a buyer (other than for purposes of resale) of any consumer product, any person to
whom such product is transferred during the duration of an implied or written
warranty (or service contract) applicable to the product, and any other person who
is entitled by the terms of such warranty (or service contract) or under applicable
State law to cnforce against the warrantor (or service contractor) the obligations of
the warranty (or service contract).

15 U.S.C. § 2301(3). Consequently, to qualify as a “consumer” under the Act, the plaintiff must

sufficiently allege that he is: (1) a buyer; (2) a transferee; or (3) a person entitled to enforce the

warranty, Diamond v. Porsche Cars North America, Inc., 2002 WL 31155064, *3 (N.D. Ill. Sept,
2002).

Jaguar contends that Weisberg has failed to allege sufficicnt facts to show that a “sale”
has occurred under the Act, and therefore, he does not qualify as a “consumer” under any of the
above three tests. Jaguar bases this argument on the Act’s definition of warranties. A “written
warranty” under the Warranty Act is defined as:

(A) any affirmation of fact or written promise made in connection with the sale of
a consumer product by a supplier to a buyer which relates to the nature of the
material or workmanship and affirms or promises that such material or
workmanship is defect free or will meet a specified level of performance over a
specified period of time, or

(B) any undertaking in writing in comection with the sale by a supplier of a
consumer product to refund, repair, replace, or take other remedial action with
respect to such product in the even that such product fails to meet the
specifications set forth in the undertaking,

which written affirmation, promise, or undertaking becomes part of the basis of
the bargain between a supplicr and a buyer for purposes other than resale of such
product.

15 U.S.C. § 2301(6). The Act defines a “implied warranty” as a warranty “arising under State

law . . . in connection with the sale by a supplier of a consumer product.” 15 U.S.C. § 2301(7).



CONCLUSION
For the foregoing reasons, this Court GRANTS Defendant Jaguar’s Motion to Dismiss
Plaintiff's Amended Complaint [22-1] as to Counts I-IIf with prejudice and Count IV without

prejudice. It is so ordered.

a y .

ENTER: Dlonede y Henrie
BLANCHE M. MANNING /
U.S. DISTRICT COURT JUDGE

pate: 3 “/-03



Gibson, 355 U.S. 41, 45-46 (1957); Kunik v. Racine County, Wis., 946 F.2d 1574, 1579 (7th Cir.
1991) (citing Hirshon v. King & Spaulding, 467 U.S. 69, 73 (1984).

The court will accept all well-pled factual allegations in the complaint as true. Mirec v.
DeKalb County, Ga., 433 U.S. 25, 27 n,2 (1977). In addition, the court will construe the
complaint liberally and will vicw the allegations in the light most favorable to the non-moving
party. Craigs, Inc. v. Gen, Blec. Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993), However, the
court is neither bound by the plaintiff’s characterization of the facts, nor required to i gnore facts
set forth in the complaint that undermine the plaintiffs claims. Scott v. O'Grady, 975 F.2d 366,
368 (7th Cir, 1992).

ANALYSIS

Jaguar has moved this Court to dismiss Counts I - III on the grounds that Weisberg
has failed to state a cause of action under the Act and Count IV because the Illinois Lemon Law
prohibits consumers from bringing actions under both it and the Uniformed Commercial Code.
The Court will discuss each of these contentions in tum.

1, Magnuson-Moss Warranty Act Claims

Jaguar contends that Weisberg has failed to state a cause of action under the Act because
he has failed to allege that he is a “consumer” or a “buyer” and that no written or implicd
warranty exists.

The Act permits “a consumer who is damaged by the failure of a supplicr, warrantor, or
service contractor to comply with any obligation under this chapter, or under a written warranty,

implied warranty, or service contract” to sue warrantors for damages. 15 U.S.C. § 2310(d).

The Act defines a “consumer” as:



Consequently, to have enforceable warranty under the Act, the plaintiff must allege sufficient
facts to show that a “sale” occurred. See Diamond, 2002 WL 31155064, *4-6.

