In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3093
JOHN P. M ILLER,
Plaintiff-Appellant,
v.
JAMES G. H ERMAN, et al.,
Defendants-Appellees,
and
P ELLA P RODUCTS, INC.,
Defendant/Third-Party Plaintiff-Appellee,
and
JOSEPH N OBILIO C ARPENTERS,
Third-Party Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 3573—Wayne R. Andersen, Judge.
A RGUED JANUARY 13, 2010—D ECIDED M ARCH 25, 2010
2 No. 08-3093
Before B AUER, M ANION, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Appellant John P. Miller con-
tracted with appellee James G. Herman for the construc-
tion of a new home. Herman installed Pella windows in
the home as part of that contract, and, according to
Miller, the windows have leaked, causing him personal
and property damage. He brought this action against
Herman, Herman’s construction company, James G.
Herman & Associates, and Pella Products, Inc. (“Pella”)
pursuant to the Magnuson-Moss Warranty—Federal Trade
Commission Improvement Act, 15 U.S.C. §§ 2301-2312
(“Magnuson-Moss” or “the Act”), and various Illinois
law theories. On motion by Herman and Herman &
Associates, the district court dismissed the suit for lack
of subject matter jurisdiction. Miller appeals. We affirm
the dismissal of the Magnuson-Moss claims on modified
grounds, though we vacate the dismissal of Miller’s
state law claims and any related crossclaims, third-party
claims, and counterclaims, and order a limited remand
so the district court can determine whether it should
exercise supplemental jurisdiction over them.
I. B ACKGROUND
In April 2003, John P. Miller and his then-wife Terese
Miller entered into an oral contract with builder James G.
Herman and his company, James G. Herman & Associates,
for the construction of a new, custom-built, $497,700.38
home in Lakemoor, Illinois. (We recite the facts as the
Millers allege, with all reasonable inferences in their
favor.) In mid-June 2003, Herman purchased for the
No. 08-3093 3
Millers’ home windows and doors (collectively “win-
dows”) manufactured and warranted by Pella Products.
As construction of the home progressed, Herman and
subcontractor Joseph Nobilio installed the windows
into the nascent structure.
From the time of their installation in summer 2003
through December 2003, when Herman completed the
home and represented to the Millers that it was habitable,
the windows leaked and allowed water into the home. The
Millers complained to Herman and Pella, and in response
Herman caulked around the windows. The Miller
family moved into the home sometime thereafter. Notwith-
standing the additional caulking, the windows continued
to leak. Mold growing in the home eventually caused the
Millers’ daughter to have an asthma attack and prompted
the Millers to seek professional mold remediation.
In April 2005, the Millers contacted Pella and requested
that it inspect a casement window in the basement of the
home. Pella sent two representatives to the home, and they
removed and inspected the window as requested. They
observed water damage and concluded that it had been
caused by faulty installation rather than a defective
window. They reinstalled the window, but Miller alleges
that they, too, deviated from Pella’s official installation
instructions. There is no indication that the Millers
asked for, or that Pella performed, any inspection or
reinstallation of the other windows.
The windows continued to leak, and the Millers eventu-
ally filed a complaint in Illinois state court. They volun-
tarily dismissed that complaint, however, to pursue the
4 No. 08-3093
present action against Herman, Herman & Associates, and
Pella in the Northern District of Illinois, where they filed
an eight-count complaint. Four of the counts, Counts I-IV,
sounded in state law against Herman: breach of contract,
breach of the implied warranty of habitability, violation
of the Illinois Consumer Fraud and Deceptive Business
Practices Act, and common law fraud. Count VIII, products
liability, was levied against Pella. The remaining three
counts, Counts V, VI, and VII, in the Millers’ view pro-
vided the requisite jurisdictional hook to carry the lot
into federal court. All three, Count V against Herman
and Counts VI and VII against Pella, were breach of
warranty claims pleaded with reference to Magnuson-
Moss, which provides a civil cause of action for con-
sumers “damaged by the failure of a supplier, warrantor,
or service contractor to comply with any [Act]
obligation . . . or under a written warranty, implied war-
ranty, or service contract . . . .” 15 U.S.C. § 2310(d)(1)
(emphasis added). The Act’s “unusual jurisdictional
clause,” quoted in the preceding sentence, permits “an
aggrieved customer [to] sue on state-law claims in federal
court, whether or not the parties are of diverse citizen-
ship.” Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955,
956 (7th Cir. 1998). Indeed, Counts V and VI both allege
breaches of Illinois warranty law. The only requirements
a non-class-action plaintiff must meet to get state law
warranty claims into federal court under Magnuson-Moss
both relate to the amount in controversy: the amount in
controversy of each claim must exceed $25, and the total
amount in controversy, exclusive of interests and costs,
must be at least $50,000. 15 U.S.C. § 2310(d)(3).
