WANG v. TESLA INC (2021)

MEMORANDUM & ORDER

Plaintiffs Jing Wang (“Wang”) and Wai-Leung Chan (“Chan” and, collectively, “Plaintiffs”) commenced this action against Defendant Tesla, Inc. (“Tesla”), following a car crash involving Plaintiffs' vehicle.¹ Plaintiffs have now moved for leave to file a Second Amended Complaint to bring their claims on behalf of a class or subclass, and to add a paragraph to “to expressly aver the assignment of their insurer's subrogation rights to them.”²

For the reasons stated below, because the class claims are futile, the motion to add class allegations is denied. The motion to add a paragraph to the Amended Complaint is granted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs reside in Queens, New York. (FAC ¶ 1). Tesla is a corporation that has its principal place of business in California and is incorporated in Delaware. (Id. ¶ 2). At the end of 2015 or the beginning of 2016, Chan paid a deposit to reserve a Model X Tesla (“the Vehicle”). (Id. ¶ 28). He took delivery of the Vehicle in September 2016. (Id. ¶ 33). Title to the Vehicle is in Wang's name. (Id. ¶ 32).

The Tesla Model X is an electric sport-utility vehicle. (Id. ¶ 5). It comes equipped with Tesla's “Autopilot,” which assists the driver by “control[ing] vehicle speed and lane positioning by automating braking, steering, and torque to the drive motors.” (Id. ¶ 7 & n.3). Autopilot can also automate changing lanes and parking. (Id. ¶ 7).

On December 13, 2017, Chan was driving the Vehicle on the Long Island Expressway in the right-hand lane in “dense, slow traffic.” (Id. ¶ 37). Chan was using Autopilot at the time. (Id. ¶ 38). When another car merged into the lane in front of the Vehicle, the Vehicle's Autopilot allegedly did not recognize the merging car, and the Vehicle “moved forward suddenly,” forcing Chan to steer left to avoid colliding with the merging car, and causing the Vehicle to crash into two vehicles in the center and left lane, respectively, before coming to a stop. (Id. ¶¶ 40–42).

Plaintiffs filed an Amended Complaint on August 31, 2020. Plaintiffs allege that Tesla failed to warn Plaintiffs not to use Autopilot in high-traffic conditions and, indeed, falsely represented that it would be safe to do so. (See, e.g., id. ¶¶ 8–9, 26–27, 29–31). They also contend Autopilot is defectively designed and manufactured. (See, e.g., id. ¶¶ 10–13, 22). Plaintiffs assert seven state-law causes of action: breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, failure to warn, false advertising and deceptive business practices, fraudulent misrepresentation, and negligent misrepresentation. (Id. ¶¶ 53–116).

The parties appeared at a Rule 16 initial conference on October 16, 2020. (Min. Entry & Order dated Oct. 16, 2020). The Court set deadlines for completion of discovery, including a January 21, 2021 deadline to move to join new parties or to amend the pleadings. (Id.). On January 21, 2021, Plaintiffs moved to file a Second Amended Complaint to bring the seven state-law claims on behalf of a putative nationwide class and/or a state subclass and to add a paragraph “to expressly aver the assignment of their insurer's subrogation rights to them.” (Mot.). On July 16, 2021, Judge Garaufis granted Tesla's partial motion to dismiss in part, and dismissed Plaintiffs' sixth cause of action for fraudulent misrepresentation. Jing Wang v. Tesla, Inc., No. 20-CV-3040, 2021 WL 3023088, at *4 (E.D.N.Y. July 16, 2021).

DISCUSSION

“Rule 15(a) of the Federal Rules of Civil Procedure provides that in cases where a party cannot amend as a matter of course, ‘a party may amend its pleading only with the opposing party's written consent or the court's leave.’ ” CSX Transp., Inc. v. Emjay Env't Recycling, Ltd., No. 12-CV-1865, 2013 WL 12329546, at *2 (E.D.N.Y. Sept. 18, 2013) (quoting Fed. R. Civ. P. 15(a)).

A party may amend its pleading once as a matter of course within ․ 21 days after serving it, or ․ if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

Fed. R. Civ. P. 15(a)(1).

Rule 15(a)(2) applies to Plaintiffs' motion because it is their second amendment. The Rule provides that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Id. r. 15(a)(2); 6 Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 1480 (3d ed. 2021) (“When this time period expires or the party already has amended the pleading, [amendment as of right] no longer applies and an amendment falls under Rule 15(a)(2), which requires leave of court or the written consent of the opposing party.”); CSX Transp., Inc., 2013 WL 12329546, at *2.

Federal Rule of Civil Procedure 16 also bears upon whether the Court should grant leave to amend. Rule 16 requires the Court to issue a scheduling order that “must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). “By limiting the time for amendments, the rule is designed to offer a measure of certainty in pretrial proceedings, ensuring that ‘at some point both the parties and the pleadings will be fixed.’ ” Parker v. Columbia Pictures Indus., 204 F.3d 326, 339–40 (2d Cir. 2000) (Sotomayor, J.) (quoting Fed. R. Civ. P. 16 advisory committee's note to 1983 amendment).

