Richard Rosenbaum v. Toyota Motor Sales, U.s.a., Inc.

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0522n.06
No. 16-2769
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RICHARD ROSENBAUM,
Plaintiff-Appellant,
v.
TOYOTA MOTOR SALES, U.S.A., INC.,
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
BEFORE: COLE, Chief Judge; BATCHELDER and MOORE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Appellant Richard Rosenbaum purchased
a Prius Plug-In Hybrid Electric vehicle, manufactured by Appellee Toyota Motor Sales, U.S.A.,
Inc. (“Toyota”). Rosenbaum was not satisfied with the hybrid vehicle because he could not
complete his daily commute in electric-only mode, and the vehicle would not run in electric-only
mode when the outside temperature fell below fifty-five degrees Fahrenheit. He filed suit,
raising contract, warranty, and Michigan Consumer Protection Act (“MCPA”) claims and now
appeals the district court’s dismissal of two of those claims. We affirm.
The Prius Plug-In Hybrid Electric is a hybrid vehicle that can run on both electric charge
and gasoline, with an enhanced battery capacity to allow for extended electric-only use. On July
18, 2012, Rosenbaum purchased a Prius Plug-In from Page Imports, Inc., in Southfield,
Michigan. Rosenbaum alleged that “[p]rior to [his] purchase, TOYOTA specifically represented
that the fully electric range was at minimum thirteen (13) miles on its website and through

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various other marketing and advertising mediums and makes no mention of the limitation
regarding the outdoor temperature and the vehicles [sic] ability to operate in certain climates.”1
He alleged that he purchased the vehicle to drive “his 12.07 mile trip from his home to his office
without using the gasoline engine.” However, after Rosenbaum’s purchase, he discovered that
he could travel only eight to ten miles while using the vehicle in electric-only mode and that the
vehicle would not operate in electric-only mode at all when the outside temperature fell below
fifty-five degrees Fahrenheit. Based on these discoveries, Rosenbaum alleged that the “vehicle
did not perform as warranted and represented in that it has repeatedly failed to meet the specific
electric mileage warranted and represented by [Toyota] due to defective parts and workmanship,
as well as the ability to function in electric mode in temperatures below fifty-five (55) degrees
Fahrenheit.”
Rosenbaum filed a purported class action suit against Toyota in the United States District
Court for the Eastern District of Michigan, alleging three claims: (1) breach of contract;
(2) breach of express and implied warranties of merchantability; and (3) violation of the MCPA.
The district court dismissed the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The
district court concluded that Rosenbaum failed to state a claim for breach of contract or breach of
express warranty because Rosenbaum failed to allege that he was in privity with Toyota. The
district court also found that Rosenbaum had failed to state a claim that Toyota had breached the
implied warranty of merchantability, because he did not allege facts showing that the Prius Plug-
In was unfit for its ordinary purpose. Specifically, the district court determined that Rosenbaum
had failed to state a claim because he did not allege facts regarding the average quality of the
1 Rosenbaum also alleged in his complaint that Toyota “conducted a marketing campaign stating that the Prius Plug-
In can operate for up to thirteen (13) miles on a full charge.” It therefore appears that Rosenbaum received
conflicting information about the vehicle. However, as this matter is before us on review of an order granting a
motion to dismiss, we accept Rosenbaum’s factual allegations as true and view the complaint in the light most
favorable to him. See Moody v. Mich. Gaming Control Bd., 847 F.3d 399, 402 (6th Cir. 2017).

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vehicle in the industry or that his vehicle was below average quality. Finally, the district court
determined that Toyota’s alleged conduct was exempt from the MCPA because federal and state
law “specifically authorized” and governed Toyota’s advertisements. See Mich. Comp. Laws
§ 445.904(1).
Rosenbaum then filed a motion for relief from judgment under Federal Rule of Civil
Procedure 60(b)(1) on his claim for breach of the implied warranty of merchantability, raising
new arguments directed, not toward merchantability, but toward the hybrid vehicle’s unique
purpose and the circumstances of his purchase of the vehicle. The district court denied
Rosenbaum’s motion for relief, explaining that these new arguments were irrelevant to his
implied warranty-of-merchantability claim. Instead, the district court explained, such arguments
were more appropriate for a claim for breach of the implied warranty of fitness for a particular
purpose—a claim that Rosenbaum had not alleged in his complaint. Rosenbaum timely appealed
the district court’s dismissal order and order denying the motion for relief.
We review for abuse of discretion a district court’s denial of a Rule 60(b) motion for
relief from judgment, and our review does not encompass the merits of the underlying judgment.
See Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). “Rule 60(b) does not allow a
defeated litigant a second chance to convince the court to rule in his or her favor by presenting
new explanations, legal theories, or proof.” Id. (citation omitted).
On appeal, Rosenbaum repeats the arguments regarding the hybrid vehicle’s unique
purpose and the circumstances of his purchase that he raised in his Rule 60(b)(1) motion.
Rosenbaum, however, has neither argued nor demonstrated any basis on which we could
conclude that the district court erred in its determination that Rosenbaum’s new arguments did
not support a merchantability claim and that Rosenbaum had never pled a fitness-for-particular-

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purpose claim. Nor has he provided any other basis for a conclusion that the district court
abused its discretion in denying his Rule 60(b)(1) motion. We therefore consider Rosenbaum’s
appeal of the order denying his motion for relief waived. See Langley v. DaimlerChrysler Corp.,
502 F.3d 475, 483 (6th Cir. 2007).
Moreover, on the merits of Rosenbaum’s Rule 60(b)(1) arguments, the district court did
not err. The implied warranty of merchantability is distinct from the implied warranty of fitness
for a particular purpose under Michigan law. See Mich. Comp. Laws § 440.2314 (detailing the
implied warranty of merchantability); Mich. Comp. Laws § 440.2315 (describing the separate
implied warranty of fitness for a particular purpose); Bosway Tube & Steel Corp. v. McKay
Mach. Co., 237 N.W.2d 488, 490–91 (Mich. Ct. App. 1975). Rosenbaum did not allege a claim
for breach of the warranty of fitness for a particular purpose. Accordingly, we find that the
district court did not abuse its discretion by rejecting Rosenbaum’s arguments.
To the extent that Rosenbaum has properly presented other arguments, those arguments
are meritless. After carefully reviewing the record, the applicable law, and the parties’ briefs, we
are convinced that the district court did not err in its conclusions. The district court’s orders
carefully and correctly set out the law governing the issues raised and clearly articulate the
reasons underlying its decisions. Thus, issuance of a full written opinion by this court would
serve no useful purpose. Accordingly, for the reasons stated in the district court’s orders, we
affirm.

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