United States District Court, E.D. North Carolina, Western Division
WILLIAM FERRO, A.K.A. BILL FERRO, Plaintiff,
VOLVO PENTA OF THE AMERICAS, LLC, VOLVO PENTA NORTH AMERICA, INC, and VOLVO PENTA MARINE PRODUCTS, LLC, Defendants.
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
matter is before the Court on defendants' motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. [DE 8]. The matter has been fully briefed
and is ripe for ruling. For the reasons discussed below, the
motion to dismiss is granted and the complaint is dismissed.
2007, plaintiff purchased a 2006 Cruisers Yacht, model 300,
for approximately $107, 000. [DE 1 at ¶ 5], The boat was
equipped with two Volvo Penta 5.70Sxi model engines which
included an XDP outdrive. Id. at ¶ 6. The
engines had 24 hours of logged use. Id. Plaintiff
purchased a third-party extended warranty on the boat.
Id. at ¶ 8.
to plaintiff, the XDP outdrives have a common defect in that
the "U-joint bellows . . . buckle and make contact with
the U-joint during high speed turning or loading maneuvers,
which causes water entry and corrosion of the U-joint and
gimbal bearing." [DE 1 at ¶¶ 9-10]. Plaintiff
states that he experienced XDP outdrive failure "in or
about August 2008, June 2009, May 2011, September 2012 and
2015." Id. at ¶ 11. When these failures
occurred on open water, he and his family were stranded until
they could be towed to shore. Id. at ¶ 12.
Plaintiff paid approximately $14, 000 to repair and replace
XDP outdrive parts in July 2008, August 2009, and June 2011.
Id. at ¶¶ 15-17.
alleges the engine failed again in September 2012 and after
"exploring options to sell the Boat" in March 2013,
he states that during online research he found evidence based
on customer reviews and projected litigation that the XDP
outdrives were defective. [DE 1 at ¶¶ 18-19]. After
reaching out to defendants via email on March 29, 2013,
plaintiff filed a formal complaint. Id. at ¶
20. He was informed that he needed to replace the XDP
outdrives. Id. at ¶ 21. In June 2013, he paid
approximately $3, 450 to repair and replace the XDP outdrive
parts in lieu of replacing the outdrives. Id. at
¶ 22. After this repair, he attempted to minimize the
use of the boat but the problems persisted until July 2014
when the XDP drive bellows completely failed. Id. at
¶¶ 23-24. In December 2015, he paid approximately
$36, 389 to completely replace the XDP outdrives.
Id. at ¶ 25.
April 20, 2017, plaintiff filed a complaint asserting that
defendants (1) violated the Magnuson-Moss Warranty Act; (2)
violated North Carolina's product liability statutes by
providing an inadequate warning and inadequate design; (3)
committed an unfair and deceptive trade practice; (4) was
unjustly enriched by receiving defective parts; (5) converted
defective parts; and (5) negligently inflicted emotional
distress on plaintiff. [DE 1]. On June 1, defendants filed
the instant motion to dismiss, arguing that plaintiff has
failed to state a claim upon which relief can be granted. [DE
12(b)(6) motion to dismiss tests the legal sufficiency of the
complaint. Papasan v. Attain, 478 U.S. 265, 283
(1986). When acting on a motion to dismiss under Rule
12(b)(6), "the court should accept as true all
well-pleaded allegations and should view the complaint in a
light most favorable to the plaintiff." Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A
complaint must allege enough facts to state a claim for
relief that is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Facial plausibility
means that the facts pled "allow the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged, " and mere recitals of the elements
of a cause of action supported by conclusory statements do
not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A complaint must be dismissed if the factual
allegations do not nudge the plaintiffs claims "across
the line from conceivable to plausible."
Twombly, 550 U.S. at 570. The complaint must plead
sufficient facts to allow a court, drawing on judicial
experience and common sense, to infer more than the mere
possibility of misconduct. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.
2009). The court need not accept the plaintiffs legal
conclusions drawn from the facts, nor need it accept as true
unwarranted inferences, unreasonable conclusions, or
arguments. Philips v. Pitt County Mem. Hosp., 572
F.3d 176, 180 (4th Cir. 2009).
considering a motion to dismiss pursuant to Rule 12(b)(6),
the Court may consider documents attached to the complaint,
as well as those attached to the motion to dismiss so long as
they are integral to the complaint and authentic.
Fed.R.Civ.P. 10(c); Sec 'y of State for Defence v.
Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007); Philips v. Pitt County Mem 7 Hosp.,
572 F.3d 176, 180 (4th Cir. 2009). A court ruling on a motion
to dismiss under Rule 12(b)(6) may also properly take
judicial notice of matters of public record. Sec 'y
of State for Defence, 484 F.3d at 705.
have moved to dismiss each of plaintiff s claims as barred by
the applicable statutes of limitations or repose. The Court
will address each claim and its timeliness in turn.
first cause of action is a product liability and breach of
express and implied warranty claim brought under the
Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C.
§ 2301 et seq. The MMWA does not contain a
statute of limitations, but when evaluating timeliness of
claims under the MMWA, courts are directed to use the
applicable state law. Yancy v. Remington Arms Co.,
LLC, No. 1:10-CV-918, 2013 WL 5462205, at *5 (M.D. N.C.
Sept. 30, 2013). North Carolina applies a four-year statute
of limitation to breaches of warranty on the sale of goods,
beginning upon accrual of the claim, which is either (1)
tender of delivery, or (2) if the goods were sold with a
warranty for future performance, the date when the defect was
or should have been discovered as long as it remains within
the life of the express warranty terms. Id. While
the discovery rule applies if goods are sold with a warranty
for future performance, it "does not extend the life of
an express warranty beyond its terms." Id.
purchased the boat used in June 2007, and replaced engine
parts in July 2008, August 2009, June 2011, and June 2013.
Plaintiff attached a document to his complaint which he
purports is a two-year warranty on all replacement parts. [DE
assuming the two year warranty attached to the complaint
applies,  and even assuming the period of that
warranty would begin at the time the boat was purchased used
by defendant in 2007, nonetheless the warranty and
limitations period expired long before plaintiff filed his
complaint. Plaintiff argues that a new two-year warranty
period was started each time he bought and installed
replacement parts on the boat's ...