Clark v. General Motors, LLC
ORDER denying 60 Motion for Partial Summary Judgment Signed by Chief District Judge Louis Guirola, Jr on 08/18/2017 (Guirola, Louis)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 1:16cv251-LG-RHW
GENERAL MOTORS, LLC
ORDER DENYING DEFENDANT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT is the Motion for Partial Summary Judgment 
filed by the defendant General Motors, LLC, concerning the issue of whether
General Motor’s Better Business Bureau Auto Line Informal Dispute Resolution
Procedure complies with 16 C.F.R. § 703. The plaintiff Kelly Clark has not filed a
response in opposition to the Motion. After reviewing the Motion, the record in this
matter, and the applicable law, the Court finds that General Motors’ Motion should
Kelly Clark filed this lawsuit, alleging that she purchased a defective 2015
Chevrolet Tahoe manufactured by General Motors. In her Complaint, Clark asserts
the following claims against General Motors: breach of written warranty pursuant
to the Magnuson-Moss Warranty Act, breach of implied warranty pursuant to the
Magnuson-Moss Warranty Act, and violation of the Mississippi Motor Vehicle
Warranty Enforcement Act.
A motion for summary judgment may be filed by any party asserting that
there is no genuine issue of material fact and that the movant is entitled to prevail
as a matter of law on any claim. Fed. R. Civ. P. 56. The movant bears the initial
burden of identifying those portions of the pleadings and discovery on file, together
with any affidavits, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant
carries its burden, the burden shifts to the non-movant to show that summary
judgment should not be granted. Id. at 324-25.
As noted above, Clark did not file a response to General Motors’ Motion. A
motion for summary judgment cannot be granted simply because there is no
opposition, even if the failure to oppose violated a local rule. Factual controversies
are resolved in favor of the non-moving party, but only when there is an actual
controversy; that is, when both parties have submitted evidence of contradictory
facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Ultimately, the
movant has the burden of establishing the absence of a genuine issue of material
fact and, unless he has done so, the court may not grant the motion, regardless of
whether any response was filed. Hibernia Nat. Bank v. Administracion Cent.
Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).
The Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. § 2301 et seq.,
“establishes standards governing the content of consumer product warranties . . .
and creates a legal remedy for consumers who are harmed by a warrantor’s failure
to comply with the obligations established in a warranty.” Walton v. Rose Mobile
Homes LLC, 298 F.3d 470, 472 n.3 (5th Cir. 2002). As part of the MMWA, Congress
ordered the Federal Trade Commission to “prescribe rules setting forth minimum
requirements for any informal dispute settlement procedure which is incorporated
into the terms of a written warranty to which any provision of this chapter applies.”
15 U.S.C. § 2310(a)(2). The MMWA further provides that “warrantors may
establish an informal dispute settlement procedure which meets the requirements
of the Commission’s rules.” 15 U.S.C. § 2310(a)(3). If the informal dispute
settlement procedure complies with those rules, which are codified at 16 C.F.R. §
703 et seq., then any decision made in that procedure is admissible in evidence “[i]n
any civil action arising out of a warranty obligation and relating to a matter
considered in such a procedure.” 15 U.S.C. § 2310(a)(3)(C).1
General Motors seeks partial summary judgment as to the issue of whether
its informal settlement dispute procedure — the Better Business Bureau Auto Line
Informal Dispute Resolution Procedure — complies with the Federal Trade
Commission’s rules. General Motors has produced an affidavit signed by Nancy C.
Loader, who serves as the National Director for the Better Business Bureau’s Auto
Line program. (Def.’s Mem., Ex. 2, ECF No. 61-2). She testifies that the Auto Line
“procedures were originally established to comply with the provisions of 16 C.F.R.
Part 703.” (Id.) She also testifies that Auto Line “submits to an annual outside
Graham v. Hyundai Motor Am., 855 N.E.2d 562, 622-24 (Ill. App. Ct. 2006),
provides a thorough discussion of the requirements of 16 C.F.R. § 703.
audit to confirm that it continues to comply with the provisions of 16 C.F.R. Part
703,” and every audit conducted as to Auto Line “has confirmed its compliance with
the provisions of 16 C.F.R. Part 703.” (Id.) She further opines that “to the best of
her knowledge, BBB Auto Line complies with the provisions of 16 C.F.R. Part 703.”
The Court has reviewed the Auto Line audits pertaining to General Motors’
compliance with 16 C.F.R. § 703. The 2015 audit, which focused on the 2016 Chevy
Limited Warranty and Owner Assistance Manual, provided that General Motors
was in “substantial compliance” with the FTC rules but noted that there was room
for improvement as to the notice provided to customers. http://www.ftc.
gov/system/files/documents/reports/2015-audit-better-business-bureau-includingstate-florida-state-ohio/2015_audit_of_bbb_ auto_line.pdf (last visited Aug. 17,
2017). The auditor further stated, “GM does not appear to give notice consistent
with Rule 703.2(e).” Id. The Court also reviewed the 2013 audit, which found that
General Motors was in compliance, but the 2014 audit was not available on the FTC
website. It is unclear which audit pertains to the warranty on Clark’s vehicle.
General Motors has not briefed the issue of whether substantial compliance
is sufficient to satisfy 15 U.S.C. § 2310(a)(3)(C). It also has not demonstrated that a
2014 audit was performed as required by 16 C.F.R. § 703.7(a) or provided sufficient
information from which this Court could determine which audit should be
considered in this case. As a result, General Motors has not met its burden of
demonstrating that it is entitled to judgment as a matter of law as to this issue and
the Motion for Partial Summary Judgment must be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion for
Partial Summary Judgment  filed by the defendant General Motors, LLC is
SO ORDERED AND ADJUDGED this the 18th day of August, 2017.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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