United States District Court, E.D. Washington
ORDER DENYING MOTION TO REMAND; DENYING MOTION TO
CONTINUE; GRANTING MOTIONS TO DISMISS
O. RICE, CHIEF UNITED STATES DISTRICT JUDGE
THE COURT are Defendants Love Chevrolet and Darrin
Taylor's Motion to Dismiss (ECF No. 8) and Motion to
Continue Hearing on Plaintiff's Motion to Remand (ECF No.
17); Defendants Gettel Ocala and Bobby Watts' Motion to
Dismiss (ECF No. 25); and Plaintiff Multistar Industries'
Motion to Remand (ECF No. 14). The matters were submitted for
consideration without oral argument. The Court has reviewed
the record and files herein and is fully informed. For the
reasons discussed below, Plaintiff's Motion to Remand
(ECF No. 14) is denied,
Defendants Love Chevrolet and Darrin Taylor's Motion to
Continue Hearing on Plaintiff's Motion to Remand
(ECF No. 17) is denied as
moot, and the Motions to Dismiss (ECF Nos.
8, 25) are granted.
case arises out of Plaintiff Multistar Industries'
(“Multistar”) purchase of a 2016 Cadillac CTS-V
from Defendant BMW of Ocala (“Ocala”) and the
vehicle's breakdown shortly thereafter.
a Washington corporation acting through its president, Peter
Vanourek, observed an internet advertisement for the purchase
of the Cadillac from Ocala. ECF No. 13 at ¶¶ 3,
13-14. Ocala is incorporated in and operates out of Florida.
ECF No. 13 at ¶ 4. Ocala advertises locally through
print and other sources, but its only national advertising
consists of posting its cars to third-party websites such as
cars.com, autotrader.com, and cargurus.com. ECF No. 25 at 3.
Ocala has no physical presence in the state of Washington and
has no employees who work in Washington. ECF No. 25 at 4.
Defendant Bobby Watts, general manager of Ocala, is a
resident of Florida and has never traveled to or performed
job duties in Washington. Id.
and Ocala entered into a contract for the purchase and sale
of the vehicle - including the remaining balance of the
manufacturer's warranty - via “telephone, fax,
email and the internet” from their respective locations
in Florida and Washington. ECF No. 13 at ¶¶ 14-18.
Plaintiff began to drive the vehicle back to Washington, but,
within 48 hours, the vehicle malfunctioned in Chattanooga,
Tennessee. ECF No. 13 at ¶¶ 20-21. Plaintiff
contacted Integrity Cadillac of Chattanooga
(“Integrity”) to look at the vehicle. ECF No. 13
at ¶ 21. Integrity examined the vehicle and determined
that it had “a cracked engine head, head damage and [a]
blown head gasket.” ECF No. 13 at ¶ 24. According
to Plaintiff, Integrity's “position was that the
engine damage was a result of several aftermarket
modifications that had been added to the engine prior to
plaintiff's purchase.” ECF No. 13 at ¶ 24.
Integrity informed Plaintiff that the “significant
aftermarket modifications  had voided the vehicle's
factory warranty on the engine, ” so the damage was not
covered by the warranty. ECF No. 13 at ¶ 25. Based on
Integrity's report, Plaintiff argues Ocala misrepresented
the fact that the vehicle came with a factory
warranty. ECF No. 13 at ¶ 26.
and Watts “were informed of the information provided by
[Integrity] and the absence of warranty coverage.” ECF
No. 13 at ¶ 26. According to Plaintiff, Ocala and Watts
told Plaintiff “it's not our problem” and
“attempted to argue” that Plaintiff “heard
the car run” and that this “somehow caused
[Plaintiff] to know that the car was not covered under the
manufacturer's warranty.” ECF No. 13 at ¶ 26.
Plaintiff alleges that, “[a]s the vehicle had
significant modifications that were undisclosed to plaintiff
at the time of sale that voided the manufacturer's
warranty, plaintiff demanded rescission of the sales contract
and refund of his purchase money” but Ocala and Watts
“refused to even respond to plaintiff's written
demand.” ECF No. 13 at ¶ 27. The car then remained
at Integrity. ECF No. 13 at ¶ 29.
approximately three months, and after Integrity requested
Plaintiff retrieve the vehicle (to no avail), Ocala arranged
for the vehicle to be brought back to Florida from Tennessee.
ECF No. 13 at ¶¶ 29-30. Thereafter, Ocala arranged
for Love Chevrolet (“Love”) in Florida to repair
the vehicle. ECF No. 13 at ¶ 30. Love is a Florida
corporation engaged in the business of selling and repairing
motor vehicles in Florida. ECF No. 8 at 3. Love does not
conduct any business in Washington or advertise in the state.
