                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 08-1450


DONALD SHONK,

                 Plaintiff - Appellant,

           v.

FOUNTAIN POWER BOATS; YANMAR AMERICA CORPORATION; MERCURY
MARINE,

                 Defendants - Appellees,

           and

MACK BORING & PARTS COMPANY,

                 Defendant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:07-cv-00257-WDQ)


Argued:   May 12, 2009                      Decided:   July 16, 2009


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: James Daniel Scharville, KAHN & ASSOCIATES, LLC,
Cleveland, Ohio, for Appellant.    William Charles Bailey, Jr.,
SIMMS & SHOWERS, LLP, Baltimore, Maryland, for Appellee Fountain
Power Boats; Walter Laurence Williams, WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER, LLP, McLean, Virginia, for Appellee Yanmar
America Corporation; Scott Michael Trager, SEMMES, BOWEN &
SEMMES, Baltimore, Maryland, for Appellee Mercury Marine.   ON
BRIEF: J. Bradley Winder, Jr., KAHN & ASSOCIATES, LLC,
Cleveland, Ohio, for Appellant.  Stephen S. McCloskey, SEMMES,
BOWEN & SEMMES, Baltimore, Maryland, for Appellee Mercury
Marine; Jason R. Waters, WILSON, ELSER, MOSKOWITZ, EDELMAN &
DICKER, LLP, McLean, Virginia, for Appellee Yanmar America
Corporation.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

         This is a breach of warranty case involving a thirty-eight

foot power boat (the Boat).                Almost one and a half years after

Donald Shonk (Shonk) purchased the Boat, he filed the present

civil        action        against     Fountain         Power     Boats    (Fountain),

manufacturer of the Boat, Yanmar America Corporation (Yanmar),

manufacturer          of     the     Boat’s      engines,       and   Mercury   Marine

(Mercury),       manufacturer         of   the    Boat’s    stern     drives.       Shonk

alleged claims for breach of warranty under the Magnuson-Moss

Warranty--Federal Trade Commission Improvement Act (the MMWA),

15 U.S.C. §§ 2301-2312, breach of warranty under the Maryland

Uniform       Commercial      Code--Sales        (the    Maryland     UCC),   Md.   Code

Ann., Commercial Law §§ 2-101 to 725, and unfair or deceptive

trade practices in violation of the Maryland Consumer Protection

Act (the Maryland CPA), Md. Code Ann., Commercial Law §§ 13-301,

408. 1

             Below, the district court resolved all claims adverse to

Shonk.         Shonk   now     appeals     the    district      court’s:      (1)   Rule

12(b)(6) dismissal of his claims against Yanmar and Mercury, see


         1
       Shonk also initially named a fourth defendant, Mack Boring
& Parts Company, which defendant the district court dismissed
without prejudice early in the litigation, pursuant to a motion
by Shonk. Because Mack Boring & Parts Company is not a party in
the present appeal, we will not discuss it further.




                                           - 3 -
Fed. R. Civ. P. 12(b)(6); (2) the district court’s refusal, on

the   ground        of   futility,   to    grant       him    leave    to   amend    his

complaint in an attempt to bring Yanmar and Mercury back into

the case; and (3) the district court’s grant of summary judgment

in favor of Fountain with respect to his MMWA claim.                         We affirm

in toto.



                                           I.

      According to Shonk’s opening brief on appeal, in August

2005,     he   “purchased      the     [B]oat      for   a     substantial     sum    of

$325,751.76,”        from   American    Performance          Marine,   in   Edgewater,

Maryland. 2     (Shonk’s Opening Br. at 5).              Almost one year later,

in July 2006, Shonk reported to American Performance Marine that

the exhaust coupler on the Boat’s starboard engine had failed,

resulting      in    substantial     damage       to   the    Boat’s   engines.       In


      2
       In support of this statement, Shonk cites to page 128 of
the Joint Appendix, which is a document entitled “MARINE
PURCHASE AGREEMENT.”   (J.A. 128).     Such document, dated August
5, 2005, purports to be the written agreement whereby Shonk
purchased the Boat from American Performance Marine.            The
document lists the retail price of the Boat at $427,455.58, but
the cash sale price at $325,751.76.      Although the point is not
relevant to the issues on appeal, we note that in Shonk’s
initial complaint and in every version of the complaint he
proposed thereafter, Shonk alleges either that the “price of the
[Boat]   and/or   the   total    of   payments   is   approximately
$427,455.58,” (J.A. 14-15, 75), or that “[t]he [B]oat was a
substantial   purchase   for    Plaintiff   costing   approximately
$427,455.58,” (J.A. 152).     Shonk offers no explanation in his
appellate briefing for the discrepancy.


