United States District Court, N.D. Indiana, Fort Wayne Division
THE ONTARIO REGIMENT (RCAC) COMPANY and ALAN DUFFY, Plaintiffs,
DEAN V. KRUSE FOUNDATION, INC. Defendant.
OPINION AND ORDER
William C. Lee United States District Judge
The Ontario Regiment (RCAC) Company and Alan Duffy
(individually herein, “the Museum” and
“Duffy”), purchased at auction and sight unseen,
what they wrongfully assumed to be two authentic World War II
military vehicles from Defendant, Dean V. Kruse Foundation,
Inc. (“the Foundation”). Thereafter, the
Plaintiffs filed this suit invoking the diversity jurisdiction of
this Court alleging, among other things, that the purchased
vehicles are not authentic and the Foundation violated
Indiana law by committing common-law fraud, criminal fraud,
and criminal deception. Presently before the Court are
cross-motions for summary judgment [DE 35 and DE 43] and two
motions to strike [DE 42 and DE 54]. For the following
reasons, the Foundation's Motion for Summary Judgment
will be GRANTED. All the remaining motions will be DENIED.
judgment is appropriate “if 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). The movant bears the initial
responsibility of informing the district court of the basis
of its motion, and identifying those portions of designated
evidence that demonstrate the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). After “a properly supported
motion for summary judgment is made, the adverse party must
set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (quotation marks and
existence of cross-motions for summary judgment does not
imply that there are no genuine issues of material fact.
R.J. Corman Derailment Servs., LLC v. Int'l Union of
Operating Engineers, Local Union 150, AFL-CIO, 335 F.3d
643, 647 (7th Cir. 2003). “Parties have different
burdens of proof with respect to particular facts; different
legal theories will have an effect on which facts are
material; and the process of taking the facts in the light
most favorable to the non-movant, first for one side and then
for the other, may highlight the point that neither side has
enough to prevail without a trial.” Id.
factual issue is material only if resolving the factual issue
might change the outcome of the case under the governing law.
See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.
1992). A factual issue is genuine only if there is sufficient
evidence for a reasonable jury to return a verdict in favor
of the non-moving party on the evidence presented. See
Anderson, 477 U.S. at 248. In deciding a motion for
summary judgment, the court “may not ‘assess the
credibility of witnesses, choose between competing reasonable
inferences, or balance the relative weight of conflicting
evidence.' ” Bassett v. I.C. Sys., Inc.,
715 F.Supp.2d 803, 808 (N.D. Ill. 2010) (quoting Stokes
v. Bd. of Educ. of the City of Chi., 599 F.3d 617, 619
(7th Cir. 2010)). Instead, it must view all the evidence in
the record in the light most favorable to the non-moving
party and resolve all factual disputes in favor of the
non-moving party. See Anderson, 477 U.S. at 255.
Mindful of these standards, the Court turns now to the facts
of the case.
Museum is a registered and accredited Canadian Armed Forces
Museum and a nonprofit entity with principal offices located
in Oshawa, Ontario, Canada. (Declaration of Alan Duffy at
¶2, hereinafter, “Duffy Dec. at __”). The
Museum maintains Canada's largest collection of
operational military vehicles and artifacts related to the
history and development of the Ontario Regiment.
(Id. At ¶3). Duffy is the president of the
Museum. Duffy has purchased a number of military vehicles and
armaments on the Museum's behalf. (DE 41 at p. 3).
Foundation operates the National Military History Center
(formerly known as the World War II Victory Museum) in Dekalb
County, Indiana. The National Military History Center is a
federally recognized 501(c)(3) non-profit institution. (Duffy
Dec. at ¶4).
noted, this case involves two World War II military vehicles:
a 1943-44/Opel/Maultier Panzer-Werfer 42 (“the
Opel”) and a 1944/Panzer Jager 38(t) MIT7.5 cm PAK AUSF
M (“the Marder”). Originally, the Victory
Memorial Museum in Belgium recovered these vehicles along
with other vehicles from World War II Battlefields. (Victory
Memorial Museum Book (“the Book”), Exhibit 35-2
at pp. 5-13, 144, 160). The Book provides details as to how
these damaged vehicles were restored through reconstruction
efforts. (Id.). The Book is the subject of a Motion
to Strike [DE 42] which will be addressed in the Discussion
portion of this Order.
mid-1990s, Dean V. Kruse (“Kruse”) purchased the
Opel and Marder in the same lot with a number of other
military vehicles from the Victory Memorial Museum in
Belgium. (Affidavit of Dean V. Kruse, at ¶3, hereafter
“Kruse Aff. at p. __”). There were no specific
price allocations for the individual military vehicles in the
lot; rather, Kruse paid approximately $2.3 million total for
the lot. (Id.at ¶4). Kruse avers that no
restorations/changes were made to the Opel or the Marder
since Kruse purchased the vehicles. (Id. at
¶7). As a result, he asserts these vehicles are the same
vehicles he purchased from the Victory Memorial Museum.
