Sarratore v. Longview Van Corp.

• Decision Date: 05 August 1987
• Docket Number: No. S 87-87.,S 87-87.
• Citation: 666 F. Supp. 1257
• Parties: Joseph SARRATORE, Plaintiff, v. LONGVIEW VAN CORPORATION and Don Long, Defendants.
• Court: U.S. District Court — Northern District of Indiana

666 F. Supp. 1257

Joseph SARRATORE, Plaintiff, v. LONGVIEW VAN CORPORATION and Don Long, Defendants.

No. S 87-87.

United States District Court, N.D. Indiana, South Bend Division.

August 5, 1987.

Robert F. Gonderman, Jr., South Bend, Ind., for plaintiff.

Michael A. Cosentino and R. Michael Parker, Elkhart, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

The complaint in this case was filed February 17, 1987, and is in seven counts. The defendants, Longview Van Corporation and Don Long, filed a Motion to Dismiss Counts I, II, III, IV and VII pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on April 13, 1987. On April 24, 1987, the court heard oral argument on the motion to dismiss, and the parties were given to May 18, 1987, to submit supplemental briefs. All parties submitted briefs. Subsequently, the plaintiff amended his complaint, and on June 6, 1987, the defendant moved to dismiss the same counts in the amended complaint. The plaintiff filed a response to that motion on June 25, 1987.

Count I appears to attempt an invocation of federal question jurisdiction by attempting to state a private cause of action under 15 U.S.C. § 1989 invoking federal question jurisdiction under 28 U.S.C. § 1331. The face of the complaint also alleges facts which support jurisdiction premised upon Section 1332 of Title 28 of the United States Code. Diversity of citizenship exists since the plaintiff is alleged to be a resident of Michigan and the corporate defendant has its principal place of business in Indiana and the individual defendant resides in Indiana. The complaint was challenged by a motion to dismiss by both defendants under Rule 12(b)(6) of the Federal Rules of Civil Procedure and oral argument was heard thereon on April 24, 1987. All of the issues raised were the subject of extensive argument by able counsel and the court has been favored with extensive briefs which are most helpful.

II.

The court in analyzing a motion to dismiss utilizes the standards established by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The Supreme Court in Conley held that:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed ... unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. at 102 (1957); accord, Hishon, 467 U.S. at 73, 104 S.Ct. at 2232; Vaden v. Village of Maywood, Illinois, 809 F.2d 361, 363 (7th Cir.1987); Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 735 (7th Cir.1986); Morgan v. Bank of Waukegan, 804 F.2d 970, 973 (7th Cir.1986). In addition, "we must accept as true all well-pleaded factual allegations in the complaint." Vaden, 809 F.2d at 363; Doe on behalf of Doe v. St. Joseph's Hospital of Fort Wayne, 788 F.2d 411 (7th Cir.1986); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). Further, "pleadings are to be liberally construed and mere vagueness or lack of detail doe not constitute sufficient grounds for a motion to dismiss." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985); accord, Doe on behalf of Doe v. St. Joseph Hospital of Fort Wayne, 788 F.2d at 414. "A complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory." Carl Sandberg Village Condominium Ass'n v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir.1985), citing, Sutliff v. Donovan, 727 F.2d 648, 654 (7th Cir.1984).

III.

In Count I the plaintiff, Joseph Sarratore, alleges that he was fired from his job with the defendant, Longview Van Corporation, as a result of his refusal to participate in an illegal scheme to setback odometers. The Motor Vehicle Information and Cost Savings Act as found in 15 U.S.C. §§ 1981-1991 was subject to an early consideration by this court in Grambo v. Loomis Cycle Sales, Inc., 404 F.Supp. 1073 (N.D.Ind.1975). At page 1075 this court stated:

Being a relatively new statute, the courts have generally given the Motor Vehicle Information and Cost Savings Act a practical interpretation. Stier v. Park Pontiac, Inc., 391 F.Supp. 397 (S.D.W.Va. 1975); Delay v. Hearn Ford, 373 F.Supp. 791 (D.S.C.1974).

