United States District Court, W.D. Louisiana, Shreveport Division
ANIL VELUVOLU, ET AL.
NISSAN NORTH AMERICA INC., ET AL.
MAGISTRATE JUDGE HORNSBY
ELIZABETH ERNY FOOTE, UNITED STATES DISTRICT JUDGE
pending before the Court is Defendant American Honda Motor
Co., Inc.'s ("AHM") Motion for Summary
Judgment. [Record Document 17]. Plaintiffs Dr. Anil
("Dr. Veluvolu") and Jennifer Velovolu (together,
"Plaintiffs") have filed an opposition [Record
Document 21] and AHM has filed a reply [Record Document 24].
For the reasons discussed below, the motion for summary
judgment is hereby GRANTED IN PART and
DENIED IN PART. Plaintiffs are ordered to
submit additional briefing regarding their negligent repair
claim by Thursday, June 13, 2019. Summary
judgment is GRANTED as to Jennifer
Veluvolu's claim for nonpecuniary damages pursuant to
Louisiana Civil Code article 1998. Summary judgment is
DENIED as to all other claims.
matter arises out of the sale of a new vehicle, a 2017 Acura
NSX ("the Acura"). Record Document 3, ¶ 8.
Plaintiffs purchased the Acura from Orr Infiniti
("Orr") in Shreveport, Louisiana on November 3,
2016. Id. Plaintiffs paid atotal of $237, 199.80 for
the vehicle, including finance charges and expenses
surrounding the sale. Id. at ¶ 9. Plaintiffs
assert that AHM is the manufacturer and warrantor of the
Acura. Id. at ¶ 2. According to
Plaintiffs, the sale of the Acura created an implied warranty
of merchantability and an implied warranty under
Louisiana's redhibition laws that the Acura was "fit
for the ordinary purpose for which such motor vehicles are
purchased." Id. at ¶ 10. Plaintiffs also
claim that, subsequent to the sale, Defendant "impliedly
warranted" that repair work on the Acura had been
performed in a good and workmanlike manner. Id. at
¶ 11. They assert that the Acura was sold with certain
express warranties stating that any malfunction of the Acura
resulting from defects in material or workmanship would be
repaired and necessary parts replaced free of charge during
the specified warranty period. Id. at ¶s 12-14.
claim that the Acura began to manifest several defective
conditions within a few months after the sale. Id.
at ¶ 15. They state that those defective conditions
include, but are not limited to, multiple instances in which
the engine failed to start and the 12-volt battery had to be
charged in order to start the engine, the engine's
failure to start after sitting for a couple of weeks or more,
the battery having to be replaced, and a rattle in the left
and right doors at speeds over 25 miles per hour.
Acura was returned to Orr, an authorized warranty service
dealer, for repairs numerous times. Id. at ¶
16. Plaintiffs assert that the "more significant and
dangerous conditions" of the Acura were not repaired on
these occasions. Plaintiffs allege that "Defendant"
failed to repair the vehicle so as to bring it into
conformity with the warranties, despite having a prolonged
period in which to do so. Id. However, Plaintiffs do
not acknowledge that Orr, who they claim performed these
repairs, is not a defendant in this case.
took delivery of the Acura on November 16, 2016. Record
Document 17-6, p. 4. On February 13, 2017, the Acura had to
be towed to Orr for service because it would not start.
Id. at 23. The car had 250 miles on it at that time.
Id. Orr kept the car for two weeks, during which it
ran diagnostic tests and consulted with Acura technicians.
Id. at 24. Dr. Vevuvolu stated that he either does
not know or does not remember what was done to repair the
Acura during this visit. Id.
Acura was returned to Orr on April 24, 2017, because it would
not start, did not have electrical power, and required the
car's 12-volt battery to be charged before the engine
would start. Id. at 25. A technician from Orr drove
to Plaintiffs' home, jumped the battery, and drove the
Acura to the dealership. Id. At this point the car
had 827 miles on it. Id. Orr replaced the
Acura's battery after it failed a load test, and the car
was returned to Plaintiffs. Id. On this visit, Dr.
Veluvolu also complained of a rattle in the left door while
Acura again failed to start in June of 2017. Id. at
18. At Dr. Veluvolu's request, Trey Pierce
("Pierce"), Orr's Service Advisor, came out and
jumped the battery. Id. Dr. Veluvolu then drove the
car to work. Id. The Acura was not taken to Orr for
repairs on this occasion. Id.
Acura was brought to Orr again for repairs on August 23,
2017, because it would not start. Id. at 26. The
mileage was listed as 1, 568 miles. Id. The Acura
was not returned to Plaintiffs until September 21, 2017.
