Schiesser v. Ford Motor Company

Filing 56

OPINION AND ORDER: Signed by the Honorable Sara L. Ellis on 4/6/2017: For the reasons stated in the Opinion and Order entered this day, the Court grants Ford's motion to dismiss the second amended complaint #47 . The Court dismisses the second amended complaint with prejudice and terminates this case. Civil case terminated. Mailed notice(lxs, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID SCHIESSER, on behalf of himself and )
all others similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
FORD MOTOR COMPANY,
)
)
Defendant.
)

No. 16 C 730
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff David Schiesser brings this putative class action against Defendant Ford Motor
Company (“Ford”), alleging that certain Ford vehicles have a defect that allows harmful exhaust
gases to enter the passenger compartment of the vehicles. The Court previously dismissed
Schiesser’s first amended complaint. Doc. 44. In his second amended complaint (“SAC”),
Schiesser brings claims for breach of express warranty, common law fraud, and violation of the
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., the Illinois Uniform Deceptive Trade
Practices Act (“UDTPA”), 815 Ill. Comp. Stat. 510/1 et seq., and the Illinois Consumer Fraud
and Deceptive Business Practices Act (“ICFA”), 815 Ill. Comp. Stat. 505/1 et seq. Ford moves
to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). Because the Court
agrees with Ford that Schiesser has failed to correct the deficiencies identified by the Court in
dismissing the first amended complaint and that preemption and comity concerns prevent the
Court from adjudicating Schiesser’s UDTPA claim, the Court dismisses the SAC with prejudice.

BACKGROUND 1
Ford represents that its vehicles are “best-in-class” that “lead in quality, fuel efficiency,
safety, smart design and value.” Doc. 46 ¶ 56 (quoting Ford’s 2011 Annual Report). But despite
this general representation, its Ford Explorer vehicles have experienced exhaust odor issues
stemming from an alleged design defect that causes carbon monoxide to enter the passenger
compartment of the vehicle. In December 2012, Ford began issuing Technical Service Bulletins
(“TSBs”) acknowledging exhaust odor in the cabins of some Ford Explorer models (the
“Defect”). 2 The TSBs describe the issue as merely an “unpleasant odor,” when, in reality, the
exhaust seeping into the cabin contains carbon monoxide. Id. ¶ 10. The TSBs include
instructions on correcting the exhaust odor, although the proposed fixes do not effectively
remedy the Defect. Ford provided the TSBs to authorized dealerships, but not to non-Ford
automotive repair facilities. Ford also did not disclose these TSBs to its customers.
Ford learned of the Defect before issuing the December 2012 TSB from Ford customers
posting about the problem in online discussion forums. In response to customer complaints on
such online forums, for example, in July 2011, an “Official Ford Rep” offered to help customers
by escalating their problems concerning exhaust odors and arranging for Ford representatives to
contact the customers. Id. ¶¶ 24–27. Ford also responded to customer complaints by letter in
March 2014, noting that it had “performed several inspections and sealing actions . . . to help
1

The facts in the background section are taken from the SAC and exhibits attached thereto and are
presumed true for the purpose of resolving Ford’s motion to dismiss. See Virnich v. Vorwald, 664 F.3d
206, 212 (7th Cir. 2011); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779,
782 (7th Cir. 2007). A court normally cannot consider extrinsic evidence without converting a motion to
dismiss into one for summary judgment. Hecker v. Deere & Co., 556 F.3d 575, 582–83 (7th Cir. 2009).
Where a document is referenced in the complaint and central to Schiesser’s claims, however, the Court
may consider it in ruling on the motion to dismiss. Id.

2

The Defect affects 2011 to 2015 Ford Explorers. Although it also affects 2011 to 2013 Ford Edge and
Lincoln MKX vehicles with 3.5L and 3.7L TIVCT engines, those vehicles are not included in Schiesser’s
suit.