Specifically, § 1981 provides:

Congressional findings and declaration of purpose

The Congress hereby finds that purchasers, when buying motor vehicles rely heavily on the odometer reading as an index of the condition and value of such vehicle; that purchasers are entitled to rely on the odometer reading as an accurate reflection of the mileage actually traveled by the vehicle; that an accurate indication of the mileage traveled by a motor vehicle assists the purchaser in determining its safety and reliability; and that motor vehicles move in the current of interstate and foreign commerce or affect such commerce. It is therefore the purpose of this subchapter to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers with respect to the sale of motor vehicles having altered or reset odometers.

In Ryan v. Edwards, 592 F.2d 756 (4th Cir.1979), that court stated that the aforesaid statute is obviously remedial in nature and should be given a broad construction to effectuate its purpose. Most recently in Hughes v. Box, 814 F.2d 498 (8th Cir.1987), a similar reading was invoked. See also United States v. General Motors Corp. 518 F.2d 420 (D.C.Cir.1975).

The defendants assert that the purpose of § 1989 is to afford a remedy to the purchaser of a motor vehicle. That is certainly one of its principal purposes but to say that such is the only purpose is to read both the language of the statute itself and its legislative history too narrowly. The Senate Report No. 92-413, U.S.Code Cong. & Admin.News 1972, p. 3960 dealing with Title 4 of the Act states:

Title 4 of the bill sets forth certain requirements related to motor vehicle odometers (mileage indicator) because consumers rely upon odometer readings as an index of the condition and value of motor vehicles, Title 4 mandates a national policy against disconnecting of, or setting back of, odometers in order to defraud purchasers of motor vehicles. Presently some 17 states have enacted legislation to curb this practice. However, states without such legislation have found this practice on the increase, especially when a neighboring state has an odometer law. Odometers are turned back in to (sic) states without odometer laws and then cars are marketed at inflated values in states with such laws. Thus, state odometer laws are easily circumvented and people in a state without such a law suffer because of this practice. By prohibiting the disconnecting or turning back of odometers, Title 4 would establish a national policy against odometer tampering and prevent customers from being victimized by such abuses.

The plaintiff's counsel argues for a "private attorney general" concept being inherent in the provisions of this statute. Compare, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). This court is most reluctant to read that rather expansive concept into the statute and does not necessarily have to adopt that idea to find that the plaintiff's complaint here states a claim sufficient to withstand a motion to dismiss under Rule 12(b)(6). This court is impressed with the salient argument made by the plaintiff that an employer should not be able to fire an employee for refusing to violate 15 U.S.C. § 1989. Such could seriously undermine the basic legislative values that were the subject matter and concern of the Congress as reflected in the legislative history of this enactment.

As a backup position, the defendants engage in a nitpicking process with regard to Count I challenging its sufficiency as to time, place and circumstances. Count I may not be a masterpiece of pleading but it is sufficient as notice pleading and the various items that are challenged on the bottom of page 8 and the top of page 9 of the defendants' supplemental memorandum filed May 18, 1987, do not mandate a dismissal. Certainly this result is consistent with the values expressed by the Supreme Court of the United States that when challenged by a Rule 12(b)(6), the complaint should be construed in the light most favorable to the plaintiff.

It is important to note that both § 1989 and § 1984 of the Act used the phrase "person".¹ In fact, § 1989 uses the phrase "any person" amd § 1984 uses "no person". That very language has been discussed in another district court in this circuit. In Mataya v. Behm Motors, Inc., 409 F.Supp. 65 (E.D.Wis.1976), the court stated:

The language in § 1989 `any person * * shall be liable' indicates no intent to limit liability to the immediate seller of a motor vehicle, but to extend liability to and impose liability upon any person violating the law.

Mataya, 409 F.Supp. at 68 (citing, Stier v. Park Pontiac, Inc., 391 F.Supp. 397 (S.D. W.Va.1975)). The principal purpose of this statute was to impose a certain variety of forced honesty in the sale of motor vehicles which was triggered by congressional concern of the widespread practice of the clandestine turning back of odometers.

The plaintiff here must prove the allegations of his complaint there was clearly not one but numerous violations of § 1989. The plaintiff must also prove that there were injuries or damages which proximately resulted from such violations in order to trigger remedial provisions of the Act. Consequently, the plaintiff has stated, in Count I, a claim upon which, if the allegations are proven, relief...