                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0988n.06

                                           No. 13-3364

                          UNITED STATES COURT OF APPEALS
                                                                                       FILED
                                                                                  Nov 19, 2013
                               FOR THE SIXTH CIRCUIT
                                                                              DEBORAH S. HUNT, Clerk

NANCY L. KUNS,                                           )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellant,                              )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE NORTHERN
v.                                                       )        DISTRICT OF OHIO
                                                         )
FORD MOTOR COMPANY,                                      )                          OPINION
                                                         )
       Defendant-Appellee.                               )




BEFORE:        COLE, CLAY, Circuit Judges; BERTELSMAN, District Judge.*

       COLE, Circuit Judge. Plaintiff-Appellant Nancy Kuns appeals the district court’s order

granting summary judgment in favor of Defendant-Appellee, Ford Motor Company, on Kuns’s

claims that Ford violated the federal Magnuson-Moss Warranty Act and breached its express

warranty under Ohio law. For the reasons addressed below, we affirm.

                                       I. BACKGROUND

A. Factual Background

       In December of 2009, Kuns purchased a new 2010 Mercury Mariner from the Liberty Ford

dealership in Vermillion, Ohio. About a year later, as Kuns’s husband was closing the rear liftgate,

its glass window suddenly “exploded and shattered.” (Id.) After looking over the warranty supplied



       *
         The Honorable William O. Bertelsman, United States Senior District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 13-3364
Nancy L. Kuns v. Ford Motor Company

by Ford, Kuns and her husband determined that it would not cover the broken window, so they took

the car to a repair shop not associated with Ford to have the glass replaced. Then, just over a month

after the first incident, the rear window shattered again, this time while Kuns’s daughter was closing

the liftgate. At this point, Kuns became aware that other owners of the 2010 Mariner had

experienced similar breakages, and she asked the dealership to replace the window at no charge to

her. The dealership initially refused, explaining that the initial repair had not been made by a Ford-

authorized entity, but after Kuns spoke with another Ford representative by phone and threatened

to stop making payments on the vehicle, Ford agreed to replace the window. Liberty Ford then

completed the repair.

       In the course of this litigation, Kuns discovered that, by the fall of 2010, Ford was aware of

problems with the rear liftgate glass. Over the following months, Ford issued several Technical

Service Bulletins (“TSBs”) and other documents notifying Ford dealerships and the National

Highway Traffic Safety Administration (“NHTSA”) of the defect and instructing dealerships to

replace the glass using a revised striker design—essentially, a different means of affixing the glass

to the liftgate. In one document, Ford acknowledged that “warranty coverage normally does not

include glass repairs,” but announced that, due to the defect, “Ford would cover the cost of glass

repair” under its warranty “if there is no evidence of impact or external damage.”

B. Procedural History

       In July of 2011, Kuns filed her complaint against Ford in the Northern District of Ohio

alleging violations of the Magnuson-Moss Warranty Act (“MMWA”), breach of express warranty,

and breach of implied warranty. The district court requested briefing to determine whether it had

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No. 13-3364
Nancy L. Kuns v. Ford Motor Company

subject matter jurisdiction. The court determined that it did not have jurisdiction under the MMWA,

15 U.S.C. § 2031 et seq, which requires a class to consist of at least one hundred named plaintiffs.

See Kuns v. Ford Motor Co., 926 F. Supp. 2d 976, 980 (N.D. Ohio 2013). However, after allowing

Kuns to file an amended complaint, the court held that it nevertheless had jurisdiction pursuant to

the Class Action Fairness Act (“CAFA”). Neither party now challenges this court’s or the district

court’s jurisdiction.

        After resolving the jurisdictional question, the district court granted Ford’s motion for

summary judgment. The court determined that Ohio law applied, and held that Kuns could not

successfully pursue a claim that Ford had violated the MMWA or Ohio law pertaining to warranties

because Kuns had failed to give Ford a reasonable opportunity to repair the defect after the first

breakage, and because Ford’s reluctance to repair the window after the second breakage was

justified by the fact that Ford had not made the prior repair. Additionally, the court rejected Kuns’s

argument that Ford’s issuance of TSBs acknowledging a defect in the window design “either

expanded the new vehicle warranty or created an additional, separate warranty.” Lastly, the court

dismissed Kuns’s claims that Ford violated express and implied warranties, finding that no express

warranty existed, and that the applicable Ohio law does not recognize a cause of action for breach

of implied warranty where the parties are not in privity of contract. Kuns appeals the district court’s

dismissal of her claims based on the MMWA and the express warranty only.