Here, Jaguar contends that Weisberg has failed to allege that a sale has occurred, and
therefore, hc is not entitled to enforce a written or implied warranty under the Act. Although
limited, what case law there is on this issue appcars to support Jaguar. For example, in DiCintio
y. Daimler Chryslcr Corporation, 768 N.E.2d 1121, 1124-25 (N.Y. 2002), New York’s highest
court held that a “lease” is not a “sale” under the Act, and therefore, the Act did not apply to
automobile leases.

Examining the plain language of section 2301, the DiCintio court held that the definition
of a “consumer” requires that a “written warranty or implicd warranty be in effect.” Id. at 1124.
Therefore, because both written and implied warranties require there to be a “sale,” the court
held that “the definition of ‘consumer’ requires courts to determine whether a ‘sale’ has
occurred.” Id, Noting that the Act did not contain a definition of “sale,” the court found that the
Act was enacted “against the backdrop” of the Uniform Commercial Code (“UCC”). Id. at 1124.
Because the UCC requires that title pass in order for there to be a salc, and title does not usually
pass in a typical automobile lease, the court held that there was no sale under the Act. Id.
Therefore, because there was not a sale, the court held that the leasor could not bring a claim for
breach of warranty and revocation of acceptance under the Act. Id,

Following the reasoning in DiCintio, several court’s including two in the Northern
District of Mlinois held that the Magnuson-Moss Act does only applies to automobiles which are

purchased and not to Icased vehicles. See Voelker v. Porsche Cars North America, 2003 WL

291909, at *3 (N.D. Ill. Feb. 10, 2003); Diamond v. Porsche Cars North America, Inc,, 2002 WL



United States District Court, Northern District of Ilinois

Name of Assigned Judge J ‘ Sitting Judge if Other
or Magistrate Tudge Blanche M. Manning than Assigned Judge
CASE NUMBER 02 C 1678 DATE March 11, 2003
CASE Weisberg v. Jaguar Cars, Inc.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plainli(f, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.

DOCKET ENTRY:

(1) Q Filed motion of [ use listing in “Motion” box above.)

(2) a Brief in support of motion due

QB) a Answer brief to motion due___.._ Reply to answer brief due.

(4) o Ruling/Hearing on__ set for at

(3) Oo Status hearing[held/continucd to] [set for/re-set for] on set for at.

(6) Qo Pretrial conference[held/continucd to] [set for/re-set for] on set for at.

(7) im Trial[set for/re-set for] on at

(8) Oo [Bench/Iury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) O General Rule21 O FRCP41(a\1) OO FRCP41(a)(2).

(10) Mf [Other docket entry] For the reasons sct forth in the attached Memorandum and Order, this Court
GRANTS Defendant Jaguar’s Motion to Dismiss Plaintiff's Amended Complaint [22-1] as to Counts
L-III with prejudice and Count IV without prejudice. It is so ordered.

(i) oO [For further detail see order on the reverse side of the original minute order.)

No notices required, advised in apen court.

No notices required.

umber nf netiges= 4

Notices muiled by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.

Mail AO 450 form,

JUNIO J

SOHHY LI uvweu

Copy to judge/magistrate judge.

courtroom OT G3-03 714 date nile noe
deputy's

initials

RTS

Date/time received in
central Clerk's Office

‘oiling deputy inicials



-

31155064, at *3 (N.D. Ill. Sept. 2002); 22 No. 5 Andrews Automobile Litig, Rep. 8 (Sept. 24,
2000) (summarizing ruling by Circuit Court of Cook County, Pearlman v. Volvo Cars of North
America, No. 00 L 3232 (Aug. 1, 2002), holding that the Act did not apply to leased vehicles).
See also Alpiser v. Eagle-GMC-Isuzu, Inc., 389 $.E,.2d 293, 295 (N.C. Ct. App. 1990), These
decisions are consistent with other decisions which hold that the Act does not apply to the Icases
of equipment other than automobile leases. Sec D.L. Lee & Sons v. ADT Sec. Sys., 916 F. Supp.
1571, 1580 (S.D. Ga. 1995) (Act did not apply to lease of alarm system); Sellers y. Frank Griffin
AMC Jeep, Inc., 526 So.2d 147, 156 (Fla. App, Cl, 1988) (same); Corral v. Rollins Protective
Servs. Co., 732 P.2d 1260, 1267 (Ka. 1987) (same),

Here, this Court finds the reasoning set forth in the above cases persuasive and holds that
the Act does not apply to the Lease, Therefore, this Court GRANTS Defendant Jaguar’s motion
to dismiss Counts I-LIL.

