Free Motion for Summary Judgment - District Court of Arizona - Arizona

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THE CAVANAGH LAW FIRM
A Professional Association 1850 NORTH CENTRAL AVENUE SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

Kerry M. Griggs, SBN 016519 [email protected] Patrick G. Rowe, SBN 018591 [email protected] Attorneys for Defendant Fleetwood Motor Homes of California, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA LANE SENNETT, Plaintiff, DEFENDANT FLEETWOOD'S MOTION FOR SUMMARY JUDGMENT NO. CV04 0161 PHX ROS

FLEETWOOD MOTOR HOMES OF CALIFORNIA, INC., and WORKHORSE CUSTOM CHASSIS, (ORAL ARGUMENT REQUESTED) Defendants.

Pursuant to Rule 56, Fed. R. Civ. P., Defendant Fleetwood Motor Homes of California, Inc. ("Fleetwood"), by and through undersigned counsel, respectfully moves this Court for the entry of summary judgment, dismissing the Plaintiff's claims against it. Plaintiff's claims against Fleetwood are completely unsupported by the undisputed facts and fail as a matter of law. Fleetwood's Limited Warranty states that Fleetwood will repair or replace any part of the vehicle, subject to the warranty, that is found to be defective in material or workmanship. Fleetwood consistently worked with the Plaintiff to address her complaints. The alleged defects were adequately repaired, occurred after the expiration of the Limited Warranty, or were not covered by Fleetwood's Limited Warranty, but by the
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limited warranty provided by Defendant Workhorse Custom Chassis ("Workhorse"). Plaintiff did not demand a refund or to revoke her purchase of the vehicle until after she had driven the motor home over 21,000 miles (6,000 miles beyond the term of Fleetwood's Limited Warranty). Fleetwood's expert personally inspected the Plaintiff's Fleetwood 2003 Pace Arrow ("motor home"). He concluded that the motor home is in good condition. He further concluded that if there is any present water intrusion into the motor home, which was one of the Plaintiff's most significant Fleetwood-related complaints, it is due solely to Plaintiff's own failure to maintain sealants on the roof, a maintenance issue the Fleetwood Pace Arrow Owner's Manual expressly advises the consumer to undertake on a regular basis. Conversely, Plaintiff's expert has never even seen the motor home and, as of the date of his deposition, did not know whether or not the alleged defects still exist. Therefore, Fleetwood has provided undisputed evidence that virtually all of the alleged defects in Fleetwoodwarranted components have been addressed and Plaintiff can offer no admissible evidence that the alleged defects still exist. This Court's September 9, 2005 Order ruled that Plaintiff's claim for breach of implied warranty of habitability fails, as there is absolutely no legal precedent for making such a claim outside of a real property context. Plaintiff's claim for of implied warranty of fitness for a particular purpose fails because Plaintiff has offered no evidence that she informed Fleetwood of a particular purpose or any purpose other than ordinary use, for which she wished to use the vehicle. Her claim for breach of implied warranty of

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merchantability fails because the motor home was fit for the ordinary purpose for which motor homes are used. Lastly, Plaintiff's various allegations of regulatory and statutory violations fail because most are simply not applicable to Fleetwood or do not relate to the causes of action

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Plaintiff has brought. Further, Plaintiff has offered no factual support to demonstrate how she may have suffered damages as a result of any of these alleged violations. Thus, the undisputed facts demonstrate that Plaintiff cannot prevail on any of the causes of action she has alleged against Fleetwood. Accordingly, Fleetwood is entitled to judgment as a matter of law. This Motion is supported by the following Memorandum of Points and Authorities, the accompanying Separate Statement of Facts ("SOF"), incorporated herein, and the entire record in this action. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND A. Plaintiff bought a 2003 Fleetwood Pace Arrow from Michael Hohl RV Center on March 27, 2003.