                                         II. DISCUSSION

A. Federal Court Jurisdiction




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Nancy L. Kuns v. Ford Motor Company

       As a threshold matter, we must ensure that we have subject matter jurisdiction over Kuns’s

claims, even though neither party raises the question on appeal. See Answers in Genesis of Ky., Inc.

v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009) (Cole, Gibbons, Bell, D.J.)

(“[F]ederal courts have a duty to consider their subject matter jurisdiction in regard to every case

and may raise the issue sua sponte.”). The district court, in its memorandum opinion, identified two

potential problems with its jurisdiction: first, the jurisdictional requirements of the Magnuson-Moss

Warranty Act, and second, the amount-in-controversy requirement imposed by the Class Action

Fairness Act.

       The district court held that it had jurisdiction over Kuns’s claims under the CAFA and not

under the MMWA. To bring a class action pursuant to the MMWA, a complaint must list at least

one hundred named plaintiffs. See 15 U.S.C. § 2310(d)(3). Kuns is the only named plaintiff in her

case. However, the court reasoned that the CAFA—the more recent of the two statutes— “can

render a district court a ‘court of competent jurisdiction’ and permit it to retain jurisdiction where

the CAFA requisites are met but the MMWA requisites are not.” Kuns, 926 F. Supp. 2d at 980.

       As the district court acknowledged, our circuit has not yet addressed the jurisdictional

interplay of the CAFA and the MMWA. Nor, apparently, have most of our sister circuits. But see

Birdsong v. Apple, Inc., 590 F.3d 955, 957 n.1 (9th Cir. 2009) (finding that district court had

jurisdiction pursuant to the CAFA over purported class action alleging violations of the MMWA and

state law). However, district courts have, as a general rule, held that the CAFA effectively

supercedes the MMWA’s more stringent jurisdictional requirements. See, e.g., Keegan v. Am.

Honda Motor Corp., 838 F. Supp. 2d 929, 954–55 (C.D. Cal. 2012) (citing several other cases);

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No. 13-3364
Nancy L. Kuns v. Ford Motor Company

Stella v. LVMH Perfumes & Cosmetics USA, Inc., 564 F. Supp. 2d 833, 837–38 (N.D. Ill. 2008);

McCalley v. Samsung Elecs Am., Inc., No. 07-2141 (JAG), 2008 WL 878402, at *5 (D.N.J. Mar. 31,

2008); Chavis v. Fidelity Warranty Servs., Inc., 415 F. Supp. 2d 620, 626 (D.S.C. 2006) (“CAFA

was passed with the clear intention of expanding federal court jurisdiction over class actions”

(internal quotation marks omitted)); see also S. Rep. No. 109-14, at 27 (2005), reprinted in 2005

U.S.C.C.A.N. 3, 27 (describing the CAFA as a “narrowly-tailored expansion of federal diversity

jurisdiction to ensure that class actions that are truly interstate in character can be heard in federal

court”).    We agree that the district court had jurisdiction notwithstanding the MMWA’s

jurisdictional limitations.

        Turning to the second jurisdictional hurdle, the CAFA imposes an amount-in-controversy

requirement of $5 million in total.1 The district court held that Kuns’s amended complaint satisfied

this condition by “clarif[ying] that the size of the class at the time of the original complaint was over

800,000 members”—encompassing all individuals nation-wide who bought, leased, or otherwise

acquired an affected vehicle, and who either suffered a broken window or still retain the vehicle in

a defective state. Given the size of the class, “any relief exceeding $5.78 per class member” would

satisfy the requirement. Kuns, F. Supp. 2d at 982. Kuns alleges that repair of her shattered window

cost her $250 and her insurance company $358.52. We “do not dismiss a complaint for lack of

subject matter jurisdiction unless it appears to a legal certainty that the plaintiff[s] in good faith


        1
         The CAFA imposes no minimum amount-in-controversy on individual named plaintiffs and
requires only minimal diversity of citizenship. 28 U.S.C. § 1332(d)(2)(A). Because Kuns is an Ohio
citizen and Ford is incorporated in Delaware and has its principal place of business in Michigan,
(Kuns Br. 2), this requirement is met.

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No. 13-3364
Nancy L. Kuns v. Ford Motor Company

cannot claim the jurisdictional amount.” Charvat v. NMP, LLC, 656 F.3d 440, 447 (6th Cir. 2011).

Therefore, the district court correctly held that it had jurisdiction pursuant to the CAFA, 28 U.S.C.

§ 1332(d)(2). We have jurisdiction under 28 U.S.C. § 1291, authorizing appeals of final decisions

from the district courts.

