Edwards v. Mack Trucks, Inc.

Filing 34

MEMORANDUM Opinion and Order. Signed by the Honorable James B. Zagel on 8/26/2015. Mailed notice(ep, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHNNY EDWARDS,
Plaintiff,
No. 15 C 1981
Judge James B. Zagel

v.
MACK TRUCKS, INC., and M&K
QUALITY TRUCK SALES OF SUMMIT,
LLC, d/b/a CHICAGO MACK, CENTER,
INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Johnny Edwards brought this action against Defendants Mack Trucks, Inc.
(“Mack Trucks”) and M&K Quality Truck Sales of Summit, LLC d/b/a Chicago Mack, Center,
Inc. (“Chicago Mack”). Plaintiff alleges breach of express warranty (Count I) and revocation of
acceptance and cancellation of contract (Count II) against Defendant Mack Trucks. Plaintiff also
alleges breach of implied warranty (Count III), revocation of acceptance and cancellation of
contract (Count IV), and action to recover the price (Count V) against Defendant Chicago Mack.
This matter is presently before the Court on Defendant’s motion to dismiss Count II
against Defendant Mack Trucks for failure to state a claim under Rule 12(b)(6) as well as
Plaintiff’s motion to strike all of Defendants’ affirmative defenses under Rule 12(f). For the
following reasons, I am granting both of these motions.
BACKGROUND
Plaintiff bought a new 2014 Mack truck from Defendant Chicago Mack for $116,762.73
on December 17, 2013. The truck was manufactured by Defendant Mack Trucks. Plaintiff
received a copy of Mack Trucks’ warranty coverage as part of his purchase. The coverage
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provided a limited warranty for certain component parts as part of a disclaimer of the implied
warranty of merchantability or fitness for a particular purpose as a means of limiting
consequential and incidental damages.
Up until this action commenced, Defendant Chicago Mack serviced the vehicle at least
eleven times, primarily for issues relating to a severely left leaning ride but also for an
illuminated engine system warning light, an oil leak, and a diesel exhaust fluid leak. Alleging
that the malfunctions and defects had not been fixed, Plaintiff filed this action against
Defendants seeking to cancel the contract and recover damages.
DISCUSSION
I.

Motion to Dismiss Count II
A motion to dismiss under Rule 12(b)(6) does not test the merits of a claim; rather, it tests

the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).
In deciding a 12(b)(6) motion, the court accepts all well-pleaded facts as true, and draws all
reasonable inferences in favor of the plaintiff. Id. at 1521. To survive a 12(b)(6) motion, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” Id. at
679.
The Illinois Commercial Code closely mirrors the Uniform Commercial Code and
provides buyers with both a mechanism to revoke an acceptance to an offer, 810 ILCS 5/2-608,
as well as a means to cancel a contract once an acceptance has been revoked in order to claim

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and recover damages, 810 ILCS 5/2-711. In Count II of the complaint, Plaintiff brings a
revocation of acceptance claim under 810 ILCS 5/2-711 against Defendant Mack Trucks.
In Illinois, however, revocation of acceptance claims are not available against nonselling
manufacturers. Although some other states allow this type of remedy, see, e.g., Volkswagen of
Am., Inc. v. Novak, 419 So. 2d 801, 804 (Miss. 1982), Illinois does not. Mydlach v.
DaimlerChrysler Corp., 226 Ill. 2d 307, 327 (2007); see also Kutzler v. Thor Indus., Inc., No. 03
C 2389, 2003 WL 21654260 (N.D. Ill. July 14, 2003) (Schenkier, J.). In Mydlach, the Illinois
Supreme Court considered whether a plaintiff who bought a used vehicle from a dealership could
bring a suit to recover damages against the car’s manufacturer, using the warranty as a basis for
his claim. Mydlach, 226 Ill. 2d at 309. According to the court, revocation of acceptance
“contemplates a buyer-seller relationship” which would be “conceptually inapplicable” to a
nonseller such as a manufacturer. Id. at 332. Although the car in Mydlach was a used vehicle and
the truck in this case is a new vehicle, the court’s reasoning in Mydlach applies here. According
to Mydlach, revocation of acceptance claims are not available to nonselling manufacturers—and
this rule can be applied regardless of whether the car is new or used.
Here, Plaintiff lacks the requisite buyer-seller relationship with Defendant Mack Trucks
that is required for a claim of revocation of acceptance. Much like the plaintiff in Mydlach,
Plaintiff bought a vehicle from a dealership without any direct connection to the manufacturer. In
fact, Plaintiff’s Exhibit A plainly shows that the only parties to the original contract were
Plaintiff as buyer and Defendant Chicago Mack as seller. Pl.’s Comp. 8, ECF No. 1. Defendant
Mack Trucks is not listed as a party to the transaction. Id. Defendant Mack Trucks is simply the
manufacturer, and based on the pleadings, Plaintiff has not established the requisite buyer-seller
relationship upon which a revocation of acceptance claim must be brought.

