Ricci v. Rohr-Max Inc., d/b/a Bob Rohrman Pre-Owned Car Superstore et al

Filing 48

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 3/31/2017. Defendant, Rohr-Max, Inc.'s Motion for Summary Judgment 33 is granted on Counts I, IV and V. The Court declines to exercise jurisdiction over the state law claims. Civil case terminated. Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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Robert S. Ricci,
Plaintiff,
v.
Rohr-Max Inc.,
Defendant.

No. 15 C 6100
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiff Robert Ricci bought a car from Defendant Rohr-Max Inc., a used car dealership,
and claims that Rohr-Max fraudulently misrepresented the mileage on the car. Ricci filed a fivecount Complaint against Rohr-Max alleging that: the car was sold in violation of the federal
odometer laws (Count I), Rohr-Max breached implied and express warranties (Counts IV and V),
and Rohr-Max violated two state law claims for fraud (Counts II and III). Rohr-Max moved for
summary judgment on the federal odometer claim because they had an “actual mileage
disclosure” that showed no mileage discrepancy and there was no negligence or fraud on their
part. They further moved for summary judgment based on Ricci’s failure to notify them of any
defects and because Ricci bought the car “as is.” Rohr-Max asserts that the Court should not
retain jurisdiction over the remaining state law claims (Counts II and III) because the amount in
controversy is under $50,000, the amount required by the Magnusson-Moss Warranty Act.
Ricci, appearing pro se, filed a responsive pleading to the motion for summary judgment
that fails to comply with the Fed. R. Civ. P. 56 even under the liberal standard applied to pro se
plaintiffs. The Court has made a diligent effort in reviewing the materials supplied by Ricci in

1

spite of this failure and concludes there is no genuine issue of material fact as to Ricci’s federal
claims and that Rohr-Max’s motion for summary judgment is granted on Counts I, IV, and V.
I.

Undisputed Material Facts
Rohr-Max purchased a 2007 Lincoln MKX from Car Max on May 27, 2013, for

$15,000. (Def. 56.1 St. ¶ 7; Battista Aff. at ¶ 13.) Car Max disclosed 68,418 actual miles on the
vehicle to Rohr-Max at the time. (Def. 56.1 St. ¶ 7.) On May 29, 2013, Rohr-Max performed a
used car inspection of the brakes, oil level, tires, and tire treads. (Def. 56.1 St. ¶ 12.) When
Rohr-Max inspected the odometer, the mileage was consistent with the disclosure made by Car
Max. (Def. 56.1 St. ¶ 12.) Rohr-Max further found nothing unusual in the inspection. (Id.) At
least three Carfax reports on the Lincoln reveal no odometer rollback evidence. (Def. 56.1 St. ¶
8.)
On July 29, 2013, Ricci purchased the Lincoln from Rohr-Max for $18,250. (Def. 56.1
St. ¶¶ 3, 25.) On the day of purchase, Ricci signed an odometer disclosure from Rohr-Max
stating that the Lincoln had 68,441 “actual miles.” (Def. 56.1 St. ¶ 6.) Ricci also agreed to buy
the car “As Is” without any express warranty or implied warranty, reflected both in the buyer’s
guide and the bill of sale. (Def. 56.1 St. ¶ 5.) Ricci never contacted Rohr-Max to make any
complaints about the car before filing this lawsuit. (Def. 56.1 St. ¶ 13.)
Ricci obtained a law firm to file suit. He claims that he learned from a technician at
Valvoline, an oil-change shop located in Wisconsin, sometime after he purchased the car, that
the shop had serviced the Lincoln prior to Rohr-Max’s purchase from Car Max and that
according to the Valvoline records, when the Lincoln was last in the shop, the mileage was
187,697. (Compl. at ¶ 14; Def. 56.1 ¶ 17.) The law firm received the case two weeks before the

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statute of limitations would run on the claim and as a result, they filed a Complaint against
Defendants on July 10, 2015, to preserve the claim.1
Even before the Complaint was answered the parties arranged for an inspection of the
vehicle at Bob Rohrman’s Kenosha Nissan on August 5, 2015. (Def. 56.1 St. ¶ 14.) At the
inspection, Ricci, his attorneys, Rohr-Max’s corporate representative, Mark Battista, and RohrMax’s attorneys were all present. The odometer showed 94,614 miles on the car. (Def. 56.1 St.
¶ 14.) The inspection also revealed that the odometer operated correctly, that the odometer
cluster was the original, and that there was no evidence of tampering with the cluster box or the
bolts around the odometer. (Def. 56.1 St. ¶ 14.) Three weeks after the inspection, Ricci’s
attorneys moved to withdraw from representing Ricci due to a conflict “not related to attorney
fees.” The Court required Ricci to appear in person at that motion hearing.

At the hearing,

Ricci’s attorneys elucidated that in their professional opinion, they no longer assessed the case
they had filed on behalf of Ricci in the same way that they had when they originally filed it to
preserve the statute of limitations and they had explained this to Ricci but Ricci assessed the
claim differently. They therefore sought to withdraw due to this inherent conflict. (Dkt. 18.)
The Court granted the motion and then explained to Ricci that he would need to represent
himself and directed him to contact the Pro Se Help desk on the 20th floor of the Federal
Building in order to learn the proper procedures for representing himself and provided him with
information regarding proceeding pro se. 2 The Court warned that Ricci would be obligated to
follow the Court’s rules of procedure.

