The HONORABLE JOHN B. JONES, United States District Judge for

the District of South Dakota, sitting by designation.

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No. 96-1917

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Jim E. Huson, husband; Dawn *

Huson, wife, *

*

Plaintiffs/Appellants, *

*

v. * Appeal from the United States

* District Court for the

General Motors Acceptance * Western District of Missouri

Corporation, a New York *

Corporation, *

*

Defendant/Appellee, *

*

William McConnell, doing *

business as Bill's Used Cars *

through C&H Used Cars, *

*

Defendant. *

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 Submitted: January 13, 1997

 Filed: March 4, 1997

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Before BOWMAN and MURPHY, Circuit Judges, and JONES, District Judge. 1

___________

JONES, District Judge.

Plaintiffs Jim and Dawn Huson (Husons) brought this action against

General Motors Acceptance Corp. (GMAC) alleging violations of federal

odometer law, the Magnuson-Moss Warranty Act (MMWA), state warranty law and

common law fraud. Summary judgment was
 The Honorable James C. England, United States Magistrate Judge

for the Western District of Missouri, Southern Division.

2

granted to GMAC and the Husons appeal. We affirm the well-reasoned opinion

of the trial court.2

Husons also move to strike the Appellee's Separate Appendix and the

Brief of the Appellee because these documents rely on material that was not

in the record below. The Motion to Strike will be granted to the extent

these documents rely on material outside the record below. 

FACTS

The dispute centers on a 1986 Buick Electra Park Avenue. The vehicle

was acquired by GMAC through repossession, and was subsequently sold at an

auction to a dealer who then sold the vehicle to the Husons on April 8,

1988. There were no irregularities in the title documents at that time

that would have suggested that the odometer statement was not accurate.

When mechanical problems developed more than two years after Husons’

purchase of this vehicle, the Husons researched the history of the vehicle

and discovered the rollback. 

DISCUSSION

A. Federal Odometer and Common Law Fraud Claims.

Husons argue that GMAC had an affirmative duty to perform an

investigation to detect if the appearance of the vehicle indicated mileage

in excess of the odometer reading. Husons assert that GMAC's failure to

investigate violated the duty imposed by federal odometer statutes. 
3

GMAC can be liable under the federal odometer statutes, however, only

if its violation of § 1988 was done with the "intent to defraud." 15

U.S.C. § 1989(a) (1982) (repealed 1994, current version at 49 U.S.C. §

32710 (1996)); Tusa v. Omaha Auto Auction, Inc., 712 F.2d 1248, 1253 (8th

Cir. 1983). Mere negligence in completing the required odometer statements

will not lead to liability. See 15 U.S.C. § 1989(a); Tusa, 712 F.2d at

1254. In Tusa, this Court adopted the approach taken by the great majority

of courts that "if a person lacks knowledge that an odometer reading is

false only because he displays a reckless disregard for the truth, a fact

finder can reasonably infer that the violation was committed with an intent

to defraud a purchaser." Id. at 1253-54. In Tusa, the auto dealer ignored

a "clear and apparent" alteration of a mileage figure on the title and

filled in the mileage statement merely by looking at the odometer. Id. at

1254. This Court held that an intent to defraud could be inferred under

those circumstances. Id.

In this case, Husons argue that GMAC demonstrated a reckless

disregard for the truth because it failed to perform an inspection of the

vehicle or the title documents before providing the mileage statement.

Husons' argument fails because there is no indication that any discrepancy

would have been discovered if such an investigation had been performed.

In Tusa, facts that would have put the dealer on notice of a problem with

the odometer reading accompanied the failure to investigate. Id. at 1254.

Because the Husons offered no evidence that such an investigation would

have revealed a potential problem with the odometer reading, the failure

to investigate could not have caused any injury to them. Therefore,

summary judgment was properly granted to GMAC on both the federal odometer

and common law fraud claims.
4

B. Magnuson-Moss and State Warranty Claims.

The trial court granted summary judgment on the MMWA claim because

the amount sought was less than $50,000.00 and declined to exercise pendent

jurisdiction over the state law breach of warranty claims. The trial court

in granting summary judgment on these claims expressly stated that their

dismissal in this action was without prejudice to the claims being made in

state court. We affirm.

CONCLUSION

 When viewed in a light most favorable to the plaintiffs, there are

no facts to support plaintiffs' allegation of an intent to defraud by GMAC.

The trial court properly dismissed the federal odometer and common law

fraud claims with prejudice. The trial court also properly dismissed the

MMWA and state law breach of warranty claims without prejudice to their

being refiled in state court. These decisions are affirmed.

A true copy.

 Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.