Opinion
Case No. 03-CV-73601.
August 23, 2004
ORDER GRANTING DEFENDANT DAMON CORPORATION'S MOTION FOR SUMMARY JUDGMENT
Defendant Damon Corporation moves for summary judgment of plaintiff Avery Pack's remaining state claims of breach of express warranty and violations of Michigan's Consumer Protection Act ("MCPA"), M.C.L. §§ 445.901 et seq., and remaining federal claim of breach of express warranty as actionable under the Magnuson Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301 et seq. A hearing on the motion was held on July 12, 2004. For the reasons set forth below, defendant Damon's motion for summary judgment will be GRANTED.
I. Background
The circumstances underlying this lawsuit have been set forth in previous Opinions and Orders, and will be reiterated herein only to the extent necessary to adjudicate defendant Damon's instant motion for summary judgment. Damon and General RV Center ("GRVC") were named as the original defendants in this lawsuit, with plaintiff alleging that he purchased a new 2002 motor home from GRVC on September 13, 2002, that defendant Damon manufactured the vehicle, and that the motor home was out of service for a total of 168 days for nine required structural and suspension repairs performed by Damon's authorized service agents. On February 19, 2004, the court granted GRVC's motion to compel arbitration of plaintiff's claims as alleged against GRVC only, dismissing GRVC from this lawsuit. See February 19, 2004 Opinion and Order. The court also granted, in part, defendant Damon's motion for summary judgment as to plaintiff's state claims of breach of implied warranties of merchantability, revocation of acceptance, breach of contract, and rescission, as well as plaintiff's federal claim of breach of implied warranties as actionable under the MMWA. Id. The court denied Damon's motion for summary judgment as to plaintiff's state claims of breach of express warranty and violations of the MCPA, and plaintiff's federal claim of breach of express warranty as actionable under the MMWA. These three remaining claims are the subject of Damon's current motion for summary judgment.
Plaintiff specifically alleges service dates of: September 13, 2002; September 23, 2002; October 9, 2002; October 14, 2002; November 20, 2002; January 10, 2003; April 9, 2003; and April 28, 2003.
II. Standard of Review
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See FDIC v. Alexander, 78 F.3d 1103, 1106 (6th Cir. 1996). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Kutrom Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir. 1992).
The standard for determining whether summary judgment is appropriate is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'"Winningham v. North Am. Resources Corp., 42 F.3d 981, 984 (6th Cir. 1994) (citing Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989)). Proffered evidence and all reasonable inferences arising therefrom must be construed in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Enertech Elec., Inc. v. Mahoning County Comm'r, 85 F.3d 257, 259 (6th Cir. 1996); Wilson v. Stroh Co., Inc., 952 F.2d 942, 945 (6th Cir. 1992). If the movant establishes by use of the materials specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995). The nonmoving party cannot rest on its pleadings to avoid summary judgment, but must support its claims with probative evidence.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);Hartleip v. McNeilab, Inc., 83 F.3d 767, 774 (6th Cir. 1996);Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993).
III. State Breach of Express Warranty Claims A. Creation of Express Warranty
Damon argues it is entitled to summary judgment because its "LIMITED WARRANTY" is not an express warranty as a matter of Michigan law. M.C.L. § 440.2313 provides in part:
(1) Express warranties by the seller are created as follows:
(a) An 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.
M.C.L. § 440.2313(1)(a). In Rokicsak v. Colony Marine Sales and Service, Inc., 219 F. Supp.2d 810, 816-817 (E.D. Mich. 2002), this court held that a limited warranty providing that "the sole exclusive remedy against Seller shall be limited to the repair and replacement of parts and equipment," and that "Seller's liability for any damages due buyer shall be limited to the purchase price of the goods," did not create an express warranty under M.C.L. § 440.2313(1) because the limited warranty did not constitute an affirmation of fact or promise to which the goods (a boat) had to conform, a description of the goods, or a sample or model of the goods. In Gernhardt v. Winnebago Industries, No. 03-73917 (E.D. Mich. Dec. 30, 2003), Judge Rosen applied the reasoning in Rokicsak in holding that a limited 12 month/15,000 mile "repair and replace" warranty for a motor home did not create an express warranty.
