Case 2:18-Cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 1 of 28 Pageid: 2771

Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 1 of 28 PageID: 2771

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

GARNER RICKMAN, individually and on behalf of all others similarly situated, Civil Action No. 18-4363 Plaintiffs, OPINION V.

BMW OF NORTH AMERICA, et al., Defendants.

Kevin McNulty, U.S.D.J. This putative class action alleges that the diesel engines of two BMW models, the 2009-2013 BMW X5 xDrive35d (the “X5”) and the 2009-2011 335d (the “335d”) (together, “the Subject Vehicles”), emit nitrogen oxides (“NOx”) at levels in excess of federal and state emissions standards. Plaintiffs assert that Defendants BMW of North America (“BMW USA”) and Bayerische Motoren Werke Aktiengesellschaft (“BMW AG”) (together, “BMW”) colluded with Defendants Robert Bosch GmbH and Robert Bosch LLC (together, “Bosch”) to market the cars as “clean diesel” while they knew that the Subject Vehicles discharged emissions at impermissible levels. The true level of emissions was allegedly masked during laboratory testing by deceptive technology (a “defeat device”) that Defendants developed and employed. The Complaint brings counts under the

Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, and various state consumer protection laws. Plaintiffs seek to bring these claims on behalf of themselves and a nationwide class of all persons or entities who purchased or leased the BMW models at issue. Now before the Court are motions by BMW USA (DE 29) and Robert Bosch LLC (DE 30) to dismiss the Consolidated Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 2 of 28 PageID: 2772

Class Action Complaint (“the Complaint”, DE 26, cited as “Comp.”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). There are some 42 named plaintiffs who allegedly own the X5 or 335D models. Lacking here is a straightforward allegation that an identified plaintiff bought a car which. when tested or analyzed, turned out to contain a defeat device. Rather, the Complaint alleges that one six-year-old X5 model car with 60,000 miles on the odometer was tested. It is not alleged that this car was owned by any plaintiff; it seems to be proffered as an exemplar. That testing revealed a discrepancy between on-road and laboratonr emissions levels. There seems to have been no further physical or electronic analysis attributing the discrepancy, which might have a number of explanations, to a defeat device. Such testing surely suffices to raise suspicions, if little more. The real weak link, however, is the suggested inference that anyone (including the 42 plaintiffs) who bought that model car unknowingly purchased a defeat device. I have examined the allegations in the context of other diesel vehicle defeat device cases in which motions to dismiss were denied. Those complaints tended to offer more corroboration, generally consisting of official findings or testing from independent sources which tended to suggest a uniform practice of installing a defeat device in a particular model. Here, however, the named Plaintiffs have not adequately alleged that they personally (or the putative class members) have suffered an injury in fact. For the reasons set forth below, Defendants’ motions are granted and Plaintiffs’ Complaint is dismissed. That dismissal is without prejudice to a properly supported motion to amend the complaint, perhaps following further scientific analysis. Before I will put this massive class action on the road, however, I will require a more careful look under the hood.

2 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 3 of 28 PageID: 2773

I. BACKGROUND’ a. Procedural History Plaintiffs initiated this action on March 27, 2018, originally under the caption GamerRickman v. BMWof North America, eta?. (DE 1). Plaintiffs filed an amended complaint as of right on April 19, 2018, which was captioned Chad Maccanelli, eta?., v. BIvWVof North America, eta?. (DE 6). On May 8, 2018, certain other plaintiffs, represented by the same counsel, filed a complaint captioned Ricky Evans, eta?. v. BMWof NorthAmericaLLC, etaL, Case No. 2:18-cv-08935, which added 21 new plaintiffs but was otherwise substantially identical to the complaint in Maccanelli. On August 3, 2018, Plaintiffs consolidated the two actions through the filing of a Consolidated Class Action Complaint, which is the currently operative pleading. (DE 26). In light of the consolidation, Plaintiffs voluntarily dismissed the complaint filed in the Evans matter. (DE 28). On May 16, 2019, this case was reassigned from Judge Vazquez to Judge McNulty for all further proceedings. (DE 57). Presently before the Court are motions to dismiss the Consolidated Class Action Complaint by BMW USA (DE 29) and Robert Bosch LLC (DE 30).2 Plaintiffs filed briefs in opposition (DE 37, 39), to which Defendants replied (DE 43, 44). After briefing on the motions was