Where, as here, a scheduling order governs amendments to the complaint, the Second Circuit has held that the lenient standard under Rule 15(a) or Rule 21 must be balanced against the requirement under Rule 16(b) that the Court's scheduling order shall not be modified except upon a showing of good cause.

Mason Tenders Dist. Council v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 36 (S.D.N.Y. 2016) (citing Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009)); see also Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge's consent.”). “Whether good cause exists turns on the ‘diligence of the moving party.’ ” Holmes, 568 F.3d at 335 (quoting Grochowski v. Phoenix Constr., 381 F.3d 80, 86 (2d Cir. 2003)). “While the diligence inquiry is the primary consideration, courts may also consider other relevant factors including whether the proposed amendment would result in prejudice to defendants.” Mason Tenders, 318 F.R.D. at 37.

While Rule 16 sets the schedule for amended pleadings to be filed, Rule 15 provides that leave to amend be “freely give[n].” Fed. R. Civ. P. 15(a)(2). That is,

[i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be “freely given.”

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (quoting prior version of Fed. R. Civ. P. 15(a)(2)); accord Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (per curiam). “Delay alone, in the absence of bad faith or prejudice, is not a sufficient reason for denying a motion to amend.” Duling v. Gristede's Operating Corp., 265 F.R.D. 91, 97 (S.D.N.Y. 2010).

I. The Proposed Class Claims Are Futile

“Futility is a determination, as a matter of law, that proposed amendments would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Berlin v. JetBlue Airways Corp., 436 F. Supp. 3d 550, 560 (E.D.N.Y. 2020) (quoting Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 224–25 (2d Cir. 2017)). “Thus, the standard for denying leave to amend based on futility is the same as the standard for granting a motion to dismiss.” Id. (quoting IBEW Loc. Union No. 58 Pension Tr. Fund & Annuity Fund v. Royal Bank of Scot. Grp., PLC, 783 F.3d 383, 389 (2d. Cir. 2015)). “If the problems with a claim are substantive rather than the result of an inadequately or inartfully pleaded complaint, an opportunity to replead would be futile and should be denied.” Id. (quoting Jordan v. Chase Manhattan Bank, 91 F. Supp. 3d 491, 510 (S.D.N.Y. 2015)).

“To determine whether a proposed class is futile, ‘it is necessary to evaluate the likelihood that [the] proposed class will be certified[.]’ ” Konig v. TransUnion, LLC, No. 18-CV-7299, 2020 WL 550285, at *5 (S.D.N.Y. Feb. 4, 2020) (alterations in original) (quoting Presser v. Key Food Stores Coop., Inc., 218 F.R.D. 53, 56 (E.D.N.Y. 2003)). “Thus, if after viewing the amendment in the light most favorable to the plaintiff, the court finds the proposed class cannot be certified under Rule 23, leave to amend will be denied.” Pierre v. JC Penney Co., No. 03-CV-4782, 2006 WL 407553, at *6 (E.D.N.Y. Feb. 21, 2006); Presser, 218 F.R.D. at 56 (“If Plaintiff's proposed class cannot be certified, leave to amend should be denied.”).

A. Rule 23(a)

Plaintiffs define the putative nationwide class as:

all owners or lessors of a Class Vehicle who were involved in a collision where the sensor suite assessed an imminent hazard and/or otherwise dangerous situation, but where the relevant data was not transmitted to the data processing suite or the servo suite such that the vehicle did not avoid the collision and/or supply adequate warning to the driver, resulting in damages[.]

(Proposed SAC ¶ 67). They also identify a “New York Subclass,” consisting of those class members who reside in New York. (Id. ¶ 68).

Under Rule 23(a), plaintiffs must demonstrate that:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). These requirements are referred to as numerosity, commonality, typicality, and adequacy, respectively. In addition, Rule 23(a) has been held in this Circuit to contain an implicit requirement of “ascertainability.” In re Petrobras Sec., 862 F.3d 250, 269 (2d Cir. 2017) (“The ascertainability doctrine that governs in this Circuit requires only that a class be defined using objective criteria that establish a membership with definite boundaries.”).

1. Numerosity

“Rule 23(a)(1) requires that ‘the class is so numerous that joinder of all members is impracticable.’ In the Second Circuit, ‘[n]umerosity is presumed for classes larger than forty members.’ ” K.A. v. City of New York, 413 F. Supp. 3d 282, 301 (S.D.N.Y. 2019) (alteration in original) (first quoting Fed. R. Civ. P. 23(a)(1), then quoting Pa. Pub. Sch. Emps.' Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d 111, 120 (2d Cir. 2014)). “Impracticability does not mean impossibility of joinder, but refers to the difficulty or inconvenience of joinder.” In re Indep. Energy Holdings PLC Sec. Litig., 210 F.R.D. 476, 479 (S.D.N.Y. 2002); see also Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).

Plaintiffs contend that “the Class is so numerous that joinder of all Class members is impracticable” while admitting that “the exact number and identities of individual members of the Class are unknown at this time[.]” (Proposed SAC ¶ 70). They state that “hundreds of thousands of Class Vehicles have been sold and leased” but any further details about the size of the putative class is in Tesla's sole control. (Id.).

