Shonk v. Fountain Power Boats , 338 F. App'x 282 ( 2009 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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.
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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.
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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.
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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,
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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.
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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
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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.
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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.
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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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