Daniel J. VOELKER, Plaintiff-Appellant, v. PORSCHE CARS NORTH AMERICA, INC., a Delaware corporation; Porsche Financial Services, Inc., a Delaware corporation; Porsche Leasing, Ltd., a Delaware corporation; et al., Defendants-Appellees.
No. 03-1444
United States Court of Appeals, Seventh Circuit
Argued September 10, 2003. Decided December 12, 2003 On Resubmission
353 F.3d 516
Before MANION, EVANS, and WILLIAMS, Circuit Judges. MANION, Circuit Judge.
Paul E. Wojcicki (argued), Segal, McCambridge, Singer & Mahoney, Chicago, IL, for Defendants-Appellees.
Daniel J. Voelker appeals from the district court‘s dismissal of his claims for breach of written warranty and breach of the implied warranty of merchantability under the Magnuson-Moss Warranty Act, (“Magnuson-Moss Act” оr “the Act“)
I.
Because this case comes to us after the district court granted a motion to dismiss under
Unfortunately for Voelker, less than three months after the lease began, on September 20, 2001, Walter Dreikosen ran a stop sign and his sport-utility vehicle collided with the Porsche on the driver‘s side, causing more than $25,000 in damages and physical injuries to Voelker. Although the car had a driver‘s side airbag system, it did not deploy. After the accident, the car was taken to Europa Imports for repairs. Under the lease, only Porsche parts could be used to fix the car. The parts Voelker needed were in short supply, however, and his car sat in the shop for several months. At some point, stuck with a car he could neither drive nor repair, Voelker stopped making payments to Porsche Financial Services, Inc. (“PFS“), the finance company to whom Copans had assigned the lease.
Voelker then complained to Porsche. The “Customer Commitment Department” of Porsche responded by promising Voelker that, until the reрair parts were delivered to Europa Motors, it would make lease payments directly to PFS. In February 2002, however, James Ray, director of credit operations for PFS, told Voelker that he would not accept payments from Porsche because to do so would violate “banking laws.” Although PFS did eventually accept two lease payments from Porsche, Ray stopped it from accepting any further payments.
In March 2002, the car was still not fixed and PFS refused to pay for the repairs. PFS claimed that, because the parts were destroyed in an accident, and not defective, they were not covered by the warranty. It then demanded that Voelker surrender the vehicle to be sold at auction, because of the overdue lease payments.
Voelker responded by filing suit in the Circuit Court of Cook County, Illinois, alleging violations of three federal statutes, the Truth in Lending Act (TILA),
II.
This court reviews de novo the district court‘s grant of the defendants’ motion to dismiss under Rule 12(b)(6). International Mktg., Ltd. v. Archer-Daniels-Midland Co., 192 F.3d 724, 729 (7th Cir.1999). Dismissal is proper “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
A. Claims Under the Magnuson-Moss Act
Voelker claims breach of written warranty and breach of the implied warranty of merchantability against Porsche and Copans under the Magnuson-Moss Act. Although the parties have not briefed the issue, it is not clear at the outset that these claims were removed properly and, accordingly, it is unclear that this court has subject matter jurisdiction over them. Federal courts are obliged to inquire sua sponte wherever the propriety of the removal of a claim to federal court is in question. Tylka v. Gerber Products, Co., 211 F.3d 445, 447 (7th Cir.2000). Our review of this issue is plenary. Id.
Removal is proper over any action that could have been filed originally in federal court. Id. at 448. There are two conceivable ways in which Voelker‘s Magnuson-Moss claims could originally have been brought in federal court: under federal question jurisdiction or under supplemental jurisdiction. Under
Supplemental jurisdiction over the Magnuson-Moss claims could have existed in the district court. That court had federal question jurisdiction over the TILA and FCRA claims and, because both of those claims and the Magnuson-Moss claims arise from the same controversy, it also had the discretionary authority to exercise supplemental jurisdiction over the Magnuson-Moss claims. See
Having concluded that we have jurisdiction to reach the issue, we turn to whether the district court properly dismissed Voelker‘s claims for breach of both written and implied warranties under the Magnuson-Moss Act. The statute allows a “consumer” to bring a suit where he claims to be “dаmaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this [Act] or under a written warranty, implied warranty, or service contract.”
The Magnuson-Moss Act defines threе categories of “consumer[s]”1: a category one consumer is “a buyer (other than for the purposes of resale) of any consumer product“; a category two consumer is “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, a category three consumer is “any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).”
The first category of consumer would require Voelker to be a “buyer,” which presupposes a sale. The “sale” that Voelker identifies in his brief is the lease, which he argues is functionally equivalent to a sale. No binding authority governs the question of whether a lease can constitute a sale under the Magnuson-Moss Act. Persuasive authorities, for their part, are divided. See Szubski v. Mercedes-Benz, U.S.A., LLC, 124 Ohio Misc.2d 82, 88, 796 N.E.2d 81, 86 (2003) (collecting cases on both sides of the issue).
