UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DONALD MACKAY, JR., 

Plaintiff, 

v. Case No. 14-14097 

FORD MOTOR COMPANY, HON. TERRENCE G. BERG 

 HON. MONA K. MAJZOUB 

Defendant. 

 / 

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. 36) 

This is a pro se products liability case, where the plaintiff is alleging that 

defects in a 2015 Ford Fiesta caused him injuries. Magistrate Judge Mona K. 

Majzoub’s issued a report and recommendation on January 25, 2016 (Dkt. 36), 

recommending that Defendant Ford Motor Company’s (Ford) motion to dismiss the 

amended complaint (Dkt. 28) be denied, and that Plaintiff Donald Mackay, Jr’s 

(Plaintiff) motion for judgment (Dkt. 23) be denied. 

Ford filed timely objections to the recommendation that its motion to dismiss 

be denied (Dkt. 37). The law provides that either party may serve and file written 

objections “[w]ithin fourteen days after being served with a copy” of the report and 

recommendations. 28 U.S.C. § 636(b)(1). The district court will make a “de novo

determination of those portions of the report . . . to which objection is made.” Id. 

Plaintiff did not file any objections to the recommendation that his motion for 

judgment be denied, therefore the Court will adopt that recommendation without 

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further analysis or discussion. However, because Ford objects to Magistrate Judge 

Majzoub’s recommendation concerning Ford’s motion to dismiss, that 

recommendation will be reviewed de novo. 

As noted earlier, this is a products liability action. Plaintiff filed two 

complaints1 in this matter (Dkts. 1 & 26). Since Plaintiff’s amended complaint 

appeared to incorporate by reference the allegations of the original complaint, 

Magistrate Judge Majzoub read them both as a single complaint. Plaintiff’s original 

complaint (Dkt. 1) alleged the following: 

Plaintiff purchased a new (9.4.2015) Ford Fiesta. The car has major 

transmission and assembly flaws. At 50/mi on it car jumps in and out of gear 

during acclerating (sic) and deacelleration (sic). The car’s electric door locks 

failed leaving Plaintiff in car 9.28.2015 at the same time the seat belt on 

drivers side would not unlatch. A man walking by heard my pleas for HELP 

lucky that this car had manual window risers not electric. It took both of us 

about an hour to free me out of car as I was not shown how to activate 911 

features by dealer when purchased. 

Plaintiff has multiple bruises on right arm, loss of right arm, and has 

loss (sic) hearing in right ear do (sic) to seat belt not releasing. The man who 

helped me to get out of the car simultaneously held and opened both outdoor 

drivers side assembly handle and inside door handle at same time, getting 

the car to open door finally. Due to seat belt latch failure I myself could not 

reach outside handle. 

The cars gear shift lever will not stay in reverse gear by itself, and 

Plaintiff has to double clutch to get the car into next gear without grinding 

gears in transmission. The entire engine and transmission assembly will 

have to be taken out of car to gain access for transmission syncronizers (sic) 

Clutch repairs. This should not be. Quality control should have sensed these 

problems at test track, and car should not have been released, causing both 

grief and physical harm to purchaser. 

                                                            

1 Magistrate Judge Majzoub filed a previous report and recommendation, recommending that 

Plaintiff’s original complaint did not state a claim upon which relief could be granted (Dkt. 21). 

Magistrate Judge Majzoub further recommended that Plaintiff be permitted to file an amended 

complaint. Neither party objected to this recommendation; thus, this Court adopted it (Dkt. 29), and 

Plaintiff filed an amended complaint (Dkt. 26). 

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Plaintiff seeks out of contract w/out damage to credit report. Call to 

Geneneral (sic) manager at Kennedy Ford in Conshohocken go unanswered. 

Plaintiff seeks in releif (sic) a new car of his choice other than Ford product to 

be paid by Ford. Plaintiff seeks $100 million dollars for medical problems 

arising present and future due to incident. I thank this kind court for its 

time. Plaintiff seeks an order to Ford returning 4000 cash deposit to return 

said vehicle. 

Plaintiff then filed an amended complaint (Dkt. 26), alleging the following: 

Return vehicle, 100 million dollar amt. so stated in original complaint 

1. Plaintiff at 50 mi on vehicle was tossed about inside vehicle as for 

by cars transmission was engaging and disengaging causing car to buck at 40 

miles an hour while driving causing Plaintiffs right arm to be thrown against 

steering wheel causing swelling and black and blue marks on arm several 

times. 

2. While stuck in vehicle the seatbelt came over right side of face and 

cheek causing permanent hearing loss of right ear and need to replace crownmollar (sic) two teeth which were damaged also. 

3. A previous spinal fusion of levels lower lumbar 4 & 5 has been 

damaged also, due to having been pulled over cars door sill, sciatica in left leg 

and right foot has been continually swelling since Plaintiff was pulled from 

car due to door latch and seatbelt failure. 

4. Mental and emotional trauma pain and suffering. 

Ford’s objections (Dkt. 37) to Magistrate Judge Majzoub’s recommendation, 

distilled to their essence, are that the above allegations do not meet the 

Twombley and Iqbal pleading standards. 

