                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0522n.06

                                           No. 16-2769


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
RICHARD ROSENBAUM,                                       )                      Sep 12, 2017
                                                         )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                              )
                                                         )
v.                                                       )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
TOYOTA MOTOR SALES, U.S.A., INC.,                        )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF MICHIGAN
       Defendant-Appellee.                               )
                                                         )
                                                         )

BEFORE:        COLE, Chief Judge; BATCHELDER and MOORE, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Appellant Richard Rosenbaum purchased

a Prius Plug-In Hybrid Electric vehicle, manufactured by Appellee Toyota Motor Sales, U.S.A.,

Inc. (“Toyota”). Rosenbaum was not satisfied with the hybrid vehicle because he could not

complete his daily commute in electric-only mode, and the vehicle would not run in electric-only

mode when the outside temperature fell below fifty-five degrees Fahrenheit. He filed suit,

raising contract, warranty, and Michigan Consumer Protection Act (“MCPA”) claims and now

appeals the district court’s dismissal of two of those claims. We affirm.

       The Prius Plug-In Hybrid Electric is a hybrid vehicle that can run on both electric charge

and gasoline, with an enhanced battery capacity to allow for extended electric-only use. On July

18, 2012, Rosenbaum purchased a Prius Plug-In from Page Imports, Inc., in Southfield,

Michigan. Rosenbaum alleged that “[p]rior to [his] purchase, TOYOTA specifically represented

that the fully electric range was at minimum thirteen (13) miles on its website and through
No. 16-2769
Rosenbaum v. Toyota Motor Sales, USA

various other marketing and advertising mediums and makes no mention of the limitation

regarding the outdoor temperature and the vehicles [sic] ability to operate in certain climates.”1

He alleged that he purchased the vehicle to drive “his 12.07 mile trip from his home to his office

without using the gasoline engine.” However, after Rosenbaum’s purchase, he discovered that

he could travel only eight to ten miles while using the vehicle in electric-only mode and that the

vehicle would not operate in electric-only mode at all when the outside temperature fell below

fifty-five degrees Fahrenheit. Based on these discoveries, Rosenbaum alleged that the “vehicle

did not perform as warranted and represented in that it has repeatedly failed to meet the specific

electric mileage warranted and represented by [Toyota] due to defective parts and workmanship,

as well as the ability to function in electric mode in temperatures below fifty-five (55) degrees

Fahrenheit.”

        Rosenbaum filed a purported class action suit against Toyota in the United States District

Court for the Eastern District of Michigan, alleging three claims: (1) breach of contract;

(2) breach of express and implied warranties of merchantability; and (3) violation of the MCPA.

The district court dismissed the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The

district court concluded that Rosenbaum failed to state a claim for breach of contract or breach of

express warranty because Rosenbaum failed to allege that he was in privity with Toyota. The

district court also found that Rosenbaum had failed to state a claim that Toyota had breached the

implied warranty of merchantability, because he did not allege facts showing that the Prius Plug-

In was unfit for its ordinary purpose. Specifically, the district court determined that Rosenbaum

had failed to state a claim because he did not allege facts regarding the average quality of the
1
  Rosenbaum also alleged in his complaint that Toyota “conducted a marketing campaign stating that the Prius Plug-
In can operate for up to thirteen (13) miles on a full charge.” It therefore appears that Rosenbaum received
conflicting information about the vehicle. However, as this matter is before us on review of an order granting a
motion to dismiss, we accept Rosenbaum’s factual allegations as true and view the complaint in the light most
favorable to him. See Moody v. Mich. Gaming Control Bd., 847 F.3d 399, 402 (6th Cir. 2017).


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Rosenbaum v. Toyota Motor Sales, USA

vehicle in the industry or that his vehicle was below average quality. Finally, the district court

determined that Toyota’s alleged conduct was exempt from the MCPA because federal and state

law “specifically authorized” and governed Toyota’s advertisements. See Mich. Comp. Laws

§ 445.904(1).

        Rosenbaum then filed a motion for relief from judgment under Federal Rule of Civil

Procedure 60(b)(1) on his claim for breach of the implied warranty of merchantability, raising

new arguments directed, not toward merchantability, but toward the hybrid vehicle’s unique

purpose and the circumstances of his purchase of the vehicle.            The district court denied

Rosenbaum’s motion for relief, explaining that these new arguments were irrelevant to his

implied warranty-of-merchantability claim. Instead, the district court explained, such arguments

were more appropriate for a claim for breach of the implied warranty of fitness for a particular

purpose—a claim that Rosenbaum had not alleged in his complaint. Rosenbaum timely appealed

the district court’s dismissal order and order denying the motion for relief.

        We review for abuse of discretion a district court’s denial of a Rule 60(b) motion for

relief from judgment, and our review does not encompass the merits of the underlying judgment.

See Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). “Rule 60(b) does not allow a

defeated litigant a second chance to convince the court to rule in his or her favor by presenting

new explanations, legal theories, or proof.” Id. (citation omitted).

        On appeal, Rosenbaum repeats the arguments regarding the hybrid vehicle’s unique

purpose and the circumstances of his purchase that he raised in his Rule 60(b)(1) motion.

Rosenbaum, however, has neither argued nor demonstrated any basis on which we could

conclude that the district court erred in its determination that Rosenbaum’s new arguments did

not support a merchantability claim and that Rosenbaum had never pled a fitness-for-particular-



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Rosenbaum v. Toyota Motor Sales, USA

purpose claim. Nor has he provided any other basis for a conclusion that the district court

abused its discretion in denying his Rule 60(b)(1) motion. We therefore consider Rosenbaum’s

appeal of the order denying his motion for relief waived. See Langley v. DaimlerChrysler Corp.,

502 F.3d 475, 483 (6th Cir. 2007).

          Moreover, on the merits of Rosenbaum’s Rule 60(b)(1) arguments, the district court did

not err. The implied warranty of merchantability is distinct from the implied warranty of fitness

for a particular purpose under Michigan law. See Mich. Comp. Laws § 440.2314 (detailing the

implied warranty of merchantability); Mich. Comp. Laws § 440.2315 (describing the separate

implied warranty of fitness for a particular purpose); Bosway Tube & Steel Corp. v. McKay

Mach. Co., 237 N.W.2d 488, 490–91 (Mich. Ct. App. 1975). Rosenbaum did not allege a claim

for breach of the warranty of fitness for a particular purpose. Accordingly, we find that the

district court did not abuse its discretion by rejecting Rosenbaum’s arguments.

          To the extent that Rosenbaum has properly presented other arguments, those arguments

are meritless. After carefully reviewing the record, the applicable law, and the parties’ briefs, we

are convinced that the district court did not err in its conclusions. The district court’s orders

carefully and correctly set out the law governing the issues raised and clearly articulate the

reasons underlying its decisions. Thus, issuance of a full written opinion by this court would

serve no useful purpose. Accordingly, for the reasons stated in the district court’s orders, we

affirm.




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