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ROBERTS v. ROBERT V. ROHRMAN

October 5, 1995

LISA ANN ROBERTS, Plaintiff,
v.
ROBERT V. ROHRMAN, INC. d/b/a Schaumburg Honda Automobiles, Defendant-Third Party Plaintiff, v. MELISSA ANN MASON, Third Party Defendant-Fourth Party Plaintiff, v. Schaumburg AMC/JEEP RENAULT, INC. d/b/a A.J.R. of Schaumburg, Inc., Fourth Party Defendant.



The opinion of the court was delivered by: COAR

 Two motions are currently before the court: Plaintiff Lisa Ann Roberts' Motion for Partial Summary Judgment on her complaint against Robert B. Rohrman, Inc [docket 39] and Fourth Party Defendant Jeep Eagle of Schaumburg, Inc.'s Motion for Judgment on the Pleadings on Third-Party Defendant/Fourth Party Plaintiff Melissa Ann Mason's fourth party complaint [docket 32]. All the allegations in this matter arise out of numerous sale transactions involving a 1989 Jeep Wrangler with an odometer that does not reflect the actual mileage on the vehicle. The facts of the case are as follows.

 On August 23, 1990, Plaintiff Lisa Ann Roberts ("Roberts") bought a 1989 Jeep Wrangler from Defendant Robert V. Rohrman, Inc. ("Rohrman") which had 10,350 miles on the odometer. Rohrman is a retailer of new and used automobiles in Schaumburg, Illinois. In connection with the sale, Roberts received a odometer disclosure statement, signed by a Rohrman representative, which stated the odometer on the Jeep in question read 10,350 miles and that reading reflected the actual mileage on the vehicle "to the best of [the seller's] knowledge." (Motion for Summary Judgment "MSJ" Ex. B). In addition, Roberts received a vehicle service agreement issued by Rohrman which stated that the odometer on the Jeep read 10,350 miles at the time of sale. (MSJ Ex. C).

 Roberts alleges that, in fact, the odometer on the Jeep had been tampered with and the actual mileage on the vehicle was far in excess of 10,350 miles at the time of sale. Further, Roberts argues that she was misled by Rohrman's misrepresentations regarding the material fact of the mileage on the Jeep at the time of sale, and that she was misled by Rohrman's misrepresentations in deciding to purchase the vehicle.

 Roberts filed this action on June 22, 1994 to redress her alleged injuries resulting from the misrepresentation regarding the mileage on the Jeep. Her complaint contains five counts, as follows: Count I alleges that Schaumburg Honda violated 15 U.S.C. § 1981 et seq., the "Federal Odometer Act" *fn1" ); Count II alleges that Schaumburg Honda violated 814 ILCS 5/3-112.1 (the "State or Illinois Odometer Act"); Count III alleges that Schaumburg Honda violated the Illinois Consumer Fraud Act, 815 ILCS 505/2 ("ICFA"); Count IV alleges that Schaumburg Honda committed common law fraud; and Count V alleges that Schaumburg Honda breached an express warranty to the plaintiff.

 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.

 I. Jurisdiction

 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. ...


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