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Zappa v. Oag Motorcycle Ventures, Inc.

United States District Court, N.D. Illinois, Eastern Division

May 12, 2014



THOMAS M. DURKIN, District Judge.

The Plaintiffs, Mary Zappa and Randall Hahn, filed a four-count complaint against OAG Motorcycle Ventures, Inc., d/b/a City Limits Harley Davidson ("City Limits"), Jeffrey J. Smith, Garrison Bennett, and Gary Umansky (collectively, the "Harley Defendants"), Officer Carlos Gonzalez, [1] and the Village of Palatine (the "Village"). R. 1. Count I, against Officer Gonzalez, is a claim under 42 U.S.C. § 1983 for deprivation of property without due process. Id. ¶¶ 52-59. Counts II and III, against the Harley Defendants, allege a violation of the Illinois Consumer Fraud & Deceptive Business Practices Act ("ICFA"), 815 ILCS 510/2, and a common law "defamation per se" claim. Id. ¶¶ 60-74. Count IV is an indemnification claim against the Village pursuant to 745 ILCS 10/9-102. Id. ¶¶ 75-76. Officer Gonzalez and the Village have filed a motion to dismiss, R. 13, as have the Harley Defendants.[2] R. 32. For the following reasons, the Court grants Officer Gonzalez and the Village's motion to dismiss as to Counts I and IV, and declines to exercise supplemental jurisdiction over Counts II and III. The Harley Defendant's motion is thus denied as moot.


In early July 2013, Hahn saw an internet advertisement on City Limits' webpage for a used 2004 FLHTC Harley Davidson motorcycle with a $8, 175.00 sale price ("Motorcycle One"). R. 1 ¶¶ 11, 51. Hahn emailed City Limits an offer to buy the motorcycle, and he received a call from Umansky, a sales person at City Limits, on July 8, 2013, to discuss a price. Id. ¶¶ 8, 13. A week later, Umansky called Hahn and suggested that Hahn and Zappa come to City Limits to check out the motorcycle.

On July 19, 2013, the Plaintiffs took Umansky up on his offer and traveled to City Limits, so they could test drive Motorcycle One. Id. ¶ 15. When they arrived at City Limits, the Plaintiffs were greeted by Umansky and Bennett, a City Limits sales manager, and informed the men that they wanted to test drive the motorcycle. Id. ¶ 16. Umansky and Bennett then brought out a motorcycle that was "visually indistinguishable" from the motorcycle in the ad (Motorcycle One) but was in actuality a different motorcycle of the same make and model ("Motorcycle Two"). Id. ¶¶ 17-18. The Plaintiffs proceeded to take Motorcycle Two out for a ride, and when they returned, Bennett asked them if they liked the motorcycle. Id. ¶ 19. The Plaintiffs, believing that the motorcycle was the same as the one in the ad, said yes and noted that the motorcycle had fewer miles than they expected. Id. ¶ 20. Umansky proceeded to check his computer to verify the mileage and confirmed that the mileage of the motorcycle (Motorcycle Two) was indeed only about 40, 000 miles. Id. ¶ 21.

The Plaintiffs offered $6, 500 (not including taxes and fees) for the motorcycle they had test ridden, which was Motorcycle Two, although they thought it was Motorcycle One. Id. ¶ 23. Bennett took the offer to his finance manager, Mike Pennelli, and returned shortly thereafter to say they had a deal. Id. ¶¶ 24-25. Zappa made a down payment of $1, 626.66 on the motorcycle with her credit card; the total cost was $7, 626.66 after taxes and fees. Id. ¶ 26. Pennelli gave Zappa the credit card receipt to sign and handed Hahn the bill of sale to sign that listed the agreed-upon price for the motorcycle and a $1, 626.66 credit for Zappa's down payment, leaving a $6, 000.00 balance that they would pay when they returned at a later time to pick up the motorcycle. Id. ¶ 27. At that point, the Plaintiffs failed to notice that the bill of sale had the VIN number and description of Motorcycle One, not Motorcycle Two-the motorcycle they tested. Id. ¶ 28. After they completed the required paperwork, Pennelli congratulated the Plaintiffs on their purchase and took a picture of the Plaintiffs with Motorcycle Two. Id. ¶¶ 29-30.

The Plaintiffs returned to City Limits on July 22, 2013, to pick up the motorcycle. Id . ¶ 31. Motorcycle Two had an orange "Sold" sign on it. Id. ¶ 32. Hahn gave Tim Ryan, a City Limits manager, cash for the remaining balance, who in turn gave the money to Smith, City Limits' general manager, to count. Id. ¶¶ 6, 33. Ryan then filled out the dealer plate registration for the motorcycle and gave the license plate to Umansky, who installed the plate on Motorcycle Two. Id. ¶ 34. Dealer personnel at City Limits proceeded to finish the accounting for the purchase of the motorcycle, and when they were done, the Plaintiffs received the keys to Motorcycle Two. Id. ¶¶ 35-36. The Plaintiffs then left City Limits with their newly-purchased Harley Davidson motorcycle. Id.

The following day, July 23, 2013, Bennett called the Plaintiffs and informed them that they had received the wrong motorcycle. Id. ¶ 37. He told the Plaintiffs that they either had to pay an additional $1, 000.00 to keep the motorcycle they had received or promptly return the motorcycle to City Limits. Id. ¶ 38. The Plaintiffs declined to pay more for the motorcycle. Id. ¶ 39. Tony Pisano, City Limits' district manager, then called the Plaintiffs and demanded an additional $2, 500.00 for the Plaintiffs to keep the motorcycle. Id. ¶¶ 39-40. He further stated that he could report the motorcycle stolen, to which the Plaintiffs said they needed to consult an attorney. Id. ¶¶ 41-42. According to the Plaintiffs, Pisano informed the Plaintiffs at that point that he would be immediately reporting the motorcycle as stolen and requesting that Hahn be arrested. Id. ¶ 43.

The Plaintiffs were out to dinner the next evening on July 24, 2013, when Hahn received a call from a person identifying himself as Officer Gonzalez of the Palatine Police Department. Id. ¶ 44. The Plaintiffs allege that Officer Gonzalez informed the Plaintiffs that Smith had reported the motorcycle they possessed as being stolen and that Hahn would be arrested if he did not immediately return the motorcycle. Id. ¶¶ 45-46. The Plaintiffs, allegedly fearing arrest even if they returned the motorcycle to City Limits, brought the motorcycle to their local police station in Lake Zurich to surrender the motorcycle. Id. ¶ 47. They then informed Smith of where they had brought the motorcycle, and Smith and Officer Gonzalez went to the Lake Zurich police station shortly thereafter to reclaim it. Id. ¶¶ 48-49.

The Plaintiffs allege that City Limits has continued to advertise Motorcycle One as being for sale on its website and that City Limits has not returned any of the money they paid. Id. ¶¶ 50-51.


A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with "fair notice" of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This "standard demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "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.'" Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.


Officer Gonzalez and the Village request the Court to dismiss Counts I and IV. The Harley Defendants contend that Counts II ...

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