NOT RECOMMENDED FOR FULL
- TEXT PUBLICAT I ON File Name: 20a0005n.06
No. 19

- 5406 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JAMES A. BUNN , dba Bunn Trucking , P laintiff

- Appellant ,

v. NAVISTAR, INC. , dba International Used Truck Center , Defendant

-

Appellee

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

OPINION

Before: CLAY , STRANCH , and MURPHY , Circuit Judges. CLAY , Circuit Judge. Plaintiff Bunn Trucking appeals the dismissal of his breach of
express warranty and breach of implied warranty of merchantability claims against Defendant Navistar in this products

- liability lawsuit. Plaintiff also appeals the denial of his Rule 59(e) mot ion to alter or amend the district court’s judgment. For the reasons set forth below, we AFFIRM the decisions of the district court. I. BACKGROUND A. Factual Background Plaintiff is a sole proprietor doing business as Bunn Trucking. Defendant Navistar is a manufacturer of heavy

- duty trucks. On June 13, 2018, Plaintiff, represented by counsel, initiated this products

- liability action against Defendant in Tennessee state court , alleging the following facts.No. 19

- 5406 , James Bunn v. Navistar, Inc.

2

On April 19, 2017, Plaintiff purchased two second

- hand trucks from Defendant’s dealership. One truck had 183,864 miles on it at the time of purchase (“Truck 1”), and the other truck had 141,229 miles on it at the time of purchase (“Truck 2”). Plaintiff purchased a written warranty for each truck, with each warranty covering the respective truck for 24 months or 200,000 miles. At the time of the purchase, Defendant’s agents warranted that the trucks were free from defects and in perfect w orking order. Defendant assured Plaintiff that the trucks were suitable to perform the duties for which they were manufactured

. Upon purchasing the written warranty, Defendant assured Plaintiff that Navistar technicians would be readily available to make any necessary repairs. However , shortly after making the purchase, Plaintiff began to experience numerous shortcomings with both trucks. For example, w ithin three months of purchase, Truck 1 required a complete engine replacement and wa s out of service for two weeks. After the engine was replaced, Truck 1 continued to have problems and, since the date of purchase, was out of service for a total of nine months. Within four months of purchase, Truck 2 required a complete engine replaceme nt. After the engine was replaced, Truck 2 continued to have problems and, since the date of purchase, was out of service for a total of eight months. According to Plaintiff, the issues with the trucks included “(a) repeated instances of check engine ligh ts illuminating; (b) fuel pump failure; (c) sensor ‘shortage’ issues; (d) ‘knocking’ in the engine requiring replacement; (e) excessive ‘smoke’ and hissing of the engine requiring replacement; (f) gasket replacement; (g) clogged hoses; (h) A/C blower and c ompressor failure; (i) complete engine failure; (j) other failures that prevented the Trucks from operating as warranted.” R. 1

- 1, Pg

. ID 9. Plaintiff alleged that he “repeatedly notified Defendant of the defects related to the trucks, but Defendants [si c] failed to make repairs sufficient to correct the defects.”No. 19

- 5406 , James Bunn v. Navistar, Inc.

3

Id. at Pg. ID 10. Due to Defendant’s inability or unwillingness to obtain necessary parts, Plaintiff experienced extensive delays for several months in getting the trucks repaired. Plaintiff lost a “substantial amount of income” due to the trucks’ unreliability and the downtime required for repairs. Id. at Pg. ID 9. Specifically , Plaintiff lost contracts with his client, Kochlogistics, worth approximately $133,645.00 between April 22, 2017 and June 1, 2018. P laintiff stated that “[u]pon information and belief, Defendant became aware trucks sold to Plaintiff were inadequate for public distribution.” Id. at Pg. ID 10. B. Procedural History
In c onstruing his own complaint in his favor , Plaintiff a sserted the following causes of action: (1) breach of express warranty; (2) breach of implied warranty of merchantability; (3) breach of implied warranty of fitness for a particular purpose; (4) intentional misrepresentation (fraud); and (5) two counts of violating the Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann. § 47

- 18

- 104(b)(7). Defendant removed the action to federal court on the basis of diversity jurisdiction.
De fendant then moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. First, Defendant argued that Plaintiff’s claims for breach of express and implied warranties shoul d be dismissed because Plaintiff failed to allege that the trucks were defective at the time they were delivered and for failure to provide pre

- suit notice of the breach, as required by Tennessee law. Next, Defendant argued that Plaintiff’s fraud claim sh ould be dismissed under the economic loss doctrine and because Plaintiff failed to comply with the heightened pleading requirements of Rule 9(b). Defendant then argued that Plaintiff’s first TCPA c ount should be dismissed because the TCPANo. 19

- 5406 , James Bunn v. Navistar, Inc.

4

provision that D efendant allegedly violated only applies to “goods” that are obtained for use by an individual “primarily for personal, family, or household purposes,” a category which clearly d id
not e ncompass the heavy

- duty trucks used in Plaintiff’s business

. R. 8, Pg . ID 47

– 48 (quoting Tenn. Code. Ann. § 47

- 18

- 103( 8 )). Lastly, Defendant moved to dismiss Plaintiff’s second TCPA

c ount for failure to comply with the heightened pleading requirements of Rule 9(b)

. In his response to Defendant’s motion to dismiss, Plaintiff conceded that the economic loss doctrine barred his intentional misrepresentation claim and “aver[red] that Paragraph Nos. 38

- 43 of the Complaint should be stricken.” R. 12, Pg. ID 168. Plaintiff als o conceded that his first TCPA claim was inapplicable to the action and “aver[red] that Paragraph 45(a) of the Complaint should be stricken.” Id. With regards to his second TCPA claim, Plaintiff stated that, “[a]s it pertains to the Plaintiff’s allegatio ns contained in Paragraph 45(b) of the Complaint, Plaintiff will be filing a Motion to Amend pursuant to Federal Rule of Civil Procedure 15(a)(2) for the purpose of pleading, with sufficient particularity, Defendant’s violation of the Tennessee Consumer
Pr otect ion Act as set forth in Paragraph 45(b) of the Complaint.” Id. at Pg. ID 169. In addition , Plaintiff clarified that he was not suing on the basis of the written warranty that he had purchased from Defendant, but rather on the basis of statements all egedly made by Defendant’s agents at the time of purchase. Plaintiff did not at any time amend his complaint as a matter of course under Federal Rule of Civil Procedure 15(a)(1). See Fed. R. Civ. P. 15(a)(1). And , Plaintiff did not at any time obtain Defe ndant’s written consent to amend hi s complaint or otherwise file a motion seeking leave of the court to amend the complaint in order to bolster his second TCPA claim

. See Fed. R. Civ. P. 15(a)(2).No. 19

- 5406 , James Bunn v. Navistar, Inc.

5

On January 25, 2019, the district court entered a judgment granting Defendant’s motion to dismiss in its entirety. The district court reasoned that Plaintiff’s breach of express warranty and breach of implied warranty of merchantability claim s should be dismissed because Plaintiff failed to plausibly allege that Defendant’s alleged warranties were false at the time they were made. The district court dismissed Plaintiff’s implied warranty of fitness for a particular purpose claim, finding that “Plaintiff’s stated ‘particular purpose’ is really an ordinary purpose

—using heavy

duty trucks for a commercial trucking business

— and not a particular purpose capable of supporting his claim.” R. 28, Pg. ID 234. Lastly, the court dismissed Plaintiff’s se cond TCPA claim, finding that in the “approximately eight months after Plaintiff’s response was filed

. . . Plaintiff has not filed a motion to amend the TCPA claim,” and the claim, as plead ed in the original complaint, did not plausibly allege any basis o n which relief could be granted. Id. at Pg. ID 236. Following the district court’s dismissal, Plaintiff filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). Plaintiff’s ground for moving to reopen the judgment was Plaintiff’s counsel’s mistaken impression that a complaint could not be amended prior to the initial case management conference. After Defendant filed a response to Plaintiff’s motion, the district court entered an order denying Plaintiff’s Rule 59(e) motion on March 15, 2019. The district court found Plaintiff’s argument “nonsensical” because nothing in either the Federal Rules or Local Rules impairs Plaintiff’s ability to amend his complaint as of right or seek leave to do so prior to the initial ca se management conference. R. 35, Pg. ID 261

– 62.No. 19

- 5406 , James Bunn v. Navistar, Inc.

