Mathews et al v. Allied Recreation Group, Inc.

Filing 44

OPINION AND ORDER: GRANTING 29 MOTION for Summary Judgment by Defendant REV Recreation Group Inc.; REV's motion to strike expert opinion 28 is DENIED AS MOOT; and the Mathews' motion to amend their brief in opposition 41 is DENIED AS MOOT. Signed by Judge William C Lee on 4/2/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VANESSA MATHEWS and
RANDY MATHEWS,
Plaintiffs,
v.
REV RECREATION GROUP, INC.,
Defendant.

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Case No. 1:15-CV-247

OPINION AND ORDER
This matter is before the Court for resolution of three pending motions. Defendant REV
Recreation Group, Inc., filed a motion for summary judgment (ECF 29), to which Plaintiffs
Vanessa and Randy Mathews filed a response in opposition (ECF 37) and REV replied (ECF 40).
REV also filed a “Motion to Strike Expert Opinion of Tom Bailey” (ECF 28), to which the
Mathews filed a response in opposition (ECF 36) and REV replied (ECF 39). The last motion is
the Mathews’ “Motion for Leave to Amend Plaintiffs’ Brief in Opposition to Defendant’s
Motion for Summary Judgment Nunc Pro Tunc” (ECF 41), to which REV filed a response in
opposition (ECF 42) and the Mathews replied (ECF 43). Because the undisputed material facts
preclude the Mathews’ claims, REV’s motion for summary judgment (ECF 29) is GRANTED;
REV’s motion to strike expert opinion (ECF 28) is DENIED AS MOOT; and the Mathews’
motion to amend their brief in opposition is DENIED AS MOOT.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the record shows that there is “no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning
material facts are genuine where the evidence is such that a reasonable jury could return a verdict
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court construes all facts in a light most
favorable to the non-moving party and draws all reasonable inferences in favor of the nonmoving party. See id. at 255. However, neither the “mere existence of some alleged factual
dispute between the parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt
as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc.,
209 F.3d 687, 692 (7th Cir. 2000).
Summary judgment is not a substitute for a trial on the merits nor is it a vehicle for
resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if
genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion,
summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975
F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).
If it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish
his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S.
at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). “A genuine dispute as to any
material fact exists if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014) (citation and
internal quotation marks omitted). In deciding whether a dispute exists, the Court must “construe
2

all facts and reasonable inferences in the light most favorable to the non-moving party.” Nat’l
Am. Ins. Co. v. Artisan & Truckers Cas. Co., 796 F.3d 717, 723 (7th Cir. 2015) (citation
omitted). Under Rule 56, the movant has the initial burden of establishing that a trial is not
necessary. Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627 (7th Cir. 2014). “That
burden may be discharged by showing . . . that there is an absence of evidence to support the
nonmoving party’s case.” Id. (citation and internal quotation marks omitted). The nonmovant
“must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories,
or admissions on file) to demonstrate that there is evidence upon which a jury could properly
proceed to find a verdict in [its] favor.” Id. (citation and internal quotation marks omitted). “The
existence of a mere scintilla of evidence, however, is insufficient to fulfill this requirement.”
Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). “[S]peculation and conjecture” also
cannot defeat a motion for summary judgment. Cooney v. Casady, 735 F.3d 514, 519 (7th Cir.
2013). In addition, not all factual disputes will preclude the entry of summary judgment, only
those that “could affect the outcome of the suit under governing law.” Outlaw v. Newkirk, 259
F.3d 833, 837 (7th Cir. 2001) (citation omitted). Finally, “[t]he court must not weigh the
evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that ‘we
leave those tasks to factfinders.’” Winston v. Sauvey, 2016 WL 7480393, at *1 (E.D. Wis. Dec.
29, 2016) (quoting Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010)).

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DISCUSSION
I. Background.
On October 30, 2017, the parties filed a joint motion to extend the briefing schedule for
the motion for summary judgment and for permission to file briefs in excess of the page
limitations contained in this Court’s local rules. Joint Motion (ECF 35). The parties claimed that
they needed more time and more pages “[t]o fully address all of the issues and laws involved in
this complex and hotly disputed case” and the “complex factual and legal issues that this case
raises.” Id., p. 2. The Court has reviewed the parties’ briefs (and all the evidence submitted with
them) and agrees this case is “hotly disputed.” The only part of the case that is “complex,”
however, is the facts, and even then the situation is more messy than it is complex.
The parties’ claims and defenses are straightforward. The following paragraph from the
Plaintiffs’ complaint summarizes the basis for their lawsuit:
This case involves a defective 2014 Holiday Rambler recreational vehicle that
defendant designed, constructed, and warranted but which it was not able to repair
within a reasonable number of chances or a reasonable amount of time and whose
express and/or implied warranties defendant breached.
Amended Complaint (ECF 21), p. 3. The Mathews purchased the RV, which was manufactured
and warranted by REV,1 from Mellott Brothers Trailer Sales in Willow Street, Pennsylvania, on
May 7, 2014. Id., p. 4. The Mathews claim that the new RV had problems or defects from the
get-go and that “[w]ithin a few short hours, problems with this new RV began to occur, starting
with defects in the room slide out and electrical system fuses inexplicably ‘blowing’ that caused

1

REV explains in its memorandum that the 2014 RV was “manufactured by Navistar[]”
and that “REV Recreation Group, Inc.[,] is the successor in interest to Navistar RV, LLC.”
Defendant’s Memorandum, p. 1, n. 1.
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lights not to work, among other things.” Id. The Mathews took the RV to an RV mechanic for
repair, and later to REV’s factory on two occasions, but they allege that the problems were not
fixed and even more appeared during the time they owned the vehicle. The Mathews state that
the problems with the RV that arose within hours after they took delivery were a harbinger and
that “[t]heir nightmare was just beginning.” Id. They elaborate as follows:
After acquiring the vehicle, the Mathews Family discovered that the RV did not
conform to the representations of defendant inasmuch as it developed continuing
malfunctions, defects and problems and that was unfair and/or deceptive and/or
unconscionable to the Mathews Family. . . . Ever since purchasing the RV, the RV
has been defective in spite of repeated repair attempts with no success. The
warrantor’s agent tried fixing the RV’s many defects repeatedly, telling Plaintiffs
each time that it was repaired afterwards. The Mathews Family would then realize
later that it wasn’t. In spite of the Mathews Family’s numerous complaints and
defendant’s warranty-covered repair attempts, serious and substantial accident
damage as well as slideout defects in the RV were never fixed at all and that was
unfair and/or deceptive and/or unconscionable to the Mathews Family. The
Mathews Family notified both the dealer and the defendant of this and many more
defects in the RV and eventually asked the defendant to buy the RV back. It
would not do so and that was unfair and/or deceptive and/or unconscionable to the
Mathews Family.
Id., pp. 6-7. Based on those allegations, the Mathews are pursuing the following claims against
REV:
1) “[B]reach of express and/or implied warranties by the defendant in Pennsylvania and/or
Virginia and/or Indiana.” Id., p. 3.2
2

The Mathews apparently decided that Indiana law applies to their breach of warranty
claims, since that is what they discuss in their brief. See Plaintiffs’ Response, p. 20 (discussing
elements of breach of warranty claim under Indiana law); p. 17 (discussing measure of damages
for breach of warranty under Indiana law); p. 22 (discussing implied warranty of merchantability
under Indiana law). They are less forthcoming about their claim for violation of some unspecified
state law consumer protection statute. As to that claim, the Mathews curiously argue that based
on the facts of this case, “reasonable minds could conclude that [REV] violated the Virginia
Consumer Protection Act . . .” and/or “the Pennsylvania Unfair Trade Practices and Consumer
Protection Law” (id., p. 40). The Mathews do not mention in their brief, let alone discuss, any
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2) “[V]iolation of the Magnuson-Moss Warranty Act, 15 U.S.C. 2301, et seq.” Id., p. 14; and
3) “[V]iolation of applicable state Udap laws, being the Pennsylvania Unfair Trade Practices and
Consumer Protection Law, and/or the Virginia Consumer Protection Act, and/or the Indiana
Deceptive Consumer Sales Act[.]” Id., p. 14.3 The Plaintiffs seek compensatory damages “[o]r, in
the alternative . . . equitable relief including rescission[.]” Id., p. 17.
REV cheerfully acknowledges that when the Mathews purchased the RV they “were
provided a One Year Limited Warranty.” Defendant’s Memorandum, p. 2. This Limited
Warranty, like all such warranties, imposed duties on both the seller/manufacturer and the
purchasers. REV was bound to repair any faulty or defective “components, assemblies and

