Edwards v. Mack Trucks, Inc.

Filing 43

MOTION by Defendant M&K Quality Truck Sales of Summit, LLC for judgment on the pleadings (Khodadad, Camille)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHNNY EDWARDS,

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

No. 1:15-CV-1981
Judge James B. Zagel

Magistrate Judge Susan E. Cox

DEFENDANT M&K QUALITY TRUCK SALES OF SUMMIT, LLC’S MOTION FOR
JUDGMENT ON THE PLEADINGS
NOW COMES the Defendant, M&K QUALITY TRUCK SALES OF SUMMIT, LLC
(hereinafter referred to as “Chicago Mack,” by and through its attorneys, HALL, PRANGLE &
SCHOONVELD, LLC, and for its Motion for Judgment on the Pleadings, pursuant to Fed. R.
Civ. P. 12(c), states as follows:
I.

BACKGROUND

This lawsuit arises out of the sale of a Mack truck (hereinafter referred to as “the Truck”)
from Defendant Chicago Mack (Complaint, ¶4). Defendant Mack Trucks was the manufacturer
of the Truck. (Complaint, ¶4). In Count III of Plaintiff’s Complaint, Plaintiff asserted a cause of
action against Defendant Chicago Mack for breach of implied warranty under the Illinois
Commercial Code. In Count IV of Plaintiff’s Complaint, Plaintiff asserts a cause of action
against Defendant Chicago Mack for revocation of acceptance and cancellation of contract under
Sections 5/2-608 and 5/2-711(1) of the Illinois Commercial Code. In Count V of Plaintiff’s
Complaint, Plaintiff asserts a cause of action against Defendant Chicago Mack to recover the
price under Section 5/2-711(1) of the Illinois Commercial Code. On September 29, 2015, this
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Court entered an Order dismissing Count III of Plaintiff’s Complaint for breach of implied
warranty with prejudice because Defendant Chicago Mack effectively disclaimed all implied
warranties.
As raised in Defendant Chicago Mack’s affirmative defenses 2 and 3, Plaintiff’s
revocation of acceptance, cancellation of contract and recovery of price claims are dependent on
Plaintiff’s implied warranty claim.

Without this condition precedent claim of an implied

warranty having been breached by Defendant Chicago Mack, Plaintiff cannot succeed on the
derivative claims. As Plaintiff’s implied warranty claim has been dismissed with prejudice,
Defendant Chicago Mack respectfully requests that this Court enter judgment in its favor on
Counts IV (revocation of acceptance and cancellation of contract) and V (recover the price) of
the Complaint with prejudice.
II.

ARGUMENT

A. Standard for Federal Rule of Civil Procedure12(c) Motion on the Pleadings
Federal Rule of Civil Procedure 12(c) provides for judgment on the pleadings “after the
pleadings are closed but within such time as not to delay the trial.” “[T]he Court may properly
dismiss a case before discovery – typically through a Rule 12(c) Motion for Judgment on the
Pleadings – on the basis of an affirmative defense.”

Brownmark Films, LLC. v. Comedy

Partners, 682 F.3d 687, 690 (7th Cir. 2012). Defendant Chicago Mack moves for judgment on
the pleadings on Plaintiff’s revocation of acceptance, cancellation of contract and recovery of the
price claims as they are not legally viable in the absence of a claim for breach of implied
warranty.

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B. There Can Be No Claim For Revocation Of Acceptance, Cancellation Of
Contract Or Recovery Of The Price Because There Is No Implied Warranty
Claim
Revocation of acceptance, cancellation of contract and recovery of the price are remedies
for a breach of an implied warranty. In this case, it is undisputed that Defendant Chicago Mack
made no warranties to Plaintiff. Accordingly, Plaintiff’s remaining claims against Defendant
Chicago Mack should be dismissed with prejudice.
In Priebe v. Autobarn Ltd., 240 F.3d 584, 588 (7th Cir. 2001), the Seventh Circuit
unequivocally stated that to be entitled to revoke acceptance under the Illinois Commercial Code,
“[T]he plaintiff must prove that: (1) there was a breach of an implied warranty of
merchantability; (2) the defect in the product substantially impaired the product’s value to him;
(3) the plaintiff reasonably thought the defect could be cured; and (4) it has not been cured.1”
(emphasis added). The Seventh Circuit cited the First District Illinois Appellate Court decision
Collum v. Fred Tuch Buick, 6 Ill.App.3d 317, 321, 285 N.E.2d 532, 535 (1st Dist. 1972) in
support of this proposition. In Collum, the court stated that “The right to revoke acceptance of
an automobile does not arise from every breach of warranty. . . To revoke acceptance the defect
must substantially impair the value of the car to the plaintiff.” Collum, 6 Ill.App.3d at 321, 285
N.E.2d at 535 (emphasis added).
Thus, according to the Seventh Circuit in Priebe and the Illinois Appellate Court in
Collum, a breach of implied warranty is an essential element of a claim for revocation of
acceptance and presupposes any such action and any substantial impairment analysis. This

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In affirming the district court’s decision granting Defendant-dealer’s Motion for Summary Judgment, the Court
found that Plaintiff did not create a material issue of fact as to whether Defendant breached a warranty. The Court
also addressed Plaintiff’s argument claiming that a breach of warranty is not a necessary element of a revocation of
acceptance claim and that only substantial impairment analysis is required. The Court noted that regardless of
Plaintiff’s argument on that issue, Plaintiff did not create a material issue of fact on that issue either. The Court’s
acknowledgment of Plaintiff’s argument does not indicate any implied or express agreement with it.

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reasoning has been adopted by other Illinois courts. See also Soldinger v. Aston Martin, 1998
WL 151817 *5 (N.D. Ill 1998) (Attached hereto as Exhibit A) (applying Illinois law and
dismissing plaintiff’s claim for revocation of acceptance in light of the fact that the implied
warranty had been effectively disclaimed ).
This conclusion is supported by the Illinois Commercial Code.

With respect to

Plaintiff’s revocation claim, under §  2-608 of the Illinois Commercial Code, “The buyer may
revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its
value . . . .” 810 ILCS 5/2-608 (emphasis added). “Goods are . . . ‘conforming’ or conform to
the contract when they are in accordance with the obligations of the contract.” 810 ILCS 5/2106(2). Furthermore, the Illinois Commercial Code permits the parties to agree that the buyer
possess no warranty protection at all.

810 ILCS 5/2-316.

The vehicle at issue was in

conformance with the parties’ agreement as Defendant Chicago Mack properly disclaimed all
implied warranties. Accordingly, there could not be any nonconformance to trigger a revocation
claim. See also 1 White & Summers, UNIFORM COMMERCIAL CODE § 8-4 (6th ed. 2015
Westlaw) (For revocation under 2-608 “there must be a ‘nonconformity,” i.e., a respect or
respects in which the goods do not conform to the contract . . . But if the only relevant language
in the agreement as to quality has been effectively disclaimed, no nonconformity in the goods
sufficient for revocation can exist.’”) Barkley Clark & Christopher Smith, The Law of Product
Warranties §7.18[6] (2015) (“[R]evocation is a remedy for breach of warranty, and when the
seller effectively disclaims warranty liability, there is no longer a right for which revocation can
serve as a remedy.”)2

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In Section 7.18, Professor Clark and Mr. Smith note the following:
Some courts make the conceptual error of viewing revocation under § 2-608 as a matter totally
separate from breach of warranty . . . The courts that reach . . . incorrect results are thrown off the

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With respect to Plaintiff’s cancellation of contract and recovery of the price claims,
“’Cancellation’ occurs when either party puts an end to the contract for breach by the other. . . .”
810 ILCS 5/2-106(4).

Furthermore, Section 2-711(1) states that “[w]here the

. . . buyer

rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and
with respect to the whole if the breach goes to the whole contract . . . the buyer may cancel and
whether or not he has done so may in addition to recovering so much of the price as has been
paid.” 810 ILCS 5/2-711(1) (emphasis added). Section 2-711, on which Plaintiff predicates his
claims for cancellation and recovery of the price, requires not only a justifiable revocation of
acceptance, but also a breach – both of which are absent here.
Courts from other jurisdictions have agreed with this position. See Parsley v. Monaco
Coach Corp., 327 F.Supp.2d 797, 803 (W.D. Mich. 2004) (The court found that where a seller
disclaims all warranties, no revocation of acceptance claim can exist, noting that “if the only
relevant language in the agreement as to quality has been effectively disclaimed, no
nonconformity in the goods sufficient for revocation can exit.”) (internal citations omitted);
McKissic v. Country Coach, Inc., 2009 WL 500502 at *7-*8 (M.D. Fla. 2009) (attached hereto as
Exhibit B) (summary judgment granted to defendant on revocation claim because defendant had
disclaimed all warranties); Harden v. Ford Motor Company, 408 F.Supp.2d 309, 312-14 (E.D.
Mich. 2005)(court dismissed revocation claim when no implied warranty claim existed as
defendant had disclaimed all warranties); and Clark v. Ford Motor Co., 612 P.2d 316, 319

