               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0477n.06

                                       Case No. 15-4367

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              Aug 16, 2016
DARRELL HOLLAND, JR.; BRENDA                          )                   DEBORAH S. HUNT, Clerk
BALDWIN; ANTHONY SOTO; JOHN DELL;                     )
JAMES MORALES; DAVID LOCKETT,                         )
                                                      )        ON APPEAL FROM THE
       Plaintiffs-Appellants,                         )        UNITED STATES DISTRICT
                                                      )        COURT     FOR      THE
v.                                                    )        NORTHERN DISTRICT OF
                                                      )        OHIO
FCA US LLC, aka Fiat Chrysler Automobiles             )
U.S., LLC, fka Chrysler Group, LLC,                   )
                                                      )
       Defendant-Appellee.                            )                            OPINION
                                                      )


BEFORE:        CLAY, ROGERS, and McKEAGUE, Circuit Judges.

       McKeague, Circuit Judge. The Plaintiffs sued FCA US LLC (FCA) after the engine

cradles in their Chrysler Pacifica vehicles began to “prematurely rust, corrode and/or perforate.”

R. 10, Amended Complaint at 2, Page ID 114. On November 16, 2015, the district court granted

FCA’s motion for judgment on the pleadings, finding that the Plaintiffs had failed to “allege a

relationship with FCA which would [have] created a duty on the part of FCA to warn Plaintiffs

of the alleged defect or pay for repairs.” R. 44, Order at 8, Page ID 855. We hold that the

Plaintiffs failed to plead sufficient facts to demonstrate that FCA had voluntarily undertaken a

duty to repair and failed to otherwise show a sufficient economic relationship with FCA to create

a duty to warn. We need not decide whether FCA had a duty to warn under Ohio law based on
Case No. 15-4367, Holland v. FCA US LLC


its knowledge of the alleged defect alone, because the Plaintiffs failed to plead sufficient facts to

demonstrate any causation between any failure to warn and their injuries. Accordingly, we

AFFIRM the district court’s granting of the motion for judgment on the pleadings.

                                       I. BACKGROUND

       Darrell Holland, Jr., John Dell, David Lockett, Brenda Baldwin, Anthony Soto, and

James Morales filed their First Amended Class Action Complaint (Complaint) against FCA on

April 6, 2015. The Plaintiffs and putative class members are owners of 2004–2008 Chrysler

Pacifica vehicles “manufactured with Chrysler CS Platform engine cradles that prematurely rust,

corrode and/or perforate creating a substantial risk of, or causing the engine to fall out of the

vehicle.” R. 10, Amended Complaint at 1–2, Page ID 113–14. FCA “is the successor to

Chrysler Group LLC . . . and Fiat Chrysler Automobiles,” formed in the aftermath of the

Chrysler bankruptcy. Id. at 4, Page ID 116.

       On or about October 23, 2010, FCA issued a Technical Service Bulletin alerting owners

and mechanics to check the engine cradles and suspensions of Chrysler Pacificas for perforation

and possible replacement. Id. at 5, Page ID 117; see also R. 9-2, TSB at 6, Page ID 102. The

Bulletin indicated that it only applied to “certain 2004–2005 Chrysler Pacifica V6-3.5L VIN 4

vehicles” and was limited to “vehicles in the Canadian Market and in U.S. salt belt states”:

Connecticut, Delaware, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan,

Minnesota, Missouri, New Hampshire, New York, Ohio, Pennsylvania, Rhode Island, Vermont,

West Virginia, and Wisconsin. R. 10, Amended Complaint at 5, Page ID 117.

       On November 9, 2010, FCA “issued a letter expressly extending warranty coverage for

2004–2005 Chrysler Pacificas.” Id. The Plaintiffs never alleged that they had received this

letter. The Complaint specifically notes that “Defendant FCA has recently claimed that this



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Case No. 15-4367, Holland v. FCA US LLC


letter was only sent to owners of Pacificas manufactured in ‘the window’;1 however, this claim is

not capable of verification by Plaintiffs.” Id. at 6, Page ID 118.

        On March 16, 2012, FCA issued a Technical Service Bulletin which stated that the

engine cradle defect applied only to Chrysler Pacificas in the salt belt states that were

manufactured in a six-week window from February 23, 2004 to March 31, 2004. Id.

        Each of the individually named plaintiffs owns a Pacifica alleged to have an engine

cradle defect. Id. at 10–12, Page ID 122–24. They have all either paid for repairs to the engine

cradle or have been advised by mechanics that such repairs are necessary. However, none of the

Plaintiffs’ vehicles were manufactured within the six-week window identified by FCA in the

March 2012 Technical Service Bulletin.

        The Plaintiffs allege that “throughout the United States, owners of over 322,000

Pacificas, model years 2004–2008, have been discovering that their vehicles’ engine cradles are

severely rusted and corroded, many to the point that their vehicles have been deemed unsafe to

drive.” Id. at 6, Page ID 118. Consequently, Plaintiffs allege that “thousands of Pacifica owners

whose vehicles were manufactured outside the six week timeframe indicated by FCA have been

forced to either stop using their Pacificas or pay for extensive repairs out of pocket if they wish

to continue using their vehicles without risk that their engine will fall out,” and thousands of

other owners “are currently driving their vehicles while completely oblivious to the dangerous

defect hidden beneath their engines.” Id. at 6–7, Page ID 118–19.

        The Plaintiffs filed suit against FCA, raising various state claims and seeking class

certification.   FCA filed a motion to dismiss and a motion for summary judgment.              On

September 3, 2015, the district court denied the motion to dismiss as moot “as indicated by the

1
 FCA determined that there were defects in the engine cradles’ coating thickness in 2004–2005
Pacificas manufactured in a six-week window.
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Case No. 15-4367, Holland v. FCA US LLC


Parties during the June 26, 2015 status conference.” R. 35, Order at 11, Page ID 615. The

district court also denied the motion for summary judgment without prejudice because “[a] pre-

discovery motion for summary judgment is premature, as granting summary judgment absent

any opportunity for discovery offends concepts of fundamental fairness.” Id. at 10, Page ID 614

(citation and internal quotation marks omitted).

       On September 17, 2015, FCA filed a motion for judgment on the pleadings, arguing that

FCA had no legal duty to warn the Plaintiffs of or to repair the alleged engine cradle defect. The

district court granted the motion on November 16, 2015. R. 44, Order at 9, Page ID 856. The

Plaintiffs then brought this timely appeal, arguing that they pleaded sufficient facts to establish

that FCA owed them a duty to warn and a duty to address the defect.

       The Plaintiffs raise two arguments on appeal: (1) the district court established the law of

the case when it denied FCA’s motion for summary judgment, and, even if not, (2) the district

court erred in granting FCA’s motion for judgment on the pleadings because the Plaintiffs

pleaded sufficient facts to state claims upon which relief could be granted.

                                  II.    LAW OF THE CASE

       The Plaintiffs first argue that the district court was prohibited from granting FCA’s

motion for judgment on the pleadings because it had already denied FCA’s motion for summary

judgment. On September 3, 2015, the district court denied the defendant’s motion for summary

judgment, ruling it premature absent discovery. R. 35, Order at 10, Page ID 614. The denial of

the summary judgment motion, the Plaintiffs argue, established the law of the case.




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Case No. 15-4367, Holland v. FCA US LLC


       As an initial matter, we note that the Plaintiffs did not raise this argument in the district

court.2 “It is well-settled that this court will not consider arguments raised for the first time on

appeal unless our failure to consider the issue will result in a plain miscarriage of justice.”

Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (quoting

Bailey v. Floyd Cty. Bd. of Educ., 106 F.3d 135, 143 (6th Cir. 1997)).

       Regardless, the Plaintiffs’ argument fails because the district court’s denial of the

summary judgment motion without prejudice did not establish the law of the case. “The doctrine

of law of the case comes into play only with respect to issues previously determined.” Holloway

v. Brush, 220 F.3d 767, 777 (6th Cir. 2000) (en banc) (emphasis added) (quoting Quern v.