claim under any Indiana consumer protection statute or deceptive trade statute. In any event, as
this Court explained in Swan Lake Holdings, LLC v. Yamaha Golf Cart Co., 2010 WL 3894576,
at *3 (N.D. Ind. Sept. 27, 2010): “Where, as here, the parties do not identify a conflict between
the bodies of state law that might apply to their dispute, courts apply the law of the forum
state–here, Indiana. See Gonzalez v. Volvo of Am. Corp., 752 F.2d 295, 299 (7th Cir. 1985)
(‘Where parties fail to raise a possible conflict of law, the better rule . . . is that the substantive
law of the forum controls.’); see also Gould v. Artisoft, Inc., 1 F.3d 544, 549 n. 7 (7th Cir. 1993)
(same); National Ass’n of Sporting Goods Wholesalers, Inc. v. F.T.L. Marketing Corp., 779 F.2d
1281, 1284-85 (7th Cir. 1985) (same).” In this instance, REV does raise this issue, arguing that
while the Mathews make reference to the laws of three states, they must choose the one under
which they seek to recover. Defendant’s Reply, p. 19 (citing Popham v. Keystone RV Co., 2016
WL 4993393 (N.D. Ind. Sept. 19, 2016)). The Mathews ignore this confusion and argue in their
brief that REV committed some unspecified deceptive act in violation of the statutes of either
Virginia or Pennsylvania (Plaintiffs’ Response, pp. 38-45) and/or that they are entitled to the
remedy of rescission under Indiana law (id., p. 45). In keeping with Swan Lake, the Court will
apply Indiana law in this case. In the end, however, as explained later in this order, this is a nonissue because the Court concludes that the Mathews cannot proceed with either their breach of
warranty claims or their deceptive practices claim regardless of which state’s law is applied.
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The Mathews explain that “‘Udap’ stands for Unfair and Deceptive Acts and Practices
and refers to the Uniform Consumer Sales Practices Act which is itself a uniform law adopted in
all 50 states and found at 7 ULA 1 (1970). Each state’s version of the model Udap law may vary
slightly from other states.” Amended Complaint, p. 14, n. 3. This lesson in the law is unnecessary
given the Court’s conclusion that Indiana law applies in this case to any state law claims the
Mathews are asserting.
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systems” of the RV “for twelve months from the original retail purchase.” Id., p. 3 (citing Exh. D
(ECF 30-4), Limited Warranty).4 In order to take advantage of the Limited Warranty, the
Mathews were required by its express terms to: “notify Warrantor or one of its authorized
servicing dealers of the defect within the warranty coverage period and within five (5) days of
discovering the defect; and . . . deliver your [RV] to Warrantor or Warrantor’s authorized
servicing dealer at your cost and expense.” Id. The Limited Warranty further provides that “[i]f
the repair or replacement remedy fails to successfully cure a defect after Warrantor received a
reasonable opportunity to cure the defect(s), your sole and exclusive remedy shall be limited to
Warrantor paying you the cost of having an independent third party perform repair(s) to the
defect(s).” Id. This clause, explains REV, sets forth the “two remedies should a service item
occur: (1) as a repair remedy, REV will repair the issue (under the terms of the warranty) . . . ;
and (2) if the Repair Remedy fails, REV will pay the Mathews’ actual costs to have an
independent third party (of the Mathews’ choosing) perform the repairs (the ‘Back-Up
Remedy’).” Id., pp. 4-5.
REV argues that it is entitled to summary judgment on all of the Mathews’ claims for the
following reasons:
Each count is premised upon the same allegation: REV failed to live up to its
express and/or implied warranties. The evidence demonstrates, however, that
REV fully performed under its Limited Warranty. The Mathews presented their
RV for repair on only two occasions during the 1 year period of the warranty. The
Mathews also opted to deal with certain purported issues on their own and outside
of the express terms of the Limited Warranty. Because the Mathews did not
4

The relevant language from REV’s Limited Warranty is excerpted in REV’s
memorandum (see pages 3-4, 12-13, 15-16) and the Mathews’ response brief (see Exh. 1, 37-4).
It need not be repeated here, especially since the parties do not dispute its existence, contents or
wording, but rather whether it was breached.
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adequately or timely avail themselves to the Repair Remedy and Back-up Remedy
of the Limited Warranty, Summary Judgment is appropriate on all counts.
Id., pp. 1-2.
To summarize, the Mathews assert that they purchased a “lemon” and allege that REV is
liable to them because it failed to honor its warranties; and REV contends it did all it could to
remedy problems and that the Mathews voided or nullified warranty coverage by failing to notify
REV of problems in a proper or timely manner and by having the RV repaired by unauthorized
mechanics.
II. The undisputed material facts establish that REV did not breach any express
or implied warranties.
With the stage set, the Court will unravel what it referred to above as the “messy” facts.
Once the layers of the onion are peeled away the undisputed material facts become clear–and
they bar the Mathews’ claims.
Again, the heart of REV’s argument in support of its motion is its contention that it did
not breach any warranty, express or implied, and that the undisputed facts show the opposite–that
REV addressed every problem or issue the Mathews presented to them and that the Mathews did
not give REV notice of, or opportunity to cure, other alleged problems. REV begins by stating
that “[i]mmediately following the purchase of the RV, the Mathews . . . allege they experienced .
. . issues, which they reported to the selling dealership, via telephone. . . . But the RV was not
brought into the dealership for repairs.” Defendant’s Memorandum, p. 5 (citing Exh. A (ECF 301), Deposition of R. Mathews). REV states that “[a]s the weekend continued, the Mathews also
noted that the shower leaked . . . and the bedroom TV did not work. The Mathews did not report
those issues to the selling dealership. . . . Mr. Mathews did not call anyone and did not report the
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issues to anyone else, including, most notably, REV.” Id. REV further claims that “[i]n June
2014, the Mathews . . . allege they experienced [more] issues[,]” that Mr. Mathews called Mellott
Brothers to report these additional problems, and “was given the number for REV so he could
find a closer authorized repair center.” Id. According to REV, “contrary to the terms in the
Limited Warranty, in July 2014 Mr. Mathews decided to take the RV to Johnson’s RV to
perform repairs. Johnson’s RV is not authorized by REV to perform warranty service, but Mr.
Mathews had used Johnson’s RV to service his previous RV. . . . Mr. Mathews did not notify
REV that the RV was at Johnson’s. . . [and] no one from Johnson’s RV ever presented repair
estimates or invoices to REV.” Id., p. 6. According to REV, the Mathews also took the RV to
Johnson’s in October of 2014 “to have a new slide cable installed.” Id. REV claims that the
Mathews did deliver the RV to the company “for repairs beginning December 15, 2014[,]” that
the vehicle “was at the REV factory from December 15, 2014 to December 19, 2014[,]” during
which time “[e]ach of the [issues reported] . . . were remedied[.]” Id. (citing Exh. C (ECF 30-3),
Affidavit of A. Brooks; Exh. A, Deposition of R. Mathews). A few weeks later, “[a]s a gesture of
goodwill, REV issued an additional warranty (‘extended warranty’), administered under the
terms of the original Limited Warranty. The Extended Warranty was valid until November 7,
2015.” Id., p. 8 (citing Exh. H (ECF 30-8), Letter from J. Hurd to R. Mathews). REV contends
that “[o]n March 3, 2015, after experiencing an issue with the cable for the main slide, Mr.
Mathews contacted REV” and “[t]his was the first time REV was presented with an issue related
to the main slide cable.” Id. The vehicle was delivered to REV for repairs and the Mathews
“reported only three issues: [1] The A/C ‘couldn’t keep up’; [2] Curbside slide had a broken
cable; [3] Sealing tape on the slides had failed.” Id. REV claims that it “assessed the three issues,
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determining that the A/C was functioning appropriately and remedying the other [two] issues.”
Id. According to REV, “[t]he Mathews did not again present the RV to REV or any REV
authorized repair representatives for any additional issues[]” and “have never presented REV
with any costs, estimates, or invoices under the Back-Up Remedy of the Limited Warranty.” Id.
Based on these factual assertions, REV argues that it honored the terms of its warranty but the
Mathews did not, thereby foreclosing this lawsuit and entitling REV to summary judgment.
The Mathews don’t actually dispute the material facts so much as hide them within their
broader narrative, which is that the Holiday Rambler was a deeply flawed piece of machinery that
REV did not repair to the Mathews’ satisfaction after repeated opportunities to do so and
therefore a jury could conclude that REV breached its warranties. But while the facts and
evidence support the Mathews’ contention that the RV had numerous problems, they do not
support the allegations that REV failed to honor its warranty obligations. The Mathews’
frustration is understandable (and palpable in their briefs), but the undisputed facts–virtually all
of which come directly from the testimony of Plaintiff Randy Mathews–reveal that they do not
have a valid cause of action against REV. In this instance, no conflicting evidence needs to be
weighed and no credibility determinations need to be made, and REV is entitled to judgment as a
matter of law for the reasons discussed below.
It is well established, as this Court has noted, that “to prevail on a breach of warranty
claim under Indiana law, the plaintiff must show (1) the existence of a warranty; (2) breach of
that warranty; and (3) that the breach was the proximate cause of the loss sustained.” Swan Lake
Holdings, LLC, 2010 WL 3894576, at *3 (citing Irmscher Suppliers, Inc. v. Schuler, 909 N.E.2d
1040, 1048 (Ind.Ct.App. 2009); Frantz v. Cantrell, 711 N.E.2d 856, 860 (Ind.Ct.App. 1999);
10

Peltz Const. Co. v. Dunham, 436 N.E.2d 892, 894 (Ind.Ct.App. 1982)). “The standard to be
applied in determining whether or not there has been a breach of warranty is one of
reasonableness in light of surrounding circumstances.” Id. (quoting Barnes v. Mac Brown and
Co., Inc., 342 N.E.2d 619, 621 (Ind. 1976)). The same is true with an implied warranty of
merchantability. “Indiana recognizes implied warranties of fitness for a particular purpose and
implied warranties of merchantability.” Hyundai Motor Am., Inc. v. Goodin, 822 N.E.2d 947,
951-52 (Ind. 2005) (citing Ind. Code §§ 26-1-2-314, 315 (2003)). The “implied warranty of
merchantability is imposed by operation of law for the protection of the buyer and must be
liberally construed in favor of the buyer.” Frantz v. Cantrell, 711 N.E.2d at 859. “An action
based on breach of warranty requires evidence showing not only the existence of the warranty but
also that the warranty was broken and that the breach was the proximate cause of the loss.” Id. at
860.
REV argues that “the Mathews cannot establish a breach of the express warranty because
REV addressed and repaired all issues which it was presented with during the one-year warranty
period.” Defendant’s Memorandum, p. 11. REV states that “[a]s express warranties are
‘contractual in nature, the language of the warranty itself is what controls and dictates the
obligations and rights of the various parties.’” Id. (quoting Medline Indus. v. Ram Med., Inc., 892
F.Supp.2d 957, 968 (N.D.Ill. 2012)). REV also states that “[a] warrantor is not obligated to
perform repairs which are presented to it outside the terms of an express limited warranty.” Id., p.
13 (citing Popham v. Keystone RV Co., 2016 LEXIS 127093, *13 (N.D.Ind. Sept. 19, 2016)
(“When breach of an express warranty occurs is a straightforward analysis: it must occur if it is to
occur at all, before the express warranty ends.”)). REV argues that “[b]ecause the issues the
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Mathews currently complain about were not presented to REV in accordance with the Limited
Warranty (i.e. five days after discovery and to an authorized dealer) and not within the 1 year
period of the Limited Warranty, summary judgment is appropriate.” Id., p. 14.
The undisputed material facts in this case, the determinative ones, are tucked within
Randy Mathews’ own sworn testimony, and come into focus after a detailed (and somewhat
lengthy) examination of that testimony, as well as other evidence submitted by both sides. To
begin, Mr. Mathews testified that the first problems he and his wife encountered after taking
delivery of the RV included the blowing fuses, the refrigerator not working, and the leveling
system working only intermittently. R. Mathews Depo., (ECF 30-1), pp. 45-46. Mr. Mathews
called John Hurd at Mellott Brothers, who told him to replace the fuses “and see what
happened.” Id., p. 47. Mr. Mathews did so, but it the problem persisted. Id. Mr. Mathews called
Mr. Hurd again, “but as we got into the weekend they weren’t available.” Id., p. 47. Mr. Mathews
recalled making only one attempt to contact Mr. Hurd and did not testify to making any followup calls concerning this issue. Id., pp. 47-48. It was during that same weekend trip–the one to
Hershey, Pennsylvania, that the Mathews took immediately after taking delivery of the RV–that
they noticed more problems, including a leaking shower door, condensation forming on the
refrigerator, and a television and DVD player that did not work. Id., p. 48. However, when asked
whether he informed Mellott about these issues Mr. Mathews conceded that “I did not.” Id. The
Mathews did not use the RV again until June 20, 2014, when they set out on their second trip in
the vehicle. Id. Mr. Mathews testified as follows:
Q.: Between that trip to Hershey and [the June 20 trip], did you take your unit
anywhere to be serviced for those issues that you had spotted on your first trip?

