1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DAVIDA WOODGER, 

Plaintiff, Civil Action No. 

 14-cv-11810 

v. 

 HON. MARK A. GOLDSMITH 

TAYLOR CHEVROLET, INC., 

Defendants. 

____________________________________/ 

OPINION AND ORDER (i) DENYING DEFENDANT’S MOTION FOR SUMMARY 

JUDGMENT (Dkt. 19) AND (ii) DISMISSING PLAINTIFF’S CLAIM UNDER THE 

MICHIGAN CONSUMER PROTECTION ACT (COUNT III) WITHOUT PREJUDICE 

I. INTRODUCTION

 This is a case regarding an inaccurate odometer disclosure statement, with claims brought 

pursuant to the Motor Vehicle Information and Cost Savings Act, 49 U.S.C. § 32701, et seq. 

(“Federal Odometer Act”) (Count I), as well as Michigan’s odometer disclosure statute, Mich. 

Comp. Laws § 257.233a (Count II), and the Michigan Consumer Protection Act (“MCPA”), Mich. 

Comp. Laws § 445.901, et seq. (Count III). The parties agree that Defendant Taylor Chevrolet, 

Inc. (“Taylor”) sold Plaintiff Davida Woodger a used vehicle, and that Taylor provided an 

inaccurate odometer disclosure statement during the sale; the statement reflected approximately 

10,000 less miles than were actually attributable to the vehicle. However, the parties disagree 

whether Taylor can be held liable for this error. 

 The discovery period has ended. Taylor filed a motion for summary judgment (Dkt. 19), 

Woodger filed a response (Dkt. 28), and Taylor filed a reply (Dkt. 31). The Court heard oral 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 1 of 14 Pg ID 632
2 

argument on May 21, 2015, and took the matter under advisement. Pursuant to a subsequent 

Order, the parties then submitted supplemental briefing (Dkts. 37, 38). Because the Court 

concludes that a genuine issue of material fact exists regarding the “intent to defraud” requirement 

for Woodger’s odometer act claims, the Court denies Taylor’s motion for summary judgment. 

However, because Woodger’s claim under the MCPA raises a novel and complex issue of 

Michigan law, the Court dismisses this claim without prejudice, pursuant to 28 U.S.C. § 1367(c). 

II. BACKGROUND

The facts of this case are largely undisputed, although the inferences to be drawn therefrom 

are contested. On October 11, 2013, Taylor acquired a 2011 Nissan Murano from a customer as 

part of a trade. Def. Br. at 1; Pl. Resp. at 4. The vehicle had 56,160 miles on it, which was 

reflected on an odometer disclosure statement. Def. Br. at 1; Pl. Resp. at 4; see also 10/11/2013 

Odometer Disclosure Statement (Dkt. 19-2). 

At the time of the trade, the vehicle’s information — including the mileage — was entered 

into Taylor’s data management system. Def. Br. at 1; Pl. Resp. at 4. It is the job of the title clerk 

— in this case, Erica Anderson — to take the mileage off the vehicle and put it into the data 

management system. Def. Br. at 1; Pl. Resp. at 4. 

Taylor subsequently submitted an application for title and registration for the vehicle to the 

State of Michigan. See Application (Dkt. 19-6). On the application, Taylor listed the odometer 

mileage as “46,160” — 10,000 miles less than when the vehicle was obtained by Taylor. Id. 

The box in which this mileage was listed warns, “The odometer mileage reading must match the 

mileage reading disclosed to the purchaser on the title and/or mileage statement.” Id. The State 

of Michigan subsequently issued a certificate of title reflecting a mileage of 46,260. See 

Certificate of Title (Dkt. 19-7). 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 2 of 14 Pg ID 633
3 

Woodger purchased the vehicle from Taylor on November 8, 2013. Id. The odometer 

disclosure statement that Woodger was provided reflected an odometer mileage of 46,260. See 

11/8/2013 Odometer Disclosure Statement (Dkt. 19-8). This same mileage was placed on the 

assignment of the title. See Certificate of Title (Dkt. 19-7). Both parties agree that this mileage 

was incorrect, and that the correct mileage was approximately 56,160 miles. See Def. Br. at 1-2; 

Pl. Resp. at 4-6; Def. Reply at 1-2. 