Plaintiffs fail to sufficiently plead that the class is so numerous such that joinder would be impracticable. “Plaintiffs need not establish the precise number of class members so long as they reasonably estimate that the number is substantial, and they may rely on reasonable inferences drawn from the available facts.” Morales v. Rochdale Vill., Inc., No. 15-CV-502, 2018 WL 4522084, at *9 (E.D.N.Y. Aug. 1, 2018), report and recommendation adopted, 2018 WL 4697271 (Sept. 28, 2018). But here, alleging that there are thousands of Class Vehicles does not mean there are more than 40 Class Vehicles that were involved in a collision and, for the purposes of the Class, the accident that resulted from a failure of sensor suite functionality. Plaintiffs have not alleged any details that, taken as true, would suggest that the putative class is sufficiently numerous. It would be nothing other than speculation to assume that more than 40 such incidents have taken place. Spread Enters., Inc. v. First Data Merch. Servs. Corp., 298 F.R.D. 54, 67 (E.D.N.Y. 2014) (“ ‘As plaintiff bears the burden of demonstrating numerosity, he must show some evidence of or reasonably estimate the number of class members.’ Therefore, while ‘evidence of exact size or identity of class members is not required,’ a plaintiff cannot rely on ‘pure speculation or bare allegations’ in order to demonstrate numerosity.” (first quoting Russo v. CVS Pharmacy, Inc., 201 F.R.D. 291, 294 (D. Conn. 2001), then quoting Flores v. Anjost Corp., 284 F.R.D. 112, 123 (S.D.N.Y. 2012))).

Therefore, Plaintiffs have not sufficiently alleged numerosity, as it is highly unlikely that their allegations would lead to a class being certified. E.g., Wonasue v. Univ. of Md. Alumni Ass'n, 295 F.R.D. 104, 111–12 (D. Md. 2013) (denying motion to amend to include class action claim where numerosity requirement not met); cf. Holly v. Alta Newport Hosp., Inc., No. 19-CV-7496, ––– F.Supp.3d ––––, ––––, 2020 WL 1853308, at *7 (C.D. Cal. Apr. 10, 2020) (granting motion to strike class allegations on a motion to dismiss where plaintiff did not allege any facts to support numerosity); Soto v. Castlerock Farming & Transp., Inc., No. 09-CV-701, 2013 WL 6844377, at *22 (E.D. Cal. Dec. 23, 2013) (finding numerosity requirement not satisfied when plaintiffs only alleged that the total number of workers at an employer were numerous but did not provide detail on how many workers were subject to the illegal policy at issue), report and recommendation adopted, 2014 WL 200706 (Jan. 16, 2014).

2. Commonality and Typicality

The commonality and typicality requirements “tend to merge” with each other because “[b]oth serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately represented in their absence.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

Commonality exists if plaintiffs' claims share a common question of law or fact. This “requires the plaintiff to demonstrate that the class members ‘have suffered the same injury,’ ” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (quoting Falcon, 457 U.S. at 157, 102 S.Ct. 2364), not “merely that they have all suffered a violation of the same provision of law,” id. (“Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.”).

As for typicality, this

requirement is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.

Robidoux, 987 F.2d at 936–37 (citations omitted); see also Marisol A. v. Giuliani, 126 F.3d 372, 376–77 (2d Cir. 1997) (per curiam).

Plaintiffs bring claims titled, “breach of express warranty,” “breach of implied warranty of merchantability,” “breach of implied warranty of fitness for a particular purpose,” “failure to warn,” “deceptive and misleading business practices and false advertising,” and “negligent misrepresentation.” (Proposed SAC ¶¶ 75–122, 136–46). In some form, these claims all sound in misrepresentation or are based on a false statement. (Id. ¶¶ 76–79, 86, 92–94, 100–02, 107, 114–20, 138–44, 149).³

It is possible for claims based on alleged false statements or misrepresentations—a prototypical consumer class action, for instance—to present common issues of fact or law. See, e.g., Hughes v. Ester C Co., 317 F.R.D. 333, 344–45 (E.D.N.Y. 2016) (finding question of whether consumer was misled by representation regarding “The Better Vitamin C” on label, which suggested product contained more Vitamin C than competitors, established commonality). For example, in Ackerman v. Coca-Cola Co., the plaintiffs alleged that the marketing for the product “vitaminwater,” labelled as a “nutrient-enhanced water beverage,” misled consumers into believing the product was an alternative to sugary drinks and was water fortified with vitamins. No. 09-CV-395, 2013 WL 7044866, at *2 (E.D.N.Y. July 18, 2013). The Court found commonality because each putative class member “would have the same, central claim: that the name ‘vitaminwater’ was misleading and deceptive.” Id. at *10 (“[C]ommonality may be found where the plaintiffs' alleged injuries ‘derive from a unitary course of conduct by a single system.’ ” (quoting Marisol A., 126 F.3d at 377)). And, similarly, allegedly “deceptive labeling and marketing,” common to all products at issue, satisfies typicality. E.g., Hughes, 317 F.R.D. at 345–47 (finding commonality and typicality where, despite variations, all products contained “Better” slogan) (collecting cases); Elkind v. Revlon Consumer Prods. Corp., No. 14-CV-2484, 2017 WL 9480894, at *10 (E.D.N.Y. Mar. 9, 2017) (“[T]he Court finds that Plaintiffs' claims are typical of those of the proposed class members in that they arise from uniform advertisements of identical products. Plaintiffs and the proposed class would therefore present similar legal arguments in prosecuting their cases.”), report and recommendation adopted, 2017 WL 1169552 (Mar. 29, 2017). This, however, is a different case.