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Plaintiff relies on Volkswagen of Am., Inc. v. Novak, 419 So. 2d 801, 804 (Miss. 1982) in
an attempt to establish that a “close link” existed between the contract and warranty to qualify
Mack Trucks as part of the original transaction. Plaintiff’s reliance on what is nothing more than
persuasive precedent, however, is improper here because the Illinois Supreme Court has already
addressed this issue. In Mydlach, the Illinois Supreme Court specifically cited to Novak and
acknowledged that Mississippi courts have accepted this “close link” analysis. Mydlach, 226 Ill.
2d at 328. The Illinois Supreme Court, however, chose not to follow that decision but instead
follow a guideline set forth by a court of this district in Kutzler v. Thor Industries, Inc.,
establishing that revocation of acceptance is only available against the seller of goods and not the
manufacturer. Id. Here, Plaintiff asks for this Court to act contrary to the express opinion of the
Illinois Supreme Court without any indication that a shift has occurred since Mydlach. Without
more, I refuse to rule against the established precedent. Because Plaintiff fails to state a claim
under 810 ILCS 5/2-711, Count II of the complaint is dismissed with prejudice. 1
II.

MOTION TO STRIKE
Motions to strike are generally disfavored because they potentially only delay the

proceedings. See United States v. 416.81 Acres of Land, 514 F.2d 627, 631 (7th Cir. 1975). A
motion to strike, however, is proper when it serves to remove “unnecessary clutter” to expedite a
case. Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989).
“Ordinarily, defenses will not be struck if they are sufficient as a matter of law or if they present

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Although Count II is dismissed, Plaintiff is not without a course of action against Defendant
Mack Trucks. The New Vehicle Protection Act provides that “a manufacturer may be required to accept
return of a new vehicle and make a full refund to the consumer where, after a reasonable number of
attempts, the seller is unable to conform the new vehicle to any of its applicable express warranties.” Id.
at 332-33 (citing 815 ILCS 380/1 et seq.). The court in Mydlach could not extend such a claim to the
plaintiff since the vehicle in question had been purchased used. In the present case, however, Plaintiff
purchased the truck in question in new condition and would therefore not be barred from bringing a claim
under the New Vehicle Protection Act.

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questions of law or fact.” Id.
Defenses are pleadings which are “subject to all pleading requirements of the Federal
Rules of Civil Procedure.” Id. Whether defenses are also subject to the “plausibility” pleading
standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), and
Ashcroft, 556 U.S. at 677-79, however, is subject to some debate. Compare, e.g., People by
Madigan v. CMK Investments, Inc., No. 14-C-2783, 2015 WL 4038896, at *1 (N.D. Ill. June 30,
2015) (Alonso, J.) (applying Twombly and Iqbal to affirmative defenses), with Leon v. Jacobson
Transp. Co., Inc., No. 10-C-4939, 2010 WL 4810600, at *1 (N.D. Ill. Nov. 19, 2010) (Marovich,
J.) (concluding that the rationale underlying Twombly and Iqbal does not apply to affirmative
defenses). While the Seventh Circuit has not addressed whether the Twombly-Iqbal standard
applies to affirmative defenses, judges in this district have generally found these requirements to
apply. See, e.g., Shield Techs. Corp. v. Paradigm Positioning, LLC, No. 11-C-6183, 2012 WL
4120440 (N.D. Ill Sept. 19, 2012) (Grady, J.) (stating that Leon represents a minority view in this
district). Aligning with the majority of courts in this district, this Court holds that the pleadings
must set forth a “short and plain statement,” Fed. R. Civ. P. 8(a), of the affirmative defenses
which must be sufficient on the face of the pleadings, Heller, 883 F.2d at 1294, and be plead
with “sufficient factual matter” to be “plausible on its face,” Iqbal, 556 U.S. at 678; see, e.g.,
Mandel Metals, Inc. v. Walker Group Holdings, No. 14-CV-8493, 2015 WL 3962005 (N.D. Ill.
June 26, 2015) (Dow, J.). “As a practical matter, however, affirmative defense rarely will be as
detailed as a complaint (or a counterclaim); nor do they need to be in most cases to provide
sufficient notice of the defense asserted. But a problem arises when a party asserts boilerplate
defenses as mere placeholders without any apparent factual basis.” Dorsey v. Ghosh, No. 13-CV05747, 2015 WL 3524911, at *4 (N.D. Ill. June 3, 2015) (Wood, J.).

