(g), (1), (s), (t) (each referring to "goods or services"). Second, § 28-3904(c), which prohibits representing used goods as new, refers only to "goods," and it clearly does not include services. Thus, a statutory scheme to distinguish between goods and services does exist.
Plaintiffs argue that Chapter 39 contains a definition of "goods and services" in § 28-3901(7) and does away with the distinction between the two. This definition, however, includes both goods and services and merely points out that they can both be broadly construed. To suggest that the definition does away with the distinction between the two is unwarranted. Furthermore, Plaintiffs fail to explain why, if Chapter 39 does not distinguish between goods and services, its provisions refer in some places to both goods and services, and in some places only to goods.
Plaintiffs next assert that enrollment in the school was a consumer good contract because books and cooking utensils were included in the agreement. That conclusion is unjustified. When contracts involve the provision of both goods and services, courts look to whether the contract's predominant factor or purpose was to provide the good or the service. See, e.g., Bonebrake v. Cox, 499 F.2d 951, 960 (8th Cir. 1974); Coakley and Williams, Inc. v. Shatterproof Glass Corp., 778 F.2d 196, 197 (4th Cir. 1985).
In this case, it is clear that the cooking classes were the predominant element of the enrollment agreement. The classes were not a service incidental to obtaining the books and utensils. Rather, the books and utensils were goods incidental to attending the cooking classes. Consequently, the enrollment agreement and the underlying loan contract must be construed as service contracts. Because § 28-3904(x) applies only to consumer goods and not services, Plaintiffs' claims based on § 28-3904(x) must be dismissed.
Upon consideration of the Defendants' respective Motions, the Plaintiffs' opposition thereto, the applicable law, and the record herein, the Court finds that the Defendants are entitled to summary judgment against the Plaintiffs' causes of action for the reasons contained herein.
The cross-claims of the Defendants are appropriately dismissed at this time as well. The Court will also dismiss, without prejudice, the counterclaims of the Defendants Secretary of Education, Higher Education Assistance Foundation, Great Lakes Higher Education Corporation, Nebraska Student Loan Program, Inc., and Texas Guaranteed Student Loan Corporation. As discussed in the Introduction, these amounts may be litigated separately when and if the need for the same arises. Also, because the Plaintiffs have been represented by a public interest organization, the Plaintiffs are individuals of limited financial means, a great disparity exists between the financial resources of the Plaintiffs and the Defendants, and the litigation raised legitimate issues of public concern in good faith, the Court, in its discretion, will not assess costs against the Plaintiffs in this case. See, e.g., Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346 (9th Cir. 1984); Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983). The Court will retain jurisdiction over the case only for the purpose of entering a Default Judgment against the Defendant School and Barkev Kibarian. The Court shall issue an Order of even date herewith consistent with the foregoing Opinion.
DATE: January 6, 1993
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 811 F. Supp. 714.
JUDGMENT - January 6, 1993, Filed
Upon consideration of the Motions for Summary Judgment, and Motion for Reconsideration, the cross-claims, and the counterclaims filed by the Defendants, the Plaintiffs' opposition thereto, the applicable law, and for the reasons articulated in this Court's Opinion of even date herewith, it is, by this Court, this 6th day of January, 1993,
ORDERED that the Plaintiffs shall submit a Motion for Default Judgment as to the Defendants Culinary School of Washington and Barkev Kibarian on or before 4:00 p.m. on January 12, 1993; and it is
ORDERED that all Defendants shall have JUDGMENT pursuant to Rule 56 of the Federal Rules of Civil Procedure; and it is
FURTHER ORDERED that the Cross-Claims of Defendants Nebraska Student Loan Program, Texas Guaranteed Student Loan Corporation, and Secretary of Education shall be, and hereby are, DISMISSED; and it is
FURTHER ORDERED that the Counterclaims of the Defendants Secretary of Education, Higher Education Assistance Foundation, Great Lakes Higher Education Corporation, Nebraska Student Loan Program, Inc., and Texas Guaranteed Student Loan Corporation against the Plaintiffs for the outstanding loan amounts shall be, and hereby are, DISMISSED WITHOUT PREJUDICE; and it is
FURTHER ORDERED that costs against the Plaintiffs shall not be assessed by the Court; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of the Court, and that this Court shall retain jurisdiction in the case only for the purpose of entering a Default Judgment pursuant to the Default entered by the Clerk against the Defendants Culinary School of Washington and Barkev Kibarian.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE