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Popham v. Keystone RV Co.

United States District Court, N.D. Indiana

January 13, 2017

PEGGY POPHAM, Plaintiff,



         The Plaintiff, Peggy Popham, filed an Amended Complaint [ECF No. 6] against the Defendant, Keystone RV Company. On September 19, 2016, this Court issued an Opinion and Order granting summary judgment to the Defendant on all claims in the Amended Complaint except for the claim premised on the Indiana and Texas consumer protection laws. The Defendant filed a second Motion for Summary Judgment [ECF No. 42] as to that claim.


         The following facts are undisputed. The Plaintiff is a resident of Texas. (Popham Aff. ¶ 6, ECF No. 46-1; Pl.'s Interrog. Answers No. 2, ECF No. 44-1.) On May 8, 2013, the Plaintiff purchased an RV that was manufactured by the Defendant, an Indiana business entity. (Popham Aff. ¶ 3; Nusbaum Aff. ¶¶ 3-4, ECF No. 44-3.) On March 31, 2015, the Plaintiff discovered that the RV's roof was wearing and bubbling in certain areas and that the walls were disconnecting from studs and their supporting frames, so the Plaintiff promptly notified the Defendant to remedy them. (Popham Aff. ¶¶ 15-16; Nusbaum Aff. ¶¶ 9, 11.) The Plaintiff filed her initial Complaint [ECF No. 1] on May 7, 2015, which was amended on June 29, 2015, alleging federal and state law claims and seeking relief in the form of actual damages and statutory damages for the alleged violations or, in the alternative, relief in the form of rescission of the contract. The Defendant filed an Answer [ECF No. 7] on July 15, 2015. On January 11, 2016, the Defendant filed a Motion for Summary Judgment [ECF No. 14], while the Plaintiff filed a Motion for Partial Summary Judgment [ECF No. 23] on March 3, 2016. After full briefing, the Court denied the Plaintiff's Motion and granted in part and denied in part the Defendant's Motion.

         The sole remaining claim in the Amended Complaint “is for violation of . . . the Indiana Deceptive Consumer Sales Act and/or the Texas Deceptive Trade Practices Consumer Protection Act” based on the Defendant's alleged representations during the transaction, the design of the vehicle, and the Defendant's breach of warranty. (Am. Compl. ¶¶ 59-61, ECF No. 6.) The Court's denial of the Defendant's Motion was without prejudice so the Defendant could apply choice-of-law issues and fully address the question of which state's law governs the remaining consumer protection claim. Pursuant to the Court's Opinion and Order, the Defendant filed a second Motion for Summary Judgment [ECF No. 42] on October 19, 2016. On October 31, 2016, the Plaintiff filed her Response [ECF No. 46], and the Defendant's Reply [ECF No. 28] was entered on November 15, 2016.


         Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is the moment in litigation where the nonmoving party is required to marshal and present the court with evidence on which a reasonable jury could rely to find in that party's favor. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A court should only deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010); then citing Swearnigen-El v. Cook Cnty. Sheriff's Dep't, 602 F.3d 852, 859 (7th Cir. 2010)). A court's role in deciding a motion for summary judgment “is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. [A] court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Material facts are those that are outcome determinative under the applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention that an issue of material fact exists is insufficient to create a factual dispute, a court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000), and avoid “the temptation to decide which party's version of the facts is more likely true, ” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

         For a grant of summary judgment to be fair, each party must have an opportunity to present its full argument on an issue. Edwards v. Honeywell, Inc., 960 F.2d 673, 674-75 (7th Cir. 1992). It is improper for a district court to grant summary judgment on grounds to which neither party had an opportunity to respond. Id.; see also Costello v. Grundon, 651 F.3d 614, 635 (7th Cir. 2011) (citing Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th Cir. 2006) (“[I]f the moving party does not raise an issue in support of its motion for summary judgment, the nonmoving party is not required to present evidence on that point, and the district court should not rely on that ground in its decision.”)).


         This Court has diversity jurisdiction, pursuant to 28 U.S.C. § 1332, over the consumer protection claim because the parties are citizens of different states and the aggregated amount in controversy exceeds $75, 000. A federal court exercising diversity jurisdiction must apply the substantive law of the forum in which it sits, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), including that pertaining to choice of law, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Courts “do not worry about conflict of laws unless the parties disagree on which state's law applies.” Citadel Grp. Ltd. v. Wash. Reg'l Med. Ctr., 692 F.3d 580, 587 n.1 (7th Cir. 2012) (quoting Auto-Owners Ins. Co. v. Websolv Computing, Inc., 580 F.3d 543, 547 (7th Cir. 2009)). Both parties agree that Texas law controls the remaining claim, so the Court will apply Texas law.

         The Plaintiff alleged a claim for violation of the consumer protection laws of Texas, known as the Texas Deceptive Trade Practices Act (TDTPA). To prevail under the TDTPA, Tex. Bus. & Com. Code § 17.41, et seq., a plaintiff must establish that: (1) the plaintiff is a consumer;[1] (2) the act complained of was a producing cause of actual damages; and (3) the act was prohibited by sections 17.50(a)(1)-(4). Lochabay v. Sw. Bell Media, Inc., 828 S.W.2d 167, 171 (Tex. Ct. App. 1992). Such prohibited acts are those enumerated in section 17.46, which include, in relevant part:

(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not;
* * *
(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style ...

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