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McKeage v. Bass Pro Outdoor World, LLC

United States District Court, W.D. Missouri, Southern Division

May 5, 2015

ROBERT McKEAGE and JANET McKEAGE, on behalf of themselves and all others similarly situated, Plaintiffs,
BASS PRO OUTDOOR WORLD, L.L.C., et al., Defendants.


GARY A. FENNER, District Judge.

Presently before the Court is Plaintiffs' Robert McKeage and Janet McKeage's (collectively "Plaintiffs") Motion for Summary Judgment (Doc. # 193) and Defendants' Bass Pro Outdoor World, L.L.C. ("Bass Pro"); TMBC, LLC ("TMBC"); Tracker Marine Retail, LCC's ("Tracker Marine Retail"); and Travis Boats and Motors Baton Rouge, LLC ("Travis Boats") (collectively "Defendants") Motion for Summary Judgment (Doc. # 309), both pursuant to Federal Rule of Civil Procedure 56.[1] Plaintiffs and Defendants each oppose the others' motion. (Docs. ## 319, 333). For the reasons stated below, Plaintiffs' Motion for Summary Judgment is GRANTED in part and DENIED in part and Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.



On May 23, 2008, Plaintiffs purchased a boat from the Tracker Boat Center located within Bass Pro. (Doc. # 194-1 ("Plaintiffs' Contract"), 1). Plaintiffs purchased their boat directly from TMBC. (Declaration of Heidi Zinnert ("Zinnert Decl.")). In addition to the price of the boat, Plaintiffs were charged a $75 "Document Fee" on what was titled an "Order Acknowledgment and Agreement of Sale" form (the "OAAS Form"). (Plaintiffs' Contract, 1). This Document Fee was paid to TMBC. (Zinnert Decl. ¶¶ 9-10). Accompanying Plaintiffs' OAAS Form was a "TERMS AND CONDITIONS" sheet (the "Terms and Conditions Sheet"). (Plaintiffs' Contract, 2). Provision 15 on the Terms and Conditions Sheet provided that "THE PARTIES AGREE THAT THIS AGREEMNT SHALL BE GOVERNED BY THE LAWS OF MISSOURI" ("Missouri Choice-of-Law Provision"). (Id. ).

A. The Forms

Defendants began using the OAAS Form in their stores in mid-2007. (Doc. # 212-2, 1). It was emphasized that the OAAS Form was created in an "ongoing effort to develop consistent business practices throughout [Defendants'] growing family of dealerships." (Id. ). It was also stated that stores were to "[d]iscontinue the use of all form versions of the [older forms] at [that] time." (Id. ). Prior to October 2013, Defendants identified the OAAS Form as the form to be used in all their sales transactions. (Affidavit of Robert Fouche ("Fouche Aff.") ¶ 7). Defendants also instructed its stores, through its "Policies and Procedures Manual, " that a sales transaction could be made by hand with the OAAS form or by using the Electronic OAAS Form (the "eOAAS Form"). (September 30, 2009 Retail Policies and Procedures Manual ("Manual"), 1; Docs. ## 212-11, 212-12). Both the OAAS Form and the eOAAS Form were accompanied with the Terms and Condition Sheet, which states that the agreement is governed by Missouri law. (Exhibit 500[2]; Doc. # 212-12). In the fall of 2013, Defendants changed their standard sales form; the updated standard form has a terms and conditions sheet that states Delaware law is to apply. ( See Declaration of Riley Daniels ¶¶ 3-8; Exhibits 2, 3).