Jordan, 440 U.S. 332, 347 (1979)). Thus, the doctrine “applies only to issues that have been

decided explicitly (or by necessary implication) by a court.” Bowles v. Russell, 432 F.3d 668,

676–77 (6th Cir. 2005). Despite the Plaintiffs’ claims to the contrary, the district court ruled on

the summary judgment motion only because discovery had yet to be conducted. R. 35, Order at

10, Page ID 614 (“A pre-discovery motion for summary judgment is premature, as granting

summary judgment absent any opportunity for discovery offends concepts of fundamental

fairness.” (citation and internal quotation marks omitted)). Such a ruling has no impact on a

subsequent decision on whether the pleadings alleged sufficient factual matters to render the

claims plausible. Accordingly, the law of the case doctrine did not preclude the district court

from granting FCA’s motion for judgment on the pleadings.




2
  Had the Plaintiffs raised the argument below, we would have reviewed the district court’s
application of the law of the case doctrine for an abuse of discretion. Rouse v. DaimlerChrysler
Corp., 300 F.3d 711, 715 (6th Cir. 2002).
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Case No. 15-4367, Holland v. FCA US LLC


                          III.   JUDGMENT ON THE PLEADINGS

         The Plaintiffs primarily argue that the district court erred in granting FCA’s motion for

judgment on the pleadings. We review de novo a motion for judgment on the pleadings under

Fed. R. Civ. P. 12(c), pursuant to the same standards that should have been applied in the district

court.   Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010); Tucker v.

Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). “The standard of review for a

Rule 12(c) motion is the same as for a motion under Rule 12(b)(6) for failure to state a claim

upon which relief can be granted.” Fritz, 592 F.3d at 722 (citing Ziegler v. IBP Hog Market,

Inc., 249 F.3d 509, 511–12 (6th Cir. 2001)).

         “For purposes of a motion for judgment on the pleadings, all well-pleaded material

allegations of the pleadings of the opposing party must be taken as true, and the motion may be

granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase

Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (citations and internal quotation marks

omitted). “The factual allegations in the complaint need to be sufficient to give notice to the

defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient factual matter’ to

render the legal claim plausible, i.e., more than merely possible.” Fritz, 592 F.3d at 722 (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). But, “‘a legal conclusion couched as a factual

allegation’ need not be accepted as true on a motion to dismiss, nor are recitations of the

elements of a cause of action sufficient.” Id. (quoting Hensley Mfg. v. ProPride, Inc., 579 F.3d

603, 609 (6th Cir. 2009)); see also Gregory v. Shelby Cty., 220 F.3d 433, 446 (6th Cir. 2000)

(noting that although we accept all of the plaintiff’s factual allegations as true, “we need not

accept as true legal conclusions or unwarranted factual inferences”).




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       To survive a motion to dismiss a claim for failure to warn and failure to repair, the

plaintiffs must show that FCA had a duty to warn and a duty to repair. According to the Ohio

Supreme Court, the question of whether a duty exists is a question of law for the court to decide.

Mussivand v. David, 544 N.E.2d 265, 270 (Ohio 1989). The Plaintiffs argue (1) that FCA

voluntarily undertook a duty to repair, (2) that FCA had a duty to warn based on its economic

relationship with the Plaintiffs, and (3) that FCA had a duty to warn based on its knowledge of

the alleged defect in its predecessor’s product.

                                 A.      Voluntary Undertaking

       The Plaintiffs first argue that FCA voluntarily undertook a duty to repair. The Plaintiffs

argue that their allegations that FCA issued and then rescinded an extended warranty that would

have covered repairs for the class vehicles were sufficient to survive FCA’s motion for judgment

on the pleadings. In their briefs and at oral argument, the Plaintiffs have identified two sources

of the alleged extended warranty: a Technical Service Bulletin and a letter. The Complaint’s

only mentions of the issuance of the warranty, however, are in its discussion of FCA’s

November 9, 2010 letter—a letter that the Plaintiffs never alleged that they received. See R. 10,

Amended Complaint at 5–6, Page ID 117–18.