2

minimize the amount of odor coming into the passenger compartment” but that the customer
“may still experience odor under certain driving conditions such as, when performing wide open
throttle (WOT) accelerations with the climate control system in recirculation mode.” Id. ¶ 32.
Schiesser purchased a model year 2013 Ford Explorer (the “Vehicle”) in June 2012 from
Joe Rizza Ford in Orland Park, Illinois. He purchased the Vehicle based on Ford’s reputation
and believing the Vehicle to be safe. The Vehicle came with a warranty, Ford’s New Vehicle
Limited Warranty (the “Warranty”), limited to three years from the date of purchase or 36,000
miles. The Warranty promises that, while under the applicable coverage period, an authorized
Ford dealership would, without charge, repair, replace, or adjust all parts on a vehicle affected by
factory defects.
In August or September 2015, Schiesser began noticing exhaust odor accumulating in the
passenger cabin of his Vehicle. In October 2015, Schiesser brought his Vehicle to the dealership
to service the problem. After being contacted by Schiesser’s dealership, Ford allegedly proposed
two repairs costing between $800 and $900 but could not guarantee that either repair would fix
the problem. Schiesser decided not to incur the cost of repair because neither solution was
guaranteed to solve the problem.
The National Highway Transportation Safety Administration (“NHTSA”) began
investigating the exhaust leak issue in July 2016. Additionally, a federal district court in Florida
has preliminarily approved a nationwide settlement addressing the same issues raised in this
case, which provides that Ford will issue a new TSB to address the exhaust odor issue. See
Sanchez-Knutson v. Ford Motor Co., No. 14-61344-CIV, Doc. 434 (S.D. Fla. Nov. 18, 2016).

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LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all wellpleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007). “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.” Iqbal, 556 U.S. at 678.
Rule 9(b) requires a party alleging fraud to “state with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b). This “ordinarily requires describing the ‘who, what,
when, where, and how’ of the fraud, although the exact level of particularity that is required will
necessarily differ based on the facts of the case.” AnchorBank, 649 F.3d at 615 (citation
omitted). Rule 9(b) applies to “all averments of fraud, not claims of fraud.” Borsellino v.
Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007). “A claim that ‘sounds in fraud’—
in other words, one that is premised upon a course of fraudulent conduct—can implicate Rule
9(b)’s heightened pleading requirements.” Id.

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ANALYSIS
I.

Breach of Express Warranty Claim (Count I)
To state a claim for breach of express warranty, Schiesser “must allege the terms of the

warranty, the failure of some warranted part, a demand upon the defendant to perform under the
warranty’s terms, a failure by the defendant to do so, compliance with the terms of the warranty
by the plaintiff, and damages measured by the terms of the warranty.” In re Rust-Oleum Restore
Mktg., Sales Practices & Prods. Liab. Litig., 155 F. Supp. 3d 772, 787 (N.D. Ill. 2016) (citations
omitted) (internal quotation marks omitted); Darne v. Ford Motor Co., No. 13 C 03594, 2015
WL 9259455, at *4–5 (N.D. Ill. Dec. 18, 2015). Schiesser acknowledges that he brought his
Vehicle to the dealership for repairs in October 2015, after the Warranty expired, meaning that
he must sufficiently allege that the Warranty’s time and mileage limitations are unconscionable
for the claim to proceed.
A court can invalidate a contract for either procedural or substantive unconscionability.
ChampionsWorld, LLC v. U.S. Soccer Fed’n, Inc., 890 F. Supp. 2d 912, 943 (N.D. Ill. 2012); see
Snyder v. Komfort Corp., No. 07 C 1335, 2008 WL 2952300, at *4 (N.D. Ill. July 30, 2008) (a
written warranty is a contract, and courts interpret contracts according to their plain meaning
under Illinois law). “Procedural unconscionability refers to both a situation where a term is so
difficult for a plaintiff to find or understand that he cannot have been aware he was agreeing to it
and also to a plaintiff’s lack of bargaining power or lack of meaningful choice.” Darne, 2015
WL 9259455, at *7. Substantive unconscionability refers to contract terms which are
“inordinately one-sided in one party’s favor.” Id. (quoting Razor v. Hyundai Motor Am., 854
N.E.2d 607, 622, 222 Ill. 2d 75, 305 Ill. Dec. 15 (2006)). Unconscionability may be shown by
“acts of bad faith such as concealments, misrepresentations, [or] undue influence.” Singer v.