                                          - 4 -
September      2006,     Shonk      hired     John    Zahn     (Zahn)    of    All    States

Marine Surveyors to inspect the Boat in order “to determine the

cause of the failure of the exhaust coupler on the starboard

engine and the extent of damage to both engines.”                              (J.A. 563).

In     his     written       report,     Zahn        stated,     under        the    heading

“Conclusion”         that    “[c]atastrophic           failure    of     the        starboard

engine to exhaust system coupler, caused both engines to ingest

large amounts of salt laden air, causing severe corrosion of the

intake systems.”            (J.A. 564).        And although Zahn reported under

the heading “Findings: General” that “[v]isual inspection of the

damaged coupler revealed a split, 4 inches long in what appeared

to be a seam from the manufacturing process[,]” he reported in

the    very    next    sentence        that    “[t]he    cause     of    the        split   is

unknown.”       (J.A. 563).         Also in the “Conclusion” section of the

same       report,    Zahn    stated     that    “[i]nspection          of    the    exhaust

coupler revealed no cause of failure.”                   (J.A. 564).

       On December 19, 2006, Shonk filed the present civil action

in    Maryland       state    court,     which       Fountain     timely       removed      to

federal       court     on    the      basis    of     diversity        of     citizenship

jurisdiction. 3        See 28 U.S.C. § 1332.


       3
        We have satisfied ourselves that the district court
correctly   determined   that   it   possessed subject matter
jurisdiction pursuant to 28 U.S.C. § 1332.




                                            - 5 -
       Shonk’s initial complaint (the Initial Complaint) alleged

one count under the MMWA, one count under the Maryland UCC, and

one    count    under    the    Maryland     CPA.        In     each   count,     Shonk

indiscriminately used the term “Defendant.”

       Yanmar and Mercury each moved to be dismissed from the case

for failure of the Initial Complaint to state a claim upon which

relief can be granted.            See Fed. R. Civ. P. 12(b)(6).                   Shonk

opposed the motions, but in the alternative, moved for leave to

file an amended complaint which pluralized the term Defendant

throughout (the Proposed First Amended Complaint).

       The district court granted Yanmar and Mercury’s respective

Rule   12(b)(6)    motions      and     denied   Shonk’s      motion   to    amend   as

futile.     Shonk and Fountain then consented to proceed before a

United States magistrate judge for all remaining proceedings,

including entry of final judgment.                  See 28 U.S.C. § 636(c)(1).

The district court entered an order of reference in this regard.

Id.

       Still hoping to get Yanmar and Mercury back in the case,

Shonk filed a second motion to amend his complaint (the Proposed

Second    Amended       Complaint).          The     Proposed      Second       Amended

Complaint      newly    alleged   that     Fountain      manufactured       the   Boat,

Yanmar manufactured the Boat’s engines, and Mercury manufactured

the Boat’s stern drives.              The Proposed Second Amended Complaint

also   listed    Shonk’s       claims    under     the   MMWA    against    Fountain,

                                         - 6 -
Yanmar,     and    Mercury     in     separate    counts.        The     other      claims

remained lumped together.             For example, Shonk’s claims under the

Maryland UCC against Fountain, Yanmar, and Mercury were still

listed in a single count.              Of relevance in this appeal, Shonk’s

claims against Yanmar and Mercury under the MMWA, the Maryland

CPA, and the Maryland UCC continued to focus solely upon the

Boat.

       The magistrate judge denied the motion without prejudice,

because     the     motion    failed     to     comply    with     the      Local     Rule

requiring a party to serve a copy of the amended pleading in

which stricken and new material is identified.                         See Local Rule

103.6(c) (D.Md. 2004).           Shonk then refiled the motion; this time

attempting to cure the violation of Local Rule 103.6(c).                            Yanmar

and   Mercury      opposed    the     refiled    motion   on     the   ground,      inter

alia, that allowing Shonk to file the Proposed Second Amended

Complaint         would    prejudice       them     and        would        be   futile.

Nonetheless,        the   magistrate      judge    granted       the     motion,      thus

permitting Shonk to file the Proposed Second Amended Complaint.