Here, the proposed Second Amended Complaint alleges that Tesla made certain representations to Plaintiffs, but it does not indicate that every buyer (or owner who was in an accident) received the same misrepresentations. Indeed, the problematic representations are not just those in printed or web-site materials, but those made by Tesla salespersons. Jing Wang, 2021 WL 3023088, at *1 (“During Plaintiff's visit to the Manhasset showroom, an agent assured him that the Autopilot feature would be well-suited to his commutes and that ‘he could take the Tesla into the HOV lane ․ and then close his eyes and “relax.” ’ Relying on what he learned from Tesla's website and from his showroom visits, Chan purchased a Model X, which he claimed in Tesla's Brooklyn, New York showroom in September 2016.” (alteration in original) (quoting FAC ¶ 29)). “[Plaintiffs] argue that the statements Tesla has made directly to Plaintiffs and to the public, through Tesla's website and showroom agents, ‘were likely to deceive a reasonable consumer and did deceive Plaintiffs into purchasing a Tesla vehicle.’ ” Id. at *3 (emphasis added) (quoting FAC ¶ 99). As such, for a nationwide class of buyers, representations about Autopilot's assistance in traffic made to each buyer would likely be dissimilar (or are not identical) to each other. Courts have found that where putative class members all relied on misrepresentations—but those representations vary widely across the class—there is no commonality. See, e.g., In re LifeUSA Holding Inc., 242 F.3d 136, 145–47 (3d Cir. 2001) (no commonality where “the plaintiffs assert claims arising not out of one single event or misrepresentation, but claims allegedly made to over 280,000 purchasers by over 30,000 independent agents where the District Court found that the sales presentations (hence the alleged misrepresentations) were neither uniform nor scripted)”; Sprague v. Gen. Motors Corp., 133 F.3d 388, 398 (6th Cir. 1998) (no commonality where representations about retirement benefits “were not uniform” and varied by “the person making the representation,” by the applicable retirement program, by the facility at issue, and over time).

Plaintiffs highlight a bevy of supposed common issues, including whether: (1) the class's Vehicles were defective, (2) Tesla knew of and failed to disclose the defects, (3) Tesla made misrepresentations about the Vehicles, (4) reasonable purchasers would consider the alleged defects material, and (5) exemplary damages are appropriate. (Pls.' Reply Mem. in Supp. of Mot. dated Mar. 25, 2021 (“Reply”), Dkt. No. 51-3 at 6; Proposed SAC ¶ 71). But cobbling together a subset of Tesla owners and lessors with common characteristics does not mean there are common issues of fact or law where the alleged harm sounds in misrepresentations or false statements. For example, a class of Tesla owners who are all over the age of 65 and were involved in accidents share common factual characteristics. But this alone does not necessitate common factual issues or legal issues on which to base a class. Instead, commonality and typicality depend on the nature of the claims.

It is true that the proposed class, as defined, may have a common legal claim: that the Teslas had a product defect that caused an accident. But the proposed class action is not pled as a product liability case. The claims sound not in products liability—but in oral misrepresentations—and a case based on oral misrepresentations made at the point of purchase does not have a set of common factual issues.

There is also no common legal question presented. Plaintiffs' asserted claims sound in state law. Therefore, the laws of misrepresentation in all states in which putative members are found—potentially the laws of all 50 states—would be at issue. Such variety is also sufficient to defeat the commonality requirement. E.g., Lewis Tree Serv., Inc. v. Lucent Techs. Inc., 211 F.R.D. 228, 233 (S.D.N.Y. 2002) (“The plaintiff seeks a nationwide class action based on a state common law cause of action, fraud, and a New Jersey statutory claim under the NJCFA. Neither cause of action would result in the application of a common legal rule to claims of class members, and consequently, the plaintiff fails to satisfy the commonality requirement.”); In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 2002) (“No class action is proper unless all litigants are governed by the same legal rules. Otherwise the class cannot satisfy the commonality and superiority requirements of Fed. R. Civ. P. 23(a), (b)(3). Yet state laws about theories such as those presented by our plaintiffs differ, and such differences have led us to hold that other warranty, fraud, or products-liability suits may not proceed as nationwide classes.”); In re Fluidmaster, Inc., Water Connector Components Prods. Liab. Litig., No. 14-CV-5696, 2017 WL 1196990, at *52 (N.D. Ill. Mar. 31, 2017) (“[W]here the putative class's product defect claims are governed by many different states' laws, commonality is often lacking.”) (collecting cases).

