REGGIE B. WALTON, District Judge.
This action was initiated on behalf of individuals killed or injured on June 22, 2009, in a collision between two Washington Metropolitan Area Transit Authority (the "WMATA" or "Metrorail") trains. On October 18, 2010, the plaintiffs, except for the Estate of Jeanice McMillan,
The complaints allege that "[o]n Monday, June 22, 2009, [at] about 4:58 p.m., eastern daylight time, ... Metrorail train 112 collided with the rear end of stopped train 214 near the Fort Totten station in Washington, D.C." Compl. ¶ 156. As a result of the collision, nine passengers and the striking train's operator were killed and more than seventy passengers were injured. Compl. ¶ 161. The accident purportedly occurred because "[t]he Metrorail automatic train control system stopped detecting the presence of train 214 (the ... train [that was struck]) in track circuit B2-304, which caused train 214 to stop and also allowed speed commands to be transmitted to train 112 (the striking train) until the collision." National Transportation Safety Board, Railroad Accident Report 10/02: Collision of Two Washington Metropolitan Area Transit Authority Metrorail Trains Near Fort Totten Station 120, available at http://www.ntsb.gov/publictn/ 2010/RAR1002.pdf.
Following the accident, civil actions were filed by injured passengers and representatives of passengers who were killed, and those actions were consolidated by this Court. As a result of the consolidation, the plaintiffs filed a single Master Complaint. CMO ¶¶ 31-32. A representative of Jeanice McMillan, the operator of train 112 who died in the collision, subsequently filed a separate complaint. McMillan Estate Compl. ¶ 1.
As noted earlier, according to the complaints, the trains collided because the WMATA's automatic train control system failed to detect the presence of train 214 on the track. Compl. ¶ 163. Due to the false reading and because train 112 was operating in automatic mode, it did not slow as it approached the track occupied by train 214. Id. ¶¶ 158, 163. The train operator, McMillan, overrode the automatic mode by activating emergency brakes when train 112 was about 300 feet from train 214. Id. ¶ 160. However, despite McMillan's actions, it failed to stop in time to prevent the collision due to the train's
The WMATA's train detection system is comprised of various components, including "transmitters, receivers, and impedance bonds," id. ¶ 165, which, according to the plaintiffs, were manufactured by defendants Alstom, Ansaldo, and ADCO, id. ¶¶ 18, 166. The train detection system was designed in the 1970s, id. ¶ 164, and some of the parts were actually manufactured by General Railway Signal ("GRS"), "the predecessor corporation to [d]efendant Alstom," id. ¶ 166. Around 2004, the WMATA began replacing GRS components with those provided by United Switch & Signal ("US & S"), the predecessor corporation of defendant Ansaldo. Id. ¶ 166. WMATA employees and U.S. & S personnel installed the replacement components, id., and neither complaint contends that Alstom had any role in installing the new components other than making its engineers available for technical discussions and participating in an investigation concerning an earlier event involving the train detection system, id. ¶¶ 166, 173.
The use of both GRS and U.S. & S components allegedly diminished the sensitivity of the train detection system, resulting in the track circuit not de-energizing as it should have to detect the presence of a train on the track. Id. ¶ 167. Specifically, one symptom, "bobbing," caused the train detection system for a block of track to indicate the block was vacant, then occupied, and then vacant again. Id. ¶ 168. This problem was detected by a WMATA crew installing the replacement components, id., and a work order was opened to correct the bobbing problem, but it was not acted upon before the crash, which occurred five days later, id. ¶ 169.
Both the Master Complaint and the McMillan Estate Complaint raise claims of negligence, products liability, and breach of warranty against defendant Alstom.
For the reasons set forth below, the Court denies the motion to dismiss as to Counts 7, 9, 10, 16, and 17 of the Master Complaint and Counts 1, 2, 3, 8, 9, and 10 of the McMillan Estate Complaint. However, the Court grants the motion as to Counts 11, 12, and 15 of the Master Complaint, and as to Counts 4, 5, and 6 of the McMillan Estate Complaint. The Court will also grant the motion to dismiss either Counts 7 or 14 of the Master Complaint, permitting those plaintiffs to select one of the two counts on which they wish to proceed.
II. Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a) requires that it contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Although Rule 8(a) does not require "detailed factual allegations," a plaintiff is required to provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)), in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests," Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (omission in original) (internal quotation marks omitted). In other words, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, ___ U.S. at ___, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). A complaint alleging facts which are "merely consistent with a defendant's liability ... stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
In evaluating a Rule 12(b)(6) motion under this framework, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (internal quotation marks omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice," E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir. 1997). Although the Court must accept the plaintiffs' factual allegations as true, any conclusory allegations are not entitled to an assumption of truth, and even those allegations pleaded with factual support need only be accepted to the extent that "they plausibly give rise to an entitlement to relief." Iqbal, ___ U.S. at ___, 129 S.Ct. at 1950. If "the [C]ourt finds that the plaintiff[ has] failed to allege all the material elements of [his or her] cause of action," then the Court may dismiss that claim without prejudice,
III. Legal Analysis
A. Alstom's Statute of Repose Challenge
The District of Columbia statute of repose bars any action for "personal injury" and "wrongful death" "resulting from the defective or unsafe condition of an improvement to real property" if the injury or death occurs more than ten years after the "improvement was substantially completed." D.C.Code § 12-310(a)(1) (2001). An improvement is substantially completed when "it is first used" or "first available for use." Id. § 12-310(a)(2).
According to Alstom, the automatic train detection system is an improvement to real property and therefore the plaintiffs' personal injury and wrongful death claims are covered by the statute of repose.
The plaintiffs argue in response that the statute of repose is not available to Alstom. Pls.' Jt. Opp'n at 4. They refer the Court to section 310(b)(3) of the statute, which excludes from its coverage "any manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property." Id. (citing D.C.Code § 12-310(b)(3)). And according to the plaintiffs, "Alstom, via its predecessor corporation, GRS, manufactured and supplied the original defective signaling equipment" and "[t]he statute of repose therefore does not immunize [d]efendant Alstom." Id.
Alstom argues that the reach of section 310(b)(3) is limited. First, it argues that if a defendant is both a manufacturer and a designer of an allegedly defective product section 310(b)(3) does not apply to those aspects of the defect related to design. Def.'s Mem. at 11-12 & n. 2; Alstom's
1. The Applicability of Section 310(b)(3) of the Statute of Repose to Manufacturers and Suppliers Facing Claims of Negligent or Faulty Design
Alstom argues that because in effect it wears two hats, that of a designer and that of a "producer" of equipment, and because the statute of repose protects design professionals from being sued, the Court should dismiss at least those claims lodged against it related to defective design. Alstom's Reply at 1-2. Furthermore, in its reply brief Alstom directs the Court's attention to the plaintiffs' opposition brief as proof that "there is no dispute amongst the parties that the Amendment Act did not affect the statute of repose's protect[ion][of] design professionals." Alstom's Reply at 5-6 (alterations in original) (internal quotation marks omitted) (quoting 325-343 E. 56th Street Corp. v. Mobil Oil Corp., 906 F.Supp. 669, 674 (D.D.C. 1995)); see also id. at 10 n. 5; id., Ex. B at 3 (stating that the change in the law should only apply to manufacturers and suppliers who are not "involved with the actual design of the improvement," and that the statute is intended to "cut off actions for design defects"); McMillan Estate Opp'n, Ex. A (reproduction of District of Columbia Statute of Limitations Act of 1986, D.C. Law 6-202 (Jan. 8, 1987)) (amending section 12-310 only "[b]y striking the period after the last word of the section and inserting in its place, `or (3) any manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property, or (4) any action brought by the District of Columbia government'").
While the plaintiffs do concede that design professionals are protected under both the original 1972 version of the statute and the amended statute, they attempt to limit their concession by claiming that Alstom's roles as designer and manufacturer cannot be separated for the purpose of the statute of repose. See Pls.' Jt. Opp'n at 4 (stating that "the designer of a defective or unsafe condition of an improvement
2. The Retroactivity of the 1987 Amendment to D.C. Code Section 12-310, Which Added Section 310(b)(3)
Alstom contends that "[retroactive] changes are inherently unfair as they rewrite the rules of society without notice
The District of Columbia's statute of repose was first enacted in 1972 and applied to manufacturers. See Pub.L. No. 92-579, 86 Stat. 1275 (1972) (enacting statute of repose); Alstom's Reply at 6. Manufacturers were exempted from the statute of repose by subsection (b)(3), which was enacted through the adoption of D.C. Law 6-202. McMillan Estate Opp'n, Ex. A (reproduction of D.C. Law 6-202). This amendment came into effect on February 28, 1987 and applied to "actions filed in a court after July 1, 1986." Id.