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Here, Defendant Mack Trucks’ fourteen and Defendant Chicago Mack’s eighteen
affirmative defenses clearly fail to meet the pleading standard set forth in Twombly-Iqbal. All but
two of Defendants’ eighteen independent defenses are plead in a single sentence. Affirmative
defenses that are “[t]hreadbare recital[] of the elements,” Iqbal, 556 U.S. at 678, conclusory
statements, Heller, 883 F.2d at 1295, or mere denials of the Plaintiff’s complaint, see Renalds v.
S.R.G. Restaurant Group, 119 F. Supp. 2d 800, 804 (N.D. Ill. 2000), are insufficient to survive a
motion to strike. Because Defendants have failed to provide any factual support for their
affirmative defenses, I am granting Plaintiff’s motion to strike Defendants’ affirmative defenses
pursuant to Rule 12(f).
Although I am striking all of Defendants’ affirmative defenses at this time, I will consider
which affirmative defenses could constitute legitimate defenses if they had been properly
pleaded and dismiss those without prejudice. The Seventh Circuit “has identified two approaches
for [determining] whether a defense not specifically enumerated in Rule 8(c) is an affirmative
defense: (a) if the defendant bears the burden of proof under state law, or (b) if it [does] not
controvert the plaintiff’s proof.” Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th
Cir. 2012) (internal citations omitted).
Here, the Court concludes that Defendants’ first, seventh, eighth, ninth, fifteenth,
sixteenth, seventeenth, and eighteenth defenses could be appropriately pleaded as affirmative
defenses. These defenses are either explicit in the rules or recognized by the courts. Therefore,
the Court’s order striking these defenses are without prejudice, allowing Defendants to replead
them with greater factual support. Defendants’ remaining affirmative defenses, however, are
stricken with prejudice.

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A.

First Affirmative Defense – Mack Trucks Count I; Chicago Mack Count I
The first affirmative defense alleges a failure to state a claim upon which relief can be

granted. The courts in this district disagree as to whether this may be asserted as an affirmative
defense. Compare, e.g., Ill. Wholesale Cash Register, Inc. v. PCG Trading, LLC, No. 08 C 363,
2009 WL 1515290, at *2 (N.D. Ill May 27, 2009) (Grady, J.) (striking failure to state a claim as
an affirmative defense as it should have been brought as a Rule 12(b)(6) motion), with LaSalle
Bank Nat’l Assoc. v. Paramount Properties, 588 F. Supp. 2d 840, 860 (N.D. Ill. 2008) (St. Eve,
J.) (allowing failure to state a claim as an affirmative defense where it does not raise any matter
outside of the plaintiff’s complaint). Even assuming that failure to state a claim is an appropriate
defense, Defendants must still adequately plead the defense in accordance with Rule 8, providing
notice as to how and in what portion of the complaint Plaintiff has failed to state a claim upon
which relief may be granted. See Reis Robotics USA, Inc. v. Concept Indus., Inc., 462 F. Supp.
2d 897, 905 (N.D. Ill. 2006); see also Codest Eng’g v. Hyatt Int’l Corp., 954 F. Supp. 1224, 1231
(N.D.Ill., 1996) (striking failure to state a claim defense that did not refer to a particular count of
the complaint and did not notify plaintiff of any specific deficiencies in the complaint). Without
more, Defendants’ first affirmative defense insufficiently provides notice as required by Rule 8
and is stricken without prejudice. See, e.g., Dorsey, 2015 WL 3524911, at *4.
B.