Construing the pleadings and evidence in a light most favorable to plaintiff, the court finds that Damon's "LIMITED WARRANTY" could be construed as creating an express warranty under M.C.L. § 440.2313(1)(a). The "LIMITED WARRANTY" contains an affirmative promise that the subject motor home, "when used for its intended purpose of recreational travel and camping, will be free from defects in material and workmanship attributable to Damon for a period of one (1) year or 12,000 miles." Defendant's May 13, 2004 Exhibit 1, at 1. Rokicsak involved a purchase agreement in which the seller/dealer disclaimed all warranties using the language "IT IS AGREED THAT THE DEALER MAKES NO WARRANTY WHATSOEVER REGARDING THE UNIT," further "making plain that there were no warranties except 'THOSE WRITTEN WARRANTIES PROVIDED BY THE MANUFACTURER.'" Rokicsak, 219 F. Supp.2d at 815. This court reasoned in Rokicsak that additional language in the purchase agreement — "[t]o the extent that any warranties exist which have not been disclaimed" — did not create an express warranty under M.C.L. § 440.2313(1) because the phrase did "not constitute an affirmation of fact or promise to which the [goods] had to conform, a description of the [goods], or a sample or model of the [goods]." Id. at 816. There simply was no promise in the Rokicsak purchase agreement subject to enforcement. Here, however, defendant Damon promised that plaintiff's RV would "be free from defects in material and workmanship attributable to Damon for a period of one (1) year or 12,000 miles." Defendant's May 13, 2004 Exhibit 1, at 1. Defendant Damon is not entitled to summary judgment on the basis that its "LIMITED WARRANTY" cannot be construed as an express warranty under Michigan law. Winningham, 42 F.3d at 984.
B. Breach of Express Warranty/Failure in Warranty's Essential Purpose
Defendant Damon argues that it is entitled to summary judgment because plaintiff cannot prove that Damon breached its limited 1-year/12,000 mile "repair and replace" warranty. Damon asserts it is beyond reasonable dispute that: (1) plaintiff's current complaints involving rust, lack of water pressure, a rear camera, satellite dish, and leveling jacks are excluded from coverage and/or not warranted Damon components; (2) plaintiff failed to timely report his complaint of rust; (3) Damon has made all requested repairs; (4) plaintiff's complaint of a faulty "rear slide-out" does not constitute a defect; (5) plaintiff signed a 2003 repair order indicating he had inspected the vehicle and that all repairs were performed to his satisfaction; (6) plaintiff has retained no expert witness to dispute Damon's expert witness, who will testify there are no defects associated with plaintiff's complaints that the RV leans to one side, and; (7) plaintiff contacted Damon only once to complain about leaning.
Plaintiff counters that he is not required to prove a continuing defect in the motor home because Damon's LIMITED WARRANTY failed in its essential purpose, thus allowing plaintiff to pursue all UCC remedies pursuant to M.C.L. § 440.2719(2). Plaintiff relies primarily upon Kelynack v. Yamaha Motor Co., 152 Mich. App. 105, 394 N.W.2d 17 (1986), and asserts that Damon's "repair and replacement" warranty failed in its essential purpose in that Damon failed to cure the motor home's numerous defects after several repair attempts, and after the motor home had been out of service for nearly six months in its first year of ownership. Plaintiff asserts that he can also prove existing motor home defects of rust, a loose gasket on a slide-out, rear monitor malfunctions, dashboard clock and cigarette lighter malfunctions, a faulty outside shower, a fog light that fills with water and is corroded, bedroom slide-outs that do not completely close, and a "popping sound in the front end while driving." Plaintiff proffers a March 19, 2004 audio/video tape to support his position of existing defects.