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Sunbeam Prods., Inc., No. 15 C 1783, 2016 WL 1697777, at *4 (N.D. Ill. Apr. 28, 2016)
(alteration in original) (quoting Levey v. CitiMortgage, Inc., No. 07 C 2678, 2009 WL 2475222,
at *4 (N.D. Ill. Aug. 10, 2009)); see also Original Great Am. Chocolate Chip Cookie Co. v.
River Valley Cookies, Ltd., 970 F.2d 273, 281 (7th Cir. 1992) (describing unconscionability as
being “closely allied” to the doctrines of fraud and duress).
Illinois courts enforce durational limitations in express warranties. See, e.g., Evitts v.
DaimlerChrysler Motors Corp., 834 N.E.2d 942, 950, 359 Ill. App. 3d 504, 296 Ill. Dec. 137
(2005). But, as he did with respect to his first amended complaint, Schiesser argues that the
Court should find the Warranty in this case unconscionable because Ford knew of the Defect at
the time of sale, making any limitation on the warranty unconscionable. At most, Schiesser
alleges that, before he bought his Vehicle in June 2012, Ford knew of a number of online
complaints of an exhaust odor, with further knowledge accumulating after Schiesser purchased
the Vehicle. But the SAC contains no allegations that Ford knew that carbon monoxide was
entering vehicle compartments at the time Schiesser purchased his Vehicle. As the Court
previously found, the SAC does not allow the inference that Ford knew of the Defect at the time
of sale so as to make the Warranty’s limitations unconscionable. See Doc. 44 at 6–8
(acknowledging Schiesser’s argument that the Warranty was unconscionable because Ford knew
of the Defect based on consumer complaint as of 2011 but finding these allegations insufficient);
cf. Stavropoulos v. Hewlett-Packard Co., No. 13 C 5084, 2014 WL 2609431, at *3 (N.D. Ill.
June 9, 2014) (finding plaintiff had sufficiently alleged time limitation on warranty was
unconscionable where complaint included allegations that fax machine plaintiff purchased was
successor of a model that had been the subject of a recall and used many of the same
components). Further, although Schiesser now alleges that the fact that his Vehicle came with a

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factory warranty was important to him in purchasing the Vehicle, this conclusory allegation says
nothing concerning Schiesser’s knowledge of the terms of the Warranty or the reasons why the
durational limitation should be considered too short to discover the Defect. See Darne, 2015 WL
9259455, at *8 (finding plaintiffs had not adequately alleged “that the time period or mile
duration was unreasonably short”). The Warranty promises to repair, replace, or adjust all parts
on a vehicle that are affected by factory defects for the duration of the Warranty, acknowledging
the possibility of latent defects. See Doc. 48-1 at 15 (“This warranty does not mean that each
Ford vehicle is defect free. Defects may be unintentionally introduced into vehicles during the
design and manufacturing processes and such defects could result in the need for repairs. For
this reason, Ford provides the New Vehicle Limited Warranty in order to remedy any such
defects that result in vehicle part malfunction or failure during the warranty period.”). As in
Darne, “the warranty plainly doesn’t guarantee an engine that is free of defects . . . . That is the
reason for a warranty: to repair any problem that such defects might cause during the warranty
period.” Id. at *5. Without more, Schiesser has not alleged that the Warranty was substantively
unconscionable.
Schiesser also argues that Ford presented the Warranty on a “take it or leave it” basis,
making it procedurally unconscionable. The Warranty itself indicates that Schiesser could have
opted for an extended warranty, defeating Schiesser’s claim that he had no meaningful choice
when purchasing the Vehicle. See Doc. 48-1 at 33 (providing information about Ford’s extended
service plan); Darne, 2015 WL 9259455 at *8 (“If the plaintiffs wanted additional coverage
beyond the ‘shorter period’ of the warranty, they had the option to purchase an extended
warranty; this provided the meaningful choice that is unavailable in a procedurally

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unconscionable contract.”). Consequently, Schiesser has not alleged that the Warranty was
procedurally unconscionable.
Accordingly, the SAC does not sufficiently allege that the Warranty was procedurally or
substantively unconscionable. And because Schiesser did not seek to have a problem repaired
within the time period or mileage limitation stated in the Warranty, the Court dismisses his
breach of express warranty claim.
II.