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A.: I did not. I did not yet.
Q.: Did you call anybody, once you got home, about those issues?
A.: No.
Id., pp. 48-49. During their second trip, the Mathews contend that fuses were still blowing, the
leveling jack still operated only intermittently, and the curbside slide cable broke. Id., p. 49. The
next contact that the Mathews had with REV was on June 23, 2014, when he called John Hurd at
Mellott Brothers, who in turn told him to call Tina. Id., p. 50-51. This is the conversation that
began the chain of events that culminated in the Mathews taking the RV to Johnson’s. Here is the
play-by-play from Mr. Mathews’ deposition:
Q.: What did you and Tina discuss?
A.: Tina was kind enough to go through her list. She put me on hold for a minute
and went through her list and found me what she called a factory [authorized]
dealer in Gloucester, Virginia. She gave me the phone number, and I called that
dealer.
Q.: Did you report to Tina any of the problems that you were experiencing with
the RV?
A.: As a recap, yes.
Q.: And at that point, June 23rd, 2014, did you understand that [REV] would
work through factory-authorized dealers to take care of warranty issues?
A.: I understood that they may have a preference of dealers that they may want me
to take it to, so I was agreeable to use their recommendation.
Id., pp. 51-52. Of course, the dealer Tina recommended turned out not to be factory authorized so
Mr. Mathews called Tina again for assistance:
Q.: Did you call Tina back?
A.: I’m pretty sure I did[.] I think I called her back and we discussed having a
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dealer close by me service the unit. And I understood the circumstance to be that
they would have to approve the repair.
...
Q.: . . . How did you come to Johnson’s R.V.?
A.: I had used Johnson’s previously . . . .”
Q.: And you dropped your unit off on July 11th?
A.: That’s right.
...
Q.: . . . And after you called Rick Johnson to make this July 11 appointment, did
you notify [REV] of that fact?
A.: Did I? No.
Q.: Okay. And when you dropped it off on July 11th, what did you ask Rick
Johnson to do?
A.: To focus on the soundbar, the television, the broken cable mainly because the
thing is inoperable with a broken cable, and see if he could figure out why the
converter was blowing fuses.
Id., pp. 51-54. The RV remained at Johnson’s from July 11, 2014, until late August. Id. When
Mr. Mathews picked the vehicle up he was told by Rick Johnson that “he had repaired the slide
cable, that the sound bar was not repairable and that the factory was going to send him a
replacement, and that the bedroom TV problem was yet to be resolved. He thought it was the
remote, and that he couldn’t find a fault with the converter at the time. Id., p. 56. Mr. Mathews
further testified as follows:
Q.: And did Rick Johnson tell you he had been in touch with the factory about
these repairs?
A.: I was under the impression that he had been in touch with the factory.
...

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Q.: Did you pay them[?]
A.: I didn’t pay them anything on this.
....
Q.: So did you call Tina or anyone else with the factory from that time, June 23rd
of 2014 through August 27 of 2014?
A.: Not that I recall.
Id., pp. 57, 60.
The two repair visits to Johnson’s are a subplot in themselves, and a significant one–not
so much for the reasons the parties discuss, but (again) for the undisputed material facts that are
revealed when the devilish details are unraveled.
It is undisputed that the Mathews were told about the one-year Limited Warranty at the
time they purchased the RV. It is also undisputed that the Mathews knew that under the terms of
that warranty, any mechanic to whom they took the unit for servicing would have to obtain prior
approval before performing warranty repairs to the vehicle (having been told that specifically by
Tina). Mr. Mathews believed he could have the RV serviced at Johnson’s because the dealer Tina
told him to contact turned out not to be an authorized servicer. But he concedes that his decision
to take the vehicle to Johnson’s was unilateral and based on the fact that he had done business
with Johnson’s in the past.
The significance of the two repair visits to Johnson’s, according to the Mathews, is that
they both involved a broken curb side slide-out cable, and therefore constitute two repair
attempts under the Limited Warranty. Plaintiffs’ Response, p. 10. Making a leap of logic then,
the Mathews contend that when they agreed in May of 2015 to allow REV to perform repairs to
the unit in its factory–including repairing a broken slide cable again–it was the third time that
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REV repaired the same problem. Id., p. 13 (“The RV was at [REV’s] factory repair facility a
second time from May 1, 2015 until June 25, 2015 for repair of . . . [the] curb side slide out cable
. . . [third time].”). In other words, the first two repairs completed at Johnson’s should be imputed
to REV because Mr. Mathews mistakenly believed that Johnson’s was authorized to perform
warranty repairs and mistakenly believed that Ricky Johnson had contacted the factory to obtain
that authorization. The Mathews then argue that the warranty in this case was breached because
REV had three opportunities to repair the problem with the cable but it “failed to repair the RV’s
defects within a reasonable amount of time and within a reasonable number of repair attempts.”
Id., p. 22 (italics added); see also, id., p. 36 (“[REV] had a reasonable opportunity to repair all
alleged defects. . . . [REV] had several chances . . . to repair the RV’s many defects within the
first year.”).
The parties devote a lot of space to debating the issue, but in the end it doesn’t matter
whether Johnson’s was authorized to perform work on the RV. The material undisputed facts to
be gleaned from the parties’ debate about this are that Mr. Mathews informed REV on June 23,
2014, during his phone conversation with Tina, that the RV had mechanical problems. Tina told
him to contact an RV dealer near him that turned out not to be an authorized servicer. Mr.
Mathews called Tina again and she told him he could take the RV to a servicer near him but that
the servicer would have to obtain approval before performing repairs. The Mathews took the RV
to Johnson’s for repair, the work was performed, and the Mathews were told that the work was
“covered” under their warranty. In truth, and adding a quirky twist, Johnson’s never obtained
approval for its work on the RV nor did it get paid for that work, but not because REV refused to
honor its warranty. Instead, Johnson’s never submitted the necessary paperwork. The work was
16

completed on August 18, 2014, but Johnson’s never obtained approval, never received payment
for the work, and the Mathews were never charged for that work.
Ricky Johnson, the owner of Johnson’s RV, was deposed and testified as follows:
Q.: Tell us what happened there.
A.: Well, Mr. Mathews brought it in. We noticed that the rearward cable was
snapped on the slide-out. He also had some other issues with the sound bar and
the bedroom TV.
Q.: And what did you do?
A.: First called [the factory] about doing the warranty work on there. They said
they needed an estimate for repairs. That’s when I got them together.
We were very extremely [sic] busy at that time, and I neglected to follow
up on turning this in because we were so busy. Mr. Mathews needed his RV back,
so I repaired the RV before I actually got authorization on the unit.
Q.: Okay. Did you ultimately get authorization to do the work that you actually
did?
A.: No, I did not.
Q.: Okay. What happened? Why not?
A.: An oversight on my part because we were so busy, and I just neglected to
follow back up on it.
Defendant’s Exh. F, Deposition of Ricky Johnson (ECF 30-6), pp. 2-3 (italics added). Mr.
Johnson testified that he did not seek or receive any payment from the Mathews for the August
repair and never sought reimbursement from REV:
Q.: Okay. So, you’ve never been paid for that?
A.: No.
Q.: I assume that you just never bothered chasing anybody to get paid because you
were so busy with other things that you just went on?
17

A.: Correct.
Id., p. 3. When the vehicle was returned to Johnson’s on October 31, for a second repair of the
slide-out cable, Johnson’s did not seek or receive payment from the Mathews, although Mr.
Mathews did pay about $45 to purchase the cable itself from another RV dealer so that Johnson’s
could install it. Mr. Johnson testified as follows:
Q.: Tell us about that [second visit].
A.: I was not here on that day that Mr. Mathews came by. My lead technician took
care of his problem for him. I had to call another dealership to get a cable for Mr.
Mathews because he was heading out of town. My tech replaced that same cable.
Q.: Do you know how the cable got from where it was to your place?
A.: Yes. Mr. Mathews went and picked it up from the dealership himself and paid
for the cable.
...
Q.: Now, is this the same cable and in the same slide-out room?
A.: Yes.
Q.: All right. After that was over, did [Mr. Mathews] ever come back?
A.: No, sir.
Id.
Between June 23, 2014, when he spoke with Tina, and October 17 when he contacted
Johnson’s a second time, Mr. Mathews did “nothing” about the inoperable sound bar or
inoperable television because he was waiting for Johnson’s to receive and install factory
replacements that were “never received[.]” Id., pp. 60-61. When he spoke with Johnson’s on
October 17, it was because “the curb side slide out cable broke again” as the Mathews were
preparing for their upcoming Halloween excursion. Aff. of R. Mathews (ECF 37-1), p. 4, ¶ 9.
18