The District of Columbia Circuit held in Wesley Theological Seminary of the United Methodist Church v. United States Gypsum Co., 876 F.2d 119, 122-23 (D.C.Cir. 1989), that the retroactive application of this amendment did not violate due process. In Wesley, the defendant allegedly manufactured and sold defective asbestos tiles in 1957. Id. at 120. Prior to the amendment, the defendant in Wesley would have been immune from suit; however, the 1987 amendment revived the plaintiff's claim by excluding manufacturers from the protection of the statute. Id. at 120-21. Deciding that the retroactive application of the 1987 amendment did not violate the defendant's rights under the Due Process Clause of the Fifth Amendment, the District of Columbia Circuit surmised that the Supreme Court had assessed the retroactivity question on the basis of "rationality." Id. at 122 (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15-16, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (stating that "legislative [a]cts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality," and it is the defendant's burden to demonstrate a due process violation by showing that "the legislature has acted in an arbitrary and irrational way," because the case law is "clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability based on past acts" (internal citations omitted))). Applying this rationality standard, the court determined that it was not irrational for the legislature to decide that losses stemming from defects "discovered long after installation should fall on the supplier." Id.
Similar to claims that had been raised by the plaintiff in Wesley, the plaintiffs' claims in this case would be untimely filed under the 1972 version of the statute of repose. However, just as the District of Columbia Circuit in Wesley found no due process proscription against retroactively applying the 1987 amendment to revive 1957 claims, this Court similarly finds that retroactively reviving the claims in this case does not offend due process either. Specifically, the Court can find no justification
Alstom attempts to avoid the application of Wesley by arguing that the Circuit "did not consider the Supreme Court's holding the year before in Bowen[ v. Georgetown University Hospital,] nor did it have the benefit of the Court's subsequent decisions in Kaiser[ Aluminum & Chemical Corp. v. Bonjorno] or Landgraf[ v. USI Film Products]." Alstom's Reply at 11. The Court is not persuaded by these arguments.
The Supreme Court decisions cited by Alstom concern general presumptions in statutory interpretation and do not directly apply here because the statutory language is clear. Although the Court in Bowen relied on the general principle that "[r]etroactivity is not favored in the law" in rendering its decision, it further stated that retroactive application of legislation is permitted if there is an "express statutory grant" to do so. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (assessing whether the Medicare Act expressly granted power to make retroactive rules). Similarly, while Landgraf acknowledged the presumption against the retroactive application of statutes, the Supreme Court also acknowledged that this presumption will not prevail if "Congress first makes its intention clear." Landgraf v. USI Film Prods., 511 U.S. 244, 267, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (assessing whether the Civil Rights Act of 1991 applied retroactively). Furthermore, when the Supreme Court in Kaiser held that an amendment to a post-judgment interest statute did not retroactively apply to a judgment entered before the enactment, it did so based on the "plain language" of the statute, which "evidence[d] clear congressional intent" against retroactivity. Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 838, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990).
The plain language of the District of Columbia's statute of repose is equally clear. In adopting the 1987 amendment, the legislature stated that "[t]his act shall apply to actions pending in a court on July 1, 1986, and to actions filed in a court after July 1, 1986." McMillan Estate Opp'n, Ex. A (emphasis added) (D.C. Law 6-202). Because the lawsuits here were filed in 2009, see Compl. ¶ 25, they clearly fall within the intended scope of the amendment.
Alstom also seeks to distinguish its manufacturing activity, which occurred after the statute of repose was enacted in 1972, from the defendant's activity in Wesley, which occurred before the 1972 enactment. Alstom's Reply at 11.