       Although Yanmar and Mercury had never consented to proceed

before a magistrate judge, they filed timely objections to the

magistrate judge’s grant of Shonk’s motion to file the Proposed

Second Amended Complaint.              See Fed. R. Civ. P. 72(a).                At this

point, the district court vacated its earlier order of reference

to    the   magistrate       judge.      Upon    consideration         of    Yanmar    and

                                         - 7 -
Mercury’s challenge to the magistrate judge’s grant of Shonk’s

motion     to    file       the    Proposed       Second    Amended     Complaint,       the

district court concluded, in a Memorandum Opinion filed January

16,   2008,     that     the      magistrate      judge’s     decision       was    “clearly

erroneous.”         (J.A.         593).      In   reaching     this   conclusion,        the

district court reasoned as follows:

      On June 26, 2007, this Court dismissed Yanmar and
      Mercury as defendants and denied [Plaintiff’s] motion
      for leave to amend, asserting that the proposed
      amendment was futile because it failed to state a
      claim against Yanmar and Mercury.        In ruling on
      dispositive matters, the Magistrate Judge must rely on
      this Court’s prior adjudication of claims.         The
      Magistrate Judge’s order contradicted this Court’s
      prior   ruling  and   substantially  prejudiced  those
      dismissed from the case.

           Even if the Magistrate Judge had the authority to
      grant the amendment, the proposed amendment should
      have been denied as futile. There are no substantive
      differences between [Plaintiff’s] proposed Amended
      Complaint, which was denied by this Court as legally
      insufficient,   and   his    proposed  Second   Amended
      Complaint.      Accordingly,    Yanmar  and   Mercury’s
      objections will be sustained.

(J.A. 593-94).          In an order accompanying its Memorandum Opinion,

the district court dismissed Yanmar and Mercury from the case.

      In     the       meantime,          Shonk    and     Fountain     had        conducted

discovery.         Fountain ultimately moved for summary judgment on

all   claims.          On    March    5,     2008,   the     district    court       granted

Fountain summary judgment with respect to Shonk’s claim under

the   MMWA      (the    only       remaining       federal    claim     in    the     case).

Mistakenly       believing         that     it    only   possessed      subject       matter

                                             - 8 -
jurisdiction over the remaining two state law claims against

Fountain pursuant to 28 U.S.C. § 1367(a), the district court

dismissed such claims pursuant to 28 U.S.C. § 1367(c).

     Shonk noted a timely appeal.           On appeal, Shonk contends the

district court erred in dismissing his claims against Yanmar and

Mercury as pleaded in the Initial Complaint.               Alternatively, he

contends the district court abused its discretion in refusing to

permit him to proceed in the case under the Proposed Second

Amended   Complaint.       Finally,    Shonk      challenges    the   district

court’s   grant   of   summary   judgment    in    favor   of   Fountain   with

respect to his claim under the MMWA.



                                      II.

     We first address Shonk’s contention that the district court

erred in dismissing, pursuant to Rule 12(b)(6), his claims under

the MMWA, the Maryland UCC, and the Maryland CPA, against Yanmar

and Mercury, as pleaded in the Initial Complaint.                 For reasons

that follow, Shonk’s contention is without merit.

     We review Rule 12(b)(6) dismissals de novo.                Giarratano v.

Johnson, 521 F.3d 298, 302 (4th Cir. 2008).                To survive a Rule

12(b)(6) motion, “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, 129 S. Ct. 1937,

1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

                                   - 9 -
544, 570 (2007)).         “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.”          Id.    “Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements,

do not suffice.”        Id.     Rather, “[f]actual allegations must be

enough to raise a right to relief above the speculative level

. . . .”    Twombly, 550 U.S. at 555.

     Also of relevance to the district court’s Rule 12(b)(6)

dismissals   of    Shonk’s      claims   against   Yanmar   and    Mercury     is

Federal    Rule    of   Civil       Procedure   10(b),   which    provides     as

follows:

     Paragraphs; Separate Statements.     A party must state
     its claims . . . in numbered paragraphs, each limited
     as   far   as   practicable   to   a   single   set  of
     circumstances.   A later pleading may refer by number
     to a paragraph in an earlier pleading.      If doing so
     would promote clarity, each claim founded on a
     separate transaction or occurrence . . . must be
     stated in a separate count . . . .

Fed. R. Civ. P. 10(b).