No. 08-3093 5
Herman & Associates moved to dismiss the Millers’
complaint for lack of subject matter jurisdiction. See Fed.
R. Civ. P. 12(b)(1). It did not argue that the amount-in-
controversy requirements had not been satisfied,1 but
instead asserted that the district court lacked subject
matter jurisdiction because the windows installed in the
Millers’ home were not “consumer products” within the
meaning of the Act. See 15 U.S.C. § 2301(1); 16 C.F.R.
§ 700.1. Since the Millers were not raising complaints
related to “consumer products,” Herman & Associates
reasoned, Magnuson-Moss did not apply to the claim and
thus there was no federal question jurisdiction under
28 U.S.C. § 1331. And if that were the case, the district
court would be unable to exercise supplemental juris-
diction over the state law claims pursuant to 28 U.S.C.
1
Although the Millers failed to assign specific dollar values to
the damages alleged in their complaint, and failed to even
mention the amount-in-controversy requirement, we conclude
that it has been satisfied here. See Flying J Inc. v. City of New
Haven, 549 F.3d 538, 544 (7th Cir. 2008) (noting that we are
“obliged to consider” subject matter jurisdiction “at any point
in the litigation”). These were pricey windows, and the Millers
also alleged consequential and incidental damages (which
are recoverable under Illinois warranty law, upon which two
of the three Magnuson-Moss claims are based). “When the
jurisdictional threshold is uncontested, we generally will
accept the plaintiff’s good faith allegation of the amount in
controversy unless it appears to a legal certainty that the claim
is really for less than the jurisdictional amount.” McMillian
v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir.
2009) (quotations omitted).
6 No. 08-3093
§ 1367(a). See Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006) (“[W]hen a federal court concludes it lacks
subject matter jurisdiction, the court must dismiss the
complaint in its entirety.”). (Diversity jurisdiction, 28
U.S.C. § 1332, is of no concern here because Miller,
Herman, and Herman & Associates all hail from Illinois.)
The Millers filed a reply to the motion in which they
argued, citing state case law and Federal Trade Commis-
sion (“FTC”) interpretations, that the windows were
consumer products. Shortly thereafter, the district court
denied Herman & Associates’ motion with the enigmatic
explanation that its ruling was “based on our reading of
the Magnuson-Moss Warranty Act.”
Eight months later, Herman & Associates, this time in
conjunction with Herman, again moved to dismiss the
complaint on Rule 12(b)(1) grounds. The Herman defen-
dants asked the court to reconsider its earlier decision in
light of an Illinois Appellate Court decision holding that
windows installed in new homes were not “consumer
products.” See Weiss v. MI Home Prods., Inc., 877 N.E.2d
442, 445 (Ill. App. Ct. 2007). They accompanied their
motion with a Fed. R. Civ. P. 56(b) motion for summary
judgment on alternative, unrelated grounds.
While the Herman defendants’ motions were pending,
Pella filed its own Rule 56(b) motion for summary judg-
ment. In its supporting memorandum, Pella raised the
same argument that the Herman defendants had raised
in the Rule 12(b)(1) context: the windows at issue are not
“consumer products.” (Pella also adopted, in a footnote,
the Herman defendants’ motion.) Rather than couching
No. 08-3093 7
the argument in jurisdictional terms, Pella asserted that
“as a matter of law, the windows and doors at issue
in this case are outside of the definition of a consumer
product contained in [Magnuson-Moss]. As a result, an
essential element of plaintiffs’ claim is missing and there
are no set of facts under which plaintiffs’ claim can suc-
ceed.” Dkt. No. 94 at 6. Pella cited some of the FTC’s
interpretations of the Act, see 16 C.F.R. § 700.1, and case
law, including the Weiss case, to support its position.
Pella also attached an FTC advisory opinion, 88 F.T.C. 1030,
to its memorandum.
The district court ordered consolidated briefing on the
Herman defendants’ and Pella’s motions. The Millers
accordingly filed a single universal response memoran-
dum, in which they argued that the windows were
“consumer products.” They did not address the disparate
procedural postures of the motions they were opposing;
they simply requested that the district court “deny the
Defendants’ Motion to Dismiss and Motion for Sum-
mary Judgment.”
The district court did not accede to the Millers’ request.