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On approximately March 27, 2003 Plaintiff purchased a 2003 Fleetwood Pace Arrow 37A motor home ("motor home") from Michael Hohl RV Center in Carson City, Nevada. The total cash sales price of the vehicle was $115,243.75 ($110,263.75 without the third-party extended service contract). Plaintiff was given a credit of $13,617.00 for trading in a 2000 GMC Yukon, and making a $2,000 cash down payment. The amount financed was $101,626.75 at an annual percentage rate of 5.99%. If Plaintiff were to make all of her payments under the sales contract, she would have paid $174,697.60. Including financing charges and interest, the total price of the motor home was $188,214.60. (Fleetwood's Statement of Facts ("SOF"), ¶ 1). B. Workhorse provided a Limited Warranty for the vehicle's chassis.

Workhorse provided a New Chassis Limited Warranty for the Plaintiff's vehicle. (SOF ¶ 14.) The Workhorse Limited Warranty states that "the chassis generally consists of the frame, axle, engine, transmission, brakes, steering, suspension, and certain electrical components, as supplied by WCC." (SOF ¶¶ 15-16.) It also includes a diagram of the chassis. (SOF ¶ 15.) The Workhorse Limited Warranty "covers repairs to correct any
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chassis defect related to materials or workmanship occurring during the Warranty Period." (SOF ¶ 16.) Chassis coverage under the Workhorse Limited Warranty "includes the chassis frame, axle, engine, transmission, brakes, steering, suspension, and certain electrical components, as supplied by WCC." (SOF ¶ 16.) A review of the Workhorse Sales Corp Warranty VIN Repair History indicates that Workhorse has provided several repairs to the chassis of the vehicle including: fuel filter replacement, engine stalling issues, fuel pump replacement, generator hose issues caused by fuel tank issues, air conditioning compressors replacement, reinstallation of radiator wind shroud in spring clips, and replacing the belt tensioner and belt. (SOF ¶ 17). None of the issues addressed by the Workhorse Sales Warranty Corp VIN Repair History are subject to Fleetwood's Limited Warranty. Rather, all of these items are subject to coverage under the Workhorse Chassis Warranty. (SOF ¶ 18). Fleetwood is under no obligation to make any repairs to Plaintiff's alleged defects that relate to the chassis. C. Fleetwood provided a Limited Warranty for the coach portion of the vehicle.

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Fleetwood's Limited One-Year/Three-Year Warranty applies to the coach-related elements of the motor home. (SOF, ¶¶ 10-13, 19). Fleetwood's Limited Warranty for defects (other than structural) was for one year or 15,000 miles, whichever came first. Id. Fleetwood provided a three-year warranty for "structural defects," limited to the roof structure, sub-floor structure, exterior walls, interior walls and ceilings. Id. Fleetwood's Limited Warranty states that the dealer is obligated "to repair and replace any parts necessary to correct defects in material or workmanship" and, if the dealer does not resolve the problem, Fleetwood "will repair or replace any parts necessary to correct defects in material or workmanship." Id. The Limited Warranty does not restrict either the dealer or Fleetwood to a certain time period or number of opportunities within which a repair must be made. Id.
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D.

The alleged defects in Fleetwood-warranted components were repaired.

In January 2004, Ms. Sennett brought the motor home to Dick Gore's RV World in Jacksonville, Florida, for repair to the bedroom slideout. (SOF, ¶ 25). Dick Gore's RV World cleaned and resealed this entire area, removed and resealed awning bracket holes, reinstalled the awning and removed and replaced the slideout seal. Id. Additionally,