B. Standard of Review

        We review the district court’s grant of summary judgment de novo. United States v. Murphy,

937 F.2d 1032, 1036 (6th Cir. 1991). Summary judgment may be granted only where “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). When a party bears the burden of proof at trial and “fails to make a showing

sufficient to establish the existence of an element essential to that party’s case,” summary judgment

is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary

judgment “bears the initial responsibility” of identifying those portions of the pleadings and the

record demonstrating that no genuine issue of material fact exists. Id. at 323. The monmoving party

must then respond by “set[ting] forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (internal quotation marks omitted).

C. Violation of Magnuson-Moss Warranty Act

        The MMWA imposes certain requirements on manufacturers and merchants who choose to

issue consumer warranties. See generally 15 U.S.C. § 2301 et seq. For example, the Act mandates

disclosure of particular information in warranties, requires that warranties be identified as either full

or limited, and requires warrantors to remedy defective products “within a reasonable time and

without charge.” 15 U.S.C. §§ 2302–2304. Further, the MMWA creates a federal right of action

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No. 13-3364
Nancy L. Kuns v. Ford Motor Company

for violation of the Act’s terms, as well as for breaches of warranty arising from state substantive

law. 15 U.S.C. § 2310(d)(1). Therefore, the elements that a plaintiff must establish to pursue a

cause of action for breach of warranty under the MMWA are the same as those required by Ohio

law. See Abele v. Bayliner Marine Corp., 11 F. Supp. 2d 955, 961 (N.D. Ohio 1997).

       Kuns argues that Ford violated the MMWA because it “inadequately disclose[d] the terms

of the [original] warranty,” specifically, whether breakage of the rear window was covered, and

because it did not communicate the contents of its TSBs to car owners, thereby informing them that

the warranty covered glass breakages caused by the defect. Moreover, Kuns alleges that Ford

“refused to authorize the necessary repairs to the rear window at no cost and without persistence by

the consumer” following the second breakage.

       We begin with Kuns’s claim regarding the first incident. To state a claim under the MMWA,

a plaintiff must present a “sustainable claim for breach of warranty.” Temple v. Fleetwood Enters.,

Inc., 133 F. App’x 254, 268 (6th Cir. 2005). Accordingly, “a plaintiff must demonstrate that (i) the

item at issue was subject to a warranty; (ii) the item did not conform to the warranty; (iii) the seller

was given reasonable opportunity to cure any defects; and (iv) the seller failed to cure the defects

within a reasonable time or a reasonable number of attempts.” Id. (citing Abele, 11 F. Supp. 2d at

961). Indeed, the requirement that a warrantor have an opportunity to cure is codified at section

2310(e), which states that “no action . . . may be brought under subsection (d) of this section for

failure to comply with any obligation under any written or implied warranty . . . unless the person

obligated under the warranty . . . is afforded a reasonable opportunity to cure such failure to

comply.” 15 U.S.C. § 2310(e); see also Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775, 781

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No. 13-3364
Nancy L. Kuns v. Ford Motor Company

(7th Cir. 2011) (“To bring an action under § 2310(d)(1), the consumer must give the warrantor a

reasonable opportunity to cure its failure to comply with an obligation under any written or implied

warranty.”) (internal quotation marks omitted); Walsh v. Ford Motor Co., 807 F.2d 1000, 1004

(D.C. Cir. 1986). With respect to class actions, “such reasonable opportunity [to cure] will be

afforded by the named plaintiffs.” 15 U.S.C. § 2310(e).

       As the district court correctly determined, Kuns did not give Ford the opportunity to cure the

initial defect in her rear window following the first breakage. Rather, as Kuns explains, her husband

“reviewed the written warranty provided with the vehicle and concluded . . . that the rear glass

breakage was not covered.” Kuns then took the vehicle to a repair shop not authorized by Ford.

Kuns argues that any request for a cure would have been futile in light of Ford’s policy that window

breakages were not typically covered by the new vehicle warranty. (Kuns Am. Compl., R.32-2,

PageID 578; Ford Reply, R.29; PageID 461.) But Kuns does not cite—and we cannot locate—any

case law indicating that this statutory requirement can be waived if a plaintiff subjectively

determines that demand would be futile and does not so much as request the seller to cover the

necessary repair. Moreover, at the time of the first breakage, Ford had already issued TSBs

instructing its dealers that problems with the rear liftgate window were covered by the warranty.

Thus, we agree with the district court, and we need not reach the question of whether Ford’s

warranty or other disclosures meet the requirements of the MWAA. Kuns has no cognizable claim

for the first breakage.