Mr. Mathews made an appointment at Johnson’s to get the cable repaired a second time. Id., ¶
10. It is undisputed that the Mathews did not inform REV about this second visit to Johnson’s
(because they were under the mistaken belief that Johnson’s was authorized to perform repairs).
This was done on October 31 and the Mathews continued on their Halloween trip. Depo. of R.
Mathews, pp. 61-63.5 It was during this trip that the Mathews experienced more problems with
the RV, including “CO alarm was going off[,]” and “just regular stuff that was happening in this
RV. The refrigerator latch letting go. The closet door in the bedroom started falling apart. The
subwoofer came unscrewed from its brackets.” Id., pp. 63-64. Yet again, however, when asked if
he “call[ed] anybody after Halloween 2014 regarding the issues you experienced with the RV?”
Mr. Mathews responded “No.” Id., p. 64. The undisputed facts show that the Mathews had no
contact with REV until some unspecified date “[a]fter this second trip” when Mr. Mathews
“spoke with Angela and the scheduler Rick Black to arrange for repair of the RV at the factory.”
Aff. of R. Mathews, p. 4, ¶ 11. An appointment was scheduled and Mr. Mathews drove 19 hours
to deliver the RV for repairs on December 15, 2014. Depo. of R. Mathews, p. 67. When he
scheduled the appointment, Mr. Mathews explained to Angela and Rick the issues and problems
that existed with the RV, including the issues first reported to Mellott Brothers and those that
arose after the second trip (which the Mathews did not report to Mellott Brothers or REV). Id.,
pp. 67-68. It is undisputed (because Mr. Mathews concedes the point) that the issue of the curb
side slide out cable, which had been repaired by Johnson’s twice, was not presented to REV as an

5

During this second visit to Johnson’s for a second repair of the curb side slide cable, the
Mathews had to pay $44.52 to purchase a replacement cable from a dealer named Dodd RV and
take it to Johnson’s, who installed it free of charge. Depo. of R. Mathews, p. 61.
19

issue at this juncture. Id., p. 68.6 The factory made a long list of repairs, all covered by the
warranty, including the issues with the converter blowing fuses, the CO2 alarm going off, the
refrigerator leaking, and the bedroom television. Id., pp. 68-71. The only matter that was not
resolved, according to Mr. Mathews, was the issue of the DVD player, about which he testified
as follows:
Q.: . . . What did the factory tell you about the DVD player during this December
2014 visit?
A.: It had been discontinued.
Q.: And what was the game plan when you left?
A.: John Hurd–I had a conversation with him at some point where he agreed to
just provide me the budget that they would normally pay for that unit and I’d go
buy something to replace it. It never happened.
Q.: And at the time you returned to Virginia on or about December 19, 2014, were
you satisfied with the repairs that had been completed at that point?
A.: I was hopeful that they would be successful, yes.
Id., pp. 70-71.
The Mathews had no conversations with anyone at REV following the December repair
visit until early March of 2015:

6

Mr. Mathews testified as follows:

Q.: [W]hen you brought the [RV] to the factory, cable on the curbside slide was
not broken, correct?
A.: I think that’s correct. Yeah. The–it had broken twice previously. The third
time it broke was March 3[, 2015], so that was after it returned from the factory
the first time.
Depo. of R. Mathews, p. 68.
20

Q.: Did you have any communications, that you can recall, with [REV] between
December 19th of 2014 and . . . March 3, 2015[?]
A.: Off the top of my head, I do not recall any other conversations. At that point I
was pretty hopeful that we had been in communication enough to get the problem
solved[.]
Id., p. 72.
Mr. Mathews apparently was mistaken when he testified that he had no conversations
with anyone at REV between December 19, 2014, and March 9, 2015, as one of the Mathews’
exhibits shows. John Hurd wrote a letter to the Mathews, dated December 29, 2014, which stated
as follows:
It was a pleasure speaking with you earlier today.
As we discussed, as a good will gesture and in consideration of any downtime and
inconvenience, [REV] agrees to make necessary good will repairs to your
Presidential until November 7, 2015. This coverage period will be administered
under the guidelines of our published limited warranty. Any and all repairs must
be approved in advance by an [REV] representative which may or may not require
an inspection and must be a result of defective workmanship or materials in
manufacturing. Issues or concerns related to or as a result of normal use, aging
and wear, regular maintenance and upkeep, or intended design or functionality are
specifically excluded. This goodwill period is not an extension of the limited or
any other warranties, and is made to you exclusively; it is not transferable to a
subsequent owner.
Plaintiffs’ Exh. 7 (ECF 37-7). This letter is significant and material for three reasons: first, it
evidences REV’s attempts to make repairs to the Mathews’ RV pursuant to the Limited
Warranty; second, it establishes as undisputed the fact that REV expressly agreed to make repairs
to the RV, in keeping with its Limited Warranty, for a longer period of time; and third, it
supports REV’s contention that the Mathews were aware of the Limited Warranty and that the
RV was subject to it even though they did not receive a physical copy of it until months later.

21

Returning to the events in March of 2015, the next communication between the Mathews
and REV was on March 9. Mr. Mathews testified that on March 3, 2015, the curbside slide cable
broke again while he “was prepping the thing, getting ready to camp.” Id., p. 73. On March 9,
Mr. Mathews called REV and spoke with Jesse, John Hurd and Angela. Id., p. 74. He testified as
follows:
Q.: . . . Do you recall that conversation?
A.: Yeah, mainly because of the guy that answered the phone, whose name was
Jesse, I had had enough problems with it by then that I just felt like it was
unrepairable, which is what I said to Jesse, and he told me he thought that was a
cop-out, in kind of a snide manner.
Q.: Did you ask him what he meant by cop-out?
A.: He said its mechanical. Anything mechanical can be repaired. . . .
Q.: Okay. And what did you and Angela discuss on March 9 of 2015?
A.: Just all the whole list of problems that we’d had and the problems that
continued unresolved.
Q.: [W]hat problems, in your mind, remained unresolved at the time when you
talked to Angela Brooks on March 9, 2015?
A.: I think the main issue at this point was still the cable breaking, because you’re
stranded once that happens. And in your 60s it’s not so easy to push a 14-foot
slide in manually.
...
Q.: So the main issue when you called Angela on March 9, 2015, was the slide?
A.: I pretty much was convinced at that point that the slide was not going to be
able to be repaired.
Q.: What did Angela tell you on March 9, 2015?
A.: Their response has consistently been they’re going to fix it, they’re going to
repair it. Of course, at this point I’m concerned about running out of warranty
22

time. I’m concerned about the series of events that–all the failures that had
happened with this thing just indicated to me a completely poor level of
workmanship and quality control.
Q.: And did you express that to Angela on March 9, 2015?
A.: I think I did.
Q.: Did you guys resolve anything during that discussion?
A.: No, because I was very unhappy with the unit, and Angela and John were both
of the mind that they wanted to keep trying to fix it and trying to fix it and trying
to fix it.
Id., pp. 76-78.
The unhappiness Mr. Mathews testified to led him to send his letter, dated March 12,
2015, to Angela Brooks, in which he sought a full refund for the RV. Plaintiffs’ Exh. 9 (ECF 379). In that letter, Mr. Mathews wrote that “I believe my 2014 Holiday Rambler Presidential . . . is
a lemon as defined in the Manguson-Moss [sic] Federal law, as well as Virginia’s Lemon Law. I
am hereby making a demand for relief under these laws. Id., p. 1. The letter goes on to recite the
many problems the Mathews allege to have had with the RV to that point (including problems
that had already been repaired by REV during the December 2014 factory service). Id., pp. 1-2.
The letter then states as follows:
Please consider this your 10 day notice that if we are unable to reach agreement on
an acceptable solution, I will be forced to proceed with any and all legal remedies
available to me.
My preference is that you reimburse me for all expenses incurred as a result of
this transaction and take your unit back. My faith in Holiday Rambler is severely
damaged. I don’t think a swap for another Holiday Rambler will be acceptable.
My sincere hope is that you will respond quickly and work this out fairly, without
the need for lawyers. If I have to resort to acquire legal representation, the law
states that you will be responsible for their fees. Let’s both stop the bleeding, and
put this one behind us!
23

Id., p. 2. The Mathews acknowledge that while REV “refused to take the RV back and give the
Mathews their money back, [REV] promised to repair the continuing problems with the RV
under warranty, agreed to extend the warranty by yet another year, and agreed to pay for expenses
relating to transportation to and from their factory repair facility for repairs to the RV.” Plaintiffs’
Response, p. 13. Indeed, the Mathews submitted a copy of an email they received from Angela
Brooks, dated March 29, 2015, that stated as follows: “In response to your 3/20/15 letter,7 I want
to stress that we do want the opportunity to repair the slide and we want to ensure that the repair
is a complete fix. . . . I understand that you are concerned about future performance, but at this
time we are not willing to make stipulations based on what might happen in the future.”
Plaintiffs’ Exh. 10 (ECF 37-10), p. 1. Also in that email, Ms. Brooks offered to “pay a transport
company to transport the [RV] to Decatur, Indiana[,] for the repair appointment[,] [r]eimburse
you for fuel and hotel expenses from your December 2014 appointment at Decatur[,] [p]rovide a
one year goodwill policy on the [RV] (to be administered by the guidelines of the . . . limited
warranty)[,] [r]eimburse or provide a one-way airline ticket for your wife, so she can join you to
pick up the [RV] after repairs[,] [r]eimburse your round trip fuel expenses to pick up the [RV]
7