In its memorandum order and opinion, after discussing
the FTC’s interpretations, 16 C.F.R. § 700.1(e) and (f), the
district court concluded:
We find that the Millers contracted with Herman
for the construction of a new home, not for the
individual sale of windows. Because those win-
dows were intended to be integrated into the
Millers’ home, we find that they do not constitute
“consumer products” under the Magnuson-Moss
8 No. 08-3093
Act, but are instead building materials indistin-
guishable from the real property. Thus, the Millers
have no valid claims under the Magnuson-Moss
Act, and this court therefore lacks subject matter
jurisdiction over any of the Millers’ claims. Ac-
cordingly, Herman’s motion to dismiss this case
is granted. We note that the defendants have also
moved for summary judgment on the Millers’ state
law claims. The defendants may reassert those
arguments in state court should the Millers
choose to refile their state law claims in state court.
For the foregoing reasons, defendants James G.
Herman’s and James G. Herman & Associates,
Inc.’s motion to dismiss for lack of subject matter
jurisdiction is granted. This case is terminated.
Miller v. Herman, No. 06 C 3573, 2008 WL 4889094, at *3
(N.D. Ill. July 15, 2008). The district court later clarified that
its pronouncement of termination (and entry of final
judgment) applied to all defendants and encompassed
all motions and claims pending before it, including
Pella’s motion for summary judgment.
II. D ISCUSSION
A. Magnuson-Moss Claims
John Miller, who after the Millers’ recent divorce solely
holds all obligations and rights associated with the
home, including those stemming from this action, now
appeals. He argues, as he did before the district court,
that the windows Herman and Nobilio installed in his
No. 08-3093 9
home are “consumer products” that entitle him to the
benefits and protections of the Magnuson-Moss Act.
Before we reach that argument, however, we address a
procedural hiccup that entered this case as part and parcel
of Herman & Associates’ first motion to dismiss. Since
that motion, the “consumer product” debate at the heart
of this case has been framed as a jurisdictional question.2
But because Miller must show that the windows are a
consumer product to prevail, and not just to get into
federal court, see 15 U.S.C. § 2310(d), the Herman defen-
dants’ Rule 12(b)(1) motion was in fact an indirect attack
on the merits of Miller’s case. See Gentek Bldg. Prods., Inc. v.
The Sherwin-Williams Co., 491 F.3d 320, 331 (6th Cir. 2007)
(“To establish a Magnuson-Moss claim, a plaintiff must
show that the item at issue was a ‘consumer product.’ This
disputed fact therefore goes to the merits.”); Miller v.
Willow Creek Homes, Inc., 249 F.3d 629, 632 (7th Cir. 2001)
(noting that it would “not reach the merits” of the
dispute but nonetheless commenting that “it seems
doubtful at best that a court would find the mobile
home in question to be a consumer product covered by
the Act”).
The conflation of jurisdictional and non-jurisdictional
limitations on causes of action is not an uncommon
occurrence. Indeed, the Supreme Court has taken up the
issue on several occasions, as have we. See, e.g., Reed
2
We note that Pella (correctly) characterized the issue as merits-
based rather than jurisdictional in its motion for and memoran-
dum in support of summary judgment. Dkt. Nos. 94 & 95.
10 No. 08-3093
Elsevier, Inc. v. Muchnick, No. 08-103, 2010 WL 693679, at *8,
*11 (U.S. Mar. 2, 2010) (holding that the registration
requirement in 17 U.S.C. § 411(a) of the Copyright Act
“imposes a precondition to filing a claim” and “does not
restrict a federal court’s subject-matter jurisdiction”);
Arbaugh, 546 U.S. at 511 (recognizing the “subject-
matter jurisdiction/ingredient-of-claim-for-relief dichot-
omy” and noting that “[s]ubject matter jurisdiction in
federal-question cases is sometimes erroneously conflated
with a plaintiff’s need and ability to prove the defendant
bound by a federal law asserted as the predicate for
relief—a merits-related determination” (quotation omit-
ted)); Bell v. Hood, 327 U.S. 678, 682 (1946) (“Jurisdiction . . .
is not defeated . . . by the possibility that the averments
might fail to state a cause of action on which petitioners
could actually recover.”); Williams v. Fleming, No. 09-2410,
2010 WL 668889, at *3-*4 (7th Cir. Feb. 26, 2010) (holding
that in the context of the Federal Tort Claims Act, claims
dismissed on sovereign immunity grounds are “not
dismissed for lack of jurisdiction, but for the existence of
a defense”); Doss v. Clearwater Title Co., 551 F.3d 634, 638-
39 (7th Cir. 2008) (discussing 15 U.S.C. § 1635(f) and
concluding that there is “nothing jurisdictional” about it).
The Supreme Court has provided a “readily administra-
ble bright line” test to resolve the question of whether a
provision is jurisdictional. Arbaugh, 546 U.S. at 516. Under
that test,
[i]f the Legislature clearly states that a threshold
limitation on a statute’s scope shall count as juris-
dictional, then courts and litigants will be duly
No. 08-3093 11
instructed and will not be left to wrestle with the
issue. But when Congress does not rank a statutory
limitation on coverage as jurisdictional, courts
should treat the restriction as nonjurisdictional
in character.
Id. at 515-16 (citations omitted). The Court has also ex-
plained that the location of statutory requirements can be
instructive; when requirements are in provisions “sepa-
rate” from a statute’s “jurisdiction-granting section,” Reed
Elsevier, 2010 WL 693679, at *6, that is some indication
that the requirements are not jurisdictional, see id. (citing
Arbaugh, 546 U.S. at 514-15). Applying these principles
here confirms that Magnuson-Moss’s “consumer prod-
ucts” requirement, see 15 U.S.C. §§ 2301-2305, 2308, is not
jurisdictional. Neither the definition of consumer
products, § 2301(1), nor the provisions that set out rules
governing warranties of consumer products, §§ 2302-
2305, 2308, “clearly state” that they are jurisdictional. We
thus treat them as “nonjurisdictional in character.” In
contrast, § 2310(d)(1) has the heading “Jurisdiction” and
grants “appropriate district court[s] of the United States”
the ability to hear claims. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 89 (1998) (stating that “subject-matter
jurisdiction” refers to “the courts’ statutory or constitu-
tional power to adjudicate the case”). Moreover, the
term “consumer product” does not appear in the juris-
dictional provision; it is used only in separate sections
of the Act. We therefore conclude that whether an item
is a “consumer product” is not a jurisdictional require-
ment of the Magnuson-Moss Act. Thus, the Herman
defendants’ filing before the district court was, despite
12 No. 08-3093
its label, more properly considered as a motion to
dismiss for failure to state a claim. Reynolds v. United
States, 549 F.3d 1108, 1111-12 (7th Cir. 2008); see also Palay
v. United States, 349 F.3d 418, 424-25 (7th Cir. 2003); Health
Cost Controls v. Skinner, 44 F.3d 535, 538 (7th Cir. 1995)
(“This Court ordinarily may modify a dismissal for lack
of jurisdiction and convert it to a dismissal on the merits
if warranted.”); Peckmann v. Thompson, 966 F.2d 295, 297
(7th Cir. 1992) (“If a defendant’s Rule 12(b)(1) motion is
an indirect attack on the merits of the plaintiff’s claim,
the court may treat the motion as if it were a Rule 12(b)(6)
motion to dismiss for failure to state a claim upon
which relief can be granted.”).
Yet a Rule 12(b)(6) motion must be decided solely on the
face of the complaint and any attachments that accompa-
nied its filing. See Fed. R. Civ. P. 10(c), 12(d); Segal v. Geisha
NYC LLC, 517 F.3d 501, 504-05 (7th Cir. 2008). Here,
“matters outside the pleadings were presented to and not
excluded by the court,” so “the motion shall be treated as
one for summary judgment and disposed of as provided
in Rule 56.” Fed. R. Civ. P. 12(d). There is no problem
construing the motion as one for summary judgment
here; “[a]dequate notice is provided when the moving
party frames its motion in the alternative as one for
summary judgment,” Tri-Gen Inc. v. Int’l Union of
Operating Eng’rs, Local 150, 433 F.3d 1024, 1029 (7th Cir.
2006), and not only did the Herman defendants do just
that, but Pella also explicitly filed a motion requesting
summary judgment on identical grounds to those
asserted in the Rule 12(b)(1) motion. Moreover, Miller
responded to the motions collectively and universally, and
No. 08-3093 13
had the opportunity to “present all the material that is
pertinent to” a summary judgment motion. Fed. R. Civ. P.
12(d); see also Malak v. Assoc. Physicians, Inc., 784 F.2d 277,
280 (7th Cir. 1986).
Our review is thus de novo (as it would have been under
a Rule 12(b)(1) or Rule 12(b)(6) motion as well), and sum-
mary judgment is appropriate “if the pleadings, the dis-
covery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact
and that the movant is entitled to summary judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Reget v. City of La
Crosse, No. 06-1621, 2010 WL 424581, at *2 (7th Cir. Feb. 8,
2010). We construe all facts in the light most favorable
to Miller and draw all reasonable inferences in his favor. Id.