       Technical Service Bulletin. In their Complaint, the Plaintiffs referred to only two

Technical Service Bulletins: one issued in October 2010 and one issued in March 2012. Id. But

the Plaintiffs did not allege that either of these Technical Service Bulletins extended their

warranty. See id. at 5, Page ID 117 (“On October 23, 2010, FCA (its predecessor) issued a TSB

concerning ‘Vehicle Vibration and/or Shake’ alerting owners and mechanics to check the engine

cradles and front suspension of certain 2004–2005 Chrysler Pacifica V6-3.5L VIN 4 vehicles for

perforation and possible replacement.”); id. at 6, Page ID 118 (“Approximately a year and a half



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Case No. 15-4367, Holland v. FCA US LLC


later, on March 16, 2012, FCA (its predecessor) issued another TSB which expressly superseded

the October 2010 TSB. In this TSB FCA stated, for the very first time, that the new TSB, and

consequently the engine cradle defect and extended warranty, applied only to 2004–2005

Chrysler Pacificas in the salt belt states that were manufactured in a six week window in 2004:

February 23, 2004 through March 31, 2004.”). And a review of the record reveals that neither of

these Technical Service Bulletins extended a warranty to the Plaintiffs. See R. 9-2, October TSB

at 6–7, Page ID 102–03; R. 9-2, March TSB at 14–16, Page ID 110–12.

       The Plaintiffs did not allege where, when, or how FCA extended a warranty other than by

stating that “FCA downplayed the prevalence of the defect by issuing, and then negligently and

carelessly rescinding the extended warranty (issued in November, 2010) that would have more

adequately remedied the defect,” R. 10, Amended Complaint at 10, Page ID 122. But the

Plaintiffs do not ever refer in their Complaint to a Technical Service Bulletin issued in November

2010. See id.

       Letter. The Complaint stated that “[o]n November 9, 2010, FCA (its predecessor) issued

a letter expressly extending warranty coverage for 2004–2005 Chrysler Pacificas.”          R. 10,

Amended Complaint at 5, Page ID 117. The letter explicitly noted that FCA was “extending the

warranty period on your front engine cradle.” Id. (emphasis added). By its own text, the letter

does not purport to extend the warranty to vehicle owners beyond those to whom the letter was

sent. The Plaintiffs noted that “Defendant FCA has recently claimed that this letter was only

sent to owners of Pacificas manufactured in ‘the window’;3 however, this claim is not capable of




3
  The Plaintiffs also argue that the district court improperly considered matters outside of the
pleadings—specifically, a declaration from an FCA employee stating that the extended warranty
was only issued to vehicles manufactured in the six-week window. R. 9-2, Declaration at 1–4,
Page ID 97–100. There is simply no evidence that the district court considered matters outside
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Case No. 15-4367, Holland v. FCA US LLC


verification by Plaintiffs.” Id. at 6 n.6, Page ID 118. The Plaintiffs, however, are capable of

verifying whether they received the letter, and yet they did not state anywhere in the Complaint

that they did. And, at oral argument, the Plaintiffs’ counsel admitted that his clients had not

received the letter. Thus, the district court did not err in stating that “[n]one of the Plaintiffs’

vehicles were manufactured within the six-week window identified by FCA in the March 16,

2012 TSB; none were included in the extended warranty group; and, none received an extended

warranty letter.” R. 44, Order at 4, Page ID 851.

        Therefore, even considering the Plaintiffs’ argument that a Technical Service Bulletin

and the November letter together demonstrated FCA assumed a duty to repair their vehicles, the

Plaintiffs have failed to allege sufficient facts to state a claim under this theory.