Fleetwood, or one of its dealers, made numerous other repairs as outlined in Plaintiff's "Timeline of Events." See, Exhibit 6 to Defendant Fleetwood's SOF. Plaintiff alleges that she and her husband stopped using the vehicle in February of 2004 after the repairs at Dick Gore's RV World because they do not trust the vehicle and do not want to get stranded in the vehicle. (SOF, ¶ 27). Due to the lack of use, there are also some items that, at the time of her deposition, Plaintiff did not know whether or not they have been repaired, including the front slide rubbing on an overhead light fixture; bathroom door locks would not stay closed; the kitchen sink fixtures leaked; and a leak at the seal of the toilet fixture. Id. Since Plaintiff has no knowledge regarding whether these issues are still present in the motor home, Plaintiff cannot present any evidence that these items have not been adequately repaired by Fleetwood or one of its authorized repair facilities. In contrast to Plaintiff and her disclosed expert, Fleetwood's expert and Dispute Resolution Administrator Bryan Gaughan personally inspected Plaintiff's motor home at Dick Gore's RV World in Jacksonville, Florida on November 2, 2004. (SOF, ¶ 34). The purpose of Mr. Gaughan's inspection was to assess the alleged defects asserted by the Plaintiff. (SOF, ¶ 35). Mr. Gaughan concluded that the motor home was in good condition and noted only the following problems with the motor home: drawers and one door popped open during travel; a rusted screw in the entry door needed to be replaced, a screw needed to be added to the rear monitor; a leak around the light fixture in the roof over the driver's seat that needed sealant maintenance; and the generator would turn off properly. (SOF, ¶ 37). Mr. Gaughan estimates the repair costs for the problems he noted at his inspection 5
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total $750. (SOF, ¶ 39). The Fleetwood warranty does not cover sealant maintenance; it is the responsibility of the vehicle owner. (SOF, ¶ 41). None of the other defects alleged by the Plaintiff were present when Mr. Gaughan inspected the motor home. (SOF, ¶ 38). Therefore, either these defects never existed or had been adequately repaired. Mr. Gaughan concluded that the motor home is generally in good condition, considering Plaintiff had driven it more than 21,000 miles in the first six months of ownership. (SOF, ¶ 37). Conversely, Plaintiff's expert, William Trimmell, has never seen the motor home, nor has he seen photographs of the motor home. Mr. Trimmell acknowledged at deposition that he could not offer any opinion as to whether the alleged leaking bedroom slide-out continued to allow water intrusion after Fleetwood rebuilt this bedroom slide-out because the Plaintiff ceased using the motor home. Mr. Trimmell also acknowledged at his deposition that he did not know what defects were currently present in the motor home. (SOF, ¶¶ 43-47). II. LEGAL ANALYSIS A. Summary judgment standard.

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Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). To overcome a motion for summary judgment, the nonmoving party cannot rest on the mere allegations or denials contained in its pleadings. Rather, the nonmoving party must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). B. Fleetwood is not liable for any alleged defects in the chassis.

Plaintiff has absolutely no right to bring a claim for breach of warranty against Fleetwood with regard to alleged chassis-related defects. This same issue has already been
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addressed by the District Court of Arizona in Plagens v. National RV Holdings, 328 F.Supp.2d 1068 (D. Ariz. 2004). In Plagens, the plaintiffs attempted to bring a breach of warranty claim against National RV for several items that were expressly excluded from coverage under National RV's limited warranty. Plaintiffs argued that National RV