3. The Scope of Section 310(b)(3)
Alstom further claims that the legislature intended the 1987 amendment to reach only "producers of hazardous materials, in particular asbestos." Alstom's Reply at 6. The language of the statute, however, makes no such distinction between asbestos producers and producers in general. See D.C.Code § 12-310(b)(3) (making the statute of repose inapplicable to "any manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property" (emphasis added)). A plain reading of the statute, therefore, excludes from its coverage all producers of equipment or machinery installed on real property. See United States v. Villanueva-Sotelo, 515 F.3d 1234, 1237 (D.C.Cir. 2008) ("We must first determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. If it does, our inquiry ends and we apply the statute's plain language. But if we find the statutory language ambiguous, we look beyond the text for other indicia of congressional intent." (internal citations and quotation marks omitted)); see also McCormick v. Columbus Conveyor Co., 522 Pa. 520, 564 A.2d 907, 910 (1989) ("The word `any' is generally used in the sense of `all' or `every' and its meaning is most comprehensive.").
Furthermore, the Court notes that not all statute of repose cases decided before the 1987 amendment involved hazardous materials. See, e.g., J.H. Westerman Co. v. Fireman's Fund Ins. Co., 499 A.2d 116, 117 (D.C. 1985) (producers of electrical switches); Britt v. Schindler Elevator Corp., 637 F.Supp. 734, 735 (D.D.C. 1986) (manufacturer of elevators). Thus, if the District of Columbia legislature intended for section 310(b)(3) to reach only asbestos manufacturers, given the litigation that had already taken place, it could have used more restrictive language other than use of the term "any manufacturer." Importantly, one of Alstom's own exhibits supports the reasonableness of this conclusion by indicating that the 1987 amendment was enacted to achieve a separate intent, i.e., "[s]ection 4 of the draft bill would bring the District's law in line with those of [the] overwhelming majority of states," Alstom's Reply, Ex. A at 3, an intent distinguishable from concerns about the overwhelming amount of asbestos litigation taking place at the time. Therefore, Alstom's own evidence suggests that while some provisions of D.C. Law 6-202 were intended to apply solely to asbestos litigation, such as the addition of subsection (10) to section 12-301, see D.C. Law 6-202 § 3,
For all of these reasons, this Court finds that the District of Columbia statute of repose is not available as a defense to Alstom resulting from its role as a manufacturer and denies Alstom's motion to dismiss Counts 7,
B. The Plaintiffs' Breach of Warranty Claims
Alstom also seeks dismissal of the plaintiffs' breach of warranty claims (Counts 11, 12, and 15 of the Master Complaint and Counts 4, 5, and 6 of the McMillan Estate Complaint) on the grounds that they are insufficiently pleaded and time-barred under the UCC's statute of limitations. According to Alstom, the plaintiffs have not adequately alleged a claim for breach of the implied warranties of merchantability and fitness for a particular purpose because they allegedly neglected to state that Alstom is a "merchant" or "seller" of "component parts for train detection systems," Def.'s Mem. at 17, or that the sale was not an isolated sale of goods, id. at 21. Alstom also contends that the non-merchant exception for the warranty of fitness does not apply because the plaintiffs did not plead that the "particular circumstances of [this] case justify the fact that Alstom is a non[-]merchant." Id. at 21. In addition, Alstom maintains that the express and implied warranty claims are time-barred under the UCC's statute of limitations. Id. at 17-20. Specifically, Alstom contends that (1) the component parts of the transit system were delivered in the 1970s, (2) the plaintiffs do not allege that the express warranty extended to future performance such that the discovery rule would apply to those claims, and (3) based on Hunt v. DePuy Orthopaedics, Inc., 636 F.Supp.2d 23, 26 (D.D.C. 2009), and Lee v. Wolfson, 265 F.Supp.2d 14, 19-20 (D.D.C. 2003), the discovery rule does not apply to implied warranties. Def.'s Mem. at 20. Thus, Alstom alleges that the breach of warranty claims accrued at the time of delivery, and are barred by the four-year statute of limitations of UCC section 28:2-725. Id.