As the Court of Appeals of New York has pointed out, the Act does not define “sale.”
When Voelker signed his lease, however, title had already passed from the car‘s manufacturer, Porsche, to the lessor, Copans. Relying on Cohen v. AM General Corp., 264 F.Supp.2d 616, 619-20 (N.D.Ill. 2003), Voelker argues that the sale needed to qualify him as a category one consumеr occurred when the manufacturer sold the vehicle to Copans, who in turn became Voelker‘s lessor. We disagree because, for a sale to qualify a plaintiff as a category one consumer, it must be made to a buyer ”other than for purposes of resale.”
In short, for Voelker to qualify as a category one consumer under the Magnuson-Moss Act, there must have been a sale of the automobile “other than for the purposes of resale,” and that sale must have included the transfer of title. Here, the only sale alleged in relation to the car was between the manufacturer, Porsche, and the lessor, Copans, and that sale occurred for the purposes of resale. Accordingly, accepting all facts alleged in the complaint as true, the transfer of the possession of the car to Voelker was not a sale and thus he is not entitled to proceed under the Magnuson-Moss Act as a category one consumer.
The next question is whether Voelker has stated a claim as a category two consumer. In other words, has Voelker alleged facts that would show that he is “any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product“?
Finally, we consider whether Voelker has stated a claim as a category three consumer. That is, we ask whether he is “any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).”
The defendants nonetheless argue that, even if Voelker satisfied the definition of consumer, because the only sale of the car was for purposes of resale, he does not have a written warranty as defined in the statute and therefore may not proceed with his claim for breach of written warranty. The Magnuson-Moss Act defines “written warranty” as follows:
(6) The term “written warranty” means—
(A) any written 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 connection with the sale by a supplier of a cоnsumer product to refund, repair, replace, or take other remedial action with respect to such product in the event 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 supplier and a buyer for purposes other than resale of such product.
For Voelker to state a valid claim, however, the New Car Limited Warranty need not meet the definition of written warranty contained in
In short, because Voelker, under the assignment from Copans, is a person entitled to enforce the New Car Limited Warranty under the applicable state law, we hold that Voelker may proceed as a category three consumer regarding his claim for breach of written warranty under the Magnuson-Moss Act.
Voelker‘s claim under the Act for breach of the implied warranty of merchantability fares less well. To the extent that Voelker seeks to recover for personal injuries, he has failed to state a claim: personal injury claims based on a breach of warranty are not cognizable under the Magnuson-Moss Act. Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1066 (5th Cir.1984). Voelker‘s bid for monetary damages, however, presents a more complicated set of issues.
The defendants argue that, to the extent Voelker seeks to recover for monetary loss, his claim against Porsche fails for lack of privity under the law of Illinois. This presents an issue of first impression for this court: whether a valid claim for breach of the implied warranty of merchantability under the Magnuson-Moss Act must allege privity in accоrdance with the applicable state law. For the reasons set forth below, we conclude that it must.
The Magnuson-Moss Act allows a suit for breach of “an implied warranty arising under State law (as modified by sections 2308 and 2304(a) of this title).”
Voelker does allege privity of contract with Copans. As the defendants point out, however, Copans’ lease with Voelker contained the following disclaimer in bold type and on the face of the lease: “[l]essor Copans makes no warranties or representations, either express or implied as to the Vehicle or any part of accessory thereof. Lessor makes no warranty of merchantability or fitness of the Vehicle for any particular purpose, or any other representation or warranty whatsoever....” Because this disclaimer was in writing and conspicuous, and because it expressly mentioned merchantability, it shields Copans from suit for breach of the implied warranty of merchantability under Illinois law.
However, Voelker has alleged that Copans, as we discuss infra, issued him an express warranty, in writing, as to the condition of the airbags. If Voelker had pleaded correctly a claim for breach of express warranty against Copans, Copans’ disclaimer would not have been effective to shield it from suit for breach of implied warranty of merchantability under the Magnuson-Moss Act. The Act states that “[n]o supplier may disclaim ... any implied warranty to a consumer with respect to such consumer product if (1) such supplier makes any written warranty to the consumer with respect to such consumer product....”
Voelker may not recover for personal injury caused by a breach of warranty under the Magnuson-Moss Act. As to economic losses, Voelker‘s claim for breach of the implied warranty of merchantability fails because he has not alleged privity with Porsche and because Copans’ disclaimer precludes liability under Illinois law. We therefore affirm the dismissal of Voelker‘s claim for breach of the implied warranty of merchantability under the Magnuson-Moss Act.