6

On April 9, 2019, Plaintiff filed a notice of appeal as to the district court’s order denying
hi s Rule 59(e) motion. On April 15, 2019, Plaintiff filed a timely Amended Notice of Appeal clarifying that he appeals both the district court’s January 25, 2019 judgment dismissing the action, and the district court’s March 15, 2019 order denying his Rule 59(e) motion. II. STANDARD OF REVIEW We review de novo a district court’s grant of a motion to dismiss. Majestic Bldg. Maint., Inc. v. Huntington Bancshares, Inc. , 864 F.3d 455, 458 (6th Cir. 2017). In doing so, we may affirm the district court’s decision on any ground that is supported by the record. La

. Sch. Emps

. ’ Ret. Sys. v. Ernst & Young, LLP , 622 F.3d 471, 477 (6th Cir. 2010)

. A motion to dismiss is properly granted if the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” Fed

. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555

– 57 (2007); see also Fe d. R. Civ. P. 8(a)(2). “A claim has facial plausibility 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 v. Iqbal , 556 U.S. 662, 678 (2009)

. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. To evaluate a complaint’s sufficiency, courts in this circuit follow three steps

.

“ First, the court must accept all of the plaint iff ’ s factual allegations as true. . . . Second, the court must draw all reasonable inferences in the plaintiff’s favor. . . . And third, the court must take all of those facts and inferences and determine whether they plausibly give rise to an entitlement to relief.” Doe v. Baum , 903 F.3d 575, 581 (6th Cir. 2018) (citations omitted).No. 19

- 5406 , James Bunn v. Navistar, Inc.

7 III. ANALYSIS A. Implied Warranty of Fitness for a Particular Purpose & Plaintiff’s First TCPA Claim As a preliminary matter, Plaintiff does not challenge the district court’s dismissal of his implied warranty of fitness for a particular purpose claim or the dismissal of hi s first TCPA claim ( i.e. , that alleged in Paragraph 45(a) of the complaint) in hi s briefs before this Court. And , Plaintiff’s counsel acknowledged at oral argument that Plaintiff is not appealing the dismissal of his implied warranty of fitness for a particular purpose claim

. Therefore, we consider those arguments waived and affirm the district court’s dismissal of those claims. See, e.g. , Radvansky v. City of Olmsted Falls , 395 F.3d 291, 311 (6th Cir. 2005) (“[ Plaintiff’s ] failure to raise an argument in his appellate brief constitutes a waiver of the argument on appeal.”).
B. Breach of Express Warranty & the Implied Warranty of Merchantability Plaintiff contends that the district court erred by dismiss ing its breach of express warranty and breach of implied warranty of merchantability claims under Rule 12(b)(6)

. T he elements for breach of express warranty in Tennessee are: “ (1) the seller made an affirmation of fact intending to induce the buyer to purchase the goods; (2) the buyer was, in fact, induced by the seller’s acts; and (3) the affirmation of fact was false regardless of the seller’s knowledge of the falsity or intention to create a warranty.” Jones v. WFM

- Wo, Inc. , 265 F. Supp. 3d 775, 781 (M.D. Tenn. 2017) (quoting Smith v. TimberPro Inc. , No. W2016

- 00757

- COA

- R3

- CV, 2017 WL 943317, at *3 (Tenn. Ct. App. Mar. 9, 2017)); see also Tenn. Code Ann. § 47

- 2

- 313

. To make out a claim for breach of the implied warranty of merchantability, a plaintiff must show that the seller is a merchant with respect to goods of that kind and that the goods were not fit for the ordinary purposes for which such goods are used at the time they were delivered. Dan Stern Homes, Inc. v. DesignerNo. 19

- 5406 , James Bunn v. Navistar, Inc.

8

Floors & Homes, Inc. , No. M2008

– 00065

– COA

– R3

– CV, 2009 WL 1910955, at *4 (Tenn. Ct. App. June 30, 2009) (citing Tenn. Code Ann. § 47

- 2

- 314). The implied warranty of merchantability applies to second

- hand goods

. See Tenn. Code Ann. § 47

- 2

- 314, cmt. 3 ; see also
Patton v. McHone , 822 S.W.2d 608, 616 (Tenn. Ct. App. 1991). The district court dismissed both of Plaintiff’s warranty claims, finding that Plaintiff failed to plausibly allege that the warranties were false at the time they were made or that the trucks were not fit for ordinary use at the time they were delivered

. We now affirm the district court’s decision, although on different grounds. See, e.g. , La

. Sch. Emps

. ’ Ret. Sys. , 622 F.3d at 477. In the court below, Defendant moved to dismiss , in part , on the ground that Plaintiff failed to adequately plead notice as required by Tennessee Code Annotated § 47

- 2

- 607(3). Section 47

- 2

- 607(3) of the Tennessee Code is Tennessee’s version of section 2

- 607 (3) of the Uniform Commercial Code. It provides in par t that “[w]here a tender has been accepted . . . the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” Tenn. Code Ann. § 47