Pre-Auction Advertising and the Auction
Foundation listed the two vehicles for auction to be held
between May 11-13, 2017 (“the
Auction”). Approximately one month prior to the
Auction, Duffy received notice that Auctions America would be
conducting the auction. (Duffy Dec. at ¶7). The
Foundation has sold more than $3 million dollars in vehicles
through Auctions America, the majority of which were German
military vehicles. (Kruse Aff. ¶12). Auctions America
has not received any complaints or grievances with respect to
any of the Foundation's prior auctions. (Id. at
¶17; Letter from Auction's America, Exh. 5H).
auctioneer, Auctions America prepares the descriptions for
the vehicles, takes photos of the vehicles, estimates values
for the vehicles, and prepares the advertising materials that
appear in print and online. (Kruse Aff. ¶9-¶11;
Affidavit of Records Custodian, John Sulman, Exhs. 5, 5B and
5C; Declaration of Matthew Lynch at ¶6: “AA took
photographs of the Opel and Marder, and prepared the
advertising materials distributed…”).
Lynch (“Lynch”), the Catalogue Coordinator for
AA, avers that he was responsible for writing various
catalogue descriptions for items auctioned at the Auction.
(Lynch Dec. at ¶s 3-4). He further avers that he wrote
the descriptions for “one item described as a 1943 44
Opel Maultier Panzer-Werfer 42 … and one item
described as a 1944 Panzer Jager 38(t) Mit 7.5 CM Pack Ausf M
…” (Id.). Lynch states that the
descriptions of the Opel and Marder were taken from the Kruse
Foundation placards that were posted in front of the Opel and
Marder in the National Military History Center. (Id.
at ¶6). Lynch physically inspected the vehicles and
noted that there was no engine or transmission in either
vehicle. As a result, he added “NO ENGINE OR
TRANSMISSION” to the text. In addition, at the request
of his superior, Lynch included this sentence: “Buyer
could source and utilize period engine and transmission or
even late model diesel engine and transmission to get in
running order.” (Id.).
avers that he registered for the Auction online and it is
undisputed that the registration information submitted for
the Museum at the Auction is accurate. (Duffy Dec. ¶8;
Pltfs Response to Admissions, Nos. 20-21). Duffy states that
he carefully reviewed the photographs and descriptions of the
items and eventually focused on the Opel and the Marder as
well as a third item that is not the subject of this lawsuit.
(Duffy Dec. ¶8). Duffy did not direct any questions to
the Foundation or to Auctions America regarding the
condition, authenticity or any other fact relating to either
the Opel or the Marder. (Kruse Dec. ¶14).
Foundation represents that the both the Opel and Marder were
auctioned pursuant to a “Bidder's Conditions of
Business and Buyer's Guide.” (Sulman Aff. Exhs 5
and 5D). These conditions contained the following provision
for both the Opel and the Marder: “All sales are
‘As Is' and ‘Where Is.' The Bidder is
responsible for inspections and verification of condition,
authenticity and completeness of any lot purchased.”
(Id.). Duffy avers that although he reviewed
photographs and item descriptions on the Auctions America
website, he has no recollection of seeing these conditions
stated anywhere prior to his purchase of the two vehicles.
(Duffy Dec. ¶8).
participated in the auction by telephone. Duffy did not
personally inspect either the Opel or the Marder prior to
bidding. (Duffy Dec. ¶9). This was contrary to his
normal practice, “[m]y customary practice is to inspect
historic military items before purchasing the items.”
(Id.). He averred that he typically inspects the
items in person or through a representative but did not do so
in this case because the items were being offered by the
National Military History Center. (Id.). He believed
they were “museum quality” items. (Id.).
won the auctions for both the Opel and the Marder. His
winning bids were $41, 000 for the Opel and $210, 000 for the
Marder. In the Acknowledgment of Purchase for both vehicles,
the signatory represents, “I have purchased the goods
described above relying entirely upon my own examination
thereof … I acknowledge that all sales are ‘as
is' and ‘where is' with no warranties or
representations of any type whatsoever.” (Sulman Aff.
avers that he did not sign either the Acknowledgement of
Purchase or the Bills of Sale for the Opel and the Marder.
(Duffy Dec. at ¶8). He further indicates “someone
else must have signed these documents” and that he is
unfamiliar with the signature. (Id.).