UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-2129
WILLIAM FERRO, a/k/a Bill Ferro,
Plaintiff - Appellant,
v.
VOLVO PENTA OF THE AMERICAS, LLC; VOLVO PENTA NORTH AMERICA, INC.; VOLVO PENTA MARINE PRODUCTS, LLC,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:17-cv-00194-BO)
Submitted: April 19, 2018 Decided: May 3, 2018
Before TRAXLER, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan A. Carnes, CARNESWARWICK, Raleigh, North Carolina, for Appellant. Richard J. Keshian, Winston-Salem, North Carolina, Phillip A. Harris, Jr., KILPATRICK TOWNSEND & STOCKTON, LLP, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
William Ferro appeals the district court’s dismissal of his civil action against
Volvo Penta of the Americas, LLC; Volvo Penta North America, Inc.; and Volvo Penta
Marine Products, LLC (collectively, Appellees). Ferro’s complaint raised claims arising
from his purchase of a yacht outfitted with engines produced by Appellees. Ferro’s
claims hinged on the central allegation that Appellees’ engines contained a defectively
designed component, the XDP outdrive, which caused the engines to repeatedly
malfunction and break down. Ferro specifically alleged claims for breach of warranty
under the Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. §§ 2301-2312 (2012);
products liability claims for inadequate warning and design under N.C. Gen. Stat.
§§ 99B-5, 99B-6 (2017); violations of North Carolina’s Unfair and Deceptive Trade
Practices Act (UDTPA), N.C. Gen. Stat. § 75.1-1 (2017); and several common law tort
claims.
The district court granted Appellees’ motion to dismiss the action pursuant to Fed.
R. Civ. P. 12(b)(6), concluding that all of Ferro’s claims were time-barred except for
certain portions of his products liability claims, which it found were subject to dismissal
pursuant to North Carolina’s economic loss rule. Ferro appeals the district court’s order,
challenging the dismissal of his MMWA, products liability, and UDTPA claims. 1 For the
reasons that follow, we affirm.
1 Because Ferro does not address the district court’s dismissal of his remaining claims, he has waived appellate review of those issues. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).
2 We review a district court’s Rule 12(b)(6) dismissal de novo, assuming the
complaint’s well-pleaded facts to be true and drawing all reasonable inferences in the
plaintiff’s favor. Belmora LLC v. Bayer Consumer Care AG, 819 F.3d 697, 705 (4th Cir.
2016). “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 (2009) (internal quotation marks omitted).
“Bare legal conclusions are not entitled to the assumption of truth and are
insufficient to state a claim.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016)
(internal quotation marks omitted). “While the plaintiff is not required to forecast
evidence sufficient to prove the elements of the claim, he must allege sufficient facts to
establish those elements and advance [his] claim across the line from conceivable to
plausible.” United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d
131, 146 (4th Cir. 2014) (internal quotation marks omitted). Where a defendant seeks
dismissal on statute of limitations grounds, the court may dismiss under Rule 12(b)(6)
“only if the time bar is apparent on the face of the complaint.” Semenova v. Md. Transit
Admin., 845 F.3d 564, 567 (4th Cir. 2017) (internal quotation marks omitted).
The parties agree that Ferro’s MMWA claim is subject to the four-year statute of
limitations applicable under North Carolina law to claims for breach of warranty for the
sale of goods. See N.C. Gen. Stat. § 25-2-725(1) (2017); Jones v. Town of Angier, 638
S.E.2d 607, 610 (N.C. Ct. App. 2007); see also Highway Sales, Inc. v. Blue Bird Corp.,
559 F.3d 782, 789 n.6 (8th Cir. 2009) (discussing MMWA limitations period). For
purposes of this limitations period, a claim accrues either: (1) upon tender of delivery; or
3 (2) in the case “where a warranty explicitly extends to future performance of the goods
and discovery of the breach must await the time of such performance[,] . . . when the
breach is or should have been discovered.” N.C. Gen. Stat. § 25-2-725(2) (2017).
Ferro contends that his MMWA claim accrued not upon the original purchase of
the defective XDP outdrives in June 2007, but upon each purchase of replacement parts
to repair the outdrives, the latest of which occurred in June 2013. However, a close
reading of Ferro’s complaint belies his attempt to run the limitations period from the
replacement part purchases. While Ferro’s MMWA claim does reference implied
warranties with respect to both the XDP outdrives and replacement parts, Ferro’s
complaint clearly describes the defect giving rise to the alleged breaches of warranty as a
defect in the design and composition of the XDP outdrives, not in any individual
replacement parts. Under North Carolina law, claims for breach of implied warranty
require a defect existing in the part subject to warranty. See Goodman v. Wenco Foods
Inc., 423 S.E.2d 444, 454 (N.C. 1992) (warranty of merchantability); Bailey v. LeBeau,
339 S.E.2d 460, 463 (N.C. Ct. App. 1986) (warranty of fitness for particular purpose).
As the complaint fails to give rise to a reasonable inference that the replacement parts
were themselves defective, apart from their later inclusion into the defectively designed
XDP outdrive, the complaint fails to plausibly state a claim for breach of implied
warranty related to those replacement parts. Thus, the purchase of those parts does not
affect the limitations period applicable to the breach of implied warranty claims.