The Damon LIMITED WARRANTY provides in part:
Damon Corporation ("Damon") warrants that the recreational vehicle ("RV" or "Vehicle"), when used for its intended purpose of recreational travel and camping, will be free from defects in material and workmanship attributable to Damon for a period of one (1) year or 12,000 miles. The warranty period shall begin on the date that the RV is delivered to the first retail purchaser or the date that the RV is first placed in service by the dealer for personal use prior to sale at retail, whichever occurs first. This Limited Warranty covers only materials, components or parts of the RV manufactured and finally assembled by Damon, and does not replace or extend, the warranties provided by the independent manufacturers which also issued warranties attributable to their products separately for materials, components, or parts used in the manufacture of this RV. For additional limitations on this Limited Warranty, please refer to the section entitled "What is Not Covered" below.
In the event that a defect in materials or workmanship is found to exist, Damon will provide for the repair or replacement of such defective material(s) or workmanship at no charge in accordance with the terms, conditions and limitations of this Limited Warranty, provided that the RV owner complies with the following requirements:
(a) notifies Damon or one of its authorized, independent dealers of the claimed defect within fifteen (15) days of the date that the claimed defect is or should have been discovered; and
(b) promptly returns the RV to Damon or an authorized dealer for such repairs. All costs incurred in transporting this RV for warranty service shall be the responsibility of the RV owner unless otherwise approved in advance by Damon.
Damon's obligation to repair or replace defective materials is the sole obligation of Damon under this Limited Warranty. Damon specifically makes no warranty as to the future performance this [sic] RV or any of its materials, components, or parts.
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WHAT IS NOT COVERED
This Limited Warranty does not apply to and Damon will not be responsible for the following:
1. Items added or changed after the RV leaves the possession of Damon;
2. Any RV used for rental or other commercial purposes;
3. Normal wear and usage;
4. Damage, even to otherwise warranted components or parts, due to accident, misuse whether or not foreseeable (including failure to maintain recreational vehicle in accordance with the owner's manual), abuse, hail, earthquake, water or flood, windstorm, lightening [sic?], hurricane, other acts of nature, damage or corrosion due to environment, theft, vandalism or other intervening acts not attributable to Damon;
5. Scratches, dents, chips, or defacing of any surface or fabric of this RV not caused by Damon or which constitute normal wear and tear;
6. Damage resulting from tire wear or tire failure;
7. Periodic maintenance, including but not limited to re-caulking the body of the RV, tightening screws, adjusting doors, lubricating, cleaning or polishing the RV or chassis, replacement or repair of items as a result of RV use, wear or exposure, such as oil, filters, brake pads, and linings;
8. Any material, component, or part of the RV that is warranted separate by its manufacturer, including but not limited to . . . the chassis and other items supplied by the chassis manufacturer. . . . .
9. Damage due to alteration of the RV, or any of its components or parts, that is not authorized in writing by Damon.
Defendant's May 13, 2004 Exhibit 1, at 1-2 (italics emphasis added). Michigan law authorizes parties to agree to limit a buyer's "exclusive" remedy "to repair and replacement of nonconforming goods or parts . . . in which case it is the sole remedy." M.C.L. § 440.2719(1) (a-b). However, "[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act." M.C.L. § 440.2719(2). The "essential purpose" of a limited "repair and replacement" warranty is to "provide the seller the opportunity to provide the buyer with the substantial benefit of its bargain by supplying goods that conform to the sales agreement while limiting the seller's exposure for damages that might otherwise be available." River Rouge School District v. Mestek, Inc., No. 226919, 2002 WL 1921466, *2 (Slip Op. Mich.App. Aug. 20, 2002) (citingKelynack, 152 Mich. App. at 111).
