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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