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Johnson v. Wal-Mart Stores East Inc.

United States District Court, N.D. Ohio, Eastern Division

February 28, 2018

SHELLEY JOHNSON, Plaintiff,
v.
WAL-MART STORES EAST INC., Defendant.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 12]

          Date Benita Y. Pearson, United States District Judge.

         Pending 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.

         I. Background

         Plaintiff, 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 permanent. Id.

         Plaintiff 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;[1] (4) negligence; (5) breach of the implied warranty of merchantability; (6) unjust enrichment; (7) negligence;[2] and (8) violation of the Ohio Products Liability Act, R.C. § 2307.71, et seq. Plaintiff alleges all counts as both individual and class claims.

         II. Standard of Review

         To 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.

         The 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, 322 (2007)).

         III. Discussion

         A. Count I: Ohio Consumer Sales Practices Act Claim

         Defendant 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.

         i. Timeliness

         Defendant 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.

         R.C. § 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, ...


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