       Turning to the second breakage, the district court noted that, although Kuns may have

“raise[d] a question of whether Ford cured the defect in a reasonable time and number of attempts,”

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No. 13-3364
Nancy L. Kuns v. Ford Motor Company

Kuns did not show that the replacement window, installed by a third party, was covered by Ford’s

warranty. See Temple, 133 F. App’x at 268 (requiring showing that “the item at issue was subject

to a warranty”). Kuns argues that the warranty still applies because the defect pertains to the design

of the window—“the manner in which Ford affixed the rear window components to the glass”—

rather than to the window itself.

       We agree with the district court’s dismissal of Kuns’ claim, but for different reasons. Ford’s

warranty contains the following provision:

       [I]f your Ford vehicle is properly operated and maintained, and was taken to a Ford
       dealership for a warranted repair during the warranty period, then authorized Ford
       Motor Company dealers, will, without charge, repair, replace, or adjust all parts on
       your vehicle that malfunction or fail during normal use during the applicable
       coverage period due to a manufacturing defect in factory-supplied materials or
       factory workmanship.

It further states that the warranty “does not cover any damage caused by . . . the installation or use

of a non-Ford Motor Company part.” However, as Kuns points out, it was not the window itself that

was defective, but the design of the liftgate components, as Ford itself acknowledged in its

communications with the NHTSA. Therefore, it is a question of fact whether Kuns’s second

breakage was “caused by . . . the installation or use” of a non-Ford part, such that the warranty

would not cover a second repair of the glass.

       Nevertheless, Ford did repair the second breakage without charge to Kuns. Granted, it took

some effort on her part: Kuns states that she “had more than one conversation” with Ford

representatives, and that she was originally told that the warranty did not apply because she

previously had the window replaced by a non-Ford servicer. However, after threatening to stop



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No. 13-3364
Nancy L. Kuns v. Ford Motor Company

making payments on her car, Kuns received a phone call from the dealership “the next day” agreeing

to replace the glass at no charge. A copy of Kuns’ service invoice, included in the record, indicates

that the dealership accepted her vehicle for repair no later than January 31, 2011—three days after

the breakage, which occurred on a Saturday—and that it completed the repair by that following

Saturday, February 4. We accordingly decline to find a genuine issue of material fact as to whether

the dealership “failed to cure the defects within a reasonable time and a reasonable number of

attempts.” Temple, 133 F. App’x at 268; cf. Abele, 11 F. Supp. 2d 955, 961–62 (noting that whether

a seller has been given a reasonable opportunity to cure is normally a question of fact, but granting

summary judgment where “Plaintiff attempted to revoke acceptance” immediately after the second

product failure and “refus[ed] to afford Defendant a second opportunity to repair or replace” the

defective component). In light of the fact that the broken window was a non-factory part, the

dealership’s initial refusal to replace it was not unreasonable, and it is uncontroverted that Kuns’s

vehicle was repaired within a week of the breakage.

       Finally, Kuns alleges that Ford engaged in an additional violation of the MMWA by failing

to inform vehicle owners of the conclusion it reached in its TSBs, that is, that rear window breakages

due to the design flaw were covered by Ford’s new vehicle warranty. Kuns points to regulations

promulgated under the MMWA, specifically 16 C.F.R. § 701.3, which require warrantors to identify

the “components covered by[,] and where necessary for clarification, excluded from the warranty.”

However, Kuns first raised this claim in her response to Ford’s motion for summary judgment, and

did not include it in her subsequent amended complaint. The portion of Kuns’s amended complaint

addressing the MMWA focuses solely on the vehicles’ defective performance, not on Ford’s

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No. 13-3364
Nancy L. Kuns v. Ford Motor Company

obligations to disclose particular information. While the district court considered this claim, and

dismissed it on the basis that the TSBs are not considered warranties within the meaning of the

MMWA, the court need not have reached it at all, and we decline to do so. See Carter v. Ford

Motor Co., 561 F.3d 562, 568 (6th Cir. 2009); Tucker v. Union of Needletrades, Indust. & Textile

Emps., 407 F.3d 784, 788 (6th Cir. 2005) (“A non-moving party plaintiff may not raise a new legal

claim for the first time in response to the opposing party’s summary judgment motion.”) (citation

omitted). We affirm the district court’s grant of summary judgment to Ford on Kuns’s MMWA

claims.

D. Breach of Express Warranty

          As noted above, the elements a plaintiff must show to pursue a breach-of-warranty claim in

Ohio are the same as those required by the MMWA. See Abele, 11 F. Supp. 2d at 961. These

include the requirement that the seller have a reasonable opportunity to cure the defect and that it

fail to do so. See id. Thus, Kuns cannot prevail on a cause of action pertaining to the express

warranty for all of the reasons addressed above. The district court correctly dismissed Kuns’s state-

law claim.

                                        III. CONCLUSION

          We affirm the district court’s grant of summary judgment in favor of Ford.




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