            Case: 12-10949    Date Filed: 10/11/2012   Page: 1 of 11

                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                         ________________________

                               No. 12-10949
                           Non-Argument Calendar
                         ________________________

                 D. C. Docket No. 8:11-cv-00354-SCB-TBM

DUANE T. BURNS,
KEVIN L. HENAULT,

                                                           Plaintiffs - Appellants,

                                    versus

WINNEBAGO INDUSTRIES, INC.,

                                                           Defendant - Appellee.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                              (October 11, 2012)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Duane T. Burns and Kevin L. Henault (“Plaintiffs”) appeal the district
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court’s denial of their amended motion to amend their complaint, as well as the

court’s subsequent grant of summary judgment to Winnebago Industries, Inc.

(“Winnebago”), on Plaintiffs’ breach-of-warranty claims.

       Plaintiffs purchased a Winnebago RV that subsequently developed serious

defects.1 Plaintiffs claim that the seller was unable to fully repair the defects. On

May 21, 2010, Plaintiffs brought suit in Florida state court against Winnebago for

breach of warranty under the Magnuson-Moss Warranty Act and the Florida

Uniform Commercial Code.

       Winnebago removed the case to federal court, but it was remanded to state

court on August 11, 2010, due to insufficient evidence that the amount in

controversy had been met. The state court set trial for June 2011.

       In October or November 2010, Plaintiffs discovered a new defect on their

RV: rust and corrosion on the chassis. However, at that time, Plaintiffs did not

seek to amend the complaint to add this additional defect to their breach-of-

warranty claim.

       On February 10, 2011, Plaintiffs’ expert informed them that Winnebago had



       1
                Alleged problems included, inter alia, an improperly fitted sewage pipe that
emptied human waste into the luggage compartment; persistent propane and sewage odors; and
improperly functioning air conditioning units, windshield wipers, batteries, satellite receiver, gas
tank, leveling jacks, and engine components. See dkt. 49-4.

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knowledge of another RV with a rusty chassis. Again, Plaintiffs did not seek to

amend their complaint at that time.

      On February 22, 2011, the case was removed again to federal court, after

evidence came to light during discovery showing that the amount in controversy

was now satisfied.

      On May 6, 2011, Plaintiffs filed their first motion to amend the complaint.

They sought to add the rust as an additional defect under the pre-existing breach-

of-warranty claim, to add Freightliner (the manufacturer of the chassis) as a new

defendant, and to add several new claims alleging deceptive trade practices and

misrepresentation. The district court denied the motion because Plaintiffs had

unduly delayed in seeking the amendments. Plaintiffs filed a more-detailed

motion on May 16, 2011, but the district court still concluded that Plaintiffs had

unduly delayed.

      The district court then continued with Plaintiffs’ original warranty claims.

The court concluded that the warranty terms required that Plaintiffs notify

Winnebago in writing about the defects and then to contact Winnebago if the

dealer did not satisfactorily repair the RV. Plaintiffs conceded that they had not

done either of these. Accordingly, the district court granted summary judgment to

Winnebago on all of Plaintiffs’ claims.

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                             I. MOTION TO AMEND

      We review the denial of a motion to amend a complaint for an abuse of

discretion. Fla. Evergreen Foliage v. E.I. DuPont De Nemours & Co., 470 F.3d

1036, 1040 (11th Cir. 2006). After the time for allowing amendments as a matter

of course has passed, amendments are permissible only with the opposing party’s

written consent or the court’s leave, which the court “should freely give . . . when

justice so requires.” Fed. R. Civ. P. 15(a)(2). A district court may deny such leave

where (1) there has been undue delay, bad faith, dilatory motive, or repeated

failure to cure deficiencies by amendments previously allowed; (2) allowing

amendment would cause undue prejudice to the opposing party; or (3) amendment

would be futile. Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir.

1999).

      The district court concluded that Plaintiffs had unduly delayed adding (1)

the rust problem as an additional defect, (2) Freightliner as a defendant, and (3)

claims for deceptive practices and misrepresentation.

      The Plaintiffs had possession of the RV for three years before they filed

suit, and these amendments were not requested until almost a year after the case

began. While the mere passage of time is not enough to deny a motion to amend,

see Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla., 148 F.3d 1231,

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1256-57 (11th Cir. 1998), there is sufficient evidence here of undue delay to

support the district court’s decision to deny these amendments.

      Upon discovering the rust problems, Plaintiffs easily could have amended

the complaint to include the rust as an additional defect under their pre-existing

breach-of-warranty claim. Plaintiffs had been aware of the rust issue since

October or November 2010, when the case was in state court with a trial set for

June 2011. However, they did not seek to amend their complaint until almost

seven months later, after the case had been removed again to federal court.

      By the time Plaintiffs allege that they had uncovered evidence that

Winnebago knew of another rusty chassis, the state court trial date was less than

four months away. But Plaintiffs still failed to amend their complaint. Instead,

they waited two more months before beginning any further research on this issue,

then waited another month before actually seeking to amend the complaint.

      By the time Plaintiffs filed their motion to amend, discovery between the

parties had begun more than six months earlier (while in state court), Plaintiffs’

depositions had already been taken, and the case had been pending long enough

that it had twice been removed to federal court.

      Considering all of these facts, we do not find an abuse of discretion in the

district court’s decision to deny Plaintiffs’ motion to amend or their amended

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motion to amend.2 See Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 761 (11th

Cir. 1995) (“Fed.R.Civ.P. 15(a) provides the district court with extensive

discretion to decide whether to grant leave to amend after the time for amendment

as a matter of course has passed.”).

                              II. BREACH OF WARRANTY

       Under the limited warranty, Plaintiffs were required to give notice of defects

both to the seller and to Winnebago itself.3 There is no dispute that Plaintiffs

       2
               As the district court noted, Plaintiffs could still seek to file a separate case
regarding the rust/corrosion problems because these “new claims are unrelated to the existing
breach of warranty claim.” [Dkt. 37 at 5]. See Lockett v. Gen. Fin. Loan Co. of Downtown, 623
F.2d 1128, 1131 (5th Cir. 1980) (noting that court should consider prejudice to movant when
deciding whether to allow a motion to amend).
       3
                 The warranty contains a section titled “OBTAINING WARRANTY REPAIRS”
that listed these steps:

       1. Promptly take the vehicle to the selling dealer for repair or inspection.

       2. Written notice of defects must be given to the selling dealer and manufacturer.

       3. If the dealer is incapable of making the repairs, request that he contact
       Winnebago Industries, Inc.

       4. If, after the above steps are completed and the repair is not made, the customer
       should contact Winnebago Industries, Inc. . . . and furnish [information about the
       vehicle and the problems]. The customer may be directed to another dealer or
       service center for repairs to be completed, if such a dealer or service center is
       better able to complete the repair. Winnebago Industries may, at its option,
       request the vehicle be returned to Forest City, Iowa for repair. . . .

       5. If after the above steps are completed and the repairs are not satisfactory, the
       customer may contact the Service Administration Manager of Winnebago
       Industries, and request a customer relations board meeting to resolve the problem.
       This action, however, is not mandatory.

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failed to give written notice to Winnebago, nor that they failed to contact

Winnebago when the dealer was unable to satisfactorily make the repairs.

       With respect to warranties, the Florida UCC states that “[t]he buyer must

within a reasonable time after he or she discovers or should have discovered any

breach notify the seller of breach or be barred from any remedy.” Fla. Stat. §

672.607(3)(a) (emphasis added). Plaintiffs contend that this statute should be

interpreted as saying that they needed to give notice only to the seller (i.e., the

dealer), even though the warranty required that they also give notice to the

manufacturer (i.e., Winnebago).

       We disagree with this contention.4 The statute merely lists one act of notice


Doc. 49-3 at 15 (emphases added).

        The warranty also stated that any action for breach of the limited or structural
warranty or any implied warranty must be commenced within one year of the expiration
of the warranty. Id. Here, the warranty expired in May 2008, but the suit was not
initiated until May 2010. However, Winnebago never raised this issue, and so we do not
address it.
       4
                 Where the seller is not the warrantor, there has apparently been some confusion
over whether the use of the word “seller” in § 672.607(3)(a) was actually meant to refer to the
warrantor. Compare Fed. Ins. Co. v. Lazzara Yachts of N. Am, Inc., 2010 WL 1223126 (M.D.
Fla. Mar. 25, 2010) (construing “seller” not to mean the “warrantor”), with Gen. Matters, Inc. v.
Paramount Canning Co., 382 So. 2d 1262, 1264 (Fla. Dist. Ct. App. 1980) (appearing to construe
“seller” as including an up-the-chain distributor who was the warrantor). However, we need not
settle this issue because we reach the same conclusion either way. If § 672.607(3)(a) requires
that notice be given to the warrantor, it is undisputed that Plaintiffs here did not do so; and if
§ 672.607(3)(a) requires that notice be given to the seller, the terms of the warranty here required
that notice also be given to the warrantor (i.e., Winnebago), which Plaintiffs did not do.

       We also agree with the district court that Lazzara Yachts is distinguishable because there

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that a buyer must give, and it does not speak to whether additional notice may be

required by the express terms of the warranty itself. As Plaintiffs acknowledge,

there seem to be no binding cases indicating that a warranty cannot impose a

requirement to notify the warrantor. Indeed, Florida courts generally treat

warranties like contracts, where the terms of the warranty dictate the parties’

respective rights and obligations. See, e.g., Detroit Diesel Corp. v. Atl. Mut. Ins.

Co., 18 So. 3d 618, 620 (Fla. Dist. Ct. App. 2009); Ocana v. Ford Motor Co., 992

So. 2d 319, 323-25 (Fla. Dist. Ct. App. 2008); Portela Invs., Inc. v. Piedra, 789 So.

2d 1014, 1015 (Fla. Dist. Ct. App. 2000).

       A primary purpose of requiring that Plaintiffs notify Winnebago is so that

Winnebago would have a chance to remedy the defects itself. See Gen. Matters,

Inc. v. Paramount Canning Co., 382 So. 2d 1262, 1264 (Fla. Dist. Ct. App. 1980)

(stating that notice provisions enable sellers or manufacturers “to make

adjustments or replacements or to suggest opportunities for cure to the end of

minimizing the buyer’s loss” and thereby reducing liability to the buyer). The

warranty states that Winnebago might choose to send the RV to a different seller

for repairs to be performed, or Winnebago might request that the RV be sent to the



is no evidence showing that the terms of the warranty in Lazzara required the buyer to give notice
to the manufacturer.

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company’s plant in Iowa for repairs. If we did not enforce the warranty’s

requirement that Plaintiffs notify the manufacturer of their RV’s defects, then

Winnebago would not be receiving the benefit of its bargain under the warranty.

See Am. Universal Ins. Grp. v. Gen. Motors Corp., 578 So. 2d 451, 455 (Fla. Dist.

Ct. App. 1991) (“[R]elegating parties to contract [their own] remedies . . . allows

parties to freely contract and allocate the risks of a defective product as they wish.

A buyer may bargain for a warranty or opt to forego the warranty in order to pay a

lower purchase price . . . .”); Fla. Stat. § 672.313(1)(a) (“Any 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.”). Winnebago never had a chance to

remedy these defects itself, an opportunity that it had contracted for.

      Also lending some support to our conclusion is the factually similar 1991

Florida Court of Appeal case of Foote v. Green Tree Acceptance, Inc., 597 So. 2d

803 (Fla. Dist. Ct. App. 1991). In Foote, the plaintiffs sued Winnebago for breach

of warranty. Like the warranty here, the warranty in Foote required that the

purchasers notify Winnebago of any defects—which they conceded they had

failed to do. Admittedly, Foote did not directly address whether it was acceptable

under Florida law for a warranty to require that the purchaser also notify the

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manufacturer. However, the opinion remanded the case to trial court for a

determination of whether there was an agency relationship between the seller and

manufacturer, such that notice to the seller would qualify as notice to the

manufacturer—and thus satisfy the requirements of the warranty. Id. at 804-05.5

It seems that an implicit assumption in Foote is that Winnebago was permitted in

the first place to add this additional notice requirement to the warranty.

       In sum, we agree with the district court that Plaintiffs’ Florida-UCC claims

fail because Plaintiffs did not notify Winnebago of the defects, as required by the

terms of the warranty.6

       The district court gave two reasons why Plaintiffs’ claims under the

Magnuson-Moss Warranty Act (“MMWA”) also failed: (1) a claim under the

MMWA is dependent upon having a viable state warranty claim, which did not

exist here due to Plaintiffs’ failure to give proper notice to Winnebago; and (2) a

party cannot bring a claim under the MMWA for failure to comply with a written

warranty unless the party gave the warrantor a reasonable opportunity to cure the


       5
              Here, the district court concluded that there was no evidence that the seller was
Winnebago’s agent. Dkt. 66 at 7 n.5. Plaintiffs have not appealed that decision, and therefore
we need not decide whether Plaintiffs’ notice to the seller equated to giving notice to Winnebago.
       6
                This does not mean that warrantors have carte blanche to impose any notice
requirements they choose. The federal Magnuson-Moss Warranty Act imposes limitations on
unreasonable duties imposed by a warranty, but the Act specifically allows warrantors to require
that they be given notice of the defect. See 15 U.S.C. § 2304(b)(1).

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failure, which did not occur here. On appeal, Plaintiffs have not challenged those

conclusions, and accordingly we affirm them.

      AFFIRMED.




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