United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE.
matter is before the Court on Defendant REV Recreation Group,
Inc.'s (REV) Motion to Dismiss Claim Three of the
Plaintiffs' Complaint [ECF No. 12] for failure to state a
claim, filed on October 16, 2017. The Plaintiffs filed a
Response [ECF No. 23] on November 27, 2017, as well as a
Motion to Amend Complaint [ECF No. 24]. On December 12, 2017,
the Magistrate Judge granted [ECF No. 25] the Plaintiffs'
Motion to Amend, and an Amended Complaint [ECF No. 26] was
filed into the record that same day. Subsequently, on January
2, 2018, the Defendant filed a Motion to Dismiss Claim Three
of the Plaintiffs' Amended Complaint [ECF No. 29], to
which the Plaintiffs responded to on January 15, 2018 [ECF
No. 31]. The Defendant replied on January 29, 2018 [ECF No.
32]. For the reasons discussed below, the Court denies the
Defendant's Motions to Dismiss.
basic factual allegations underlying the Amended Complaint
are as follows: The Plaintiffs, Ohio residents, purchased a
2017 American Dream 45T recreational vehicle (“the
RV”) for $585, 395 in May of 2016 from Tom Johnson
Camping Center Charlotte, Inc., in North Carolina. (Am.
Compl. ¶ 16.) Tom Johnson is an authorized
representative dealer of REV. (Am. Compl. ¶ 18; REV
Def.'s Ans. 7-8, ECF No. 28.) Certain components of the
RV were manufactured in Indiana, and the RV itself was
assembled in Indiana. (Am. Compl. ¶ 11, REV Def.'s
the ensuing time period, the Plaintiffs claim to have
discovered multiple defects in the RV, which have resulted in
the RV and its chassis being out of service for long periods
of time. The Plaintiffs had the RV serviced numerous times,
but the Defendants and various authorized servicing dealers
have been unable to satisfactorily cure the defects.
their original Complaint, the Plaintiffs allege five causes
of action: (1) breach of warranty and/or contract against
REV, (2) violation of the Magnuson Moss Warranty Act against
REV, (3) violation of the Indiana Deceptive Consumer Sales
Act (“the IDCSA”) against REV, (4) breach of
warranty and/or contract against Freightliner Custom Chassis
Corp. (Freightliner), and (5) violation of the Magnuson Moss
Warranty Act against Freightliner. The Defendant's first
and second Motion to Dismiss both concern the third cause of
support of their claim that the Defendant violated the IDCSA,
the Plaintiffs allege that: “[m]ore than 30 days prior
to the filing hereof, Plaintiff gave written notice to REV
Recreation Group., Inc., in writing on November 16, 2016, and
then subsequently through multiple telephone and in person
conversations . . . of [the Defendant's] violative
conduct and the damages resulting therefrom.” (Am.
Compl. ¶ 48.) The Plaintiffs proceed to list seventeen
of these alleged violations. (Id.) Thus, the
Plaintiffs allege, the Defendant “committed one or more
abusive and/or unfair and/or deceptive and/or unconscionable
acts, omissions, or practices in violation of the Indiana
Deceptive Consumer Sales Act, before, during or after a
consumer transaction between one or both Plaintiffs and a
supplier in relation to [the RV].” (Id. at
¶ 50.) In response to the Defendant's first Motion
to Dismiss, the Plaintiffs amended their Complaint to refer
to and append copies of the relevant written warranty and the
written notices to the Defendant of the defects.
(See Mot. to Amend, ECF No. 24.)
reviewing a Rule 12(b)(6) motion to dismiss, the Court must
accept all of the factual allegations as true and draw all
reasonable inferences in favor of the Plaintiff. Erickson
v. Pardus, 551 U.S. 89, 93 (2007). The Complaint need
not contain detailed facts, but surviving a Rule 12(b)(6)
motion “requires more than labels and conclusions . . .
. Factual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A
claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556).
regards to the IDSCA state law claim, the Court “must
apply the law of the state as it believes the highest court
of the state would apply it if the issues were presently
before that tribunal.” State Farm Mut. Auto. Ins.
Co. v. Pate, 275 F.3d 666, 669 (7th Cir. 2001).
“When the state Supreme Court has not decided the
issue, the rulings of the state intermediate appellate courts
must be accorded great weight, unless there are persuasive
indications that the state's highest court would decide
the case differently.” Id.
first Motion to Dismiss, the Defendant moved to dismiss the
Plaintiff's IDCSA claims because (1) the Plaintiffs
failed to allege a “consumer transaction” in
Indiana, (2) the Plaintiffs are barred by the statute of
limitations because they failed to show that the allegedly
deceptive acts were incurable or that they gave timely
written notice to the Defendant, and (3) the Plaintiffs
failed to meet the required heightened pleading standard when
alleging incurable acts. The Court finds that the
Defendant's second and third arguments are moot in light
of the Plaintiffs' Amended Complaint-in which the
Plaintiffs attached the written warranty containing the
representations at issue, email correspondence by the
Plaintiffs to REV complaining of the alleged uncured acts,
and email correspondence in support of the fact that they
gave timely written notice to the Defendant-because the
Defendant did not renew the second and third arguments in its
second Motion to Dismiss. The only argument asserted in the
second Motion to Dismiss is the remaining argument that the
Plaintiffs failed to adequately allege a “consumer
transaction” under the IDCSA.
Defendant asserts that the Plaintiffs have failed to allege a
“consumer transaction” in Indiana because they
are Ohio residents that participated in a North Carolina
transaction and are therefore not protected by the statute.
The Defendant argues that the purpose of the IDCSA is to
protect only Indiana residents, citing dicta from the Eastern
District of Pennsylvania. See In re Actiq Sales and Mktg.
Practices Litig., 790 F.Supp.2d 313, 322 (E.D. Pa. 2011)
(noting that the IDCSA “was created to protect Indiana
residents from the deceptive and unconscionable act and
practices of suppliers”).
Plaintiff responds that the IDCSA is to be “liberally
construed and applied to promote its purposes and
policies.” Ind. Code. § ...