United States District Court, N.D. Ohio, Eastern Division
GREGORY P. WEAVER, individually and On behalf of a class of those persons Similarly situated, Plaintiff,
NORTH AMERICAN POWER & GAS LLC, Defendant.
OPINION AND ORDER
Aaron Polster, United States District Judge.
case is before the Court on the Report and Recommendation of
Magistrate Judge Jonathan D. Greenberg
(“R&R”), Doc #: 19. The
Magistrate Judge recommends that North American Power and
Gas, LLC's (“NAPG”) motion to dismiss,
Doc #: 7, be granted in part and denied in
part. This is a very close case, and the Court has decided to
come out the other way. For the following reasons, NAPG's
motion to dismiss for lack of subject matter jurisdiction,
Doc #: 7, is GRANTED.
Gregory P. Weaver (“Weaver”) commenced a class
action against NAPG on June 10, 2019, alleging violations of
Ohio's Consumer Sales Practices Act (“CSPA”),
breach of contract, and breach of implied covenant of good
faith and fair dealings. Doc #: 1. On July 23, 2019, this
Court referred the case to Magistrate Judge Jonathan D.
Greenberg for general pretrial supervision. Doc #: 4.
filed a motion to dismiss on August 9, 2019, arguing that the
Public Utilities Commission of Ohio (“PUCO”) has
exclusive jurisdiction over Weaver's claims, that
Weaver's claims under the CSPA fail as a matter of law,
and that Weaver's claims for breach of contract and
breach of the duty of good faith and fair dealing fail to
state a claim upon which relief can be granted. Doc #: 7. On
September 23, 2019, Weaver filed a response. Doc #: 15. On
October 17, 2019, NAPG filed a reply. Doc #: 18.
Magistrate Judge issued his R&R on December 16, 2019, in
which he recommends that this Court deny NAPG's motion to
dismiss for lack of subject matter jurisdiction, grant the
motion to dismiss on Weaver's CSPA claim, and deny the
motion to dismiss on Weaver's breach of contract and
breach of duty of good faith and fair dealings. Doc #: 19 at
filed objections to the R&R on December 30, 2019,
asserting that the Magistrate Judge errored in recommending
that the Court deny its motion to dismiss for lack of subject
matter jurisdiction and motion to dismiss Weaver's breach
of contract and breach of duty of good faith and fair
dealings claims. Doc #: 20.
Standard of Review
party objects within the allotted time to an R&R, the
Court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also Fed R. Civ. P. 72(b).
Upon review, the court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1).
subject matter jurisdiction is challenged pursuant to
12(b)(1), the plaintiff has the burden of proving
jurisdiction in order to survive the motion.” Mich.
S. R.R. Co. v. Branch & St. Joseph Counties Rail Users
Ass'n, Inc., 287 F.3d 568, 573 (6th Cir. 2002). When
the factual existence of subject matter jurisdiction is
challenged rather than the sufficiency of the pleading's
allegations, the “court is free to weigh the evidence
and satisfy itself as to the existence of its power to hear
the case.” United States v. Ritchie, 15 F.3d
592, 598 (6th Cir. 1994).
objects to three conclusions of the Magistrate Judge: (A)
that the Court has subject matter jurisdiction; (B) that
Weaver's breach of contract claim survives NAPG's
Rule 12(b)(6) motion; and (C) that Weaver's breach of
duty of good faith and fair dealings claim survives
NAPG's Rule 12(b)(6) motion.
Lack of Subject Matter Jurisdiction
Magistrate Judge concluded that the Court has subject matter
jurisdiction over Weaver's case because PUCO has
exclusive jurisdiction over cases involving Certified Retail
Energy Suppliers (“CRES”) only when they concern
areas which PUCO regulates. Doc #: 19 at 8. NAPG objects to
the Magistrate Judge's conclusion, arguing that the
Magistrate Judge misinterpreted Ohio Rev. Code Ann. §
4928.16(A)(1) and misinterpreted or mistakenly applied
Hull v. Columbia Gas, 850 N.E.2d 1190 (Ohio 2006)
and Saks v. East Ohio Gas. Co., 971 N.E.2d 498 (Ohio
Ct. App. 8th Dist. 2012). NAPG also asks the Court to
consider a ...