                                   B.      Economic Relationship

        The Plaintiffs also argue that FCA had a duty to warn them and other putative class

members of the alleged defects because the Plaintiffs and FCA had an economic relationship. In

their briefs, the parties agree that Burton v. Chrysler Group, LLC (In re Old Carco LLC),

492 B.R. 392, 405 (Bankr. S.D.N.Y. 2013), provides the relevant standard. In Burton, the court

stated that:

        The “duty to warn” raises a more difficult question. New Chrysler did not assume
        Old Carco’s duty to warn its customers about the “fuel spit back” problem, and
        any claim based on the breach of Old Carco’s duty to warn is barred by the Sale
        Order. Nevertheless, the law may impose a separate duty to warn on New
        Chrysler. Here, New Chrysler purchased Old Carco’s assets. Succession alone
        does not impose a duty to warn a predecessor’s customers of pre-existing defects,
        Florom v. Elliott Mfg., 867 F.2d 570, 577 (10th Cir. 1989); Travis v. Harris
        Corp., 565 F.2d 443, 448–49 (7th Cir. 1977), but the duty may arise where the
        successor (1) succeeds to the predecessor’s service contracts that cover the
        particular machine, (2) actually services the machine, (3) is aware of the defect

of the pleadings. We note too that the Plaintiffs referred to the declaration in their amended
complaint.
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Case No. 15-4367, Holland v. FCA US LLC


       and (4) knows the location of the machine’s owner. Florom, 867 F.2d at 577;
       Polius v. Clark Equip. Co., 802 F.2d 75, 84 (3d Cir. 1986); Travis, 565 F.2d at
       449; Schumacher v. Richards Shear Co., . . . 451 N.E.2d 195, 199 ([N.Y.] 1983);
       Restatement (Third) of Torts § 13 cmt. b (1998). In these circumstances, the law
       imposes a duty to warn because the successor has entered into a relationship with
       the customer and derives an actual or potential economic benefit. Schumacher,
       451 N.E.2d at 199.

Id.

       The Plaintiffs argue that they have an economic relationship with FCA because “FCA’s

decision to extend the warranty on 2004–2005 Pacificas was, Plaintiffs allege, grounded upon its

duty to address product defects and its efforts to curry repeat business from former Chrysler

customers.” Appellant Br. 25; see also Reply Br. 6–7 (“Plaintiffs alleged that FCA extended the

warranty to at least all 2004 and 2005 Pacificas to satisfy its duty to warn of the defect and/or to

garner repeat business from existing Chrysler customers.”).         But, as discussed above, the

Plaintiffs have not sufficiently alleged that they had received an extended warranty from FCA,

and so the extended warranty cannot form the basis of an economic relationship.

       The Plaintiffs also argue that “Defendant should also expect that former Chrysler vehicle

owners would purchase new Chrysler cars.” Appellant Br. 11. Merely owning a product is

insufficient to demonstrate that a consumer has an economic relationship with the seller’s

successor company. Burton, 492 B.R. at 405 (“Succession alone does not impose a duty to warn

a predecessor’s customers of pre-existing defects . . . .”). It would swallow the rule if a customer

had a sufficient relationship with a successor because it owned the predecessor’s product. Thus,

FCA never “entered into” an economic relationship with the Plaintiffs. Burton, 492 B.R. at 405.




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                                       C.     Knowledge

       The Plaintiffs’ final argument is that FCA had an independent duty to warn under Ohio

law because its predecessor’s product defects were brought to its attention.4 In support, the

Plaintiffs cite Flaugher v. Cone Automatic Machine Co., 507 N.E.2d 331, 339 (Ohio 1987),

which held “that a successor corporation has no duty to warn of defects in products

manufactured by its predecessor unless the successor is shown to have had pre-existing

knowledge, actual or constructive, of the particular defect alleged to exist.” Because the Ohio

Supreme Court held that the defendant in Flaugher did not have the requisite knowledge, it did

not elaborate on whether knowledge alone was sufficient to establish successor liability under

Ohio law, or whether knowledge was merely a necessary element. See id. at 337–38.

