "What constitutes notice within areasonable time must necessarily vary with the facts and circumstances of each case."l2 Othercourts, such as the Kentucky Supreme Court and a New Jersey federal court have also held thatthe "reasonable time" requirement is an issue for the fact finder and not an issue to be decided ona motion to dismiss.l3 "Therefore, the timing question is beyond the scope of a motion todismiss for failure to state a claim."l4 Here, whether the Plaintiffs gave Defendant Bexco noticeof the breach within a reasonable time after they discovered or should have discovered thebreach is a question of fact and not a legal question proper for a motion to dismiss.

tt American Fertilizer Specialists, Inc. v. Wood,635 P.2d 592,596,1981 OK I l6 (Okla. l98l),quoting L. A. Green Seed Company of Arknnsas v. Williams,246 Ark. 463, 438 S.W.2d 717( r e6e).t2 Id. at sg7.t3 Muilirs v. Wyatt,887 S.W.2d 356 (Ky. 1994); Strzakowlski v. General Motors, Not Reportedin F.Supp.2d,2005 WL 2001912. Attached as Exhibit 2.ta Strzakowlski v. General Motors,Not Reported in F.Supp.2d,2005 WL 2001912. Attached asExhibit 2.


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ru. Plaintiffs gave notice of breach to Defendant Bexco within a reasonable time.Defendant Bexco, assuming arguendo that it was entitled to notice of a breach, was

notified by Plaintif within a reasonable time. Plaintif notified Defendant Bexco of the breachof warranty by filing a complaint. Courts have held that filing a complaint serves as propernotice.l5 In determining what constitutes a "reasonable time," it is critical to understand how therule applies differently to ordinary retail consumers, especially those who are injured by adefective product. The UCC in Oklahoma recognizes the difference between ordinary retailconsumers and commercial purchasers, stating that:

"A reasonable time for notification from a retail consumer is to be judged bydifferent standards so that in his case it will be extended, for the rule ofrequiring notification is designed to defeat commercial bad faith, not to deprivea good faith consumer of his remedy."l6Courts have interpreted this language to mean that the notice requirement is relaxed for

consumer purchasers. For example, in Palmer v. A.H. Robbins, the Colorado Supreme Courtstated that "Since an injured lay consumer would not ordinarily know of the notice requirement,the reasonableness of any notice should be viewed under a more relaxed standard than thatexacted of commercial purchaser."lT In New York, the court went further stating that "Theprescription of timely notice under the code provision is to be applied, if at all, differently incommercial and retail sales situations."ls

ts Cipollone v. Liggett Group, hnc.,683 F.Supp. 1487,1498 (D.N.J. l98S); Graham by Graham v.Wyeth Laboratories, a Div. of American Home Products Corporation, 666 F.Supp. 1483,1500(D.Kan.l987); Maybanfr v. ,S. S. Kresge Co.273 S.E.2d 681 (N.C., l98l); Connickv. SuzukiMotor Co., Ltd,675 N.E.2d 584 (lll. 1996).'6 l2A Okla. Stat. $ 2-607(3Xa), U.C.C. comment 4." Palme, v. A.H. Robins Co., Inc.,684P.2d 187 at207 (Colo. 1984).ts Fischer v. Mead Johnson Laboratories,4l A.D.2d 737 (N.Y.A .D;. 1-973) (emphasis added).


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West Virginia's Supreme Court of Appeals went as far to say that the notice requirementdoes not even apply to instances where a consumer is injured by a product.le In interpretingWest Virginia's equivalent to l2A O.S. $ 2-607(3Xa), the Court stated that "This Code sectionhas little relevance to the product liability freld, where the injured buyer is not seeking to rescindthe sales contract and avoid paying the purchase price for the product, but is attempting torecover damages for personal injuries caused by the product."2o

As quoted by the Kansas Supreme Court, "The defendant's lawyer whose client is suednot by a merchant-buyer but by a consumer, especially by a consumer who suffered personalinjury or property damage, should not rely heavily on a lack of notice defense."2l

Oklahoma's Uniform Commercial Code describes, and other courts apply, a stricterstandard to commercial purchasers than to retail consumers, especially those suffering personalinjury, because the purpose of the notice requirement is rarely served or applicable in casesinvolving injured consumers. The policy underlying notification in commercial settings has noapplication when it involves a retail consumers and personal injury. The North CarolinaSupreme Court stated that "Perhaps the most important policy behind the notice requirement isenabling the seller to make efforts to cure the breach by making adjustments or replacements inorder to minimize the buyer's damages and the seller's liability. This policy obviously has itsgreatest application in commercial settings where there is an opportunity to minimize losses.However, in cases where the defective goods have caused personal injury, this policy has noapplication because the damage has already occured and is irreversible."22 This reasoning

te Hiilv. JosephT. Ryerson& Son,Inc.,165 W.Va. 22,268 S.E.2d 296 (W.Va.l9S0).20 Id. at3oz.2' Smithv. Stewart,667 P.2d 358, (Kan. l9S3).22 Maybankv, ,S. ,S. Kresge Co.,273 S.E.2d 681,684 (N.C. lgSl).


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precisely applies to the facts in this case. The damages sustained by the Plaintif go wellbeyond the economic loss of paying for a defective dresser.

Plaintiffs can fnd no case in Oklahoma where a court has dismissed a breach of warrantyclaim due to failure to notiff seller of breach within a reasonable time. Nevertheless, DefendantBexco relies on Amercan Fertilizer Specialists, Inc. v. Wood, a case involving a merchant sellerand a commercial purchaser, where the purchaser purchased fertilizer from the seller.23 TheOklahoma Supreme Court held that an elapsed time of l2 days from the date of discovery of thedefect in fertilizer and giving notice of breach of warranty to the merchant constituted timelynotice.2a From this, Defendant Bexco concludes that an interval of two and one half yearsbetween discovery and notice would under no circumstances be timely. The Oklahoma SupremeCourt warned against analogizing the facts from that case to other cases, stating that "Whatconstitutes notice within a reasonable time must necessarily vary with the facts andcircumstances of each case."25 Moreover, extrapolating such a conclusion from AmericanFertilizer Specialist would be unjustified due to the fact that American Fertilizer Specialistinvolved a commercial purchaser, not a retail consumer. As explained before, the UniformCommercial Code explicitly recognizes a difference between merchant buyers and retailconsumers.'6

Courts around the country have recognized the distinction between commercialpurchasers and retail consumers and have held that that noti$ing a seller of a breach two andone-half years or more after the Plaintiff discovered or should have discovered the breach iswithin a reasonable time. In Maybank v. ,S.,S. Kresge Co., Plaintiff purchased flashcubes for her23 American Fertilizer Specialists, Inc. v. I4/ood,635P.2d 592,596,1981 OK I l6 (Okla. l98l).2a Id.25 Id. at5g7.26 l2A Okla. Stat. $ 2-607(3Xa), U.C.C. commenr 4.


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camera from K-Mart. After Plaintiff installed the flashcubes and attempted to take a picture, theflashcube exploded injuring Plaintiff. Three years later, the Plaintiff gave notice of the breach ofwarranty to the Defendants. The North Carolina Supreme Court held that "Although a delay ofthree years is, undoubtedly, a long time, we are unable to conclude that it is unreasonable as amatter of law under the facts of this case. An injured lay consumer has no reason to know, untilhe consults a lawyer, that under the terms of the Uniform Commercial Code he is required togive the seller notice that the item sold was not satisfactory.'Q' Here, Plaintiffs did not knowuntil they consulted an attorney that they might be under a duty to notify the seller that itbreached certain warranties. Furthermore, they did not know that Defendant Bexco was even apotential Defendant as Defendant Bexco was a remote seller that had never had any directdealings with the Plaintif.

ln Malawy v. Richards Wg. Co., Plaintiff, who had suffered fractures to his right hipbrought action against the bone plate manufacturer and hospital for damages incurred when thebone plate which was surgically attached to his femur broke.28 Three years after the bone platebroke, Plaintiff realized that Defendant was the manufacturer of the product and provided theDefendant with notice. The court held that Plaintiff notified Defendant within a reasonable timebecause he did not know that the Defendant was the manufacturer of the product untiljust beforehe filed the lawsuit. Similarly, here Plaintiffs did not know that Defendant Bexco played anyrole in the manufacturing, sale or distribution of this product at the time of the incident. Instead,they only learned of Defendant Bexco's role immediately before they frled the lawsuit againstDefendant Bexco.

27 Maybankv. S. ,S. Kresge Co.,273 S.E.2d 681, 685 (N.C. lgSl).28 Malwy v. Richords Mfg. Co.,l50 Ill.App.3d 549 (Ill.App. 5 Dist. l936).


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ln Moore v. Puget Sound Plywood,lnc, Plaintiffs purchased siding for their house thatturned out to be defective.2e Two and one-half years after the Plaintif initially discoveredproblems with the siding, they gave notice of the defect to the manufacturer of the siding. Oneyear later, the Plaintiffs sued the Defendant manufacturer under a breach of warranty theory.The Defendant argued that notice of the defect was not properly made. The Nebraska SupremeCourt disagreed, holding that the notice given two and one-half years after the Plaintif initiallydiscovered the siding problem was given within a reasonable time.