It is not clear whether Ms. Brooks’ reference to a letter from Mr. Mathews on “3/20/15”
actually refers to his letter dated March 12. There is nothing in the record indicating that Mr.
Mathews sent a letter or other communication to REV on March 20, so her reference to that date
could be a scrivener’s error or perhaps a reference to the date she received Mr. Mathews’ March
12 letter. It doesn’t matter, though, since what is relevant and material is that the March
communications between the Mathews and REV render the following facts undisputed: after Mr.
Mathews sent his letter demanding a refund, he had discussions with REV and agreed to give
them a second opportunity to make repairs to his RV, all covered under the Limited Warranty,
beginning on May 1, 2015. See also, Aff. of A. Brooks, Defendant’s Exh. 3 (ECF 30-3), p. 2, ¶¶
6 and 7 (“. . . I am aware of only two repair attempts being presented to REV. One taking place in
December 2014 and the final taking place in May 2015. Following the May 2015 repair visit
REV was not again presented with any defects or given the opportunity to repair the RV.”).
24

after repairs[, and] [p]erform [an inspection] at the Decatur service center to check system
functions.” Id. By way of a letter dated April 13, 2015, Angela Brooks extended “the following
offer to repair your [RV].” Id., p. 2. That letter confirmed that Mr. Mathews and REV agreed that
the RV would be delivered to the factory in Decatur, at REV’s expense, on May 5, 2015, to
address the complaints the Mathews had (including, specifically, their complaints about the slide
out cable). Id. The letter also confirmed the details of REV’s offer to reimburse the Mathews for
expenses related to this service (such as fuel expenses and hotel expenses) and its offer to
“provide a one year, non-transferrable, goodwill coverage policy, to be administered under the
same guidelines as the . . . limited warranty. This one year coverage period will begin on the last
day of the repair appointment.” Id.
So, off goes the RV to REV’s Decatur, Indiana, factory for only the second time since the
Mathews bought it. By the Mathews’ own admission, “[t]he RV was at the Defendant’s factory
repair facility a second time from May 1, 2015 until June 25, 2015 for repair of the . . . curb side
slide out cable . . . A/C not keeping up[,] entry door buckled . . . [and] slide out seals failing.”
Plaintiffs’ Response, pp. 13-14 (citing Plaintiffs’ Exh. 11 (ECF 37-11), REV Repair Orders). The
Mathews also concede that REV “repaired the damage to the RV caused by their driver’s
accident.” Id. (citing Aff. of R. Mathews).
On or about June 25, 2015, the RV was returned to the Mathews. However, Mr. Mathews
testified that “the RV hasn’t been used since.” Depo. of R. Mathews, p. 88. The Mathews allege
that after the RV was returned they experienced even more problems (even though the vehicle
had not been used). The Mathews claim that “[o]n July 1, 2015, the bedroom slide out cable
broke after [REV] had inspected the RV. . . . The Mathews have not been able to use the RV
25

since that date. . . . On July 18, 2016 he noticed that the kitchen cabinets were pulling apart. . . .
and noticed that the back of the RV was leaning downward and not level.” Plaintiffs’ Response,
p. 14 (citing Aff. of R. Mathews). The Mathews allege as follows: “The current problems with
the RV that remain unrepaired at minimum are: the bedroom slide out cable is broken, the DVD
player does not work (two repair attempts), the bedroom TV does not work (2 repair attempts),
the A/C is not keeping up (1 repair attempt), the rear of the coach is falling downward and not
level, the kitchen island cabinets are falling apart, and the water tank is falling out of the bottom
of the RV.” Id. But (and this is, as the saying goes, a really big “but”), the Mathews concede that
after the RV was returned to them on June 25, 2015, they never reported any problems to REV or
sought any additional repairs, nor did they attempt to have any problems corrected by any other
dealer or mechanic. On this point, as with many others, Mr. Mathews’ own sworn testimony
establishes this undisputed fact:
Q.: Then your next note indicates by July 1, 2015 the bedroom slide able had
broken; is that correct?
A.: That’s correct.
Q.: Now, that slide had never been addressed by the factory, correct?
A.: My observation was that that slide had never been trouble until the factory
fixed it.
Q.: But you’re not aware of whether or not or to the extent to which [sic] the
factory did anything to that slide during–
A.: That’s true. That’s correct.
Q.: Since the unit was returned to you on June 25th, 2015, have you presented this
[RV] to the factory or an authorized repair center to have any additional repairs
effectuated?

26

A.: No.
...
Q.: Have you used the unit since it was returned to you on June 25th of 2015?
...
A.: I was hopeful to use it close to home. But when I refilled the water tank,
shortly after that I recognized that the cabinets were pulling apart.
...
Q.: So as to that July 18, 2016 entry, is that about the time that you identified the
problem with the cabinets pulling apart and the level issue on the back of the unit?
A.: Yeah. . . .
Depo. of R. Mathews, pp. 94, 97. Mr. Mathews was asked again whether these alleged problems
were ever reported to REV or whether REV was given an opportunity to address them:
Q.: The issue with the separation of the island cabinet, has that ever been
presented to the factory or an authorized dealer?
A.: Only through this [lawsuit].
Q.: Because it wasn’t even discovered until July–
A.: That’s right.
Q.: –of 2016?
A.: That’s right.
...
Q.: The fresh water tank failure, is that an issue that has been presented to [REV]
or an authorized dealer for repair?
A.: Only through this litigation.
Id., pp. 107, 110. Mr. Mathews also conceded that the alleged issue with the bedroom slide out

27

cable (as distinct from the curbside slide out cable8) was not presented to REV or an authorized
dealer for repair. Id., p. 108.
The record does not reflect any communication between the Mathews and REV after the
vehicle was returned from the factory on June 25, 2015, until their attorney sent a letter of
representation and demand to REV on July 13, 2015. Plaintiffs’ Exh. 9 (ECF 30-9). This lawsuit
was filed about six weeks later.
Turning the focus to the Mathews’ claim for breach of the implied warranty of
merchantability, they argue that it was breached on the basis that it was “unconscionable,” and it
was unconscionable, they say, because they were not provided a copy of it until May of 2015
(and so were blind-sided by any limitations or restrictions included in it).9 Their Amended

8

Regarding the issue of the curbside slide out cable, REV makes the following important

point:
Plaintiffs argument in support of a breach of warranty has confused the issues
regarding the curbside slide and the bedroom slide, two distinct issues. Plaintiffs
concede that the bedroom slide is the only outstanding issue. . . . Yet, in support
of their breach of warranty claims, Plaintiffs argue that the repairs to the curbside
slide constitute an unreasonable number of repair attempts, and thus breach of the
warranty. A repaired defect cannot constitute a breach of warranty. . . . REV’s first
repair to the curbside slide was done at the December 2014 factory visit, at which
time the slide mechanism, not the slide cable was presented for repair. . . . The
second repair to the slide was done on the actual cable at the May 2015 visit. . . .
A broken curbside slide was never presented to REV again.
Defendant’s Reply, p. 6 (internal citations to deposition pages and exhibits omitted). This
distinction is relevant to the issue of whether REV had a reasonable number of opportunities to
correct alleged problems with the RV (and its related issue: whether the Mathews failed to even
present certain alleged problems to REV in the first place). This issue of reasonableness is
discussed at length below.
9

The Court notes that by taking the RV to Johnson’s, the Mathews effectively, albeit
unwittingly, obtained the intended benefit of the “Back Up Remedy.” Put another way, the
purpose of the Back Up Remedy was in essence effectuated when the Mathews had work done at
Johnson’s at no charge. So while the Mathews repeatedly refer to this warranty requirement as a
28

Complaint doesn’t include much in the way of specifics to support this argument. For example,
the Amended Complaint states as follows:
Through its advertising and otherwise, defendant represented that the recreational
vehicles which it manufactured were of merchantable quality, fit and in proper
condition for the ordinary use for which such vehicles are designed and used, and
the Mathews Family relied on such, but the vehicle involved in this case was not,
however, of merchantable quality and that was unfair and/or deceptive and/or
unconscionable to the Mathews Family.
Amended Complaint (ECF 21), p. 11. This broad (not to mention conclusory) language appears
repeatedly throughout the Amended Complaint, sans factual details. Nonetheless, the Mathews
argue that their claim for breach of implied warranty of merchantability should survive summary
judgment. The Mathews concede that the Limited Warranty offered by REV expressly limited the
duration of any implied warranties and contained clear and unmistakable language to that effect,
as required under Indiana law. Plaintiffs’ Response, p. 30. However, the Mathews argue that such
a limitation of an implied warranty is enforceable only “if the limitation is conscionable[.]” Id.
The Mathews contend that “[h]ere, [REVs] attempt to limit the duration of its implied warranty
of merchantability is ineffective because it is unconscionable[]” because REV “failed to make the
warranty available to Plaintiffs at the time that the sale contract was signed.” Id., p. 31. None of
these contentions, however, render the Limited Warranty unconscionable. The Mathews
arguments, as REV points out, have been rejected by several courts. REV argues as follows:
[D]evoid of any legal support (perhaps because there is none), plaintiffs maintain

“secret Back Up Remedy” since they were not given a physical copy of it before they took their
RV to Johnson’s (see Plaintiffs’ Response, pp. 25-27), the essential purpose of it as far as the
purchasers are concerned–allowing them to take their RV to a local mechanic for servicing at no
charge–was achieved. Of course, this does not change the undisputed facts that REV had no
knowledge of the RV being taken to Johnson’s and Johnson’s was never authorized to perform
those repairs.
29

because they were not provided with the Limited Warranty until after the purchase
of the RV and because they were not aware of the terms, then there was no
meeting of the minds. This argument has been rejected by this court, and several
others. See, S & O Liquidating P’ship v. C.I.R., 291 F.3d 454, 459 (7th Cir. 2002);
Hughes Masonry Co. v. Greater Clark Cnty. Sch. Bldg. Corp., 659 F.2d 836, 839
(7th Cir. 1981) (“In short, (plaintiff) cannot have it both ways. (It) cannot rely on
the contract when it works to its advantage, and repudiate it when it works to (its)
disadvantage.” (citations and quotations omitted)). In Dixon [v. Monaco Coach
Corp., 2009 U.S. Dist. LEXIS 5737 (N.D. Ind. 2009)]10 the Dixons argued they
were not given an opportunity to bargain the terms of the Limited Warranty
provided with an RV, because they did not receive it until 7 months after they
purchased the RV. Dixon, 2009 U.S. Dist. LEXIS 5737 at *7. Plaintiffs thus
concluded they could not be bound to the terms of the warranty. Id. The court
rejected Plaintiffs arguments and noted:
While lamentable, this Court does not find the stated deficiencies with the
delivery of the warranty’s terms sufficient to prevent the application of the
statute of limitations stated therein. To begin, the Dixons failed to present
any authority to show that a failure of delivery is sufficient, in itself, to
negate the express terms of a limited warranty. Instead, even assuming that
the Dixons’ representations are accurate and they did not actually receive
the warranty’s terms until seven months after they purchased the RV at
issue, the Dixons were clearly on notice from that point forward of the
warranty’s terms.
Id. The court further asserted:
It is undisputed the Dixons took advantage of the warranty prior to filing
their claim, requesting and receiving numerous repairs from Monaco during
the applicable warranty period. As such, the Dixons can not now argue that
they are suddenly surprised by the application of the Limited Warranty and
its terms relating to the filing of breach of warranty claims.
Id. at 8.
Just like the Dixons, Plaintiffs state they were not provided a copy of the Limited
Warranty at the time of purchase. In an uncanny parallel, Plaintiffs have also
failed to provide any authority to support the argument that a failure of delivery is
sufficient to allow the court to ignore the terms of the warranty. Plaintiffs have
tried to paint a picture that the Limited Warranty was somehow hidden from them,
but the facts do not support that picture. Plaintiffs have not alleged they were ever
10