should be held responsible for any defects in the items expressly excluded from coverage because National RV's limited warranty purported to cover all components that National RV "fabricated, installed, or assembled"; as a result, according to plaintiffs, even if National RV did not manufacture the excluded items, because it installed them, it should be held responsible for the entire motor home. Id. at 1075. The District Court of Arizona rejected that argument, noting that National RV's limited warranty was "clearly labeled as a `Limited' One-Year/Three-Year Warranty" and that it contained "plainly-labeled provisions excluding certain components from coverage." Id.1 As noted above, many of the items about which the Plaintiff has complained are See, also, Anderson v. Newmar, 319 F.Supp.2d 943, 948 (D. Minn. 2004) (Plaintiff precluded from bringing a claim for breach of warranty against manufacturer with regard to alleged defects in the chassis because manufacturer's warranty disclaimed coverage of the chassis); Bailey v. Monaco Coach Corporation, 350 F. Supp.2d 1036, 1041 (N.D. Ga. 2004) ("the warranty is clearly labeled as a `Safari Motorhome Limited Warranty.' This label should alert a reasonable consumer to the fact that portions of the motorhome will not be covered by the warranty," citing Plagens, 328 F. Supp.2d 1068, 1075); and Ruffin v. Winnebago Motor Homes of Pennsylvania, 1997 U.S. Dist. LEXIS 19374 at *16 (E.D. Pa. 1997) ("The [Magnuson-Moss Warranty] Act allows Winnebago to disclaim coverage of any component part warranted by the manufacturer of that part. . . . Winnebago effectively and legally disclaimed liability for any defects in the `automotive system,' chassis, drive train, tires and batteries"). Furthermore, the Arizona State Legislature has recognized that, when it comes to consumer warranty law, motor homes are in a class by themselves. In drafting the state's so-called "lemon law," the Legislature chose to exclude motor homes from its provisions under almost all circumstances. A.R.S. § 44-1261(C) (excluding coverage for all motor vehicles with a "declared gross weight over ten thousand pounds," rendering the lemon law inapplicable to all but a very small subset of small motor homes). Even more significantly, the Legislature codified the significance of the distinction between coach and chassis. In the rare circumstances where the state's lemon law might apply to motor home cases, its application is limited to the chassis of the unit. A.R.S. § 44-1261(B) ("If the motor vehicle is a motor home, the provisions of this article shall apply to the self-propelled vehicle and chassis but not to those portions of the vehicle designed, used or maintained primarily as a mobile dwelling, office or commercial space.")
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not covered by the Workhorse limited warranty. These include fuel filter replacement, engine stalling issues, fuel pump replacement, generator hose issues caused by fuel tank issues, air conditioning compressors replacement, reinstallation of radiator wind shroud in spring clips, and replacing the belt tensioner and belt. None of these issues are subject to coverage under Fleetwood's Limited Warranty because Fleetwood's Limited Warranty expressly excludes coverage of the chassis. Therefore, Fleetwood was under no

obligation to make any repairs to alleged defects that relate to the chassis and Plaintiff cannot assert any cause of action against Fleetwood with regard to these items. C. Fleetwood has not breached its limited warranty, which, for purposes of plaintiff's breach of warranty claim, establishes the rights and obligations of the Plaintiff and Fleetwood.

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The determination of whether Fleetwood has breached its Limited Warranty turns on the terms of the warranty itself. A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty. Accordingly, the "requirement[s]" imposed by an express warranty claim are not "imposed under State law," but rather imposed by the warrantor. Cippolone v. Liggett Group, Inc., 505 U.S. 504, 525 (1992) (emphasis in original). As noted above, Fleetwood's Limited Warranty warrants that Fleetwood will repair or replace any defective part covered by the warranty. Therefore, in considering Fleetwood's Motion for Summary Judgment regarding Plaintiff's breach of warranty claim, the Court must consider whether there is any evidence that Fleetwood did not repair or replace parts of the vehicle, covered by its warranty, that were found to be defective. Milicevic v. Fletcher Jones Imports, 402 F.3d 912, 919 ("Thus, when it failed to correct the defects in the rear window seal and brakes, Mercedes breached the terms of its limited written warranty in violation of Section 2310(d)(1)"); Hines v. Mercedes-Benz USA, 358 F. Supp. 2d 1222, 1229 (D. Ga. 2005) ("By the terms of the