Oklahoma and other states recognize that what constitutes "reasonable time" is morerelaxed when it involves a retail consumer. Many states have held that a purchaser giving noticeto the seller two and one-half years or more after the purchaser discovered the breach isreasonable notice. Here, Plaintif notified Defendant Bexco of the breach two and one-halfyears after they discovered that the warranty was breached. Therefore, Plaintiffs gave notice ofthe breach to Defendant Bexco within a reasonable time.ry. Defendant Bexco inspected, packed, assembled and sold the dresser to DefendantJ.C. Penney and thus was in the chain of distribution.

Defendant Bexco is corect in stating that "It is true that a plaintiff may bring a breach ofimplied warranty action against any party in the chain of distribution and need not be in privityof contract with the defendant."3o This reasoning was expressed by the Oklahoma SupremeCourt in Old Albany Estates, Ltd. v. Highland Carpet Mills, Inc., 604 P.zd 849 (Okla. 1979).Plaintiffs, as ultimate purchasers of the dresser, may maintain a breach of warranty action againstDefendant Bexco, who was, among other things, a wholesaler in the chain of distribution of thisproduct.

'n Moor" v. Puget Sound Plywood, 1nc.,332 N.W.2d 212 (Neb. l9S3).30 Defendant Bexco's Motion to Dismiss atpageT.t0


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Defendant Bexco argued in its Motion to Dismiss that it cannot be held liable for a breachof warranty because it was not in the chain of distribution, stating that its "only involvement \ilasmanaging the direct shipment of the subject product from Hsing to J.C. Penney. The product wasnever handled by any of Bexco's employees or agents."3l For whatever reason, this descriptionis strikingly at odds with how Defendant Bexco described its role in the handling of its productson its website.

Defendant Bexco states on its website that "Million Dollar Baby is a wholesaler" and thatit has its furniture sold "nationwide through independent specialty stores and retail chains."32 Italso stated this on itswebsite inNovember2006, the month in which Plaintiffs purchased thedresser,33 Although Defendant Bexco stated in its Motion to Dismiss that its agents andemployees had no contact with the dresser, it states on its website that o'We have a qualitycontrol team at our production site that individually checks and hand packs each piece to assure ahigh level quality and craftsmanship before we let our pieces leave our factory doors" and that"once the products arrive in the U.S. we have another team that assembles case goods here by-hand, and manually checks the individual pieces again."34 Thus, it appears that DefendantBexco's role goes beyond simply "working out the logistics of the direct shipment" as it hadclaimed.35 As a wholesaler of the dresser, Defendant Bexco is in the vertical chain ofdistribution and thus can be held liable under a breach of warranty theory.

Defendant's Motion to Dismiss regarding its position that it was not in the chain ofdistribution is brought pursuant to FRCP l2(bx6). However instead of arguing that Plaintif'3r Defendant Bexco's Motion to Dismiss atpageT.32 See Exhibit l, page 2 and 4.33 Exhibit 3,page2.3o Exhibit 4,page l.3s Defendant Bexco's Motion to Dismiss at page 7.

ll


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Complaint as pled fails to state a claim, Defendant's Motion presents matters outside thepleadings. This approach of raising matters outside the pleadings converts Defendant's Motionto Dismiss under FRCP l2(bx6) to a Motion for Summary Judgment under FRCP 56.FRCPI2(d) provides:If, on a motion under Rule l2(b)(6) or l2(c), matters outside thepleadings are presented to and not excluded by the court, the motionmust be treated as one for summary judgment under Rule 56. Allparties must be given a reasonable opportunity to present all thematerial that is pertinent to the motion."'o

Discovery in this case has not yet begun. FRCP 56(f) provides that if the party opposing aRule 56 motion shows by affidavit that, for specified reasons, it cannot present facts essential tojustify its opposition, the Court may, (l) deny the motion, or (2) order a continuance so thatdiscovery can occur.37 Attached hereto as Exhibit 5 is an affidavit that specifies the issues of factraised by Defendant that require discovery before Plaintiff can be in a position to oppose thecontention that Defendant Bexco's only role with respect to the dresser was directing shipmentfrom the manufacturer to Defendant J.C. Penney.

Plaintif requests that this Court either deny Defendant's Motion pursuant to FRCP56((l) or, in the alternative, pursuant to FRCP 56((2) order a continuance to enable Plaintiffsto conduct discovery in the regular course of this litigation and develop the evidence necessary tooppose the factual allegations in Defendant's Motion to Dismiss. As the Court held in Stephens v.City of Anadarko,'othe fact-based arguments made by the defendants are more amenable to

36 Federal Rules of Civil Procedure l2(d).37 Federal Rules of Civil Procedure 56(f).t2


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resolution in the context of summary judgment motions, properly made and supported after areasonable period of discovery."38 Such is the case here as well.V. Plaintiffs' breach of warranty claim falls within the statute of limitations.Defendant Bexco claims it cannot be held liable under a breach of implied warranty andtherefore the regular two (2) year statute of limitations for torts governs instead. As outlinedabove, Plaintiffs can maintain a breach of implied warranty action. Moreover, Plaintiffs have notpled a tort action, but rather a breach of implied warranty action which caries a five (5) yearlimitation.3e Here, the death occured on November 28, 2007. Therefore, the statute oflimitations does not expire until November 28,2012. As outlined above, Defendant Bexco'sarguments as to why it cannot be held liable for a breach of implied warranty is contrary toestablished precedent. Therefore, Plaintiffs can maintain a breach of implied waranty theorywithin the prescribed limitation periodVI. Plaintiffs have properly pled a cause of action upon a breach of implied warranty offitness for a particular purpose.

Oklahoma's Uniform Commercial Code, l2A O.S. $ 2-315, provides that "Where theseller at the time of contracting has reason to know any particular purpose for which the goodsare required and that the buyer is relying on the seller's skill or judgment to select or furnishsuitable goods, there is unless excluded or modified under the next section an implied warrantythat the goods shall be fit for such purpose.'/o Comment I to $ 2-315 states that ooWhether or not

38 Stephens v. City of Anadarko, Not Reported in F.Supp.2d,2008WL2557759 at4 (W.D.Okla.2008). Attached as Exhibit 6.3e rzto.s. l98r S2-725.ao r2to.s.$ 2-315.l3


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this warranty arises in any individual case is basically a question of fact to be determined by thecircumstances of the contracting."al

Here, Plaintiffs have alleged that Defendant Bexco marketed the dresser as designed to beused in children's room. Defendant Bexco certainly had reason to know that the Plaintif wouldrely on this particular purpose in selecting a dresser to put in their children's room. Plaintiffsalleged in their complaint that they purchased the dresser for this particular purpose. The dressertipped over on top of J.8., an I I month old child. Thus, the dresser was not suitable or safe foruse around children.

CONCLUSIONFor the reasons noted herein, Plaintiffs respectfully request that this court dismiss

Defendant Bexco's Motion to Dismiss in its entirety.Respectfrrlly submitted,CARR & CARR, ATTORNEYS

/s/ Michael E. CanPatrick E. Can, 0BA#[email protected]. Laurie Koller, OBA #[email protected] E. Carr, OBA#[email protected] South Harvard AvenueTulsa, OK 74135Phone: (918) 747-1000Fax: (918)747-7284Attorneys r P laintiffs

4t l2Ao.S.$ 2-315,U.c.C. comment l.t4


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Case 4:10-ov-00247-GKF-PJC Document 20 Filed in USDC ND/OK on 0711512010 Page 15 of 15

CERTIFICATE OF SERVICEI hereby certi$ that on the l5th day of July, 2010, I electronically transmitted theforegoing document to the Clerk of Court using the ECF System for filing and fiansmittal of aNotice of Electronic Filing to the following ECF registrants (names only are sufficient):C. Todd WardEugene Robinson By: /s/ Michael E. CanMICHAEL E. CARR

l5


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Case 4:10-cv-00247-GKF-PJC Document 20-2 Filed in USDC ND/OK on 0711512010 Page 1 of 5 Mttlon Dollar Baby colrecoNs FURNTTURE sAFEry Hq cusroMcn CARE StGN up / stct tFAQs

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Arer I had placed r order for replcrrerr part, I recrved rasponsa rellrng re that nty crrb uraslot nrrrrfectured by Nirllton Dollar 8by, bu r..en I looked tlrough youl. r'lebsrle, I 5\'/ lle verysre crib displyecl. $hy?Are there supposod to lre grrn nrrks (snrll black stteks) or the cnb?Are you rhe nraker of rhe Jerny Lud