2009 WL 187837 (N.D.Ind. Jan. 27, 2009).
30

denied a copy of the warranty after requesting it, or that prior to purchasing the
RV they were explicitly refused an opportunity to review the warranty. . . . They
also do not allege they ever notified REV that they had not received a copy of the
warranty. [Id.]. Plaintiffs were clearly on notice of the existence of the Limited
Warranty, having been told when [they] purchased the RV that there was a
warranty. . . . Plaintiffs also took full advantage of the Limited Warranty on two
separate occasions.
Defendant’s Reply, pp. 9-11 (internal citations to Defendant’s exhibits omitted). The Dixon case
is remarkably similar to the present one, as the Mathews contend that they did not receive a copy
of the Limited Warranty for a year after their purchase but admit in their testimony that they took
advantage of the Limited Warranty on two occasions (although they, like the Dixons, argue that
they were not completely satisfied with the repairs).
Another district court, addressing the same issue in a similar factual context, held as
follows:
Here, Plaintiffs allege in their response to the motion for summary judgment that
they were unaware of the warranty’s limitation clause at the time of purchase[.] . .
. Even assuming that Plaintiffs were unaware of the limitation provision, they do
not allege that they were unaware of the written warranty at the time they
purchased the motorhome. Moreover, they sought to take advantage of the
benefits of the written warranty by having their motorhome repaired (though, of
course, they allege the repair efforts were not entirely successful). See Merricks [v.
Monaco Coach Corp.], 2008 WL 5210856, at *5 [W.D. Va. Dec. 15, 2008]
(noting that plaintiffs had “taken advantage of the beneficial portions of the
warranty, receiving free repairs and service under it”–even though the plaintiffs
alleged that the numerous repair attempts were unsuccessful–and thus had to
“accept the less advantageous portions of the warranty, such as a reduced statute
of limitations”).
Dytko v. Forest River, Inc., 2017 WL 5611613, at *6 (D.N.M. Nov. 20, 2017). For these reasons,
the Mathews’ argument that the limitations contained in the Limited Warranty were
unconscionable because they had not been given a copy of it at the time of purchase is
unsupported by both the facts and the law.
31

But once again, the determinative issue is not whether the Mathews were aware of any
warranty limitations but rather, whether the warranty coverage was breached. It is undisputed
that the Mathews never contacted REV or any other dealer or servicer seeking to enforce the
warranty and obtain repairs to any issues after they received the RV back from the factory on
June 25, 2015. REV had no notice nor any opportunity to repair or cure the issues the Mathews
allege arose since that date. On the two occasions when the Mathews did contact REV and voice
complaints, the vehicle was taken into the factory to address and repair all the problems the
Mathews presented, in keeping with the terms of the warranty.
Finally, the Mathews argue that the Limited Warranty was breached because it “failed of
its essential purpose.” Plaintiffs’ Response, p. 26. They state that “[a]n exclusive remedy . . . has
failed of its essential purpose where attempted repairs fail to correct the problem.” Id. (citing
Swan Lake, 2010 LEXIS 103405, *18. That is a correct statement of law but not a valid
argument, since it assumes that REV had a reasonable number of opportunities to repair
problems presented to it and failed to do so–a conclusion that the undisputed facts do not
support, as the Court has explained. Accordingly, the Mathews’ argument that the Limited
Warranty was breached because it failed of its essential purpose is unavailing.
III. The Mathews’ allegations of violations of state law deceptive practices statutes
are unsupported by the undisputed facts and the applicable law.
The Mathews’ ambiguously pleaded claim for violation of some unspecified deceptive
practices statute also fails. The Mathews argue in their brief that REV committed a deceptive act
under Virginia and Pennsylvania law. Plaintiffs’ Response, p. 38-42. They present no discussion
or argument that REV violated a comparable Indiana statute, even though their Amended

32

Complaint states that they are asserting claims under “the Pennsylvania and/or Virginia and/or
Indiana “Udap” laws, i.e., state-enacted Unfair and Deceptive Acts statutes.” Amended
Complaint, p. 2. Later in their Amended Complaint the Mathews allege the following:
This claim is for violation of applicable state Udap laws, being the Pennsylvania
Unfair Trade Practices and Consumer Protection Law, and/or the Virginia
Consumer Protection Act, and/or the Indiana Deceptive Consumer Sales Act, by
defendant.
...
[REV] committed one or more unfair and/or deceptive and/or unconscionable acts
or practices in violation of the Indiana Udap law, before, during or after a
consumer transaction between the Mathews Family and a supplier in relation to
the 2014 Holiday Rambler Presidential [RV].
Id., p. 14, ¶ 49; p. 16, ¶ 52. So, the Mathews’ Amended Complaint references statutes from
Virginia, Pennsylvania and Indiana, but the allegations in the Complaint refer only to a violation
of some unspecified “Indiana Udap law.” In their brief, however, the Mathews abandon the
allegations in the Amended Complaint and argue that REV violated consumer protection statutes
of Virginia “and/or” Pennsylvania. Plaintiffs’ Response, pp. 38-42. Their response brief, though,
presents no discussion or argument about–nor does it even reference–any Indiana statute (“Udap”
or otherwise). But since this Court is applying Indiana law to this claim for the reasons already
discussed above, the Court will infer, again in deference to the Mathews as the nonmovants, that
they intended to plead a claim under the Indiana Deceptive Consumer Sales Act. As this Court
has explained previously:
Indiana’s Deceptive Consumer Sales Act (IDCSA), Ind. Code § 24-5-0.5-1 et seq.,
is a remedial statute that must be “‘liberally construed and applied to promote its
purposes and policies’ of protecting consumers from deceptive or unconscionable
sales practices.” Kesling v. Hubler Nissan, 997 N.E.2d 327, 332 (Ind. 2013)
(quoting § 24-5-0.5-1). Pursuant to the IDCSA, a supplier commits a deceptive act
when it makes certain representations “as to the subject matter of a consumer
33

transaction, which can be made orally, in writing, or by electronic
communication.” § 24-5-0.5-3(b).
Such representations include, in relevant part:
(1) That such subject of a consumer transaction has sponsorship, approval,
performance, characteristics, accessories, uses, or benefits it does not have which
the supplier knows or should reasonably know it does not have;
(2) That such subject of a consumer transaction is of a particular standard, quality,
grade, style, or model, if it is not and if the supplier knows or should reasonably
know that it is not;
...
(8) That such consumer transaction involves or does not involve a warranty, a
disclaimer of warranties, or other rights, remedies, or obligations, if the
representation is false and if the supplier knows or should reasonably know that
the representation is false.
Id. A deceptive act is only actionable if it is either “uncured” or “incurable.” Perry
v. Gulf Stream Coach, Inc., 814 N.E.2d 634, 647 (Ind.Ct.App. 2004). An
“uncured deceptive act” is defined as a deceptive act “with respect to which a
consumer who has been damaged by such act has given notice to the supplier. . .
but the supplier either fails to offer to cure within thirty days or does offer to cure
but fails to cure within a reasonable time after the consumer accepts the offer.” Id.
(citing Ind. Code § 24-5-0.5-2) (internal quotation marks omitted); see also id.
(noting that an intent to defraud or mislead is not an element to an uncured
deceptive act). An “incurable defective act,” on the other hand, is defined as an act
“done by a supplier as part of a scheme, artifice, or device with intent to defraud
or mislead.” Ind. Code § 24-5-0.5-2(a)(8).
Popham v. Keystone RV Co., 2016 WL 4993393, at *9 (N.D. Ind. Sept. 19, 2016) (italics added).
In this case, the Mathews claim that REV had sufficient opportunities to cure any defects
(counting the repairs done by Johnson’s, of course) but failed to do so. To proceed on a claim
under the IDCSA then, they must establish that REV “fail[ed] to cure within a reasonable time”
or after a reasonable number of opportunities. But the Court has already determined that the
undisputed facts do not support that allegation, and in fact prove otherwise. The Mathews’