Record items will be abbreviated as follows. Citations to page numbers refer to the page numbers assigned through the Electronic Court Filing system, unless otherwise indicated. “DE “= Docket Entn’ number in this case

“Comp. ¶ —“ = Consolidated Class Action Complaint (DE 26) “BMW Br.” = BMW’s Brief in Support of its Motion to Dismiss (DE 29-1) “P1. BMW Opp.” = Plaintiffs’ Opposition Brief to BMW’s Motion (DE 37) “Bosch Br.” = Bosch’s Brief in Support of its Motion to Dismiss (DE 30-1) “P1.Bosch Opp.” = Plaintiffs’ Opposition Brief to Bosch’s Motion (DE 39) 2 BMW USA and Robert Bosch LLC assert that BMW AG and Robert Bosch GmbH have not been served. (BMW Br. at 14, n. 4; Bosch Br. at 11, n. 1). BMW AG and Robert Bosch GmbH have not joined in either motion to dismiss.

3 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 4 of 28 PageID: 2774 BMW complete, Volkswagen, components assertions car’s under a evasion specific regulators pass unlawful proceedings system 74). electronically by Clean 3 to Civil Ltd. as Subject (“DOJ”); car Federal true Bosch According v. Procedure emissions emissions USA BMW Recently, Other Plaintiffs Air that On Crozer—Chester normal and during typically test Vehicles. b. a Act; Fiat Rule scheme Plaintiffs and that in that view facial alters makes Factual by environment. that leading have this sense Mercedes road of 12(b)(l) to normal Robert Chrysler the they tests them appear assert turn jurisdictional included Civil Plaintiffs, enabled several the fashion. Specifically, to and been Environmental conditions. filed that Med. Summary3 evaded in but Procedure diesel evade emission and off Bosch operation. sells the that to is notices embroiled they then Ctr., Automobiles or BMW the a under This leading be light Volkswagen these motion automobiles. emissions emissions manufacturers BMW turn LLC challenge use lower are 721 reduces In plaintiffs use 12(b)(6), most to control of investigation diesel of not this filed F.2d fool Protection down supplemental to in of and auto when a favorable dismiss in defeat way, a regulatory civil to responses 68, the standards manufacturers 4 I standards system pled (“FCA”) a defeat accept Bosch a claim emission Bosch test tested 75 manufacturers, effectiveness complaint a and device, have for defeat guilty Agency (3d to by environment. device all that when failure the is criminal have has Cir. authority in the (DE tests for well-pleaded alleged been with consisting controls plaintiff. to device the pursuant due (“EPA”). U.S. 1983). their 47, would tested been criminal to similarly used of lab of a accused state to their 48, proceedings Department to enables the defeat diesel (DE See than defeat Cardio—Med. the have most deceptively when subjected by (Comp. 51). to a factual of emissions cars’ Section 46, claim violations Federal use engaged regulators software vehicles. they manufactured device of devices the 49, prominently the emissions.

9 of allegations pursuant misleading of II, vehicle would involving 50), Rule a Assoc., 3, vehicles to make Justice control for infra. within defeat of in 9—11, made Such in and civil of the the an be to a a Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 5 of 28 PageID: 2775

device the Subject Vehicles emit levels of NOx many times higher than (i) their gasoline counterparts; (ii) what a reasonable consumer would expect; (iii) what BMW has advertised; (iv) the EPA’s and certain states’ maximum standards; and (v) the levels necessary to obtain certificates of conformity, a prerequisite to selling motor vehicles in the United States. (Comp. ¶ 2). i. Parties BMW USA is a corporation doing business in all fifty states and the District of Columbia that is organized under the laws of Delaware with its principal place of business in New Jersey. (Comp. ¶ 61). BMW USA manufactured, sold, and warranted the Subject Vehicles throughout the United States at all relevant times to this action and installed the diesel engine systems. (Id. ¶ 62). Germany- based BMW AG, which supervised the manufacturing and advertisements of the Subject Vehicles in the United States, is the parent company of the BMW Group.