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Case 4:10-cv-00247-GKF-PJC Document 20-2 Filed in USDC ND/OK on 0711512010 Page 2 of SEck o lopQ. Are youf crlbs conyertlble?f\losl of o(rr cflbs re equlpped wtth the safery-glrle herdtvare sysren ral can be converted front crb o a tocldler or daybed, Toddler conversron krts are vilable tlrougl a seprat purchs, Ourludden hardu'are tribs ct lso corrven fronr crb o roaldler bed or claybed, Tle srrtc slde or 4-tn- crb cn be cottvered from crb r1o roddler bed, dybd or full siz Ieel. These todols hve rhelocldler ratl tnclude(f $,trh th purchase of th cribs. Full srze cotversron krs re sold seperarely, soneof our tant cribs re converlble to t$,/rn size bed s r/ell. The tv.,tn stze cotverslon krt for the(orverslot ts sold separtly,ck to (oi)Q. Are your cribs JPMr{ cerrifledzuny of our crbs r JPMA cenified and the nerver nroclels r currenrly rn tlre testrng ptocss. geing conpny hl conrnully gror's, lye strlve to create n\r, products rd expnd out'product lin (o giveorr cotsttler v"der range of selectron. we wll ah,/ays hv nw crbs rhat re undergoingcilrfrctrot tesit9.oack (o tcpQ. Are your crlbs safe?All Juvenile products are required by federal lav/ o bide by the nrles of the CpSc (Consumer productSafety Corrlrrrrssion) rn oraler for them ro be sold ro consuners. All of orr cflbs re nlanrfcrrrecl rocorlply v/th rhe ferleral gtidelins ancl strdrds ser forth by rhe CPSC, s t.,ell s rhe ASTM (AnricnSoclely of Tesllng MIerlls). Funle[nrore, \', r,,,ork $,ith JPMA Urvettle prodrcts MnufcurersAssoclation), the trttbrella organizlton towhicl ntosr rlanufacrurers of rfant and toddlr producrsbelong, lo ellsure thal our products have prssed their rigor$s rests nd teet th sanclards fo.certtficaiorl. our cribs are nde solid pire wood nd ir som cses Sepelr t',,ood. lV rse rot-toxcfrnishes and plnrs ro finish ll Our proclucts..rck to rr;Q. Can t buy products dlrecrly from you?Mrllort Dolla Bby is \.,,holesler nd clos not sell directty lo he public.ick o tooQ. Can I get hrdware ro converr a crlb wthout a moveable drop-slde to amoveable drop-slde?Sorry, lhr rs no lrardware vRilable to cnvert nort-loveable dt'op-std{ to tvQble rlrop-srcle.Sonre of out cnbs t,,r nol destgrtd to ltav* rtrovrng pans.8.(k to ttQ. Can you shlp orders and parts ro me lnternatonally?We tt sortY btll \'., do tol shrp orders or prt request to ddresses overseas. Pleas provd us ruth shp-o ddrss vrhn rlle cotllrntral us, rv do to shlp ro Alsk, Hvii, P{eno Rtco, AFos, Apos,o PO 8oxes,3.rck t


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Case 4 : 1 0-cv-00247 -GKF -P JC Document 20-2 Filed in USDC ND/OK on0711512010 Page 3 of 5Q. I emalled you today wlth a guestlon and t haven't recelved a response yet. Hotfllong is lt before I feceve a responseTwe pologtze for ny dely rht you y b experncing. We ktov/ that questions regardrng yourbaby's funllur re linrely ard sensltlve, Every errll rhr ls recivd s rd he dy tht t s receivedanrl should be responded o whil 72 hours. We do our very best ro satrsfy and rsolve ALL requesrsvrrthin 7- I 4 days of the lttill connuntctot.ick ro tol)Q. I have a crlb wlrh the safery-Glde Hardware sysrem. After I lnsrall the drop slde,t wll not lock ln place. lr erher locks on one slde or lt keeps falllng down. Howcan I flx thls?What mos likely hppened r./s rht the drop srde rvas ilrstlled ll rhe rvers drrecrion. The drop sideneeds o be reversad rrd re-insrlled. Please revevr your irstruction nanual. Shotrld you tced a tewrnanual, you may dornlod one here. You can rfererce thrs pege for rnrages that can lrelp youdeermrrre rf the drop srde v.,s Insrlled ilcorre


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Case 4:10-cv-00247-GKF-PJC Document 20-2 Filed in USDC ND/OK on 0711512010 Page 5 of 5

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Case 4:10-cv-00247-GKF-PJC Document 20-3 Filed in USDCSTRZAKOWLSKI v. General Motors Corporation, Dist. Court, D, ND/OK on0711512010 Page 1 of 10New Jersey 2005 - Go... Pagc I of'10Web lmaoes Videos Maps News Shoppinq Gmail more v(tlr,glc si;hriii:rt

Siqn in

STRZAKOWLSKI v. General Motors Corporation,Dist. Court, D. New Jersev 2005Iview this case | [_ How cited

(2005)DIANE STRZAKOWLSKI, for herself and and all others similarlysituated, Plaintiff,v.GENERAL MOTORS CORPORATION, Defendant.

Civil Action No. 04-4740.United States District Court, D. New Jersey,

August 16,2005,ORDERJOSEPH RODRIGUEZ, Senior District Judge.This matter comes before the Court on Defendant General Motors Corporation's motion todismiss the Complant pursuant to Fed. R, Civ. P, 12(bX6). For the reasons discussed below,the motion will be denied.I. BACKGROUNDPlaintiff Diane Strzakowlski ("Plaintiff") brought this action on behalf of herself and all otherssimilarly situated. She filed the Complaint on August 18, 2004 in New Jersey Superior Court,Camden County. On September 28,2004, Defendant General Motors Corporation ("GM")removed the case from Superior Court to this District Court pursuant to 28 U.S.C. S 1441,Plaintiff alleges that between 2000 and 2003, GM manufactured, marketed, and soldnationwide approximately four (4) million vehicles containing defective 3.8 liter V6 engines ("KEngine vehicles",111including her 2002 Chevrolet Monte Carlo. (Compt., ff O; 7.) The a[egeddefect pertains to a part called the manifold-plenum, which, in K Engine vehicles, is madefrom plastic. (Compl,, JIJI 21; 26.) Because of the high temperatures associated with theengine's internal combustion, Plaintiff claims that this part easily deforms and causes enginecoolanl leakage. (Compl., n[22-2a;26.) This can result in a host of problems includingengine overheating and operationalfailure, (Compl., flfiI22"24; Def. Exh. B.)ln July 2003, GM initiated a "customer salisfaction Program" ("csP")to be implemented byits authorized service representatives. (Def. Exh. B; Compl,, !125.) The CSP's ostensiblepurpose was to address lhe problems associated with K Engine vehicles' manifold-plenum. lna letter to K Engine vehicle owners and lessees, GM stated:

We have learned that your vehicle may develop an engine coolanl leak at theupper intake manifold throllle body gasket, or at the lower intake to the upperintake gasket. This condition may result in a low engine coolant level and higherengine temperatures, PLAINTIFF1SEXHIBIT

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Case 4:10-ov-00247-GKF-PJC Document 20-3 Filed in USDC ND/OK an 0711512010 Page 2 of 10S1ZAKOWLSKI v, General Motors Corpolation, Dist. Cclurt, D. New Jelsey 2005 - Go... Page 2 ot'10

(Def , Exh. C.) The letter then indicated that owners and lessees should take their K Enginevehicles into their local GM dealerships lor repair sorvices any time lhrough July 31, 20b5,(ld.) lt also offered to potentially compensate owners and lessees for repirs to ihe rnanifold-plenum that lhey independently undertook. (ld.)ln September 2003, Plaintff took her Chevrolel Monte Carlo to the dealership of purchase forrepair pursuant to the csP,fa (compl., !f 28.) under the repair procedure outlined by GM,service technicians were to execute the repair by replacing thre throltle body nuts ndinserting coolant sealant pellets into the vehicle's radiator. (Def. Exh. B; Com1., f ZO.)fowever, this repair seemingly dd not correct the manifold-plenum problem,'at least s far asPlaintiff's vehcle was concerned. (Compl., tl 31,) ln fact, Plaintiff experienced at least oneincident of coolant leakage from her vehicle's intake manifold-plenum in June 2004.l (ld.)Plaintilf alleges that GM knew that its K Engine vehicles were crtically defective even as theyconlinued to manulacture and sell them to consumers. (Compl., tf 45.) Moreover, she clairns-that GM attempted lo conceal this knowledge from the motoring public in order to protect ilssales, (ld,) Further, Plaintiff alleges that even when it finally announced the problem in theJuly 2003 CSP nolice letter, GM continued its attempted deceplion by deliberately crafting arepair procedure that would only mask visible signs of the dofect rather than prop'erly repirthe underlying problem. (Compl., nl 26; 27 .) The purpose of this aileged deception was'robide time unlil K Engine vehiclos'warranties expired, thereby transferring the costl{l ofultimale repair to consumers, (Compl., ,1127.)Based on these factualallegations, Count One of lhe Complainl asserts lhal GM breached itsexpress warranty, which provdes for free repair ol any defects in materials or workrnanshipfor a limited period, (Compl., ftl33-39.) Addtionally, Count Two contends that cM,s ailegedd_eceplion and deliberately inadequate CSP repair procedure violated the New JerseyConsumer Fraud Act ("CFA" or "tho Acl"), N.J. Stat, Ann. 56:8-1 to 20. (Compt., tlfl40-51.)Plaintiff prays for relief in the form of: 1) an order certifying the plaintiff Class and appointngPlantiff and her counsel to represent the Class; 2) actual damages for injuries suffeied by -Plaintilf and the Class as to the breach of warranty claim; 3) injunctive relief in the form of anorder directing GM to properly repair the defective manifold-plenum; 4) damages pursuant tothe CFA claim, includng actual damages, treble damages, and cosls of suit, includingattorneys'fees; 5) statutory pre-judgment nterest; and 6) any other relief deemed appropriateby the Court.On November 29,2004, GM moved to dismiss the Complaint for failure to state a claim uponwhich relief can be granled. See Fed. R. Civ. P. 12(bX). Several arguments in support of themotion are proffered. First, GM claims that Plaintiff's express warranty claim cannot'slandbecause she did not provide adequate notice of the facts she claims to constitute breach,Second, GM argues that Plaintiff's CFA claim must fail because: 1) she did not allege anyaclion or behavior on lhe parl of GM that could consttute unlawful conduct in violation of'theAct; and 2) she did not sufficently allege that she suffered an ascertainable loss that wascaused by GM's conduct, Third, GM asserts that even f the Court were to hold that Plainllfhad stated a claim on behalf of herself, her Complaint fails to slate a claim on behalf of theproposed Class,f5l Therefore, it requests, at the very least, thal the Court dismiss the Classallegations. This Court disagrees with GM's assertions and therefore will deny its motion,II. DISCUSSIONA. Standard on Motion to DismissWhen considering a Rule 12(b)(6) motion 1o dismiss a complaint, a court musl accept all well-pleaded allegations in the complaint as true and view them in the lighl most favorabie to the