     A.     Breach of Warranty Claims Under the MMWA Against
            Yanmar and Mercury.

     In relevant part, the MMWA provides that “a consumer who is

damaged by the failure of a supplier [or] warrantor . . . to

comply    with    any   obligation      under   this   chapter,   or   under   a

written warranty [or] implied warranty . . . may bring suit for

                                       - 10 -
damages   and   other    legal    and     equitable      relief--     . . .      in     an

appropriate district court of the United States . . . .”                                15

U.S.C. § 2310(d) (emphasis added).                 The MMWA defines the term

“consumer,”     in   relevant     part,     as    “a    buyer     (other    than      for

purposes of resale) of any consumer product, any person to whom

such product is transferred during the duration of an implied or

written warranty . . . applicable to the product, and any other

person who is entitled by the terms of such warranty . . . or

under   applicable      State    law   to   enforce      against     the    warrantor

. . . the obligations of the warranty . . . .”                        Id. § 2301(3)

(emphasis added).        In turn, the MMWA defines the term “consumer

product,” in relevant part, as “any tangible personal property

which is distributed in commerce and which is normally used for

personal,     family,     or     household        purposes        . . .    .”         Id.

§ 2301(1)(emphasis added).

      The district court dismissed Shonk’s claims under the MMWA

against Yanmar and Mercury because the Initial Complaint failed

to   identify   a    consumer     product     supplied       or    manufactured         by

Yanmar or Mercury.       Implicitly conceding that neither Yanmar nor

Mercury   supplied    nor      manufactured       the   Boat,     Shonk    argues       on

appeal that the district court erred in dismissing his claims

under   the   MMWA   against     Yanmar     and    Mercury,       because       “when    a

specific boat is identified, Yanmar and Mercury should be able

to determine what role they played in the manufacture of the

                                       - 11 -
specific         boat    by   tracing       a     serial      number      or     otherwise.”

(Shonk’s Opening Br. at 14).

      Shonk’s       contention       is     fatally      flawed      in    two       respects.

First,      it    ignores     his   burden       at   the    Rule    12(b)(6)         stage   to

allege sufficient factual matter “to raise a right to relief

above the speculative level . . . .”                        Twombly, 550 U.S. at 555.

At best, Shonk’s allegations in the Initial Complaint pertaining

to    his     claims      under     the     MMWA      against    Yanmar        and     Mercury

constitute “[t]hreadbare recitals of the elements of a cause of

action,       supported        by    mere        conclusory         statements,”         which

decisively fail to meet his pleading burden.                          Iqbal, 129 S. Ct.

at    1940.         Second,     Shonk’s         contention      ignores        Rule    10(b)’s

mandate to state, in a separate count, each claim founded on a

separate transaction or occurrence, “[i]f doing so would promote

clarity.”         Fed. R. Civ. P. 10(b).              Given the fact that Fountain

manufactured the Boat, Yanmar manufactured the Boat’s engines,

and Mercury manufactured the Boat’s stern drives, each claim

under the MMWA against Fountain, Yanmar, and Mercury should have

been stated in a separate count.                        Accordingly, it cannot be

doubted      that       the   district      court      properly      dismissed         Shonk’s

claims against Yanmar and Mercury under the MMWA, as pleaded in

the   Initial       Complaint.            We,    therefore,      affirm        the    district

court’s dismissal of those claims.



                                            - 12 -
       B.      Deceptive and Unfair Trade Practices Claims Under
               the Maryland CPA Against Yanmar and Mercury.

       In    relevant      part,     the    Maryland      CPA     provides      that    “any

person       may   bring   an    action      to    recover      for     injury    or    loss

sustained by him as a result of a practice prohibited by this

title.”       Md. Code Ann., Commercial Law § 13-408(a).                        As pleaded

in the Initial Complaint, Shonk’s claims under the Maryland CPA

all pertain to the sale of the Boat.                   For example, Shonk alleges

that    in    connection      with    the    sale    of     the   Boat,    “Defendant’s

representation that the [Boat] contained a valid warranty, which

would    cause      effective      warranty       repairs    to    be    made    within    a

reasonable time and within the warranty period, was untrue.”

(J.A. 19).         With one irrelevant exception, each violation of the

Maryland CPA alleged by Shonk in the Initial Complaint requires

that the defendant have made the untrue representation about a

“[c]onsumer        good[].”        Md.     Code     Ann.,    Commercial         Law    § 13-

301(2)(i), (iv).

