United States District Court, N.D. Indiana
OPINION AND ORDER
THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT.
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
OF THE DISPUTE
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.
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.
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).
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.”)).
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.
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; (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 ...