1 I Rooin v. Bensalem Tworyvlollll9l,lgwlllPlallll|vllqllulrUtcltt'c{"unless it appears b.e.Von.d doubt that the plainlilf can prove no set of facts in support ofrim which would entitle him to relief." ConleyJ, qibn, gS5 U.S. 41. 4b-46 (1957is claim which would entitle him to relief."

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Case 4:10-cv-00247-GKF-PJC Document 20-3 Filed in USDC ND/OK on 0711512010 Page 3 of 10SIIZAI(OWLSKI v, Genelal Motors Corporation, Dist. Conl't, D. New Jelsey 2005 - Go.., page 3 of' l0

(9ila!9ns omitted); see also D.P. Enters.lnc. v. Bucks County Cmty. co_t!.. .Z-2S F.2


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Case 4:10-cv-00247-GKF-PJC Document 20-3 Filed in USDC ND/OK on 0711512010 Page 4 of 1 0STIZAKOWLSKI v. General Motors Corporation, Dist. Court, D, New Jersey 2005 - Go.,. Pagc 4 of l0

musl be given to a manufacturer who is not lhe immediate seller in an express warranly case.Further, even if notice to GM s necessary under section 2-607(3)(a), the filing ol Plaintiff'sComplainl satisfied this requirement. As indicated in Cipollone, whelher this nolice-by-suilwas provided within a reasonable time is a queslion lor the fact finder. Therefore, the timingquestion is beyond the scope of a motion to dismiss for failure to state a claim.Not surprisingly, GM argues that Cipollone is inapposite in the instant matter. Specifically, itcontends thal the personal injury nature of the action in Cipollone limits thal case'spersuasive value n ths suit, which s predioated only on Plaintiff's economic loss. Thisargument lacks meril, however, because nothing in Cipollone indicated that its holding wasconditoned on the personal injury nature of case.f9lNonelheless, GM asserts that permttng notice-by-suit would undermine the purpose of lheUCC's notice requirement by disallowing the seller an opportunity lo cure an alleged breachwithout lhe necessly for fitigation. This characterization of seclion 2-607(3)(a)'s purposegnores Comment 4 of thal section, which provides in part:

The content of the notificaton need merely be sufficient to let the seller knowthat lhe transaction is still troublesome and must be watched. There is noreason to require lhal the notification which saves the buyer's rights under thissection must include a clear statement of all the objeclions that will be relied onby the buyer . . , . Nor is ther reason for requiring lhe notification to be a claimfor damages or of any lhreatened litigation or olher resort to a remedy. Ihenotification which savos the buyefs rights under this Article need only be suchas informs the seiler that the transacton s claimed to involve a breach, andthus opens the way for normal seltlemen through negotaton.Uniform CommercialCode g 2-607, Comment 4 (emphasis added), Thus, Comment 4indicates lhat the purpose of the notice requirement is smply to spearhead settlementthrough negotiation, This, however, does not necessarily mean thal negotiation andsimullaneous litigation are mutually oxclusive. Rather, common pre-triat praclices suggestthal the opposte is true. For these reasons, GM's motion to dsmiss for failure to state a claimas to the breach of warranty issue is denied.C. Failure to State a Claim Under the ConsumerFraud ActThe New Jersoy Consumer Fraud Act ("CFA" or "lhe Act") provides thal:

Tho act, use or employment by ny person of any unconscionable commercialpractico, deceplion, fraud, false pretense, false promise, misrepresentation, orthe knowing, concealmenl, suppression, or omission of any material fact withintent thal others rely upon such concealment, suppresson or omission, inconneclion with the sale or advertisement of any merchandise . . . , of with thesubsequent performance of such person as aforesaid, whether or nol anyperson has in lact been misled, deceived or damaged thereby, is declared to bean unlawful practice,N.J. Stat. Ann. $ 56:8-2, ln order to state a claim under the CFA, a prvate plainliff must allegeeach of three elements: 1) unlawful conduct by the defendant; 2) an ascerlainable loss on tepart of the plaintiff; and 3) a causal relationship between the defendant's unlawful conductand lhe plartiff's ascertainable loss, Dabush v. Mercedes.B-nz USA, LLC, BZ4 A.2d 1 1 10.1 1 1 5 (N,J. ,super. ct. App. Div. 2005). Here, GM raises lwo grounds in supporl ot iis motlonto dismiss for failure to state a claim under the CFA. First, it contends lhat Plantiff did notproperfy allege unlawful conducl by GM. Second, it argues that even if Plaintiff properlyalleged unlawlul conduct, she failed to allege facts sufficient to establish causaiion'of nascertainable loss. For the reasons discussed below, GM's arguments are rejected and itsmotion to dismiss Plaintiff's CFA claim is denied.

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Case 4:10-cv-00247-GKF-PJC Document 20-3 Filed in USDC ND/OK on 0711512010 Page 5 of 10STIZAKOWLSKI v. Geneal Motols Corporation, Dist. Court, D. New Jersey 2005 - Go.., Page 5 of l0

1. Allegation of Unlawful ConductGM contends thal Plantff has failed to allege that GM engaged in conduct violative of theCFA. lt makes throe specific assertions. First, it claims lhat Plaintiff has alleged noaggravating factors required lo transform the alleged breach of warranty into a consumerlraud claim. Second, it argues, without exlensive development, that the Complaint was notpleaded with the specificity required by Fed. R. Civ. P. 9(b). Third, GM claims that Pfaintiff'sconsumer fraud theory is flatly contradicled by the exstence of the CSP, These argumentsare not persuasive.a, Aggravating FactorsGM first argues that Plaintilf has alleged no aggravating factors that would transform herbreach ol warranfy claim into a consumer fraud claim, The New Jersey Supreme Court hasstated that unconscionability in the context of the cFA is "an amorphous concept obviouslydesigned to estblish a broad business ethic,"46? (N. 19941(quoting Further, the"good faith, honesty infact and observance of fair dealing." ld, (quoting Kugler. 279, A,Zd at 65?). Nonetheless, "abreach of warranly . . . is nol per se unlair or unconscionable and a breach of warranly alonodoes not violate a consumer protection statuto," ld. (quoting D'Ercole gales, ln_,.v. f.lUehaufCorp,. 501 A.2d 990,998.lN.J. Super. Cl, App. Div. 1985).). Rather, in order to make out aclaim under the CFA, a plantiff must allege the presence of "substantial aggravatingcrcumslances . . . in addition to the breach." ld. (ciling DiNicola v, Watchung Furniture'sCountry Manor, 556 A.zd 367 (N.J. Super. Cl. App. Div, 1989)).Determination of whether there has been sufficient aggravating circumstances is made on acase-by-case bass. See K$qlef. 279 A.2d at...51.. However, tho concealment of knowndefects in a product and false assurances of repair have been held to state a claim under theCFA, See Perlh Amboy.lron WorKs. lnc. v, American Home A-s.s..Ur. Co,. S.fQ A,2d 1020. 1025-2p (N,J. Supef.,t,.4p. Div. 1988) (holding that a manufacturer ol a yacht's engines could beheld liable to the yacht buyer under the GFA for allegedly concealing known safety orsignificant operational problems with the engines or for later lalsely assuring the buyer thatthe engines were properly repaired); compare id. with DiNicola, 556 A.2d at 368 (concludngthat the CFA dd not apply in a breach of warranly case in which defendant-furnilure store didnot attempt to conceal the defects in furniture it sold to the plaintiff),Here, Plaintitf has sufficiently alleged the presence of aggravating circumstances necessaryto make out a claim under the CFA. Plaintitf's Complaint alleges that GM marketed K Enginevehicles despite the existence of significant known defects in the engine design. (Compf., ,lf45.) Moreover, the Complaint contends that GM knowingly concealed information about thisdefect from consumers with the inlent that they would rely on the concealment and purchasethe defective vehicles. (ld.) Likewise, Plaintiff claims that GM used the repair procedureinitiated under the CSP in order to further mlslead consumers by hiding detectablemanifeslations of the defect until ater the warranly periods on the K Engine vehicles hadexpired thereby transferring lhe cost of ultimately repairing the vehicles directly to consumers.(Compl., fl 27,)b. Pleading Fraud With ParticularltyGM argues thal Plaintiff's claim of fraud is not plead in accordance wth Fed. R, Civ, P. 9(b).Hule 9(b) provides that when pleading a cause of action for fraud, "tle orcumstancesconstituting fraud , . . shall be stated with particularity." A plaintiff need not, however, pleadlhe "dale, place or time" of the fraud, as long as lhey use an "alternative means of injectingprecision and some measure of substantialion into their allegations of lraud." Mat.dini v.Viking Frqight, Inc..92 F. 9Up-pj?d 378. 385 D.N.J, 1999J. (quoting Rqlg v* Citv lnvesting Co.Ljquidatno Trust, 155 F.3d 644, 658 (3d Cir..1998), abrogation on other grounds recognized,Forbes v. Eagleson. ?2,9,,.3j_J1 (3d Cir. 2000)). Further, although it requires heightened