The plaintiffs respond, arguing that the breach of warranty claims are not based on a contract of sale, and are therefore not subject to the UCC statute of limitations. The plaintiffs refer the Court to Bowler v. Stewart-Warner Corp., 563 A.2d 344 (D.C. 1989), for the proposition that consumers' claims for breach of the implied warranties are "not subject to the various rules governing [UCC] sales" because "the warranty in a products liability case brought by a consumer [is] quite different from a warranty in connection with a sale of goods." Pls.' Jt. Opp'n at 7 (internal quotation marks omitted) (quoting Bowler, 563 A.2d at 346). Specifically, the plaintiffs allege that consumer-injury claims based on products liability are governed by rules applicable to strict liability, including a discovery rule with a three-year statute of limitations. Id. at 8-9. In addition, the plaintiffs argue that Bowler is irreconcilable with Hunt and Lee, "and as a result they directly contradict Bowler, which this Court must follow as a definitive statement of D.C. law;" therefore, according to the plaintiffs, Lee and Hunt are invalid. Id. at 9-10. Moreover, the plaintiffs contend that even if Lee and Hunt are not nullified by Bowler, they are distinguishable. Id. at 10 (stating that Hunt and Lee are distinguishable because each plaintiff in those cases was "a party to the sale," which brought each "transaction under the
In addition to these arguments, the McMillan Estate further argues that its complaint sufficiently alleges that Alstom is a "seller" or "merchant."
In its reply to the joint opposition, Alstom states that "[w]hether precluded by the statute of limitations, or simply duplicative of the strict liability claim, the implied
Alstom also replies to the McMillan Estate's opposition, arguing that, in addition to its foregoing arguments made in response to the joint opposition, the future performance exception does not apply to the express warranty claim because the Court cannot consider the GRS/Alstom contract since it was not referenced in or attached to the complaints, Alstom's McMillan Estate Reply at 6-7, and because "naked contract specifications cannot... be bootstrapped into unlimited express warranties of lifetime performance," id. at 7. In addition, Alstom contends that the McMillan Estate's supposition that an implied warranty claim may "accrue under a discovery rule when there is also a separate and express guarantee of future performance" is not supported by any legal authority, id. at 7 (internal quotation marks omitted) (quoting McMillan Estate Opp'n at 17), and in any event the claim fails because the McMillan Estate did not allege in its complaint an express warranty of future performance, id. at 8.
1. Do the Complaints Allege that Alstom is a "Merchant" or "Seller" under the UCC?
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain only a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). As such, "a pleader must allege facts, directly or indirectly, supporting each element of [a] claim." McDonald Bros., Inc. v. Tinder Wholesale, LLC, 395 F.Supp.2d 255, 265 (M.D.N.C. 2005) (emphasis added); see also Guthery v. United States, 562 F.Supp.2d 136, 138-39 (D.D.C. 2008). Accordingly, courts are permitted to draw reasonable inferences from the pleadings when ruling on a Rule 12(b)(6) motion. Guthery, 562 F.Supp.2d at 138-39.
Under District of Columbia law, "a warranty that ... goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." D.C.Code § 28:2-314(1) (2001). A claim in a complaint based on a breach of implied warranty of merchantability theory must therefore contain facts plausibly showing that the defendant is a merchant. See D.C.Code § 28:2-314 cmt. 13 (stating that in order to allege a claim for breach of warranty, the plaintiff must prove the existence of the warranty); D.C.Code § 28:2-314(1) (stating that the warranty of merchantability is implied in a contract for the sale of goods "if the seller
Here, the complaints allege that Alstom "provides train traffic control equipment, software and support services to [the WMATA]," Compl. ¶ 7, and that "at all relevant times ... [Alstom] provided train traffic control equipment, software and support services to [the WMATA]," id. ¶ 8. Based on these allegations alone, the Court can infer that Alstom "deals in goods of the kind," D.C.Code § 28:2-104(1), specifically train traffic control equipment and software, "or otherwise ... holds [itself] out as having knowledge or skill peculiar to," id., train traffic control equipment and software. The plaintiffs need not directly plead that Alstom is a merchant, so long as such status can be implied from the allegations in the complaints and the relationship between the parties. See Gregory Wood Prods., Inc. v. Advanced Sawmill Machinery Equip., Inc., No. 5:06-CV-00087, 2007 WL 1825179, at *5 (W.D.N.C. June 25, 2007) (finding that the plaintiff had pleaded facts supporting a claim for breach of the implied warranty of merchantability even though the plaintiff never directly alleged that the defendant was a merchant in goods of the kind, because it could be implied from the relationship between the parties and allegations in the complaint). Nor do the plaintiffs have an affirmative obligation to plead that Alstom was not engaged in an isolated sale of goods, where the allegations in the complaints imply that Alstom was involved in the sale of train traffic control equipment and software over a period of time. See id.; Compl. ¶¶ 7-8. Thus, the plaintiffs have sufficiently alleged that Alstom is a merchant for implied warranty of merchantability purposes.
