also sets out requirements for disclosing an automobile’s odometer reading and makes it
unlawful for a person to fail-with the intent to defraud-to disclose the odometer reading in
compliance with the requirements. 49 U.S.C. § 32705.

“[A] line of cases dating back more than twenty-five years holds that civil liability under
the Odometer Act is limited to mileage fraud and odometer tampering.” Hamilton v. O’Connor
Chevrolet, Inc., Case No. 02 C 1897, 2004 WL 1403711 at *9 (N.D.IIl. June 23, 2004)
(collecting cases). The Court sees nothing in the text of the Odometer Act that would allow
individuals to use the federal Odometer Act to bring general fraud claims or claims unrelated to
mileage fraud or odometer tampering. Nor would it comply with the explicit purpose of the
Odometer Act to allow parties to use the Odometer Act to bring such claims. Given that the
purpose of the act is to prevent odometer fraud, it makes little sense to allow a plaintiff to use the
Odometer Act to bring a claim that she was defrauded by a misrepresentation related to the age,
make, condition or other issue unrelated to the mileage even if the plaintiff could show the seller
failed to disclose the odometer reading in the manner required by the statute. If the disclosure
failure were not part of an attempt to defraud the buyer with respect to the mileage, a buyer’s
remedy should be common law or some statute other than the Odometer Act. Thus, the Court
agrees with the other courts that have concluded that only claims involving mileage fraud or
odometer tampering may be brought under the Odometer Act. See Hamilton, 2004 WL 1403711
at *9; Locascio v. Imports Unlimited, Inc., 309 F. Supp.2d 267, 270-271 (D. Conn. 2004);
Mayberry v. Ememessay, Inc., 201 F. Supp.2d 687, 695 (W.D. Va. 2002) (“Even the idea that
there can be a ‘non-mileage’ violation of an act whose central purpose is to ensure the accurate

reporting of mileage strains credulity. As stated above, while Plaintiff may have a claim for

-5-


Magnuson-Moss Consumer Warranty Act, 15 U.S.C. § 2310. The Magnuson-Moss Consumer
Warranty Act does not support federal jurisdiction in this particular case. As the Seventh Circuit
has explained:

The Magnuson-Moss Act allows a plaintiff to sue in federal court for breach of

warranty, 15 U.S.C. § 2310(d)(1), provided that certain jurisdictional restrictions

are met. ... [C]laims under the Magnuson-Moss Act may only be brought in

federal court if the amount in controversy reaches ‘the sum or value of $50,000

(exclusive of interests and costs) computed on the basis of all claims to be

determined in this suit[.]
Schimmer v. Jaguar Cars, Inc., 384 F.3d. 402, 404 (7th Cir. 2004) (quoting 15 U.S.C. §
2310(d)(3)(B)). Here, the plaintiffs purchased a car for between $3,000 and $5,000. The claim
for damages does not meet the $50,000 requirement, and the Magnuson-Moss Consumer
Warranty Act does not provide a basis for federal jurisdiction.

Accordingly, the Court declines to exercise supplemental jurisdiction over plaintiffs’
remaining claims and hereby dismisses them without prejudice.

CONCLUSION

For the reasons set forth above, the Court denies plaintiffs’ motion to strike defendant's
response to plaintiffs’ statement of facts. The Court denies plaintiffs’ motion for summary
judgment. The Court sua sponte dismisses without prejudice plaintiffs’ federal Odometer Act
claim (Count 1) for failure to state a claim upon which relief may be granted. The Court declines
to exercise supplemental jurisdiction over plaintiffs’ remaining claims and, therefore, dismisses

without prejudice all of plaintiffs’ remaining claims. Finally, the Court grants plaintiffs leave to

file a second amended complaint within 21 days.

-8-


evidence admissible for summary judgment purposes. Accordingly, the Court denies plaintiffs’
motion to strike defendant’s response to plaintiffs’ statement of facts.
Il. Plaintiffs’ Motion for Summary Judgment

A. Standard for a Motion for Summary Judgment

Summary judgment should be granted when the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). When making such a determination, the Court must construe the
evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). “The movant
for summary judgment bears the initial burden of establishing that there is no genuine issue of
material fact.” Davis v. Bierman, Case No. 01-6658, 2004 U.S. Dist. LEXIS 639 at *7 (N.D. Ill.
Jan. 21, 2004).