I. Illinois Lemon Law Claim

Jaguar also moves to dismiss Weisberg’s state law claim under the Illinois Lemon Law
(Count IV) on the grounds that the Illinois Lemon Law prohibits consumers from bringing
actions under both it and the UCC. The Court need not address this issuc. Because this Court
dismissed Counts 1-LII and the only remaining claim (Count IV) arises under Illinois state law,
the Court declines to exercise supplemental jurisdiction over this one remaining claim. See
Voelker , 2003 WL 291909, at *4 (declining to exercise supplemental jurisdiction over state

claims after dismissing claims under the Act); Diamond, 2002 WL 31155064, ai *6 (same).

Consequently, this Court dismisses Court IV without prejudice.



IN THE UNITED STATES DISTRICT COURT NOCKETED
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION MAR 1 8 2003
DONALD WEISBERG, )
Plaintiff, }
v. ) Hon. Blanche M. Manning
JAGUAR CARS, INC., } 02 C 1678
Defendant. }

MEMORANDUM AND ORDER

This matter comes before this Court on Defendant Jaguar Cars, Inc.’s (“Jaguar”) Motion
to Dismiss the Amended Complaint filed by Plaintiff Donald Weisberg (“Weisberg”), pursuant
to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Motion to Dismiss
is GRANTED.

BACKGROUND’

On or about April 30, 2001, Howard Orloff Jaguar arranged for Weisberg to lease (“the
Lease”) from Jaguar Credit (“the Lessor”) a 2001 Jaguar XKR (“XKR”), manufactured and
distributed by Jaguar, for valuable consideration. The gross capitalized lcasc cost of the XKR,
including collateral charges such as bank and finance charges, totaled more than $96,241.84,
The Lease stated that Weisberg had no owncrship rights in the XKR unless he exercised an
option to purchase the XKR for $48,448, at the end of the lease period (48 months). The Lessor
purchased the XKR from Jaguar to lease to Weisberg, recciving the written warranty including
four years or fifty thousand mile bumper to bumper coverage and other warranties outlined in

Jaguar’s New Vehicle Limited Warranty booklet.

' The facts set forth in the Background section are taken from Weisberg’s Amended
Complaint.

GO



The Lessor transferred the XKR, which had 20 miles on the odometer, to Weisberg and
assigned its rights in Jaguar’s written warranty to him. Shortly thereafter, Weisberg experienced
several defects which substantially impaired the value of the XKR. As a result, Weisberg
brought the XKR to an authorized service dealer of Jaguar for repairs. Weisberg provided
Jaguar’s service dealers multiple opportunitics to repair the defects in the XKR. Jaguar,
however, was unable to repair the XKR causing Weisberg to revoke acceptance of the XKR in
writing. Jaguar refused Weisberg’s demand for revocation, and the XKR continues to display the
alleged defects.

On February 13, 2002, Weisberg filed a four count complaint against Jaguar in the Circuit
Court of Cook County, Mlinois. The case was removed to this Court on March 7, 2002.

On June 7, 2002, Weisberg filed an Amended Complaint alleging that Jaguar: (1) breached the
written warranty and implied warranty in violation of the Magnuson-Moss Warranty Act, 15
U.S.C. §2301, et seq. (“the Act”) (Counts I and II); (2) violated Weisberg’s right to revocation of
acceptance under the Act (Count IIT); and (3) violated the Illinois New Vehicle Buyer Protection
Act, 815 ILCS 380, et seq. (“Illinois Lemon Law”) (Count IV).
STANDARD OF REVIEW
In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the

court must assume the truth of all facts alleged in the complaint, construing allegations liberally

and viewing them in the light most favorable to the plaintiff. See, e.g., McMath v. City of Gary,
976 F.2d 1026, 1031 (7th Cir. 1992); Gillman yv. Burlington N. R.R. Co., 878 F.2d 1020, 1022
(7th Cir. 1989), Dismissal is properly granted only ifit is clear that no set of facts which the

plaintiff could prove consistent with the pleadings would entitle the plaintiff to relief. Conley v.