Free Supplement - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Marshall Meyers (020584) Ian Pryor (022651) KROHN & MOSS, LTD. 111 West Monroe, Suite 711 Phoenix, AZ 85003 (602) 275-5588 (866) 385-5215 (facsimile) Attorneys for Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA RONALD WEBER, ) Case No. CIV 03-2606-PHX-JWS ) Plaintiff, ) PLAINTIFF'S RESPONSE TO vs. ) DEFENDANT'S SUPPLEMENT TO ) ITS MOTION FOR SUMMARY FLEETWOOD MOTOR HOMES ) JUDGMENT OF INDIANA, ) ) Defendant. ) Plaintiff hereby incorporates his previous response to Defendant's motion for summary judgment and his previous statement of facts in opposition of said motion. Plaintiff will only respond herein to the new issues raised by Defendant's supplemental motion. I. DEFENDANT CONTRADICTS ITS OWN BRIEF AND WHOLLY IGNORES THIS COURT'S PREVIOUS ORDER BY NOW ARGUING IT IS A PARTY TO THE PURCHASE MONEY SECURITY AGREEMENT. This Court noted correctly in its October 17, 2005, order that "Weber and Fleetwood were not in contractual privity" at the time of sale. See order of October 17,

22 23 24 25 26 27 28

2005. The parties did not dispute this fact, and Defendant even argued in its motion for summary judgment (which is incorporated into its supplemental motion that the Court is

1

Case 2:03-cv-02606-JWS

Document 122

Filed 11/29/2005

Page 1 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

considering a renewed motion) that "Mr. Weber purchased the subject vehicle from Beaudry RV in Mesa, Arizona, not from Fleetwood." See Defendant's motion for

summary judgment at p. 8, lines 22-23. However, now Defendant argues it was a party to the Purchase Money Security Agreement between Mr. Weber and Beaudry RV and is somehow entitled to the protections and provisions of said contract. This action is not about a breach of the Purchase Money Security Agreement, nor is Beaudry RV a party to this action. Rather this lawsuit is about the Fleetwood warranty and Defendant's breach of its warranty. In an obvious effort to confuse the issues and pull the wool over the eyes of the Court, Defendant now claims that this Court should look to the language of a contract that Defendant is not even a party to. Defendant is challenged to show where there is even a mention of Fleetwood in the Purchase Money Security Agreement that it attempts to hide behind. Even more astonishing is that Defendant has the gall to blame Plaintiff's counsel for not disclosing a document Defendant is now attempting to use in its defense. Obviously, if Defendant is now disclosing the back of this document, it always had it, and

20 21 22 23

thus if it was relevant to its defense, and its not 1 , Defendant should have disclosed it. Regardless, the fact is Defendant can point to no choice of law provision in its warranty. Defendant and Plaintiff have not ever agreed to any choice of law provision

24 25 26 27 28

and as such this Court should look to the Restatement (Second) Conflict of Laws.
1

The front of the document speaks to Plaintiff's financial commitment to the Motor Home and as damages are calculated in terms of the difference between the price paid and value received, §2-714(b), Muller v. Winnebago, 318 F. Supp. 2d 844 (D. Ariz. 2004), the front of the document is relevant. However, as this isn't an action on the loan contract, its terms, including the reverse side, are irrelevant.
2

Case 2:03-cv-02606-JWS

Document 122

Filed 11/29/2005

Page 2 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

II.

ARIZONA LAW DOES NOT APPLY UNDER THE INTEREST ANALYSIS OF SECTION 188 OF THE RESTATEMENT (SECOND) CONFLICT OF LAWS. There is no contract between these parties. 2 This fact renders Defendant's

proffered analysis faulty and incapable of supporting judgment. But giving Defendant the benefit of the doubt, and assuming its adhesion warranty was a contract, a close look at the contact analysis of Section 188(2)(a-e) shows that the factors do not weigh in favor of applying Arizona law but instead weigh in favor of either applying New Mexico law or Indiana law. Section (a) is the place of contracting. This factor weighs in favor of New Mexico as the warranty (the adhesion "contract" at issue here) was not provided to Mr. Weber until he received the Motor Home in New Mexico. See Affidavit of Plaintiff attached as Exhibit A to Plaintiff's controverting statement of facts. 3 Section (b) is the place of the negotiation of the contract. This factor cannot be considered as there is no negotiation in adhesion warranty. Section (c) is the place of performance. This factor again weighs in favor of New Mexico as the Motor Home was delivered in New Mexico and may also weigh in favor of Indiana as substantial repairs were performed at

20 21 22 23

Defendant's factory in Indiana. See repair orders attached as Exhibit A-3 to Plaintiff's controverting statement of facts. Section (d) is the location of the subject matter of the contract. The Motor Home is located in New Mexico at Mr. Weber's residence and

24 25 26 27 28

Fleetwood's warranty is not a contract as there is no privity between these parties. Supra; Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595, 606 (S.D.N.Y. 1982) (in the absence of vertical privity "like the yeastless souffle, the warranty does not `arise'"). The warranty is contractual, rather than tortuous, in nature. Cippollone v. Liggett Group, Inc., 505 U.S. 504, 525 (1992) at fn. 23. 3 The Fleetwood warranty was provided in a box with multiple other warranties in the Motor Home at the time of delivery.
3

2

Case 2:03-cv-02606-JWS

Document 122

Filed 11/29/2005

Page 3 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

therefore this factor also weighs in favor of applying New Mexico law. Section (e) is the domicile or the place of business of the parties. This factor weighs in favor of either New Mexico (Mr. Weber's resident state) or Indiana (Fleetwood's place of business). Thus, even though this test cannot be applied because there is no contract, if the Court applies this test, Arizona law still be inapplicable. III. NEITHER NEW MEXICO NOR INDIANA REQUIRES PRIVITY AND THEREFORE UNDER EITHER ANALYSIS PLAINTIFF'S IMPLIED WARRANTY CLAIMS FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE MUST STAND. PLAINTIFF IS ALSO ENTITLED TO BRING FORWARD CLAIMS FOR REVOCATION OF ACCEPTANCE UNDER THE ACT AS PRIVITY IS NOT REQUIRED. A. New Mexico.