- 2

- 607(3). Simi larly, t he dama ges provision for breach of warranty provides that “[w]here the buyer has accepted goods and given notification (§ 47

- 2

- 607(3)) he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.” Tenn. Code Ann. § 47

- 2

- 714 (emphasis added). Accordi ng to Tennessee courts, “[n]otification pursuant to Tenn. Code Ann. § 47

- 2

- 607 is an essential ingredient for an action for damages.” Carmichael & Carmichael, Inc. v. Nicholstone Companies, Inc. , No. 01

- A

01

- 9104

- CV00148, 1992 WL 172404, at *6 (Tenn. Ct. A pp. July 24, 1992). “The purpose of giving notice of breach is to allow the breaching party to cure the breach and thereby avoid theNo. 19

- 5406 , James Bunn v. Navistar, Inc.

9

necessity of litigating the matter in court.” Alvarez v. Chevron Corp. , 656 F.3d 925, 932 (9th Cir. 2011); see also Tenn. Code Ann. § 47

- 2

- 607(3), cmt. 4. In determining whether Plaintiff’s claims should be dismissed for failure to comply with § 47

- 2

- 607 (3) , this Court must answer two questions. First, was Plaintiff required to plead notice in his complaint (that is, was he required to plead facts that would plausibly satisfy § 47

- 2

- 607’s notice requirement)? And, i f so, what type of notice was required under the stat ute? Was it enough for Plaintiff to allege that he notified Defendant of the various defects with the trucks, or was he required to notify Defendant that those defects, in Plaintiff’s view, amounted to a breach of warranty? We answer the first question in the affirmative based solely on Plaintiff’s litigation conduct. Plaintiff has never argued, either to this Court or to the district court, that his warranty claims are not subject to the Tennessee notice statute. In fact, Plaintiff concedes in his brief s before this Court that his claims are governed by § 47

- 2

- 607(3). And , Plaintiff conceded at oral argument that his complaint was required to contain an adequate inference of notice pursuant to § 47

- 2

- 607(3). In other words , Plaintiff has never argued t hat failure to satisfy § 47

- 2

- 607(3) should be raised as an affirmative defense, and instead concedes that satisfaction of the statute is a condition precedent to suit in Tennessee. Therefore, although some state courts have treated similar notice require ments as affirmative defenses rather than elements of the claim that must be pled, compare , e.g. , Reid v. Eckerds Drugs, Inc. , 253 S.E.2d 344, 347, 350 (N.C. App. 1979) (affirmative defense), with, e.g. , Stamper Black Hills Gold Jewelry, Inc. v. Souther , 414 N.W.2d 601, 604 (N.D. 1987) (element), we find that Plaintiff has forfeite d any such argument in this case. 1 Thus, for purposes

1 While Tennessee courts have yet to resolve this question, other courts interpreting Tennessee law have dismissed warranty claims for failure to adequately plead notice under Tenn. Code Ann. § 47

- 2

- 607(3). See, e.g. ,No. 19

- 5406 , James Bunn v. Navistar, Inc.

10

of this appeal and in line with Plaintiff’s litigation conduct , we conclude that Plaintiff was required to plead f acts giving rise to a plausible inference of notice in compliance with § 47

- 2

- 607(3)

. Next, we must determine whether Plaintiff’s allegations in his complaint satisfy that requirement. For the reasons that follow, we find that they do not. Plaintiff arg ues that he sufficiently pled notice, either because the complaint itself constituted sufficient notice according to the Middle District of Tennessee’s holding in a personal

- injury case, Smith v. Pfizer , 688 F. Supp. 2d 735 (M.D. Tenn. 2010), or because his “allegations of major repairs . . . satisfy the requirement under Tennessee law regarding notice.” Appellant Br. at 16

. We find each of these arguments unavailing.
In Smith v. Pfizer , the district court held that “a personal injury plaintiff can give notice by filing suit” and, thus, does not have to allege any pre

- suit notification of breach to satisfy § 47

- 2

- 607(3). 688 F. Supp. 2d at 750. However, the court expressly distinguished commercial ca ses :

“ A s envisioned by Tenn. Code Ann. § 47

- 2

- 607(3)(a), a seller of goods with timely notice that they are nonconforming may inspect the goods . . . and then cure the defects or preserve evidence that no breach occurred .” Id. at 750

– 51 (quoting Duffy Too l & Stamping v. Bosch Auto. Motor Sys. Corp. , No. M1997

- 00144

- COA

- R3

- CV, 2000 WL 122225, at *3 (Tenn. Ct. App. Feb. 1, 2000)). But, the court stated, “ notice serves a different purpose in personal injury case s . ” I d. at 7 5 1