Construing the pleadings and evidence in a light most favorable to plaintiff, it is beyond reasonable dispute that plaintiff cannot prove that the Damon LIMITED WARRANTY failed in its essential purpose. The LIMITED WARRANTY promised that plaintiff's motor home would be "free from defects in material and workmanship attributable to Damon for a period of one (1) year or 12,000 miles," and that plaintiff's exclusive remedy for defects attributable to Damon was the repair and replacement of "only materials, components or parts of the RV manufactured and finally assembled by Damon," further excluding as " NOT COVERED" under the LIMITED WARRANTY materials and workmanship added or changed after the RV left Damon's possession, damage or corrosion due to the environment, scratches, dents, or defacing of any surface not caused by Damon, and any material, component, or part of the motor home warranted separately including the chassis and items supplied by the chassis manufacturer. Defendant's May 13, 2004 Exhibit 1, at 1-2 (emphasis added). Plaintiff does not dispute that the Ford Motor Company manufactured the motor home's chassis and cab. Defendant's May 13, 2004 Exhibit 6, Expert Report of Michael Bukowski (stating "Damon Corporation manufactured the motor home in question. Damon purchased the chassis (or drive portion) of the motor home from Ford Motor Company.") Of the 168 days plaintiff's motor home was allegedly out of service for repairs, 101 of those days are allegedly attributable to an alleged "SUSPENSION DEFECT" resulting in the "passenger side sit[ting] lower than driver side," as well as "STRUCTURAL DEFECT[S]" that included "driver side heat vent missing" and "recall on dash cluster." Complaint, ¶ 6, at 2. Plaintiff has failed to proffer evidence that these alleged suspension defects and defects in the cab's heat vent and dashboard electrical cluster are attributable to Damon's workmanship or materials.See Defendant's May 13, 2004 Exhibit 6, Expert Report of Michael Bukowski; Defendant's May 13, 2004 Exhibit 11, Invoice from Bi-State Sterling Truck Center, Toledo, Ohio (indicating suspension work performed by a Ford Dealership from May 20, 2003 through May 28, 2003); Plaintiff's June 3, 2004 Exhibit B, Invoice from Gorno Ford, Inc., Woodhaven, Michigan (indicating suspension work performed by a Ford Dealership on April 28, 2003). Similarly, plaintiff has not come forward with evidence that the other 67 days of the alleged 168-day delay are attributable to defects in Damon's workmanship or materials covered under the LIMITED WARRANTY, to wit: "frame rusted all around compartments"; "scratch on decal"; "driver's seat loose"; "radio in dash not secured"; "driver side headlight scratched"; "passenger fog light has condensation"; "burgundy strip on hood is gouged"; "hard to see anything on backup monitor — very dark"; "backup camera inoperable"; "both diecut decals need to be replaced"; "clock on dash very loud"; "backup monitor 4images [sic] are reversed"; "driver's seat very loose"; "front end of unit makes popping and banging noises"; "passenger side of motor home is lower than driver side"; "rear camera needs adjustment"; "clock on dash very loud"; "dash air inoperative"; "dash clock noisy"; "dash clock erratic"; "dash heat to floor stops short"; "driver side mirror shakes when traveling"; "right side sitting about 3 inches lower than left." Complaint, ¶ 6, at 3-5. See Defendant's May 13, 2004 Exhibits 6 and 11; Defendant's May 13, 2004 Exhibit 7, May 11, 2004 Affidavit of Jason Quillen, ¶ 4 (attesting that "rear back up camera and the leveling jacks . . . are manufactured by a component manufacturer and covered under a separate warranty"). Rust due to the environment, scratches and defacing of the motor home's surface not caused by Damon, and chassis and cab items supplied by the Ford Motor Company, are expressly excluded from coverage under Damon's LIMITED WARRANTY. Defendant's May 13, 2004 Exhibit 1, at 1-2. Counsel's argument that the cab's clock and cigarette lighter were repaired four times fails to address the issue that Ford Motor Company, not Damon, supplied the motor home's cab and electrical instrumentation. Low water pressure problems in an outside shower caused by a "water restricter" given to plaintiff "by Damon with my first motor home" are excluded under the LIMITED WARRANTY as attributable to an item added to the plaintiff's new motor home. Id.; Plaintiff's January 7, 2004 Deposition Transcript, at 84, Defendant's June 23, 2004 Exhibit 2. Plaintiff is unable to prove that the "popping and banging noises" are attributable to Damon materials or workmanship, even after consulting with Ford dealers and General RV personnel. Plaintiff's January 7, 2004 Deposition Transcript, at 70-71, Defendant's June 23, 2004 Exhibit 2.
The "essential purpose" of Damon's LIMITED WARRANTY was to provide Damon with an opportunity to provide plaintiff defect-free Damon materials and workmanship, while limiting Damon's exposure to damages that might otherwise be available.River Rouge School District, 2002 WL 1921466 at *2. (citingKelynack, 152 Mich. App. at 111). The "essential purpose" of the LIMITED WARRANTY was not to provide Damon with an opportunity to correct any and all motor home defects. Id. The instant circumstances are unlike those present in Kelynack, in which the Michigan Court of Appeals ruled that a motorcycle manufacturer's six-month delay in replacing a newly purchased motorcycle's damaged engine or components under an exclusive six-month repair and replacement warranty constituted an unreasonable delay by precluding the buyer from using the motorcycle from May through November, Michigan's motorcycle riding season. Kelynack, 152 Mich. App. at 113. In Kelynack, the defective motorcycle engine was unquestionably covered by the defendant manufacturer's six-month repair and replacement warranty, and the six month delay in repairing the engine was attributable to the defendant manufacturer and its material and workmanship. Here, plaintiff Pack is unable to prove that the alleged 168 days he was deprived of using his motor home are attributable to repairs or replacement of Damon components or workmanship.Severn v. Sperry Corp., 212 Mich. App. 406, 538 N.W.2d 50 (1995) (cattle feed grinder problem acknowledged by seller, yet seller failed to give indication or willingness to discover and remedy the problem), Krupp P.M. Engr. Inc. v. Honeywell, Inc., 209 Mich. App. 104, 530 N.W.2d 146 (1995) (defective furnace for heating metal parts not fixed for three years), and King v. Taylor Chrysler-Plymouth, 184 Mich. App. 204, 457 N.W.2d 42 (1990) (seven unsuccessful repairs of automobile over nine months), also relied upon by plaintiff, are also distinguishable on their facts. Plaintiff's Counsel candidly admitted at the hearing that Damon never refused to make any repair to plaintiff's motor home.
Further, plaintiff has testified that he has not been precluded from using his motor home.
Q. How many trips have you taken in the motor home? I would like to walk through each one, just get an idea of where you went. So, if that helps you at all?
A. [by Plaintiff] Yeah, I'm trying to think. We went to Kentucky when we first bought it. We went to Frankenmuth somewhere during all that time. We took a trip to South Carolina and then from there to Florida. I think the next trip was to Kentucky and then to Florida. I think that's been it.
Q. Have you missed any trips because of the problems you were experiencing —
A. We lost the whole Summer, April to August, yeah.
Q. Did you go on any trips this Summer?
A. No. Oh yeah. I guess we went to a couple of weddings, and we went to Florida and back in the car. But normally we travel in the Summer.
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Q. Do you know approximately how many miles the motor home has on it now?
A. Well, I'm not sure if that's — well, they took it to Toledo two or three times, too, and they drove it a lot, but somewhere in the neighborhood of 6300 miles, 6200 miles.
* * *
Q. So, in the next couple of weeks you'll take it to Kentucky?
A. Yeah, it's about a 700 mile round trip.
Plaintiff's January 7, 2004 Deposition Transcript, at 70-71, Defendant's June 23, 2004 Exhibit 2. To the extent plaintiff was deprived of the use of his motor home due to repairs, plaintiff, again, has not sufficiently alleged or come forward with evidence indicating the delays were attributable to unreasonable delays in repairing or replacing materials and workmanship covered under Damon's LIMITED WARRANTY.
Consistent with the above analysis and plaintiff's Counsel's admission at the July 12, 2004 hearing that Damon never refused to make any repair to plaintiff's motor home, it is also beyond reasonable dispute that plaintiff cannot prove a breach of Damon's exclusive "repair and replacement" LIMITED WARRANTY. Plaintiff allegedly purchased the subject motor home on September 13, 2002. Pursuant to the express "one (1) year or 12,000 miles" warranty (see Defendant's May 13, 2004 Exhibit 1, at 1 (emphasis added)), Damon's LIMITED WARRANTY protection expired on September 13, 2003. Plaintiff signed a June 3, 2003 "SHOP WORK ORDER" No. 81697, corresponding to plaintiff's latest allegation in his Complaint of April 28, 2003 defects, representing that "I HAVE INSPECTED MY VEHICLE AND REPAIRS PERFORMED ARE SATISFACTORY." Defendant's May 13, 2004 Exhibit 9. Plaintiff's argument that the language is simply "boiler-plate" does not displace plaintiff's objective manifestation of his satisfaction with the last repairs allegedly performed by Damon. Plaintiff's March 19, 2004 audio/video tape indicating remaining defects of rust, rear monitor malfunctions, dashboard clock and cigarette lighter malfunctions, faulty outside shower pressure, a fog light that fills with water and is corroded, and a "popping sound in the front end while driving," fails to generate an inference of a breach of the LIMITED WARRANTY because, as explained herein, plaintiff cannot prove that these defects are either attributable to Damon, or are not excluded as "NOT COVERED" by the LIMITED WARRANTY. Defendant's May 13, 2004 Exhibit 1, at 1-2. To the extent the audio/video tape depicts faulty "bedroom slide-outs that do not completely close" and a "loose gasket on a slide-out," plaintiff has not proffered evidence to support a finding that these problems arose during the one-year warranty and 15-day notice period that expired on September 28, 2003, or that Damon refused to repair these problems during that period. See generally Plymouth Pointe Condominium Association v. Delcor Homes-Plymouth Pointe, Ltd., No. 233847, 2003 WL 22439654 (Mich.Ct.App. Oct. 28, 2003). Plaintiff's Counsel conceded that Damon has not yet refused to repair a claimed defect.
Defendant Damon is entitled to summary judgment of plaintiff's breach of express warranty claim under state law, as plaintiff has failed to create a genuine dispute that Damon's LIMITED WARRANTY did not fail in its essential purpose, or that Damon did not breach its duties owed under the LIMITED WARRANTY.Winningham, 42 F.3d at 984.
IV. MCPA and MMWA Claims
Michigan law provides that proof of a breach of warranty claim also constitutes proof of a failure to provide a promised benefit under M.C.L. § 445.903(1)(y) of the MCPA. See Mikos v. Chrysler Corp., 158 Mich. App. 781, 784-785, 404 N.W.2d 783 (1987). After two motions for summary judgment, the court has concluded that plaintiff cannot prove a breach of warranty claim against Damon as a matter of law. Consequently, plaintiff's derivative MCPA claim likewise fails as a matter of law.
The MMWA provides:
[A] consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief. . . .15 U.S.C. § 2310(d)(1). Plaintiff's remaining MMWA claim as alleged in Count IV is titled "BREACH OF WRITTEN WARRANTY," and is premised on Damon's alleged "failure to honor the written warranty. . . ." Complaint, ¶ 49, at 12. Consistent with the court's reasoning that plaintiff cannot show that Damon breached its written LIMITED WARRANTY, defendant is entitled to summary judgment of plaintiff's sole federal MMWA claim, which is expressly premised on Damon's alleged failure to honor or comply with its LIMITED WARRANTY. 15 U.S.C. § 2310(d)(1); Winningham, 42 F.3d at 984.
V. Conclusion
Defendant Damon Corporation's motion for summary judgment of plaintiff Avery Pack's remaining state claims of breach of express warranty and violations of Michigan's Consumer Protection Act, and remaining federal claim of breach of express warranty as actionable under the Magnuson Moss Warranty Act, is hereby GRANTED. Plaintiff's remaining claims as alleged against defendant Damon are hereby DISMISSED with prejudice.
SO ORDERED.