B. Federal Odometer Act

Plaintiffs’ first claim is brought under the federal Odometer Act. In the text of the
Odometer Act, Congress set out two purposes of the Act:

(1) to prohibit tampering with motor vehicle odometers; and

(2) to provide safeguards to protect purchasers in the sale of motor vehicles with

altered or reset odometers.
49 U.S.C. § 32701(b). To this end, the Odometer Act prohibits certain actions. First, the
Odometer Act prohibits any person from resetting, disconnecting or otherwise altering an
odometer with the intent to defraud and from advertising for sale, selling or installing any device

to change an odometer’s reading with the intent to defraud. 49 U.S.C. § 703. The Odometer Act

4.


common-law fraud or other similar state claims, she cannot graft her fraud claim onto a federal
statute that was never intended to reach beyond the purposes stated in the statute.”).

Plaintiffs point to two cases from the United States District Court for the District of New
Mexico which have concluded that one can bring a claim under the Odometer Act for a
disclosure violation combined with general fraud. See Salmeron v. Highlands Ford Sales, Inc.,
223 F. Supp.2d 1238 (D. N.M. 2002); Yazzie v. Amigo Cherovlet, Inc., 189 F. Supp.2d 1245 (D.
N.M. 2001). This Court respectfully disagrees with the conclusions of those cases because to do
so would, in effect, open the federal courts to numerous general fraud claims related to
automobiles though not necessarily to mileage. Accordingly, the Court declines to follow the
decisions cited by the plaintiffs.

Thus, despite plaintiffs’ argument, plaintiffs’ claim fails as a matter of law. Plaintiffs
have put forth no evidence of mileage fraud or odometer tampering. (Nor, for that matter, have
plaintiffs put forth evidence of an intent to defraud.) Accordingly, the Court denies plaintiffs’
motion for summary judgment with respect to Count I.

Plaintiffs’ problem with Count I, however, is larger than the denial of summary judgment.
Plaintiffs’ allegations in their amended complaint are premised on the faulty legal conclusion that
one can state a claim under the federal Odometer Act without alleging mileage fraud or odometer
tampering. The Court has already rejected plaintiffs’ argument on this matter. Nowhere in
plaintiffs’ amended complaint do they allege mileage fraud or odometer tampering. The

plaintiffs have failed to state a claim upon which relief may be granted under the federal

-6-


DATED:

J /7 os

oo

ENTER:

Cem Marovich
ted States District Judge


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MARIANNA SZWEBEL and )
MARGARET SZWEBEL, )
Plaintiffs, } 02 C 7797
v. } Judge George M. Marovich
PAP’S AUTO SALES, INC., }
Defendant. }

MEMORANDUM OPINION AND ORDER

Marianna and Margaret Szwebel (‘the Szwebels”) filed a five-count amended complaint
in which they alleged four counts against defendant Pap’s Auto Sales, Inc. (“Pap’s Auto”). The
Szwebels asserted a claim under the federal Odometer Act, 49 U.S.C. § 32701 (Count J), a claim
under the Illinois Consumer Fraud Act, 815 ILCS 505/2 (Count I}, a claim for common law
fraud (Count II) and a claim for breach of implied warranty under the Magnuson-Moss
Consumer Warranty Act, 15 U.S.C. § 2310 (Count IV).

Before the Court are two motions. First, the Szwebels move for summary judgment on
Counts I and II. Second, the Szwebels move to strike defendant’s response to the plaintiffs’
statement of material facts. For the reasons set forth below, the Court denies plaintiffs’ motion

for summary judgment and motion to strike. The Court sua sponte dismisses without prejudice

plaintiffs’ federal Odometer Act claim for failure to state a claim upon which relief may be

'Plaintiffs filed a fifth count against State Farm International Services, Inc.
Plaintiffs voluntarily dismissed that count and State Farm International Services, Inc. as a
defendant.