. Unlike in a commercial case, opportunity to cure in a personal injury case has no significance “because the defect has already caused the harm and the seller can do nothing to remedy the

Siriano v. Goodman Mfg. Co. , No. 2:14

- cv - 1131, 2015 WL 12748033, at * 7

– 8 (S.D. Ohio Aug. 18, 2015); Rysewyk v. Sears Holdings Corp. , No. 15

- cv - 4519, 2015 WL 9259886, at * 4 (N.D. Ill. Dec. 18, 2015) ; see also Alvarez v. Chevron Corp. , 656 F.3d 925, 931

– 32 (9th Cir. 20 11) (“ The district court properly dismissed these common law claims because Plaintiffs failed to provide Defendants with reasonable notice

. ” (applying Cal. Com. Code § 2607(3)(A))

. In any event, we do not decide in this case whether Tennessee courts would consider notice as a condition precedent to suit because Plaintiff has forfeited any argument to the contrary

.No. 19

- 5406 , James Bunn v. Navistar, Inc.

11

situation that has already occurred.” Id. (quoting Lary Lawrence, 6 Lawrence ’ s Anderson on the Uniform Commercial Code § 2

– 607:7 (3d. ed. 2009)). T his is a commercial case, and under current Tennessee law, Pfizer is thus inap plicable

. Next , we must determine whether Plaintiff’s allegations that he notified Defendant of th e defects i s sufficient to plausibly allege that he put Defendant on notice of an alleged breach under § 47

- 2

- 607(3)

. This is a more difficult question. Plaintiff argues that this Court should adopt a relaxed view of how Tennessee courts would interpret § 47

- 2

- 607(3)’s notice requirement. In Plaintiff’s view, his allegation that he told Defendant about certain defects with the trucks was enough to adequat ely plead notice under § 47

- 2

- 607(3). In response, Defendant asks this Court to find that Tennessee courts would adhere to the traditional, stricter reading of notice statutes such as § 47

- 2

- 607(3) whereby it is not enough for a buyer to notify a seller s imply of problems with a good; instead, the buyer must notify th e seller that , in the buyer’s view, the problems rise to the level of a breach. Defendant points out this Court ha s historically adhered to the stricter view when interpreting analogous notice statutes

. For example, in a line of cases in cluding Running Springs Associates v. Masonite Corp. , we analyzed Ohio’s identical notice statute. 680 F.2d 469 (6th Cir. 1982). In concluding that the statute require s noti ce that the problems with the goods rise to the level of breach, rather than mere notice of the defect, this Court cited with approval the oft

quoted language from Judge Learned Hand: The plaintiff replies that the buyer is not required to give notice of w hat the seller already knows, but this confuses two quite different things. The notice ‘of the breach’ required is not of the facts, which the seller presumably knows quite as well as, if not better than, the buyer, but of buyer’s claim that they constitu te a breach. The purpose of the notice is to advise the seller that he must meet a claim for damages, as to which, rightly or wrongly, the law requires that he shall have early warning.No. 19

- 5406 , James Bunn v. Navistar, Inc.

12

Id. at 469

– 70 (quoting Am

. Mfg

. Co. v. U.S. Shipping Board E. F. Corp. , 7 F.2d 565, 566 (2d Cir. 1925)). Relying on this language , we held that Ohio’s identical notice statute requires a buyer to put a seller on notice that “it was considered to be in breach ” and not simply that the buyer “was
exp eriencing difficulties with the goods.” Id. at 470 (quoting K & M Joint Venture v. Smith Int ’ l,
Inc. , 669 F.2d 1106, 1113 (6th Cir. 1982)); accord Standard Alliance Indus., Inc. v. Black Clawson
Co. , 587 F.2d 813, 825 (6th Cir. 1978). But see Chemtrol Adhesives, Inc. v. American Mfrs. Mut.
Ins. Co. , 537 N.E.2d 624, 638 (Ohio 1989) (rejecting the strict reading of the Ohio notice statute in favor of the more relaxed view). Tennessee courts have not recently spoken to this issue. And, although Tennessee may eventually articulate a different interpretation of its notice statute , at this time, we think it appropriate to assume that Tennessee courts would adhere to the traditio nal view that plaintiffs must allege that they provided notice of a breach ( i.e. , that the defendant will be asked to meet a claim for damages) in commercial cases such as this. That interpretation is supported by the plain language of the statute. See Tenn. Code Ann. § 47

- 2

- 607(3) (“Where a tender has been accepted . . . the buyer must within a reasonable time after he discovers or should have discovered any breach notify the s eller of breach or be barred from any remedy.” (emphasis added) )

. Our view is further informed by early Tennessee case law

. In Wildman M

anufacturing Co. v. Davenport Hosiery Mills , 249 S.W. 984 ( Tenn. 1923) , the Supreme Court of Tennessee considered what type of notice was required under the notice provision of the Uniform Sales Act of 1919 (the predecessor of UCC § 2

- 607 )

. 2 The defendant

2 The relevant provision of the Uniform Sales Act required that “ i f, a fter acceptance of the goods, the buyer fail[s] to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows or ought to know of such breach, the seller shall not be liable therefor.” Wildman , 249 S. W. at 986 (quoting Uniform Sales Act, § 49 (1919) .)No. 19

- 5406 , James Bunn v. Navistar, Inc.

13

seller in Wildman had consistently failed to deliver machines on time t o the buyer. Id. at 987. The buyer, in turn, repeatedly sent letters notifying the seller of the problems with the delivery delays, but did not notify the seller of its intention to make a claim for damages. Id. at 988

– 91. After reviewing several cases holding that the buyer is required to put the seller on notice of a breach under the Uniform Sales Act ( i.e. , to put the seller on notice that the buyer intends to seek a claim for damages), the Tennessee Supreme Court found that many of the buyer’s letters to the seller in Wildman did not constitute sufficient notice under the Act. Id. at 993. For example, regarding the buyer’s first letter to the seller, the court stated that “[w]hile this letter is full of complaints, and refers to the br oken promises of the [seller], we see nothing here indicating an intention to claim damages for breach of contract.” Id. at 989. T he court adopted the chancellor’s view that “a claim for damages, and not merely a complaint or announcement of trouble, was necessary” under the
Act

. I d. at 992

. T hat is, t he Tennessee Supreme C ourt held that it wasn’t until the buyer put the seller on notice that it intended to make a claim for damages that the notice provision of the Act was satisfied

. I

d. at 993. Wildman ’s holding aligns with our holding in Running Springs , and with the traditional view and the plain language of the notice statutes. Moreover, this interpretation i s especially applicable in this case where Plaintiff purchased a written warranty, which evidenced the parties’ shared understanding that the second

- hand trucks may need repairs at some point. Because Plaintiff and Navistar mutually anticipated that the t rucks may need repairs at some point, it seems particularly unlikely that Plaintiff ’s request for repairs would put Navistar on notice that the transaction is claimed to involve a breach under § 47

- 2

- 607(3)

. Cf. Tenn. Code Ann. § 47

- 2

- 607, cmt. 4 (“The no tification which saves the buyer’s rights under this Article need only be such asNo. 19

- 5406 , James Bunn v. Navistar, Inc.

14

informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation.”)

. For these reasons , we find that Plaintiff was required to plead that he p ut Navistar on notice that the transaction was “claimed to involve a breach, and thus open[] the way for normal settlement through negotiation” under current Tennessee law. Id

. Because Plaintiff’s complaint d oes not contain such allegations, the district court properly dismissed the breach of express warranty and breach of implied warranty of merchantability claims for failure to state a claim under Rule 12(b)(6). 3
C. Plaintiff’s Rule 59(e) Motion

“ We generally review a denial of a motion to alter or amend the judgment under Rule 59(e) for abuse of discretion.” Nat’l Ecological Found. v. Alexander , 496 F.3d 466, 476 (6th Cir. 2007) ( quot ing Perez v. Aetna Life Ins. Co. , 150 F.3d 550, 554 (6th Cir. 1998 )) . However, i f the district court’s denial of a Rule 59(e) motion is based on erroneous legal doctrine, then this Court employs

a de novo standard of review. I d. In th e present case, t he district court did not base its denial of Plaintiff’s Rule 59(e) motion on an erroneous legal doctrine such that de novo review would apply , and Plaintiff concedes on appeal that this Court should review the district court’s decision for abuse of discre tion

. “In this circuit, a district court may alter a judgment under Rule 59 based on (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a

3 In the district court and on appeal, Defendant further argues that Plaintiff’s express warranty claim should be dismissed because Plaintiff failed to plausibly allege that Defendant made any affirmation s of fact beyond mere puffery. Navistar also argues that Plaintiff failed to plausibly allege facts from which the district court could infer causation and damages for each of his warranty claims. The district court declined to reach the merits of Defend ant’s causation and damages arguments because of other grounds for granting Navistar’s motion to dismiss. Because we find that Plaintiff’s claims were insufficiently pled with regards to notice, we likewise do not address th e s e issues.No. 19

- 5406 , James Bunn v. Navistar, Inc.