1

Ricci’s former attorney explained this to the Court during a September 15, 2015 hearing on the law firm’s motion
to withdraw their appearances on behalf of Ricci.
2
The September 15 hearing on Ricci’s attorneys’ motion to withdraw was continued to September 29, 2015. During
the September 29 hearing, the Court granted the motion to withdraw and directed Ricci on proceeding pro se.

3

At no point prior to the filing of the suit did Ricci ever complain to Rohr-Max regarding
the mileage discrepancy. In response to interrogatories, Ricci was asked to identify what steps, if
any, he took to contact Rohr-Max regarding the alleged mileage discrepancy. Ricci responded,
“I sought legal assistance once I became aware of the disc [sic].” (Battista Aff., Ex. C, Resp. No.
11.) Additionally, despite claims that the Lincoln is “worthless,” (Resp. at 3), between the
purchase and the August inspection, Ricci managed to put approximately 30,000 miles on the
car. (Def. 56.1 St. ¶ 14.)
B. Ricci’s Response to Summary Judgment
In spite of the Court’s efforts to direct him to sources of support, Ricci failed to comply
with the Northern District of Illinois’ Local Rule 56.1. Although the filings of pro se litigants
are subject to more liberal review and interpretation, a pro se plaintiff must still comply with the
governing local rules of procedure. See Dale v. Poston 548 F.3d 563, 568 (7th Cir.2008)
(“Judges, of course, must construe pro se pleadings liberally. But procedural rules cannot be
ignored.”) (internal citations omitted); Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001)
(declaring pro se plaintiff's failure to comply with Local Rule 56.1 is not excused by the rule that
courts should construe the pleadings of pro se plaintiffs liberally); see also Local Rule 56.2,
Notice to Pro Se Litigants Opposing Summary Judgment (stating plaintiffs must comply with
Rule 56(e) of the Federal Rules of Civil Procedure and Local Rule 56.1, available in the law
library).
Ricci’s response to the motion for summary judgment includes five sections: 1)
Statement of Facts; 2) Summary Judgment Standard; 3) Argument; 4) Evidentiary Objections;
and 5) Conclusion. None of these sections include “a concise response to the movant’s statement
that . . . contain[s] numbered paragraphs, each corresponding to and stating a concise summary

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of the paragraph to which it is directed.” L.R. 56.1(b)(3)(A). Ricci nevertheless responds to
some facts, and adds some facts, in two of the sections of his Response, his “Statement of Facts,”
and the “Evidentiary Objections.” In the “Statement of Facts” section, Ricci introduces the
section by stating that the facts are “in response to the factual claims set forth in the moving
party’s Motion for Summary Judgment[.]” (Resp. at 2.) There are no short-numbered paragraphs
in this section. Instead, the pleading consists of lengthy paragraphs of legal argument. For
example, one of the “facts” is titled “Gross Negligence,” and Ricci states that “The magnitude of
[the mileage] discrepancy shows Rohr-Max’s complete failure to exercise reasonable care during
appraisal [sic] nothing less than gross negligence.” (Resp. at 2.) In these paragraphs, Ricci cites
to exhibits he attaches to his pleading. The majority of these exhibits, for reasons discussed
below, constitute inadmissible hearsay.
In the “Evidentiary Objections” section, the format looks a bit more like a Rule 56
statement, but he still misses the mark. He does not actually reference the correct paragraph
numbers from Rohr-Max’s Rule 56 statement, and some of his recitations do not match the exact
text of Rohr-Max’s statements.3 There also are no citations at all in these responses. See L.R.
56. 1(b)(3)(B) (“Responses must include, in the case of any disagreement, specific references to
the affidavits, parts of the record, and other supporting material relied upon.”); see also Ammons
v. Aramark Uniform Services, Inc., 368 F.3d 809, 817 (7th Cir. 2004) (declaring adequate denial
of a statement of fact must specifically admit or deny the relevant fact, cite to facts in support of
the denial, and cite to specific references in an affidavit or other parts of the record that supports
such a denial).

3

For example, Factual Claim 10 that Ricci references is actually Rohr-Max’s 56.1 St. ¶ 14—and even this doesn’t
exactly match what the 56.1 St. ¶ 14 says. There are also two “Factual Claim 10s.”

