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Cook v. Home Depot U.S.A.

March 6, 2007


The opinion of the court was delivered by: Judge Smith

Magistrate Judge Kemp


Plaintiff brings claims on behalf of others similarly situated, seeking certification of a class action suit under Federal Rule of Civil Procedure ("FRCP") 23. Pursuant to FRCP 12(b)(6), the Defendant moves to dismiss for failure to state a claim upon which relief can be granted. This Court has jurisdiction to adjudicate this claim pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332. For the following reasons, the Court GRANTS Defendant's Motion to Dismiss (Doc. 31).


A. Background

In ruling on Defendant's motion to dismiss, the Court accepts as true the well-pleaded factual allegations set forth in the Complaint.

Plaintiff Eric D. Cook is a citizen of the State of Ohio. Defendant Home Depot U.S.A., Inc. (hereinafter "Home Depot" or "Defendant") is incorporated in Delaware with principal operations in Atlanta, Georgia. Home Depot runs a chain of home improvement and hardware stores by the same name in Ohio and across the nation.

On June 28, 2004, Plaintiff entered into a contract with a Home Deport store in Franklin County, Ohio, to rent a paint sprayer, spray gun, and other related equipment. The itemized rental agreement that Plaintiff signed lists four amounts in the final totals. Agreement Subtotal: $266.45. Damage Waiver: $26.00. Sales Tax: $19.88. Estimated Total: $314.33. In addition to the Plaintiff's signature at the bottom of the agreement, the Plaintiff initialed a box directly next to these four totals, next to the clause "I have read and agree, as initialed to the right, to these special terms and conditions." Directly above this clause and the Plaintiff's initials, a box marked "Special Terms and Conditions" provides, inter alia, "2. I accept the benefits of the damage waiver (if applicable) described in paragraph 11 in the terms and conditions of this rental agreement." (Rental Agreement, Ex. 1).

Plaintiff asserts that Defendant never provided him, or the class he aspires to represent, with an opportunity to decline the optional Damage Waiver fee, nor did the Defendant explain the terms and conditions of the option. Only after he signed the agreement did Home Depot provide Plaintiff with the Terms and Conditions page, outlining the rental terms. Paragraph 11 describes the Damage Waiver as an optional form of insurance by which the customer pays ten percent of the rental value "to relieve [the renter] of liability for accidental damage to [the equipment], but not for any losses or damages due to theft, burglary, misuse or abuse, theft by conversion, intentional damage, disappearance or any loss due to [renter's] failure to care properly for such Equipment in a prudent manner . . . ." (Rental Agreement, Ex. 1, ¶ 11).

Plaintiff does not contest that he used Home Depot's equipment for seven days and returned it July 5, 2004, signing a rental invoice acknowledging return of the materials "in good working order, and that the above total charges are correct."(Rental Invoice, Ex. 2). The invoice again listed the Damage Waiver in the itemized expense report. Because Plaintiff apparently did not use a can of paint thinner anticipated in the rental agreement, the final payment totaled $311.59. Plaintiff paid the amount in full.

B. Procedural History

Plaintiff filed a complaint July 7, 2006, in the Franklin County Court of Common Pleas, which Defendant promptly removed to this Court.

After the motion for leave to file an amended complaint was granted, Plaintiff's amended complaint advanced six claims. First, Plaintiff asserted Home Depot breached its rental agreement contract with him by automatically charging him for a useless damage waiver option without notice. Plaintiff claims this option was not bargained for in the agreement. Further, Plaintiff advanced three statutory claims under Ohio law, alleging that the consumer lease was "unconscionable" in violation of O.R.C. § 1310.06; requesting a declaratory judgment of parties' rights under O.R.C. § 2721.91 et seq.; and complaining of the Defendant's breach of the covenant of good faith and fair dealing found at O.R.C. § 1301.09. Additionally, Plaintiff brought two claims in equity, asserting Defendant's unjust enrichment and a claim of money had and received.

On October 23, 2006, Defendant moved to dismiss the amended complaint per FRCP 12(b)(6) for failure to state a claim upon which relief could be granted.


A motion to dismiss for failure to state a claim should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" or unless an issue of law is dispositive. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All well-pleaded allegations must be taken as true and be construed most favorably toward the nonmoving party. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A 12(b)(6) motion to dismiss is directed solely to the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at issue on a motion to dismiss for failure to state a claim. Consequently, a complaint will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) only if there is no law to support the claims made, or if the facts alleged are insufficient to state a claim, or if on the face of the complaint there is an insurmountable bar to relief. Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978). Rule 12 (b)(6) must be read in conjunction with Fed. R. Civ. P. 8(a) which provides that a pleading for relief shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 296 (2d ed. 1990). The moving party is entitled to relief only when the complaint fails to meet this liberal standard. Id.

On the other hand, more than bare assertions of legal conclusions are required to satisfy the notice pleading standard. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). "In practice, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. at 437.

[W]e are not holding the pleader to an impossibly high standard; we recognize the policies behind Rule 8 and the concept of notice pleading. A plaintiff will not be thrown out of court for failing to plead facts in support of every arcane element of his claim. But when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.


III. ...

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