At some point during the sale negotiations with Woodger, Taylor’s sales agent obtained a 

copy of a CARFAX report, which discloses reported information about a car’s history. Pl. Resp. 

at 6-7; Def. Reply at 2; see also T. Schiftar Dep. at 10:10-15 (Dkt. 28-6). The agent showed the 

report to Woodger, who signed a document acknowledging having been offered the opportunity to 

see and review the report. Pl. Resp. at 6-7; Def. Reply at 2; see also D. Woodger Dep. at 

31:10-33:6 (Dkt. 28-2). Woodger claims that the report the sales agent obtained revealed the 

mileage discrepancy, but that she was not permitted to review the report in detail or keep it after 

the sale. Pl. Resp. at 7; see also D. Woodger Dep. at 31:10-33:6. 

Woodger brought the vehicle back to Taylor a few days later for the replacement of tires. 

Def. Br. at 2; Pl. Resp. at 5. At that time, the mileage discrepancy came to the parties’ attention. 

Def. Br. at 2; Pl. Resp. at 5. The parties were unable to resolve the matter informally, Def. Br. at 

2; Pl. Resp. at 5, and this lawsuit followed. 

III. SUMMARY JUDGMENT STANDARD 

A court “shall grant summary judgment if the movant 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). When a defendant seeks summary judgment, the defendant “bears the initial 

responsibility of informing the district court of the basis for its motion, and identifying those 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 3 of 14 Pg ID 634
4 

portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material 

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted). “[T]he 

plaintiff must present affirmative evidence in order to defeat a properly supported motion for 

summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). A mere 

scintilla of evidence is insufficient; rather, “there must be evidence on which the jury could 

reasonably find for the [nonmovant].” Id. at 252. 

 When evaluating the evidence on a motion for summary judgment, 

credibility judgments and weighing of the evidence are prohibited. Rather, the 

evidence should be viewed in the light most favorable to the non-moving party. 

Thus, the facts and any inferences that can be drawn from those facts must be 

viewed in the light most favorable to the non-moving party. 

Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 373 (6th Cir. 2009) (brackets and citations 

omitted). 

IV. ANALYSIS

 Taylor raises two arguments in support of its motion for summary judgment. First, Taylor 

argues that both the federal and state odometer statutes require “intent to defraud” to hold a seller 

liable, and there is no evidence of such an intent with respect to the odometer statement here. 

Instead, Taylor suggests that this simply was a clerical error when the mileage was entered into the 

data management system. See Def. Br. at 4-7. Second, Taylor argues that its sale of the vehicle 

is exempt from the MCPA, because the sale is “specifically authorized under laws administered by 

a regulatory board or officer acting under statutory authority of this state” — in this case, the 

Michigan Motor Vehicle Code, the Secretary of State, and the Bureau of Regulatory Services. Id. 

at 8-10. 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 4 of 14 Pg ID 635
5 

 The Court first addresses Taylor’s argument regarding an “intent to defraud.” The Court 

concludes that a genuine issue of material fact exists regarding this element, and thus denies 

Taylor summary judgment on the odometer act claims. However, although the Court denies 

summary judgment on Counts I and II, the Court dismisses Woodger’s MCPA claim (Count III) as 

raising a novel and complex issue of Michigan law, pursuant to 28 U.S.C. § 1367(c)(1). 

A. Whether Woodger Has Sufficiently Shown Intent to Defraud 

Woodger raises claims under both the federal and Michigan odometer statutes. Congress 

enacted the Federal Odometer Act, 49 U.S.C. § 32701, et seq., because consumers “rely heavily on 

the odometer reading as an index of the condition and value of a vehicle,” and “are entitled to rely 

on the odometer reading as an accurate indication of the mileage of the vehicle.” Id. § 32701(a). 