Magnuson-Moss Warranty Act Claim (Count II)
Ford also argues that the Court should dismiss Schiesser’s claim under the Magnuson-

Moss Warranty Act, 15 U.S.C. § 2301, because Schiesser has not sufficiently alleged a breach of
express warranty claim under Illinois law. The Magnuson-Moss Warranty Act creates a federal
cause of action for breach of written and implied warranties under state law. See 15 U.S.C.
§ 2310(d)(1). A claim under the Magnuson-Moss Warranty Act depends on the existence of a
viable underlying state law warranty claim. See In re Gen. Motors Corp. Dex-Cool Prods. Liab.
Litig., 241 F.R.D. 305, 315 (S.D. Ill. 2007) (“Although Plaintiffs bring this action pursuant not to
state law but the Magnuson-Moss Act, state law nonetheless dominates this case due to the
peculiar nature of the federal statute, which in numerous respects is essentially a vehicle for
vindicating state-law warranty claims in federal court.”). Here, because Schiesser’s state law
warranty claim fails, he also cannot make out a claim under the Magnuson-Moss Warranty Act.
III.

UDTPA Claim (Count III)
The UDTPA provides that a “person engages in a deceptive trade practice when, in the

course of his or her business, vocation, or occupation,” among other things, the person represents
that goods or services have characteristics they do not have or are of a particular standard,
quality, or grade when they are of another, or the person engages in any other conduct that

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creates a likelihood of confusion or misunderstanding. 815 Ill. Comp. Stat. 510/2. Ford argues
that the Court should dismiss the UDTPA claim because federal law preempts Schiesser’s
requested injunctive relief, Schiesser has not alleged facts showing that he will be damaged in
the future, and Schiesser’s requested relief violates the principles of judicial comity.
In the SAC, Schiesser requests injunctive relief in the form of requiring Ford to “develop
a fix to the dangerous Defect, and develop a common fund to provide that fix to Plaintiff and all
Class Members.” Doc. 46 ¶ 161. Ford argues that the National Highway Traffic and Motor
Vehicle Safety Act (the “Safety Act”), 49 U.S.C. § 30101 et seq., preempts this requested relief.
Whether a federal law preempts a state law based action is a question of law. Moran v. Rush
Prudential HMO, Inc., 230 F.3d 959, 966 (7th Cir.2000). Preemption occurs when federal law
expressly manifests a purpose to override state powers, when there is “field preemption, which
arises when the federal regulatory scheme is so pervasive or the federal interest so dominant that
it may be inferred that Congress intended to occupy the entire legislative field,” and when there
is “conflict preemption, which arises when state law conflicts with federal law to the extent that
compliance with both federal and state regulations is a physical impossibility, or the state law
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress.” Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1046, 1049 (7th Cir. 2013)
(quoting Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d
962, 984 (7th Cir. 2012)).
“A nationwide court-ordered recall would conflict directly with and frustrate the Safety
Act.” Lilly v. Ford Motor Co., No. 00 C 7372, 2002 WL 84603, at *5 (N.D. Ill. Jan. 22, 2002).
“The problem is that a state law can be preempted if it interferes with the actual goal of a federal
statute or if it interferes with the methods by which the federal statute set to achieve the federal

