United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Benita Y. Pearson, United States District Judge.
before the Court is Defendant Wal-Mart Stores East Inc.'s
motion to dismiss. ECFNo. 12. Plaintiff Shelley Johnson has
responded. ECF No. 21. Defendant has replied. ECF No. 22. For
the reasons that follow, the Court grants Defendant's
Motion in part and denies it in part.
the mother of minor child B.C., purchased a Mainstays patio
set from the Warren, Ohio Wal-Mart sometime in 2009. ECF No.
1 at PagelD #: 4. This patio set included chairs. Plaintiff
alleges that, on or about September 3, 2009, one of the
chairs collapsed while B.C., Plaintiffs then three-year old
son, was sitting in the chair. Id. at PagelD #: 5.
The collapse of the chair caused B.C.'s left middle
finger to become stuck in the chair, tearing a tendon in the
finger. Id.. B.C. underwent surgery to replace the
damaged tendon. Id. Post-surgery, B.C. completed
physical therapy, but he has not regained normal use of the
finger, and Plaintiff alleges that the impairment is
has filed a putative Class Action Complaint. ECFNo. 1. In her
Complaint, she posits eight counts: (1) violation of the Ohio
Consumer Sales Practices Act, R.C. § 1345.01, et
seq.; (2) violations of state consumer protection
statutes; (3) violations of the Uniform Deceptive Trade
Practices Act; (4) negligence; (5) breach of the implied
warranty of merchantability; (6) unjust enrichment; (7)
negligence; and (8) violation of the Ohio Products
Liability Act, R.C. § 2307.71, et seq.
Plaintiff alleges all counts as both individual and class
Standard of Review
survive a Fed.R.Civ.P. 12(b)(6) motion to dismiss, the
plaintiffs complaint must allege enough facts to "raise
a right to relief above the speculative level." Ass
'n of Cleveland Fire Fishters v. City of Cleveland,
Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Fed.R.Civ.P. 8(a)(2) requires only that a pleading
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
However, "a plaintiff s obligation to provide the
'grounds' of his ' entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). A
complaint requires "further factual enhancement, "
which "state[s] a claim to relief that is plausible on
its face." Id. at 557, 570. A claim has facial
plausibility when there is enough factual content present to
allow "the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009). When a
claim lacks "plausibility in th[e] complaint, "
that cause of action fails to state a claim upon which relief
can be granted. Twombly, U.S. 550 at 564.
Court's inquiry is limited to the four corners of the
complaint, along with any other materials permitted under
Fed.R.Civ.P. 12(b)(6) and 10(c). Jackson v. Maui Sands
Resort, Inc., No. 1:08-CV-2972, 2009 WL 7732251, at *3
(N.D. Ohio Sept. 8, 2009). "A copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes." Fed.R.Civ.P. 10(c). A court
may also consider "documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice." Solo v. United Parcel Serv.
Co., 819 F.3d 788, 794 (6th Cir. 2016) (quoting Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
Count I: Ohio Consumer Sales Practices Act Claim
makes four arguments against Count I: (1) Plaintiffs claim is
time-barred; (2) B.C. is not a consumer, and therefore, an
action may not be maintained on his behalf; (3) Plaintiff
fails to allege Defendant acted with the requisite notice;
and (4) Plaintiff cannot recover treble damages in an Ohio
Consumer Sales Practices Act class action. ECF No. 12 at
PagelD #: 105-08.
contends that Plaintiff did not bring suit within the
two-year statute of limitations under the Ohio Consumer Sales
Practices Act. Id. at PagelD #: 105. In response,
Plaintiff argues that the violation in this action consists
of Defendant's failure to warn consumers of the defects
in the patio set and/or issue a recall after it became aware
of the defect. ECF No. 21 atPageID#: 160-61. Under this
theory, Plaintiff argues, Defendant's continued sale of
patio sets like the one at issue creates a continuing tort,
negating Defendant's statute of limitations argument.
Id. at 161-62. In reply, Defendant argues that
Plaintiffs complaint focuses on the sale of the at-issue
patio set and that Plaintiff ignores the fact that Defendant
issued a recall of the patio set in 2014. ECF No. 22 at
PagelD #: 174.
§ 1345.10(C) establishes a two-year statute of
limitation that begins to run "after the occurrence of
the violation which is the subject of the suit." Even
accepting Plaintiffs theory that the statute began to run at
the time Defendant should have become aware of a defect,
Plaintiffs action is untimely. In her complaint, Plaintiff
references a 2014 product recall of a Mainstays table and
chair set. See ECF No. 1 at PagelD #: 2. Thus, under
Plaintiffs logic, her claim, which came in 2017-more than two
years after the recall-comes too late. Regardless, the sale
of the table stands as the time at which the statute began to
run, and the sale occurred back in 2009, well before even the
2014 recall. See In re Whirlpool Corp. Front-Loading
Washer Products Liability Litigation,45 F.Supp.3d 706,