Opinion
No. 01 C 4250
July 31, 2001
MEMORANDUM OPINION AND ORDER
General Motors Corp. ("GM") has filed a motion for its dismissal from this action, in which William Parker and Melissa Pytlewski have sued GM, Phillips Chevrolet, Inc. ("Phillips") and Firstar Bank, N.A., asserting several claims based on plaintiffs' purchase of a used car from Phillips. That purchase, says GM, does not permit an action against it — GM was admittedly not the seller of the vehicle — under the Truth In Lending Act.
Plaintiffs counsel have now responded to this Court's oral inquiry, made when the matter was brought before it on GM's motion, as to what good faith basis exists for alleging that Phillips is an agent of GM in connection with the sale of used cars (as contrasted, for example, with any agency argument based on Phillips dealer relationship with GM regarding any new cars that GM sells to Phillips). For that purpose counsel points to the opinion by this Court's respected colleague, Honorable Matthew Kennelly, in Kent v. Celozzi-Ettelson Chevrolet Inc., No. 99 C 2868, 1999 WL 1021044 (M.D. Ill. Nov. 3), in which Judge Kennelly ruled ( id. at *3-*4) that "an automobile dealership may under certain circumstances be an agent of the manufacturer" and that the allegations of the complaint there, read through the generous lens prescribed by Conley v. Gibson, 355 U.S. 41, 45-46 (1957), were sufficient to keep the plaintiff in court against GM on an agency theory.
Of course Phillips has obtained the used cars that it sells from private parties, either via trade-ins or via purchases from those parties.
This Court regularly cites to Hishon v. King Spalding, 467 U.S. 69, 73 (1984) for the identical proposition. Although Hishon itself citesConley as authority, it is a generation younger — and that helps show that the pleading doctrine referred to in the text remains alive and well and living in Washington.
But the difficulty with that presentation remains that it is all too easy for a complaint to shape allegations that would survive scrutiny in Fed.R.Civ.P. ("Rule") 12(b)(6) terms, yet have no objective basis for having done so. This Court's oral inquiry of the parties was as to the objective good faith basis that Rule 11 demands of every pleader that would support the agency claim.
It is of course possible that the relationship between a franchised automobile dealer and a manufacturer might contain elements that would sustain the notion that the former is the agent of the latter in conducting used car sales, but that is not in accordance with the general real world understanding of the relationship. This Court therefore continues to await something more from counsel, a matter that may be discussed at the time of the next telephonic status hearing at 8:45 a.m. August 15, 2001.