Free Reply to Response to Motion - 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 Indiana, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA RONALD WEBER, Plaintiff, NO. CV 03-2606 PHX JWS DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO SUPPLEMENT TO MOTION FOR SUMMARY JUDGMENT RE BREACH OF WRITTEN AND IMPLIED WARRANTIES (Assigned to the Honorable John W. Sedwick)

FLEETWOOD MOTOR HOMES OF INDIANA, INC., Defendant.

Plaintiff brought this lawsuit in the State of Arizona and alleged that he "was at all times relevant hereto in the State of Arizona." Third Amended Complaint, ¶ 2. His counsel later determined that New Mexico law was more favorable to Plaintiff than that of Arizona and, as a result, Plaintiff is now backpedaling and asking that the Court apply New Mexico law instead of Arizona law. Boiled down to the essentials, Plaintiff offers two meager reasons for applying New Mexico law ­ it is his place of residence and is the state where he took delivery of the R.V. As discussed further below, other factors clearly outweigh those and favor
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Document 123

Filed 12/12/2005

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

applying the law of the State of Arizona to the Plaintiff's claims that arise under state law. I. DIRECTLY ANALOGOUS CASE LAW, INVOLVING ANOTHER MATTER BROUGHT BY THE PLAINTIFF'S COUNSEL, SUPPORTS FLEETWOOD'S POSITION RE: THE SALES CONTRACT. At no point has Fleetwood ever contended that it is a party to the sales contract. Indeed, when discussing the contract in its motion, Fleetwood consistently referred to it as being the "Plaintiff's Sales contract" or the "sales contract." Fleetwood does take the position, however, that the sales contract is relevant to determining the appropriate choice of law in this matter. Fleetwood's position is directly supported by a recent Georgia federal district court decision, Gilbert v. Monaco Coach, 352 F. Supp.2d 1323 (D. Ga. 2004), in which the court was presented with circumstances almost identical to this matter. (A copy of the Gilbert decision is attached hereto as Exhibit 1). In Gilbert, the plaintiffs, who were represented by the same law firm that is representing Mr. Weber, bought a 2001 Safari Serengeti Recreational Vehicle (the "RV") on June 3, 2002, from La Mesa RV Center, in Arizona. Id. at 1325. The sales contract for the RV was entered into in Arizona. Id. at 1325-1326. Plaintiffs took possession of the RV on June 6, 2002 in Arizona. Id. at 1326. Plaintiffs received a limited warranty, issued by Safari Motor Coaches ("Safari"). Id. Defendant Monaco Coach Corporation assumed the warranty obligations of Safari Motor Coaches. Id. at n. 1. There is no indication that the Safari warranty included a choice of law provision. Id. The Gilbert plaintiffs alleged that the R.V. was defective and brought virtually the same causes of action against Monaco as Mr. Weber is bringing against Fleetwood in this matter - breach of written warranty, breach of implied warranty and revocation of acceptance. Id. at 1329. Just as Mr. Weber is arguing that the court should apply New Mexico law to these claims, the Gilbert plaintiffs asserted these claims under Georgia state law. Id. at 1329 (citing to the plaintiffs' complaint).
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The Gilbert court noted that Georgia recognizes the rule of lex loci contractus and "applies the law of the state where the contract is made or performed to resolve issues of validity and interpretation." Id. at 1329. The Court concluded that Arizona law applies and that any state law claims against the defendant manufacturer must be brought under Arizona law because: Here, plaintiffs negotiated the sales contract in Arizona. They executed the sales contract in Arizona. The Court also notes that the performance of the contract-which consisted of plaintiffs accepting delivery of the vehicleoccurred in Arizona. The fact that plaintiffs are Georgia residents and that they used a repair shop in Georgia does not change this analysis. Id. at 1329. In other words, the only factor that was present in Gilbert that is not present in this matter is delivery of the vehicle in Arizona. There is no indication, however, that this factor tipped the scales in favor of the court's application of Arizona law. Indeed, the statement "The Court also notes" that plaintiffs accepted delivery in Arizona, appears to indicate that the place of delivery did not factor into the court's decision as heavily as the plaintiffs negotiating and executing the sales contract in Arizona. Further, just as in this matter, that sales contract was negotiated and executed with the dealer, not with the defendant manufacturer, but that fact did not have any impact on the court's decision to apply Arizona law when considering the plaintiffs' claims against the defendant manufacturer. The Gilbert court then went on to apply Arizona state law to the plaintiffs' state law claims. The court determined that the claims for breach of implied warranty of merchantability and revocation of acceptance were state law claims, and held that both claims failed under Arizona law because there was no privity of contract between the plaintiffs and defendant. Id. at 1333-1335. Similarly, in this matter, Arizona law should be applied to Mr. Weber's claims against Fleetwood for breach of the implied warranty of merchantability and implied
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warranty of fitness for a particular purpose as well as any attempt to revoke the purchase. Arizona law should be applied because of the choice of law provision within the sales contract itself, regardless of the fact that the sales contract was entered into between Plaintiff and Beaudry RV. Second, Arizona law should be applied under Section 188 of the Restatement (Second) Conflicts of Laws because the place of contracting and the place of negotiating the sales contract were both in Arizona. Further, Arizona was the location of the subject matter, at the time the sales contract was entered. Plaintiff's argument that New Mexico law should be applied because New Mexico is where he allegedly now has the R.V. is simply unworkable. Under this rationale, the Court would have to apply the law of whatever state the Plaintiff happened to drive the R.V. to whenever a choice of law issue arose throughout the course of the litigation. Under Arizona law, Plaintiff's claims against Fleetwood for breach of the implied warranty of merchantability and implied warranty of fitness for a particular purpose, as well as any attempt to revoke the purchase, fail for lack of privity of contract between the Plaintiff and Fleetwood. Gilbert, at 1333-1334; Plagens v. National RV Holdings, 328 F.Supp.2d 1068, 1073-1074 (D. Ariz. 2004). II. CONCLUSION. Arizona law should apply to Plaintiff's state law claims, because of the choice of law provision in the Plaintiff's sales contract and/or under the balancing test of Section 188 of the Restatement (Second) Conflicts of Laws. Under Arizona law, Plaintiff's claims against Fleetwood for breach of the implied warranty of merchantability and implied warranty of fitness for a particular purpose fail for lack of privity of contract. For these reasons, and those articulated in its Motion for Summary Judgment and Reply, Fleetwood respectfully requests that the Court enter summary judgment in its favor, 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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1850 NORTH CENTRAL AVENUE, SUITE 2400 PHOENIX, ARIZONA 85004-4527 (602) 322-4000

RESPECTFULLY SUBMITTED this day of December, 2005. THE CAVANAGH LAW FIRM, P.A. By: s/Patrick G. Rowe Kerry M. Griggs Patrick G. Rowe Attorneys for Defendant Fleetwood

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

CERTIFICATE OF SERVICE I hereby certify that on December , 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

s/Sandy Lunsford

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

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Case 2:03-cv-02606-JWS