       Here, the district court dismissed Shonk’s claims under the

Maryland CPA against Yanmar and Mercury, because the Initial

Complaint failed to identify a consumer good sold to Shonk by

Yanmar or Mercury.              Shonk relies upon the same arguments in

challenge of the district court’s dismissal of his claims under

the Maryland CPA against Yanmar and Mercury as he does with

respect to the district court’s dismissal of his claims under


                                           - 13 -
the MMWA against Yanmar and Mercury.                     We reject such arguments

upon the same rationale that we just outlined in affirming the

district court’s dismissal of Shonk’s claims under MMWA against

Yanmar and Mercury.             The Initial Complaint cannot be reasonably

read to identify a consumer good sold to Shonk by Yanmar or

Mercury.       Accordingly, we affirm the district court’s dismissal

of   Shonk’s        claims   under     the    Maryland      CPA       against    Yanmar    and

Mercury.



       C.      Breach of Warranty Claims under the Maryland UCC
               Against Yanmar and Mercury.

       Shonk’s claims under the Maryland UCC against Yanmar and

Mercury are for breach of express and implied warranties.                                  Md.

Code Ann., Commercial Law §§ 2-313 to 315.                               The express and

implied warranty provisions of the Maryland UCC relied upon by

Shonk apply only “to transactions in goods . . . .”                                  Id. § 2-

102.    See also id. §§ 2-313 to 315.

       The    district       court     dismissed    Shonk’s           breach    of   warranty

claims       under    the    Maryland        UCC   against       Yanmar        and   Mercury,

because       the     Initial    Complaint         failed        to     identify      a   good

warranted       by     Yanmar     or     Mercury.           In        challenge      to   such

dismissals, Shonk once again relies upon his arguments about how

Yanmar and Mercury should be able to determine what role they

played in the manufacture of the specific boat by tracing a


                                          - 14 -
serial number or otherwise.             We remain unimpressed with such

arguments and reject them on the same grounds that we previously

rejected them in the context of his claims under the MMWA and

the Maryland CPA against Yanmar and Mercury.                     Accordingly, we

affirm   the   district    court’s      dismissal     of    Shonk’s    breach    of

warranty     claims    under   the     Maryland    UCC     against    Yanmar    and

Mercury.



                                       III.

     Shonk     next    challenges,     as   an    abuse    of    discretion,    the

district court’s refusal to permit him to proceed in the case

under the Proposed Second Amended Complaint.                    Shonk’s challenge

is without merit.

     Under     Federal    Rule    of     Civil     Procedure      15(a)(2),     the

district “court should freely give leave [to amend] when justice

so requires.”         Fed. R. Civ. P. 15(a)(2).             We have recognized

that leave to amend a complaint should be denied only when the

amendment would be prejudicial to the opposing party, there has

been bad faith on the part of the moving party, or the amendment

would be futile.         Edwards v. City of Goldsboro, 178 F.3d 231,

242 (4th Cir. 1999).           We review a district court’s denial of

leave to amend a complaint for abuse of discretion.                  Id.

    Here, the district court refused to grant Shonk leave to

proceed in the case under the Second Amended Complaint on the

                                     - 15 -
ground     that   permitting       such    amendment       would     be    futile. 4         We

agree.     To be sure, the Proposed Second Amended Complaint is far

more detailed than the Initial Complaint or the Proposed First

Amended Complaint.              For example, the Proposed Second Amended

Complaint identified Fountain as the manufacturer of the Boat,

Yanmar as the manufacturer of the Boat’s engines, and Mercury as

the manufacturer of the Boat’s stern drives.                         Unfortunately for

Shonk, however, the additional detail is insufficient to render

the    Proposed        Second    Amended     Complaint       non-futile.              Shonk’s

claims against Yanmar and Mercury under the MMWA, the Maryland

CPA, and the Maryland UCC continued to focus solely upon the

Boat.      For    example,       although    Shonk    set       forth     his       breach   of

warranty       claim    against     Yanmar    under    the      MMWA      in    a    separate

count, he did not allege that the Boat’s engines were consumer

products     under      the     MMWA.     Rather,     he   alleged        that       the   Boat

(which the Proposed Second Amended Complaint identifies Fountain

as    having     manufactured       and   warranted)       is    a   consumer         product

under the MMWA.          Because neither Yanmar nor Mercury manufactured

nor warranted the Boat (per Shonk’s allegations in the Proposed

Second Amended Complaint), Shonk’s sole focus on the Boat in his

       4
       Because we uphold the district court’s refusal to grant
Shonk leave to proceed under the Proposed Second Amended
Complaint on the ground of futility, we do not reach the
district court’s alternative holding that the magistrate judge
overstepped his authority in initially granting Shonk leave to
proceed under the Proposed Second Amended Complaint.