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Case 4:10-cv-00247-GKF-PJC Document 20-3 Filed in USDC ND/OK on0711512010 Page 6 of 10STIZAKOWLSKI v. General Motors Corporation, Dist. Court, D, New Jersey 2005 - Go... Page 6 o1'10

specificity, courts should apply Rule 9(b) with flexibility and "should not require plaintiffs toplead issues that may have been concealed by the defendant[J." ld. (quoting Rolo. 155.F..9-dA!-05f. Ultimately, pleadings of fraud are sufficient when they put the defendant on notice ofthe precise misconduct with which it is charged. Seville lndus. Machlne-rv Coro. v. SouthnostM"a-.binery Corp,, 7a2 F.2d 786. 791 (3d, ir,,.1._9-.F4).Here, Plaintiff's Complaint is sufficiently particulr to satisfy Rule 9(b)'s requirements. ltdetals very clearly the nature of Plaintiff's fraud claim, including the specilic conducl andomissions alleged lo constitute fraud, Further, it specifies the general dales of the allogedfraud insomuch as it provides lhe years during which GM sold delective K Engine vehiclesand the month and year during which GM initiated the CSP. (See Compl., tfll 3; 25.) Thus,GM has been put on notice of the precise misconducl alleged againsl il and can respondaccordingly.c. Contradiction of Plaintiff's Fraud TheoryGM also argues that "[P]laintiff's theory makes no sense and is contradicled by her allegationof the Customer Satisfaction Program itself." (Def. Br. at 15.) ln essence, GM contends thatlhe existence of the CSP precludes the possibility that it atlempted to conceal informationpertaining to the defective vehicles from the public. This, however, speaks to a factual issue,namely whether lhere was or was not concealment of the allegedly defeclive condilion of KEngine vehicles. As such, it cannot be resolved on the pleadings during a motion lo dismissfor failure to state a claim. Cf, ln re Adams Gglf. lnp.. Securities Litiqation. 381 F.3d 267, 274(3-{Cir. 2004). (stating that materiality in a securities case is ordinarily an issuo left to thefactfinder and is, lherefore, not typically a matter for dismissal under Rule 12(bX6)). For thesereasons, Plaintiff has properly alleged the unlawful conduct element required by the CFA,2. Allegation of Causation of an AscertainableLossGM also contends that even if Plaintiff properly alleged unlawful conduct, she has failed loallege facts sufficient to establish that such conduct caused her to suffer an ascertainableloss. This Court disagrees,ln ordor to state a claim under the CFA, a plaintiff must allege that lhe defendant's unlawfulconducl caused her to suffer an ascertainable loss. Dabush y, Mercgdes Benz USA. LL."874 A.Zd 1 1 10, 1 1 15 ([rl..rl,.S.Upr-Ct. App, Div..P03-5). However, lhis requirement has beenbroadly defined as embracing more than a monetary loss. Ullion lnk Co. v. AT& l'Cqrp.. BOt4.2d 361.379NJ. Syper. CLApp. Div. 2002). ln facl, "[a]n ascertainable loss occurs when aconsumer receives less than what was promised." ld.; see also Miller v. Ameriq4n EamilvPublishers. 663 A?d_0.a3-$.55 (N.J. Super..,L!. Div.1995l ("For ther money, they receivedsomething less than and different from what they reasonably expected in view of defendant'spresentalons. This is all that is required to establish ascertainable loss . , , ,,').The New Jersey Supreme Court recently addressed ascertainable loss in the context ofchronically defective motor vehcles. ln Thiedemann v. Mercedqg.Fenz USA. LLC, 872 A.2d793 (N,J. .?095). vehicle o.lvners brought a class action againsl an auto manufaclurer, havingalleged adefect in the vehicles' fuel syslems. The supreme court ordered summary judgmetin favor of lhe auto maker because the named plaintiffs failed to produce any evidence ihatthey "suffered a quantifiable or othenivise measurable loss as a result of lhe alleged CFAunlawful practico." ld. at 786.The Thiedemann courl rejected the named plaintiffs' theory of loss by diminution in value.Specifically, the courl found that the plaintiffs'theory was too speculative to satisfy the lossrequirement because they: 1) made no attempt to sefl their vehicle; and 2) presented noexpert evidence that the resale market for the specific vehicle was skewed by the defectivecondition. Thiedemann. 872 A.2d at 795. Thus, in order to survive summary judgment, aplaintiff claiming loss in value must offer specific proofs to support or inler a quantifiable loss

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Case 4:10-cv-00247-GKF-PJC Document 20-3 Filed in USDC ND/OK on 0711512010 Page 7 of 10STRZAKOWLSKI v. Genetul Motors Corporation, Dist. Court, D. New Jersey 2005 - Go... Page 7


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Case 4:10-cv-00247-GKF-PJC Document 20-3 Filed in USDC ND/OK on 0711512010 Page 8 of 10STRZAKOWLSKI v. General Motols Corporation, Di.st, Court, D. New Jersey 20AS - Go... Page 8 ol'10

All persons in the State of New Jersey who are current owners or lessees of amodel year 2000, 2001, and 2003 Buick Park Avenue, Buick Regal, Chevroletlmpala, Chevrolet Monte Carlo, Pontiac Bonneville, Pontiac Grand Prix thatcontains a 3.8 liter V6 engine.(Compl., f 12.) GM contends that this class definition is too broad because not all putativeClass members necessarily experienced the alleged defect. Thus, il argues, the Class couldincfude persons who have no individual claim against GM.Each member of a putative class must individually possess a right to make a claim in amatter, even if a given member would refuse to exercise that righl. See Saldarra v. Citv ofamden. 599 A.2d 582. 588 (N.J.S"U.p.r. Cl. App, Div. 19911(citation omitted), Thus, a classcannol be so broad as to include members who have no standing to bring suit on their onaccord. Further, this Coul has previously stated that an allegation o1 a potentially defecliveproduct is not suffcient to state a claim under either a warranly or consumer fraud theory.See Yost v. General Molors.Corp.. 651 F. Supp. 956. 657 (D.N.J. 1998).ln this case, however, the Complaint does not allege that all K Engine vehicles mightpotentially contan a serious design defect. Ralher, it alleges that all K Engine vehicles docontain such a defect in that they incorporate a poorly designed plastic manifold-plenum intother design. (Compl., tl 21.) The mere possibility that not all members of the putative Classexperienced a coolant leak to date does not necessarily mean lhal the underlying defect isnot present. lnslead, il simply means that the most visible ovidence of the defect is notpresenlly common to all affected vehicles.2. Glass Allegation of Breach of WarrantyGM also contends that the Complaint does nol allege that all putative Class members soughtrepair of the defect under the CSP or the vehicles' express warranty. This is importantbecause the express warranty at issue in this case is one of repair. ln other words, lhe GMwarranly promises that any mechanical problem altributable lo defective materials orworkmanship will be fully and properly repaired. (See Def. Exh. A at 6.) Thus, if an individuallailed to seek a repair of lhe allegedly defective manifold-plenum under the CSP or otherwise,he or she could not maintain a suit for breach of express warranly. Cf. Herbtsman v. Eastlnan(stating that a warranty of repair is nol breachedby the delivery of a defective product because such a warranty promises only thal if a defectarises, it will be corrected). Nonetheless, this Courl is unwlling to make any assumptions withrespect to the number of owners and lessees of K Engine vehicles who sought repairs versusespect to the number of owners and lessees of K Engine vehicles who sought repairs versusthe number who did not, parlicularly as GM filed the instant motion in November 2004 and theCSP was in effect lhrough July 31, 2005. The more prudent course of action is to deny GM'smotion and retain the oplion of revisiting the issue during a Rule 23 motion to cerlify theClass. Presumably, by the time such a Rule 23 molon comes before lhe Court, furtherdiscovery on the issue would have been conducted.3. Class Allegation of CFA Causation ElementGM also argues that in order lo proceed as a class action, lhe Complaint must demonstratethal each member of the proposed Class individually relied on GM's allegedly fraudulentconduct and omissons. However, this argument ignores caselaw which permits "[t]hepresumption or inference of reliance and causation, where omissions of material fact arecommon to the class, . . . n the contexl of both common law and statutory fraud." Varacallo v.ruassagnusefis rvrur, Lrre tnq: L;o., /c4 A.zo u/. t / il\.J, upe.r. uI. App. L]tv. zuuu; seealso qopq.v,.M.e-.!ro. Life hs..o.. 696 N.EdJqO1._1008 lOhio.lLggg). ("lt is not necessar)establish inducement and reliance upon material omissions by direct evidence. When thei("lt is not necessary lonondsclosure of a material fact, courts permt inferences or presumptons of inducement andreliance."); Vasqgrz v. Superior -C-qurt of San Joaquin County. Lgl P.2d 964. 978" (Cat. 1971)(holding that "an inference of reliance would arise as to the entire class . . . if the trial courlfinds material misrepresentations were made lo the class members"). Thus, if Plaintiff canestablish for lhe factfinder that GM engaged in unlawful conduct under the CFA, she woufd