Similarly, although Ferro attached a sample written warranty as an exhibit to the
complaint, we conclude that the complaint does not contain sufficient factual matter to
4 plausibly allege that this sample warranty, or any other express warranty, applied to the
replacement parts that Ferro purchased. Thus, while we agree with Ferro’s textual
analysis of the sample warranty, 2 we conclude that the replacement parts do not provide
an independent accrual date for his breach of express warranty claim under the facts
alleged. Running the limitations period from the original purchase of the yacht and its
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-2129
WILLIAM FERRO, a/k/a Bill Ferro,
Plaintiff - Appellant,
v.
VOLVO PENTA OF THE AMERICAS, LLC; VOLVO PENTA NORTH AMERICA, INC.; VOLVO PENTA MARINE PRODUCTS, LLC,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:17-cv-00194-BO)
Submitted: April 19, 2018 Decided: May 3, 2018
Before TRAXLER, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan A. Carnes, CARNESWARWICK, Raleigh, North Carolina, for Appellant. Richard J. Keshian, Winston-Salem, North Carolina, Phillip A. Harris, Jr., KILPATRICK TOWNSEND & STOCKTON, LLP, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
William Ferro appeals the district court’s dismissal of his civil action against
Volvo Penta of the Americas, LLC; Volvo Penta North America, Inc.; and Volvo Penta
Marine Products, LLC (collectively, Appellees). Ferro’s complaint raised claims arising
from his purchase of a yacht outfitted with engines produced by Appellees. Ferro’s
claims hinged on the central allegation that Appellees’ engines contained a defectively
designed component, the XDP outdrive, which caused the engines to repeatedly
malfunction and break down. Ferro specifically alleged claims for breach of warranty
under the Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. §§ 2301-2312 (2012);
products liability claims for inadequate warning and design under N.C. Gen. Stat.
§§ 99B-5, 99B-6 (2017); violations of North Carolina’s Unfair and Deceptive Trade
Practices Act (UDTPA), N.C. Gen. Stat. § 75.1-1 (2017); and several common law tort
claims.
The district court granted Appellees’ motion to dismiss the action pursuant to Fed.
R. Civ. P. 12(b)(6), concluding that all of Ferro’s claims were time-barred except for
certain portions of his products liability claims, which it found were subject to dismissal
pursuant to North Carolina’s economic loss rule. Ferro appeals the district court’s order,
challenging the dismissal of his MMWA, products liability, and UDTPA claims. 1 For the
reasons that follow, we affirm.
1 Because Ferro does not address the district court’s dismissal of his remaining claims, he has waived appellate review of those issues. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).
2 We review a district court’s Rule 12(b)(6) dismissal de novo, assuming the
complaint’s well-pleaded facts to be true and drawing all reasonable inferences in the
plaintiff’s favor. Belmora LLC v. Bayer Consumer Care AG, 819 F.3d 697, 705 (4th Cir.
2016). “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 (2009) (internal quotation marks omitted).
“Bare legal conclusions are not entitled to the assumption of truth and are
insufficient to state a claim.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016)
(internal quotation marks omitted). “While the plaintiff is not required to forecast
evidence sufficient to prove the elements of the claim, he must allege sufficient facts to
establish those elements and advance [his] claim across the line from conceivable to
plausible.” United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d
131, 146 (4th Cir. 2014) (internal quotation marks omitted). Where a defendant seeks
dismissal on statute of limitations grounds, the court may dismiss under Rule 12(b)(6)
“only if the time bar is apparent on the face of the complaint.” Semenova v. Md. Transit
Admin., 845 F.3d 564, 567 (4th Cir. 2017) (internal quotation marks omitted).
The parties agree that Ferro’s MMWA claim is subject to the four-year statute of
limitations applicable under North Carolina law to claims for breach of warranty for the
sale of goods. See N.C. Gen. Stat. § 25-2-725(1) (2017); Jones v. Town of Angier, 638
S.E.2d 607, 610 (N.C. Ct. App. 2007); see also Highway Sales, Inc. v. Blue Bird Corp.,
559 F.3d 782, 789 n.6 (8th Cir. 2009) (discussing MMWA limitations period). For
purposes of this limitations period, a claim accrues either: (1) upon tender of delivery; or
3 (2) in the case “where a warranty explicitly extends to future performance of the goods
and discovery of the breach must await the time of such performance[,] . . . when the
breach is or should have been discovered.” N.C. Gen. Stat. § 25-2-725(2) (2017).