(Id. ¶ 63). Robert Bosch LLC is organized under the laws of Delaware and has its

principal place of business in Michigan. (Comp. 9 68). Robert Bosch GmbH is a German multinational engineering and electronics company headquartered in

Germany and is the parent company of Robert Bosch LLC. (Id. ¶ 67). Plaintiffs refer to both entities jointly as “Bosch” and assert that the Bosch entities share

a collective identity. (Id. 1 69—72, 230). ii. Plaintiffs’ Testing and Defeat Device Allegations Plaintiffs claim that Bosch developed and manufactured the electronic diesel control (“EDC”) that allowed BMW to implement defeat devices in the Subject Vehicles as a means of evading regulatory scrutiny. (Comp. ¶9 15, 64, 67 ,70, 201—14). One such Bosch EDC—the EDC17—allegedly is a “perfect enabler” for the use of a defeat device because it empowers software within the car to detect whether the car is experiencing a test environment versus normal driving conditions and alters emissions output accordingly. (Id.). Almost all of the diesel vehicle manufacturers who allegedly manipulated emissions in the U.S., see supra, used a Bosch EDC17 device. (Id.). German and U.S. prosecutors

5 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 6 of 28 PageID: 2776

are currently investigating certain Bosch managers for their role in the emissions scandal involving Volkswagen and other manufacturers. (Id. 9 73, 74). The Complaint alleges that, since the BMW Subject Vehicles use a Bosch EDC17, as did the Volkswagen cars and other suspect diesel vehicles, “Bosch was a participant in the scheme to hide the true emissions” of the Subject Vehicles. (Id.

¶ 75). In order to be sold in the United States, a vehicle must be covered by a certificate of conformity (“COC”) issued by the EPA. (Comp. ¶ 77). The COC certifies that the vehicle comports with the specific emissions standards for pollutants set forth in the Clean Air Act. (Id. 9 76—77, 85, 108). To receive a COC, a diesel vehicle must not emit more than a specific amount of both NOx, which is a byproduct of diesel combustion, and particulate matter (“PM”). (Id. 9 82—83, 85, l08). Pollution from NOx and PM has been linked with serious environmental problems and health risks. (Id. ¶J 6, 78, 81—83, 106, 265—67). Diesel engines have higher NOx and PM emissions than their gasoline counterparts due to differences in fuel combustion and the treatment of emissions within the engine following combustion. (Id. ¶ 84). A manufacturer’s application for a COC must accurately describe the vehicle “in all material respects,” including any auxiliary emission control device (“AECD”) installed in the vehicle. (Comp. ¶J 85, 109, 209, 244). A defeat device is a type of AECD. (Id.). A manufacturer would not be able to obtain a COC if it disclosed the existence of a defeat device because defeat devices impermissibly reduce the effectiveness of an automobile’s emission control system during normal driving use. (Id. 9 4, 110, 209—10).

4 California emission standards are more stringent than those of the EPA. (Comp. 9 85, 111). California’s state regulator, the California Air Resources Board (“CARB”). requires a similar application from automakers to obtain an executive order confirming compliance with California’s emission regulations—the analog to the EPA’s COC—as a prerequisite to selling cars in California. (Id. ¶1185, 111, 116). Under certain circumstances, a manufacturer could demonstrate compliance with California standards as part of its application to the EPA. (Id. ¶ 113).

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Here, Plaintiffs allege that BMW failed to disclose to regulators the presence of one or more defeat devices that it developed with Bosch for the two

BMW diesel vehicles at issue. (Comp. ¶3j 15, 210). As discussed below, Plaintiffs base their allegation on an inference from their own testing on one vehicle. They argue that since that one vehicle emitted suspiciously discrepant levels of emissions during road testing and lab testing, it follows that a defeat device must be present in all the Subject Vehicles. When regulators test emission levels in a lab, they typically do so with a device called a chassis dynamometer, which might be compared to a treadmill. (Comp. ¶ 116, 146, 208). A chassis dynamometer is “a fixture that holds a car in place while allowing its driven wheels to turn with varying resistance meant to simulate the actual load on the engine during on-road driving.” (Id.). The regulators then measure the emission levels at varying speeds and acceleration levels to see if the tested vehicle meets the relevant emission standards. (Id) When properly calibrated, the chassis dynamometer can simulate real world driving with a high degree of accuracy. (Id. ¶ 146). A separate form of testing can be done using a portable emission measurement system (“PEMS”), which measures the gaseous emissions from a vehicle, including NOx and PM. Being portable, the device can test emission

levels during normal, on-road driving. (Comp. ¶ 143). The critical distinction between PEMS and chassis dynamometer testing, then, is that the PEMS can operate during normal driving, while the chassis dynamometer operates only in

a simulated, laboratory setting. (Id. ¶ 143, 146). Previously, defeat devices circumvented regulatory scrutiny by detecting that the vehicle was on a chassis dynamometer—Le., not actually driving on the road. (Comp. ¶J 2, 14, 157—58). If so, the defeat device would limit the emissions output to meet regulatory standards.5 If not—e.g., when the vehicle was driven

One way that a defeat device can be triggered is with a change in ambient temperature. (Comp. 156). Both high and very low ambient temperatures cannot be tested in a chassis dynamometer laboratory, so when the vehicle senses that it is in

7 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 8 of 28 PageID: 2778 allowing Volkswagen’s chassis on (Id.). not under PEMS a emissions is standards, purposes. economy and account speed during medium defines rapid frequent Procedure) one device predefined group to the perform of simulate varying An Prior The those and defeat changes which road testing the of dynamometer the the duty for emissions stops), testing (Id.). university time FTP-75 cycle. and cycle. levels, to test temperatures, under highway can PEMS car maximum sample an a manipulation passenger the The typical intervals they on in cycle detect to engine (Id. along (Id.). revelations of normal is as have speed testing protocol Volkswagen test reported speeds. scientists

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it Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 10 of 28 PageID: 2780 change Otherwise, chassis the models.” Vehicle “appears “closely emission close Phase “emission flat (Comp.

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PEMS “stop and go testing,” Plaintiffs’ found emissions to be on average 8.5 times higher than the certification standard. (Id. ¶ 174—76). The VfP-75 test cycle specifies precise speeds at any given time during the

test. (Comp. 1 191). The required speed at each point during the test is called the “trace.” (Id.). For Plaintiffs’ PEMS testing, during Phase 2 of the FTP-75 test cycle (the stabilized phase), the emission levels corresponded closely with the emission results found on the dynamometer. (Id. ¶ 190). However, when the PEMS testing for Phase 2 was conducted under the same overall average speed, “but a different and arbitrary test trace,” emission levels “increase[dj

dramatically.” (Id. ¶ 191). In other words, “when the test trace is arbitrarily

changed to another trace with a similar profile, emissions increase. . . by a factor

of 10.” (Id. ¶ 192). From this, Plaintiffs deduce that “BMW appears to detect the test trace and reduce the effectiveness of the [selective catalytic reductionj system when it detects [thatj the FTP-75 test cycle is not being run.” (Comp. ¶ 193—94). Stated differently, the Tested Vehicle is “able to detect the certification test cycle and adjust the emissions performance when it ‘knows’ the test cycle is not being run.” (Id.).

With respect to Phase 1 of the fl’P-75 test cycle (the “cold” start), Plaintiffs’ testing indicated that the emissions of the Tested Vehicle during on-road PEMS

testing were 3,3 times the level found on the chassis dynamometer. (Comp. ¶ 196). With respect to Phase 3 of the VPP-75 test cycle (the “hot” start), Plaintiffs’ testing indicated that the emissions of the Tested Vehicle during on-road PEMS testing was around 5 times the level found on the chassis dynamometer. (Id. ¶J

7 Plaintiffs include a graph of the VFP-75 test cycle indicating the required speed in miles per hour on the X-axis and the time in seconds on the Y-axis. (Comp. ¶ 181). Ostensibly, this graph indicates the “trace” of the VI’P-75 test cycle—i.e., the required speed for a given time. (Id. ¶31181, 191). 8 Plaintiffs describe this arbitrary and different test trace speed as “parametrically similar” to Phase 2 of the VfP-75 test cycle. (Comp. ¶ 194).