there is

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Case 4:10-cv-00247-GKF-PJC Document 20-3 Filed in USDC ND/OK on 0711512010 Page 9 of 10STIZAKOWLSKI v. General Motors Corporation, Di.st. Court, D. New Jersey 2005 - Go... Page 9 oi' l0

be entitled to a presumption of causation as to the proposed Class. For these reasons, GM'smolion to dismiss the Class allegations is denisd.lll. ConclusionFor the foregoing reasons,lT lS ORDERED on ths 16th day of August, 2005 that the motion to dismiss filed by GeneralMotors Corporation is hereby DENIED,M These vehicles are heroinafler cald "K Engino vohcls" because thoy are idsntlfiable by tho appoarancs of the letter"K" as lhe aighth digit of the vehicle dentfication number.lel lt s uncerlain whelher Plaintifl exporonced anymafestaton of lho alleged defecl, such as coolant leakago, prior towhon she look ler vchclo in for service under tho CSP,F lt is_uncgflsin how many incidenl$ of co,olanl leakago Plantiff oxperenced following tho Soptmber 2OO3 CSP repair.Plainlifl's Complint introducos hor post.CSP leakago by statng lhat n incident occuirad "[als reccntty as Juno2004." (Cmpl., ll 31.) Ths wording implies lhat thero wore multlo ncidenls. Howevor, oniy the Juno'2004 lncidant wasspecifically alleged.I4l Plalnliff claims that whilo GM's undertakon repair cosl approximatcly $50 psr vohiclo, a proper repar woutd cosl asmuch as $800 per v-ehicle becauso il would necessilate a complele redesgn or romanulacturering oi the manifofd.ptnumunit. (See Compl., $ 32.)l0l Plaintiff's proposed class ls defincd as follows:All porsons in lhe Slate ol New Jrsey who aro curront owners or lessees ol a nodol year 2000, 2001 , a'd 2OO3 BuckPark Avcnue, Euick Rogal, Chevrolot lmpala, Chovrolot Monto Carlo, Ponthc Bonnoiillo, Ponliac Grand Prx that contalnsa 3.8 liter V6 engne.(Compl., fl 12.)l Tho Cipollono courl came lo this conclusion ln light of tho New Jorsey Suprome Court's ruling in gantor v. ^&Mg!.gusian. lnc.. 20J A.2d 305 (N.J. 105). ln lhat case, tho stat supreme court hsld that the Urilornl Salo ot CooOslaw, whlch was lhe predecossol of lhe UCC, did nol rquire nolice of deloctivo mrchandiso in an action against arnanulacturer who was not the mmodlate seller of tho product. ld. at 313. Additionally, lho case ponnitted n acton lor pureeconomic loss to proceed under a strict liability ln tort theory, ld. at 31 t..l2. While tho skct liabiliiy discussion in Santor ilasoverulod, seo Allorv4y-v.

lroalmenl ol notico lo a renolewasIZI Plainlilf contcnds that she provided notico to the local dealer in Soptember 2003 when she had her vehiclo setvcedpursuanl lo lhe CSP. ln support of ttor argumenl, Plaintill cles to Vonlura v. .f-:ofd 433 ^.2d Ol . 81.1.-(N..1. S0per. Ot. .pr:i|LJP90L in_whlch lhe Appellate Divlslon waived notico as to a remote nanufactuier whre ttre planttl6rougtt-dofective vehicle lo the manulaclurels dealcr lor'numorous" failed ropah altempts. Whilo ths soomingty penirits a plaintillto give notic by repeatodly brinng a defeclive product to tho mmedato sol{or for servico, it cannot biad to waivenotice to the rcmolo manufacturrwhen lhe buyer has sought only one roplr from the immodiate sellor. On tho one hand,whore mullple repair attemplg 6nd in failure, an mmodiato seller could rasonably draw the concluson that this constitutcsa breach of wananly. Howover, where.thorg has bon jusl ons atlempt at repar, nd no lurthor contact botwoen the buyerand lhe immediate soller, lhere s nolhing that would reasonably indcate to lho imrnodialg 60ller that tho buyar considcistho lransaction to have resultod n breach.lE_smlar argume_nt ws made by defendant.manufacturer in Solarz v. Daimlor Chrysler Corp., 47 U.C,C. Rep. Serv. 2d969 (Ct. ol Cotnm. Ploas 2002). ln Solarz,.lho.couil peroitted plaintff's complant to s'ervo as dotica in an exprcss warrantygase lo-r^Pule oconomic loss. The courl.reliod heavily on B-dVskiJ. Hdeout l.{omcs & Roalry. lnc..7_09.t. SUpp. gq (\r.Q'.Pa. l98B. ln whch the disticl courl held thl notce was provided by suit in a personat iniury aso. Ooliimanufacturer in Solarz_thus argued lhat Bodnarski was dstingu16hable becauso it doalt with personal injury rathor thaneconomic loss, Ths Solarz court respondod, howvor, by notng lhat "fitowhere n lhe Bednarski opinion dss the courtexpressly cawo out an exception lo tho notc lequiloment for 'consurner buyers who suffor persoal injury."'Solrz, 47U,C.C. Rcp. Serv. 2d at 981.El Plantiff als alloges that she and olher class members have suflored an ascertainable loss in that their vehicles hvesorlous engine dosn defocls. (Compl. fl 51.) The Thiedemann curt raiectod a similr argurnont and noted that "ltlhe nrerefact that an automoblo defct arses does nol sslablish, in and of itself, an actual and ascrtainable loss to ths voirclopurchaser." 9Z2:/!41+LZE!. Rlher, the court staled thal "ftlhe defects lhat arse and aro addressed by warranty . . , do notprovd tha predicale 'loss'.lhat lho CFA expressly requires." ld. However, the court did not hypothesiz how thi rute mghtchangc in casos where a p,aintfl alleoes thal the deendnl lormulaled a repir procedure thi was known nol to beelfoctive at correcting thodofocl. This Cou( noad not roach thal quostion bocau6e Plaintilf has olhorwise afleged sullicientscsrlalnable loss lo survvo ths motion to dismiss lor laluro to stale a clam.

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Case 4:10-ov-00247-GKF-PJC Document 20-3 Filed in USDC ND/OK on 0711512010 Page 10 of 10STRZAKOWLSKI v. General Motors Corporation, Dist. Court, D. New Jersey 2005 - ... Pago I0 of 10

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Case 4:10-cv-00247-GKF-PJC Document 20-4 Filed in USDC ND/OKMillion Dollar Baby Crib - Replacement Parts Home

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Can I buv poducts clilectly 'om you?What kind ol'warlanty tlo you have on vour proclucts?Ale yor thc tnaker of the Jenny l,ind crib?Whcrc car I buy Milliou Dolla'Baby nroducts?FIow can I contact Million I)


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Case 4:10-cv-00247-GKF-PJC Document 20-4 Filed in USDC ND/OK on0711512010 Page 2 of 6Million Dollar Baby Crib - Replacement Parts Home Page2 of 6o Whcrc r:an I [ind rsscmblv illstructions for a Million Dollal' l]aby