New Mexico law does not require privity to bring implied warranty claims Perfetti v McGhan Medical, 99 N.M. 645, 655, 622 P.2d 646, 654 (N.M. App. 1983) ("[w]e hold that defendant may be held liable for breach of implied warranty of merchantability under the UCC without regard to privity of contract between defendant and either plaintiff or

18 19 20 21

her surgeon"), cert denied 99 N.M. 644, 662 P.2d 645 (1983); Bray v. Monaco, 371 F.Supp.2d 1135 (D.Ariz. 2005). This means privity is not required here. B. Indiana.

22 23 24 25 26 27 28

The Supreme Court of Indiana recently abolished the requirement of privity. Hyundai Motor America Inc. v. Goodin, 822 N.E.2d 947 (2005) ("doing away with the privity requirement for a product subject to the Magnuson-Moss Warranty Act, rather than rewriting the deal, simply gives the consumer the contract expected.") This means that if the Court applies Indiana law, privity is also not a bar to Mr. Weber's claims.

4

Case 2:03-cv-02606-JWS

Document 122

Filed 11/29/2005

Page 4 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

C.

Revocation.

Mr. Weber seeks to revoke acceptance of the Motor Home as one of the Act's "equitable remedies. 15 U.S.C. §2310(d)(1) ("a consumer who is damaged . . . may bring suit for damages and other legal and equitable relief"). This term ("equitable relief") as used in the Act has no limitations. Lieb v. American Motors Corporation, 538 F.Supp. 127 (S.D.N.Y. 1984) ("The language authorizing consumer actions contains no qualification concerning the type of equitable relief available and it would be a misuse of the court's power to write such restrictions into the statute"); Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 291, 80 S.Ct. 332, 334, 4 L.Ed.2d 323 (1960) (absent express limitations a statute will not be interpreted to narrow the full scope of equitable remedies, including injunctions). Because the Act expressly allows limitless equitable remedies, the Act trumps any State law on this issue. Walsh v Ford Motor Co., 807 F.2d 1000, 1014 (C.A. D.C. 1986); Mydlach v. DaimlerChrysler Corp., --- N.E.2d ----, 2005 WL 2414352, Ill.App. 1 Dist. (Sep 30, 2005). See Bray v Monaco and Power Gear, CV-03363 TUC DCB (applying New Mexico law, full revocation after jury trial); Haugland v.

20 21 22 23

Winnebago, 327 F. Supp. 2d 1092, 1098 (D. Ariz. 2004). Therefore, Mr. Weber is entitled to revocation no matter what state law this Court applies. IV. NO OTHER STATE HAS MORE SIGNIFICANT CONTACTS THAN NEW MEXICO AND THEREFORE SECTION 191 OF THE RESTATEMENT (SECOND) CONFLICTS OF LAW IS CORRECTLY APPLIED AND NEW MEXICO IS THE STATE WHERE THE CHATTEL WAS DELIVERED. In the absence of any choice of law provision agreed to by the parties, the local law of the state where the chattel is delivered applies. Restatement (2nd) of Conflict of

24 25 26 27 28

5

Case 2:03-cv-02606-JWS

Document 122

Filed 11/29/2005

Page 5 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Laws §191. Under a Restatement analysis, New Mexico law applies as it is the undisputed state in which the Motor Home was delivered. As this Court can see, no other state has a more signification relationship to the transaction or the parties. Id. Certainly the state of Arizona does not, as neither party lives in Arizona and the majority of repairs were not performed in the state of Arizona. Defendant has failed to show this Court why the Restatement (2nd) of Conflict of Laws §191 should not apply 4 , and therefore this Court should apply the law of New Mexico. RESPECTFULLY SUBMITTED on this 29th day of November 2005. By: _s/Ian Pryor_________ Marshall Meyers Ian Pryor KROHN & MOSS, LTD. 111 West Monroe, 711 Phoenix, AZ 85003 Attorney for Plaintiff(s) Filed electronically on this 29th day of November, with: United States District Court CM/ECF system Copy mailed on this 29th day of November, to:

20 21 22 23 24 25 26 27 28

Hon. John W. Sedwick Attn: Civil Filing 401 West Washington Phoenix AZ 85003 Notification sent electronically via the Court's ECF system and mailed on this 29th day of November, 2005 to:
Defendant's main argument is that Plaintiff's "Sales Contract explicitly states Section 187 applies." This is simply not true as there is no mention in the document of the Restatement. Further, as Defendant previously argued, it is not a party to the Purchase Money Security Agreement. If it is, privity exists, rendering this entire discussion of whether Plaintiff may maintain implied warranty claims moot.
6
4

Case 2:03-cv-02606-JWS

Document 122

Filed 11/29/2005

Page 6 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Mr. Kerry M. Griggs The Cavanagh Law Firm 1850 North Central Avenue, Suite 2400 Phoenix AZ 85004

s/Ian Pryor Ian Pryor

7

Case 2:03-cv-02606-JWS

Document 122

Filed 11/29/2005

Page 7 of 7