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Gascho v. Global Fitness Holdings, LLC

United States District Court, Sixth Circuit

September 3, 2013

AMBER GASCHO, et al., Plaintiffs,
v.
GLOBAL FITNESS HOLDINGS, LLC, Defendant.

REPORT AND RECOMMENDATION

NORAH McCANN KING, Magistrate Judge.

I. Background

The Court has previously set forth the background of this case:

On April 13, 2011, Plaintiffs initiated this class action against Defendant Global Fitness Holdings, LLC, d/b/a Urban Active ("Global Fitness"), in the Court of Common Pleas for Franklin County, Ohio. Global Fitness is a Kentucky limited liability corporation that operates fitness facilities in Ohio. Plaintiffs are residents of Ohio who entered into membership and/or personal training, child care and/or tanning contracts at Global Fitness's Ohio Urban Active gym facilities. Plaintiffs allege that they were financially wronged as members of Urban Active fitness clubs in Ohio.
Defendant removed this action to this Court on May 19, 2011, pursuant to the Class Action Fairness Act ("CAFA"), as codified at 28 U.S.C. §§ 1332(d) and 1453. In this lawsuit, Plaintiffs have alleged, inter alia, that Defendant engages in common practices of misrepresenting the terms and conditions of contracts at the time of sale, making unauthorized deductions from Plaintiffs' bank accounts, failing to provide consumers with copies of contracts at the time of signing, failing to orally inform consumers at the time of signing of their right to cancel, failing to provide copies of "notice of cancellation" documents in the form required under Ohio law, and failing to honor contract cancellations. As a result of this alleged activity, Plaintiffs assert the following claims: violation of the Ohio Consumer Sales Practices Act ("OCSPA") (Counts I and II); violation of the Ohio Prepaid Entertainment Contract Act ("OPECA") (Count III); violation of the Ohio Deceptive Trade Practices Act ("ODTPA") (Count IV); unjust enrichment (Count V); conversion (Count VI); and breach of contract (VII).

Opinion and Order, Doc. No. 83, pp. 1-2. Upon motion, Doc. No. 36, the Court dismissed Counts IV and VI and limited Counts I, II, and III to certain allegations. Opinion and Order, Doc. No. 69.

On April 15, 2011, i.e., two (2) days after this action was filed, Phillip S. Robins, on behalf of himself and others similarly situated, filed a complaint against Global Fitness in the Cuyahoga County Court of Common Pleas, which was thereafter removed to the United States District Court for the Northern District of Ohio. Robins v. Global Fitness Holdings, LLC , No. 1:11-cv-1373 (N.D. Ohio), Notice of Removal, Doc. No. 1. The complaint in that action alleged

that, contrary to the express terms of Global's Membership Contracts and Personal Training Contracts... Global has (1) retained fees paid by members of its health clubs for the period in which they were disabled, deceased, or relocated, (2) collected from Plaintiffs' credit, debit or bank accounts additional fees not part of the agreed-upon monthly fees, and (3) drafted form contracts containing egregious, confusing and misleading cancellation provisions that guarantee members will be charged for one or more months beyond the date they cancel their memberships. Based on these allegations, Plaintiffs assert the following common-law claims against Global: breach of contract (Count One), unjust enrichment (Count Two), and fraud (Count Three). Plaintiffs have also asserted claims against Global for violation of the following state and federal statutes: Ohio's Consumer Sales Practices Act (Count Four), Ohio's Prepaid Entertainment Contracts Act, O.R.C. §§ 1345.41 et seq. (Count Five), Ohio's Deceptive Trade Practices Act, O.R.C. §§ 4165.01 et seq. (Count Six), Kentucky's Consumer Protection Act-Health Spas (Count Seven), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO") (Count Eight), Ohio's version of RICO, O.R.C. §§ 2923.31 et seq. (Count Nine), and the Electronic Fund Transfer Act, 15 U.S.C. §§ 1693 et seq. (Count Ten).

Robins v. Global Fitness Holdings, LLC, 838 F.Supp.2d 631, 637 (N.D. Ohio 2012). On January 18, 2012, all claims in that action were dismissed with prejudice, except for the breach of contract and EFTA claims of two individual plaintiffs (asserted in Counts One and Ten), which were dismissed without prejudice. Id. at 654. Plaintiffs' appeal from that judgment is pending. Robins v. Global Fitness Holdings, LLC , Case No. 12-3231 (6th Cir.)

This matter is now before the Court for consideration of the Motion to Intervene, Doc. No. 89, filed on July 19, 2013 by the named plaintiffs in Robins v. Global Fitness Holdings, LLC , No. 1:11-cv-1373 (N.D. Ohio), including Phillip S. Robins, Maria Christina Bruch, Tanya Baker, Danette Green, Steve Zadiraka, and Carolyn Odelli (collectively the " Robins plaintiffs"). The Robins plaintiffs seek to intervene in this matter pursuant to Rules 24(a) and 24(b) of the Federal Rules of Civil Procedure "to promote judicial efficiency[] and participate in any settlement discussions...." Motion to Intervene, p. 1. Attached to the Motion to Intervene is a proposed complaint in intervention which presents the same claims that were asserted in the North District of Ohio. Exhibit 1 attached to Motion to Intervene; id. at 3. Plaintiffs and defendant oppose the Motion to Intervene. Plaintiffs' Memorandum in Opposition to Robins's Motion to Intervene (" Plaintiffs' Response "), Doc. No. 91; Defendant's Memorandum in Opposition to Motion to Intervene, Doc. No. 92. The Robins plaintiffs have filed a reply. Reply in Support of Our Motion to Intervene (" Robins Plaintiffs' Reply "), Doc. No. 94. This matter is now ripe for consideration.

II. Standard

Rule 24(a) of the Federal Rules of Civil Procedure governs intervention of right, providing in pertinent part:

On timely motion, the court must permit anyone to ...

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