Filed: Oct. 11, 2012
Latest Update: Mar. 26, 2017
Summary: Case: 12-10949 Date Filed: 10/11/2012 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10949 Non-Argument Calendar _ D. C. Docket No. 8:11-cv-00354-SCB-TBM DUANE T. BURNS, KEVIN L. HENAULT, Plaintiffs - Appellants, versus WINNEBAGO INDUSTRIES, INC., Defendant - Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (October 11, 2012) Before BARKETT, WILSON and ANDERSON, Circuit Judges. PER CURIAM: Duane
Summary: Case: 12-10949 Date Filed: 10/11/2012 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10949 Non-Argument Calendar _ D. C. Docket No. 8:11-cv-00354-SCB-TBM DUANE T. BURNS, KEVIN L. HENAULT, Plaintiffs - Appellants, versus WINNEBAGO INDUSTRIES, INC., Defendant - Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (October 11, 2012) Before BARKETT, WILSON and ANDERSON, Circuit Judges. PER CURIAM: Duane T..
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Case: 12-10949 Date Filed: 10/11/2012 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10949
Non-Argument Calendar
________________________
D. C. Docket No. 8:11-cv-00354-SCB-TBM
DUANE T. BURNS,
KEVIN L. HENAULT,
Plaintiffs - Appellants,
versus
WINNEBAGO INDUSTRIES, INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 11, 2012)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Duane T. Burns and Kevin L. Henault (“Plaintiffs”) appeal the district
Case: 12-10949 Date Filed: 10/11/2012 Page: 2 of 11
court’s denial of their amended motion to amend their complaint, as well as the
court’s subsequent grant of summary judgment to Winnebago Industries, Inc.
(“Winnebago”), on Plaintiffs’ breach-of-warranty claims.
Plaintiffs purchased a Winnebago RV that subsequently developed serious
defects.1 Plaintiffs claim that the seller was unable to fully repair the defects. On
May 21, 2010, Plaintiffs brought suit in Florida state court against Winnebago for
breach of warranty under the Magnuson-Moss Warranty Act and the Florida
Uniform Commercial Code.
Winnebago removed the case to federal court, but it was remanded to state
court on August 11, 2010, due to insufficient evidence that the amount in
controversy had been met. The state court set trial for June 2011.
In October or November 2010, Plaintiffs discovered a new defect on their
RV: rust and corrosion on the chassis. However, at that time, Plaintiffs did not
seek to amend the complaint to add this additional defect to their breach-of-
warranty claim.
On February 10, 2011, Plaintiffs’ expert informed them that Winnebago had
1
Alleged problems included, inter alia, an improperly fitted sewage pipe that
emptied human waste into the luggage compartment; persistent propane and sewage odors; and
improperly functioning air conditioning units, windshield wipers, batteries, satellite receiver, gas
tank, leveling jacks, and engine components. See dkt. 49-4.
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knowledge of another RV with a rusty chassis. Again, Plaintiffs did not seek to
amend their complaint at that time.
On February 22, 2011, the case was removed again to federal court, after
evidence came to light during discovery showing that the amount in controversy
was now satisfied.
On May 6, 2011, Plaintiffs filed their first motion to amend the complaint.
They sought to add the rust as an additional defect under the pre-existing breach-
of-warranty claim, to add Freightliner (the manufacturer of the chassis) as a new
defendant, and to add several new claims alleging deceptive trade practices and
misrepresentation. The district court denied the motion because Plaintiffs had
unduly delayed in seeking the amendments. Plaintiffs filed a more-detailed
motion on May 16, 2011, but the district court still concluded that Plaintiffs had
unduly delayed.
The district court then continued with Plaintiffs’ original warranty claims.
The court concluded that the warranty terms required that Plaintiffs notify
Winnebago in writing about the defects and then to contact Winnebago if the
dealer did not satisfactorily repair the RV. Plaintiffs conceded that they had not
done either of these. Accordingly, the district court granted summary judgment to
Winnebago on all of Plaintiffs’ claims.
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I. MOTION TO AMEND
We review the denial of a motion to amend a complaint for an abuse of
discretion. Fla. Evergreen Foliage v. E.I. DuPont De Nemours & Co., 470 F.3d
1036, 1040 (11th Cir. 2006). After the time for allowing amendments as a matter
of course has passed, amendments are permissible only with the opposing party’s
written consent or the court’s leave, which the court “should freely give . . . when
justice so requires.” Fed. R. Civ. P. 15(a)(2). A district court may deny such leave
where (1) there has been undue delay, bad faith, dilatory motive, or repeated
failure to cure deficiencies by amendments previously allowed; (2) allowing
amendment would cause undue prejudice to the opposing party; or (3) amendment
would be futile. Burger King Corp. v. Weaver,
169 F.3d 1310, 1319 (11th Cir.
1999).
The district court concluded that Plaintiffs had unduly delayed adding (1)
the rust problem as an additional defect, (2) Freightliner as a defendant, and (3)
claims for deceptive practices and misrepresentation.
The Plaintiffs had possession of the RV for three years before they filed
suit, and these amendments were not requested until almost a year after the case
began. While the mere passage of time is not enough to deny a motion to amend,
see Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla., 148 F.3d 1231,
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1256-57 (11th Cir. 1998), there is sufficient evidence here of undue delay to
support the district court’s decision to deny these amendments.
Upon discovering the rust problems, Plaintiffs easily could have amended
the complaint to include the rust as an additional defect under their pre-existing
breach-of-warranty claim. Plaintiffs had been aware of the rust issue since
October or November 2010, when the case was in state court with a trial set for
June 2011. However, they did not seek to amend their complaint until almost
seven months later, after the case had been removed again to federal court.
By the time Plaintiffs allege that they had uncovered evidence that
Winnebago knew of another rusty chassis, the state court trial date was less than
four months away. But Plaintiffs still failed to amend their complaint. Instead,
they waited two more months before beginning any further research on this issue,
then waited another month before actually seeking to amend the complaint.
By the time Plaintiffs filed their motion to amend, discovery between the
parties had begun more than six months earlier (while in state court), Plaintiffs’
depositions had already been taken, and the case had been pending long enough
that it had twice been removed to federal court.
Considering all of these facts, we do not find an abuse of discretion in the
district court’s decision to deny Plaintiffs’ motion to amend or their amended
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motion to amend.2 See Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 761 (11th
Cir. 1995) (“Fed.R.Civ.P. 15(a) provides the district court with extensive
discretion to decide whether to grant leave to amend after the time for amendment
as a matter of course has passed.”).
II. BREACH OF WARRANTY
Under the limited warranty, Plaintiffs were required to give notice of defects
both to the seller and to Winnebago itself.3 There is no dispute that Plaintiffs
2
As the district court noted, Plaintiffs could still seek to file a separate case
regarding the rust/corrosion problems because these “new claims are unrelated to the existing
breach of warranty claim.” [Dkt. 37 at 5]. See Lockett v. Gen. Fin. Loan Co. of Downtown, 623
F.2d 1128, 1131 (5th Cir. 1980) (noting that court should consider prejudice to movant when
deciding whether to allow a motion to amend).
3
The warranty contains a section titled “OBTAINING WARRANTY REPAIRS”
that listed these steps:
1. Promptly take the vehicle to the selling dealer for repair or inspection.
2. Written notice of defects must be given to the selling dealer and manufacturer.
3. If the dealer is incapable of making the repairs, request that he contact
Winnebago Industries, Inc.
4. If, after the above steps are completed and the repair is not made, the customer
should contact Winnebago Industries, Inc. . . . and furnish [information about the
vehicle and the problems]. The customer may be directed to another dealer or
service center for repairs to be completed, if such a dealer or service center is
better able to complete the repair. Winnebago Industries may, at its option,
request the vehicle be returned to Forest City, Iowa for repair. . . .
5. If after the above steps are completed and the repairs are not satisfactory, the
customer may contact the Service Administration Manager of Winnebago
Industries, and request a customer relations board meeting to resolve the problem.
This action, however, is not mandatory.
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failed to give written notice to Winnebago, nor that they failed to contact
Winnebago when the dealer was unable to satisfactorily make the repairs.
With respect to warranties, the Florida UCC states that “[t]he buyer must
within a reasonable time after he or she discovers or should have discovered any
breach notify the seller of breach or be barred from any remedy.” Fla. Stat. §
672.607(3)(a) (emphasis added). Plaintiffs contend that this statute should be
interpreted as saying that they needed to give notice only to the seller (i.e., the
dealer), even though the warranty required that they also give notice to the
manufacturer (i.e., Winnebago).
We disagree with this contention.4 The statute merely lists one act of notice
Doc. 49-3 at 15 (emphases added).
The warranty also stated that any action for breach of the limited or structural
warranty or any implied warranty must be commenced within one year of the expiration
of the warranty. Id. Here, the warranty expired in May 2008, but the suit was not
initiated until May 2010. However, Winnebago never raised this issue, and so we do not
address it.
4
Where the seller is not the warrantor, there has apparently been some confusion
over whether the use of the word “seller” in § 672.607(3)(a) was actually meant to refer to the
warrantor. Compare Fed. Ins. Co. v. Lazzara Yachts of N. Am, Inc., 2010 WL 1223126 (M.D.
Fla. Mar. 25, 2010) (construing “seller” not to mean the “warrantor”), with Gen. Matters, Inc. v.
Paramount Canning Co.,
382 So. 2d 1262, 1264 (Fla. Dist. Ct. App. 1980) (appearing to construe
“seller” as including an up-the-chain distributor who was the warrantor). However, we need not
settle this issue because we reach the same conclusion either way. If § 672.607(3)(a) requires
that notice be given to the warrantor, it is undisputed that Plaintiffs here did not do so; and if
§ 672.607(3)(a) requires that notice be given to the seller, the terms of the warranty here required
that notice also be given to the warrantor (i.e., Winnebago), which Plaintiffs did not do.