Here, the Herman defendants moved to dismiss on the
theory that Miller’s windows were not—and could not
be—“consumer products” giving rise to a Magnuson-Moss
cause of action. Pella cited the same grounds in its
motion for summary judgment. The determination of
what constitutes a “consumer product” is thus crucial to
the resolution of this case. In making that determination,
we look first to the definition of “consumer product”
provided in the Magnuson-Moss Warranty Act. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). The
definition, “any tangible personal property which is
distributed in commerce and which is normally used
for personal, family, or household purposes (including
any such property intended to be attached to or installed
in any real property without regard to whether it is so
attached or installed),” 15 U.S.C. § 2301(1), is on its face
14 No. 08-3093
expansive but the extent of its intended scope is some-
what hazy. To clarify the meaning of § 2301 and other
provisions, the FTC, in connection with its authority to
implement the Act, see 15 U.S.C. § 2312(c), issued “inter-
pretations” in 1977 via notice-and-comment procedures,
see 42 Fed. Reg. 36112, 36112 (July 13, 1977). The inter-
pretations are codified at 16 C.F.R. § 700.1, and both
Miller and the appellees direct our attention to them.
In the FTC’s own words, its Magnuson-Moss interpreta-
tions are “advisory in nature,” are not “substantive rules,”
and lack “the force or effect of statutory provisions.” 42
Fed. Reg. 36112, 36112 (July 13, 1977). The FTC’s inter-
pretations consequently may not be entitled to full
Chevron deference, see Christensen v. Harris County, 529
U.S. 576, 587 (2000) (citing Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984)), but “an agency’s
interpretation may merit some deference whatever
its form, given the specialized experience and broader
investigations and information available to the agency,
and given the value of uniformity in its administrative
and judicial understandings of what a national law re-
quires,” United States v. Mead Corp., 533 U.S. 218, 234 (2001)
(citations and quotations omitted). We have looked
favorably upon these very interpretations in the past, see
Waypoint Aviation Servs. Inc. v. Sandel Avionics, Inc., 469 F.3d
1071, 1073 (7th Cir. 2006) (citing 16 C.F.R. § 700.1(d)), and
we acquiesce to the parties’ requests to consult them
here because they have “power to persuade,” Christensen,
529 U.S. at 587 (quoting Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944)).
No. 08-3093 15
An interpretation’s “power to persuade” is measured
by numerous factors, including “the thoroughness
evident in its consideration, the validity of its reasoning,
[and] its consistency with earlier and later pronounce-
ments.” Skidmore, 323 U.S. at 140; Joseph v. Holder, 579
F.3d 827, 832 (7th Cir. 2009); see also Mead, 533 U.S. at
228 (citing the degree of an agency’s care, consistency,
formality, and relative expertise as factors affecting the
“fair measure of deference” due). Those factors tilt
strongly in favor of deference here. The FTC was respon-
sible for implementing the Act. 15 U.S.C. § 2312(c); see also
Carcieri v. Salazar, 129 S. Ct. 1058, 1065 n.5 (2009) (noting
that a commissioner’s responsibilities relating to the
implementation of the Indian Reorganization Act of 1934
rendered his interpretations of the statute “unusually
persuasive” but not deferring because the statute was
unambiguous); Good Samaritan Hosp. v. Shalala, 508 U.S.
402, 414 (1993) (“[W]e generally defer to a permissible
interpretation espoused by the agency entrusted with
its implementation.”). The FTC promulgated the inter-
pretations using notice-and-comment procedures even
though it was not required to do so. See Long Island Care at
Home, Ltd. v. Coke, 551 U.S. 158, 173 (2007); White v. Scibana,
390 F.3d 997, 1000-01 (7th Cir. 2004). It has adhered to its
interpretative positions consistently since the 1970s, even
after soliciting comments on them repeatedly in the late
1990s. 64 Fed. Reg. 19700, 19700 (Apr. 22, 1999); see also
Good Samaritan Hosp., 508 U.S. at 417 (“[T]he consistency of
an agency’s position is a factor in assessing the weight
that position is due.”). And it grounded its reasoning
in Magnuson-Moss’s legislative history. See 64 Fed. Reg.
16 No. 08-3093
19700, 19702-03 (Apr. 22, 1999). These considerations
lead us to give the interpretations a reasonably high
degree of deference. See Skidmore, 323 U.S. at 140.
Miller asserts that 16 C.F.R. § 700.1(e) is the interpreta-
tion most pertinent to this case. It provides:
The coverage of building materials which are not
separate items of equipment is based on the nature
of the purchase transaction. An analysis of the
transaction will determine whether the goods are
real or personal property. The numerous products
which go into the construction of a consumer
dwelling are all consumer products when sold
“over the counter,” as by hardware and building
supply retailers. This is also true where a con-
sumer contracts for the purchase of such
materials in connection with the improvement,
repair, or modification of a home (for example,
paneling, dropped ceilings, siding, roofing, storm
windows, remodeling). However, where such
products are at the time of sale integrated into the
structure of a dwelling they are not consumer
products as they cannot be practically distin-
guished from realty. Thus, for example, the beams,
wallboard, wiring, plumbing, windows, roofing,
and other structural components of a dwelling are
not consumer products when they are sold as part
of real estate covered by a written warranty.