That statute provides, in relevant part, as follows: 

(a)(1) Under regulations prescribed by the Secretary of 

Transportation that include the way in which information is 

disclosed and retained under this section, a person transferring 

ownership of a motor vehicle shall give the transferee the following 

written disclosure: 

(A) Disclosure of the cumulative mileage registered on the 

odometer. 

(B) Disclosure that the actual mileage is unknown, if the transferor 

knows that the odometer reading is different from the number of 

miles the vehicle has actually traveled. 

(2) A person transferring ownership of a motor vehicle may not 

violate a regulation prescribed under this section or give a false 

statement to the transferee in making the disclosure required by such 

a regulation. 

Id. § 32705(a). The National Highway Traffic Safety Administration has, in turn, promulgated 

regulations requiring the disclosure of odometer mileage and its accuracy. See 49 C.F.R. 

§§ 580.1, 580.2, 580.5(a), (c), (e). 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 5 of 14 Pg ID 636
6 

 The statute also permits enforcement by private parties through civil litigation, and sets 

forth the permissible relief: “A person that violates this chapter or a regulation prescribed or order 

issued under this chapter, with intent to defraud, is liable for 3 times the actual damages or 

$10,000, whichever is greater.” 49 U.S.C. § 32710(a). The statute further allows for recovery of 

costs and reasonable attorney fees. Id. § 32710(b). 

 Michigan similarly regulates the provision of odometer mileage information upon selling a 

vehicle. Michigan Compiled Laws § 257.233a provides, in relevant part, as follows: 

(1) When the owner of a registered motor vehicle transfers his or 

her title or interest in that vehicle, the transferor shall present to the 

transferee before delivery of the vehicle, written disclosure of 

odometer mileage by means of the certificate of title or a written 

statement signed by the transferor including the transferor’s printed 

name, containing all of the following: 

(a) The odometer reading at the time of transfer not to include the 

tenths of a mile or kilometer. 

* * * 

(g) One of the following: 

(i) A statement by the transferor certifying that to the best 

of his or her knowledge the odometer reading reflects the 

actual mileage of the vehicle. 

(ii) If the transferor knows that the odometer reading 

reflects the amount of mileage in excess of the designed 

mechanical odometer limit, a statement to that effect. 

(iii) If the transfer [sic] knows that the odometer reading 

differs from the mileage and the difference is greater than 

that caused by odometer calibration error, a statement that 

the odometer reading does not reflect the actual mileage and 

should not be relied upon. This notice shall include a 

warning notice to alert the transferee that a discrepancy 

exists between the odometer and the actual mileage. 

Mich. Comp. Laws § 257.233a(1). Like its federal counterpart, the state statute also sets forth the 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 6 of 14 Pg ID 637
7 

penalties for non-compliance: “A person who, with intent to defraud, violates any requirement 

under subsection (1) . . . is liable in an amount equal to 3 times the amount of actual damages 

sustained or $1,500.00 whichever is greater, and in the case of a successful recovery of damages, 

the costs of the action together with reasonable attorney’s fees.” Id. § 257.233a(15). 

Both the federal and state statutes require an “intent to defraud.” See 49 U.S.C. § 

32710(a); Mich. Comp. Laws § 257.233a(15). Taylor argues that “there is absolutely no 

evidence of any intent to defraud on behalf of the Defendant and the facts clearly show a mistake 

on behalf of the dealership.” Def. Br. at 5. Taylor suggests that, “it appears that the title clerk for 

the dealership made a mistake and accidentally entered the mileage for the Vehicle into the data 

management system as 46,160 instead of 56,160.” Id. Taylor also asserts that “[i]t is not 

plausible that a class ‘A’ auto dealer in the state of Michigan would put its dealer license at risk to 

attempt to defraud the Plaintiff with respect to a 10,000 mileage discrepancy when the difference 

in value is negligible and only in the range of $575.00 to $776.00.” Id. at 6-7. 