We also agree with the district court that Lazzara Yachts is distinguishable because there
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that a buyer must give, and it does not speak to whether additional notice may be
required by the express terms of the warranty itself. As Plaintiffs acknowledge,
there seem to be no binding cases indicating that a warranty cannot impose a
requirement to notify the warrantor. Indeed, Florida courts generally treat
warranties like contracts, where the terms of the warranty dictate the parties’
respective rights and obligations. See, e.g., Detroit Diesel Corp. v. Atl. Mut. Ins.
Co., 18 So. 3d 618, 620 (Fla. Dist. Ct. App. 2009); Ocana v. Ford Motor Co.,
992
So. 2d 319, 323-25 (Fla. Dist. Ct. App. 2008); Portela Invs., Inc. v. Piedra,
789 So.
2d 1014, 1015 (Fla. Dist. Ct. App. 2000).
A primary purpose of requiring that Plaintiffs notify Winnebago is so that
Winnebago would have a chance to remedy the defects itself. See Gen. Matters,
Inc. v. Paramount Canning Co., 382 So. 2d 1262, 1264 (Fla. Dist. Ct. App. 1980)
(stating that notice provisions enable sellers or manufacturers “to make
adjustments or replacements or to suggest opportunities for cure to the end of
minimizing the buyer’s loss” and thereby reducing liability to the buyer). The
warranty states that Winnebago might choose to send the RV to a different seller
for repairs to be performed, or Winnebago might request that the RV be sent to the
is no evidence showing that the terms of the warranty in Lazzara required the buyer to give notice
to the manufacturer.
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company’s plant in Iowa for repairs. If we did not enforce the warranty’s
requirement that Plaintiffs notify the manufacturer of their RV’s defects, then
Winnebago would not be receiving the benefit of its bargain under the warranty.
See Am. Universal Ins. Grp. v. Gen. Motors Corp., 578 So. 2d 451, 455 (Fla. Dist.
Ct. App. 1991) (“[R]elegating parties to contract [their own] remedies . . . allows
parties to freely contract and allocate the risks of a defective product as they wish.
A buyer may bargain for a warranty or opt to forego the warranty in order to pay a
lower purchase price . . . .”); Fla. Stat. § 672.313(1)(a) (“Any affirmation of fact or
promise made by the seller to the buyer which relates to the goods and becomes
part of the basis of the bargain creates an express warranty that the goods shall
conform to the affirmation or promise.”). Winnebago never had a chance to
remedy these defects itself, an opportunity that it had contracted for.
Also lending some support to our conclusion is the factually similar 1991
Florida Court of Appeal case of Foote v. Green Tree Acceptance, Inc., 597 So. 2d
803 (Fla. Dist. Ct. App. 1991). In Foote, the plaintiffs sued Winnebago for breach
of warranty. Like the warranty here, the warranty in Foote required that the
purchasers notify Winnebago of any defects—which they conceded they had
failed to do. Admittedly, Foote did not directly address whether it was acceptable
under Florida law for a warranty to require that the purchaser also notify the
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manufacturer. However, the opinion remanded the case to trial court for a
determination of whether there was an agency relationship between the seller and
manufacturer, such that notice to the seller would qualify as notice to the
manufacturer—and thus satisfy the requirements of the warranty. Id. at 804-05.5
It seems that an implicit assumption in Foote is that Winnebago was permitted in
the first place to add this additional notice requirement to the warranty.
In sum, we agree with the district court that Plaintiffs’ Florida-UCC claims
fail because Plaintiffs did not notify Winnebago of the defects, as required by the
terms of the warranty.6
The district court gave two reasons why Plaintiffs’ claims under the
Magnuson-Moss Warranty Act (“MMWA”) also failed: (1) a claim under the
MMWA is dependent upon having a viable state warranty claim, which did not
exist here due to Plaintiffs’ failure to give proper notice to Winnebago; and (2) a
party cannot bring a claim under the MMWA for failure to comply with a written
warranty unless the party gave the warrantor a reasonable opportunity to cure the
5
Here, the district court concluded that there was no evidence that the seller was
Winnebago’s agent. Dkt. 66 at 7 n.5. Plaintiffs have not appealed that decision, and therefore
we need not decide whether Plaintiffs’ notice to the seller equated to giving notice to Winnebago.
6
This does not mean that warrantors have carte blanche to impose any notice
requirements they choose. The federal Magnuson-Moss Warranty Act imposes limitations on
unreasonable duties imposed by a warranty, but the Act specifically allows warrantors to require
that they be given notice of the defect. See 15 U.S.C. § 2304(b)(1).
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failure, which did not occur here. On appeal, Plaintiffs have not challenged those
conclusions, and accordingly we affirm them.
AFFIRMED.
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