34

allegation that REV committed a deceptive act by “fail[ing] to repair the RV’s defects in a
reasonable amount of time or a reasonable number of repair attempts” is belied by the undisputed
facts and unsupported by case law. Even assuming, again out of deference to the nonmovants,
that the two repair visits to Johnson’s, which REV knew nothing about, should be imputed to
REV–the law does not support the Mathews’ argument that that in turn constitutes a breach of
REV’s duty to repair within a reasonable time or after a reasonable number of attempts. The
Mathews, citing to this Court’s decision in Cimino v. Fleetwood Enterprises, acknowledge the
elements of a claim for breach of express warranty. Plaintiffs’ Response, p. 35. In Cimino, Judge
Springmann explained as follows:
In order to prevail on a claim [for breach of warranty], the Plaintiffs have the
burden of establishing, by a preponderance of the evidence, five elements: (1) the
Plaintiffs complied with the terms of the warranty; (2) the motor home contained
a defect covered by the warranty; (3) the Defendants were given a reasonable
opportunity to perform the necessary repairs; (4) the Defendants were unable to
repair the defect within a reasonable time or after a reasonable number of
attempts; and (5) the Plaintiffs have suffered damage.
Cimino v. Fleetwood Enterprises, Inc., 542 F.Supp.2d 869, 882 (N.D. Ind. 2008) (italics added)
(citations in accompanying footnote omitted). The Mathews contend that REV had sufficient
opportunities and sufficient time to repair problems with the RV and failed to do so–an argument
the Court has already determined is unsupportable in light of the undisputed facts showing that
the Mathews sought and obtained repairs to the RV under the terms of the Limited Warranty on
only two occasions, and that many alleged issues were never presented at all. REV, also citing
this Court’s decision in Cimino, notes that “[t]he standard for reasonableness is not measured by
time alone, but is measured by a reasonable amount of time or reasonable number of attempts.”
Defendant’s Reply, p. 4 (emphasis in original). REV cites a number of cases on this point. Id.
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(citing Marchionna v. Ford Motor Co., 1995 U.S. Dist. LEXIS 11408 *11 (N.D. Ill. 1995);
Malkamaki v. Sea Ray Boats, 2005 U.S. Dist. LEXIS 33807 *9 (N.D. Ohio 2005); Portillo v.
Georgie Boy Mfg., 2005 U.S. Dist. LEXIS 25071, *4 (N.D. Ill. 2005) (holding six times is
reasonable opportunity for repair); Cimino, 542 F.Supp.2d 869, n. 4 (citing Evans v. GMC, 459
F.Supp.2d 407 (D.Md. 2006) (establishing 4 opportunities is a reasonable number of attempts to
cure)).
In Anderson v. GulfStream Coach, the Seventh Circuit addressed this reasonableness
standard and concluded that the defendant in that case did have reasonable opportunities and a
reasonable amount of time to perform repairs, but failed to do so:
[V]iewed in the light most favorable to the Andersons, the record supports their
claim that Gulf Stream was given a reasonable opportunity to cure. The
Andersons took the Tourmaster back to Royal Gorge for repairs many times from
September 2008 to January 2009. Numerous warranty claims were sent to Gulf
Stream over that time period describing the problems with the Tourmaster.
...
It was not until March 27, 2009, that Gulf Stream sent a letter to the Andersons
offering to extend its warranty and to take the Tourmaster back to its factory in
Indiana for repairs. At that point, nearly two months had passed since Gulf Stream
had offered but failed to send parts to Royal Gorge. Gulf Stream could have cured
by honoring its commitment to work with Apple to repair the Tourmaster. It did
not. . . . The Andersons gave Gulf Stream plenty of time to fix the problems with
the Tourmaster.
Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775, 783 (7th Cir. 2011) (italics added). The
circumstances in the present case, however, are markedly different in that REV had only two
opportunities to perform repairs before the Mathews yelled breach, and even then many of the
Mathews’ complaints, by their own admission, were never communicated to REV.
The varied conclusions in these cases as to what constitutes reasonableness reflect the
fact-specific nature of breach of warranty claims, which is exactly why Indiana law provides that
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“‘[t]he standard to be applied in determining whether or not there has been a breach of warranty
is one of reasonableness in light of surrounding circumstances.’” Swan Lake, 2010 WL 3894576,
at *3 (quoting Barnes v. MacBrown and Company, Inc., 342 N.E.2d 619, 621 (Ind. 1976)); see
also, Peltz Const. Co. v. Dunham, 436 N.E.2d 892, 895 (Ind.Ct.App. 1982); Deckard v. Ratcliff,
553 N.E.2d 523, 525 (Ind.Ct.App. 1990).11
The Mathews’ also argue that REV violated the IDCSA (or Virginia or Pennsylvania
statutes, but those are not at issue for the reasons already discussed) because it “unconscionably
limited the duration of its Limited Warranty” and such an unconscionable act in turn supports an
IDCSA claim. Plaintiffs’ Response, p. 30. REV contends that the Mathews’ position is belied by
the undisputed fact that the Mathews “acknowledge they were aware a warranty existed and took
full advantage of it. . . . Accordingly, they must accept its burdens. . . . Plaintiffs do not allege
that they were denied a copy of the warranty or [that] they ever requested copies and were
refused. . . . The evidence shows that Plaintiffs first informed REV in May 2015 that they did not
have a copy of the warranty. . . . Upon learning this REV promptly provided one. Prior to this,
REV had [no] way of knowing that the dealership had not included a copy.” Defendant’s Reply,
p. 21.
In Indiana, “[u]nconscionability is a question of law” for a court and “[t]he party raising
11

This standard is the same in Virginia (see, e.g., Ferguson v. Upper Chesapeake Med.
Servs., Inc., 91 F.3d 130 (4th Cir. 1996) (discussing cases holding that whether breach of
warranty has occurred depends on surrounding circumstances)) and Pennsylvania (see e.g.,
Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 18 (Pa. 2011) (“buyer must within a
reasonable time after he discovers or should have discovered any breach notify the seller of
breach or be barred from any remedy”) (quoting 13 Pa.C.S. § 2607(c)(1)).

37

the issue bears the burden of proof.” Martin Rispens & Sons v. Hall Farms, 621 N.E.2d 1078,
1086 (Ind.Ct.App. 1993), abrogated on other grounds by Hyundai Motor Am., Inc. v. Goodin,
822 N.E.2d 947 (Ind. 2005).
As this Court explained in Popham v. Keystone RV:
A one-year durational warranty is not per se unconscionable. “The possibility that
a latent defect may exist is one of the risks present at the time the contract is
formed,” Martin Rispens, 621 N.E.2d at 1086, and does not, in and of itself,
render a contract unconscionable. In fact, most consumers encounter time
limitations in warranties for newly purchased products, oftentimes for one-year or
less, and still take such a risk by going through with the purchase. See, e.g.,
Nation Enter., Inc. v. Enersyst, Inc., 749 F.Supp. 1506, 1508 (N.D. Ill. 1990)
(pizza oven with one-year warranty); Rutledge v. Hewlett-Packard Co., 190
Cal.Rptr.3d 411, 418 (Ct.App. 2015) (laptop with one-year warranty); Nulite
Indus. Co. v. Horne, 556 S.E.2d 255, 256 (Ga.Ct.App. 2001) (vinyl siding and
windows with one-year warranty). The Plaintiff has put forward no evidence
showing that the Limited Warranty was oppressive as applied to the Plaintiff–all
the evidence shows that the Defendant timely remedied RV issues during the
Limited Warranty period, which is by no means unconscionable. See Jones v.
Fleetwood Motor Homes, 127 F.Supp.2d 958, 966 (N.D. Ill. 2000) (reasoning
similarly).
Popham v. Keystone RV Co., 2016 WL 4993393, at *6-7 (N.D. Ind. Sept. 19, 2016); see also,
Hahn v. Ford Motor Co., 434 N.E.2d 943, 952 (Ind.Ct.App. 1982) (“Modification of warranties
and limitations of remedy are not per se unconscionable.”). REV is correct when it argues that
the Mathews were aware of the Limited Warranty and its terms, and even took advantage of it by
having repair work done at REV’s factory on two (and only two) occasions, so they cannot claim
now that any of its terms or limitations are unconscionable based on the fact that they did not
receive physical copy of it at the time of sale.
Finally, the Mathews, double down on their unconscionability argument by adorning it
with additional assertions. Plaintiffs’ Response, p. 40. They claim that REV committed several

38

unconscionable acts, in addition to not providing them with a copy of the warranty, and that any
one of these acts could in turn constitute a deceptive act giving rise to their IDCSA claim. The
Mathews state as follows:
Here, reasonable minds could conclude that Defendant committed one or more
unfair or deceptive acts in connection with a consumer transaction when it did the
following acts . . . : (1) attempted to unconscionably limit its express warranty, (2)
failed to make a copy of its express warranty available to Plaintiffs prior to their
purchase of the RV, (3) failed to provide Plaintiffs with a local authorized dealer,
(4) delivered an RV to Plaintiffs that contained a latent defect in the fresh water
tank support system, (5) delivered an RV to Plaintiffs that was and is now and was
[sic] uninhabitable at the time of delivery because the improper slide out fit and
failing slide out seals do not allow the A/C (or the heater) to reach or sustain
comfortable temperatures, (6) failed to repair the RV’s defects in a reasonable
amount of time or a reasonable number of repair attempts, and/or (7) failed to
deliver to Plaintiffs an RV that was fit for its ordinary use.
Plaintiffs’ Response, pp. 41-42.
That is quite a laundry list of alleged deceptive acts and also a problematic one. As REV
points out, the Mathews’ “Amended Complaint is devoid of any mention of the last six
allegations. The first allegation was stated in the Complaint, but as argued above, Plaintiffs have
failed to establish that the duration of the Limited Warranty is unconscionable. . . . Allowing
Plaintiffs to amend their Complaint this late in the game is improper and the court should deny
the consideration [sic] of these allegations in [its] ruling on Summary Judgment.” Defendant’s
Reply, p. 20. The language in the Amended Complaint controls since, as REV points out, “‘[a]
plaintiff may not amend his complaint through arguments in his brief in opposition to a motion
for summary judgment.’” Defendant’s Reply, p. 19 (quoting Shanahan v. City of Chicago, 82
F.3d 776 (7th Cir. 1996)). REV states that “[a] party is attempting to amend their complaint if
they are seeking to change the factual theory which their claim is based upon and the court may

