The opinion of the court was delivered by: Magistrate Judge Blewitt
This action asserting federal and state statutory claims, as well as fraudulent misrepresentation, common law fraud and breach of contract claims, was commenced on June 21, 2006, by Plaintiff John Marushin, against Defendants Independence Auto, Inc. ("Independence") d/b/a Independence Toyota. (Doc. 1). The Plaintiff invoked the federal question jurisdiction of the court by alleging, in part, violation of the Odometer Requirements Act. 28 U.S.C. §1331; 49 U.S.C. § 32701, et seq. (Doc. 1, pp. 1-2). The parties consented to proceed before a Magistrate Judge 28 U.S.C. §636(c)(1), and the District Court entered an Order reassigning this case to a Magistrate Judge. (Doc. 8).
Defendant Independence was served with the Complaint, and on August 3, 2006, it filed its Answer to the Complaint. (Doc. 3). On August 8, 2006, Defendant Independence filed a Third Party Complaint against Manheim Auto Auction, Experian Automotive and Y & O Auto Sale, Inc., Third Party Defendants ("TPD"). (Doc. 4).*fn1 TPD were served with the Third Party Complaint. On October 13, 2006, Experian filed a Motion to Dismiss, under Rule 12(b)(6), the Third Party Complaint against it. (Doc. 16). The Motion to Dismiss of Experian has been briefed and is ripe for disposition. (Docs. 17,19, 22).
II. Allegations Giving Rise to the Original Complaint and Third Party Complaint
On March 5, 2004, Independence bought a 2002 Toyota Camry from the Manheim Auto Auction. The vehicle was sold with a certification that it had 19,112 miles on it. Plaintiff bought the Camry from Independence and sued Independence when he was informed that the car had many more miles on it than indicated to him. Independence essentially alleges in its Third Party Complaint that Experian, with respect to Experian's vehicle history report, was negligent by failing to provide accurate information as to the actual mileage of the vehicle which it sold to Plaintiff. Experian prepared an Autocheck Vehicle History Report for the vehicle purchased by Plaintiff. This Report indicated that on February 26, 2004, the subject vehicle had 18,906 miles on it. (Doc. 4, Ex. C). Independence bought the Report from Experian, which indicated the 2002 Toyota had no prior damage and no prior odometer tampering.
Specifically, on June 14, 2004, Plaintiff purchased a 2002 Toyota Camry from Defendant Independence, which he alleges was represented to him as having only 19,244 miles on it, when in fact it had 80,802 miles on it. After Plaintiff purchased the Camry, he received a letter from the United States Department of Transportation indicating that the odometer reading on the vehicle was incorrect, and that as of February 18, 2004, it had at least 80,802 miles on it. (Doc. 1, Ex. C). Plaintiff filed an action against Defendant Independence, and Independence then filed its Third Party Complaint against Manheim, Experian and Y & O Auto. Y & O is the company that owned the 2002 Toyota before Manheim sold it to Independence. On November 29, 2006, Independence filed a Praecipe to discontinue its Third Party Complaint as against Third Party Defendant Manheim. (Doc. 23). Thus, Manheim is no longer a party to this action.
The Third Party Complaint of Independence contains one count as against both Experian and Y & O, namely, Count II negligence. (Doc. 4, pp. 5-6). The Third Party Complaint of Independence also contains exhibits, including the mentioned Experian vehicle report.
In particular, Independence alleges as follows:
28. Additional defendants Manheim, Y&O and Experian owed a duty to its customers, including the plaintiff, to exercise reasonable and due care when making representations about the mileage on the plaintiff's vehicle.
29. Additional defendants Manheim, Y&O and Experian breached their duty owed to the plaintiff, as they negligently and carelessly misrepresented the mileage accurately on the plaintiff's vehicle that was purchased by the original defendant as alleged in the plaintiff's complaint.
30. The negligence, carelessness and/or recklessness of additional defendants Manheim, Y&O and Experian includes but is not limited to:
a. Failing to properly investigate the history of the vehicle sold in this case to the plaintiff;
b. Failing to accurately research the amount of mileage on the vehicle ultimately purchased by ...