Second to Sixth Affirmative Defenses – Mack Trucks Count II-III; Chicago Mack

Counts II-VI
Defendants’ second to sixth affirmative defenses relate to the Vehicle Purchase Order and
any possible disclaimer of the express and implied warranties, any implied warranty of
merchantability, or any implied warranty of fitness for a particular purpose. Defendants contend
that as a result of the disclaimer, they are not liable for consequential damages, including, but not

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limited to, loss of income. These defenses are each merely reiterations of denials from
Defendants’ Answer and are therefore unnecessary. See Sarkis’ Café, Inc. v. Sarks in the Park,
LLC, 55 F. Supp. 3d 1034, 1041 (N.D. Ill 2014). For example, the disclaimer of the warranties
and damages are referenced in Defendants’ response to paragraph 4 of Plaintiff’s complaint. See
Def.’s Answer 2, ECF No. 16, Def.’s Answer 2, ECF No. 17. Since affirmative defenses must
introduce a new matter or allegation that could serve as the basis for a defense and cannot be
merely a denial of the Plaintiff’s allegations, see Rao v. Covansys Corp., No. 6 C 5451, 2007 WL
141892, at *3 (N.D. Ill. Jan. 17, 2007), these five affirmative defenses are stricken with
prejudice.
C.

Seventh and Eighth Affirmative Defenses – Mack Trucks Count IV-V; Chicago

Mack Counts VIII-IX
Defendants’ seventh and eighth affirmative defenses contend that the damage to the
vehicle was a result of unreasonable use or misuse and negligence, very much akin to the clean
hands doctrine. Defendants have not adequately pleaded the defense in accordance with Rule 8.
Neither the complaint nor the answer has established any factual basis for which Plaintiff’s use
of the vehicle could be shown to be unreasonable or negligent. The facts presented in the
complaint merely lay out the circumstances of the original purchase and attempts at repair
thereafter. The answer neither contests the general framework of the complaint’s facts nor
presents any facts relating to Plaintiff’s use which establish the basis for these defenses. Without
more, Defendants’ seventh and eighth affirmative defenses are insufficiently pled and are
stricken without prejudice.
D.

Ninth Affirmative Defense – Mack Trucks Count VI; Chicago Mack Count X
Defendants’ ninth affirmative defense states: “Plaintiff’s claims are barred in whole or in

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part by the equitable doctrine of laches.” Plaintiff contends that since this is a legal action, a
laches defense is not applicable since it is an equitable remedy. Illinois courts, however, have
expanded the use of a laches defense to lawsuits seeking both legal and equitable remedies. See
Mo v. Hergan, 982 N.E.2d 905, 914 (Ill. App. Ct. 2012); see also West Bend Mut. Ins. Co. v.
Procaccio Painting & Drywall Co., Inc., No. 13-2252, 2015 WL 4153635, at *10 (7th Cir. July
10, 2015). However, much like many of Defendants’ other affirmative defenses, this defense has
only been pleaded in broad terms, stating only conclusory allegations without any reference to
asserted facts. Defendants’ answer does not reveal why Plaintiff should have taken action sooner
than he did nor does it provide reasons as to why the current period is unreasonably long.
Therefore, Defendants’ ninth affirmative defense is stricken without prejudice.
E.

Tenth to Twelfth Affirmative Defenses – Mack Trucks Count VII-IX; Chicago

Mack Counts XI-XII
Defendants’ tenth to twelfth defenses relate to the repair of the vehicle and associated
costs. Very similar to Defendants’ earlier defenses relating to the Vehicle Purchase Order and
related disclaimers, these are simply restatements of Defendants’ denials to Plaintiff’s complaint.
Because they are simply denials of the Plaintiff’s complaint, these defenses are stricken with
prejudice.
F.

