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ANDERSON v. ELMHURST CHEVROLET

DENNIS M. ANDERSON, Plaintiff,
v.
ELMHURST CHEVROLET, INC. and WESTERN DIVERSIFIED SERVICES, INC., Defendants.



The opinion of the court was delivered by: JOHN GRADY, Senior District Judge

MEMORANDUM OPINION

Before the court are the motions of the defendants to dismiss the amended complaint. For the following reasons, the motion of Elmhurst Chevrolet, Inc. is granted in part and denied in part, and the motion of Western Diversified Services, Inc. is denied.

BACKGROUND

  This is an action arising from plaintiff Dennis M. Anderson's purchase of a Dodge Ram truck from defendant Elmhurst Chevrolet, Inc. ("Elmhurst") and a related service contract from defendant Western Diversified Services, Inc. ("Western").

  We have already entertained various motions in this case and issued two memorandum opinions. The first opinion dealt with Western's motion to compel arbitration. The service contract that plaintiff alleged (in Count I of the complaint) was breached clearly requires that all disputes arising under the contract be submitted to arbitration. Plaintiff responded to Western's motion by denying under oath that he signed the service contract. Explaining that we do not understand how plaintiff can sue on a contract he denies executing, we dismissed Count I as against Western and indicated that should Elmhurst file a motion for dismissal of Count I as against it, that motion would likely be granted.

  Our second memorandum opinion addressed Western's motion to dismiss other counts of the complaint. We dismissed, with prejudice, plaintiff's breach of implied warranty of merchantability claim (Count II) as against Western because it was Elmhurst, not Western, that sold plaintiff the automobile. We also dismissed plaintiff's statutory and common-law fraud claims (Counts IV and V) for failure to comply with Federal Rule of Civil Procedure 9(b) and gave plaintiff leave to file an amended complaint.

  Plaintiff filed an amended complaint that contains the following claims: breach of the service contract (Count I); breach of the implied warranty of merchantability (Count II); revocation of acceptance (Count III); violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (the "Consumer Fraud Act") (Count IV); and common-law fraud (Count V). All five counts are asserted against Elmhurst, but only Counts I, IV, and V are asserted against Western. Defendants now move to dismiss the amended complaint.*fn1

  DISCUSSION

  The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). When evaluating such a motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). Dismissal is appropriate only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

  A. Count I (Breach of Written Service Contract)

  Elmhurst moves to dismiss Count I for the reason advanced in our first memorandum opinion: plaintiff cannot sue for breach of a contract he denies executing. Plaintiff notes that he has repleaded Count I in the amended complaint "merely to preserve [his] rights on appeal." (Response to Elmhurst's Motion at 3.) A repleading of previously-dismissed claims, however, is unnecessary to preserve those claims for appeal. See Bastian v. Petren Res. Corp., 892 F.2d 680, 682 (7th Cir. 1990). Count I is dismissed with prejudice as against both defendants.

  B. Counts II & III (Breach of Implied Warranty of Merchantability & Revocation of Acceptance)

  Elmhurst contends that Counts II and III must be dismissed because they are "based on the same service contract Plaintiff denies he signed." (Elmhurst's Memorandum at 3-4.) This is simply incorrect. Counts II and III do not relate to the service contract at all. Count II is a claim that the truck plaintiff purchased was not fit for its ordinary purpose. In Count III, plaintiff seeks to revoke the vehicle purchase ...


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