Plaintiffs, : OPINION

V.

JAGUAR LAND ROVER NORTH

AMERICA, LLC,

Defendant.

KEVIN MCNULTY, U.S.D.J.:

Plaintiffs (“the Yacoubs”), who purchased a new Land Rover Range Rover

in 2010, allege that this vehicle suffers from a number of defects that required

numerous repairs both before and since this lawsuit began in 2011. They

allege violations of 1) the New Jersey Motor Vehicle Warranty Act (the “Lemon

Law”), 2) the Magnuson Moss Warranty Improvement Act, and 3) the UniformCommercial Code.

Defendant (“Jaguar”) has moved for partial summary judgment,

pursuant to Federal Rule of Civil Procedure 56, on plaintiff’s Lemon Law claim.

Jaguar claims that the Lemon Law excludes any “vehicle that is used primarily

for commercial purposes,” and says that the Yacoubs’ vehicle meets that

description. The evidence of commercial use constitutes of 1) tax returns

showing that a corporation deducted the expenses of the vehicle and 2) an

admission by one plaintiff, at an arbitration hearing, that she has used the

vehicle to make sales calls as a pharmaceutical company representative.

The Yacoubs dispute Defendant’s primary legal contention that the

Lemon Law excludes vehicles “used primarily for a commercial purpose.” They

have also submitted affidavits and evidence tending to suggest that the vehicle

was not used primarily for commercial purposes. Thus, even setting aside the

parties’ dispute over the correct legal standard, the evidence is clearly in

conflict and summary judgment is not appropriate. Defendant is also cautioned

to be mindful of the Local Civil Rules in any future summary judgment

motions; motions filed without a Statement of Material Facts Not in Dispute areto be dismissed. L. Civ. R. 56.1(a).

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County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The

moving party bears the burden of establishing that no genuine issue of

material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—23,

(1986). “[W]ith respect to an issue on which the nonmoving party bears the

burden of proof ... the burden on the moving party may be discharged by

‘showing’—that is, pointing out to the district court—that there is an absence

of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.

If the moving party meets its threshold burden, the opposing party must

present actual evidence that creates a genuine issue as to a material fact for

trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth

types of evidence on which nonmoving party must rely to support its assertion

that genuine issues of material fact exist). “[Ujnsupported allegations ... and

pleadings are insufficient to repel summary judgment.” Schoch v. First Fid.

Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest

Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created

a genuine issue of material fact if it has provided sufficient evidence to allow a

jury to find in its favor at trial.”).

The summary judgment standard, however, does not operate in a

vacuum. “[I]n ruling on a motion for summary judgment, the judge must view

the evidence presented through the prism of the substantive evidentiary

burden.” Liberty Lobby, 477 U.S.at 254 (1986). That “evidentiary burden” is

discussed in the following section.

DISCUSSION

I first briefly discuss the parties’ dispute over the scope of coverage of the

New Jersey Lemon Law.

The Lemon Law covers a “motor vehicle[],”defined as “a passenger

automobile, authorized emergency vehicle, or motorcycle as defined in

[N.J.S.A.1 39:1-1...” N.J.S.A. § 56:12-30. A “passenger automobile” is a vehicle

“used and designed for the transportation of passengers, other than omnibuses

and school buses.” Id. at § 39: 1—i. The same section also provides that a“commercial motor vehicle” is a vehicle “used for commercial purposes on the

highways, such as the transportation of goods, wares and merchandise.” Id.

The Yacoubs read this language to mean that a vehicle is excluded from

coverage only if it is not used and designed for transportation of passengers.

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AU appears to have been swayed by the fact that plaintiffs truck was formally

registered as a “commercial motor vehicle” instead of as a “passenger

automobile.” He nevertheless also found it material that plaintiffs truck was

“primarily used” in plaintiff’s plumbing business, while only secondarily used

for family transportation. Id. at *5 From this, Jaguar draws the lesson that a

court must examine the history of the vehicle’s actual use to determine

whether it is a covered “passenger automobile.”

Jaguar’s suggested standard appears to go beyond anything in the plain

text of the statutes, N.J.S.A. 56:12-30 and 39:1-1, which do not call for anassessment of the percentages of commercial and personal use. But even if, for

purposes of argument, I adopt Jaguar’s legal standard, I must deny summary

judgment. As to the extent of personal and commercial use, there is at least an

issue of fact precluding summary judgment. See Fed. R. Civ. P. 56(a); Liberty

Lobby, 477 U.S. at 248.

Jaguar cites two primary items of evidence in support of its motion.

First, Plaintiff Sandy Yacoub allegedly admitted, at the parties’

arbitration hearing, that she has used the vehicle to make sales calls as apharmaceutical company representative. There is no evidence regarding thenature and extent of such use. Ms. Yacoub may, like many people, have simply

purchased the vehicle of personal use but used it, from time to time, for workrelated purposes.

Second, Jaguar cites 2010 and 2011 federal tax returns for a corporation

called Sante Rx, which appear to show that the corporation deducted part ofthe cost of the Yacoubs’ vehicle. The record is silent as to what these taxreturns mean with respect to the vehicle’s use. Without additional facts, the

court would be in no position to conclude that this evidence establishes that

the vehicle was used, or used primarily, for commercial purposes.’

And there is evidence to the contrary. The Yacoubs have submitted an

affidavit to the effect that “[t]he vehicle was not purchased for nor has it been

used for commercial purposes,” (Pltfs’ Affidavit ¶ 11) and that “[t]he purposes of

I J note at this point that Defendant’s request for an “adverse inference,” in which the Court

would assume that additional facts would demonstrate vehicle’s primarily commercial purpose,

is completely without basis.

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would be sufficient to raise a triable issue of fact.

CONCLUSION

For the reasons stated above, the motion for partial summary judgment

is DENIED. An appropriate order follows.

KEVIN MCNULTY

United States District Judge

Date: September 26, 2013

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