Additionally, in the District of Columbia, "[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is ... an implied warranty that the goods shall be fit for such purpose." D.C.Code § 28:2-315 (2001). A "seller" is defined as "a person who sells or contracts to sell goods." D.C.Code § 28:2-103(1)(d). Therefore, for a complaint to assert a breach of implied warranty of fitness for particular purpose
The complaints allege that Alstom "provided train traffic control equipment, software and support services to [the WMATA]," Compl. ¶ 8, and that Alstom "was involved in the design, manufacture, marketing, inspection, distribution, sale, and/or warranty to the public, including the WMATA subway system and the passengers using that subway system, and placed into the stream of commerce, the automatic train control system, or component parts thereof, for the WMATA system," id. ¶ 9 (emphasis added). Again, these allegations imply that Alstom "sells or contracts to sell goods"—the automatic train control system or its component parts in particular. As noted earlier, the plaintiffs do not have to directly plead that Alstom is a "seller" where it can be inferred from the allegations in the complaints that Alstom had that status. See, e.g., Gregory Wood Prods., Inc., 2007 WL 1825179, at *5 (implied warranty sufficiently pleaded despite failure to directly allege that the defendant was a merchant in goods of the kind, because it could be implied from the relationship between the parties and allegations in the complaint); see also Guthery, 562 F.Supp.2d at 139. Thus, the plaintiffs have sufficiently alleged that Alstom was a seller of the WMATA automatic train control system or its component parts.
2. Are the Breach of Implied Warranty Claims Duplicative of the Strict Products Liability Claim?
The UCC has a four-year statute of limitations for the filing of breach of warranty claims. See U.C.C. § 2-725; D.C.Code § 28:2-725 (2001). The statute of limitations begins to run at the time of breach,
D.C.Code § 28:2-725(2). Alstom argues that the discovery rule exception enumerated in this provision does not apply to implied warranties. Def.'s Mem. at 18-20. The plaintiffs, however, contend that their breach of warranty claims are grounded in tort, not on a contract of sale, and are therefore not subject to the UCC, see Pls.' Jt. Opp'n at 7-10, but even if they were subject to the UCC, the discovery rule tolls the statute of limitations as to strict liability claims, and implied warranty product liability and strict liability claims "are one and the same," id. at 8-9.
The plaintiffs are correct that claims of strict products liability and breach of implied warranty are considered
3. Do the Plaintiffs Fail to Allege an Express Warranty of Future Performance?
Breach of express warranty claims are subject to the four-year UCC statute of limitations.
For a warranty of future performance to exist under D.C.Code section 28:2-725, "the terms of the warranty must unambiguously and explicitly indicate that the manufacturer is warranting the future performance of the goods for a specified period of time." In re Lone Star Indus. Inc., 776 F.Supp. 206, 219 (D.Md. 1991) (emphasis added) (citing R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818 (8th Cir.1983)). "The future performance exception is construed narrowly, and courts have been very harsh in determining whether a warranty explicitly extends to future performance." Miles v. Raymond Corp., 612 F.Supp.2d 913, 926 (N.D.Ohio 2009) (internal quotation marks omitted) (quoting Standard Alliance Indus., Inc. v. Black Clawson Co., 587 F.2d 813, 820 (6th Cir. 1978)); cf. South Jersey Gas Co. v. Mueller Co., No. 09-4194 (RBK-JS), 2010 WL 1742542, at *5 (D.N.J. April 27, 2010) (noting that the requirement of specificity is the hallmark distinction between a warranty of future performance and all other warranties because "all warranties refer to the future, [but] all warranties do not explicitly extend to future performance"). Two requirements limit the recognition of such warranties. First, the requirement that the warranty extend to future performance means that the warranty cannot simply be a representation of the product's condition at the time of delivery. South Jersey Gas Co., 2010 WL 1742542, at *5; Winchester Homes, Inc. v. Hoover Universal, 39 Va. Cir. 107 (Va.Cir.Ct. 1996). Second, the warranty must reference a "specific future time period during which the goods are warranted to perform." South Jersey Gas Co., 2010 WL 1742542, at *5 (emphasis added); see also Miles, 612 F.Supp.2d at 926 ("Emphasizing the word `explicitly,' [courts] have ruled that there must be specific reference to a future time in the warranty."); In re Lone Star Indus. Inc., 776 F.Supp. at 219 ("For a warranty of future performance to exist ..., the terms of the warranty must unambiguously and explicitly indicate that the manufacturer is warranting the future performance of the goods for a specified period of time. The term `explicit' has been defined as `not implied merely, or conveyed by implication; distinctly stated; plain language; clear; not ambiguous; express; unequivocal.'" (internal citation omitted) (quoting Binkley Co. v. Teledyne Mid-America Corp., 333 F.Supp. 1183 (E.D.Mo. 1971))).