11 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 12 of 28 PageID: 2782

197—98).° Plaintiffs contend that these results “show that BMW is employing an illegal software defeat strater” for both Phase 1 and PhaseS of the FTP-75 cycle.

(Id. ¶‘ 199). Plaintiffs also allude to a 2016 study conducted by a European group called Transportation and Environment, which allegedly found that certain other BMW diesel vehicles, along with almost every new diesel model, showed significant discrepancies between real-world emissions and laboratory emissions. (Comp. ¶9199, 200, 274—75, 278). Additionally, in September 2017, the International Council on Clean Transportation (“ICCT”) authored a report analyzing the real world versus lab testing emissions of many manufacturers’ vehicles. (Id. ¶ 279). The lCfl found that certain BMW vehicles (not the Subject Vehicles at issue here) produced emissions above European regulatory standards. (Id. ¶ 279). Plaintiffs generally contend that the existence of “a worldwide diesel emissions cheating scandal” lends credence to the plausibility of their specific allegations against BMW and Bosch. (Id. ¶9 270—79). ill. Marketing BMW promoted the Subject Vehicles to potential consumers as delivering reduced NOx emissions and generally as “clean vehicle[s}.” (Comp. ¶ 119). These marketing claims fall into three broad subcategories: (1) the Subject Vehicles meet federal and/or state emission standards (Id. ¶9 92, 121, 125, 127, 133, 135—36, 138, 140); (2) the Subject Vehicles have “less emissions” than other versions of BMW cars (Id. ¶ 92, 121, 122, 123, 125—27, 129—30, 132, 135, 137, 139—40); and (3) the Subject Vehicles are generally “environmentally friendly” and actively help to “protect” the environment (Id. ¶9 125, 128—29, 133, 140).

9 The Complaint at ¶9 197—98incorrectly refers to Phase 1 when discussing Phase 3. The chart at those paragraphs and the discussion about the hot start phase make clear that the Plaintiffs intended to discuss Phase 3 and that the references to Phase 1 here are a typographical error.

12 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 13 of 28 PageID: 2783

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a Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 15 of 28 PageID: 2785

Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell At?. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the complaint’s factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, so that a claim is “plausible on its face.” Id. at 570; see also West Run Student Hous. Assocs., LLC v. Huntington Nat’? Bank, 712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft u. Iqba?, 556 U.S. 662, 678 (2009) (citing Twomb?y, 550 U.S. 544, 556). While “[t]he plausibility standard is not akin to a ‘probability requirement’ . . . it asks for more than a sheer possibility.” Iqbal, 556 U.S. 662, 678. With respect to allegations of fraud, “a party must state with particularity the circumstances constituting fraud,” although “intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b); see also U.S. ex rd. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 307 (3d Cir. 2016) (“A plaintiff alleging fraud must therefore support its allegations ‘with all of the essential factual background that would accompany the first paragraph of any newspaper story—that is, the who, what, when, where and how of the events at issue.” (quoting In re Rockefeller Ctr. Props., Inc. Securities Litig., 311 F.3d 198, 217 (3d Cir. 2002))). In doing so, “a party must plead [its] claim with enough particularity to place defendants on notice of the precise misconduct with which they are charged.” United States ex rel. Petras v. Simpare?, Inc., 857 P.3d 497, 502 (3d Cir. 2017) (internal quotation and citation omitted). III. ANALYSIS Defendants maintain that Plaintiffs fail to plead factually that their Subject Vehicles contained a defeat device, which is the source of the alleged injury.

15 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 16 of 28 PageID: 2786

Without a cognizable injury, Defendants contend, the Plaintiffs lack standing (and, for that matter, have failed to state a claim). (See BMW Br. at 33).’° Specifically, Defendants contend, inter cilia, that “the fact that one BMW X5

flunked [Plaintiffs’ testing. . does not raise a plausible inference that all 2009- 2013 BMW X5 and 2009-2011 BMW 335d vehicles contain illegal defeat devices.” (BMW Br. at 24—25, 44; Bosch Br. at 21; DE 43 at 8, 10, 18). Plaintiffs counter that they “provide copious detail about the existence of the defeat device in their vehicles, how it was detected, and its effect on the vehicles.” (P1. BMW Opp.at

19). 1 find that the Plaintiffs have not alleged enough to merit a plausible inference that there is a defeat device in their vehicles, and therefore have not sufficiently alleged that they possess an injury in fact sufficient to confer standing.

