Laurens v. Volvo Cars of North America, LLC et al
Filing
43
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/13/2016:Civil case terminated.Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF ILLINOIS
EASTERN DIVISION
XAVIER LAURENS and KHADIJA
LAURENS, Individually and on
Behalf of All Others
Similarly Situated,
Plaintiffs,
Case No. 16 C 4507
v.
Judge Harry D. Leinenweber
VOLVO CARS OF NORTH
AMERICA, LLC, a Delaware
Limited Liability
Corporation and VOLVO CAR
USA, LLC, a Delaware Limited
Liability Corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
I.
According
Defendant,
to
Volvo
the
Car
STATEMENT
Plaintiffs’
USA,
LLC
Amended
(“VCUSA”),
Complaint,
is
an
the
authorized
importer and distributor of Volvo vehicles in the United States.
The
Defendant,
provides
Volvo
marketing,
Cars
sales,
of
North
America,
distribution,
parts
LLC
(“VCNA”),
service,
and
training support for Volvo cars sold in the United States.
In
February
2015,
Plaintiff,
Xavier
Laurens
(“Xavier”),
placed an order for a 2016 Volvo XC90 T8 (the “T8”) with the
Howard Orloff Volvo dealership in Chicago, Illinois.
The T8 was
a twin engine plug-in hybrid sport utility vehicle which was
capable of running solely on electricity.
deposit at that time.
He paid a $1,000
Plaintiffs took delivery on January 10,
2016, at which time they paid the balance due on the $83,475
purchase
price.
The
T8
was
titled
in
the
name
of
Khadija
Laurens (“Khadija”), Xavier’s wife.
According to advertisements and press releases issued by
Defendants, which Plaintiffs had read, the Volvo was said to be
capable
of
being
driven
“around
40
kilometres”
on
a
full
electric charge, which translates to range of approximately 25
miles
solely
consideration
on
in
electricity.
Plaintiffs’
This
purchasing
was
an
important
decision.
However,
after the Plaintiffs took possession of the T8 and began to
drive it, they discovered that they were only able drive the car
for 8 to 10 miles on a full electric charge.
Xavier took the T8
back to Howard Orloff who pointed out that the window sticker on
the car promised 13 miles on a full charge and not 25 miles.
Howard Orloff tested the car and was able to obtain 14 to 18
miles on a full charge, but only by driving no more than 40 mph
and without heat and safety features.
Plaintiffs contend that
they would not have paid a premium of $20,000 (the difference
between the cost of the T8 and the cost of the fully gas powered
model) had they known of the short electric driving distance.
Plaintiffs
allege
difference to them.
that
VCUSA
refuses
to
refund
the
price
Instead on June 8, 2016, prior to Khadija
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being added as an additional plaintiff by the Amended Complaint
(Xavier had originally filed suit against Defendants only in his
name as plaintiff), VCUSA made what it described as “a voluntary
customer
accommodation”
which
consisted
of
offering
a
full
refund of the purchase price upon the return of the T8.
The
offer was unconditional and did not require the dismissal of the
case against it, nor to sign a release, or perform any act other
than to return the vehicle (which VCUSA offered to do).
The
Plaintiffs rejected this offer.
II.
Plaintiffs’
Amended
THE LITIGATION
Complaint
sets
forth
four
counts:
Count I, Violation of the Illinois Consumer Fraud Act; Count II,
Common Law Fraud; Count III, Breach of Express Warranty; and
Count IV, Unjust Enrichment (as an alternative to Count III).
They also seek to represent a national class of buyers of the T8
on Counts II, III, and IV, and a “multi-state class” on Count I.
Defendants
have
moved
to
dismiss
the
Complaint
under
Rule 12(b)(1) for lack of jurisdiction due to lack of standing
to
pursue
their
claims,
and
pursuant
to
Rule
12(b)(6)
for
failure to state a claim upon which relief could be granted.
Because the Court finds that neither Plaintiff has standing
to bring this suit, the Court does not get to the question posed
by
Rule
12(b)(6).
The
basis
for
Defendants’
Rule
12(b)(1)
Motion is Defendants’ contention that the unconditional pre-suit
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offer of a complete refund of the purchase price moots the case
and therefore prevents the Court from exercising jurisdiction
because there is no harm or injury to be redressed.
III.
To
have
demonstrate
DISCUSSION
constitutional
(1)
an
injury
in
standing,
fact,
(2)
a
a
plaintiff
causal
must
connection
between the injury and the conduct complained of, and (3) a
likelihood
that
decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992).
the
injury
will
be
redressed
by
a
favorable
The Defendants correctly rely on Holstein v. City of
Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994) in support of their
Rule 12(b)(1) motion.