a. The complaints fail to allege any express warranty of future performance
The complaints in this case fail to adequately allege any express warranties of future performance. The Master Complaint states that Alstom
Compl. ¶ 274. This paragraph does not come close to adequately alleging any express warranty of future performance. See, e.g., Miles, 612 F.Supp.2d at 926 & n. 12 (holding that a complaint which stated that the defendants made and breached express warranties, "including but not limited to warranties concerning the alleged proper, safe and/or fitness for use of this forklift in the area of horizontal shelves where the height of the first shelf exceeds
b. The Alstom/GRS contract with the WMATA did not include an express warranty of future performance
For several reasons, the Alstom/GRS contract also fails to establish an express warranty of future performance. First, the plaintiffs do not reference the WMATA contract anywhere in their complaints, and therefore, the contract itself cannot be considered in deciding Alstom's motion to dismiss. See St. Francis Xavier Parochial Sch., 117 F.3d at 624 (stating that the Court "may consider [in deciding a 12(b)(6) motion to dismiss] only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice"). Second, even if the complaints were amended to include the language relied upon by the McMillan Estate, an express warranty of future performance would still not be adequately asserted. The particular contract language the McMillan Estate points to all fall under the sub-heading "Fail-Safe Design Criteria," and include the following statements: (1) "[a]ny amplifier breaking into spurious oscillations shall not result in an unsafe condition," McMillan Estate Opp'n, Ex. E (Contract); (2) the "automatic train control system and components would be fail-safe," McMillan Estate Opp'n at 16, because "[s]elf-detecting component or system failures shall cause the train(s) to stop or run at a safe, more restrictive speed than that permitted with no failure," McMillan Estate Opp'n, Ex. E (Contract); and (3) "[c]omponent or system failures which are not self-detecting shall not cause unsafe conditions, even if added to other failures," id. None of these statements, either individually or collectively, qualify as anything more than a description of the product's condition at the time of delivery. See South Jersey Gas Co., 2010 WL 1742542, at *5 ("A warranty that explicitly extends to future performance of goods... is more than a mere representation [of] the condition of a product at the time of delivery."); Travelers Indem. Co. v. Dammann & Co., Inc., 592 F.Supp.2d 752, 764 (D.N.J. 2008) (stating that a warranty of future performance cannot be "a mere representation of the product's condition at the time of delivery" (internal quotation marks omitted)); Winchester Homes, Inc., 39 Va. Cir. 107 (same). Furthermore, none of these statements designate a defined future period of time during which the alleged warranty would apply. See Joswick v. Chesapeake Mobile Homes, Inc., 362 Md. 261, 765 A.2d 90, 96 (2001) ("There is no problem when the warranty simply states that the goods have a certain positive quality or are free from all or certain defects but states no time period during which the goods will continue to have that quality. That kind of warranty does not reference or extend to any future performance."); see also, e.g., Travelers Indem. Co., 592 F.Supp.2d at 764 (holding that seller's guaranty that vanilla beans would not contain pesticides, radiation or radioactive contaminants at unsafe levels did not concern "future performance" because it contained no specific reference to a future time period); Winchester Homes, Inc., 39 Va. Cir. 107 (holding that statements
For all of the foregoing reasons, Count 12 of the Master Complaint and Count 5 of the McMillan Estate Complaint must be dismissed. However, the Court will dismiss these counts without prejudice, and permit the plaintiffs to move for reconsideration of the Court's ruling if discovery reveals that Alstom made any express warranties that explicitly guarantee future performance for a specified period of time that encompasses the date of the accident in this case.
