KENNETH E. CORDER, SR., on Behalf of Himself and All Others Similarly Situated, Plaintiffs,
FORD MOTOR COMPANY, Defendant.
CHARLES R. SIMPSON, III, Senior District Judge.
This matter is before the court on the plaintiff's third motion for class certification. (DN 242). The matter is now ripe for adjudication. For the reasons set forth below, the plaintiff's third motion for class certification (DN 242) will be denied.
The relevant facts and procedural history set forth below are taken from the court's prior memorandum opinions addressing plaintiff Kenneth E. Corder's ("Corder") first and second motions for class certification.
A. Corder's Allegations and Ford's Responses
Corder filed this action against defendant Ford Motor Company ("Ford") on behalf of himself and others in 2004. Corder alleges that the 6.0L Power Stroke diesel engines installed by Ford in model year 2003 F-Series Super Duty Trucks and Excursions were highly problematic. Corder claims that those engines, which he deems the "2003 engines, " were "renowned for a host of serious problems, " leading Ford to implement a customer service program for those vehicles and even to recall and buy back some vehicles installed with those engines. (Second Am. Compl., DN 215, ¶ 14). Corder alleges that many consumers waited until the 2004 model year to purchase F-Series Super Duty Trucks or Excursions, believing that Ford would make improvements to the "2003 engines." ( Id. ). However, Corder claims, Ford continued to install "2003 engines" in model year 2004 Super Duty Trucks and Excursions that were assembled in July, August, and September of 2003. ( Id. at ¶ 15). Then, in October 2003, Ford "orchestrated a coordinated change" with its engine manufacturer "to implement changes and improvements" in the 6.0L Power Stroke diesel engine for the remainder of the 2004 model year. ( Id. at ¶ 16).
In May 2004, Corder purchased a model year 2004 Ford F-250 Super Duty Truck with a 6.0L Power Stroke diesel engine. ( Id. at ¶ 19). Shortly thereafter, Corder claims, he found out that the engine in his truck was a "2003 engine" that did not have the improvements that were in the "2004 engine." ( Id. at ¶ 20). According to Corder, Ford's non-disclosure that it had installed a "2003 engine" in his model year 2004 truck was an unfair, false, misleading, or deceptive act within the meaning of the Kentucky Consumer Protection Act, KRS § 367.110 et seq. ("KCPA"), and it caused him to suffer an ascertainable loss. ( Id. at ¶¶ 21, 32).
Ford, for its part, takes issue with Corder's claim that its engines have model years. Ford claims, in effect, that it makes running changes to its engines throughout the year. ( See DN 228, p. 5-10). Thus, Ford argues that the purchasers of 2004 model year trucks built prior to October 2003 received multiple different engines, and "all of those engines were improved over most engines installed on most 2003 vehicles." ( Id. at 1-2, 6). Ford further claims that "in the months and days before and after October 1, 2003, " it was making "constant quality improvements" to the engines. ( Id. at 2, 5-7, 9-10). Ford takes the position that October 1, 2003 was simply a date on which it made additional changes to the engines that brought them up to 2004 emissions standards. ( Id. at 2, 8).
B. Procedural History
Following initial discovery, Ford moved for summary judgment. This court granted the motion, finding that Corder had not shown that Ford's actions were false, misleading, or deceptive within the meaning of the KCPA, nor had Corder shown that he suffered an "ascertainable loss, " as is required to maintain a private action under the KCPA. The Sixth Circuit disagreed with this court's disposition, holding that a reasonable jury could find that Ford's actions were deceptive and that Corder suffered an ascertainable loss when he received an engine that was not the same as the one a reasonable consumer would have expected. See Corder v. Ford Motor Co., 285 F.Appx. 226 (6th Cir. 2008).
Upon remand to this court, Corder filed a motion to certify a national class. (DN 194). However, this court denied Corder's motion, finding that a national class was not viable because the laws of each of the states in which the putative class members purchased their vehicles would have to be applied, which would lead to significant problems of individualized proof and manageability. (DN 210). This court identified state laws that required proof of reliance as posing particular problems, since the element of reliance would require an individualized inquiry into the state of mind of each consumer.
This court then granted Corder leave to file a second amended complaint, in which he sought to represent a class of only Kentucky residents. (DNs 214, 215). The second amended complaint stated that there were at least 586 members of the class, whose identities and addresses can be readily ascertained from Ford's records. (DN 215, ¶ 23).
Ford moved to dismiss Corder's second amended complaint. (DN 220). Ford contended that the KCPA required proof of reliance, but Corder did not plead in the second amended complaint that he had relied on Ford's deceptive act. This court denied Ford's motion to dismiss, finding that the KCPA did not require proof of reliance. (DN 236).
Corder then filed a second motion for class certification in which he sought to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(3). (DN ...