J-Hanna v. Tucson Dodge Inc.
| Decision Date | 04 October 2011 |
| Docket Number | No. CIV 10-504-TUC-CKJ,CIV 10-504-TUC-CKJ |
| Parties | ARIANN J-HANNA, Plaintiff, v. TUCSON DODGE INC., et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is the Motion for Judgment on the Pleadings filed by Enterprise Rent-A-Car ("Enterprise") (Doc. 30), the Motion to Stay Case and Compel Arbitration filed by Tucson Dodge Incorporated ("Tucson Dodge") (Doc. 32), the Motion to Dismiss Case filed by Tucson Chrysler Jeep Incorporated ("Tucson Chrysler") (Doc. 33), the Motion for Extension of Time to File Response by Ariann J-Hanna ("J-Hanna") (Doc. 36), the Motion to Strike filed by Enterprise (Doc. 39), the Motion to Strike filed by Tucson Dodge (Doc. 47), the Motion to Strike filed by Tucson Chrysler (Doc. 49), and the Motion for Leave to File Amended Complaint filed by J-Hanna (Doc. 50).1
Although oral argument has been requested, the Court finds it would not be assisted by oral argument and declines to schedule these matters for argument. See generally LRCiv 7.2(f).
Where a responsive pleading has been filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party, and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). In determining whether an amended pleading should be permitted, "[f]ive factors are frequently used to assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint." Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Plaintiff J-Hanna asserts that granting the motion will not surprise or prejudice Defendants, that denial of the motion would result in substantial injustice and prejudice to J-Hanna. Defendants Tucson Dodge and Tucson Chrysler have filed a response in which they assert there has been undue delay in seeking leave to file the amended complaint, that they would be prejudiced by the filing of an amended complaint, and that an amendment would be futile. Defendant Enterprise has filed a joinder to the response in which Enterprise asserts that amendment would be futile.
On February 22, 2011, this Court granted J-Hanna 60 additional days to complete service. Approximately three months after that Order, J-Hanna filed her motion for leave to amend her complaint. The Court finds that seeking to amend the complaint approximately three months after being granted additional time to complete service does not support a finding of dilatory tactics or bad faith. Moreover, a scheduling order has not yet been entered in this case; rather, the viability of the claims against Defendants is still being determined. The Court finds, therefore, that any prejudice to Defendants would be minimal. In discussingthe other pending motions, the Court addresses whether amending the complaint would be futile. See infra. The Court will grant the Motion for Leave to File Amended Complaint.
Enterprise has requested this Court strike the Addendum and Second Addendum to J-Hanna's response to the Motion for Judgment on the Pleadings. J-Hanna has not filed a response. The applicable local rule provides only for a motion, response, and a reply. Pursuant to LRCiv 7.2, the Court will grant the motion to strike.
Fed.R.Civ.P. 12(c) provides that, "[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Dismissal through a motion for judgment on the pleadings is appropriate "'only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations.'" McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988), quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The moving party is entitled to judgment as a matter of law when, even if all of the material facts in the pleading under attack are true, judgment on the pleadings is appropriate. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). "All allegations of fact of the opposing party are accepted as true." Austad v. United States, 386 F.2d 147, 149 (1967). Furthermore, all inferences reasonably drawn from the alleged facts must be construed in favor of the responding party. General Conference Corp. of Seventh-Day Adventists v. Seventh Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989). However, conclusory allegations are insufficient to defeat a motion for judgment on the pleadings. McGlinchy, 845 F.2d at 810.
In asserting that judgment on the pleadings is appropriate as to this claim, Enterprise lists the elements needed to claim fraudulent concealment. See Coleman v. Watts, 87 F.Supp.2d 944, 951-52 (D.Ariz. 1998). However, J-Hanna asserts a claim under the ArizonaConsumer Fraud Act. See A.R.S. § 44-1522. "The elements of a private cause of action under the act are a false promise or misrepresentation made in connection with the sale or advertisement of merchandise and the hearer's consequent and proximate injury." Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 342, 666 P.2d 83, 87 (App. 1983).
