Melissa Ann Mason ("Mason") who was the previous owner of the Jeep in question and who sold the Jeep to Rohrman as a trade-in. Mason had certified that the odometer reading was correct "to the best of [her] knowledge" at 10,319 miles on an odometer disclosure statement similar to the one in question between Roberts and Rohrman. (MSJ Ex. J). Rohrman alleges that Mason fraudulently misrepresented the mileage on the Jeep when she traded it in on a new vehicle.
Mason also disavows liability for the mileage confusion. Continuing the chain of potential liability, Mason sued Fourth Party Defendant Jeep Eagle of Schaumburg, Inc. ("Schaumburg Jeep"), alleging that when Schaumburg Jeep sold the Jeep to her as a new vehicle she was told that the odometer needed repair, but she was not told that the odometer had been replaced twice without proper certification pursuant to the requirements of the Federal Odometer Act, 15 U.S.C. § 1987.
Roberts claims that these misrepresentations make the Jeep "virtually unmarketable," (Plaintiff's Reply in Support of Summary Judgment at 11), and claims actual, treble, and punitive damages, as well as attorneys' costs and fees in connection with the botched sale.
Defendant Rohrman questions this court's jurisdiction to decide this case in its response to Roberts' motion for summary judgment although it admitted in its answer to Roberts' complaint that jurisdiction and venue were proper in this court. Rohrman argues that because Roberts did not move for summary judgment on the Federal Odometer Act claim, she clearly was using that claim only as a pretense to get into federal court, and therefore the court lacks jurisdiction to decide the complaint.
Plaintiff argues that simply because she has not moved for summary judgment on the federal claim does not mean that it was necessarily an artifice used to get to federal court. Plaintiff maintains that simply because genuine issues of material fact exist regarding the Federal Odometer Act claim, that fact alone in no way necessitates the conclusion that the claim itself is bogus. This court agrees.
Plaintiff asserts that this court has jurisdiction over the Federal Odometer Act claim pursuant to 28 U.S.C. § 1332, and has supplemental jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1367. Section 1367 provides that once a district court has original jurisdiction over one claim in any civil action, that same court may adjudicate "all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367.
Roberts has asserted that the odometer in the Jeep sold to her by Rohrman had (without her knowledge) been replaced two times. This, along with sufficient intent allegations which will be discussed below, is sufficient to state a claim under the Federal Odometer Act. Thus, this court has jurisdiction over count I based on 28 U.S.C. § 1332. The other state law claims arise out of the same sale of the same Jeep, and thus are part of the same "case or controversy."
II. Robert's Motion for Partial Summary Judgment
Plaintiff Roberts has moved for summary judgment on count III brought pursuant to the ICFA, and count V alleging breach of express warranty.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928 (7th Cir. 1995); Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Ass'n of Indianapolis, 806 F.2d 146, 149 (7th Cir. 1986). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The primary inquiry is whether the evidence presents a sufficient disagreement to require a trial, or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the moving party meets this burden, the non-moving party must then respond by setting forth specific facts which demonstrate the existence of a genuine issue for trial. Fed. R. Civ. P. 56(e); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 78 L. Ed. 2d 336, 104 S. Ct. 392 (1983); see Curtis v. Bembenek, 48 F.3d 281 (7th Cir. 1995). All reasonable inferences from the record are to be drawn in favor of the non-moving party. Johnson v. Runyon et al., 47 F.3d 911 (7th Cir. 1995); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994).
B. Count II: ICFA
Plaintiff Roberts maintains that she prevails on her ICFA claim against Rohrman as a matter of law because (1) Rohrman represented the mileage on the Jeep; (2) that the representation was false; and (3) that Rohrman intended that Roberts rely on Rohrman's representation.
The Illinois Consumer Fraud Act, 815 ILCS 505/2, prohibits retailers misrepresenting any material fact "with intent that others rely on the concealment, suppression, or omission of such material fact" regardless of whether anyone is actually misled by the misrepresentation. 815 ILCS 505/2.
The Illinois legislature has given a "clear mandate...that the courts...are to utilize the Consumer Fraud Act to the utmost degree in eradicating all forms of deceptive and unfair business practices and to grant appropriate remedies to defrauded consumers." Warren v. LeMay, 142 Ill. App. 3d 550, 491 N.E.2d 464, 472, 96 Ill. Dec. 418 (5th Dist. 1986) (quoting American Buyers Club of Mt. Vernon v. Honecker, 46 Ill. App. 3d 252, 257, 361 N.E.2d 1370, 1374, 5 Ill. Dec. 666 (1977)). Thus, Illinois courts have stated:
By its own terms, the statute [the ICFA] requires only that a violator intend for a purchaser to rely on his acts or omissions. A party is considered to intend the necessary consequences of his own acts or conduct. Posner v. Davis, (1979) 76 Ill. App. 3d 638, 643, 32 Ill. Dec. 186, 190, 395 N.E.2d 133, 137.