Odometer Act.? Thus, the Court sua sponte dismisses plaintiffs’ Count I. Shockley v. Jones, 823
F.2d 1068, 1072-73 (7th Cir. 1987) (sua sponte dismissals for failure to state a claim under Rule
12(b)(6) are appropriate, particularly where the party has had an opportunity to present argument
in favor of the claim). Because none of the evidence put forth in connection with plaintiffs’
motion for summary judgment forecloses the possibility that plaintiffs can make non-frivolous
amendments to the complaint in order to state a proper claim under the federal Odometer Act, the
dismissal is without prejudice.

Cc. Plaintiffs’ pendent claims are dismissed

The plaintiffs have also moved for summary judgment on their state claim for violation of
the Illinois Consumer Fraud Act. The Court denies the motion and dismisses the claim for the
reasons set forth below.

A district court may “decline to exercise supplemental jurisdiction” over pendent state
law claims if the court has dismissed all claims over which it has original jurisdiction. 28 U.S.C.
§ 1367(c)(3). As the Seventh Circuit has explained, a district court’s decision to relinquish
supplemental jurisdiction is “the norm, not the exception.” Contreras v. Suncast Corp., 237 F.3d
756, 766 (7th Cir. 2001) (quoting Disher v. Information Resources, Inc., 873 F.2d 136, 140 (7th
Cir. 1989)).

In this case, no claims over which the Court has original jurisdiction remain. Besides the
federal Odometer Act, plaintiffs assert only one other federal claim, and that claim does not

supply the Court with subject matter jurisdiction. Specifically, plaintiffs assert a claim under the

>The Court also notes that the plaintiffs failed to allege fraud with particularity, in
violation of Rule 9(b) of the Federal Rules of Civil Procedure.

-7-


granted and dismisses plaintiffs’ remaining claims because it declines to exercise supplemental
jurisdiction over those claims.
BACKGROUND

The following facts are undisputed unless otherwise noted.” In late 2001, Margaret
Szwebel saw an advertisement for a used 1997 Honda Civic in good condition. She and a friend
went to Pap’s Auto to inquire about the car. At Pap’s Auto, Margaret Szwebel and her friend
“continuously” asked if the Honda Civic was rebuilt. An employee at Pap’s Auto told the
Margaret and her friend that the car was “100% safe.” Ultimately, the Szwebels purchased the
1997 Honda Civic.

As it turns out, the car had been rebuilt (a fact which generally lessens the value of a car).
The record is unclear as to whether the Szwebels knew at the time of purchase that the car had
been rebuilt. The parties agree that the only document to disclose that the vehicle was rebuilt
was the application for license plates, which, as of the date of Margaret Szwebel’s deposition,
contained a check in the box marked “rebuilt.” It is unclear when the plaintiffs signed the
document. According to plaintiffs, the box indicating “rebuilt” was not checked when plaintiffs
signed it. Plaintiffs learned that the vehicle was rebuilt no later than the date that they received

their license plates (which date was after they purchased the vehicle).

The parties’ fact submissions contain very few facts, which explains the brevity
of the background section in the Court’s opinion.

-2-


DISCUSSION
IL Plaintiffs’ motion to strike

The Court first considers plaintiffs’ motion to strike. Plaintiffs seek to strike defendant’s
response to plaintiffs’ Local Rule 56.1 statement of material facts. Specifically, plaintiffs
complain that in response to several of plaintiffs’ fact paragraphs, defendant failed to controvert
the asserted fact with affidavits or other admissible evidence.

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like
considered in connection with a motion for summary judgment. The Court enforces the rule
strictly. Facts that are submitted but do not conform with the rule are not considered by the
Court. For example, facts not included in a party’s statement of material facts or in a party’s
statement of additional facts are not considered by the Court because to do so would rob other
parties of the opportunity to show such facts are disputed. Asserted “facts” not supported by
deposition testimony, documents, affidavits or other evidence admissible for summary judgment
purposes are not considered by the Court. Similarly, where one party supports a fact with
admissible evidence and the other party denies the fact without citation to admissible evidence,
the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d
809, 817-818 (7th Cir. 2004).

It is unnecessary to strike defendant’s response because the Court has already strictly
enforced Local Rule 56.1, as outlined above. As should be clear from the background section,
the Court has deemed admitted all supported facts (whether in plaintiffs’ statement of facts or

defendant's statement of additional facts) that the opposing party failed to controvert with

3.