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Most importantly, none of Ricci’s responses adequately dispute Rohr-Max’s facts. For
example, Ricci objects to Rohr-Max’s statement that an inspection occurred on August 5, 2015,
at Rohrman’s Kenosha Nissan in front of Ricci, his previous attorneys, and Rohr-Max and their
representatives, (Def. 56.1 St. ¶ 14)4: “[t]he fact that I was present, that the odometer operated
properly, and that service department found no evidence of tampering is not in itself evidence
that the odometer was not tampered with.” (Resp. at 7.) Another example of Ricci’s failure to
adequately respond pertains to the statement that the car was sold to him “as is,” (Def. 56.1 St. ¶
15). Ricci responds that “[s]elling a vehicle as-is and with no warranties does not give the seller
a license to misrepresent the mileage or condition of the vehicle.” (Resp. at 7.) In short, Ricci
does not dispute that, at the time of sale, the title was clean, Rohr-Max conducted an inspection,
the Carfax and prior owner information revealed no discrepancy in mileage, and the car was sold
“as is.” (Def. 56.1 St. ¶ 16.).
In spite of his failure, the Court carefully combed the record for statements or exhibits
that might place a material fact in dispute – something the Court was not required to do under the
rule. In support of his motion for summary judgment, Ricci attached invoices from car repair
and oil-change shops and an expert report from an expert who was never disclosed and withdrew
from the case. Ricci also attached a declaration declaring the exhibits to be “true and correct,”
but on summary judgment, the Federal Rules of Civil Procedure “require[] affidavits that cite
specific concrete facts establishing the existence of the truth of the matter asserted.” Drake v.
Minnesota Min. & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (citing Hadley v. County of Du
Page, 715 F.2d 1238, 1243 (7th Cir. 1983)).
Ricci relies on the invoice exhibits for two main points. First, he relies on invoices from
an oil change shop that allegedly serviced the Lincoln prior to Ricci’s purchase and recorded a

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higher mileage on the car than Rohr-Max’s odometer disclosure indicated at purchase. Second,
he relies on invoices from auto-repair shops to show the amount of money he spent on repairs on
the Lincoln. The records constitute hearsay. Hearsay, conclusory opinions, and suspicions are
inadmissible in summary judgment proceedings to the same extent that they are inadmissible at
trial.

Tindle v. Pulte Home Corp., 607 F.3d 494, 497 (7th Cir. 2010).

With the proper

foundation, invoices from auto-shops might be admissible under the business records exception
to the hearsay rule. On summary judgment however, the party offering a document as evidence
under the business records exception must “attach an affidavit sworn to by a person who would
be qualified to introduce the record as evidence at trial, for example, a custodian or anyone
qualified to speak from personal knowledge that the documents were admissible business
records.” Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000); Smith v. City of Chicago,
242 F.3d 737, 741 (7th Cir. 2001) (general rule is business records offered at summary judgment
must be authenticated with an affidavit from a qualified person); United States v. Given, 164
F.3d 389, 394 (7th Cir. 1999) (“A party establishes a foundation for admission of business
records when it demonstrates through the testimony of a qualified witness that the records were
kept in the course of regularly conducted business activity[.]”). The qualified person need not
have prepared the record or have personal knowledge of individual entries on the record, but the
person must possess knowledge of the procedure in which the records were created. Collins v.
D.J. Kibort, 143 F.3d 331, 337–38 (7th Cir. 1998); see also Overton v. City of Harvey, 29 F.
Supp. 2d 894, 902 (N.D. Ill. 1998) (party may not offer document under business records
exception with their own testimony, unless shows that he or she has knowledge about how the
records were created).

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Ricci fails to attach any affidavits from qualified persons. In fact, in Ricci’s Rule
26(a)(1) disclosure and Answers to Interrogatories, he stated that, “[t]he Plaintiff does not intend
to call a live witness. The case presented will be based on written documentation.” (Battista
Aff., Ex. C.)5

And Ricci’s own declaration does not suffice because he has no personal

knowledge of how any of these auto-shops regularly conduct business.6 Even if the Court were
to ignore these hearsay deficiencies, the exhibits do not create a genuine issue of fact.
Regarding the oil-change shop invoices, three months after Ricci bought the Lincoln, he
alleges that he brought the car to a service technician at a Valvoline shop in Wisconsin. (Resp. at
2; Compl. at ¶ 14.) Ricci alleges that the technician explained to Ricci that the Valvoline shop
had previously serviced the Lincoln, and at that time the odometer reading was 187,697 miles.
(Resp. at 2.) According to Ricci, the technician explained to him that this could not be a mistake
because the VIN number is machine-read by a barcode scanner at each oil change, and the
barcode is attached to the driver-side door frame by the vehicle manufacturer. (Id.) Ricci
specifically relies on the October 26, 2013 invoice that states that the “last visit mileage:
187,697, current mileage: 71,943.” (Ex. 19 at 43.) The invoice, Ricci asserts, indicates that the
mileage had been tampered with at some point prior to his purchase of the Lincoln. Both the
unidentified technician’s statements and the invoice constitute hearsay. However, the Court will
not strike the Valvoline exhibit indicating 187,697 miles because, while the invoice cannot be
admitted for the truth of the matter asserted, the invoice may go to the exception of effect on the
listener as Ricci’s motive for filing the lawsuit. See, e.g., Backwater, Inc. v. Penn-Am. Ins. Co.,
448 F.3d 962, 965 (7th Cir. 2006) (citing United States v. Inglese, 282 F.3d 528, 538 (7th
Cir.2002)) (out-of-court statements are not hearsay when offered to show the effect they have on
5

Rohr-Max asserts that the magistrate judge warned Ricci during a status that he would not be able to rely on
hearsay in his response to summary judgment.