In Miller’s view, the fact that the windows were pur-
chased to be installed into the house at a later time renders
the transaction here an “over the counter” transaction like
No. 08-3093 17
that contemplated in 16 C.F.R. § 700.1(e). He likens his
situation to that of the plaintiffs in Wilson v. Semling-Menke
Co., 766 N.W.2d 128 (Neb. 2009), one of whom, Linda,
served as the general contractor of the house they were
having built for themselves. Linda went to a building
supply store and purchased twenty-two windows, which
were later installed into the house and, like those at
issue here, allegedly allowed water into the structure.
See id. at 130. The Wilsons brought suit under Magnuson-
Moss, alleging the windows were consumer goods, and
the Nebraska Supreme Court ultimately ruled in their
favor. Citing 16 C.F.R. § 700.1(e), that court concluded
that the Wilsons’ purchase of the windows rendered
them “consumer products” because it “resembled a
purchase ‘over the counter’ more than it resembled a
purchase by a contractor.” Id. at 133. The court specifically
noted that the Wilsons “did not have a contract with a
builder for the house as a whole, but instead purchased
the windows separately.” Id. at 134.
We do not find Miller’s situation analogous to that
faced by the Wilsons, or, more fundamentally, within the
purview of 16 C.F.R. § 700.1(e). Miller did not go to the
store and engage in a transaction for windows. Instead,
he specifically alleged that “Herman purchased, on behalf
of the Millers, fixed and casement windows and several
hinged doors and a slider patio door manufactured by
Pella.” Compl. ¶ 12 (emphasis added). This allegation
is supported by the record: the invoice for the windows
lists “Herman, Jim and Associat [sic],” not Miller, as the
customer. The only contract alleged here is one between
Herman and the Millers, for a home. Herman’s separate
18 No. 08-3093
purchase of the windows was incidental to that transac-
tion—it did not stand alone. Although Miller technically
paid for the windows by supplying Herman with the
funds, and may have influenced (or dictated, as Miller
asserted at oral argument) Herman’s decision to pur-
chase Pella-manufactured windows, when he received
the windows they were “integrated into the structure of a
dwelling” and could not be “practically distinguished
from realty.” 16 C.F.R. § 700.1(e). Miller contracted for
the windows in connection with the construction of a
new home, not in connection with the “improvement,
repair, or modification” of an existing home as contem-
plated by subsection 700.1(e). See Muchisky v. Frederic
Roofing Co., 838 S.W.2d 74, 78 (Mo. Ct. App. 1992) (holding
that the shingles used to re-roof an existing home were
consumer products and noting that “[i]t appears that as
to products which are becoming a part of realty the
distinction drawn is whether the product is being added
to an already existing structure or whether it is being
utilized to create the structure”). Indeed, we agree with
the appellees that 16 C.F.R. § 700.1(f), which addresses
the situation in which consumers contract for the con-
struction of a new home, is more applicable here.
Subsection 700.1(f) provides:
In the case where a consumer contracts with a builder to
construct a home, . . . the building materials to be used
are not consumer products. Although the materials
are separately identifiable at the time the con-
tract is made, it is the intention of the parties to
contract for the construction of realty which will
No. 08-3093 19
integrate the component materials. Of course, as
noted above, any separate items of equipment to
be attached to such realty are consumer products
under the Act.
(emphasis added). This interpretation is a much closer fit
to the facts alleged in Miller’s complaint. Miller contracted
with Herman for a home. He agreed to pay Herman
roughly $500,000 for the home under a single contract, not
$(500,000-X) for the home under one contract and $X for
the windows under another. He expected to (and did)
receive a fully, if allegedly poorly, completed home, not
an incomplete home accompanied by a stack of
uninstalled, nonintegrated windows.
Miller nonetheless asserts that Pella’s recognition that
the windows are severable from the house—recall that
its representatives removed and reinstalled one of the
windows—precludes the conclusion that they were
integrated into the home. Not only does this argument
ignore the crucial distinction embodied in subsection
700.1(f), that a contract for a home supersedes any in-
cidental purchases of individual materials for that home,
if taken to its logical conclusion it would obviate the
need for many of the FTC’s interpretations. For under
Miller’s logic, every part of every home, preexisting or
newly constructed, would be a consumer product, because
even elements of homes such as the wiring, walls, or
plumbing can be removed and replaced if necessary. Cf. 16
C.F.R § 700.1(d) (“The coverage of separate items of
equipment attached to real property includes, but is not
limited to, appliances and other thermal, mechanical, and
20 No. 08-3093
electrical equipment. (It does not extend to the wiring,
plumbing, ducts, and other items which are integral component
parts of the structure.)” (emphasis added)).
