Alexander v. Southeastern Wholesale Corp.

978 F. Supp. 2d 615, 2013 WL 5673311, 2013 U.S. Dist. LEXIS 149693
CourtDistrict Court, E.D. Virginia
DecidedOctober 17, 2013
DocketAction No. 2:13cv213
StatusPublished
Cited by21 cases

This text of 978 F. Supp. 2d 615 (Alexander v. Southeastern Wholesale Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. Southeastern Wholesale Corp., 978 F. Supp. 2d 615, 2013 WL 5673311, 2013 U.S. Dist. LEXIS 149693 (E.D. Va. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

REBECCA BEACH SMITH, Chief Judge.

This matter comes before the court on a Motion to Dismiss Plaintiffs Second Amended Complaint (“Motion”). For the reasons stated herein, the Motion is DENIED.

I. Factual and Procedural Background

On or about August 16, 2010, the Defendant, Jason D. Adams, Inc., trading as Autos By Choice (“Autos by Choice”), purchased a 2003 Dodge Ram pickup truck for approximately $6,000. 2d. Am. Compl. ¶ 5. At the time of this sale, the odometer incorrectly displayed 29,580 miles. 2d. Am. Compl. ¶ 8. In fact, the truck had over 100,000 miles on it. 2d. Am. Compl. ¶ 9.

On August 19, 2010, Autos by Choice sold the truck to Southeastern Wholesale Corp., trading as Bay Auto Wholesale (“Bay Auto”), for $9,100 and certified the odometer reading as correct to the best of its knowledge. 2d. Am. Compl. SI 14.

Bay Auto subsequently sold the truck to the Plaintiff, Andre Alexander (“Alexander”). On August 24, 2010, the Plaintiff made a down payment of $5,000 on the truck, and on August 27, 2010, the sale became final for a purchase price of $13,994.09. 2d. Am. Compl. ¶¶ 18, 21.

In late June or early July, 2011, the Plaintiff traded in the truck to Impex Auto Sales (“Impex”). Impex, however, discovered that the mileage displayed on the odometer was inaccurate and required the Plaintiff to take back the truck. 2d. Am. Compl. ¶ 26. The Plaintiff alleges this was the first time he discovered the odometer discrepancy. 2d. Am. Compl. ¶26. He attempted to rescind the transaction with Bay Auto but Bay Auto refused to cancel the sale. 2d. Am. Compl. SIS 27-28.

[617]*617The Plaintiff filed his original complaint on April 22, 2013, against Bay Auto and Autos by Choice. After the court granted two successive motions to amend, the Plaintiffs Second Amended Complaint (“Complaint”) was filed on July 30, 2013, and is now the operative complaint in this case. ECF No. 44.1 On August 20, 2013, the Defendant, Autos by Choice,2 filed the Motion to Dismiss. ECF No. 45. The Motion has been fully briefed, and is now ripe for review.

II. Standard of Review

Federal Rule of Civil Procedure 8(a) provides, in pertinent part, “[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint need not have detailed factual allegations, but Rule 8 “requires more than labels and conclusions---- [A] formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Facial plausibility means that a “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). It is, therefore, not enough for a plaintiff to allege facts demonstrating a “sheer possibility” or “mere[ ] consistency]” with unlawful conduct. Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

The Supreme Court, in Twombly and Iqbal, offered guidance to courts evaluating a motion to dismiss:

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. That is, the court accepts facts alleged in the complaint as true and views those facts in the light most favorable to the plaintiff. Venkatraman v. REI Sys., 417 F.3d 418, 420 (4th Cir.2005). Overall, “[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

III. Analysis

The Plaintiff has alleged four grounds for relief. Count I is a claim based on the federal Motor Vehicle Information and Cost Savings Act (“Odometer Act”). Count II is asserted only against Bay Auto, which is in default,3 not against Autos by Choice. Count III is a claim based on the Virginia Consumer Protection Act [618]*618(“VCPA”). Count IV is a Virginia common law fraud claim. The Defendant asserts that the pleadings for Counts I, III, and IV fail to state a claim. The court considers each argument in turn.

A. Statute of Limitations

The Defendant first argues that the Plaintiff has not filed his claims under Counts I, III, and TV within the applicable limitations periods for claims based on the Odometer Act, the Virginia Consumer Protection Act, and common law fraud, respectively. Def.’s Mem. Supp. at 4, 10, 13.

1. Motor Vehicle Information and Cost Savings Act

The Odometer Act specifies that an “action must be brought not later than 2 years after the claim accrues.” 49 U.S.C. § 32710(b). Both parties agree that because the cause of action is based on the fraudulent intent of the seller, the federal “discovery rule” applies.

[W]here a plaintiff has been injured by fraud and “remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.”

Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946) (quoting Bailey v. Glover, 88 U.S. 342, 21 Wall. 342, 22 L.Ed. 636 (1875)). The cause of action does not accrue until the time that the Plaintiff “discovered, or had failed in reasonable diligence to discover, the alleged deception.” Id.

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978 F. Supp. 2d 615, 2013 WL 5673311, 2013 U.S. Dist. LEXIS 149693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-southeastern-wholesale-corp-vaed-2013.