Woodger responds that a question of fact exists as to Taylor’s intent to defraud. Pl. Resp. 

at 9-16. Woodger first argues that, pursuant to Michigan Compiled Laws § 257.233a(14), 

Taylor’s provision of a false odometer disclosure statement is prima facie evidence of a fraudulent 

act. Id. at 10. Woodger also argues that the “intent to defraud” requirement can be satisfied 

based on Taylor’s failure to take steps to verify the accuracy of the disclosure statement. Id. at 11. 

In support of this argument, Woodger asserts that: (i) the CARFAX report at the time of the sale 

reflected a mileage discrepancy, but Taylor failed to investigate this issue; and (ii) Taylor’s sales 

agent rushed Woodger through the sales transaction and did not print the CARFAX report or 

permit Woodger to examine it in detail, instead having her sign a waiver — as part of numerous 

other documents during the process — acknowledging that she had seen the report. Id. at 13-15. 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 7 of 14 Pg ID 638
8 

A threshold issue exists regarding the proper interpretation of the phrase “intent to 

defraud” in the odometer statutes. Woodger suggests that the term goes beyond willful conduct, 

also encompassing a reckless standard, i.e., where the seller closes its eyes to a glaring deficiency. 

Indeed, Woodger claims that the “dealership’s assertion that a clerical error occurred on the 

paperwork is not a legal excuse,” because “the standard of review . . . is whether the transferor may 

have had reason to know of the mileage discrepancy.” Pl. Resp. at 14 (emphasis removed). 

The Sixth Circuit might well disagree with Woodger’s interpretation for purposes of the 

federal statute. In Paul’s Auto World v. Boyd, 881 F.2d 1077 (Table), 1989 WL 88484, at *2 (6th 

Cir. Aug. 7, 1989), the Sixth Circuit set forth the requirements for establishing liability under the 

predecessor to the current federal statute. The court concluded that the phrase “intent to defraud” 

requires a showing of a “‘willful’ act done with specific intent to deceive a purchaser of the 

mileage on a car.” Id. This suggests that recklessness is not sufficient. See also Moss v. Farr 

Motor Co., Inc., 82 F.3d 418 (Table), 1996 WL 166734, *2 (6th Cir. Apr. 9, 1996) (uncertainty as 

to the accuracy of the odometer is insufficient; liability requires that the defendant knew the 

mileage on the odometer was false). 

Even the authority Woodger cites in support of her reckless standard recognizes the Sixth 

Circuit’s stricter “willful” requirement. In Haynes v. Manning, 917 F.2d 450, 453 (10th Cir. 

1990), the Tenth Circuit joined the majority of courts in holding that “reckless disregard is 

sufficient to prove intent to defraud” for the federal odometer statute. In so holding, however, the 

Haynes court expressly rejected the position taken by the Eastern District of Tennessee — and 

affirmed by the Sixth Circuit — that “‘intent to defraud’ means ‘to act willfully and with the 

specific intent to deceive any purchaser or potential purchaser of a motor vehicle who inspects the 

odometer of a motor vehicle as an index of the condition and value of such vehicle.” Id. (citing 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 8 of 14 Pg ID 639
9 

Shipe v. Mason, 500 F. Supp. 243, 245 (E.D. Tenn. 1978), aff’d, 633 F.2d 218 (Table) (6th Cir. 

Sept. 29, 1980)). At least one other district court in this circuit has similarly looked to Sixth 

Circuit law in concluding that a plaintiff’s reliance on a gross negligence or reckless standard was 

not persuasive. See Scherber v. Online Auctions, LLC, No. 13-530, 2014 WL 3908114, at *3 

(N.D. Ohio July 3, 2014). But see Nabors v. Auto Sports Unlimited, Inc., 475 F. Supp. 2d 646, 

652 (E.D. Mich. 2007) (holding, without explanation, that “to show an intent to defraud under the 

Act, [the plaintiff] must show an intentional violation or that Auto Sports exhibited a reckless 

disregard for the truth as to the Jeep’s mileage”).1 

Nevertheless, the Court need not resolve this issue, as Woodger has raised a genuine issue 

of material fact even at the higher “wilfull” level. Woodger’s argument focuses almost 

exclusively on her allegations regarding the CARFAX report. In particular, Woodger claims that 

the report shown to her at the time of the sale revealed a mileage discrepancy, but that Taylor’s 

agent rushed her through the sale and did not permit her to carefully review the report, which 

would have revealed the problem. Woodger asserts that the evidence can support a finding that 

the sales agent “noticed the mileage inconsistency, pushed through the sale despite the 

inconsistency, and intentionally withheld the CARFAX report from Plaintiff, knowing that there 

was a [mileage inconsistency] warning.” See Pl. Supp. Br. at 3 (Dkt. 38); Pl. Resp. at 13-14. 