B. Claims for Breach of Express Warranty Under the Illinois UCC and Lemon Law
Voelker asserts a claim for breach of express warranty against Porsche and Copans under the Illinois UCC and the New Vehicle Buyer Protection Act, or “lemon law,” of Illinois,
Regarding the airbag‘s failure to deploy, Voelker alleges a design defect. As Voelker argued in his opening brief:
The subject vehicle‘s side airbags are defective and non-conforming in that they do not address “actual” or “real-world” crash conditions as they do not deploy when the subject vehicle is impacted in the driver‘s door—even at a rate of speеd in excess of 25 miles per hour—by a sports-utility vehicle (“SUV“), sports-activity vehicle (“SAV“), large passenger vehicle and certain other passenger cars. This defect or condition is unique to the subject vehicle and other 1998, 1999, 2000, 2001 and 2002 model year 911 Porsche models. (S.A.16 at ¶ 43). The subject vehicle has too few crash sensors or trigger points to work properly and as represented to work by Defendants and those crash sensors or trigger points are too low to the ground to deploy the side airbags. The crash sensors are also believed to be of poor quality. (S.A.16 at ¶ 44).
Voelker points to no part of the record showing that a warranty against defective design was part of his contract with any defendant. Therefore, we conclude that he has failed to state a claim for breach of express warranty. See Hasek v. Daimler-Chrysler Corp., 319 Ill.App.3d 780, 253 Ill. Dec. 504, 745 N.E.2d 627, 635 (2001) (reasoning that, although the plaintiff had shown the existence of a design defect, judgment for the defendant was appropriate because the express warranty did not, by its contractual terms, cover design defects). We thus hold that Voelker has failed to state a claim for breаch of express warranty insofar as he relies on the allegedly defective design of the airbag system. We affirm the dismissal of Voelker‘s claims for breach of express warranty under the Illinois UCC and Illinois’ lemon law.
C. Other State Law Claims
In his opening brief, Voelker recites facts that, he believes, show that the defendants fraudulently induced him to lease the car. But he fails to cite any legal authority showing that, contrary to the district court‘s ruling, he has stated a claim upon which relief could be granted. By failing to provide supporting authority for his position, Voelker has not complied with
We turn next to Voelker‘s claim for tortious interference with contract against PFS and one of its agents, James Ray. The elements of tortious interference with contract are: “(1) the existence of a valid and enforcеable contract between the plaintiff and another; (2) the defendant‘s awareness of this contractual relation; (3) the defendant‘s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by defendant‘s wrongful conduct; and (5) damages.” HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill.2d 145, 137 Ill.Dec. 19, 545 N.E.2d 672, 676 (1989). The district court dismissed this claim on the ground that Voelker had failed to allege facts that, if true, would allow a jury to find the first element of this tort.
Voelker argues that the “contract” with which he alleges PFS and Ray interfered was between Voelker and Porsche, and required Porsche to assume Voelker‘s lease payments until it provided Voelker with the repair parts necessary to make the car operational. Voelker, however, does not point to any allegations in the complaint that would satisfy the elements of a contract. “A contract, to be valid, must contain offer, acceptance, and consideration.” Halloran v. Dickerson, 287 Ill.App.3d 857, 223 Ill.Dec. 323, 679 N.E.2d 774, 782 (1997). In his brief, Voelker identifies the offer as Porsche‘s proposal to pay Voelker‘s lease payments and he identifies his acceptance of that offer. The problem is that he does not point to alleged facts that, if true, would allow a jury to find that Voelker incurred a reciprocal obligation; i.e., Voelker has neglected the element of consideration. In re Peterson‘s Estate, 286 Ill.App. 424, 3 N.E.2d 725, 726 (1936) (reasoning that “[w]ithout reciprocal obligation, no contract can be constituted“). We therefore affirm the district court on the ground that Voelker has failed to allege the existence of a valid and enforceable contract between himself and another.
We turn finally to the last issue on appeal, whether thе district court properly dismissed Voelker‘s claim for breach of contract against Copans and PFS. In the section of his brief addressing this issue, Voelker fails to set forth any legal authority. He has therefore waived appellate review of this claim‘s dismissal.
III.
Because Voelker has alleged facts showing him to be a category three consumer entitled to enforce a written warranty under the Magnuson-Moss Act, we reverse the district court‘s dismissal of his claim for breach of written warranty under that statute. We affirm in all other respects.
The opinion in this case was originally published on November 3, 2003. Thereafter, on November 14, 2003, the defendants-appellees filed a petition for rehearing. The panel grants the petition, and this revised opinion is substituted for the opinion published November 3, 2003.