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warranty, [which, similar to Fleetwood's, included a repair/replace provision], a breach occurs only when Defendant has either refused or failed to correct a defect."). As noted above, and further described in the attached Statement of Facts, the undisputed evidence demonstrates that Plaintiff cannot make this demonstration. Under the Federal Rules of Evidence, expert testimony is necessary whenever the subject matter is not within the knowledge or experience of lay people or is based on technical or other specialized knowledge. Fleetwood's expert, Mr. Bryan Gaughan personally inspected the motor home and concluded that it was in good condition and that virtually all of the items that Plaintiff claims to be defective were working properly. Conversely, Plaintiff's expert, William Trimmell, has never seen the motor home, nor has he seen photographs of the motor home. Plaintiff may attempt to offer her own testimony that certain items in the vehicle are still defective. Plaintiff, however, has offered absolutely no evidence as to why she is qualified to opine regarding whether a motor home (or any complex machinery) contains a defective component. To the contrary, she has acknowledged that she is not a mechanic, electrician or an RV dealer and has not training in RV repair. (SOF ¶ 9). Further, at deposition, Plaintiff was unable to state whether or not several of the alleged defects had been repaired. As such, Plaintiff has not created a valid dispute as to whether there are any present defects in the motor home and her claim in this regard fails as a matter of law. Nevertheless, assuming Plaintiff could establish a breach of Fleetwood's Limited Warranty, the next step would be to determine whether Plaintiff has suffered any damages as a result of the breach, which she has not. This approach is consistent with the language of the Magnuson Moss Warranty Act itself, as well as case law interpretation of the act. "Subject to subsections (a)(3) and (e) of this section a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty or service contract, may bring
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suit for damages and other legal and equitable relief." 15 U.S.C. § 2310(d)(1) (emphasis added). D. Plaintiff has not offered any admissible evidence that her vehicle has been diminished in value as a result of the alleged defects.

In order to establish a prima facie case for a breach of warranty, Plaintiff must present evidence that she was damaged as a proximate result of the alleged breach of warranty. "Suing under the [MMWA] does not change the rudimentary fact that liability does not exist in a vacuum; there must be a showing of some damage, which may lead to further issues of quantum." Coghlan v. Aquasport Marine Corp. 73 F.Supp.2d 769, 771 (S.D. Tex. 1999) (internal quotations and citations omitted). Plaintiff has not demonstrated that her vehicle was diminished in value as a result of the alleged Fleetwood-warranted defects. In attempting to support her damages claim Plaintiff offers the opinion of William Trimmell, who has never seen the motor home in person nor even seen photographs of it, but nevertheless speculates that the vehicle has an actual value of $56,475.00. (SOF, ¶ 47). Without inspecting the vehicle or having any knowledge of the vehicle other than conversations with Plaintiff, Mr. Trimmell's opinion testimony regarding alleged defects in the motor home and its value clearly does not provide the requisite foundation for offering an expert opinion as to the value of the motor home under Rule 703 of the Federal Rules of Evidence. Conversely, Fleetwood's expert, Mr. Gaughan, valued the motor home at its bluebook values of $72,740.00 for wholesale, and $96,010.00 for retail (only $14,245.50 less than the taxable purchase price when Ms. Sennett purchased the motor home on March 27, 2003, and after Plaintiff had driven the vehicle for 21,000 miles in the first six months of ownership). (SOF, ¶¶ 28, 40).

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E.

Plaintiff is not entitled to recover incidental or consequential damages.

