5 Minute er Form (06/97)

United States District Court, Northern District of Dhinois

Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate fudge than Assigned Judge
CASE NUMBER 00 C 7082 DATE 7/26/2001
CASE Alma Diaz etc. Vs. Joe Rizza, Inc.
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefl

nature of the motion being presented.]

wo)

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
(1) G Filed motion of ( use listing in “Motion” box above.]
(2) o Brief in support of motion due ___
(3) ao Answer brief to motion due___. Reply to answer briefdue____
(4) a) Ruling/Hearing on setfor_ at
(5) a Status hearing[{held/continued to] {set for/re-set for}on __set for att
(6) ia) Pretrial conference[held/continued to] [set for/re-set for}on____setfor__— ss at__.
(o) a Trial(set for/re-set for}on saat
(8) Oo [Bench/Jury trial] [Hearing] held/continued to saat
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CIFRCP4(m) (General Rule2i OFRCP41i(a\(1) OFRCP41(a)(2).
(10) Wl [Other docket entry} Enter Memorandum Opinion and Order. Defendant moves to dismiss. But t

can be flushed out by treating the motion to dismiss as a motion for summary judgment. Plaintiff sl
respond to the motion, treated as one for summary judgment, by August 16, 2001. Reply to answer tc
filed by August 30, 2001. Count II is dismissed.

[For further detail see order attached to the original minute order,}

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff. Jute 3 0 2907
Notified counsel by telephone.
Docketing to mail notices.

Mail A 450 form.

Copy to judge/magistrate judge.

number oCnotices

dane docketed

WAH

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deputy’s
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ALMA DIAZ, individually and on )
behalf of all others similarly situated, )
Plaintiff, }
vs. } No. 00 C 7082
JOE RIZZA FORD, INC., }
Defendant. }

MEMORANDUM OPINION AND ORDER

Plaintiff alleges that she purchased on credit from defendant a 1998 Ford Expedition
motor vehicle in March 2000, and a 1999 Ford Explorer motor vehicle in May 2000. She
claims that defendant did not give her the disclosures required by the Truth in Lending Act
with respect to either purchase. She also claims that defendant sold her debt cancellation
coverage, or “GAP” insurance, on both occasions without disclosing that the purchase was
voluntary and without obtaining an affirmative written request from plaintiff for that
coverage. She seeks to represent a class with respect to both claims.

Defendant moves to dismiss, relying upon retail installment contracts and GAP
insurance contracts, copies of which are attached to the motion as exhibits. The retail
installment contracts make the required disclosures and the GAP insurance contracts recite
that plaintiff is not required to participate but has elected to do so. We understand that
plaintiff executed all four agreements. “Documents that a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint

and are central to her claim.” Venture Associates v. Zenith Data Systems, 987 F.2d 429, 431

|G



me

No. 00 C 7082, Page 2

(7° Cir. 1993).

Plaintiff insists that the contracts are not referred to in the complaint and are not
central to her claim. The contention that the contracts are not referred to in the complaint is
somewhat disingenuous. No one supposes that the purchase of motor vehicles from a dealer
on credit was accomplished on handshakes. Plaintiff does not suggest that the contracts that
are copied to the motion are not documents she executed in connection with the purchases she
complains about. She may possibly have a point, however, with respect to count I, that the
retail installment contracts are not central to her claim because she is complaining about when
the disclosures were made, That is, she claims that the disclosures were not made prior to the
consummation of the transactions. What the facts may be supporting that claim we are not
told. But that can be flushed out by treating the motion to dismiss as a motion for summary
judgment. There need not be discovery for now, as plaintiff can by affidavit state what she
claims the facts to be respecting those purchases. Plaintiff shall respond to the motion, treated
as one for summary judgment, by August 16,2001. Defendant shall reply by August 30, 2001.

The same cannot be said about count II. The GAP insurance contracts are central to
her claim and are contrary to plaintiff's allegations. Her state of mind is irrelevant. Count II

is dismissed.

JAMES B, MORAN
ior Judge, U. S. District Court
» 2001.