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Case 4:10-cv-00247-GKF-PJC Document 20-4 Filed in USDC ND/OK on0711512010 Page 3 of 6Million Dollar Baby Crib - Replacement parts Home page 3 of 6specialists.For Pats Requests & Wananty Information, please click lere. All partslquests and wananty information arc lundled online through our quick& easy customer service center.llack to torI emailed you today with a question and I haven't received aresponse yet. How long is it before I receive a response?rile apologize for any delay that you may be experiencing. We know thatques.tioxs regarding your baby's furniture are timely and iensitive. Everyemail that is received is read the day that it is received and shoulcl beresponded to within 24 hours. We do our very best to satisfy and resolveALL requests within 7-14 days of the initial communication.Back tr topWhat are the weight limits for your products?Please consult the CSPC guidclines for safety rcgulations for juvenileproducts.Back k) tot)Can I get color chips or rvood samples from you?Color chip or wood samples may be purchased through our FactoryOutlet Link or our website at @Back to tonAre yorr crilx safe?All juvenile products are rcquired by feder.al law to abide by the rules ofthe CPSC (ConsurnE. Producr Salety Conlrlission) in orde.for them tobe sold to consumers. All of our cribs are manufacturccl to comply withthe federal guidelines and standar.ds set forth by the CpSC, as weil as theASTM (American Society of Testing Materials). Furthermore, we workwith JPMA (Juvenile Products Manufacturers Association), the umbreltaorganization to which most manufacturers of infant and toddler productsbelong, to ensue that our products have passed their r.igorous teits andmeet the standa'ds for certification. Our cdbs are made solid pine woodand in some ca.ses Sepetir wood. Vy'e use uon-toxic finishes and paints tofini.sh all oul products.lJack to rolrAre your cribs JPMA certificd?Many of our cribs are JPMA certified and the newer model.s are cunentlyin the testing process. Being a company that continually glows, we strivto create new pr'oducts and expand our product line to give our consumera wider range of selection. We will always have new ciibs that apundergoing certification testing,Back to toplVhat kind of wood are your cribs made out of?Most of our sribs ae made of Pine wood from harvested forests in New7*aland.lVe also use Rubber wood fi'om Malaysia and Sepetir woodfiom harvested forests in other Asian countries. We NO longer useprotected wood species like Ramin wood fiom Inclonesia in any of ourfur'liture.llack to ton

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Case 4:10-ov-00247-GKF-PJC Document 20-4 Filed in USDC ND/OK on 0711512010 Page 4 of 6Million Dollar Baby crib - Replacement Parts Home page 4 of 6\{hy does the color of my crib's headloard differ from the sides ofthe crib?No two trces ale alike, and no crib is fashioned fron one single piece ofwood. The weather will affect the finish of your product, but. this is onlypart of a natural process for wood. The beauty of solicl wood is the grainand maks that come to life with its natural finish. When rcfening topainted cribs, wood is also known to abso'b paint differently; therefore,affecting the outcome of the finished product.Ilack to topAre there supposed to be grain marks (small black streaks) on thecrb?Yes, sometimes, the gr'ain is present due to the nature of the wood. Theblack streaks ae sometimes the result of pronounced grain in the woodand can be attributed to mineral deposits in the wood. These streaks alenot defects ir the wood and ale only natuml.llack lo topAre your cribs convertible?Most of our cribs are equipped with the safety-glide hardware systemand can be converted flom a crjb to a toddler/daybed and then to a fullsize bed, Toddler/daybed conversion kits are included in many of our 3in 1 cibs. Full size conversion kits are sold separately and can bepurchased online by clicking here. The Anastasia crib is an exception, itdoes not convert to a full size bed, however the toddler rail will be nadeavailable by Fall 2005.Back to topMy baby is chewing on the crib. Why isrr't there a teething rail?Crib designs are always changing, and it is not a JPMA standard toinclude teething rails on the newly dasigned convetible cribs. Thetraditional op-side has evolved into static sides with wonderful cuvesand designs. Teething rails are designed for traditional drop-sides thatare rectangular in shape, Although we do not rccommend chewing onour products, the paint used is non-toxic and will not harm your child.lack to t


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Case 4:10-cv-00247-GKF-PJC Document 20-4 Filed in USDC ND/OK on0711512010 Page 5 of 6Million Dollar Baby Crib - Replacement Parts Home page 5 of 6regulation is not to exceed 2 3/8" between the slats. Ivith slats spacedfarther apart, a baby's leg could becone trapped or stuck between themils. Ve suggest putting bumpers around the crib for a young child inorder to prevent this.IJack to tolWhere do I buy bedding that will fit the Mini Alpha Crib (M0598)?Mini crib bedding can be purchased in most retailem. Please contact yourlocal Million l)ollar Baby dealel for details.Back to topI have a crib with the Safety.Glide Hardware system. After I installthe drop side, it will not lock in place. It eifhcr locks on one side or itkeeps falling down. How can I fix this?What most likely happened was that the drop side was installed ir thereverse direction. The drop side needs to be eversed and re-installed.Please rcview your insuction lnanual. Should you need a new manual,you may download one hele. You calr rcference this page for images thatcan help you determine if the clrop side was installed inconectly.llack to tolrI have a crib with the Safety-Glide Hardware system. \{hen I triedto install the drop side, it would go up a few inches and then itbecomes very difficult to slide it up and dorvn. Sometimes it getsstuck even before I pull it all the way up to lock. How can I fix this?This occurs when the inconrct wood screws were used with the bracketrails. Be sure to use the flat head wood screws for the bracket rails andnot the round head wood screws. If installed incorrectly, the lound headwood screws prohibit the chop side from moving as it is not flush withthe rail.Ilack to ttrlWhere can I find assembly instructions for a Million Dollar Babyproduct?Instructions can be downloaded in PDF file by clicking hclc and findingthe manual for your particular ploduct.llack to topAftcr I had placed an order for a replacement part, I received aresponse telling me that my crib was not manufactured by MillionDollar Baby, but when I looked through your website, I saw the verysame crib dlsplayed. lVhy?There are many manufacturers of cribs and although yours may lookidentical to the one on our website, it could very easily have been madeby one of our competitols. To help you identify if your crib is fomMillion Dollar Baby, please look at one of the headboards that showsyour company name, Iogo, and the serial number of your crib. If yourcrib is nissing this identification you are the proud owner of anothermanufacturer's crib.Back to to0What do I do if there is no hardware inside the product Ipurchased?Please visit our Parts pasc fol further information. This page can be useclfor pal ts reque.sts on all new cibs that are recently purchased. For all our

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Case 4:10-cv-00247-GKF-PJC Document 20-4 Filed inMillion Dollar Baby Crib - Replacement Parts Home USDC ND/OK on 0711512010 Page 6 of 6Page 6 of 6

other products, please visit our other hardware pages,Ilack to topIf I order a replacement part today, how long would it take lefore Ireceive my order?We ship all of our parts via USPS or FedEx. Based on the availability ofparts, it will take approximately 7-14 business days fol it to beprocessed. We ship all of our parts ground, taking about a week or moreto be delivered, depending on your location, Should you requireexpeditecl shipping ol overnight service, this is available to you atstandard shipping rates.Ba(:k to toplVhen I opened up the hardware box, I found that the screws werenot all the same size as descriled in the instruction manual. \{hatshould I do?Due to the hardwale we acquire, there will be times when the scrcws arenot exactly as described in the instluction marual. We constantlyimprove oul products and, with these changes, it is sonretirnes necessat'yto change the hardware to accommodate the modification of the product,Flowever, this does not affect the usability, functionality, nor safety ofthe product.Rrck to topI don't have the serial numler or the Purchase Order Lot number.Why can't I just purchase the parts I see on your website?We want to ensule that the safety of your baby is not complornised. Oulpolicy is not to sell any type of replacement palts for poducts withoutthe proper se'ial nurnbel or the PO Lot number. They are needed lbr'identication of your Million Dollal Baby product..llit-c_h!o_!91I can't find the part I need on your Pas page. How do I go aboutgetting my missing part?Due to changes and irnprovements made to our products, parts are notkept for more than 3 years fi'om the clate of manufacture for safetyreasons. Pafts not found on our Parts page probably rneans that it hasbeen cliscontinued, You can always contct Products America at 1-800-772-1041. They sell generic crib parts, and have helped many ofourcuston]ers out in the past.lJack to tonCan you ship orderc and parts to me internationally?We can ship internationally on a case by case lrasis. lVe will be happy toaccommodate you per your equest. Please contact pcltsGlndlrnail.contfor fulther information,llack to topO 200 Million Dollu laby. All Rights Rcscrvcd.

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Case 4:1 -00247-GKF-PJC Document6\Mtltton DotlarBaby 20-5 Filed in USDC ND/OK on 0711512010 PagecottEcftoN' funNlfuR SaFEry HQ custott GARE S|GN up / 6t tN

* @(.*rr".*Safety FactsPleaso sec ou below stalement regsrdlng the reccnt te(sll of drop slda crlbs:Hore t lrtillon Oollr 8by, r?e r a fmlly, and rlCl lrke yorrr or,,,n fantly, sfety ts our nutber orlecorcen. ln hght of CPSC'S lilsronc recll erlier hls y.,eek, ve thouglt tlls vould be a goodopponrnty to explin to you wlt 'long-stnditg cottnlllnent to sefery'' rrs ro us.Tlrs yer, lD8 turns 20 yers old nd dilrg ll those yearg t,'e have never sropped cartng aboul thesafety of our pro


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Case 4:1 47-GKF-PJC Document 20-5 Filed in USDC ND/OK on 0711512010 Page 2Home / Ssfery F(sSafcry HQSfety FctsM08 Mrsses

Customr cereFAQOrdr PansProduct Regrsfrtror\lhere t 8uyCortact UsTernrs of Sruce

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Case 4:10-cv-00247-GKF-PJC Document 20-6 Filed in USDC ND/OK on A7fi512010 Page I of 2