15

need to prevent manifest injustice.” Nolfi v. Ohio K entuc k y Oil Corp. , 675 F.3d 538, 551

– 52 (6th Cir. 2012) (citing Leisure Caviar, LLC v. United States Fish & Wildlife Serv. , 616 F.3d 612, 615 (6th Cir. 2010)). This standard vests “considerable discretion” in the district court. Leisure Caviar , 616 F.3d at 615. Whe n deciding whether to grant a Rule 59(e) motion, a district court
must consider the “ interest of protecting the finality of judgments and the expedit ious termination of litigation.” Id. at 615

– 16 (quoting Morse v. McWhorter , 290 F.3d 795, 800 (6th Cir. 2002 ) )

. Otherwise, “ plaintiffs could use the court as a sounding board to discover holes in their arguments, then ‘reopen the case by amending their c omplaint to take account of the court’s decision.’” Id. at 616 (quoting James v. Watt , 716 F.2d 71, 78 (1st Cir. 1983))

. Therefore, unlike in the context of Federal Rule of Civil Procedure 15(a), “[a] claimant who seeks to amend a complaint after losing the case must provide a compelling explanation to the district court for granting the motion.” Id. at 617

. With this stan dard in mind , w e find that the district court did not abuse its discretion by denying Plaintiff’s Rule 59(e) motion to alter or amend the judgment. We address two preliminary issues. First, Plaintiff moved to alter the district court’s judgment only as to his second TCPA claim, which was originally pleaded in Paragraph 45(b) of his complaint. Accordingly, the district
court limited its analysis to whether it should alter its dismissal of Pla intiff’s second TCPA claim only. On appeal, Plaintiff does not challenge the district court’s interpretation of his Rule 59(e) motion as applying only to his second TCPA claim. Therefore, we confine our review of Plaintiff’s Rule 59(e) motion to his seco nd TCPA claim as well. Next, Plaintiff appears to argue that this Court should remand to the district court to provide Plaintiff an opportunity to amend his TCPA claim pursuant to Federal Rule of Civil ProcedureNo. 19

- 5406 , James Bunn v. Navistar, Inc.

16

15(a)(2), regardless of this Court’s review of Plaintiff’s Rule 59(e) motion. This argument is without merit. First, Plaintiff ’s counsel acknowledges in his brief that “[i]t is undisputed that the Plaintiff’s Complaint, as written, may not contain sufficient allegations to state a plausible claim for relief as to the service

- related cause of action presented in Paragraph 45(b). An amendment would be required to survive the Defendant’s Motion to Dismiss as it relates to this cause of action.” Br. for Appellant at 37. Plaintiff then proceeds to arg ue why such an amendment should be allowed under Federal Rule of Civil Procedure 15(a)(2), arguing in particular that there would be no undue delay or undue prejudice to Defendant. Plaintiff’s argument misses the mark because Plaintiff never filed a motion to amend his complaint either as of right or with leave of court in the district court. In his response in opposition to Defendant’s motion to dismiss, Plaintiff stated “[a]s it pertains to the Plaintiff’s allegations contained in Paragraph 45(b) o f the Complaint, Plaintiff will be filing a Motion to Amend pursuant to Federal Rule of Procedure 15(a)(2) for the purpose of pleading, with sufficient particularity, Defendant’s violation of the Tennessee Consumer Protection Act as set forth in Paragraph 45(b) of the Complaint .” R. 12, P g. ID 169. In the same response, Plaintiff requested that “as it pertains to the allegations set forth in Paragraph 45(b), Plaintiff be permitted to Amend the Complaint upon proper motion pursuant to Federal Rule of Civil Procedure 15(a)(2).” Id. (emphasis added). But, Plaintiff never filed a proper motion to amend his complaint, and this Court has repeatedly held that “ a bare request in an opposition to a motion to dismiss

— without any indication of the particular ground s on which amendment is sought . . . does not constitute a motion within the contemplation of Rule 15(a).” La

. Sch. Emps

. ’ Ret. Sys. , 622 F.3d at 486 (quoting PR Diamonds,
Inc. v. Chandler , 364 F.3d 671, 699 (6th Cir. 2004), abrogated on other grounds , Fr ank v. DanaNo. 19

- 5406 , James Bunn v. Navistar, Inc.