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the listener). Even setting aside the issue of hearsay, there is another problem undercutting this
evidence. There are four additional invoices from Valvoline between January 18, 2014 and
March 7, 2015 and during these subsequent visits, Valvoline recorded the “last visit mileage.” In
none of these subsequent visits does Valvoline base the number on the 187,697 Ricci asserts a
Valvoline technician insisted was accurate. Instead, the “last visit mileage” is recorded as
71,9431 on January 18, 2014 (Ex. 20), “last visit mileage” as 76,738 on June 1, 2014 (Ex. 21),
“last visit mileage” as 78,928 on July 26, 2014 (Ex. 22), “last visit mileage” as 89,400 on March
7, 2015. Despite Ricci’s assertion that Valvoline was certain the correct mileage was 187,697 on
October 26, 2013, they did not base their “last visit mileage” on that number. In short, the one
visit appears to be a complete anomaly and is negated by subsequent trips to the same source. It
is further negated by the in-person inspection performed in Ricci’s presence with his former
attorneys.
Next, Ricci attaches nine additional invoices from three different auto-shops located in
Wisconsin, which he asserts serviced the Lincoln over the course of nearly three years.7 He
summarizes these invoices in a chart that he put together, see Exhibit 18: “Maintenance History,”

7

The following invoices were attached to Ricci’s response. Exhibit 8: January 14, 2013 invoice from the Ewald
Auto Group. Invoice lists “A check for smell in and around car, cust had a flat tire put spare on and car started to
smell.” The listed amount to be paid is $154.26. (Resp. at 32.) Exhibit 9: February 26, 2014 invoice from Heiser
Ford Lincoln. The invoice states “page 2” at the top but does not have a page 1. The invoice lists charges for the
replacement of axles. The listed amount to be paid $921.14. (Resp. at 33.) Exhibit 10: February 28, 2014 invoice
from Heiser Ford Lincoln lists charges for the replacement of intermediate shaft and axle bearing. The listed
amount to be paid $105.60. (Resp. at 34.) Exhibit 11: November 22, 2014 invoice from Midas for charges for
“clean[ing] rims & re-mount & balance tires.” The total charge was $110.34. (Resp. at 35.) Exhibit 12: January 15,
2016 invoice from Heiser Ford Lincoln, again stating “page 2,” with no page 1, lists charges for wheel alignment,
replacement of “lr abs sensor.” The listed amount to be paid is $204.29. (Resp. at 36.) Exhibit 13: February 7,
2015 invoice from Heiser Ford Lincoln, lists “Replace left rear abs sensor.” Invoice also includes “mirrors adjust
randomly when shutting off engine, advise uav unable to verify any abnormal condition[.]” The listed amount to be
paid is $127.73. (Resp. at 37.) Exhibit 14: March 7, 2015, invoice from Heiser Ford Lincoln, does not list any
information as to what is being charged, only states a code under “part number” and lists a total of $61.74. (Resp. at
38.) Exhibit 15/16: June 3, 2015, invoice from Goodyear Auto Service Center, lists “Squealing while
driving/sounds like” – no charge; suggest new tires. Charge was for “Disc Brake Hardware Kit.” The listed amount
to be paid is $74.79. (Resp. at 39-40.) Exhibit 17: October 10, 2015 invoice from Midas charging a total $1,008.38
for Ball joints ($320.00 / part) and alignment ($89.99).

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total cost $2,768.77. (Resp. Ex. 18, at 42.) The columns in the chart include “symptom” and
“cause.” Several of the entries list “faulty installations,” as the “cause” of the “symptom”; one of
which explicitly states “Faulty installation by Ewald.” Ewald is one of the auto-shops to which
Ricci brought the Lincoln. By Ricci’s own admission, at least some of these charges are the
result of repair work that occurred while he was in possession of the vehicle, and have nothing to
do with the age or condition of the car at the time he purchased it. Not only are the invoices
hearsay, they lack foundation, and regardless, are irrelevant. Ricci bought a six-year-old car, and
over the course of three years of owning the car and putting thirty thousand miles on it, he spent
a little less than $3,000. This is not an amount that indicates the vehicle was in disrepair such
that Rohr-Max should have known the car had far more miles on it than the odometer indicated.
Finally, Ricci presents an expert report from an individual that he never retained to be his
expert. Expert disclosures and reports were due by August, 12, 2016. Ricci never asked for an
extension on this deadline and never disclosed any expert or report.

In his response to

interrogatories, when Ricci stated that his case would not require witnesses but could be decided
on “documentation,” he further stated that “[p]art of that documentation will include an appraisal
report written by an expert in used vehicle inspections and appraisals.” (Battista Aff., Ex. C.)
But Ricci never actually disclosed an expert witness or, as he refers to throughout his pleadings,
an appraiser. Nevertheless, Ricci attached to his response exhibits from an expert, Phillip J.
Grismer, allegedly retained for his lawsuit.