Generally, "there is no need to show privity when recovery for a product-caused injury is sought on the ground that the defendant manufacturer or seller was guilty of fraud and deceit, as fraud is a recognized exception to the requirement of privity." Am.L.Prod.Liab.3d § 25:5 (2011). Although Enterprise asserts that Sutter Home Winery, Inc. v. Vintage, 971 F.2d 401, 407 (9th Cir. 1992), prevents a claim, Sutter Home is distinguishable from this case. Sutter Home was alleged to have deceived Vintage by "secretly selling to another distributor the exclusive rights to distribute its wine." Id. Unlike Vintage, J-Hanna was a subsequent purchaser. Moreover, in this case, Enterprise and Chrysler
In her original Complaint, J-Hanna alleges:
12. Enterprise Rent-A-Car Company of San Francisco, LLC and Chrysler Group LLC didn't disclose history on the vehicle creating a false idea that it was worth more money when it devalued due to theft and abuse as a rental vehicle. This left the Plaintiff with a vehicle that was non repairable and salvage.
Complaint, p. 2. In her proposed Amended Complaint, J-Hanna alleges:
14. Enterprise Rent-A-Car and Chrysler Group LLC did not disclose history on the vehicle creating a false idea that it was worth more money when it devalued due to theft and, frame damage and abuse as a rental vehicle.
Proposed Amended Complaint, p. 4. Arizona recognizes that producing a false impression to mislead another may be the basis for a fraud claim. See Sarwark Motor Sales, Inc. v. Husband, 5 Ariz.App. 304, 426 P.2d 404 (1967); see also Madsen v. Western American Mortgage Co., 143 Ariz. 614, 618, 694 P.2d 1228, 1232 (App. 1985) (). The Court finds J-Hanna has adequately pleaded a claim upon which relief can be granted under the Arizona Consumer Fraud Act against Enterprise.
Common law fraud requires proof of "(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the speaker's intent that it be acted upon by the recipient in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the right to rely on it; [and] (9) his consequent and proximate injury." Enyart v. Transamerica Ins. Co., 195 Ariz. 71, 77, 985 P.2d 556, 562 (App.1998). The Court finds that J-Hanna has adequately pleaded at this stage of the proceedings a common law fraud claim against Enterprise in both her original Complaint and in her proposed Amended Complaint.
The Court finds J-Hanna's failure to include this claim in her proposed Amended Complaint is an acknowledgment that judgment on the pleadings is appropriate as to this claim. Indeed, J-Hanna has not responded to Enterprise's argument regarding this claim in her response. See L.R.Civ. 7.2(i) (). The Court finds judgment on the pleadings in favor of Enterprise and against J-Hanna is appropriate as to the claim of a violation of A.R.S. § 44-1212.
Although J-Hanna acknowledges that Enterprise sold the vehicle "as is," J-Hanna argues that a successive relationship is established by the original warranty contract. J-Hanna further points out that Enterprise acknowledged in its Car Sale Invoice that it was bound by its obligations and that Chrysler warranted that the vehicle was "in safe operating condition, [had] no repaired or unrepaired frame damage, [and] the vehicle's cylinder block [was] not damaged or cracked[.]" Response, p. 3. However, J-Hanna does not allege thatany warranty from Enterprise was provided to her. The Court agrees with Enterprise that "[e]conomic losses are not recoverable for breach of implied warranty in the absence of privity of contract." Flory v. Silvercrest Industries, Inc., 129 Ariz. 574, 579 (1981); Chaurasia v. General Motors Corp., 212 Ariz.18, 24 (App. 2006). The lack of privity prevents a valid breach of warranty claim against Enterprise. The Court finds judgment on the pleadings in favor of Enterprise and against J-Hanna is appropriate as to the breach of warranty claim.
The Court will grant Enterprise's Motion for Judgment on the Pleadings as to the...
To continue reading
Request your trial