       We need not decide if the Plaintiffs have pleaded sufficient facts to show a duty under

Ohio law, because the Plaintiffs did not plead sufficient facts to show that FCA’s failure to warn

caused their injuries. See Hargis v. Doe, 443 N.E.2d 1008, 1010 (Ohio Ct. App. 1981) (noting

that under Ohio law “a supplier is subject to liability for the damages proximately caused by the

use of his product, in the manner and for the purpose for which it was supplied, if he fails to

exercise reasonable care to give the user information which he has and which he should realize

4
  FCA argues that “[i]n the district court, Plaintiffs admitted that the legal viability of their
claims was dependent on a finding that they (or at least their vehicles) had some relationship
with FCA US.” Appellee Br. 12 n.3 (citing R. 27-1, Pl. Memo at 5, Page ID 525). The Plaintiffs
stated below that the question in the case was “whether FCA established a sufficient relationship
with pre-bankruptcy Pacifica owners such that state law imposed an independent duty to address
the engine cradle defect,” R. 27-1, Pl. Memo. at 5, Page ID 525, but this statement did not
abandon the Plaintiffs’ claim that FCA had a duty to warn under state law as a successor with
knowledge of the defect. And, in its response to FCA’s motion for judgment on the pleadings,
the Plaintiffs argued that “the fact remains that FCA had knowledge of the defect in Plaintiffs’
vehicles and assumed responsibility for 7,000 vehicles with the same defect. As such, the law
imposes a duty upon FCA to exercise reasonable care in acknowledging defects to the public.”
R. 42-1, Pl. Memo. at 5, Page ID 690 (citation omitted) (citing City of Cincinnati v. Beretta
U.S.A. Corp., 768 N.E.2d 1136, 1147 (Ohio 2002) (holding that “the common-law failure-to-
warn claim survives the enactment of Ohio’s Product Liability Act”)).
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Case No. 15-4367, Holland v. FCA US LLC


would be necessary to make the use of the product safe”); Temple v. Wean United, Inc.,

364 N.E.2d 267, 273 (Ohio Ct. App. 1977); see also Hutcherson v. Lauderdale Cty., 326 F.3d

747, 756 (6th Cir. 2003) (“[W]here a purely legal issue provides alternative grounds to uphold

the judgment of the district court, we may reach the issue, provided the record permits its

resolution as a matter of law.”).

       The Plaintiffs’ claimed injury is an economic one—having to pay vehicle repair costs.

R. 10, Amended Complaint at 6–7, 10–12, 21, 26, Page ID 118–19, 122–24, 133, 138 (“As a

result, thousands of Chrysler Pacifica owners around the nation, many of whom have no

knowledge of the defect, are left with defectively designed and/or manufactured vehicles that are

dangerous and will inevitably result in financial loss due to market value or the cost of repair

estimated to range (in today’s dollars) at between $2,000–$5,000 to keep their vehicles safely

operational.”). But on these allegations, there is no causal link between FCA warning the

Plaintiffs of the alleged defect post-sale and the Plaintiffs having to pay vehicle repair costs. As

the court in Burton stated:

       The duty to warn cases typically involve a plaintiff who suffers a personal injury
       because someone failed to warn him about a dangerous product, and the failure to
       warn proximately caused his subsequent injury. The plaintiffs in this case do not
       allege subsequent personal injuries. . . . Instead, they seek monetary and
       injunctive relief based on a pre-Closing Date design flaw. Each purchased a
       defective vehicle manufactured by Old Carco that requires more servicing and is
       worth less money. New Chrysler’s failure to warn them that they purchased a
       defective vehicle manufactured by Old Carco did not proximately cause their
       economic injury, and each plaintiff’s failure to warn claim is a typical successor
       liability case dressed up to look like something else, and is prohibited by the plain
       language of the bankruptcy court’s Order.

492 B.R. at 405 (internal citation and quotation marks omitted). Even if FCA had warned the

Plaintiffs, nothing would have changed. The only injuries the Plaintiffs allege involve the costs

of the repairs, but the Plaintiffs would have needed these repairs irrespective of any warning.

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The injuries were the result of the defect, not FCA’s failure to warn. Thus, the Plaintiffs have

failed to sufficiently allege that FCA’s failure to warn caused their injury to survive a motion for

judgment on the pleadings.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s granting of the motion for

judgment on the pleadings.




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