The Grismer exhibits include: a Statement of

Services and Invoice dated June 10, 2015, for payment of $300.00 (Resp. Ex. 1, at 15); an
appraisal report, with the heading, “P.J.G. Consulting and Appraisal,” (Resp. Ex. 2, at 16-17);
and an “Observation & Opinion Appraisal Report.” (Resp. Ex. 3, at 18-24.) There is also a
perjury statement on the last page, with a signature block, but no signature is present on the

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document. (Resp. at 24.) According to Rohr-Max, Ricci fails to mention “that the appraiser has
withdrawn his agreement to testify in this case for Ricci, as of the date that Plaintiff’s attorney
withdrew his appearance.” (Reply at 4.) There is no direct evidence of when the appraiser
withdrew from the case. However, the failure to disclose anticipated expert testimony is a
sufficient basis to strike the report.
A court may exclude expert testimony for failing to disclose that expert. Keach v. U.S.
Trust Co., 419 F.3d 626, 639 (7th Cir. 2005) (“A party shall not be permitted to use any
information not so disclosed as evidence at a trial.”); Salgado by Salgado v. General Motors
Corp., 150 F.3d 735, 743 (7th Cir. 1998) (excluding expert testimony where reports were
untimely and deficient); Scaggs v. Consol. Rail Corp., 6 F.3d 1290, 1295 (7th Cir. 1993) (it is
well within court’s discretion to sanction party under Rule 37 by barring expert testimony). The
purpose of initial disclosures in Federal Rule of Civil Procedure 26(a)(2) is to “avoid surprise
and prejudice.” Finch v. Ford Motor Co., No. 03 C 4243, 2004 WL 2066917, at *1 (N.D. Ill.
Aug. 27, 2004) (barring witness’ Fed. R. Evid. 702 opinion testimony where not disclosed).
Rule 26(a)(2) requires “a party to disclose to other parties the identity of any person who may be
used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.”
Fed. R. Civ. P. 26(a)(2). The Rule further requires that such disclosure “be made at the times
and in the sequence directed by the court.” Id. at 26(a)(2)(C). It follows then that evidence not
disclosed pursuant to Fed. R. Civ. P. 26(a)(1) must be excluded. Finch, 2004 WL 206697 at *2
(citing Miksis v. Howard, 106 F.3d 754, 760 (7th Cir. 1997) (“Exclusion . . . automatic and
mandatory, unless the party can show that the violation was either harmless or justified); see also
David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (sanction of exclusion mandatory
but court has broad discretion to determine whether justified or harmless); see also Fed. R. Civ.

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P. 37(c) (“A party that without substantial justification fails to disclose information required by
Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence
at a trial . . . or on a motion any witness or information not so disclosed.”). If a party is unable to
retain an expert prior to the close of discovery, or other time dictated by the court, then that party
must request relief from the court. See Mannoia v. Farrow, 476 F.3d 453, 456–57 (7th Cir.
2007) (affirming striking expert affidavit submitted at summary judgement stage where expert
not disclosed).
Aside from his failure to disclose the report, the report lacks any indicia of reliability
because the expert, Grismer, did not sign the report and withdrew from the litigation at the time
that Ricci’s attorneys withdrew. (Reply at 4.) There would be clear prejudice to Rohr-Max if
Ricci were permitted to rely on the unsigned report of an undisclosed witness, particularly
because Rohr-Max never had the opportunity to depose or examine Grismer, or to rebut his
appraisal.
Finally, Ricci attaches a screen shot of online reviews of Rohr-Max. (Resp. Ex. 6, at 27).
The online reviews are inadmissible because they are merely statements made by unknown
individuals to prove the truth of his claims in violation of the rule against hearsay. Fed. R. Evid.
801-2.
Beyond the invoices, expert report, and screenshots, there are a few other exhibits in the
record that do not pose the same admissibility problems. Ricci attaches photographs of the
Lincoln, for which the Court presumes Ricci could lay the proper foundation. Ricci additionally
attaches title documents from the state of Michigan, which taking all inferences in favor of Ricci,
he could admit under the public records exception to the hearsay rule.8 Additionally, Ricci

8

Exhibit 24 is an application for Michigan Vehicle Title for a 2007 Lincoln that lists the seller as Lori Anne DravesReynaert, and the purchase date as April 10, 2013. (Resp. at 48.) The application lists odometer “067821.” Exhibit

12

attaches a 2016 Carfax report that includes a “Mileage Inconsistency” showing 105,297 miles on
September 29, 2009. (Resp. Ex. 38, at 66.) Although the Carfax report poses potential hearsay
problems, the report may fit within the narrow exception to the general rule that a party seeking
admission of the evidence under Rule 803(6) must submit supporting affidavits—when the
opposing party relies on the same document for its accuracy. Thanongsinh, 462 F.3d at 777
(quoting Woods, 234 F.3d at 988). Rohr-Max does not rely on the 2016 Report, but also does not
contest its admissibility and further Rohr-Max’s corporate representative, Mark Battista, attests
that Carfax is a reliable source of data regarding the history of vehicles and mileage reports and
are generally relied on by the public and by the Bob Rohrman Auto Group (Rohr-Max d/b/a Bob
Rohrman Auto Group), in particular. (Battista Aff. ¶¶ 16–17.) The Court, therefore, will
consider these exhibits in its analysis.
II.