We are similarly unpersuaded by Miller’s claim that
applying subsection 700.1(f) here would undermine
subsection 700.1(e). His theory is that subsection (f), taken
alone, “proves too much” because it ignores the terms of
the contract between the builder and the buyer. He advo-
cates instead for a concurrent reading of subsections (e)
and (f), which he asserts was the approach taken by the
Nebraska Supreme Court in Wilson. The Wilson court did
indeed take both subsections (e) and (f) into account, but
it did not read the provisions concurrently, nor did it
elevate one above the other: it simply evaluated both and
applied the one that most closely fit the facts before it. The
Wilson court noted that there was no contract between a
buyer and a builder, and explained that “the purchase of
the windows resembled a purchase ‘over the counter’ more
than it resembled a purchase by a contractor, as is required
under 16 C.F.R. § 700.1(e) for building materials to be
considered ‘consumer products.’ ” Wilson, 766 N.W.2d
at 133.
The Wilson court mentioned another FTC interpretation,
subsection 700.1(a), which Miller invites us to apply
notwithstanding any potential undermining effect it
might have on subsections (e) and (f). Subsection 700.1(a)
provides that “[w]here it is unclear whether a particular
product is covered under the definition of consumer
product, any ambiguity will be resolved in favor of cover-
age.” We can envision some situations in which that
No. 08-3093 21
interpretation would carry the day, but this is not one
of them. Subsections 700.1(e) and (f) expressly provide a
framework under which to analyze the “consumer prod-
uct” status of building materials. The facts pleaded in the
complaint in this case are in line with those contemplated
by subsection 700.1(f), which resolves any potential
ambiguity without the aid of subsection (a). Moreover,
even though there is arguably some ambiguity in the
case law interpreting subsections (e) and (f), both pre-
dominant tests lead to the same result in this case. Compare
Weiss, 877 N.E.2d at 445 (“[T]he distinction drawn is
whether the product is being added to an already existing
structure or whether it is being utilized to create the
structure.”), Atkinson v. Elk Corp. of Tex., 48 Cal. Rptr. 3d
247, 255 (Cal. Ct. App. 2006) (“[W]e find that the crucial
distinction is the time of sale. If the products are purchased
in order to add them to an existing dwelling, then
the products are consumer products. If, on the other hand,
the products are purchased as part of a larger real estate
sales contract, or contract for a substantial addition to a
home, they are not.”), and Muchisky, 838 S.W.2d at 78 (“It
appears that as to products which are becoming a part
of realty the distinction drawn is whether the product is
being added to an already existing structure or whether
it is being utilized to create the structure. . . . The presence
of subsection (f) indicates that the Commission was
utilizing ‘time of sale’ as the entry into a commitment not
the completion of the obligation.”), with Illinois ex rel. Mota
v. Cent. Sprinkler Corp., 174 F. Supp. 2d 824, 831 (C.D. Ill.
2001) (“Whether non-separate items of equipment (inte-
gral component parts of the structure, such as wiring,
22 No. 08-3093
plumbing, ducts, and other items) are consumer products
depends upon how they are purchased.”), and Wilson,
766 N.W.2d at 133 (examining the nature of the trans-
action for the windows).
Miller’s final argument is that the district court’s inter-
pretation of the Act is problematic from a policy stand-
point. He claims that under the district court’s reasoning,
Magnuson-Moss only offers the public the “improper
result that a consumer who purchases a component for
a home, such as roofing, windows, or a major kitchen
appliance, is protected, whereas a consumer who allows
any of those items to be actually installed in a new home
loses all protection.” Appellant’s Br. 17. While we agree
that the FTC interpretations draw a fine line between
building materials that are considered consumer products
and those that aren’t, we do not move that line merely
because we might have drawn it differently. Cf. Chevron,
467 U.S. at 866 (“[F]ederal judges—who have no constitu-
ency—have a duty to respect legitimate policy choices
made by those who do.”).