Id. Orr tested the 12-volt battery, found it to have
a bad cell, and replaced it. Record Document 21-3, p. 81. Orr
also tested the charging system tested for a "parasitic
draw."Id. The results of those tests
indicated that the Acura and its 12-volt battery were
operating normally. Id. Orr provided Dr. Veluvolu
with an accessory battery charger and recommended that he use
it whenever the Acura would be left unused for more than
seven days. Id.
November 13, 2017, Dr. Veluvolu brought the Acura to Orr
because he was hearing a rattle in both doors. Record
Document 17-6, p. 28. Technicians at Orr attempted to resolve
the rattle by installing insulation in the doors, but Dr.
Veluvolu claims that he could still hear the rattle when he
drove home. Id. at 29. Dr. Veluvolu brought the
Acura to Orr on April 16, 2018, to address the rattle issue
again. Id. He does not recall hearing the rattle
when he picked up the car after this visit, but claims that
it has since returned. Id. at 30. Plaintiffs did not
pay Orr for any of these repairs because the Acura was still
under warranty. Id. at 30. Plaintiffs contend that
the defects in the Acura have substantially impaired its use,
value, and safety. Record Document 3, ¶ 17. Plaintiffs
also state that they notified AHM and Orr that they wanted to
rescind the sale of the Acura but were refused. Id.
at ¶ 18. Plaintiffs then filed the instant lawsuit
against AHM requesting a rescission of the sale, a return of
the purchase price and costs related to the sale, damages for
mental anguish, humiliation, and inconvenience, and
attorney's fees. Id. at p. 3.
SUMMARY JUDGMENT STANDARD
Rule of Civil Procedure 56(a) directs a court to "grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Summary judgment is
appropriate when the pleadings, answers to interrogatories,
admissions, depositions, and affidavits on file indicate that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When the burden at trial will rest on the non-moving party,
the moving party need not produce evidence to negate the
elements of the non-moving party's case; rather, it need
only point out the absence of supporting evidence. See
Id. at 322-23. However, "if the movant bears the
burden of proof on an issue, ... he must establish beyond
peradventure all of the essential elements of the claim or
defense to warrant judgment in his favor." Fontenot
v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).
movant satisfies its initial burden of showing that there is
no genuine dispute of material fact, the nonmovant must
demonstrate that there is, in fact, a genuine issue for trial
by going "beyond the pleadings" and
"designating] specific facts" for support.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (citing Celotex, 477 U.S. at 325).
"This burden is not satisfied with some metaphysical
doubt as to the material facts," by conclusory or
unsubstantiated allegations, or by a mere "scintilla of
evidence." Id. (internal quotation marks and
citations omitted). However, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144,
158-59 (1970)). While not weighing the evidence or evaluating
the credibility of witnesses, courts should grant summary
judgment where the critical evidence in support of the
nonmovant is so "weak or tenuous" that it could not
support a judgment in the nonmovant's favor.
Armstrong v. City of Dall, 997 F.2d 62, 67 (5th Cir.
Local Rule 56.1 requires the movant to file a statement of
material facts as to which it "contends there is no
genuine issue to be tried." The opposing party must then
set forth a "short and concise statement of the material
facts as to which there exists a genuine issue to be
tried." W.D. La. R. 56.2. All material facts set forth
in the movant's statement "will be deemed admitted,
for purposes of the motion, unless controverted as required
by this rule." Id.
LAW AND ANALYSIS
case is before the Court under diversity jurisdiction,
Court must apply the substantive law of the forum state.
Bradley v. Allstate Ins. Co., 620 F.3d 509, 517 n.2
(5th Cir. 2010) (citing Erie R.R. v. Tompkins, 304
U.S. 64 (1938)). The Fifth Circuit in In re Katrina
Canal Breaches Litigation stated the
appropriate methodology for a federal court sitting in
diversity in Louisiana to apply:
To determine Louisiana law, we look to the final decisions of
the Louisiana Supreme Court. In the absence of a final
decision by the Louisiana Supreme Court, we must make an
Erie guess and determine, in our best judgment, how
that court would resolve the issue if presented with the same
case. In making an Erie guess, we must employ
Louisiana's civilian methodology, whereby we first
examine primary sources of law: the constitution, codes, and
statutes. Jurisprudence, even when it rises to the level
of jurisprudence constante, is a secondary law
source in Louisiana. Thus, although we will not disregard the
decisions of Louisiana's intermediate courts unless we
are convinced that the Louisiana Supreme Court would decide
otherwise, we are not strictly bound by them.
F.3d 191, 206 (5th Cir. 2007) (citations and internal
quotation marks omitted).
allege a cause of action against AHM for breach of warranty
against redhibitory defects, pursuant to Louisiana Civil Code
article 2520. Plaintiffs also claim that AHM should be held
liable for violating the Magnuson-Moss Warranty Act, 15
U.S.C. §§ 2301-2312, and for making negligent
repairs to the Acura. See Record Document 3.