                                          - 16 -
claims against Yanmar and Mercury rendered the Proposed Second

Amended Complaint futile.          Accordingly, we uphold, as not an

abuse of discretion, the district court’s refusal to grant Shonk

leave to proceed under the Second Amended Complaint.



                                       IV.

       Lastly,   Shonk   challenges     the    district     court’s    grant   of

summary judgment in favor of Fountain with respect to his breach

of   warranty    claim   under   the   MMWA.      Plaintiff’s    challenge     is

without merit.

       We review the district court’s grant of summary judgment de

novo.     Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281, 286

(4th    Cir.   2004).     A   motion   for     summary   judgment     should   be

granted    “if    the    pleadings,     the     discovery     and     disclosure

materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.”                   Fed. R. Civ. P.

56(c).    “In determining whether a genuine issue of material fact

exists, we must view the evidence in the light most favorable to

the nonmoving party.”         American Arms Int’l v. Herbert, 563 F.3d

78, 82 (4th Cir. 2009).

       In analyzing the merits of Fountain’s motion for summary

judgment with respect to Shonk’s breach of warranty claim under

the MMWA, the district court first concluded that resolution of

                                   - 17 -
whether        the    Boat’s        engines    and     the     exhaust    coupler       were

defectively designed or manufactured required knowledge beyond

that     of     average        laymen,        and     therefore,       required       expert

testimony.           Next,     the     district      court     held    that     the   expert

testimony of Zahn of All States Marine Surveyors proffered by

Shonk did not carry his burden of proof on the issue.

       We affirm on the reasoning of the district court.                              First,

we agree with the district court that the manufacturing and/or

design     defects       at     issue    in    this     case    required      specialized

knowledge in the fields of mechanics and engineering “beyond the

ken of the average layman.”                        Virgil V. Kash N’ Karry Serv.

Corp., 484 A.2d 652, 656 (Md. Ct. Spec. App. 1984).                             Second, we

agree with the district court that the proffered testimony of

Shonk’s expert witness Zahn was insufficient to carry his burden

of proof.        Although Zahn conducted an inspection of the Boat “to

determine the cause of the failure of the exhaust coupler on the

starboard engine and the extent of the damage to both engines,”

he     could    not     identify       the    cause     of   the      exhaust    coupler’s

failure.             (J.A.     343).          In    fact,      Zahn    concluded       that,

“[i]nspection          of     the    exhaust       coupler     revealed    no    cause    of

failure.” (J.A. 344).               As such, Zahn could not give any opinion,

beyond sheer speculation, as to whether any defect in the Boat

existed when it left Fountain’s control.



                                             - 18 -
     In sum, we affirm the district court’s grant of summary

judgment in favor of Fountain with respect to Shonk’s breach of

warranty claim under the MMWA. 5



                                   V.

     In conclusion, we affirm: (1) the district court’s Rule

12(b)(6)   dismissals   of   Shonk’s    claims   against   Yanmar   and

Mercury; (2) the district court’s refusal to permit Shonk to

proceed in the case under the Proposed Second Amended Complaint;

and (3) the district court’s grant of summary judgment in favor




     5
       We note that, in a footnote in its Memorandum Opinion of
March 5, 2008, the district court mentioned an alternative
ground for granting summary judgment in favor of Fountain with
respect to Shonk’s breach of warranty claim under the MMWA.
Specifically, the district court held that “[e]ven if Shonk had
demonstrated that the engine and exhaust were defective, these
components are not covered by Fountain’s warranty.” (J.A. 620).
Given our holding, we need not and do not reach this alternative
ground.


                               - 19 -
of Fountain with respect to his breach of warranty claim under

the MMWA. 6

                                                        AFFIRMED




     6
       One last matter, not raised by either party, is worthy of
attention.   The district court possessed original jurisdiction
over all claims in this case pursuant to diversity jurisdiction.
See 28 U.S.C. § 1332.     Accordingly, when the district court
declared that it “obtained supplemental jurisdiction over
Shonk’s state law claims based upon his MMWA claim,” (J.A. 621
n.7), the district court was mistaken.       Concomitantly, the
district court was mistaken in believing that it possessed
discretion under 28 U.S.C. § 1367(c)(3) to dismiss Shonk’s
claims under the Maryland UCC and the Maryland CPA against
Fountain. The district court should have addressed such claims
on the merits.     We nonetheless affirm the district court’s
adverse disposition of these claims, because they are merely
derivative of Shonk’s failed breach of warranty claim under the
MMWA against Fountain.


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