17

Corp. , 646 F.3d 954, 961 (6th Cir. 2011 )). For example, in Kuyat v. BioMimetic Therapeutics,
Inc. , 747 F.3d 435, 444 (6th Cir. 2014) , we found that “[b] oth because the plaintiffs did not present an adequate motion and because they did not attach a copy of their amended complaint, the district court did not abuse its discretion in refusing to allow the plaintiffs to amend their complaint based on the final sentence of the plaintiffs’ memorandum in opposition.” Therefore, the district court did not abuse its discretion in this case by failing to rule on a motion that was never before it. To the extent that we consider remanding the case to provide Plaintiff with an opportunity to amend his second TCPA claim, we do so by reviewing the distric t court’s denial of Plaintiff’s Rule 59(e) motion only , rather than on any alleged failure of the district court to grant leave to amend under Rule 15. For the reasons that follow, we find that the district court did not abuse its discretion by denying Pl aintiff’s Rule 59(e) motion. In his Rule 59(e) motion, Plaintiff sought to reopen the district court’s judgment on his TCPA claim because of Plaintiff’s counsel’s mistaken impression “that a case management conference was required prior to filing his motio n to amend.” R. 31, Pg. ID 242. Plaintiff argued that Plaintiff’s counsel misunderstood when he was able to seek leave to amend the complaint under the Local Rules and the Federal Rules of Civil Procedure

. The district court correctly found that Plaintiff’s counsel’s misunderstanding of the procedural rules did not satisfy any of the requisite conditions for granting a Rule 59(e) motion. The court stated: Plaintiff’s argument is nonsensical. The Federal Rules of Civil of Procedure do not state t hat a party must wait to seek leave to amend a complaint until an initial case management conference. In fact, they allow just the opposite. Under Rule 15(a)(1)(B), a party may amend its pleading “as a matter of course if the pleading is one to which a r esponsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Therefore, Plaintiff did not even need to seek leave but instead could have directly responded to Defendant’s motion to dismiss with anNo. 19

- 5406 , James Bunn v. Navistar, Inc.

18

amended complaint. In addition, under Rule 15(a)(2), a party can amend its pleading with the opposing party’s written consent or the court’s leave. Rule 15(a)(2) does not say that a party must wait until after an initial case management conference to move for such relief. Nothing in the Local Rules impairs Plaintiff’s right to amend his complaint or seek leave to do so before the initial case management conference. Nor could it. “[L]ocal rules may not displace the Federal Rules of Civil Procedure.” Wilson v. City of Zanesville , 954 F.2d 349, 352 (6th Cir. 1992). R. 35, Pg. ID 261

– 62. The district court concluded that “[b]ecause Plaintiff

— through a proper understanding of the Federal Rules of Civil Pr ocedure

— could have easily avoided the outcome in this case . . . a manifest injustice has not occurred.” Id. at Pg. ID 262. We agree with the district court. Trial counsel’s misunderstanding of the Federal Rules is not the type of “manifest injustice” at which Rule 59(e) is directed. This Court has repeatedly held that trial counsel’s strategic mistakes do not justify reopening a judgment. See, e.g. , Michigan Flyer LLC v. Wayne Cty. Airport Auth. , 860 F.3d 425, 431 (6th Cir. 2017) ; GenCorp, Inc. v. Am.
Int ’ l Underwriters , 178 F.3d 804, 834 (6th Cir. 1999) ; see also Leidos, Inc. v. Hellenic Republic , 881 F.3d 213, 217 (D.C. Cir. 2018) (“[M]anifest injustice ‘do es not exist where . . . a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.’”) (citation omitted)

. Th ese holdings appropriately apply to counsel’s misunderstanding of the Federal Rules where the language of the Rule s was plain

. See Fed. R. Civ. P. 15(a)(1) (“A party may amend its pleading once as a matter of course within . . . 21 days after service of a motion under Rule 12(b), (e), or (f) . . . .”). Therefore, we hold that the district court did not abuse its discretion by denyin g Plaintiff’s Rule 59(e) motion to alter or amend the judgment on his TCPA claim based on his trial counsel’s misunderstanding of the Federal Rules.No. 19

- 5406 , James Bunn v. Navistar, Inc.

19 IV. CONCLUSION For the reasons set forth above, we AFFIRM the district court’s judgment granting Defendant’s motion to dismiss, and AFFIRM the district court’s order denying Plaintiff’s Rule 59(e) motion to alter or amend the judgment as to his TCPA claim.