COUN]Y OF TULSASTATE OF OIO.HOMA

AFFIDAVIT)) ss.)I, Michael E. Carr, individually and as connsel f'or Plaintiffs Vitality

Buzadzhi and Marina Buzadzhi, of sound mincl ancl over the age of twenty-one,being first duly sworn, upon oath states as follorvs:1. Defendant Bexco Enterprises, Inc. (hereinafter Bexco) doesbusiness as Million Dollar Baby and markets dressers as Million Dollar Babyproducts.

z. Defendant Bexco asserted in its Motion to Dismiss that the "subjectdresser which allegedly caused the death of the Buzaclzhi's infant child wasneither manufactured nor sold by Bexco. The ch'essel'was manufactured by HsingIncustrial Corporatior-("Hsing"), a company located in Taiwan, shipped directlyto JCP, ancl, plesumably, sold by JCP to Plaintiffs. lJexco's only invovement wasman-aging the direct shipment of the subject ploduct from l-Ising to .ICP. Theproduct was never handled by any of Bexco's ernployees or agents."3. Plaintiffs discovered infol'mation obtainec from Million DollarBaby's website which states that Million Dollar Baby has "a qual control teamat our production site that individually checks and hard packs each piece toasstlre a high level quality and craftsmanship before we let our pieces leave ourfactory dool's." and that "once the proclucts arrive in the U.S. we have anotherteam that assembles case goods here byl-rand, ancl manually checks theincliviclual pieces again."4. The discovery stage in this case has not yet begun.5. Discovery is necessary before Plaintiffs can be in a position togPpose the contention that Defendant Bexco's only role with respect to thedresser was directing- shment from the manufacturer to Defendant i.C. Penney,especially in light of information obtained frorn Million Dollar Baby's websiiethat states that it inspeets, packs, assembles its products.

Mi:;i3ir:Srsworn to before me rtre undersisned notary pubric thisPLAINTIFF'SEXHIBITl^


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Case 4:10-cv-00247-GKF-PJC Document 20-6 Filed in USDC ND/OK on 0711512010 Page 2 ol 2

My commission expires:NotervSlate of 'tHOLTY A, FI$HERTUL8A COUNTY


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Case 4:10-cv-00247-GKF-PJC Document 20-7 Filed in USDC ND/OK on0711512010 Page 1 of 4weiiiawNot l.cpoltcd in F.Supp.2d, 2008 WL 25Si759 (W.D.Okla.)(Cite rrsr 2008 WL 2557759 (W.D.Okta.))

HOnly the Westlaw citation is ourr.ently availablc.Unitccl Statcs f)istlict Cour.t,W.D. Oklahonra.Vioki Y, STEPFIENS, Tfusree of thc Stephcns Chil-dren's Trust, Plaintiff;

CITY OF AN^D^RI(O, a Mr.rnicipal Corporarion;J.'1. McCaslancl, Tnrstee of thc Anacla.ko PublicWorks utholity, a public Ttust; [nvirountcntalProtcctior gcncy; and Oklahoma Derartnrent oflEnvilorrurental Quality, Dcfendants.No. CIV-06-1357-L.

Junc 20, 2008,Dalc l. Oottirrghanr, Irnilinc T. Iibr.itc, Joln M.Ilcnsorr, Gablc & Gotrvals, Oklahorna City, OK, forPlaintiff.f aly ljllcn 'l'ulncs, Michacl I). fvlcCliltock, lobc.rtW. I)acc, Mc\fce & Taft, Shcrr'y . 'f\)(ld, ^ttor-cy Genelal's Officc, Oklahoma City, OI(, for De-fcnclants.

ORDER't'llvl -::ONAl), District Judgc.*I Plaintifl'Vicki Y. Stethcns as Tntstee of theStcphens Chilclren's Tlust ("Trustcc") brings thisnction allegirrg violations of cer.tain applicablelulcs, r'egulations and stahrtes with rcstect to alanclfill locatccl on propel'ty ownecl by Trustce inCaddo County, Oklahorna. This nlattcr is beforc thecourt ou (I) thc Motion to Disnliss of DefcndantsCity of Ana


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Case 4 : 1 0-cv-00247 -GKF -P JCNot Reportocl in F.SLrpp.2d,2008 WL 2557759 (W.D.Okla,)(Citc as; 2008 WL 2557759 (W.D.Olcla.))

'Ilre 'fcnth Circuit has exrlainccl that Iulc l2(bXl)motions to disnriss lor lack of subjeot rnatter juris-diction gcncrally take two forms: facial attacks andfactrral attacks. IIolt t,. I.inited Statcts,46 l;.3d 1000.l{.102..03 (l0th Cr. 1995). When consiclcring a fcialatlaok to thc conrplaint, tlre cout't has wide discre-tion to allow affdavits and other docrrments to re-solvc disrutecl jurisdictional facts without convelt-ing thc nrotion iuto a nrotio for snurnraryjudgnrcntunde' cd,l,(iiv.P. 5. //. Motions under llulcl2(t,)(l) shonld not be tBated as Irlc 56 motionsrrnless thc juLisdictional question is intcrtwinedwith thc ncrits of tho csc. Id. at 1003. Even if the.srbstntive clainr and tho julisdictioual questionalise ort of the same statute, the coul't slotrl


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Case 4:10-cv-00247-GKF-PJC Document 20-7 Filed in USDC ND/OK on 0711512010 Page 3 of 4Pagc 3Not leportecl iu F.Supr.2d, 2008 WL 2557759 (W.D.Okla.)(Citc asr 2008 WL 2551759 (W.D.Okla.))

clearly desclibed. Thc iclentifyiug infomation oftle Tlustee is clearly plovided. The corlt fincls thatthe nolices ancl supplelrrcntal notices adequatelyspecified how the dcfendant.s'alleged conduct viol-atccl identifiable regu lations.The supplcnrcntal roticos 10 lbe City Defendantsand ODEQ, Exhibits 3 aucl 4 to Trustee's CoutlineclIesronse, clearly state that the inital notices, Ex-hibits I and 2 to Trustee's Conrbinecl Response, arc"irrcorrorated herein for all purposcs" and the sup-plcurcntal noticcs aro, ot surprisingly, snpplernent-al to the original notices. The defcndants claim thatthcy wele "thoroughly confused" by the Tnrstee'srotices lccause they were ircorsistcnt and did notleference cach other, r'esulting in no noticc at all.However', the cour'[ fnds that deferrdants' professedconfusion caunot be squared with the language ofthe surrleurental notices which clearly providesthat the surplenrcntal noticcs wele intenclecl to sup-plcnrent, nol to roplace or snrorsedo, thc oliginaluotices. Thelefole, to fhe extent sevelal of defend-arrts' algrrnrents a'e bascd upou a rcading of thesurrlenrortal noticcs only, irt isolation, they ale un-availing and do not llovide a basis for dismissal.*3 Thc cor.rt also rejects the cortention that the no-tices arc cleficient because thcy fail to plovide thedate.s of the alleged violations, As notccl by theTrustcc, the rnajority of the violations allegcd bythc Tlusfce involvc dcfcndants' failure to act, r'en-deling it difficrlt or impossiblc for Trustec toidcntify a srecific datc fo' the ourissiorr, Perlrapsnrorc inrportantly, it is aprarent fronr the noticesthat Trustee belicves that rhe clate Ap|il 8, I994 ispl'ticularly significant. In gcnelal, the Trustce l-leges that if solid wastc ws disposed of at the land'fill aftcr Aplil 9, 1994, cettain nol'e bur'densourcnew lcgulations, knowr as Thc Octobcr 9, 1993Regulatons, would apply to thc lardfill, The Trust-ee alleges that the City Dcfendants disposed of sol-icl waste on the lardfill prenrises after' plil 9,1994, thrs The October 9, 1993 Regulations r'e ap-rlicable. In light ol'Trustae's position, once it is al-lcgcd that solid waste was disposetl of at the lald-

fill after r\:ril 9, 1994, firrtheL srccificity as rodates is not palticularly rreccs.sary, Thelcfore, rvhilein sore cascs the f'aihr'e to idcntil"y a clatc of an al-leged violation wotlcl reucler the notice insufficicnt,this is not sr.rch a case. In short, the court finds thalTlstce's notices and supplenrental noticcs to thcCity Defendants and ODQ incluclcd srfficierrt in-fornlation to ternrit the lecipieufs to identify thespecific pclnrit, starrdarcl or', regulation, coucliti


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Case 4:10-cv-00247-GKF-PJC Document 20-7 Filed in USDC ND/OK on 0711512010 Page 4 of 4Page 4Not Reported in F.Supp.2d,200t IVL 2557'7Sg (rvV.D,Okla.)(Citc ns: 2008 WL 2557759 (W,D.Okla.))

ive stages of litigation. ,1rl. nt 5(>1. t the pleadingstage, geucral factual allegatious of iqjury resultingfron the defbudant's condrct rnay suffice. .k/.*4 Mindful of this authority as well as tle standardsfor glanting a motiorr to dismiss s outlincd above,thc corrt firds that the Tl'ustee's Conrploint con-tails sufficicnt allegations to establish stan

Documents

NEF 20 - Plfs' Response to Dft Bexco's MTD