39

deny consideration of the new factual claims.” Id., pp. 19-20 (citing Chessie Logistics Co. v.
Krinos Holdings, Inc., 867 F.3d 852, 860 (7th Cir. 2017)). That is a correct statement of a wellestablished point of law. See Trusley v. JPMorgan Chase Bank, N.A., 2017 WL 2655616, at *3
(S.D. Ind. June 19, 2017) (a plaintiff “may not amend his Complaint through statements in his
response brief[]”) (citing Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012)). Moreover,
argues REV, “even if the court were to consider all seven allegations against REV, Plaintiffs’
claims cannot succeed. . . . Neither Indiana, Virginia, or Pennsylvania [statutes] provide that the
alleged actions constitute a deceptive act under the statute.” Id.
REV’s argument is well taken. The Mathews cannot avoid summary judgment by
presenting new theories of recovery to oppose it. But even if these new arguments are proper they
still fail to support a claim for a deceptive or fraudulent act. The first three allegations on their
list have already been addressed and determined to be unfounded. The fourth and fifth allegations
refer to alleged problems that were either addressed by REV or never presented for repair. The
six allegation–that REV had reasonable opportunity to make repairs but failed to do so–has also
been rejected. And the seventh allegation is not an allegation at all, but a factual and legal
conclusion that serves only to restate the Mathews’ argument that the RV was not merchantable.
For these reasons the Mathews’ arguments that REV committed a deceptive act are insufficient
to withstand the motion for summary judgment.
This case is a cluttered mess of immaterial factual disputes, unsupportable claims and
maze-like presentation of arguments. But a 30,000-foot view of it, with the undisputed material
facts in focus, reveals the fatal flaws in the Mathews’ Amended Complaint. The Mathews’
factual recitation paints a vivid picture of the many problems they had with the RV and their
40

efforts to get those problems repaired. But undisputed material facts prove REV’s contention that
it did not breach any warranty, and so all of the Mathews’ claims fail as a matter of law. The
problems with the RV so frustrated the Mathews that they tried to return it and get their money
back, but REV refused. That was the fuse that lit the Mathew’s ire and compelled them to file
this lawsuit. As the Mathews state it:
The RV’s continuing defects, problems, and malfunctions became a never-ending
story the Mathews Family didn’t want to hear or experience, and most certainly
not what they thought they were getting when they first looked at the Holiday
Rambler Presidential RV as it sat new on the dealer’s lot before they bought it. At
the end of it all, their patience exhausted, they asked the factory to take it back and
give them back their money. The answer they got is the reason this lawsuit was
filed.
Amended Complaint, p. 5, ¶ 15. This paragraph is as telling as it is problematic. It is problematic
because it is a subjective statement of the Mathews’ (largely understandable) level of frustration
rather than a factual assertion and so has no relevance to any issue. It is telling because it reveals
the fatal flaw in their case: their frustration boiled over and took the form of this lawsuit, but the
undisputed material facts–revealed in the Plaintiffs’ own testimony–do not provide a legal basis
for it.
The Mathews’ claims all stem from their premise that REV “was not able to repair [the
RV] within a reasonable number of chances or a reasonable amount of time” and so REV
breached its “express and/or implied warranties[.]” Amended Complaint, p. 3. They allege that
REV or its agent (i.e., Johnson’s) “tried fixing the RV’s many defects repeatedly” after they
“notified both the dealer and the defendant of this and many more defects in the RV.” Amended
Complaint, pp. 6-7. But for the reasons discussed at great length above, these statements are not
accurate factual assertions; they are instead conclusory statements that are contradicted by the
41

undisputed material facts.
The Mathews pulled out all the stops in their effort to convince the Court that genuine
issues exist that preclude summary judgment. REV refers to the Mathews’ arguments as a “throw
everything against the wall and hope something sticks approach[,]” which is an accurate
characterization. The Mathews raise and argue about many factual disputes but they tiptoe away
from the determinative ones, and the “mere existence of some alleged factual dispute between the
parties” will not defeat a motion for summary judgment, nor will the existence of “some
metaphysical doubt as to the material facts.” Michas v. Health Cost Controls, 209 F.3d at 692
(quoting Anderson v. Liberty Lobby, 477 U.S. at 247; Matsushita Elec., 475 U.S. at 586). It is
equally well established that “speculation and conjecture” also cannot defeat a motion of
summary judgment, see Cooney v. Casady, 735 F.3d 514, 519 (7th Cir. 2013), and the Mathews’
arguments in opposition to summary judgment rely heavily on both. There is a big difference
between raising confusion about facts and actually demonstrating that genuine issues exist that
require a trial. In this case, the Mathews have done the former but failed to accomplish the latter.
IV. The Mathews’ claim under the Magnuson-Moss Warranty Act fails
because their underlying state law breach of warranty claim is not viable.
Finally, REV argues that the Mathews cannot maintain their claim under the MagnusonMoss Warranty Act because the Act “‘does not provide an independent basis for liability; it only
provides for federal jurisdiction for state claims.’” Defendant’s Memorandum, p. 20 (quoting
Priebe v. Autobarn, Ltd., 240 F.3d 584, 587 (7th Cir. 2001)). REV argues that since the
Mathews’ state law breach of warranty claims fail, they cannot take advantage of the MMWA.
Id. In Priebe, the Seventh Circuit did indeed hold that “[t]he portion of the [Magnuson-Moss]

42

Act under which Priebe sues does not provide an independent basis for liability; it only provides
for federal jurisdiction for some state claims, including this breach of contract claim.” . . .
Because Priebe’s underlying breach of contract claim fails, his Magnuson-Moss Act claim cannot
succeed.” Priebe, 240 F.3d at 587 (italics added). Even the Mathews note in their brief that the
MMWA expressly “defines ‘implied warranty’ as ‘an implied warranty arising under state
law[.]’” Plaintiffs’ Response, p. 35 (quoting 15 U.S.C. § 2301(7)); see also, Schiesser v. Ford
Motor Co., 2016 WL 6395457, at *4 (N.D. Ill. Oct. 28, 2016) (“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). The ability to sustain a cause of action under the Magnuson-Moss
Act is dependent on the existence of an underlying viable state-law warranty claim.” Schiesser,
2016 WL 6395457, at *4 (citing In re Gen. Motors Corp. Dex-Cool Products 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.”). The Mathews cannot proceed with their MMWA claim
because their state law claim for breach of implied warranty–i.e., the “borrow[ed] state law
cause[] of action” on which it is founded–is itself not viable. Stated most simply, where there is
no breach there is no cause of action under either state or federal law. REV is entitled to
summary judgment on the Mathews’ claim under the Magnuson-Moss Warranty Act.
V. Defendant’s motion to strike Plaintiff’s expert evidence.
REV moved to strike the testimony of Tom Bailey, the Mathews’ proposed expert who
inspected the RV and prepared an report itemizing alleged defects with the RV and how much it
43

would cost to repair them. Mr. Bailey’s testimony and report go to the issue of damages, which
the Court need not reach. Accordingly, REV’s motion is denied as moot.
VI. Plaintiffs’ motion to amend their response nunc pro tunc.
The Mathews filed this motion seeking “to replace the heading on page 1 of Plaintiffs’
brief in opposition to Defendant’s motion for summary judgment which currently reads
“Statement of Facts” with the correct heading “Statement of Genuine Disputes.” Motion for
Leave to Amend Plaintiffs’ Brief, p. 1. The Mathews filed this motion in response to REV’s
argument in its reply brief that the Mathews did not comply with this Court’s local rules because
they failed to “specifically ‘include a section labeled ‘Statement of Genuine Disputes’ that
identifies the material facts that the party contends are genuinely disputed so as to make a trial
necessary.’” Defendant’s Reply, p. 2, n.1 (quoting N.D.Ind. L.R. 56.1(b)(2). REV argues that the
Mathews “did not comply with the rules and, therefore, has not properly disputed any of the facts
identified by REV in its Statement of Material Facts. The Court should take the facts in REV’s
Statement of Material Facts as admitted.” Id. (citing L.R. 56.1; Rangel v. Schmidt, 2011 LEXIS
132481, at *15-17 (N.D. Ind. 2011)).
The Mathews filed their motion to amend “seek[ing] leave to amend their brief nunc pro
tunc out of [an] abundance of caution and in strict compliance with [local rules]. [REV] will not
be prejudiced by the amendment, because Plaintiffs merely seek to amend only the heading of the
disputed facts section of the brief and not to amend the substantive disputed facts themselves[.]”
Plaintiffs’ Motion to Amend, p. 2. The Plaintiffs maintain that “it is clear from Plaintiffs’ motion
that the heading for the disputed facts section was simply a drafting error[.]” Plaintiffs’ Reply in
Support of Motion to Amend (ECF 43), p. 2.
44

REV is correct that the Mathews’ brief is not in strict compliance with the local rules for
this district, but the issue is obviously moot given the Court’s ruling on the motion for summary
judgment. The incorrect heading in the Plaintiffs’ brief was a mistake and a bit of a sloppy one,
but in the end it did not affect anything or have any impact on the Court’s analysis, reasoning or
conclusions. The issues before the Court were not confused by the fact that the Mathews’ brief
contained a incorrect heading. As the Mathews put it, “the error does not impact the merits of the
brief itself or the many facts in dispute as seen from the Plaintiffs’ brief.” Plaintiffs’ Reply in
Support of Motion to Amend, p. 2. The Mathews contend, and they are correct, that “Plaintiffs’
Brief in opposition repeatedly states that the material facts are in dispute, and those disputed facts
are outlined in detail within the Brief.” Id. In sum, the issues presented by the motion for
summary judgment, and the Mathews’ arguments in opposition, are set out in great detail in their
briefs (as they should be, given that the parties needed extra time and extra pages to explain their
positions). The Court carefully reviewed the parties’ pleadings and evidence, and their
substantive arguments are clear. The Mathews’ error in their brief was of no moment. The
resolution of REV’s motion for summary judgment turns wholly on the undisputed material
facts, and thus the error in the Mathews’ brief does nothing to change the calculus. And
obviously, given the Court’s conclusions, REV was not prejudiced by it. The Mathews’ motion is
therefore moot.
CONCLUSION
For the reasons discussed above, REV’s motion for summary judgment (ECF 29) is
GRANTED; REV’s motion to strike expert opinion (ECF 28) is DENIED AS MOOT; and the
Mathews’ motion to amend their brief in opposition is DENIED AS MOOT.
45

Date: April 2, 2018.
/s/ William C. Lee
William C. Lee, Judge
U.S. District Court
Northern District of Indiana

46