C. Alstom's Duplicative and Derivative Claims Challenges
1. Counts 14 and 7
Count 14 of the Master Complaint asserts a claim against the defendants for negligent train traffic control. The gravamen of this claim is that the defendants "owed a duty of reasonable care of providing accurate train traffic control equipment, software and support, in order for all WMATA passengers ... to travel safely," Compl. ¶ 284, and that this duty was breached by the defendants' failing to (1) "properly maintain its computer safety warning system," id. ¶ 296, and (2) "properly design, install, inspect, test[,] and maintain its computer warning system of notice ... designed to prevent the two WMATA trains from colliding," id. ¶ 297. This claim is a mere restatement—almost verbatim—of Count 7, which similarly alleges that the defendants breached their duty to provide accurate and safe train traffic control "[b]y failing to properly maintain its computer safety warning system," id. ¶ 239, and "failing to properly design, install, inspect, test[,] and maintain its computer warning system of notice ... to prevent the two WMATA trains from colliding," id. ¶ 240. See also id. ¶ 228. The legal theory for the plaintiffs' negligent train traffic control claims (Counts 7 and 14) is therefore identical.
In short, Count 14's negligent train traffic control claim is entirely duplicative of the negligent train traffic control claim pleaded in Count 7. Accordingly, Count 14 "rests on the same factual allegations ..., would be decided under the same legal standards ..., and authorizes the same forms of relief" as Count 7. Iacangelo v. Georgetown Univ., No. 05-2086(PLF), 2011 WL 149852, at *2 (D.D.C. January 19, 2011). The Court therefore will require that the plaintiffs choose which of the two counts they desire to pursue. Upon being advised of that decision, the other claim will be dismissed by the Court.
2. Counts 16 and 17
Alstom contends that because Counts 7, 9, 10, 11, 12, 14, and 15 of the Master Complaint, and Counts 1, 2, 3, 4, 5,
For the foregoing reasons, Alstom's motion to dismiss is granted in part and denied in part. The Court's ruling is summarized as follows. Alstom's arguments that the plaintiffs' negligence and strict products liability claims (Counts 7, 9, 10, and 14 of the Master Complaint and Counts 1, 2, 3, and 8 of the McMillan Estate Complaint) should be dismissed as barred by the statute of repose fail, except to the extent that these claims extend to Alstom in its capacity as a designer. Also, the Court's CMO and subsequent orders permit the McMillan Estate to file separate claims involving issues it deems "substantially different" from those pleaded in the Master Complaint, and therefore, Count 8 of the McMillan Estate Complaint may be pursued because it is reasonably deemed substantially different from Count 10 of the Master Complaint. Furthermore, although the plaintiffs adequately pleaded their implied warranty claims, the Court agrees with Alstom that the implied warranty claims are duplicative of the strict products liability claims. In addition, the Court agrees with Alstom that the express warranty claim is barred by the statute of limitations. Moreover, the Court agrees with Alstom that Count 14 of the Master Complaint is duplicative of Count 7 of the Master Complaint. Finally, because some causes of action on which the wrongful death and survival actions are based survived Alstom's motion to dismiss, both the wrongful death and survival claims survive the Court's partial grant of Alstom's motion.
Based on these rulings, the Court denies Alstom's motion to dismiss as to Counts 7, 9, 10, 16, and 17 of the Master Complaint
These corresponding claims asserted in the McMillan Estate Complaint against Alstom are as follows: Count 1—negligent train traffic control; Count 2—strict products liability—design defect, manufacturing defect, failure to warn; Count 3—negligence—design defect, manufacturing defect, failure to warn; Count 4—breach of implied warranty of merchantability; Count 5—breach of express warranty; Count 6—breach of warranty & implied warranty of fitness for particular purpose; Count 8—negligence—failure to warn; Count 9—wrongful death; and Count 10—a survival claim for injuries sustained by McMillan prior to her death.
D.C. Law 6-202 § 3(a) (emphasis added).
D.C. Law 6-202 § 2 (emphasis added).
Section 5 states that:
D.C. Law 6-202 § 5 (emphasis added).
D.C. Law 6-202 § 4.
D.C.Code § 16-2701(a).