Any attempt by the Plaintiff to increase her alleged damages by making a claim for incidental and consequential damages should be rejected as a matter of law. Plaintiff is not entitled to any incidental or consequential damages. Fleetwood's Limited Warranty states that Fleetwood shall not be liable for incidental or consequential damages. (SOF, ¶ 11). Plaintiff's counsel may argue that Fleetwood's Limited Warranty failed of its essential purpose, thus all coverage disclaimers are invalid. This is a losing argument. As discussed above, Fleetwood repaired all of the allegedly defective items covered under its warranty. Accordingly, Ms. Sennett should be held to the terms of Fleetwood's Limited Warranty and precluded from recovering any incidental and consequential damages. See Anderson v. Newmar, 319 F. Supp.2d 943, 948-949 (D. Minn. 2004) ("There is simply no evidence that the repair or replacement provisions in the warranties for Anderson's motor home failed of their essential purpose and thus no reason to invalidate the accompanying limitations on consequential damages."); Three-Seventy Leasing Corp. v. Ampex Corp., 528 F.2d 993, 998 (5th Cir. 1976) (upholding contractual limitations on damages under the U.C.C.) III. PLAINTIFF'S CLAIMS AGAINST FLEETWOOD FOR BREACH OF IMPLIED WARRANTIES FAIL AS A MATTER OF LAW. This Court's September 9, 2005 Order ruled that Plaintiff's claim for breach of implied warranty of habitability fails, as there is absolutely no legal precedent for making such a claim outside of a real property context. Plaintiff's claim for of implied warranty of fitness for a particular purpose fails because Plaintiff has offered no evidence that she informed Fleetwood of a particular purpose or any purpose other than ordinary use, for which she wished to use the vehicle. Lastly, Plaintiff's claim for breach of implied warranty of merchantability fails as a matter of law. See Havas v. Love, 89 Nev. 458, 514 P.2d 1187 (Unless otherwise agreed, goods sold in the state of Nevada carry an implied warranty of merchantability, that is,
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that the goods are at least fit for the ordinary purposes for which they are used). See also Jolovitz v. Alfa Romeo, 760 A.2d 625, 629 (Me. 2000) (In the absence of a manufacturing defect, and given the fact that reported problems were repaired, replaced, or adjusted, the court found that plaintiff's car was fit for its ordinary purpose and thus did not violate the implied warranty of merchantability). The undisputed evidence demonstrates that