The Standard of Review
Summary judgment is proper when “the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue of material fact
exists, the Court must view the evidence and draw all reasonable inferences in favor of the party
opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, (1986); Omnicare
Inc. v. UnitedHealth Group, Inc., 629 F.3d 697, 704 (7th Cir.2011); Bennington v. Caterpillar
Inc., 275 F.3d 654, 658 (7th Cir.2001). When a case comes before the Court on cross-motions for

25 is an application for Michigan Title & Registration Statement of Vehicle Sale on September 19, 2009, that lists
Lori Anne Draves-Reynaert as the purchaser, and the odometer states 61,760. While these records indicate that only
6,000 miles were put on the car over the course of four years, they also confirm the Car Fax reports making it even
more difficult to conceive of how Rohr-Max could have known there was fraud when the equally reasonable
explanation based on all of the records and its inspection of the car indicated, simply, that the car was not driven
much by the previous owner.

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summary judgment, the Court must look to the burden of proof that each party would bear on an
issue at trial and then require that party to go beyond the pleadings and establish through
competent evidence a genuine issue of material fact. See Santella v. Metropolitan Life Ins. Co.,
123 F.3d 456, 461 (7th Cir.1997) (citing Celotex, 477 U.S. at 324).
III.

Discussion

A. Federal Odometer Act
Under the Motor Vehicle Information and Cost Savings Act (“Federal Odometer Act”), a
transferor of a vehicle is required to disclose either the cumulative mileage registered on the
odometer, or that the actual mileage is unknown if the transferor knows that the odometer
reading is different from the actual number of miles the car has traveled. 49 U.S.C. § 32705. A
plaintiff may recover under the Federal Odometer Act if the transferor has failed to disclose the
accurate mileage with the intent to defraud the transferee. 49 U.S.C. § 32710. A transferor
under this section is someone who “transfers ownership of a motor vehicle by sale, gift, or any
means other than by the creation of a security interest, and any person who, as agent, signs an
odometer disclosure statement for the transferor.” 49 C.F.R. § 580.3. Thus, in order to prevail
under the Federal Odometer Act, the plaintiff must show both (1) a violation of the Act’s
odometer disclosure requirements (i.e., the provision of an inaccurate odometer reading), and (2)
an intent to defraud specifically with respect to the odometer disclosure requirements. Diersen v.
Chicago Car Exchange, 110 F.3d 481, 487 (7th Cir.1997) (citing Jones v. Hanley Dawson
Cadillac, 848 F.2d 803, 808 (7th Cir. 1988).) Mere negligence is not enough. Jones, 848 F.2d at
808. A misrepresentation as to other issues, other than mileage, does not establish a violation.
Ioffe v. Sherman Dodge, 414 F.3d 708, 712 (7th Cir. 2005) (“[T]here must be fraudulent intent as
to the decision not to disclose the mileage on the title, not merely as to the decision to withhold

14

the certificate of title for reasons unrelated to the mileage disclosure.”). Importantly, dealers are
permitted to rely on the sworn odometer statement provided by the vehicle’s previous owner at
trade-in. See Diersen, 110 F.3d at 488 (noting, however, that a jury may be persuaded that such
statements are erroneous based on other evidence).
All records before the Court discredit Ricci’s mileage claim except the Valvoline oil
change report that started this litigation and the 2016 CarFax report. Even this report, however,
is discredited by the other Valvoline records submitted.

Further, the Carfax report in 2016

disclaims that it may be subject to possible clerical error, and the oil-change documents raise
issues of reliability because Ricci does not attach an affidavit or disclose any witness who can
testify as to whether the odometer disclosures on the invoices are correct. But, even if the Court
were to allow these reports to raise an issue of fact, Ricci must still show that a reasonable trier
of fact could determine that Rohr-Max possessed the intent to defraud.
The primary issue is whether Rohr-Max’s conduct constitutes intent to defraud. RohrMax is liable if it “knew or suspected” that its mileage disclosure was inaccurate. Diersen, 110
F.3d 488. Rohr-Max had no reason to think the mileage was suspect. They relied on the 2013
Carfax report containing a consistent mileage disclosure to the odometer reading at the time
Ricci purchased the Lincoln. The vehicle was inspected by Rohr-Max after purchase from Car
Max and found in good condition shortly before sale to Ricci. (Battista Aff., ¶ 20.) The vehicle
was inspected again on August 5, 2015, two years after its sale, this time to specifically inspect
the odometer, and no signs of odometer tampering was found, revealing that Ricci had driven
30,000 miles, and the Lincoln was running well. (R. 56 ¶ 14, Battista Aff. Ex. A at 20 and 25.)
All of the exhibits presented by Ricci postdate Ricci’s purchase of the Lincoln and
therefore fail to demonstrate Rohr-Max’s knowledge of the alleged discrepancy at the time of