ECF No. 8 at 3-4. Defendant Darrin Taylor is employed by Love
and was the service advisor for the repair of Plaintiff's
vehicle. ECF No. 10 at ¶¶ 1, 5.
performed the repairs and represented that the “vehicle
is in full GM specs and return to all factory setting. All
factory warranties are in full affect [sic] with no
blocks.” ECF No. 13 at ¶ 30 (brackets in
original). According to Plaintiff, Love made additional
“warranty specific representations” on the
invoice. ECF Nos. 13 at ¶ 31; 13-2 (invoice). In July
2017, Watts informed Plaintiff that the “vehicle had
been repaired and was ready for pickup[.]” ECF No. 13
at ¶ 33. Plaintiff offered to accept the vehicle if
Ocala “would pay plaintiff's losses, including
attorney fees and other out of pocket expenses, as well as
warranty the vehicle an additional five months after
expiration of the factory warranty due to the vehicle sitting
for five months after it broke down in Tennessee.” ECF
No. 13 at ¶ 34. Ocala and Watts “refused”
the demand. ECF No. 13 at ¶ 35.
sought legal recourse and demanded arbitration with Ocala
under the terms of the sales agreement. ECF No. 13 at ¶
36; see ECF No. 13-4. On May 1, 2018, the arbitrator
found for Ocala and awarded Ocala attorney fees in the amount
of $23, 393. ECF Nos. 13 at ¶ 40; 13-4 at 2-6. Plaintiff
complains that the arbitration award is defective in that the
arbitrator (1) relied upon “intentionally false
evidence” (the declaration of Watts submitted by Ocala)
and (2) reached incorrect conclusions with respect to other
factual findings. ECF No. 13 at ¶¶ 37-41. Plaintiff
moved to vacate the arbitration award in state court in
Florida. ECF No. 11-4 at 2-14. The Florida court denied
Plaintiff's motion and affirmed the arbitration award.
ECF No. 11-6 at 2. Plaintiff did not appeal this decision.
ECF No. 11-6 at 2.
the arbitration, Plaintiff again picked up the vehicle from
Ocala in Florida and set out for Washington. ECF No. 13 at
¶ 42. Other than an issue with the vehicle's climate
control, the vehicle operated for roughly four months before
the vehicle stopped working, again. ECF No. 13 at
¶¶ 42-44. Plaintiff had the vehicle towed to
McCurley Cadillac (“McCurley”) in Washington
State. ECF No. 13 at ¶ 44. Upon inspection, McCurley
determined that the “starter bolts were not
‘torqued' correctly when installed by [Love]”
and that “[b]ecause of this GM (Cadillac) will not
warranty the engine (it requires a new block to be properly
repaired), as it is not a material defect, but a technical
error of the installing technician at [Love].” ECF No.
13 at ¶ 45. According to Plaintiff, “McCurley
service personnel made contact multiple times with [Love] to
inform them of the problem [but Love] insisted that it
wasn't ‘their problem,' and that the vehicle
was indeed covered by warranty.” ECF No. 13 at ¶
46. Based on this, as with Ocala, Plaintiff believes Love
misrepresented the warranty status because the warranty did
not cover the engine damage. ECF No. 13 at ¶ 47.
9, 2019, Plaintiff brought suit in the Superior Court of
Washington in Adams County. ECF No. 1-1. Plaintiff asserted
claims against Ocala, Love, and Darren Taylor (an employee
and agent of Love) under Washington's Deceptive and
Unfair Trade Practices Act, ECF No. 1-1 at ¶¶
47-55; against Ocala for negligent misrepresentation, ECF No.
1-1 at ¶¶ 56-61; against Ocala under the Washington
Uniform Commercial Code, ECF No. 1-1 at ¶¶ 62-69;
against Ocala for breach of contract, ECF No. 1-1 at
¶¶ 83-88; and against Ocala, Watts, and Love under
Washington's Consumer Protection Act, ECF No. 1-1 at
also requested declaratory judgment as to a series of
questions that go to (1) the merits of the case and other
incidental issues underlying the claims and (2) the
legitimacy of the underlying arbitration. ECF No. 13 at
¶¶ 70-82 (requesting declaration as to the status
of the warranty at differing times, the nature of the
complained of affidavit and its effect on the arbitration
proceeding, the legal effect - e.g., whether rescission is
proper, whether Plaintiff was deprived of the benefit of the
purchase - of the alleged false representation(s), General
Motor's liability for the complained of acts, whether
Love properly repaired the vehicle).
24, 2019, Defendants Love and Taylor removed Plaintiff's
claim to federal court. ECF No. 1 at 1-5. On June 20, 2019,
Plaintiff submitted an Amended Complaint identifying McCurley
as a named Defendant and asserting the same above-identified
claims along with an additional request that the Court
“declare whether McCurley Cadillac is correct in that
the engine is not under factory warranty” or, in the
alternative, “to declare [McCurley] to have erred and
to assess whatever damages have resulted . . . .” ECF
No. 13 at ¶ 78. On June 10, 2019, Defendants Love and
Taylor filed a Motion to Dismiss (ECF No. 8). On June 20,
2019, Plaintiff filed a Motion to Remand (ECF No. 14). On
June 21, 2019, Defendants Love and Taylor filed a Motion to
Continue Hearing on Plaintiff's Motion to Remand (ECF No.
17). On July 3, 2019, Defendants Ocala and Watts filed a
Motion to Dismiss (ECF No. 25). These Motions are now before
Motion to Remand
requests the Court remand this case back to state court. ECF
No. 14. Plaintiff argues that remand is necessary because
Plaintiff is seeking to join a non-diverse party, McCurley,
as a defendant and the sole basis for federal subject matter
jurisdiction is diversity. ECF No. 14 at 1-3.
a defendant may remove a case to federal court if the federal
court would have subject matter jurisdiction over one or more
of the plaintiff's claims pursuant to 28 U.S.C.
§§ 1331 (federal question) or 1332 (diversity of
citizenship). See 28 U.S.C. § 1441(a), (b).
However, where a case has been removed to federal court and
the plaintiff subsequently “seeks to join additional
defendants whose joinder would destroy subject matter