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goal, and a court-supervised recall would run roughshod over the recall procedures put forth in
the Motor Vehicle Safety Act for an agency-coordinated recall.” Flynn v. FCA US LLC, No. 15CV-0855-MJR-DGW, 2016 WL 5341749, at *5 (S.D. Ill. Sept. 23, 2016) (citations omitted).
While the Safety Act does not expressly state that only the Secretary of Transportation may order
a motor vehicle recall, “the comprehensive nature of the federal administrative scheme” indicates
Congress’ intent that only the Secretary of Transportation do so. Lilly, 2002 WL 84603, at *5
(quoting In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 153 F. Supp. 2d 935, 944
(S.D. Ind. 2001)).
Although Schiesser does not characterize his requested relief in so many words, he
clearly seeks a recall. Schiesser asks the Court to “[r]equire Ford to develop a fix to address the
Defect, and create a fund to allow Class Members to get the repair free of charge and as part of
the warranties provided when purchasing or leasing the Vehicles.” Doc. 46 at 48. Schiesser also
asks the Court to “[d]etermine that Ford’s conduct as alleged herein, including for example in
concealing the existence of the exhaust leak defect, and in communicating in Technical Service
Bulletins, public statements or otherwise, that there is either no exhaust leak defect or that the
defect is limited to an unpleasant odor, is unlawful, unfair, and/or deceptive and otherwise in
violation of law, and enjoin such future conduct by Ford.” Id.
As discussed in In re Bridgestone, these requests are part of the Safety Act’s
comprehensive federal administrative scheme:
In 49 U.S.C. § 30119, Congress detailed the notification procedure
if and when the Secretary of Transportation (“Secretary”)
determines that a particular vehicle model or its equipment
contains a defect or does not comply with other safety standards.
See also 49 U.S.C. § 30118(b)(2)(A). Among such notification
duties to the customer imposed on the manufacturer are “a clear
description of the defect or noncompliance,” “the measures to be
taken to obtain a remedy of the defect or noncompliance,” and “the
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earliest date on which the defect or noncompliance will be
remedied without charge.” 49 U.S.C. § 30119(a). The
manufacturer must send notification about a vehicle problem “by
first class mail to each person registered under State law as the
owner and whose name and address are reasonably ascertainable
by the manufacturer through State records or other available
sources.” 49 U.S.C. § 30119(d)(1)(A). Details even are included
as to how the dealer to whom a motor vehicle or replacement
equipment was delivered shall receive notice from the
manufacturer. 49 U.S.C. § 30119(d)(4). Similar instructions
specify how to remedy defects and noncompliance, even decreeing
that “[a] manufacturer shall pay fair reimbursement to a dealer
providing a remedy without charge under this section.” 49 U.S.C.
§ 30120(f).
In re Bridgestone, 153 F. Supp. 2d at 944–45. This squarely addresses Schiesser’s requested
relief, meaning that the Safety Act preempts Schiesser’s UDTPA claim.
Even if the Court did not find Schiesser’s claim preempted, the Court would find it
appropriate to dismiss this claim based on principles of judicial comity and efficiency. Ford has
entered into a nationwide settlement addressing the exhaust odor issues challenged in this suit, a
settlement that a court in the Southern District of Florida has preliminarily approved. See
Sanchez-Knutson v. Ford Motor Co., No. 14-61344-CIV, Doc. 434 (S.D. Fla. Nov. 18, 2016).
Schiesser, in pursuing his claims here, argues that the proposed remedy in Sanchez-Knutson is
unsatisfactory and seeks essentially to undo that settlement in favor of proposals he would set
forth in this case. But these attempts, particularly with respect to Schiesser’s requests for
injunctive relief under the UDTPA, run contrary to well-established principles of judicial comity
and efficiency. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817,
96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976) (“As between federal district courts . . . the general
principle is to avoid duplicative litigation.”). “The concern manifestly is to avoid the waste of
duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid
piecemeal resolution of issues that call for a uniform result.” W. Gulf Mar. Ass’n v. ILA Deep
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Sea Local 24, S. Atl. & Gulf Coast Dist. of ILA, AFL-CIO, 751 F.2d 721, 729 (5th Cir. 1985)
(emphasis added). The Court thus also finds dismissal of the UDTPA claims appropriate so as to
avoid interference with the negotiated settlement of the similar deceptive trade practices claims
asserted in Sanchez-Knutson.
IV.

ICFA Claim (Count IV)
To state an ICFA claim, Schiesser must allege (1) a deceptive or unfair act or practice by

