### The HONORABLE JOHN B. JON ES, United States District Judge for

the District of South Dakota, sitting by designation. ___________ No. 96-1917

___________ 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. *

___________ Submitted: January 13, 1997 Filed: March 4, 1997

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

___________ JONES, District Judge.
Plaintiffs Jim and Dawn Huson (Husons) brought this action agains t General Motors Acceptance Corp. (GMAC) alleging violations of federa l odometer law, the Magnuson-Moss Warranty Act (MMWA), state warranty law an d common law fraud. Summary judgment was

### The Honorable James C. England, United States Magistrat e Judge

for the Western District of Missouri, Southern Division. 2 granted to GMAC and the Husons appeal. We affirm the well-reasoned opinio n of the trial court. 2

Husons al so move to strike the Appellee's Separate Appendix and the Brief of the Appellee because these documents rely on material that was no t 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 v ehicle was acquired by GMAC through repossession, and w as subsequently sold at an aucti on to a dealer who then sold the vehicle to the Husons on April 8 , 1988. Th ere were no irregularities in the title documents at that tim e tha t would have suggested that the odometer statement was not accurate
. When m echanical 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 a n 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." 1 5 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 statement s will not lead to liability. See 15 U.S.C. § 1989(a); Tusa , 712 F.2d a t 1254. In Tusa , this Court adopted the approach taken by the great majorit y of courts that "if a person lacks knowledge that an odometer reading i s false only because he displays a reckless disregard for the truth, a fact finder can reasonably infer that the violation was committed with an inten t to defraud a purchaser." Id. at 1253-54. In Tusa , the auto dealer ignore d a "clear and apparent" alteration of a mileage figure on the title an d filled in the mileage statement merely by lookin g 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 reckles s disregard for the tru th because it failed to perform an inspection of the vehicl e or the title documents before providing the mileage statement
. Husons' argument fails because there is no indic ation that any discrepancy wou ld have been discovered if such an investigation had been performed
. In Tusa , facts that w ould have put the dealer on notice of a problem with the odometer reading accompanied the failure to investigate. Id. at 1254. Bec ause the Husons offered no evidence that such an investigation woul d have revealed a potential problem with the odometer reading, the failure to i nvestigate 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 tria l court granted summary judgment on the MMWA claim becaus e the amount sought was less than $50,000.00 and declined to exercise penden t jurisdiction over the state law breach of warranty claims. The trial cour t in granting summary judgment on these claims expressly stated that their dismissal in this action was without prejudice t o the claims being made in state court. We affirm.

CONCLUSION
When vi ewed in a light most favorable to the plaintiffs, there ar e no facts to support plaintiffs' allegation of an intent to defraud by GMAC
. The trial court properly dismissed the federal odometer and common la w fraud claims with pre judice. The trial court also properly dismissed the MMWAand 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.