Finally, because there are unlikely to be just “minor variations” in the factual circumstances of each class members' purchases, the absence of commonality is fatal to the ability to demonstrate typicality. See Soutter v. Equifax Info. Servs., LLC, 307 F.R.D. 183, 211 (E.D. Va. 2015) (“[T]here can be no typicality where commonality is lacking.”); Graham v. Sec. Sav. & Loan, 125 F.R.D. 687, 690–91 (N.D. Ind. 1989) (in fraud and misrepresentation case, denying motion to amend to add named plaintiffs because additions would not satisfy commonality or typicality requirements due to variation in oral misrepresentations), aff'd sub nom. Veal v. First Am. Sav. Bank, 914 F.2d 909 (7th Cir. 1990).⁴

3. Adequacy

To satisfy Rule 23(a)(4), the class representative must “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). That is, a class representative must “ ‘possess the same interest and suffer the same injury’ as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625–26, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977)). The adequacy requirement examines whether the class members have interests that are “ ‘antagonistic’ to one another.” In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 290–91 (2d Cir. 1992) (quoting Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968)).

Plaintiffs allege that they do not have conflicts of interest with the members of the class and that counsel are well suited to vigorously litigating the action. (Proposed SAC ¶ 73). Tesla argues that the claims are too fact-intensive for Plaintiffs to be adequate class representatives, Plaintiffs have been litigating the case for too long to satisfy the adequacy requirement, and Plaintiffs are distinctly situated as “the assignee of their insurer's subrogation claims against Tesla” presenting them with unique defenses. (Tesla's Mem. of Law in Opp'n to Mot. dated Feb. 18, 2021 (“Opp'n”), Dkt. No. 47 at 11–12). Tesla's arguments are without merit. That the cases are fact-intensive or that Plaintiffs have unique defenses may implicate predominance, typicality, or other class certification requirements, but it does not mean that if those requirements are satisfied that these Plaintiffs are inadequate. Nor does the fact that they have been litigating the case for an extended period on an individual basis suggest they could not now litigate on behalf of other similarly situated putative class members. These are speculative attempts to defeat adequacy; however, nothing suggests that these Plaintiffs' interests would be antagonistic of other potential class members.

4. Ascertainability

“Rule 23 definiteness and ascertainability requires that the proposed class size is knowable, and that the class is defined in such a way that proposed class members are objectively determinable.” Enea v. Bloomberg, L.P., No. 12-CV-4656, 2014 WL 1044027, at *3 (S.D.N.Y. Mar. 17, 2014); In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir. 2006), decision clarified on denial of reh'g, 483 F.3d 70 (2007). “A class is ascertainable when defined by objective criteria that are administratively feasible and when identifying its members would not require a mini-hearing on the merits of each case.” Brecher v. Republic of Argentina, 806 F.3d 22, 24–25 (2d Cir. 2015) (quoting Charron v. Pinnacle Grp. N.Y. LLC, 269 F.R.D. 221, 229 (S.D.N.Y. 2010)); see also In re Petrobras Sec., 862 F.3d 250, 266–67 (2d Cir. 2017) (“[A] class must be ‘sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member’; a class must be ‘defined by objective criteria’ so that it will not be necessary to hold ‘a mini-hearing on the merits of each case.’ ” (quoting Brecher, 806 F. 3d at 24)).

It is unlikely that the ascertainability requirement could be met at the class certification stage. Plaintiffs define putative class members as Vehicle owners or lessors

who were involved in a collision where the sensor suite assessed an imminent hazard and/or otherwise dangerous situation, but where the relevant data was not transmitted to the data processing suite or the servo suite such that the vehicle did not avoid the collision and/or supply adequate warning to the driver, resulting in damages.

(Proposed SAC ¶ 67).

Determining whether a particular individual fit within this class definition would require a hearing. An individual who was in a Tesla vehicle and suffered an accident has no knowledge of whether the “sensor suite assessed an imminent hazard” or a “dangerous situation.” Assuming that was determinable through Tesla's own records (which assumes that the individual data of each Vehicle's activity is maintained centrally), the Court would then have to establish whether the accident occurred because of a data transmission failure, as opposed to some other cause. In other words, the Court would need to assess whether the data transmission failure caused a failure of either the driver or vehicle to respond in a timely fashion, which then resulted in an accident (as opposed to the accident being caused by factors entirely exogenous to the Tesla's action, and notwithstanding adequate reaction time). These determinations would have to be made for each Tesla accident nationwide simply to determine whether that accident is part of this class. It is not difficult to imagine that this would be an intensely time-consuming endeavor. Indeed, in this case, the parties have spent years on discovery on these very same issues. Such time-intensive inquiries indicate the class is not ascertainable.

