Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Weaver v. North American Power & Gas LLC

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

January 9, 2020

GREGORY P. WEAVER, individually and On behalf of a class of those persons Similarly situated, Plaintiff,
v.
NORTH AMERICAN POWER & GAS LLC, Defendant.

          OPINION AND ORDER

          Dan Aaron Polster, United States District Judge.

         This 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.

         I. Background

         Plaintiff 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.

         NAPG 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.

         The 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 20-21.

         NAPG 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.

         II. Standard of Review

         When a 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).

         “When 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).

         III. Analysis

         NAPG 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.

         A. Lack of Subject Matter Jurisdiction

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.