Rule 12(b)(6) provides that the Court may, upon motion, dismiss a claim 

for relief asserted in any pleading for failure to state a claim upon which relief 

can be granted. Rule 8(a) requires the party pleading a claim for relief to make a 

“short and plain statement of the claim showing that the pleader is entitled to 

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relief.” When evaluating such a claim in the context of a Rule 12(b)(6) motion, 

the Court must ordinarily accept as true all of the well-pleaded factual 

allegations of the complaint. However, Rule 8(a) has been interpreted to require 

that the pleader allege “more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do....” Bell Atlantic v. 

Twombley, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Moreover, 

the factual allegations themselves “must be enough to raise a right to relief 

above the speculative level....” Id. 

Twombley established a test of “facial plausibility,” replacing the prior 

standard, announced in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 

(1957), under which a complaint was able to withstand a motion to dismiss if 

there were any possibility that the pleader could prove a viable claim for relief. 

Expanding upon Twombley’s “facial plausibility” test, the Supreme Court, in 

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), 

held that “[a] claim has facial plausibility when the plaintiff pleads factual 

content that allows the Court to draw a reasonable inference that the defendant 

is liable for the misconduct alleged.” Iqbal reiterated the principle that legal 

conclusions, couched as factual allegations, need not be accepted as true, and 

that the mere recital “of the elements of a cause of action, supported by mere 

conclusory statements,” cannot save a claim from dismissal under Rule 12(b)(6). 

Id. at 1950. Further, Iqbal allows the reviewing court “to draw on its judicial 

experience and common sense” when deciding if it is plausible that the pleader 

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can, based on the facts alleged, obtain any relief. Id. It is still true, however, 

that pro se complaints are construed liberally in favor of the pleader, even 

though they, too, must satisfy the “facial plausibility” standard articulated in 

Twombley. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 

(1972); Stanley v. Vining, 602 F.3d 767, 771 (6th Cir. 2010); see also Erickson v. 

Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). It is with these 

standards in mind that Ford’s motion to dismiss will be decided. 

At the outset, the Court notes that Magistrate Judge Majzoub correctly 

recognized that “[a] defect in [a] product can be established through a variety of 

theories, including: (1) negligent design of the product; (2) negligent manufacture of 

the product; (3) negligent failure to warn about some aspect of the product; (4) 

breach of an express or implied warranty; or (5) misrepresentation or fraud.” Eiben 

v. Gorilla Ladder Co., No. 11–10298, 2013 WL 1721677, at *8 (E.D. Mich. Apr. 22, 

2013). Magistrate Judge Majzoub further correctly recognized that, to survive a 

motion to dismiss a product-liability claim, the plaintiff must allege facts supporting 

an assertion that the defendant supplied a defective product and that the defect 

caused the plaintiff’s injury. See Auto Club Ins. Ass’n v. Gen. Motors Corp., 217 

Mich. App. 594, 604, 552 N.W.2d 523 (1996). 

Liberally construing Plaintiff’s pro se allegations, the Court agrees with 

Magistrate Judge Majzoub that the combined complaints allege sufficient facts to 

state a product liability claim against Ford, if just barely. To summarize, Plaintiff 

claims that he bought a new 2015 Ford Fiesta, that the car suffered from numerous 

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defects [i.e., a defective transmission, gear shift, seat belts, and door locks] that 

should have been discovered at the “test track,” and that these defects injured 

Plaintiff. While Ford argues that Plaintiff’s alleged injuries are not plausibly 

foreseeable (damage to crown molars, loss of right arm, loss of hearing, and back 

injuries), this argument suggests that Plaintiff could never prove such injuries – a 

factual question, not a pleading infirmity. At this stage of the litigation, the 

relevant question is whether Plaintiff has alleged that Ford’s product had a defect 

and that defect caused Plaintiff injuries. Ford claims that Plaintiff does not 

adequately attribute his injuries to Ford, but a liberal reading of these allegations 

clearly shows that Plaintiff is claiming that the Ford Fiesta he was driving was not 

functioning properly, and that its malfunctioning injured Plaintiff. For now, slim 

and rough though they are, these claims are enough to survive Ford’s motion to 

dismiss. Whether Plaintiff can adduce admissible evidence in order to create a 

genuine issue of material fact sufficient to survive summary judgment is another 

matter entirely, that the Court need not determine today. As such, Magistrate 

Judge Majzoub’s January 25, 2016 report and recommendation (Dkt. 36) will be 

accepted and adopted as this Court’s findings of fact and conclusions of law. 

Thus, this case will proceed into discovery. Since Plaintiff has availed 

himself of this forum by filing suit in the Eastern District of Michigan, Plaintiff will 

be required to appear for a deposition in this judicial district. Plaintiff must 

immediately provide counsel for Ford with a telephone number to contact 

him to make arrangements for his deposition in Michigan.

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For the reasons set forth above, it is hereby ORDERED that Magistrate 

Judge Majzoub’s Report and Recommendation of January 25, 2016 (Dkt. 36) is 

ACCEPTED and ADOPTED. Accordingly, Ford’s motion to dismiss the amended 

complaint (Dkt. 28) is DENIED and Plaintiff’s motion for judgment (Dkt. 23) is 

DENIED. The Court will issue a separate scheduling order in this matter. 

SO ORDERED. 

Dated: March 30, 2016 s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Certificate of Service 

I hereby certify that this Order was electronically submitted on March 30, 

2016, using the CM/ECF system, which will send notification to all parties. 

 s/A. Chubb 

Case Manager 

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