And the task is further complicated by the subjective criteria that Plaintiffs wish to use in determining class membership. Not all accidents qualify: they must have involved a “hazard.” Yet, Plaintiffs do not say how one defines hazard—is it a man-made obstacle? Another vehicle? And the hazard must be “imminent,” (Proposed SAC ¶ 67), but no time scope or sensitivity is suggested. Similar problems infect the determination of whether a “dangerous situation” was present or whether a driver or car had “adequate” reaction opportunity. (Id.). “A class whose definition hinges on subjective determinations is incompatible with Rule 23’s definiteness requirement.” Burley v. City of New York, 2005 WL 668789, at *9 (S.D.N.Y. March 23, 2005). That is the kind of imprecise class Plaintiffs seek to pursue here. And as such, class membership would not be sufficiently definite or ascertainable to likely achieve certification.⁵

For these reasons, Plaintiffs have not sufficiently pled a class that would likely satisfy the requirements of Rule 23(a). The failure is an independent basis to deny the motion to amend.

B. Rule 23(b)(2) Class

Even if the Rule 23(a) factors were satisfied, there are other independent bases on which the proposed classes would fail. Plaintiffs seek certification of a Rule 23(b)(2) class, (Proposed SAC ¶ 66), and an an injunction barring Tesla “from advertising or publishing literature about its products with inflated or incorrect claims of safety and/or releasing vehicles into the stream of commerce without adequate warnings as to the true nature of their systems,” (id. ¶ 149). They also ask for “[a]n [o]rder declaring [Tesla]’s conduct to be unlawful, deceptive, and in violation of express and implied warranties and applicable law, and enjoining [Tesla] from continuing the unlawful, deceptive practices described.” (Id. at 30).

Plaintiffs lack standing to seek injunctive relief and thus to bring a Rule 23(b)(2) class. To obtain such injunctive relief, a plaintiff must demonstrate standing; that is, there must be an indication of “a continuing violation or the imminence of a future violation.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 108, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Plaintiffs seeking injunctive relief must also prove that the identified injury in fact presents a ‘real and immediate threat of repeated injury.’ ” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013) (quoting Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004)). “The prospective-orientation of the analysis is critical: to maintain an action for injunctive relief, a plaintiff ‘cannot rely on past injury ․ but must show a likelihood that he ․ will be injured in the future.’ ” Berni v. Barilla S.p.A., 964 F.3d 141, 147 (2d Cir. 2020) (alterations in original) (quoting Deshawn E. ex rel. Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998)). “Although past injuries may provide a basis for standing to seek money damages, they do not confer standing to seek injunctive relief unless the plaintiff can demonstrate that she is likely to be harmed again in the future in a similar way.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016). In the consumer protection context, “past purchasers of a consumer product who claim to be deceived by that product's packaging ․ have, at most, alleged a past harm.” Berni, 964 F.3d at 147. They “are not likely,” however, “to encounter future harm of the kind that makes injunctive relief appropriate” because “once they become aware they have been deceived, that will often be the last time they will buy that item.” Id. at 147–48.

Plaintiffs' allegations here are insufficient to establish standing to obtain injunctive relief for themselves or a putative class. Plaintiffs have not alleged they are likely purchase the products at issue again. And a Tesla vehicle is not such a ubiquitous product that a consumer would be a regular customer. Quite the contrary—the purchase of a Tesla requires substantial monetary payment, and if a consumer believed he or she was deceived in the purchase, it is unlikely they would buy again. And even if a putative class member purchased another Tesla, he or she “w[ould] be doing so with exactly the level of information that [he or she] claim[ed] [he or she] were owed from the beginning,” and so would not have a viable misrepresentation claim. Berni, 964 F.3d at 148.

As a consequence, there is no real, immediate, and imminent threat of continued injury, and Plaintiffs cannot obtain injunctive relief. See, e.g., Lugones v. Pete & Gerry's Organic, LLC, 440 F.Supp.3d 226, 238 (S.D.N.Y. 2020) (“Plaintiffs cannot show that they are likely to suffer any future injury because they have alleged that they do not intend to purchase Nellie's Free Range Eggs unless Defendant changes its practices to mirror its advertising.”); Izquierdo v. Mōndelez Int'l, Inc., No. 16-CV-4697, 2016 WL 6459832, at *5 (S.D.N.Y. Oct. 26, 2016) (“[The] conditional statement ․ mean[s] that Izquierdo will not purchase the Candy unless Mōndelez changes the Candy packaging. If the condition goes unfulfilled—that is, if Mōndelez does not change the Candy packaging—Izquierdo will not purchase the Candy again. Therefore, he will not be injured․ Plaintiffs here must plead a likelihood of future injury in order to show standing to sue for an injunction. Izquierdo has not done so here.”).

Since Plaintiffs have failed to demonstrate their own Article III standing here, no class based on their allegations could have standing for injunctive relief. See, e.g., Berni, 964 F.3d at 149 (vacating approval of a class settlement for past purchasers of Barilla pasta where “injunctive relief [wa]s not proper for the group of past purchasers of Barilla pasta—because not every member of that group st[oo]d[ ] to benefit from the ‘fill-line’ and disclaimer language included in the settlement proposal”).