In support of her claim, Woodger has provided a CARFAX report that was generated on or 

around December 4, 2013 — nearly a month after the sale. See CARFAX Report (Dkt. 28-5); see 

also Compl. ¶ 20 (Dkt. 1). This report contains an entry dated October 12, 2013, which reveals 

 

1

 The Nabors court cited Jones v. Hanley Dawson Cadillac Co., 848 F.2d 803 (7th Cir. 1988) in 

support of its statement that a plaintiff under the federal odometer statute must show either an 

intentional or reckless violation; however, Jones held only that mere negligence was insufficient to 

establish an intent to defraud. 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 9 of 14 Pg ID 640
10 

both a mileage of 46,160 and the following statement: “MILEAGE INCONSISTENCY[.] The 

mileage reported here conflicts with this vehicle’s odometer history. Ask a mechanic or the seller 

to confirm the actual mileage – this entry may just be a clerical error.” CARFAX Report (Dkt. 

28-5); see also id. (“Odometer Check[.] Inconsistent mileage indicated.”). Woodger claims the 

notifications in this report suffice for purposes of showing an intent to defraud, because they 

suggest that Taylor’s agent knew or recklessly disregarded the mileage issue. 

Although the CARFAX report that Woodger has provided was generated a month after the 

sale, the Court concludes that there is a genuine issue of material fact whether the report at the time 

of sale, i.e., November 2013, contained the same information. After the hearing on Taylor’s 

motion, the Court ordered the parties to submit supplemental briefing setting forth any and all 

evidence regarding “[w]hether the [December 2013] CARFAX report . . . contained the same 

information — and, in particular, the ‘Mileage Inconsistency’ warnings on pages 2 and 4 of 5 of 

the report — at the time of the November 2013 sale.” 7/28/2015 Order (Dkt. 36). Although 

Taylor filed a supplemental brief disputing whether the November 2013 report contained the 

actual “Mileage Inconsistency” warnings, Taylor appears to have conceded that the November 

2013 report did state that there were approximately 46,000 miles on the vehicle. See Def. Supp. 

Br. at 2 (Dkt. 37) (“Plaintiff’s pleading supports the fact that the CARFAX presented to Plaintiff 

showed 46,000 miles on the Vehicle and did not show any sort of mileage inconsistency.”). 

Woodger similarly testified in her deposition that the CARFAX report she was shown at the time 

of the sale disclosed a mileage of 46,000. See D. Woodger Dep. at 30:16-31:1 (Dkt. 28-2). 

The 46,160 mileage reading appears in the October 12, 2013 line entry on the report — the 

same line entry containing one of the “Mileage Inconsistency” warnings. While Taylor’s counsel 

argued at the motion hearing that this entry was not added to the report until after the sale of the 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 10 of 14 Pg ID 641
11 

vehicle to Woodger (a point he admitted was not in the record), see Rough Tr. at 15-18, this is 

belied by Taylor’s most recent briefing, in which Taylor sets forth that Woodger’s complaint 

supports “the fact that the CARFAX presented to Plaintiff showed 46,000 miles on the Vehicle.” 

(Emphasis added). Therefore, given that Taylor now appears to concede that the October 12, 

2013 entry showing 46,160 miles appeared on both the November 2013 and December 2013 

reports, the Court concludes that, taking all inferences in Woodger’s favor, the evidence supports a 

finding that the “Mileage Inconsistency” warning that is included in that same line entry was on 

both reports as well. This is a logical conclusion, given that the “Mileage Inconsistency” warning 

likely resulted from the discrepancy between the October 12, 2013 entry (46,160 miles), and the 

September 21, 2013 entry immediately preceding it (55,319 miles). 