In Holstein, a co-plaintiff, Grove, had
his legally parked car towed while attending a Chicago White Sox
baseball game.
Grove joined the suit as a co-plaintiff and as a
putative
representative.
class
After
joining
the
suit,
but
prior to a determination of the issues of class representation,
the City acknowledged that plaintiff was correct in his position
and took steps to refund his money.
The trial court granted the
motion
of
to
dismiss
on
the
grounds
mootness.
The
Seventh
Circuit affirmed stating that “Grove may not spurn this offer of
all the damages he is owed and proceed to trial.”
See also,
Alliance to End Repression v. City of Chicago, 820 F.2d 873, 878
(7th Cir. 1987) and Rand v. Monsanto Co., 926 F.2d 596, 598 (7th
Cir.
1991)
(“Once
the
defendant
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offers
to
satisfy
the
plaintiff’s entire demand, there is no dispute over which to
litigate, and a plaintiff who refuses to acknowledge this loses
outright,
under
FED. R. CIV. P.
12(b)(1),
because
he
has
no
remaining stake.”
Here,
Plaintiffs
contend
that
what
Defendants
offered
amounts to a rescission which they specifically do not request
in their Amended Complaint.
Instead they ask for the difference
between the cost of the T8 and the non-hybrid Volvo, which is
$20,000.
However, the acceptance of a full refund would allow
Plaintiffs
difference
difference.
original
to
purchase
left
which
non-hybrid
amounts
to
and
have
distinction
the
$20,000
without
a
In fact, as Defendants further point out, in the
Complaint
rescission.
the
brought
by
Xavier
only,
he
did
ask
for
For some reason, after it was pointed out in a
previous motion that the actual purchaser of the T8 was Khadija
and
not
Xavier,
the
Plaintiffs
amended
the
Complaint
adding
Khadija as additional plaintiff and deleting the request for
rescission
difference.
and
instead
requested
payment
of
the
$20,000
However, just because VCUSA offered what Plaintiffs
were requesting in a slightly different form, does not eliminate
the mootness of their claim.
The rule of mootness is different after a class has been
certified
and
representative.
a
plaintiff
has
been
appointed
class
Refusal of an offer of complete relief does not
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moot the case.
This prevents a defendant, during the course of
the proceedings, buying off a representative who is actively
representing
the
class.
Deposit
Roper, 445 U.S. 326 (1980).
Khadija
was
not
even
a
Guaranty
National
Bank
v.
Here no such concerns are present.
party
to
unconditional offer was made to her.
the
suit
at
the
time
the
Xavier, the sole Plaintiff
at the time, had not been certified as a class representative,
nor had any such motion even been filed.
even hold title to the T8.
In fact, he did not
As stated in the Alliance to End
Repression, “[D]efendants, like the courts, have an interest in
peace; once there is no more dispute, there is no case.
Both
the parties and the court may save the costs of litigation.”
Alliance, 820 F.3d 878.
Plaintiffs
injunction
to
also
argue
restrain
that
they
Defendants
from
are
requesting
continuing
false, misleading information regarding the T8.
to
an
issue
However, the
Plaintiffs are certainly not in danger of once again being duped
by Volvo.
As
the
There is no need for an injunction to protect them.
Seventh
Circuit
held
in
Camasta
v.
Jos.
A.
Bank
Clothiers, Inc., 761 F.3d 732 (7th Cir. 2014), where a request
for an injunction is based solely on conjecture that because a
defendant harmed a person in the past that it is likely to harm
that person in the future, injunctive relief is not appropriate.
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Finally,
punitive
Plaintiffs
damages
Defendants
have
which
not
point
they
offered
out
that
contend
to
pay
they
is
them
are
claiming
not
moot
because
punitive
damages.
However, under Illinois law punitive damages can only be awarded
when
there
is
an
award
of
compensatory
damages.
McGrew
v.
Heinold Commodities, Inc., 497 N.E. 2d 424, 428 (1st Dist. 2nd
Div. 1986).
Here because Plaintiffs have received all of the
compensation
to
which
they
are
entitled,
they
cannot
prove
entitlement to any actual damages from the Court.
The Plaintiff, Xavier, seems to make an argument that he is
real party in interest as he apparently paid all of the cost of
the
T8.
However,
the
T8
is
titled
in
Khadija’s
name.
An
argument that he has an equitable interest in the T8 would not
change
the
result
here.
Xavier
was
obviously
aware
of
the
refund offer made to his wife who was the title holder, and he
could have alerted the Defendants of his interest in the T8.
IV.
CONCLUSION
Since the Plaintiffs’ claims are moot, the Court grants the
Motion to Dismiss pursuant to Rule 12(b)(1).
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: October 13, 2016
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