C. Rule 23(b)(3)

Plaintiffs also seek class certification under Rule 23(b)(3). Under this subsection, a class may also be maintained where “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Konig, 2020 WL 550285, at *6 (quoting Fed. R. Civ. P. 23(b)(3)). The “predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623, 117 S.Ct. 2231. “Even if Rule 23(a)’s commonality requirement may be satisfied by that shared experience, the predominance criterion is far more demanding.” Id. at 623–24, 117 S.Ct. 2231. The predominance “requirement is satisfied ‘if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof.’ ” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002) (Sotomayor, J.)). Plaintiffs need not prove, however, that the legal or factual issues that predominate will be answered in their favor. See, e.g., Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 468, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013). “[I]ndividualized damages determinations alone cannot preclude certification under Rule 23(b)(3),” but it “is ․ a factor to consider in deciding whether issues susceptible to generalized proof outweigh individual issues.” Roach v. T.L. Cannon Corp., 778 F.3d 401, 408–09 (2d Cir. 2015) (second alteration in original) (quotations omitted).

Plaintiffs have failed to demonstrate that it is likely that common questions of both law and fact predominate over individual issues. First, from a factual perspective, Plaintiffs allege that “defective design” or “inadequate warning” made the Vehicles defective. (Proposed SAC ¶ 71(a)). But nowhere do they contend that the same technical defects apply to the whole class or even specify what kind of defect was at issue on a class-wide basis. Indeed, Plaintiffs describe various examples of how Autopilot has malfunctioned previously: in heavy traffic with merging vehicles with a focused driver, as in Plaintiffs' case, (id. ¶¶ 49–60); where a driver was playing a cell phone game while driving (seemingly at a high speed), thus relying too heavily on Autopilot, and the Autopilot failed to monitor driver engagement, (id. ¶¶ 28–29); and where Autopilot did not avoid a collision where the car was traveling at 68 miles per hour in a 55-miles-per-hour zone, (id. ¶ 31). These differences may result in some class members having claims (because the fault lies with Tesla) and others lacking them (because the fault lies with the driver or a third party). In other words, proof of the causes of Plaintiffs' accident would not be generalizable across the class members to determine liability on a class-wide basis. “Where individualized questions permeate the litigation, those ‘fatal dissimilarit[ies]’ among putative class members ‘make use of the class-action device inefficient or unfair.’ ” In re Petrobras Sec., 862 F.3d at 270 (alteration in original) (quoting Amgen, 568 U.S. at 470, 133 S.Ct. 1184).

Here, the individual-specific defects, accident circumstances, and accident cause make a Rule 23(b)(3) class unlikely, if not impossible, to meet certification standards.

The problem in meeting the predominance inquiry is amplified by the lack of a common legal framework across the class. Plaintiffs are proposing a nationwide class of Tesla owners who suffered accidents; the claims are all state common-law claims under the laws of all 50 states. Yet, Plaintiffs' causes of action are identified merely by their general monikers, such as “breach of implied warranty of merchantability” and “failure to warn.” Plaintiffs identify neither the various applicable state statutes nor their respective elements. Plaintiffs fail to plead or suggest that the various state-law elements are sufficiently similar such that a class action is the superior method of adjudicating the claims and that any legal differences do not predominate common legal questions. Warranty law varies across the states, Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 674 (7th Cir. 2001) (“States also differ substantially in their willingness to permit buyers of commercial products to recover in tort for defects that are covered by warranties.”), as does the law for negligent misrepresentation, e.g., id. (“Connecticut law recognizes negligent misrepresentation as a distinct tort. Indiana, where Szabo purchased and uses his milling machine, does not.” (citation omitted)). As such, “[t]he application of the different jurisdictions' laws therefore renders individual issues predominant and undercuts the superiority of trying the common issues on a classwide basis.” Johnson v. Nextel Commc'ns Inc., 780 F.3d 128, 147–48 (2d Cir. 2015); e.g., In re Bridgestone/Firestone, Inc., 288 F.3d at 1015 (“[S]tate laws about theories such as those presented by our plaintiffs differ, and such differences have led us to hold that other warranty, fraud, or products-liability suits may not proceed as nationwide classes.”); In re LifeUSA Holding Inc., 242 F.3d at 147 (finding predominance not satisfied where the law of 48 different jurisdictions applied in putative class action suit alleging negligent and fraudulent misrepresentations); In re Gen. Motors Corp. Dex-Cool Prods. Liab. Litig., 241 F.R.D. 305, 324 (S.D. Ill. 2007) (“In view of the significant variations with respect to the law of warranty among the [47] states in the proposed class, the Court's path is clear․ The variations in state law presented by this case defeat predominance and manageability, and therefore Plaintiffs' request for class certification will be denied.”). For these reasons, the proposed amendment is futile. Presser, 218 F.R.D. at 59 (finding amendment futile where, inter alia, plaintiff could not show common questions would predominate over individual issues); Brancheau v. Residential Mortg. Grp., Inc., 177 F.R.D. 655, 663 (D. Minn. 1997) (same).⁶

* * * *

There is also a separate and independent problem. The Amended Complaint alleges species of warranty and misrepresentation claims. But the definition of class membership is not tethered to a particular misrepresentation or warranty statement made by Tesla. Instead, membership turns on whether a Tesla owner suffered a particular type of accident. As such, membership in the class says nothing about whether the owner received a misrepresentation from Tesla (or had any representation made to him at all), potentially including class members who, at the outset, simply have no legal claim to assert against Tesla. That means that the class includes people who simply have not suffered any injury.

