Seller refuses to exchange bicycle for size ordered

[lazant]

What is the name of your state (only U.S. law)? California

I'll try to make this as concise as possible.
Background:
I purchased a bicycle online in June of 2011 and when it was delivered in August of 2011 it was the wrong size. These bicycles are produced in very limited quantities. Since then the owner of the North American distributor kept telling me that after the next production run (which are done every winter) they would get me the correct size. It has now been 4 production runs and they still haven't delivered the correct bicycle. Furthermore, since March he has stopped responding to my emails. The cost of the bicycle was $1900. The corporation that imports and sells the bicycles from Germany is located in Jackson, WY as is the owner of the distribution company with whom I have been communicating.

I have a letter stating that after the production run in February 2012 I would be shipped the correct size bicycle.

Questions:
Do I need to file suit against the importer/distributer or the manufacturer or both?

Do I file the suit in LA County where I live now? Or in Cook County (Chicago) where I lived when I purchased the bicycle? Or in Teton County (Jackson) where the distributer is based?

Can I include legal costs in the suit? Obviously if the legal and court cost are greater than the cost of the bike it doesn't make much sense to file a suit.

 

[xylene]

I think you should sell your bike on ebay or perhaps some specialty reseller of exotic bikes and cut your losses.

You've waited almost 5 years.

 

[adjusterjack]

I agree with the other response but I'll answer your questions anyway.

Do I need to file suit against the importer/distributer or the manufacturer or both?

The distributor who sold you the bike.

Do I file the suit in LA County where I live now? Or in Cook County (Chicago) where I lived when I purchased the bicycle? Or in Teton County (Jackson) where the distributer is based?

You would have to sue where the distributor is located. You might have been able to sue in IL where you lived at the time of the purchase but that ship has sailed and attempting to use CA as the venue would result in an immediate dismissal.

Can I include legal costs in the suit? Obviously if the legal and court cost are greater than the cost of the bike it doesn't make much sense to file a suit.

You always include filing and process service fees.

But you never get your travel costs or loss of income from taking time off from work.

The statute of limitations in Wyoming for contracts appears to be 10 years. But there are issues within that SOL that work against you. For one thing I doubt if any judge will believe that you never used the bike in the time you had it so even if you won you would likely get a depreciated amount. Worse, you might have the legal doctrine of "laches" to contend with. See:

https://en.wikipedia.org/wiki/Laches_(equity)

Your best bet at this point is to put an ad on your local Craigslist and get what you can for it. I'd avoid eBay because of the potential collection and shipping issues.

Count on getting a few hundred for the bike and chalk up the rest as tuition for a life lesson from the school of hard knocks.

 

[lazant]

Thanks for the responses. It really irks me that this guy is getting away with this. What about small claims court? Can I take him to small claims here in LA? I noticed that the domain for the distributer's website where I purchased the bike is registered in LA county. Or is that a stretch for using this as the venue?

Also, the letter I have from him saying that I will get a new bike after the next production run also says that I may use the bike in the interim.

In regards to laches, I believed he was working to get me the bike until this spring when he stopped communicating with me. I have emails from this spring that support this.

 

[adjusterjack]

Thanks for the responses. It really irks me that this guy is getting away with this. What about small claims court? Can I take him to small claims here in LA? I noticed that the domain for the distributer's website where I purchased the bike is registered in LA county. Or is that a stretch for using this as the venue?

Well, you've added an interesting twist with that domain name being registered in LA.

That could have put his business within the "personal jurisdiction" of your local court.

See:

https://en.wikipedia.org/wiki/Personal_jurisdiction

Unfortunately, if you sue in CA you risk having him seek dismissal because the CA SOL on contracts is only 4 years and that ran out this June.

On the other hand, his subsequent and continued written acknowledgment might fall under Section of the CA Code of Civil Procedure and be construed as tolling (stopping the running of) the SOL. Scroll down most of the way at:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=350-363

But, as you can see, CA statutes can be confusing so I can't guarantee that the section is applicable.

Does his company have a statutory or registered agent in CA for the service of process? You can find that out on the CA Scty of State's website but I think you have to pay a fee to get the information.

All in all, if you want to take a shot at it you have nothing to lose but your filing and process service fees.