The Court also finds that a genuine issue of material fact exists regarding Taylor’s 

knowledge about the mileage issue. Taylor’s sales agent testified that he gave Woodger a “clean 

CARFAX, no accidents, no damage.” T. Schiftar Dep. at 10:14-15 (Dkt. 28-6). This suggests 

that the sales agent at least reviewed the report prior to giving it to Woodger; otherwise, he could 

not have known that the CARFAX report revealed “no accidents, no damage.” Id. And given 

that Taylor concedes that the November 2013 report revealed a mileage of 46,160, and the report 

showed a mileage of 55,319 directly above that, a reasonable factfinder could infer that the sales 

agent was aware of the mileage problem but did not correct the odometer disclosure statement, 

thereby potentially satisfying the “intent to defraud” requirement under either a “wilfull” or 

“reckless” standard. 

Taylor’s arguments in favor of summary judgment are not well taken. Taylor claims that 

this was nothing more than a clerical error committed by the title clerk. See Def. Br. 5-6. In 

support of this argument, Taylor highlights testimony that the title clerk ultimately was terminated 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 11 of 14 Pg ID 642
12 

due to making mistakes. Id. Taylor also claims that it is “not plausible that a class ‘A’ auto 

dealer in the state of Michigan would put its dealer license at risk to attempt to defraud the Plaintiff 

with respect to a 10,000 mileage discrepancy when the difference in value is negligible and only in 

the range of $575.00 to $776.00.” Id. at 6-7. 

While these arguments are appropriate for Taylor to make before the ultimate factfinder, 

they are premised on credibility determinations and disputed facts, which are inappropriate on 

summary judgment. In light of the inferences that can be drawn from the evidence discussed 

earlier, as well as the fact that those inferences must be viewed in the light most favorable to 

Woodger at this time, the Court concludes that a genuine issue of material fact exists regarding 

Taylor’s intent to defraud. Summary judgment is, therefore, inappropriate.2 

 

2 In its supplemental brief, Taylor raises a new argument — that it cannot be liable for fraud based 

on the CARFAX report, because Woodger reviewed the report and, thus, “would have been on 

notice that representations regarding the mileage of the vehicle may have been inaccurate.” Def. 

Supp. Br. at 3-4. This is an issue raised for the first time in Taylor’s supplemental brief, and it 

goes beyond the bounds of the limited issue the Court asked the parties to address in supplemental 

briefing: whether the November 2013 report contained the same information as the December 

2013 report. See 7/28/2015 Order. The Court, thus, refuses to consider this argument at this 

time. See Trustees of the Painters, Union Deposit Fund v. G&T Comm. Coatings, Inc., No. 

13-13261, 2014 WL 2743340, at *2-3 (E.D. Mich. June 17, 2014) (rejecting interpretation of a 

fringe benefit clause that was raised for the first time in a supplemental brief, because this was “far 

beyond the appropriate time to assert a new argument”); United Am. Healthcare Corp. v. Backs, 

997 F. Supp. 2d 741, 747 (E.D. Mich. 2014); see also Howard v. Pierce, 738 F.2d 722, 723 n.2 (6th 

Cir. 1984) (refusing to consider argument raised for the first time in a reply brief). 

 Moreover, Taylor cites The Mable Cleary Trust v. The Edward-Marlah Muzyl Trust, 686 

N.W.2d 770, 783 (Mich. Ct. App. 2004), in support of its claim that it cannot be liable if Woodger 

was “either presented with the information and chose to ignore it or had some other indication that 

further inquiry was needed.” Def. Supp. Br. at 3. However, in Titan Insurance Co. v. Hyten, 817 

N.W.2d 562 (Mich. 2012), the Michigan Supreme Court held that to the extent Mable Cleary Trust 

“can be read to support the proposition that a party has an independent duty to investigate and 

corroborate representations, we overrule Mable Cleary Trust.” Id. at 555, n.4. 