Plaintiff drove the vehicle more than 21,000 miles in six months and that Fleetwood, consistent with the terms of its express warranty, adequately repaired or replaced virtually all of the items, covered by Fleetwood's warranty, about which Plaintiff had complained. Given this evidence, it is apparent that the motor home was fit for the ordinary purpose for which motor homes are used, thus Plaintiff's claim for breach of implied warranty of merchantability fails, as a matter of law. IV. PLAINTIFF'S ALLEGATIONS OF REGULATORY VIOLATIONS FAIL AS A MATTER OF LAW. Plaintiff's allegations that Fleetwood violated 16 C.F.R. § 700.5, 16 C.F.R. § 701.3, 16 C.F.R. § 700.4 and 15 U.S.C. § 2302 and 16 C.F.R. § 702.3 fail as a matter of law. In making these allegations, Plaintiff either attempts to create regulatory requirements that do not exist, impose regulations upon Fleetwood that do not apply to manufacturers, or cites regulations that do not relate to the causes of action she has pled. Further, not only are the allegations completely misguided, Plaintiff offers no factual support for most of them. For example, Plaintiff's allegation that Fleetwood has not complied with 16 C.F.R. § 701.3 is simply wrong. This regulation does not require that Fleetwood list the names and contact information for every warrantor of every item in the vehicle. It requires that the warrantor provide the names and contact information for the consumer product that is being warranted: Any warrantor warranting to a consumer by means of a written warranty a consumer product actually costing the consumer more than $15.00 shall clearly and conspicuously disclose in a single document in
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simple and readily understood language the following items of information . . .(5) . . .this includes name(s) of the warrantors, together with the mailing address(es) of the warrantor(s). 16 C.F.R. § 701.3. In this matter, the consumer product Fleetwood warranted was the vehicle, except for those items expressly excluded and/or covered by another warranty such as Workhorse's, limited warranty (e.g., chassis and tires). Fleetwood provided its contact information on the second page of the warranty. Had Fleetwood also provided contact information for the chassis manufacturer or tire manufacturer, this would not have been "simple and readily understood language"; conversely, it may easily have led the consumer to believe that Fleetwood's Limited Warranty could also be enforced against the chassis or tire manufacturer. Additionally, Plaintiff's allegation that Fleetwood has not complied with 16 C.F.R. § 701.3 does not even provide a basis for a breach of warranty cause of action; rather it is tantamount to alleging an unfair or deceptive trade or practices claim: Bailey asserts that the failure to comply with these requirements should void any exclusions and disclaimers included in the Limited Warranty. Thus, Bailey argues that the Limited Warranty should be deemed to cover every component within the motorhome. This argument fails for a number of reasons. Bailey has not cited any case to support the proposition that a failure to satisfy the disclosure requirements negates exclusions and disclaimers of the warranty. Moreover, violations of the Federal Trade Commission disclosure regulations would more properly form the basis of a claim for unfair or deceptive acts or practices under the Magnuson-Moss Act and the Federal Trade Commission Act. 15 U.S.C. §§ 45(a)(1), 2310(b); Cunningham v. Fleetwood Homes of Georgia, Inc., 253 F.3d 611, 620-21 (11th Cir. 2001). Bailey, however, has failed to plead or prove any claim for deceptive trade practices. Bailey, 350 F.Supp.2d at 1041. Similarly, Plaintiff has not alleged an unfair or deceptive trade or practices claim in this matter.2
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Nor do Plaintiff's counsel allege common law fraud or a violation of the Consumer Protection Act, knowing that attorney's fees are not recoverable under such causes of action. Nevertheless, they try to muddy the issues with fraud-like allegations, even though they could never meet a fraud burden of proof.
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Similarly, with regard to the alleged violation of 16 C.F.R. § 700.5, Plaintiff is attempting to fashion a cause of action where one does not exist. This regulation does not impose any requirements on warrantors such that Fleetwood could be deemed to have violated this regulation. Rather, it clarifies that "statements or representations of general policy concerning customer satisfaction . . . are exempt from the requirements of sections 102, 103, and 104 of the Act" but ". . . remain subject to the enforcement provisions of section 110 of the Act, and to section 5 of the Federal Trade Commission Act, 15 U.S.C. 45. In making this allegation, Plaintiff is simply attempting to rely on a different regulation to bring the same fraud or deceptive practices argument that has been made and rejected time and again in other cases. Even if 16 C.F.R. § 700.5 did form the basis for a cause of action, Ms. Sennett could not pursue such an action because, as already pointed out, she has not plead any claim for deceptive trade practices. Further, Plaintiff fails to offer factual support to demonstrate how she has suffered injury as a result of any of these alleged regulatory and statutory violations. A party opposing a motion for summary judgment "must do more than simply show there is some metaphysical doubt as to the material facts" by "com[ing] forward with 'specific facts showing that there is a genuine issue for trial." Plagens, 328 F. Supp.2d 1068, 1071, quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). As a result, all of these allegations fail because there is no genuine issue of material fact with regard to damages that would merit presenting these allegations to a jury. V. CONCLUSION. For the reasons stated above, Fleetwood respectfully moves this Court for the entry of summary judgment, dismissing all of the Plaintiff's claims against it and awarding Fleetwood its attorneys' fees pursuant to A.R.S. § 12-341.01. /// ///
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T HE C AVANAGH L AW F IRM , P.A.

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1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

RESPECTFULLY SUBMITTED this 15th day of September, 2005. THE CAVANAGH LAW FIRM, P.A.

By: s/Patrick G. Rowe Kerry M. Griggs Patrick G. Rowe Attorneys for Defendant Fleetwood

CERTIFICATE OF SERVICE I hereby certify that on September 15, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants: Marshall Meyers, Esq. Krohn & Moss, Ltd. 111 West Monroe, Suite 711 Phoenix, AZ 85003 Attorneys for Plaintiff Negatu Molla David Williams BOWMAN AND BROOKE, LLP 2901 N. Central Avenue, Suite 1600 Phoenix, AZ 85012-2761 Attorneys for Defendant Workhorse Custom Chassis By: s/Jacque Andersen

T HE C AVANAGH L AW F IRM , P.A.

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