Despite the policy regarding the use of the OAAS and eOAAS Forms, there is evidence that the OAAS Form was not used in all of Defendants' stores: some stores never used the OAAS Form and some stores did not use it during the entirety of the class period. (Deposition of Wayne Stokes ("Stokes Depo.") 7:8-15; see Docs. ## 201-1 to 201-9; January 13, 2013 Declaration of Wayne Stokes ¶ 9; Declaration of Ron Miles ¶¶ 8-10; Declaration of Laura Clancy ¶¶ 9-10; Declaration of Andrew Bower ¶¶ 9-15; Declaration of Christopher Conrad ¶¶ 19-23; Declaration of Jeff Howerton ¶¶ 4-12; Declaration of Karen Marsh ¶¶ 10-13; Declaration of Mike Schum ¶¶ 4-7; Declaration of Amy Anderson ¶¶ 8-9; Declaration of Denise Wagoner ¶¶ 8-10; Declaration of Gayle Wilfong ¶¶ 21-23; Declaration of Kristi Nance-Taylor ¶¶ 17-18; Declaration of Collin Hughes ¶¶ 17-22; Declaration of Linda Kraatz ("Kraatz Decl.") ¶ 16). As a result, this Court previously ordered that Plaintiffs were required to manually sift through each customer's file to determine whether the OAAS Form or the eOAAS Form was used in the transaction to discern whether a customer could be a member of the class. (Doc. # 265, p. 27).

B. The Document Fee

Defendants began charging customers a document fee around 1998. (Stokes Depo. 64:20-24). The amount charged to the customer as a document fee varied with the size of the purchase. (Deposition of Laura Clancy 29:3-8). The average document fee was $69.99 per customer. (Declaration of Michael Buchanan ("Buchanan Decl.") ¶ 8). The document fee was a fee charged for completing certain documents such as the bill of sale, the OAAS Form, a power of attorney, and title, license, and registration documents. (Deposition of Denise Wagner ("Wagner Depo.") 22:6-23:4; Kraatz Decl. ¶¶ 8, 13; Exhibits 529-34; Deposition of Tim Eisenhower ("Eisenhower Depo.") 47:2-9). Often, completing the documents required only filling in blanks on pre-printed forms. (Zinnert Decl. ¶¶ 11, 19). The document fee was also used for other services such as to obtain loan pay-off information, explain the registration and titling process, and register warranties. (Kraatz Decl. ¶ 8). Defendants stopped charging document fees in mid-2009. (Stokes Depo. 20:22-21:10).

C. Corporate Structure

The four Defendants in this case are separately organized limited liability companies. (Declaration of Tim Eisenhower ("Eisenhower Decl.") ¶¶ 7-10). Bass Pro Group, LLC is a parent company that owns one hundred percent of both Bass Pro, LLC and Tracker Marine Retail. (Eisenhower Depo. 4:21-5:5). Bass Pro, LLC owns one hundred percent of Bass Pro. (Eisenhower Decl. ¶ 10). Tracker Marine Retail is a holding company that owns one hundred percent of TMBC who owns one hundred percent of Travis Boats. (Id. ¶¶ 7-9).

Bass Pro is a retail seller of fishing and hunting equipment, outdoor clothing, camping and hiking supplies, firearms, and outdoor goods. (Id. ¶ 10). TMBC is a retail seller of boats, trailers, motors, and ATVs. (Id. ¶ 7). As of 2008, there were seventy-three TMBC dealerships, twenty-one were freestanding and fifty-two were located inside Bass Pro stores. (Id. ¶¶ 15-16). The TMBC dealerships located within Bass Pro stores paid rent to Bass Pro pursuant to a lease or sublease agreement. (Id. ¶ 16). Travis Boats is a single dealership located in Louisiana which sells boats, trailers, motors, and ATVs. (Id. ¶ 8).

Bass Pro, LLC and Tracker Marine Retail have separate financial statements, business licenses, and general ledgers. (Id. ¶ 12). TMBC and Bass Pro each have their own employees and assets. (Id. ). However, Bass Pro and TMBC issue joint program guidelines and have some joint training programs. (Bass Pro/TMBC Professional Accessory Installation Program Guidelines; Bass Pro/TMBC Base Camp Training Meeting Power Point Presentation). TMBC has the authority to cash checks made out to Bass Pro. (Stokes Depo. 215:10-13). After a customer purchases a boat from TMBC, TMBC sends the customer a letter thanking the customer for their purchase "here at Bass Pro Shops" and TMBC sales associates have business cards with Bass Pro logos. ( See, e.g. TMBC March 13, 2007 Letter to Matthew Baumgartner; Business Card of Winston Shepherd). TMBC managers sit in on Bass Pro's annual manager meetings. (Deposition of Riley Daniels 61:14-22)

D. Procedural History

On January 21, 2009, Plaintiffs filed suit in the Circuit Court for St. Charles County, Missouri alleging, among other things, that Defendants violated Missouri law by engaging in the unauthorized practice of law when Defendants charged document fees for the preparation of legal documents. (Petition, Count I).[3] Venue was, thereafter, transferred to Greene County. ( See April 6, 2009 Order). Plaintiffs requested the state court certify a nationwide class. ( See January 24, 2011 Order Granting Certification of Class Action; Preliminary Writ of Prohibition). The state court certified a class that was limited to individuals who entered into contracts within Missouri. (January 24, 2011 Order Granting Certification of Class Action).

On appeal, the Missouri Supreme Court concluded that the state court abused its discretion in limiting the certification. State ex rel. McKeage v. Cordonnier, 357 S.W.3d 597, 601 (Mo. 2012) (en banc). The Missouri Supreme Court stated that Defendants drafted the OAAS Forms with its Missouri Choice-of-Law Provision and forum-selection clause with the vision that all litigation arising from the OAAS Forms be "resolved in Missouri, by Missouri courts, applying Missouri law." Id. at 600. The court would not permit Defendants to "disavow the [OAAS Forms] it drafted in order to limit the class of plaintiffs" to only those in Missouri when Defendants intended the OAAS Forms to apply to all transactions and all litigation. Id. The court also stated that Defendants "conditioned every sale to each putative class member upon acceptance of the Missouri [C]hoice[-]of[-L]aw [P]rovision, " that Plaintiffs' "claims against [Defendants] arise out of the same [OAAS Forms], " and that "all of the [OAAS Forms] required the application of Missouri law to any claim." Id. at 600-01. Thus, the court reasoned the class claims are necessarily nationwide and need not be limited to transactions in Missouri. See id. at 601. Pursuant to the Missouri Supreme Court's decision, the state court certified a nationwide class of persons. (February 28, 2012 Order).

On March 21, 2012, Plaintiffs' action was removed to this Court. (Notice of Removal). Defendants moved to decertify the class action on January 15, 2013. (Doc. # 108). After a hearing and extended briefing, this Court denied Defendants' Motion to Decertify. (Doc. # 167). This Court concluded certification was proper under Federal Rule of Civil Procedure 23(a) and (b)(3). (Id. ). Defendants petitioned the Eighth Circuit for review of this Court's denial of their Motion to Decertify. (Exhibit 540). The Eighth Circuit denied Defendants' petition. (Exhibits 544, 545). After several clarifications and amendments to the class definition ( see Docs. ## 167, 174, 259), the class is presently defined as follows:

All persons charged a document fee by [Defendants] for the five (5) years preceding [Plaintiffs'] filing suit to present, on the sale, lease, and/or financing of boats, boat trailers, boating accessories, and/or recreational vehicles, which fees stem from in-store purchases in Missouri or from contracts containing Missouri choice of law provisions, and who either: (A) was subject to any of the following terms and conditions or terms and conditions substantially similar to the legal nature thereof: (1) a disclaimer of warranties providing that in all cases, Seller shall not be liable for any consequential damages arising from the breach of this agreement, any express or implied warranty or otherwise, to the maximum extent permitted by applicable law; (2) a liquidated damages provision which references the Uniform Commercial Code; (3) a provision either limiting liability for personal injuries or death arising out of the use or operation of the relevant equipment to the buyer or manufacturer, not Defendants, or indicating that the buyer would have to indemnify Defendants for any claim or action brought against Defendants; (4) a waiver of the right to trial by jury; (5) a provision stating that except as specifically set forth in this Agreement, Seller disclaims any representations or statement by any agents, employees or representatives, whether verbal or in writing, and that Buyer has not relied upon any such representations or statements; (6) a provision stating that in the event it is necessary for Seller to employ an attorney to enforce any of the terms of this Agreement or to defend any lawsuit arising out of this Agreement, then Buyer shall pay all of Seller's costs, including reasonable attorney fees, whether incurred in trial, appellate or bankruptcy court proceedings, plus court costs, deposition, investigation and travel expense and any other necessary expenses unless a judgment is entered against Seller for the complete relief sought in any complaint or pleading; (7) a provision indicating Missouri law governs the agreement; or (8) a provision indicating that the venue for any action or claim is Greene County, Missouri; or (B) during the relevant sale, lease and/or financing transaction had Defendants fill out an application for title, in a state which requires a boat to be titled, or a power of attorney which is governed by Missouri law.

(Doc. # 259, p. 4) (alterations in original).

Pursuant to the Court's previous Order, Plaintiffs hired seventy-seven reviewers to manually inspect each customer's file and determine whether the individual met the class definition by discerning whether the file contained the OAAS Form, the eOAAS Form, or the Terms and Conditions Sheet. (Doc. # 270). As a result of their manual review, Plaintiffs identified 103, 357 potential class members. (Id. ). On November 6, 2014, after removing some individuals from the potential class member list, Plaintiffs sent notice to 92, 097 class members. (Doc. # 301 ¶ 1). On January 5, 2015, the Court allowed Plaintiffs to send notice to another 2225 class members over Defendants' objection. (Doc. # 303). The class members were broken down into three categories: (1) individuals whose customer files were reviewed and reflected that the customer met the class definition;[4] (2) individuals whose files were reviewed and reflected that the customer met the class definition even though the individual was not shown to meet the class definition under the IDS system;[5], [6] and (3) individuals who were listed as meeting the class definition on the IDS system but whose files were not provided for inspection.[7] (Doc. # 270, ¶¶ 2-6).


Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Summary judgment is appropriate if the evidence, viewed in the light most favorable to the [nonmovant] and giving [the nonmovant] the benefit of all reasonable inferences, shows there are no genuine issues of material fact and [the movant] is entitled to judgment as a matter of law." Price v. N. States Power Co., 664 F.3d 1186, 1191 (8th Cir. 2011). "Once the moving party has made and supported their motion, the nonmoving party must proffer admissible evidence demonstrating a genuine dispute as to a material fact." Holden v. Hirner, 663 F.3d 336, 340 (8th Cir. 2011). Summary judgment should not be granted if a reasonable jury could find for the nonmoving party. Woodsmith Publ'g Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).


A. Whether Plaintiffs' Motion for Summary Judgment is Outdated

Defendants first allege that Plaintiffs' Motion for Summary Judgment should be denied outright because it is "outdated." (Doc. # 333, p. 89). Plaintiffs' Motion for Summary Judgment was filed on September 16, 2013. (Doc. # 194). The original dispositive motion deadline was September 15, 2013. (Doc. # 38). At that point, this case had been in progress for a year and a half and the discovery deadline had passed. (Id. ). The Court decided to stay disposition of Plaintiffs' Motion for Summary Judgment, per Defendants' request, because it believed it was the "best practice to afford class members notice and an opportunity to opt out prior to determining the merits of Plaintiff's Motion for Summary Judgment." (Doc. # 265, p. 28). The Court then extended the deadline for dispositive motions, again per Defendants' request, allowing Defendants to file their present Motion for Summary Judgment and giving Plaintiffs the opportunity to file a renewed Motion for Summary Judgment if they so desired. (Doc. # 292, pp. 3-4). After twice postponing disposition of Plaintiffs' Motion for Summary Judgment at the request of Defendants, this Court declines to punish Plaintiffs for Defendants' requests by now declaring that Plaintiffs' Motion is outdated.

Defendants also allege that Plaintiffs' Motion is problematic because, since the Motion was filed, the Court has dismissed one of Plaintiffs' claims, amended the class definition and the members of the class, and excluded testimony from one of Plaintiffs' experts. (Doc. # 333, p. 89). However, the Court gave Defendants the opportunity to file updated briefing on Plaintiffs' Motion for just this reason. (Doc. # 324). Additionally, the excluded expert's testimony was only cited in one place in Plaintiffs' Suggestions in Support of their Motion for Summary Judgment. ( See Doc. # 194, p. 25). The contention the expert's testimony was used to support is also supported by three separate cases. ( See id. ). Further, this Court does not believe that amending the members of the class changes the legal analysis upon which the class members' claims are based. Finally, Plaintiffs' Motion for Summary Judgment contained one page discussing ...

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