track by the fact that § 2-714(2) provides a specific measure of damages for “breach of warranty”
whereas § 2-608 does not mention “breach of warranty” but refers instead to “nonconformities.”
However, the only reason that § 2-608 speaks of “nonconformities” rather than “breach of
warranty” is that the latter term is a subset of the former . . . [R]evocation is a remedy for breach
of warranty, and when the seller effectively disclaims warranty liability, there is no longer a right
for which revocation can serve as a remedy. Thus, a valid disclaimer under §2-316 . . . should
preclude revocation. Fortunately, most courts recognize this truth. (Footnotes omitted).

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(Or.App.1980) (where dealer disclaimed all warranties and buyer received vehicle bargained for
there was no nonconformity to support revocation).
Plaintiff will likely rely on Blankenship v. Northtown Ford, Inc., 95 Ill.App.3d 303, 420
N.E.2d 167 (4th Dist. 1981) in support of his position.

In Blankenship, the Fourth District

Illinois Appellate Court stated that revocation of acceptance “is appropriate even when the dealer
has disclaimed all implied warranties.” Blankenship, 95 Ill.App.3d at 306-7, 420 N.E.2d at 17071. Despite this statement, the court found that defendant had not effectively disclaimed all
implied warranties. Blankenship, 95 Ill.App.3d at 306-7, 420 N.E.2d at 170-71. As noted by the
concurring opinion, the majority went too far in so holding because the implied warranties had
not been effectively disclaimed. The concurring opinion noted that “had the disclaimer been
properly effectuated, I would deem it to be a close question as to whether the disclaimer should
be given the narrow application proposed by the majority.” Blankenship, 95 Ill.App.3d at 308,
420 N.E.2d at 172.
In a situation where the Illinois Supreme Court has not spoken on the issue (as in this
case), “[a]lthough persuasive . . . Illinois Appellate Court decisions do not bind” federal courts.
AAR Aircraft &Engine Group, Inc. v. Edwards, 272 F.3d 468, 470 (7th Cir. 2001). This Court
should apply Illinois law in the same way the Illinois Supreme Court would apply it.
Blankenship does not accurately reflect how the Illinois Supreme Court would rule. This Court
should follow the decision of the Seventh Circuit in Priebe and First District Illinois Appellate
Court in Collum and find that Plaintiff’s claims cannot survive in the absence of an implied
warranty claim.
Defendant Chicago Mack is entitled to judgment on the pleadings on Plaintiff’s
revocation, cancellation of contract and recovery of the price claims because Plaintiff’s claims

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are dependent on an implied warranty claim – which has been dismissed with prejudice because
all implied warranties were effectively disclaimed.

Accordingly, Counts IV and V of the

Complaint should be dismissed with prejudice.
III.

CONCLUSION

Wherefore, for the foregoing reasons, Defendant Chicago Mack respectfully requests that
this Court grant its Motion for Judgment on the Pleadings and enter judgment in its favor on
Counts IV and V of Plaintiff’s Complaint.
Respectfully submitted,

/s/ Camille N. Khodadad
One of the Attorneys for Defendant
M&K QUALITY TRUCK SALES OF SUMMIT, LLC
L. Michael Tarpey ([e-mail])
Camille N. Khodadad ([e-mail])
HALL PRANGLE & SCHOONVELD, LLC
200 South Wacker Drive, Suite 3300
Chicago, Illinois 60606
312-345-9600 | Phone
312-345-9608 | Fax

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that I served this Motion for Judgment on the
Pleadings upon all attorneys of record as listed below via electronic filing through the Clerk of
the United States District Court for the Northern District of Illinois, Eastern Division before the
hour of 5:00 p.m. on December 15, 2015.

/s/ Camille N. Khodadad
One of the Attorneys for Defendant
M&K QUALITY TRUCK SALES OF SUMMIT, LLC
Attorney for Plaintiff
Dmitry N. Feofanov
ChicagoLemonLaw.com, P.C.
404 Fourth Avenue West
Lyndon, Illinois 61261
Phone: [phone]
4817-1171-5883, v. 1

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