Ferro contends that his MMWA claim accrued not upon the original purchase of
the defective XDP outdrives in June 2007, but upon each purchase of replacement parts
to repair the outdrives, the latest of which occurred in June 2013. However, a close
reading of Ferro’s complaint belies his attempt to run the limitations period from the
replacement part purchases. While Ferro’s MMWA claim does reference implied
warranties with respect to both the XDP outdrives and replacement parts, Ferro’s
complaint clearly describes the defect giving rise to the alleged breaches of warranty as a
defect in the design and composition of the XDP outdrives, not in any individual
replacement parts. Under North Carolina law, claims for breach of implied warranty
require a defect existing in the part subject to warranty. See Goodman v. Wenco Foods
Inc., 423 S.E.2d 444, 454 (N.C. 1992) (warranty of merchantability); Bailey v. LeBeau,
339 S.E.2d 460, 463 (N.C. Ct. App. 1986) (warranty of fitness for particular purpose).
As the complaint fails to give rise to a reasonable inference that the replacement parts
were themselves defective, apart from their later inclusion into the defectively designed
XDP outdrive, the complaint fails to plausibly state a claim for breach of implied
warranty related to those replacement parts. Thus, the purchase of those parts does not
affect the limitations period applicable to the breach of implied warranty claims.
Similarly, although Ferro attached a sample written warranty as an exhibit to the
complaint, we conclude that the complaint does not contain sufficient factual matter to
4 plausibly allege that this sample warranty, or any other express warranty, applied to the
replacement parts that Ferro purchased. Thus, while we agree with Ferro’s textual
analysis of the sample warranty, 2 we conclude that the replacement parts do not provide
an independent accrual date for his breach of express warranty claim under the facts
alleged. Running the limitations period from the original purchase of the yacht and its
component XDP drives, Ferro’s MMWA claim was significantly untimely. We therefore
conclude that the district court properly dismissed the MMWA claim.
Ferro’s arguments with respect to his UDTPA claim are likewise foreclosed by the
well-pleaded allegations in his complaint. A UDTPA claim is subject to a four-year
statute of limitations, accruing when the alleged violation occurred. Dreamstreet Invs.,
Inc. v. MidCountry Bank, 842 F.3d 825, 830 (4th Cir. 2016); see N.C. Gen. Stat. § 75-
16.2 (2017) (providing limitations period); Hinson v. United Fin. Servs., Inc., 473 S.E.2d
382, 387 (N.C. Ct. App. 1996) (describing accrual). A violation occurs when the
defendant acts in a manner that “offends established public policy,” “is unethical or
unscrupulous,” and “has a tendency to deceive” the average consumer. Becker v. Graber
Builders, Inc., 561 S.E.2d 905, 910-11 (N.C. Ct. App. 2002). “Where an unfair or
deceptive trade practice claim is based on an alleged misrepresentation by the defendant,
the plaintiff must show actual reliance on the alleged misrepresentation in order to
2 Of course, in assessing the district court’s dismissal order, we are not limited to considering the grounds articulated by the district court, but instead “may affirm [the] judgment for any reason appearing on the record.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
5 establish that the alleged misrepresentation proximately caused the injury of which
plaintiff complains.” Sunset Beach Dev., LLC v. AMEC, Inc., 675 S.E.2d 46, 53 (N.C.
Ct. App. 2009) (internal quotation marks omitted).
Ferro’s UDTPA claim was predicated on Appellees’ alleged withholding of
information about the XDP outdrive defect and its attendant risks and harms, in an
attempt to forestall legal action from Ferro. However, Ferro’s complaint indicates that he
was on notice by March 2013 of Defendants’ alleged omissions underlying the UDTPA
claim. Vitally, we conclude that the complaint fails to allege facts from which to
plausibly infer that Defendants made any representations or omissions potentially
actionable under the UDTPA within the four-year limitations period. Thus, the district
court properly dismissed Ferro’s UDTPA claim as time-barred.
Finally, turning to Ferro’s products liability claims, Ferro expressly concurs on
appeal with the district court’s application of the statute of repose, thereby waiving any
challenge to the court’s partial application of the statute of repose to those claims. See
Grayson O, 856 F.3d at 316. Ferro does fairly challenge the district court’s application of
the economic loss rule to his product liability claims. In addressing this issue in the
district court, however, Ferro argued—as relevant to his products liability claims—only
that the economic loss rule did not apply because his claims for damages were not limited
to the defective product at issue. 3 On appeal, Ferro abandons that argument and offers an
3 Although the parties have not included copies of their motion to dismiss or response in opposition within the Joint Appendix, we may properly consider those (Continued) 6 entirely new challenge to the economic loss rule, contending that the rule does not apply
to his product liability claims because those claims arise out of statutes creating a duty
independent of contract law, particularly in light of recent authority limiting the
economic loss rule to negligence claims. The authority on which Ferro principally relies
was available to him at the time of the relevant district court proceedings. As Ferro’s
argument was not first presented to the district court, it is not properly before us in this
appeal. See In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014) (“Our settled rule is
simple: absent exceptional circumstances, we do not consider issues raised for the first
time on appeal.” (alterations and internal quotation marks omitted)).
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
materials in resolving the appeal. See Fed. R. App. P. 30(a)(2) (“Parts of the record may be relied on by the court or the parties even though not included in the appendix.”).