Miller contracted with Herman for the construction of
a new home. The home was not existing; the windows
at issue here were purchased by Herman, a contractor,
to install into the home. Miller has not produced any
evidence showing a separate contract for the windows, or
a separate transaction for them in which he was personally
engaged. Under 16 C.F.R. § 700.1(f) and the existing tests
articulated by lower courts who have examined similar
issues, the windows are not “consumer products” within
the meaning of Magnuson-Moss. Thus Miller’s claims fail
No. 08-3093 23
as a matter of law and the district court’s summary dis-
posal of them, although erroneously phrased as a
dismissal for lack of subject matter jurisdiction, was
proper. We modify the district court’s order to reflect
the correct procedural posture and affirm its dismissal of
the Magnuson-Moss claims, Counts V, VI, and VII of
Miller’s complaint.
B. State Law Claims
Although the dismissal of Miller’s Magnuson-Moss
claims was ultimately proper, there remains an issue that
requires further consideration by the district court: the
dismissal of Miller’s state law claims. Since it rested its
disposition of the suit on subject matter jurisdiction
grounds, the district court believed it had no need to
consider whether it should exercise supplemental juris-
diction over the state law claims pursuant to 28 U.S.C.
§ 1367, because if there is no subject matter jurisdiction,
there can be no supplemental jurisdiction. Where a
district court has original jurisdiction over some claims,
however, as we have concluded was the case here, it has
supplemental jurisdiction “over all other claims that are
so related to claims in the action within such original
jurisdiction that they form part of the same case or contro-
versy,” 28 U.S.C. § 1367(a), and that supplemental juris-
diction persists even if all the claims giving rise to orig-
inal jurisdiction have been dismissed, see id. § 1367(c)(3);
Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC,
589 F.3d 881, 883 (7th Cir. 2009). It may decline to exer-
cise supplemental jurisdiction in certain situations, see
24 No. 08-3093
§ 1367(c); that decision is squarely within its discretion, see
Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505,
514 (7th Cir. 2009) (reviewing court’s decision to decline
supplemental jurisdiction for abuse of discretion).
“Normally, when all federal claims are dismissed before
trial, the district court should relinquish jurisdiction over
pendent state-law claims rather than resolving them on the
merits.” Id. (quotation omitted); see also Leister v. Dovetail,
Inc., 546 F.3d 875, 882 (7th Cir. 2008) (characterizing this
principle as a presumption). This general rule would seem
to militate toward the dismissal of Miller’s state law
claims, particularly since none of them has yet been
addressed in any meaningful way. See Sharp Elecs., 578 F.3d
at 514-15 (setting out the three “acknowledged exceptions”
to the rule). But a district court is never required to relin-
quish jurisdiction over state law claims merely because the
federal claims were dismissed before trial. Nightingale, 589
F.3d at 883; Sharp Elecs., 578 F.3d at 514-15. The only
requirement is that it make a considered determination of
whether it should hear the claims. See Nightingale, 589 F.3d
at 883 (“It is an abuse of discretion not to exercise discre-
tion.”).
Miller has expressed concern, albeit only in the last
paragraph of his reply brief, cf. United States v. Wescott,
576 F.3d 347, 354 (7th Cir. 2009) (“Arguments raised for
the first time in a reply brief are waived.”), about the
fate of his case if the district court declines to exercise
supplemental jurisdiction. He fears that Illinois’ “one-
refiling” rule, 735 Ill. Comp. Stat. 5/13-217; see also Carr
v. Tillery, 591 F.3d 909, 914 (7th Cir. 2010) (discussing
the one-refiling rule); Timberlake v. Illini Hosp., 676 N.E.2d
No. 08-3093 25
634, 636-37 (Ill. 1997), the operation of which was trig-
gered by the Millers’ voluntary dismissal of their initial
state court action, will prevent him from seeking relief
in state court. We do not consider this or any other issue
that may bear on the district court’s ultimate decision.
Whether it chooses to exercise its supplemental jurisdic-
tion is a question the district court must take up in the
first instance. We therefore vacate the district court’s
unconsidered dismissal of Miller’s state law claims (and
any concomitant crossclaims, counterclaims, and third-
party claims) and remand so the district court can deter-
mine whether the exercise of supplemental jurisdiction
is warranted here and, if necessary, conduct appropriate
proceedings incidental to that discretionary determination.
III. C ONCLUSION
The determination that windows are not “consumer
products” is properly understood as a merits-based
rather than a jurisdictional determination. We M ODIFY
the judgment of the district court to reflect a dismissal of
Miller’s Magnuson-Moss claims, Counts V, VI, and VII of
the complaint, pursuant to Rule 56, and we A FFIRM as
modified. We V ACATE the district court’s dismissal of
Miller’s state law claims, Counts I-IV and VIII, and any
crossclaims, counterclaims, and third-party claims predi-
cated thereon, and R EMAND so the district court may
consider whether it should exercise supplemental juris-
diction over the state law claims and any related
crossclaims, counterclaims, and third-party claims.
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