Thirteenth Affirmative Defense – Mack Trucks Count X; Chicago Mack Count VII
Defendants’ thirteenth affirmative defense states: “Defendant’s disclaimers are

conscionable, and therefore valid and enforceable.” Here, the particular defense has no place in
the pleadings. Plaintiff’s claims do not contest the conscionability of the disclaimers contained
within the Vehicle Purchase Order. As such, Defendants’ thirteenth affirmative defense is
dismissed with prejudice unless Plaintiff amends his complaint to plead in this manner.

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G.

Fourteenth Affirmative Defense – Mack Trucks Count XI; Chicago Mack Count

XIV
Defendants’ fourteenth affirmative defense states: “Plaintiff has received the benefit of
use of the truck, and any damages awarded should be reduced by the value of Plaintiff’s benefit
of use.” Again, this is simply a denial of Plaintiff’s complaint and merely a restatement from
Defendants’ answers. Therefore, Defendants’ fourteenth affirmative defense is stricken with
prejudice.
H.

Fifteenth Affirmative Defense – Mack Trucks Count XII; Chicago Mack Count XV
Defendants’ fifteenth affirmative defense states: “Plaintiff failed to provide Defendant

with proper notice in accordance with applicable law.” The defense of insufficiency of process is
more typically brought as a Rule 12(b)(5) motion to dismiss but may be raised in the first
responsive pleading. Trustees of Cent. Laborers' Welfare Fund v. Lowery, 924 F.2d 731, 732
(7th Cir. 1991). Defendants must still adequately plead the defense in accordance with Rule 8,
providing notice as to how Plaintiff failed to provide adequate service. In its current form, this
defense is simply a legal conclusion without any factual support. It is therefore stricken without
prejudice.
I.

Sixteenth Affirmative Defense – Chicago Mack Count XVI
Defendants’ sixteenth affirmative defense states: “Plaintiff failed to revoke the agreement

within a reasonable amount of time.” Similar to the laches defense, Defendant has not provided
any factual basis to determine whether or not the time period had been reasonable, particularly
any relevant dates other than the purchase date. As simply a legal conclusion without any factual
basis to raise the defense beyond a speculative level, Defendants’ defense is stricken without
prejudice.

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J.

Seventeenth Affirmative Defense – Mack Trucks Count XIII; Chicago Mack Count

XVII
Defendants’ seventeenth affirmative defense states: “Plaintiff’s claims are barred in
whole or in part by the applicable statute of limitations.” There is no contest that this can be an
appropriate affirmative defense. See Fed. R. Civ. P. 8(c). Neither party, however, has stated any
facts which would raise this defense beyond a speculative level. The only date which has been
provided to this Court is the initial purchase date, and even this date is contested by the parties.
The bare-bones pleading of this defense cannot stand, and accordingly, Defendant’s seventeenth
amendment is stricken without prejudice. See also Dorsey, 2015 WL 3524911, at *5 (striking
limitations defense where basis for purposed defense is completely unknown).
K.

Eighteenth Affirmative Defense – Mack Trucks Count XIV; Chicago Mack Count

XVIII
Defendants’ eighteenth affirmative defense states: “Plaintiff has failed to mitigate his
damages.” Contrary to Plaintiff’s contention that mitigation is not a true defense, failure to
mitigate damages is a recognized affirmative defense. See Gaffney v. Riverboat Servs. of Ind.,
Inc., 451 F.3d 424, 460 (7th Cir. 2006). Defendants, however, fail to provide any factual basis to
support their defense which gives rise to Plaintiff’s failure to mitigate. Therefore, Defendants’
eighteenth defense fails to meet the pleading standard and is dismissed without prejudice.

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CONCLUSION
Plaintiff’s claim against Mack Trucks fails to establish the buyer-seller relationship that is
required for a revocation of acceptance claim. Accordingly, Defendant’s motion to dismiss is
granted, and I am dismissing Count II of the complaint with prejudice. Additionally, Plaintiff’s
motion to strike all of Defendants’ affirmative defenses is granted in part with prejudice and in
part without prejudice.

ENTER:

James B. Zagel
United States District Judge
DATE: August 26, 2015

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