Moreover, if the class were allowed to proceed under the definition currently proposed, it well may render the putative class representative's claims not typical of the class, since an unknown number of possible marginally related or wholly unrelated legal claims or factual circumstances not implicated in the class representative's own potentially could become involved.

Maez v. Springs Auto. Grp., LLC, No. 09-CV-1159, 2010 WL 2010965, at *1 (D. Colo. May 19, 2010). These kinds of gaps preclude certification. E.g., In re Sears, Roebuck & Co. Tools Mktg. & Sales Pracs. Litig., No. 05-CV-2623, 2007 WL 4287511, at *5 (N.D. Ill. Dec. 4, 2007) (“The instant putative class would include people who (1) bought Craftsman tools but never saw any Craftsman advertising; (2) bought Craftsman tools but never saw advertising representing that the tools were made in the United States; and (3) bought Craftsman tools with the knowledge that those tools were not made in the United States. None of those class members could prove deception․ [T]he proposed class definition would include many class members who were not deceived and suffered no damage ․ This deficiency dooms class certification.”); Luttrell v. Tamko Bldg. Prods., Inc., No. 09-CV-74, 2010 WL 716226, at *2 (W.D. Ky. Feb. 24, 2010) (“The Court finds that Luttrell's proposed class is too broad and imprecise to enable the Court to adequately conduct the analysis required by Rule 23. For example, the phrase ‘have experienced problems’ encompasses far more than the specific ‘problem’ experienced by Luttrell. At the same time, the definition fails to specify what problem Luttrell experienced.”); see also 7A Wright & Miller et al., supra, § 1760 (“[T]he class must not be defined so broadly that it encompasses individuals who have little connection with the claim being litigated; rather, it must be restricted to individuals who are raising the same claims or defenses as the representative.”).

Plaintiffs' motion for leave to amend to add one factual paragraph “to expressly aver the assignment of their insurer's subrogation rights to them” is granted. (Mot. at 3). The Court cannot conceive of any prejudice that would be caused by such an addition, nor does the Court think that such an addition would be futile. And the amendment is not unduly delayed. Supra n.6. Therefore, Plaintiffs' motion is granted for this limited purpose.

CONCLUSION

For the reasons stated above, Plaintiffs' motion for leave to amend is granted in part and denied in part. Plaintiffs may not add class action claims, as such claims—as pled—would be futile. But Plaintiffs may add one factual paragraph regarding the assignment of their insurer's subrogation rights. Plaintiffs shall file a Second Amended Complaint that complies with this Order by August 2, 2021.

SO ORDERED.

FOOTNOTES

1.   Compl. dated May 2020 (“Compl.”), Dkt. No. 2. The case was transferred from the District Court for the Southern District of New York to this District on July 8, 2020, (Order dated July 8, 2020), and an Amended Complaint was filed on August 31, 2020, (First Am. Compl. dated Aug. 31, 2020 (“FAC”), Dkt. No. 18).

2.   Mot. for Leave to File Second Am. Compl. Instanter dated Jan. 21, 2021 (“Mot.”), Dkt. No. 42; Proposed Second Am. Compl. (“Proposed SAC”), attached to Mot., Dkt. No. 42-1 ¶¶ 56, 66, 76, 89, 97, 105, 111, 124, 137.

3.   As noted, Judge Garaufis dismissed Plaintiffs' sixth cause of action for fraudulent misrepresentation.

4.   The subclass fares no better in these regards. The subclass is defined as those class members who reside in New York. (Proposed SAC ¶ 68). But that does not create a set of class members with common issues, since legal claims sounding in misrepresentation or warranty are most often based upon the state where the product was purchased, not on residence. See, e.g., In re Restasis (Cyclosporine Ophthalmic Emulsion) Antitrust Litig., 335 F.R.D. 1, 34 (E.D.N.Y. 2020) (stating that law of state of purchase applies in consumer litigation under New York choice-of-law rules).

5.   Moreover, the various state laws that would be applicable to a nationwide class may have differing statutes of limitations. Plaintiffs' class definition provides no temporal limitation. The Court would thus also need to determine whether each member's accident fell within the relevant statute of limitations, further frustrating ascertainability.

6.   Tesla argues that Plaintiffs unduly delayed their proposed amendment, as the dispute has been ongoing for three years, the case was filed one year ago, and discovery and motion practice have commenced. (Opp'n at 17–18). Despite this passage of time, the deadline to file a motion to amend had not passed when the motion was filed. The Court held an initial conference on October 16, 2020, and subsequently set the deadline to move for leave to amend the pleadings to be January 21, 2021. (Min. Entry & Order dated Oct. 16, 2020). Plaintiffs filed their motion on January 21, 2021. (Mot.). Therefore, there is no undue delay. In light of the other bases to deny the motion, the Court declines to address whether the change in discovery—from a single case to a class action—would constitute undue prejudice.

BULSARA, United States Magistrate Judge: