Lemon Law Complaint - South Dakota

CIRCUIT COURT, STATE OF SOUTH DAKOTA

[____] JUDICIAL CIRCUIT, [________________________________] COUNTY

Civil No.: [________________________________]

COMPLAINT FOR SOUTH DAKOTA LEMON-LAW RELIEF

1. PARTIES

1. Plaintiff [PLAINTIFF NAME] is a resident of [________________________________] County, [State].

2. Defendant [MANUFACTURER LEGAL NAME] is a [corporation/limited liability company/other entity] organized under the laws of [State], with a principal place of business at [________________________________]. Defendant manufactured, imported, or distributed the vehicle identified below for retail sale.

3. Optional seller Defendant [SELLER LEGAL NAME] is a [corporation/limited liability company/other entity] with an address at [________________________________]. This defendant sold the vehicle to Plaintiff. ☐ Not applicable; no separate seller claim is pleaded.

2. JURISDICTION AND VENUE

4. This Court has original civil jurisdiction under SDCL § 16-6-9.

5. Venue is proper under SDCL § 15-5-6 because:

☐ At least one Defendant resided in this county when this action commenced.

☐ No Defendant resided in South Dakota when this action commenced, and Plaintiff designates this county in the Complaint.

☐ Another applicable venue statute or court order supports venue: [________________________________].

6. If Count II is retained, 15 U.S.C. § 2310(d)(1)(A) permits a qualifying Magnuson-Moss action in a state court of competent jurisdiction.

3. VEHICLE, WARRANTY, AND COVERAGE

7. The vehicle is a [Year] [Make] [Model], VIN [________________________________] (the “Vehicle”).

8. Plaintiff acquired the Vehicle on [__/__/____] from [Dealer/Seller] for $[________________________________]. The Vehicle was new or previously untitled and was used in substantial part for personal, family, or household purposes.

9. Plaintiff was the purchaser, other than for resale, and was entitled under the express warranty to enforce its obligations. Plaintiff therefore qualifies as a “consumer” under SDCL § 32-6D-1(1).

10. Defendant Manufacturer issued the written express warranty attached as Exhibit [____]. The warranty term was [________________________________].

11. The Vehicle is a covered “motor vehicle” under SDCL § 32-6D-1(5). It is intended primarily for operation on public highways, is self-propelled, and does not fall within the statute's exclusions for electric bicycles, multi-passenger quadricycles, motor homes, or vehicles with a manufacturer’s gross vehicle weight rating of 15,000 pounds or more.

4. NONCONFORMING CONDITION AND REPAIR HISTORY

12. The Vehicle developed the following condition that did not conform to the express warranty and significantly impaired its use, value, or safety: [________________________________].

13. The condition arose during ordinary use and did not result from abuse, neglect, an unauthorized modification or alteration, or an accident or other post-delivery damage.

14. Plaintiff first notified [Manufacturer/Authorized Dealer] of the condition on [__/__/____], when the Vehicle had [________________________________] miles. This was within the “lemon law rights period”: one year after original delivery or the first 12,000 miles of operation, whichever occurred first. SDCL § 32-6D-1(3).

15. Plaintiff delivered the Vehicle for repair as follows:

16. Under SDCL § 32-6D-2, Manufacturer’s repair obligation continued after the lemon law rights period because notice was first given during that period, but not beyond 24 months after delivery or 24,000 miles, whichever occurred first.

17. The statutory presumption of reasonable repair attempts arose under SDCL § 32-6D-5 because, within 24 months after delivery or 24,000 miles, whichever occurred first:

☐ The same condition was subject to four or more repair attempts, at least one during the lemon law rights period, plus a final attempt by Manufacturer, and the condition still exists.

☐ The Vehicle was out of service and in Manufacturer’s or an authorized dealer’s custody for warranty repair attempts, including the final attempt and at least one attempt during the lemon law rights period, for a cumulative total of 30 calendar days.

18. Plaintiff sent Manufacturer the notice of nonconforming condition by certified mail on [__/__/____], demanded correction or repair, and identified the Vehicle, the condition, and the previous attempts to correct it. A copy and delivery proof are attached as Exhibit [____]. SDCL §§ 32-6D-1(8) and 32-6D-6.

19. After receiving the notice, Manufacturer:

☐ Did not identify a reasonably accessible repair facility within seven calendar days.

☐ Identified a facility, but did not conform the Vehicle to the express warranty within 14 calendar days after Plaintiff delivered it there.

☐ Was given the required final opportunity, but the same condition continues to exist.

20. Manufacturer’s conduct damaged Plaintiff in the amount to be proved at trial.

5. INFORMAL DISPUTE SETTLEMENT PROCEDURE

21. Select the applicable allegation:

☐ Manufacturer did not establish an informal dispute settlement procedure conducted within South Dakota that complies with applicable federal rules.

☐ Manufacturer established such a procedure, and Plaintiff exhausted the remedy by [________________________________]. The decision or completion notice is attached as Exhibit [____].

☐ No procedure was incorporated into the written warranty as a prerequisite to the optional Magnuson-Moss claim under 15 U.S.C. § 2310(a)(3).

6. COUNT I — SOUTH DAKOTA MANUFACTURER'S WARRANTY LAW

22. Plaintiff incorporates the preceding allegations.

23. Manufacturer was unable, after reasonable attempts, to conform the Vehicle to its express warranty by repairing or correcting a nonconforming condition that first occurred during the lemon law rights period. SDCL § 32-6D-3.

24. At Plaintiff’s option, SDCL § 32-6D-3 requires Manufacturer, through its authorized dealer, to provide either:

a. A comparable new vehicle plus a refund of collateral charges; or

b. Acceptance of the Vehicle’s return and a refund of the statutory amounts, including the full contract price and specified charges, collateral charges, qualifying post-report finance charges, and qualifying incidental damages.

25. Any monetary recovery is subject to the use allowance in SDCL § 32-6D-4: the full purchase price multiplied by the miles traveled before the first report of nonconformity, divided by 100,000.

26. Under SDCL § 32-6D-8, a consumer may recover reasonable attorney fees if Manufacturer breached obligations imposed by Chapter 32-6D.

27. This action was commenced within three years after the Vehicle’s original delivery to Plaintiff, as required by SDCL § 32-6D-11.

7. COUNT II — MAGNUSON-MOSS WARRANTY ACT (OPTIONAL)

28. Plaintiff incorporates the preceding allegations.

29. The Vehicle is tangible personal property normally used for personal, family, or household purposes and is a “consumer product” under 15 U.S.C. § 2301(1).

30. Manufacturer is a warrantor that provided a “written warranty” within 15 U.S.C. § 2301(5)-(6).

31. Manufacturer failed to comply with an obligation under its written warranty, damaging Plaintiff. Plaintiff seeks damages and other legal or equitable relief permitted by 15 U.S.C. § 2310(d)(1).

32. If Plaintiff finally prevails, the Court may award reasonably incurred costs and expenses, including attorney fees based on actual time expended, unless the Court determines that an award would be inappropriate. 15 U.S.C. § 2310(d)(2).

8. COUNT III — UCC WARRANTY CLAIM AGAINST SELLER (OPTIONAL)

33. Plaintiff incorporates the preceding allegations.

34. Seller made affirmations, promises, or descriptions that became part of the basis of the bargain and created an express warranty under SDCL § 57A-2-313: [________________________________].

35. Seller was a merchant with respect to vehicles of this kind, and the implied warranty of merchantability arose under SDCL § 57A-2-314 unless validly excluded or modified under SDCL § 57A-2-316.

36. If supported by the transaction, Seller had reason to know Plaintiff’s particular purpose and reliance on Seller’s skill or judgment, creating an implied warranty of fitness under SDCL § 57A-2-315 unless validly excluded or modified.

37. Plaintiff notified Seller of the breach within a reasonable time after discovery, as required by SDCL § 57A-2-607(3)(a), by [________________________________].

38. Seller breached the applicable warranty or warranties. Plaintiff seeks the damages authorized by SDCL §§ 57A-2-714 and 57A-2-715.

39. The UCC claim was commenced within the limitation period in SDCL § 57A-2-725.

9. PRAYER FOR RELIEF

Plaintiff requests judgment for:

A. The replacement-or-refund remedy Plaintiff elects under SDCL § 32-6D-3, subject to the statutory use allowance under SDCL § 32-6D-4;

B. Qualifying incidental damages and other amounts authorized by SDCL § 32-6D-3;

C. Damages and other relief proved under any retained federal or UCC count;

D. Reasonable attorney fees under SDCL § 32-6D-8 and, if Count II is retained, costs and expenses the Court allows under 15 U.S.C. § 2310(d)(2);

E. Taxable costs, lawful interest, and other relief the Court determines proper.

10. JURY DEMAND

Under SDCL § 15-6-38(b), Plaintiff demands a jury trial on each issue triable of right by a jury.

11. SIGNATURE BLOCK

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[Attorney Name], South Dakota Bar No. [____]

[Address]

[City, State ZIP]

[Telephone]

[Email]

Attorney for Plaintiff

12. EXHIBIT INDEX

• Exhibit [____] — Purchase or lease agreement
• Exhibit [____] — Written warranty
• Exhibit [____] — Repair orders and service history
• Exhibit [____] — Certified-mail notice and proof of delivery
• Exhibit [____] — Informal dispute procedure documents, if applicable

SOURCES AND REFERENCES

• South Dakota Legislature — Chapter 32-6D, Manufacturer's Warranty
• South Dakota Legislature — SDCL § 16-6-9
• South Dakota Legislature — SDCL § 15-5-6
• South Dakota Legislature — UCC Article 2
• South Dakota Legislature — SDCL § 15-6-38(b)
• GovInfo — 15 U.S.C. § 2301
• GovInfo — 15 U.S.C. § 2310
• eCFR — 16 C.F.R. Part 703