United States District Court, W.D. Missouri, Southern Division
P. RUSH UNITED STATES MAGISTRATE JUDGE.
the Court is the Motion to Dismiss (Doc. 64) filed by
Defendant American Honda Motor Co., Inc. (“AHM”).
Pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of
Civil Procedure, AHM moves the Court to dismiss Count VI of
Plaintiffs' Second Amended Complaint against it.
Plaintiffs George Dean and Bradley Dean have filed
Suggestions in Opposition (Doc. 69) to the motion to dismiss,
and AHM has filed a Reply in Support (Doc. 71) of the motion
to dismiss. Upon review, the motion to dismiss will be
action arises from a fire at the residence of George Dean.
Plaintiffs allege the fire was caused by a Honda HR-V motor
vehicle (the “HR-V”) owned by George Dean and
designed, manufactured, marketed and sold by Defendants, and
resulted in damage to or destruction of Plaintiffs'
personal and real property. On November 15, 2017, Plaintiffs
filed their Second Amended Complaint (Doc. 55) (the
“complaint”), which added Count VI for violation
of the Missouri Merchandising Practices Act
(“MMPA”) against all Defendants.
moves to dismiss Count VI against it, arguing this claim: (1)
fails to meet the heightened pleading requirements of Rule
9(b); (2) fails to identify any specific unlawful act in
violation of the MMPA committed by AHM; and (3) fails as a
matter of law to the extent it is alleged by Plaintiff
12(b)(6) provides that a claim may be dismissed for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A complaint must
include “enough facts to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible
if “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A claim should be
dismissed if it offers only “labels and conclusions or
a formulaic recitation of the elements of a cause of
action.” Id. Stated differently, a plaintiff
must allege “more than an unadorned,
claims alleging fraud must comply with the heightened
pleading standard of Rule 9(b), which requires setting forth
“the circumstances constituting fraud ... with
particularity.” Fed.R.Civ.P. 9(b). The
“circumstances” of fraud include “such
matters as the time, place and contents of false
representations, as well as the identity of the person making
the misrepresentation and what was obtained or given up
thereby.” Commercial Prop. Inv., Inc. v. Quality
Inns Int'l, Inc., 61 F.3d 639, 644 (8th Cir. 1995).
In other words, the claim must identify the “who, what,
where, when, and how” of the alleged fraud. United
States ex rel. Costner v. URS Consultants, Inc., 317
F.3d 883, 888 (8th Cir. 2003).
argues that Plaintiffs' MMPA claim is subject to, but
fails to meet, the heightened pleading requirements of Rule
9(b). According to AHM, Plaintiffs have only made allegations
“upon information and belief, ” with no attempt
to state their claim with particularity. Plaintiffs respond
that their MMPA claim does not sound in fraud, but instead
falls under other “unfair business practices.”
prevail on an MMPA claim, a plaintiff must establish that he
or she: (1) purchased merchandise; (2) for personal, family,
or household purposes; and (3) suffered an ascertainable loss
of money or property; (4) as a result of an act declared
unlawful by Section 407.020. Mo. Rev. Stat. § 407.025.1;
Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d
758, 773 (Mo. banc 2007). Acts declared unlawful by the MMPA
broadly include “deception, fraud, false pretense,
false promise, misrepresentation, unfair practice or the
concealment, suppression, or omission of any material fact in
connection with the sale or advertisement of any merchandise
in trade or commerce[.]” Mo. Rev. Stat. §
407.020.1. Generally, the “heightened pleading
requirement of Rule 9(b) applies to a claim under a state
consumer fraud statute, such as the MMPA.” Hays v.
Nissan N. Am., Inc., No. 4:17-CV-00353-BCW, 2017 WL
6816748 at *3 (W.D. Mo. Oct. 27, 2017) (citing Blake v.
Career Educ. Corp., 2009 WL 140742 at *2 (E.D. Mo. Jan.
their complaint, ¶ 46, Plaintiffs allege “upon
information and belief, Defendants practiced deception, false
pretense, misrepresentation, unfair practices, concealment,
omissions, and/or suppression of material facts upon which
Plaintiffs  relied, by marketing, selling, manufacturing,
and/or designing said Honda HR-V motor vehicle despite
knowledge it was defective.” In ¶ 47, Plaintiffs
allege “[u]pon information and belief, Defendants
practiced deception, false pretense, misrepresentation,
unfair practices, concealment, omissions, and/or suppression
of material facts upon which Plaintiffs  relied, by
marketing, selling, manufacturing and/or designing said Honda
HR-V motor vehicle(s) prone to material defect and/or
spontaneously catching fire.”
as argued by Plaintiffs, their claim does not specifically
allege fraud. Rather, it alleges several other unfair
practices declared unlawful under the MMPA, including the
“concealment, omissions, and/or suppression of material
facts.” However, even if the heightened standard of
Rule 9(b) does not apply, AHM argues that Plaintiffs have
failed to identify any specific unlawful act committed by it
in violation of the MMPA.
the claim of concealment, omission and/or suppression of
material facts, under the MMPA, a plaintiff must show the
defendant failed to disclose material facts that were
“known to him/her, or upon reasonable inquiry
would [have been] known to him/her.” White
v. Just Born, Inc., 2:17-cv-04025-C-NKL, 2017 WL 3130333
at *8 (W.D. Mo. July 21, 2017) (citing Plubell v. Merck
& Co., Inc., 289 S.W.3d 707, 714 (Mo.Ct.App. 2009)
(emphasis in original). Here, in ¶ 7, Plaintiffs allege
that “the cause of the [HR-V]'s fire was [t]he
failure of the alternator [and a] failure of cabling  due
to a manufacture and/or design defect.” In ¶ 49,
Plaintiffs claim “the plant and/or facility where the
 HR-V was manufactured and/or designed experienced numerous
material issues affecting the quality and merchantability of
the parts and/or components utilized in the  HR-V.”
Lastly, in ¶ 50, the complaint ...