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Raatz v. Dealer Trade Inc.

United States District Court, D. Arizona

June 8, 2017

Tom Raatz, et al., Plaintiffs,
v.
Dealer Trade Incorporated, Defendant.

          ORDER

          David G. Campbell, United States District Judge

         Plaintiffs Tom Raatz, Marcine Raatz, and TMR LLC filed this action against Defendant Dealer Trade Inc. d/b/a Luxury Motorsports, asserting violation of the Federal Odometer Act (49 U.S.C. § 32701) and breach of contract. Doc. 1. After stipulating to the dismissal of Plaintiffs' Odometer Act claim (Doc. 104), the parties have filed cross-motions for summary judgment on the breach of contract claim. Docs. 114, 116, 119, 123. No party requests oral argument. The Court will grant Plaintiffs' motion in part and deny Defendant's motion.

         I. Background.

         The following facts are undisputed. In the summer of 2015 Plaintiffs were looking to purchase a vehicle for their family. Doc. 115, ¶ 1; Doc. 116 at 2 (stating that Defendant does not contest ¶¶ 1-24 of Doc. 115). Plaintiffs saw Defendant's advertisement for a used 2010 Infiniti QX56 with less than 36, 000 miles (“QX56, ” or “the Vehicle”). Doc. 115, ¶ 2. In August 2015, Plaintiffs traveled from Iowa to Arizona to purchase the Vehicle. Id., ¶ 3. Throughout the sales process, Defendant represented to Plaintiff that the Vehicle had less than 36, 000 actual miles. Id., ¶ 4.

         On August 24, 2015, the parties entered into a Retail Buyer's Order (“RBO”), in which Defendant stated that the Vehicle had 35, 648 miles and Plaintiffs agreed to purchase the Vehicle for $33, 359.75. Id., ¶¶ 6-8. The RBO stated that the Vehicle “is sold ‘AS IS - NOT EXPRESSLY WARRANTED OR GUARANTEED.'” Doc. 117, ¶ 14; Doc. 120 at 1 (stating that Plaintiffs do not dispute ¶¶ 10-15 of Defendant's separate statement of facts (Doc. 117)). Plaintiffs put $3, 000 down, and financed the remaining purchase amount through a credit union. Doc. 115, ¶ 9.

         Plaintiffs drove the Vehicle back to Iowa and took it to the Willis Infiniti dealership for service. Id., ¶ 10. The dealership informed Plaintiffs that service records showed the Vehicle was serviced approximately four years earlier, on September 29, 2011, at which time it had an odometer reading of 46, 731 miles. Id., ¶ 11. After learning of the mileage discrepancy, Plaintiffs immediately contacted Defendant. Id., ¶ 14.

         Between October 6 and October 19, 2015, Plaintiffs reached out to Defendant on four separate occasions - once by telephone and three times by email - seeking a refund of the sales price, but Defendant did not respond. Id., ¶¶ 15-20. Plaintiffs have been forced to pay off their loan with the credit union due to the reduced value of the Vehicle. Id., ¶ 21. Plaintiffs would not have purchased the Vehicle had they known it had more mileage than was reflected by the odometer. Id., ¶¶ 22-23.

         II. Legal Standard.

         A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is also appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         III. Plaintiffs' Motion for Summary Judgment.

         Plaintiffs seek summary judgment on their breach of contract claim on the basis of breach of express warranty. Doc. 114 at 5-7. Defendant argues that breach of express warranty was not asserted in Plaintiffs' complaint and is a separate and distinct claim. Doc. 116 at 1-10. Defendant also argues that the RBO disclaimed any express warranty and that the mileage statement in the RBO did not constitute an express warranty.

         A. Adequacy of Plaintiffs' Complaint.

         In their complaint, Plaintiffs plead ...


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