 In addition, Woodger alleges that although she was shown the report, she was not permitted to 

examine it or keep a copy of it. See D. Woodger Dep. at 31:2-4. Viewing all inferences in 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 12 of 14 Pg ID 643
13 

Accordingly, the Court denies Taylor’s motion as to Counts I and II, the federal and 

Michigan odometer act claims, respectively.3

B. The MCPA Claim 

Although the Court denies Taylor’s motion for summary judgment on Woodger’s claims 

under the federal and Michigan odometer acts, the Court dismisses Woodger’s claim under the 

MCPA (Count III) without prejudice. The parties dispute whether this sales transaction, and thus 

Taylor, is exempt from MCPA liability in this case. Taylor cites broad language from a Michigan 

Supreme Court decision, as well as language from Justice Cavanagh’s separate opinion in that 

case, in support of its position that the MCPA cannot apply. Def. Br. at 8-10 (citing Smith v. 

Globe Life Ins. Co., 597 N.W.2d 28 (Mich. 1999)). Woodger responds by citing an older 

Michigan Court of Appeals decision. See Pl. Resp. at 16-19 (citing McRaild v. Shepard Lincoln 

Mercury, 367 N.W.2d 404 (Mich. Ct. App. 1985)). 

Taking Taylor’s theory to its logical conclusion, any transaction that is in any way 

regulated by a governmental board or officer acting under statutory authority, even minimally, 

 

Woodger’s favor, a reasonable factfinder could conclude that this was because the sales agent 

knew of the mileage issue in the report and did not want Woodger to see it, as described above. 

This would undermine Taylor’s suggestion that Woodger was adequately presented with 

information that she chose to ignore. 

3

 Woodger relies on Michigan Compiled Laws § 257.233a(14) to support her argument that a 

false odometer statement is prima facie evidence of a fraudulent act, but this is a red herring. Pl. 

Resp. at 10. That provision establishes that a false statement can constitute prima facie evidence 

of a fraudulent act for purposes of section 249, which deals with the Secretary of State’s authority 

to deny, suspend, or revoke a dealer’s license if the Secretary finds that the “[t]he applicant or 

licensee has been guilty of a fraudulent act in connection with selling . . . vehicles of a type 

required to be registered under this act.” See Mich. Comp. Laws § 257.249(d). Michigan 

Compiled Laws § 257.233a(14) says nothing about establishing prima facie evidence of fraud for 

purposes of section 257.233a(15) — the provision establishing civil liability for a violation that 

was committed with “intent to defraud.” Nevertheless, given the actual evidence discussed 

above, the Court finds that summary judgment is not appropriate. 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 13 of 14 Pg ID 644
14 

would be wholly exempt from the MCPA. Such a far reaching interpretation could, potentially, 

eviscerate the protections the statute was designed to provide. This complex and novel issue 

requires interpreting the scope of an important state statute and a Michigan Supreme Court 

decision’s discussion of that statute, which the Court believes would best be addressed by 

Michigan’s courts, particularly given the parties’ cursory briefing on this issue before this Court. 

Therefore, the Court declines to exercise supplemental jurisdiction over this claim, and dismisses 

it without prejudice. See 28 U.S.C. § 1367(c)(1). 

V. CONCLUSION 

For the foregoing reasons, the Court denies Defendant Taylor’s motion for summary 

judgment (Dkt. 19) regarding Counts I and II, but dismisses Count III without prejudice. 

 The Court will issue an amended scheduling order setting new dates for the settlement 

conference, final pretrial conference, and trial, as well as due dates for the final pretrial order and 

non-dispositive motions. All other aspects of the Court’s Case Management and Scheduling 

Order remain in effect (Dkt. 8). 

SO ORDERED. 

Dated: August 25, 2015 s/Mark A. Goldsmith 

Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any 

unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail 

addresses disclosed on the Notice of Electronic Filing on August 25, 2015. 

 s/Carrie Haddon 

 Case Manager 

4:14-cv-11810-MAG-RSW Doc # 39 Filed 08/25/15 Pg 14 of 14 Pg ID 645