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February 21, 1986


The opinion of the court was delivered by: COHILL, JR.

 Presently before us is Plaintiff's "Petition to Allow Attorney's Fees, Expenses and Costs" pursuant to § 2310(d)(2) of the Magnuson-Moss Warranty - Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301-2312 (1976)("MMA"). Plaintiff initiated the underlying action on January 19, 1983 seeking damages for alleged uncorrected defects in his 1982 Peugeot 505 Turbo Diesel Sedan.


 The Complaint alleged diversity jurisdiction, 28 U.S.C. § 1332(a), and set forth three counts based on New Jersey law: (1) revocation of acceptance under § 2-608 of the New Jersey Uniform Commercial Code, NJSA 12A: 2-608; (2) breach of express warranties; and (3) breach of implied warranties of merchantability. Generally, Plaintiff averred that he ordered an automobile from Defendant Peugeot Motors of America, Inc. ("Peugeot") through Defendant Francis P. Dean, Inc. ("Dean") of Pittsburgh, an authorized Peugeot dealer, arranging for delivery in France. The automobile, according to the Complaint, arrived in a defective condition and, despite numerous attempts by various Peugeot dealers in France and the United States, was never properly repaired. There was no reference in the Complaint to the MMA.

 Both Defendants filed crossclaims, Peugeot seeking to recover the commission it paid Dean should Plaintiff succeed in revoking his acceptance, and Dean seeking indemnification from Peugeot in the event that Dean was found liable. At the close of Plaintiff's case, we granted Dean's Motion for a directed verdict dismissing both Plaintiff's claim against Dean and Dean's cross-claim against Peugeot. The jury, using special interrogatories, returned a verdict for Plaintiff permitting him to revoke acceptance and recover the full purchase price of the car, $14,260.00, plus $298.00 in consequential damages. Since Defendant Peugeot did not recover on its crossclaim, Dean has no part in the present proceeding.

 Although Plaintiff never formally pled a claim for attorney's fees under the MMA, both Plaintiff and Defendant Dean raised the issue prior to trial. See Plaintiff's Answers to Defendant Peugeot's Interrogatories, at para. 17; Defendant Dean's Answer and Crossclaim, at para. 46. At a pretrial conference, the parties were directed to submit briefs on the issue. However, since the issue would not be submitted to the jury, we reserved judgment until after trial. Post-trial arguments were held on February 3, 1986.


 Initially, we must address Peugeot's contention that Plaintiff is precluded from raising a claim for attorney's fees under the MMA because his pleadings do not contain a claim for relief under the Act. Under the facts and circumstances of this case, we do not believe this failure precludes us from entertaining this fee application filed pursuant to the MMA.

 The Federal Rules of Civil Procedure and the decisions construing them evince a philosophy that when a party has a valid claim, he should recover on it regardless of his counsel's failure to perceive the true basis of his claim at the pleading stage, provided that permitting this relief does not work to the prejudice of the opposing party. Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir. 1983). Rule 15(b) of the Federal Rules of Civil Procedure provides: "when issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Under this rule, even if the parties do not consent to trial of an issue beyond the scope of the pleadings, and an objection is made at trial on those grounds, amendment may still be allowed unless the objecting party satisfies the court that he would be prejudiced by the amendment. Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 457 (10th Cir. 1982). Prejudice is indicated when the amendment deprives the Defendant of a fair opportunity to defend against the new issues raised and deprives him of the chance to offer additional evidence. Evans Products Co. v. West American Insurance Co., 736 F.2d 920, 924 (3d Cir. 1984); R. A. Pohl Const. Co. v. Marshall, 640 F.2d 266 (10th Cir. 1981). This interpretation reflects the purpose of pleadings under the Federal Rules: to give notice to the opposition as to what it must defend against.

 Defendant has not shown how it will be unduly prejudiced if we deem the Complaint to be amended to include a claim under the Act. We do not accept the Defendant's contention that the issue did not occur to Plaintiff until the eve of trial. Defendant was put on notice of the MMA claim more than two years before the trial. On June 13, 1983, Defendant Peugeot served Plaintiff with its first set of interrogatories wherein Plaintiff was asked to itemize the costs he incurred as a result of any defect in the automobile or any breach of warranty by Peugeot. On October 11, 1983, Plaintiff responded, claiming attorney's fees under the MMA. Plaintiff's Answers to Interrogatories at para. 17. On October 28, 1983, Defendant Peugeot denied any liability under the MMA for attorney's fees in answer to Defendant Dean's cross-claim. Peugeot Answer to Dean Cross-claim at para. 6. The issue of attorney's fees also was raised at a hearing on August 6, 1984 when the Court instructed counsel to be prepared to address the issue at the next scheduled hearing. On April 26, 1985, the parties filed their pretrial stipulation wherein Plaintiff claimed as part of his damages attorney's fees in connection with his breach of warranty claims. Again during a pretrial conference on July 10, 1985, six months before trial, Plaintiff's counsel stated his position that Plaintiff is entitled to attorney's fees under the MMA. At the Court's direction, the parties briefed this issue prior to trial. Thus, it is clear that Defendant Peugeot was not prejudiced by lack of notice of this claim.

 Furthermore, Defendant was not prejudiced by an inability to present additional evidence on this claim. Plaintiff's MMA claim relates to the same conduct alleged in the Complaint. Plaintiff premised his claim under the Act upon the same breach of warranty theories alleged in his Complaint. The Act creates a Federal private cause of action for breach of a written or implied warranty obligations similar to those provided under New Jersey law. 15 U.S.C. § 2310. The additional MMA claim would not alter Defendant's defense.

 Defendant may be prejudiced in the sense that he could be liable for attorney's fees if the Complaint is deemed to be amended. However, this prejudice is not the type sought to be prevented by Rule 15's restrictions. Cunningham v. Quaker Oats Co., 107 F.R.D. 66, 71 (W.D.N.Y. 1985). In addition Fed. R. Civ. P. 54(c) supports a finding that plaintiff is not barred from seeking a fee award in this case for failure to formally plead a claim under the MMA. Under Rule 54(c), it is not necessary that plaintiff set forth the legal theory on which he relies if he sets forth sufficient factual allegations to state a claim showing that he is entitled to any relief which the court may grant. Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir. 1978). See Engel v. Teleprompter Corp., 732 F.2d 1238 (5th Cir. 1984)(Failure to seek attorney's fees in its pleadings did not bar "prevailing party" from seeking a fee award under a contract).

 Because we find no undue prejudice to Defendant Peugeot, we find that Plaintiff's failure to plead the MMA claim in his complaint does not bar his present ...

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