In section (a) I examine the sufficiency of the allegations that the vehicles

purchased by the Plaintiffs contain a defeat device. In section (b) I apply a standing analysis to the results of the analysis in section (a). a. Sufficiency of Defeat-Device Allegations

I find inadequate the allegation that the Plaintiffs’ vehicles contain a defeat device for two primary reasons. First, it depends on testing of a single vehicle which revealed discrepancies between laboratory and on-road emissions results, from which plaintiffs somewhat speculatively infer that the vehicle contained a defeat device. Second, it relies on a further inference that the tested vehicle is a valid exemplar—i.e., that because it contained a defeat device, then the Plaintiffs’ vehicles, too, must have contained such a device. Defendants rely heavily on Bledsoe v. FA US LLC, 307 F. Supp. 3d 646 (E.D. Mich. 2018) (“Bledsoer). (See BMW Br. at 34—35, 44—45; DE 51 at 2; Bosch Br. at 22). Like Plaintiffs here, the Bledsoe Iplaintiffs alleged that Fiat Chrysler Automobiles (“FCA”) installed in two diesel truck models a defeat device that

IC Bosch joined in BMW’s motion to dismiss and made their own argument regarding standing. (See Bosch Br. at 21—22).

16 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 17 of 28 PageID: 2787

enabled emissions emissions

regulations, compliance.” single to regulatory and against trucks

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to Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 22 of 28 PageID: 2792

were

to dismiss Bledsoe

emissions F. U.S. results because that however, oxvn defendants’ from more functioned. Supp. Ecodiesel (N.D. Mercedes 2019). the to investigators maintenance Motor specifics iS (BMW

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emissions” than other BMW cars; and (3) the Subject Vehicles are generally “environmentally friendly” and actively help to “protect” the environment. See Subsection I.b.iii., supra. For the first subcategory, the alleged noncompliance with federal and state regulatory standards necessarily stems from the inference that the Subject Vehicles’ apparent compliance with regulatory standards was an artifact of the operation of the defeat device. Plaintiffs are not basing their state law claims directly on the contravention of EPA and state regulations but instead on general

“deception aimed at consumers.” (Comp. 9 7). This alleged deception, however, depends on the allegations regarding the defeat device. The second subcategory is inherently comparative—i.e., the Subject Vehicles release emissions at lesser levels than do other BMW vehicles. However, the Complaint is devoid of any allegations about how other BMW models perform with respect to emissions. See Counts, 237 F. Supp. 3d 572, 598 (“[Alssertions that a product has ‘90% less emissions’ raises the question: 90% less than what? . . .The Complaint includes no data about the level at which ‘previous- general diesels,’ however that phrase is defined, produced emissions [Tjhe [affected vehicle] might simultaneously produce more emissions than expected when being driven and still produce, in total, 90% less emissions than previous- generation diesels.”). Those earlier BMW models could have emitted more, less, or the same level of emissions as the Subject Vehicles; the Complaint does not say. The final subcategon’, it could be argued, is not entirely dependent upon a defeat-device allegation. ft is based on alleged representations that the Subject Vehicles are “environmentally friendly,” despite the well-known environmental and health effects of diesel emissions. (See Comp. ¶T 6, 78, 81—83, 106, 125, 128—29, 133—34, 140, 265—67). Defendants’ advertisements go so far as to say that the purchaser would be “helping to protect the environment every day.” (Id.