15

sale. Ricci admits he obtained the invoice from the oil-change shop after purchase, and that he
did not expect Rohr-Max to undergo an “exhaustive search trying to find [records.]” (Resp. at
8.) The 2016 Carfax report is also the first Carfax report indicating a possible discrepancy. The
2016 report, however, is irrelevant to Ricci’s claims because it came out after the date of
purchase and therefore could not have put Rohr-Max on notice or support any intent to defraud.
Also, where the 2016 report states that there is a “Mileage Inconsistency,” on September 13,
2010 of 105,297 miles, in bold and to the right is this disclaimer: “MILEAGE
INCONSISTENCY The mileage reported here conflicts with this vehicle’s odometer history.
Ask a mechanic or the seller to confirm the actual mileage – this entry may just be a clerical
error.” (Resp. Ex. 38, at 68.) The rest of the report shows an escalating mileage pattern: 61,672
(July 6, 2009), 61,760 (9/23/2009); 68, 418 (4/15/2013); 68,441 (7/29/2013). Therefore, the
105,297 mileage that is shown on 9/13/2010 is flagged as a possible clerical error. Aside from
the report flagging the mileage as a possible clerical error, logic also supports this in that the car
would have had to travel nearly 42,000 miles in eleven months. Regardless of logic, the report
was not one that was generated prior to the purchase and therefore could not have given notice to
Rohr-Max. The report that was run prior to the sale indicates no anomaly nor any mileage
inconsistency. Ricci next presents the repair invoices to show the alleged poor condition of the
car as support that Rohr-Max should have had notice of its condition.

In the span of

approximately three years, Ricci managed to drive approximately 30,000 miles and spend a little
less than $ 3,000.00 in repairs.
Ricci cites to case law that explains the requirement of fraudulent intent, but then
provides no analysis beyond the blanket conclusion that, “[t]hrough the facts and the Defendant’s
action, it can be seen that the Defendant did, and continues to, willfully suppress factual

16

information and subsequently cause harm.” (Resp. at 6.) It’s not clear to which action Ricci
refers, and even less clear how Rohr-Max continues to suppress information. Indeed, Rohr-Max
conducted an inspection in front of Ricci and Ricci’s then counsel and that inspection showed
that the alleged tampering did not occur. This led to his counsel withdrawing from the case.
Ricci’s other citations to case law are similarly unpersuasive because they only address his state
law claims and fails to address the federal claims at issue on summary judgment. See Miller v.
William Chevrolet 762 N.E.2d 1 (1st Dist. 2001);9 see also Duran v. Leslie Oldsmobile, 229 Ill.
App.3d 1032 (2d Dist. Ill. App. Ct. 1991).10
Here, not a single fact suggests that Rohr-Max had the requisite intent. See id. at 806
(dealership’s failure to recognize dashboard had been removed, indicating possible odometer
tampering, was not more than mere negligence and therefore insufficient to show intent to
defraud); see also Diersen, 110 F.3d at 488 (“[o]ne could perhaps argue in light of the car’s age,
the [dealership] ought to have conducted further inquiry into the car’s mileage” but mere
negligence is not enough); see also e.g., Patterson v. Dempsey Dodge Chrysler-Jeep, Inc., No.
04 C 4164, 2005 WL 1950393, at *4 (N.D. Ill. Aug. 10, 2005) (dealership was not liable when it
purchased the used car and the original seller did not disclose odometer issues). Without any

9

Not only does the case only analyze state law claims; moreover, the court actually found that the concealment
claim should be dismissed for lack of proof that the dealership failed to disclose known material facts to the buyer.
There was also more clearly a triable issue of fact with regard to the fraud in Miller: the purchaser, not wanting to
buy a car that had been previously used by a rental company, relied on the dealership’s statement that the car had
been “executive driven,” which the purchaser understood to mean that it had only been driven by employees of the
dealership. The dealership knew that Enterprise Rental was the previous owner of the car and never disclosed the
information. Id. at 648.
10
Ricci also cites to a series of cases to suggest that Rohr-Max was reckless, but none of the cases are factually
analogous. He cites to Resolution Trust Corp. v. Franz for a definition of recklessness, but the case is factually
irrelevant and concerns a loan association’s claims against its officers and directors. 999 F. Supp. 1128 (N.D. Ill.
2013). The other citations similarly do not provide any factual support. See Ziarko v. SOO Line Railroad, 161 Ill.2d
267 (1994) (court analyzed Joint Tortfeasor Contribution Act when a truck driver sued railroad company for injuries
sustained in collision); see also Rowe v. Frazer, 227 N.E. 2d 781, 786 (Ill. App. 1967) (court addressed an action
arising from a car accident in which the victim charged the driver with willful and wanton misconduct related to her
driving).

