Motion to Dismiss Federal Odometer Act Class Action Denied

Womack v. Nissan North America, Inc., --- F.Supp.2d ----, 2007 WL 5160791(E.D.Tex. Feb 16, 2007) (NO. 2:06-CV-479-DF)
Judge: David Folsom
Holding: Motion to Dismiss for Lack of Subject Matter Jurisdiction DENIED
This is a class action in which the plaintiff claims that the defendant makes vehicles that violate the Federal Odometer Act because they allegedly inflate the mileage driven by 2% over the actual mileage driven, thus reducing the value of the warranties and diminishing resale value.  Judge Folsom found that the plaintiffs stated a sufficient claim to confer standing, and accordingly denied the motion to dismiss for lack of subject matter jurisdiction.  Judge Folsom also denied the 12(b)(6) motion, noting that an issue of fact existed as to how much inflation occurs, as well as how much inflation is permissible under the Act.
Nissan also sought dismissal or repleading under FRCP 9, claiming that the plaintiff had not sufficiently pleaded its "fraud-based" claim under FRCP 9.  Judge Folsom declined to decide whether the plaintiff's claim was sufficiently fraud-ish to trigger the pleading requirements of FRCP 9, instead deciding that even if the rule applied, the plaintiff's allegations satisfied it.