Ford, (2) Ford’s intent that Schiesser rely on the deceptive or unfair practice, (3) the deceptive or
unfair practice occurred in the course of conduct involving trade or commerce, and (4) Ford’s
deceptive or unfair practice caused Schiesser actual damage. Wigod v. Wells Fargo Bank, N.A.,
673 F.3d 547, 574 (7th Cir. 2012); Kim v. Carter’s Inc., 598 F.3d 362, 365 (7th Cir. 2010).
Although Rule 9(b) does not apply to an unfair practices claim under ICFA, Schiesser’s ICFA
claim is premised on Ford’s alleged concealment of a known defect and thus is appropriately
interpreted as a deceptive practices claim that must meet Rule 9(b)’s heightened pleading
standard. See Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th Cir. 2014)
(addition of “unfairness” language did not change ICFA claim “entirely grounded in fraud” to
unfairness claim); Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631
F.3d 436, 446–47 (7th Cir. 2011) (finding pleading was premised on intentional concealment and
therefore appropriately interpreted as deceptive practices claim subject to Rule 9(b), not unfair
practices claim subject to Rule 8).
Ford argues Schiesser has not sufficiently identified any communication by Ford, let
alone one that omitted disclosure of the Defect, that induced Schiesser to purchase his Vehicle.
The Illinois Supreme Court has clarified that:
[T]o maintain an action under [the ICFA], the plaintiff must
actually be deceived by a statement or omission that is made by the
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defendant. If a consumer has neither seen nor heard any such
statement, then she cannot have relied on the statement and,
consequently, cannot prove proximate cause. . . . A consumer
cannot maintain an action under the Illinois Consumer Fraud Act
when the plaintiff does not receive, directly or indirectly,
communication or advertising from the defendant.
De Bouse v. Bayer AG, 922 N.E.2d 309, 316, 235 Ill. 2d 544, 337 Ill. Dec. 186 (2009).
Schiesser cites to several communications made by Ford: the TSBs issued by Ford, letters
to customers, materials on a website, and allegations in other lawsuits. Schiesser also alleges
that Ford purposefully omitted mention of the Defect in its communications to customers.
Schiesser generally alleges that he purchased the Vehicle “based on Ford’s reputation and in the
belief that the Explorer was a safe vehicle.” Doc. 46 ¶ 55. But Schiesser does not allege that he
saw or heard any of the allegedly deceptive communications prior to purchasing the Vehicle.
Without a plausible link tying the communications to Schiesser’s purchase of the Vehicle, these
communications cannot serve as the predicate for his ICFA claim. See De Bouse, 922 N.E.2d at
316 (requiring that plaintiff claiming an omission-based deception point to the communication in
which the omission occurred to state a viable ICFA claim); Darne, 2015 WL 9259455, at *9
(plaintiff did not plausibly allege seeing any alleged misstatement or actually being deceived by
the statement so as to establish actual deception as required for ICFA claim); cf. Stavropoulos v.
Hewlett-Packard Co., No. 13 C 5084, 2014 WL 7190809, at *2 (N.D. Ill. Dec. 17, 2014) (finding
that plaintiff sufficiently alleged deceptive practices claim where he indicated he viewed the
packaging of the fax machine that should have included a fire hazard warning). Thus, the Court
dismisses Schiesser’s ICFA claim.
V.

Common Law Fraud Claim (Count V)
Ford similarly argues that the Court should dismiss Schiesser’s common law fraud claim

because Schiesser has not met Rule 9(b)’s particularity requirements. To sustain a common law
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fraud claim, Schiesser must plead facts demonstrating that “(1) defendant made a false statement;
(2) of material fact; (3) which defendant knew or believed to be false; (4) with the intent to
induce plaintiff to act; (5) the plaintiff justifiably relied on the statement; and (6) the plaintiff
suffered damage from such reliance.” Houben v. Telular Corp., 231 F.3d 1066, 1074 (7th Cir.
2000). Rule 9(b) requires a party alleging fraud to “state with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b). As with his ICFA claim, Schiesser has not pointed to a
specific communication or advertisement containing a misrepresentation upon which he relied
when purchasing his Vehicle. Therefore, the Court dismisses Schiesser’s fraud claim.
VI.

Dismissal With Prejudice
Given the fact that Schiesser was previously allowed to cure the deficiencies identified by

the Court and failed to do so, the Court dismisses Schiesser’s second amended complaint with
prejudice. See Camasta, 761 F.3d at 734–35 (affirming dismissal with prejudice of first
amended complaint after initial complaint was dismissed without prejudice); Pirelli Armstrong
Tire Corp., Retiree Med. Benefits Tr. v. Walgreen Co., No. 09 C 2046, 2010 WL 624709, at *1
(N.D. Ill. Feb. 18, 2010) (dismissing amended complaint with prejudice after previous dismissal
of ICFA and unjust enrichment claims without prejudice), aff’d, 631 F.3d 436 (7th Cir. 2011).
CONCLUSION
For the foregoing reasons, the Court grants Ford’s motion to dismiss the second amended
complaint [47]. The Court dismisses the second amended complaint with prejudice and
terminates this case.

Dated: April 6, 2017

______________________
SARA L. ELLIS
United States District Judge
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