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facts to support intent to defraud, summary judgment is appropriate. See, e.g. Jones, 848 F.2d at
809.
B. Breach of Warranty Claims
Ricci makes two admissions in his Response memorandum: (1) there were no warranties
at the time of sale and (2) he never provided any notice to Rohr-Max of his suspicions of a
mileage discrepancy before filing the lawsuit. For both of these reasons, Rohr-Max’s motion for
summary judgment on the warranty claims is granted.
First, Ricci admits that the bill of sale stated the car was sold “as is.” See Pelc v.
Simmons, 249 Ill. App. 3d 852, 856-57 (1993) (where a vehicle had a sticker stating “sold as is,”
the seller is relieved of implied warranties); see also Basselen v. Gen. Motors Corp., 341 Ill.
App. 3d 278, 289 (2003) (quoting 810 ILCS 5/2-316(3)(a) (West 1996) (“all implied warranties
are excluded by expressions like ‘as is,’ ‘with all faults,’ or other language which in common
understanding calls the buyer’s attention to the exclusion of warranties and makes plain that
there is no implied warranty.”). The contract Bill of Sale and Buyer’s Guide document were
marked as is. (Def.’s SMF at ¶ 5; Battista Aff. ¶ 25.) Battista, as a corporate director of RohrMax, attests pursuant to Rule 803(6) that these documents, the Bill of Sale and Buyer’s Guide,
are “kept in the course of a regularly conducted activity of [the] business.” Fed. R. Evid. 803(6).
In response to the motion for summary judgment, Ricci also does not dispute that no warranties
existed. He only responds to the fact that the bill of sale states he purchases the car “as is” by
making conclusory statements that Rohr-Max made misrepresentations regarding the odometer.
Next, Ricci did not provide any notice of his complaints about the mileage prior to filing
the lawsuit. Section 2–607 of the UCC mandates that a “buyer must within a reasonable time
after he discovers or should have discovered any breach notify the seller of breach or be barred

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from any remedy.” 810 ILCS 5/2–607(3)(a) (West 1994). For purposes of determining adequate
notice under the UCC, courts divide plaintiffs into three categories: (1) merchant buyers; (2)
consumer buyers who did not suffer personal injuries; and (3) consumer buyers who did suffer
personal injuries. Connick v. Suzuki Motor Co., Ltd., et al., 675 N.E.2d 584, 590 (Ill. 1996)
(internal citations omitted.) “Only a consumer plaintiff who suffers a personal injury may satisfy
the section 2–607 notice requirement by filing a complaint stating a breach of warranty action
against the seller.” Id. (citing Goldstein v. G. D. Searle & Co., 378 N.E.2d 1083, 1089 (Ill. App.
Ct. 1978).) “The reason for this distinction is that where the breach has not resulted in personal
injury, the UCC indicates a preference that the breached be cured without a lawsuit.” Id. at 5901. Ricci does not allege any personal injuries, therefore the filing of his lawsuit alone does not
constitute sufficient notice. See, e.g., id. at 589 (holding that the plaintiffs did not allege any
personal injuries, so the Section 2-607 notice requirement was not met by filing a breach of
warranty complaint).
Ricci admits that he did nothing else to notify Rohr-Max at all prior to filing, and
therefore Rohr-Max did not have the opportunity to cure and Ricci’s warranty claims fail. See,
e.g., Reyes v. Mcdonald's Corp., No. 06 C 1604, 2006 WL 3253579, at *3 (N.D. Ill. Nov. 8,
2006) (quoting Connick, 675 N.E.2d at 590) (“The notice requirement of § 2-607 ‘is satisfied
only where the manufacturer is somehow apprised of the trouble with the particular product
purchased by a particular buyer.’”)
C. Supplemental Jurisdiction over Counts II and III
Rohr-Max asserts that if the federal odometer claim is dismissed and the warranty claims
are dismissed, then the Court should not retain jurisdiction over the pending state law claims.11

11

And, even if the Court were to only dismiss the federal odometer claim, as Rohr-Max points out, the Court would
no longer have jurisdiction over the remaining claims because the Court does not have jurisdiction over the warranty

19

The Seventh Circuit admonishes that normally when all federal claims fall out before trial, the
district court should relinquish its pendent jurisdiction. See Groce v. Eli Lilly & Co., 193 F.3d
496, 501 (7th Cir. 1999) (“it is the well-established law of this circuit that the usual practice is to
dismiss without prejudice state supplemental claims whenever all federal claims have been
dismissed prior to trial”); see also Miller v. Herman, 600 F.3d 726, 738 (7th Cir. 2010) (noting in
a case with federal jurisdiction under Magnuson–Moss, that normally district courts should
relinquish jurisdiction over pendent state-law claims when all federal claims are dismissed before
trial.). Because the Court grants summary judgment against the Plaintiff on the federal odometer
claims and the warranty claims, the Court declines to exercise jurisdiction over the state law
claims.
CONCLUSION
For the foregoing reasons, Defendant, Rohr-Max, Inc.’s Motion for Summary Judgment
is granted on Counts I, IV and V.

The Court declines to exercise jurisdiction over the state law

claims.

________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: 3/31/2017

claims under the Magnusson-Moss Warranty Act. The Magnusson-Moss Warranty Act requires that Plaintiff plead
an amount in controversy in excess of $50,000. 15 U.S.C. §§ 2301-12. Under the applicable law in this Circuit, the
formula for calculating the amount in controversy is the replacement cost minus the value of the used car minus the
use value obtained from the allegedly defective car. Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 406-406 (7th
Cir.2004); Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 957 (7th Cir.1998). Ricci’s warranty claims do
not provide federal question or federal law jurisdiction as this vehicle was priced below $50,000, which is the
damages required for federal Magnuson Moss Warranty Act jurisdiction, so if the federal odometer claim is
dismissed, the Court no longer has jurisdiction. The Lincoln MKX was sold for $18,000.

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