United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
plaintiff, EJM Farms, moves the Court to reconsider its
Memorandum and Order of March 26, 2018 (filing 114)
to the extent that the Court dismissed the plaintiff's
claims against Titan Machinery. Filing 117. The
Court will grant the motion in part.
facts of the case are set forth in the Court's previous
order. Filing 114 at 2-5. As relevant, after the
plaintiff bought a tractor, the service manager at the North
Platte Titan Machinery dealership, Mike Slaba, allegedly told
the plaintiff that the tractor had a "complete
rebuilt" engine, when it actually only had a short block
rebuild. Filing 114 at 4-5. But the Court dismissed
the plaintiff's misrepresentation and concealment claims
against Titan, explaining that
there is no evidence that Titan misrepresented or concealed
anything until after [the plaintiff] had already purchased
the tractor. [The plaintiff] communicated with his local
Coralville, Iowa Titan dealership before the purchase, but
[he] was aware that the Coralville dealership did not have
any knowledge of what work had actually been done on the
tractor. And while [the plaintiff] claims that Slaba misled
him about the tractor's repairs, [the plaintiff] admits
that he didn't talk to Slaba until after the purchase.
That means that he can't prove he bought the tractor in
reliance on Slaba's alleged misrepresentation-and
reliance is an element of each of these claims.
Filing 114 at 9-10. It is that reasoning with which
the plaintiff takes issue.
extent that the plaintiff is trying to assert an express
warranty claim as to Titan, that argument is without
merit-the plaintiff never pled an express warranty
claim as to Titan. The plaintiff's operative complaint
asserted the following as the "express warranty"
45. Defendant Jessen Unlimited created an express warranty as
a seller pursuant to the Uniform Commercial Code cited as
Neb. U.C.C. §2-313 with respect to the sale of
the Tractor to Plaintiff.
46. Defendant Jessen Unlimited, by and through its agent,
Chad or Chod Briggs, affirmed to Plaintiff that the Tractor
had received a complete or "long block" rebuild.
47. Plaintiff affirmation was part of the basis for the
bargain, as Plaintiff would not have purchased the Tractor if
it had not had a completely rebuilt motor.
48. The Tractor did not receive a complete or "long
block" rebuild and thus did not conform to the express
warranty created by the affirmation.
Filing 39 at 5. While each of the plaintiff's
other claims was addressed to "each defendant, "
see filing 39 at 2-5, the express warranty claim was
only asserted against Jessen Unlimited, who actually sold the
tractor. The plaintiff did not allege an express warranty
claim against Titan, and it can't conjure one up now.
plaintiff also says that the Court "misunderstood
Plaintiff's argument regarding Titan's expressed
warranty." Filing 118 at 2 (cleaned up). The
plaintiff relies on Neb. U.C.C. § 2-602, which
permits a buyer to reject goods within a reasonable time
after their delivery or tender. The argument is that the
plaintiff relied on Slaba's representation of a complete
rebuild, not in purchasing the tractor, but in deciding not
to reject the tractor pursuant to § 2-602. Filing
118 at 2, 6.
plaintiff's opposition to summary judgment, that argument
was confusingly included in the context of discussing how an
express warranty is formed, see filing 112 at
10-11-but it was included. And, the Court
concludes, there is at least some evidence to support it. The
plaintiff's evidence suggests that a long-block rebuild
and the associated warranty were essential in deciding to
purchase the tractor. Had Slaba informed the plaintiff only a
few days after the purchase that no long-block rebuild had
been performed, the plaintiff could have refused the tractor
pursuant to § 2-602.
other words, the plaintiff could have relied on
Titan's misrepresentation or concealment of the
short-block rebuild, even after the purchase, so long as the
plaintiff's rights under the U.C.C. to undo the purchase
were intact. And Titan doesn't argue that they
weren't. See filing 121. Instead, Titan's
primary argument is that because Titan wasn't the seller,
it couldn't have created an express warranty,
particularly after the purchase. See filing 121 at
3. True enough-but that's not dispositive of the
plaintiff's other claims. And while Titan is
correct in arguing that the plaintiff "cannot show
reliance [on Titan's representations] in
entering the contract at issue, " seefiling 121 at 4 (emphasis supplied), the Court is
aware of no reason that a plaintiff's ...