¶ 134). Whether or not it complies with a particular regulatory standard, a diesel

25 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 26 of 28 PageID: 2796

vehicle may nevertheless fail to “help[] protect the environment.”23 Plaintiffs, however, have specifically disavowed any theory that relies upon general harm to the environment. (See Id. ¶ 264, 267). Factoring out that theory, we are again left with the plausibility of the defeat-device allegation, which sets forth the essential wrongful conduct that allegedly caused injury. Without a sufficiently pled injury that is traceable to the Defendants’ allegedly wrongful conduct, Plaintiffs do not have Article III standing to assert claims on behalf of themselves or the class. Spokeo, 136 S.Ct.l540, 1548; Nickelodeon, 827 F.3d 262, 272. Conceptually, there is the potential for an overlap between failure to allege an injury in fact and failure to state as claim. See Bell v. Hood, 327 U.s. 678, 682, 66 5. Ct. 773, 776, 90 L. Ed. 939 (1946); Kulick v. Pocono Downs Racing Ass’n, Inc., 816 F.2d 895, 897—98 (3d Cir. 1987) (“[T]he truth of the facts alleged in the complaint is a question on the merits, as is the legal question whether the facts alleged establish a violation.”). Causation and damages, for example, are common substantive elements of a cause of action. “Only where the claim upon which federal jurisdiction hinges is ‘insubstantial on [its] face” is dismissal for want of jurisdiction required.” Afran v. McGreeuey, 115 F. App’x 539, 541 (3d Cir. 2004) (quoting Kulick, 816 F.2d 895, 898); Bell, 327 U.S. 678, 682—83, 66

S. Ct. 773, 776. The claims here, I believe, become facially “insubstantial” when

the defeat-device inference is removed. Because that inference, I have found, is

not well pled, I am left with a complaint that does not put forward or identify a person who possesses an actual injury in fact.

The actual owner of the Tested Vehicle, I suppose, might allege an injury’ with regard to the performance of that particular car. See Bledsoe I, 307 F. Supp. 3d at 657 (“While the allegations in Plaintiffs’ Complaint may be accepted for the

20 Here again, however, we have the “compared to what” issue. To drive a BMW in lieu of walking does not “protect the environment.” To drive a BMW in lieu of driving a tractor trailer (or a coal-burning locomotive) may be said, I suppose, to “protect” the environment, if only from oneself. Assuming one is not constrained to buy a BMW, as between a diesel or gasoline car, it is difficult to see how either of those options would “protect” the environment.

26 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 27 of 28 PageID: 2797 factual proposition that the tested vehicle—during the testing in question— produced emissions at levels shown by the test results, plaintiffs offer no well- pleaded factual content for the court to accept as true that” the entire class of vehicles contains a defeat device or defective emissions control system.). This Complaint, however, does not identify the owner of the Tested Vehicle, or state whether that person is one the named plaintiffs. See n. 6, supra. “Although standing and merits questions may involve overlapping facts, standing is generally an inquiry about the plaintiff: is this the right person to bring this claim.” Davis v. Wells Fargo, 824 F.3d 333, 348 (3d Cir. 2016). The Complaint does not assert a claim on behalf of the owner of the Tested Vehicle; rather, it puts forward this Tested Vehicle as an exemplar or representative of a class of BMW vehicles, and asks the court to infer that anyone who bought one of those vehicle models unknowingly purchased a defeat device. Since the Court cannot infer the existence of a defeat device for the entire vehicle class based on these allegations, and because the owner of the Tested Vehicle itself is unknown, the Plaintiffs have not identified “the right person” to bring their claims. Id.

I will therefore dismiss the Complaint pursuant to Rule 12(b)(l) for failure to allege standing in the sense of injury in fact. As jurisdiction is a threshold issue, I do not reach the remaining arguments for dismissal. See Mercedes I, 2016 WL 7106020, at *8; Brahamsha v. Supercell OY No. 16-8440, 2017 WL 3037382, at *7 (D.N.J. July 17, 2017).21

21 For the same reason, I also do not reach Defendants’ request for the Court to take judicial notice of some 22 exhibits, which mostly include news articles. (DE 29-4). Plaintiffs oppose Defendants’ request. (DE 38).

27 Case 2:18-cv-04363-KM-JBC Document 59 Filed 06/27/19 Page 28 of 28 PageID: 2798

V. CONCLUSION For the reasons stated above, Defendants’ motions (DE 29, 30) to dismiss the Complaint are GRANTED. The dismissal is without prejudice to the submission of a proposed amended complaint within 60 days. An appropriate Order accompanies this Opinion. Dated: June 27, 2019

Kevin McNulty, U.S.D.J.