Oom et al v. The Michaels Companies Inc. et al

Filing 35

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DANIELLE OOM, et al.,
Plaintiffs,
CASE NO. 1:16-cv-257
v.
HON. PAUL L. MALONEY
THE MICHAELS COMPANIES INC., et al.,
Defendants.
__________________________________/
OPINION
Plaintiffs Oom and Spofford allege that they paid for custom-framing services for 25 pieces
of artwork from a Michaels store in Holland, Michigan, but received lesser-value framing that
damaged their art. Plaintiffs bring an action in diversity under 28 U.S.C. § 1332(d) against The
Michaels Companies Inc. (“TMCI”), Michaels Stores Inc. (“Michaels”), which is a wholly-owned
subsidiary of TMCI, and Artistree, a wholly-owned subsidiary of Michaels. Plaintiffs raise the
following causes of action: (1) violations of state consumer protection statutes; (2) violations of the
Uniform Deceptive Trade Practices Act (as codified by state staututes); (3) violations of the
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.; (4) violations of the Michigan Consumer
Protection Act, Mich. Comp. Laws § 445.901 et seq.; (5) fraud and misrepresentation; (6) unjust
enrichment; (7) negligence; (8) breach of express warranty; and (9) breach of implied warranty,
Mich. Comp. Laws § 440.2314 et seq.

Plaintiffs allege that they are part of a class of

persons—either in Michigan (“Michigan class”) or the United States (“Nationwide Class”)—“who
purchased custom framing products, specifically preservation mounting and/or archival tape

mounting from Defendants’ store locations and who did not receive preservation mounting and/or
archival tape mounting.” (Am. Compl. ¶ 66, ECF No. 10, PageID.78.)
Defendants have filed a motion to dismiss for failure to state a claim (ECF No. 16), a motion
to strike class allegations (ECF No. 18), and Defendant TMCI has filed a motion to dismiss for lack
of personal jurisdiction (ECF No. 20). Plaintiffs have responded to each motion (ECF Nos. 25, 26,
27), and Defendants have filed replies (ECF No. 28, 29, 30). Upon careful review of the record, the
Court has decided that the motions can be resolved without oral argument. See W.D. Mich. LCivR
7.3(d). For the reasons that follow, Defendants’ motion to strike class allegations (ECF No. 18) is
granted.
I.
Michaels is an arts-and-craft store chain that offers framing products and services at its
stores, and advertises these products and services to consumers. (Am. Compl. ¶ 5, ECF No. 10,
PageID.64.) The advertisements include a “promise of expertise, inspired design and archival
quality materials” and certified framing experts “skilled in state-of-the-art preservation techniques.”
(Id. at ¶¶ 7-8, PageID.65.) Artistree supplies custom and specialty-framing materials used in
Michaels stores throughout the country. (Id. at ¶ 11.) Michaels advertises Artistree as its “whollyowned manufacturing subsidiary, [which] supplies high quality custom and specialty framing
merchandise, including prints and precut mats to our Michaels and Aaron Brothers stores.” (Id. at
¶ 13, PageID.66.)
Michaels offers several framing options; the relevant options include: (1) preservation
mounting; (2) tape mounting; and (3) dry mounting. Preservation mounting is the most-expensive
option. Michaels advertises that its “preservation-grade finishing touches include museum-quality
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archival mats and UV-blocking glass that will protect your precious pieces of art.” (Id. at ¶ 10,
PageID.65.) Preservation mounting involves framing the artwork in a stable environment to
minimize risks of deterioration and environmental factors. (Id. at ¶ 16, PageID.66-67.) There are
widely-accepted industry specifications for materials and techniques used in preservation mounting.
(Id.) Tape mounting involves the use of paper mounting and hinging tape to mount artwork. (Id.
at ¶ 18.) Dry mounting involves permanently attaching the artwork to the mount board and is
irreversible, so it is not considered a preservation technique. (Id. at ¶ 17.)
Plaintiffs allege that from January 2013 through June 2015, they brought 27 pieces of artwork
to the Michaels store in Holland, Michigan, for custom preservation framing. Plaintiffs contend that
they “relayed to Defendants’ certified framing expert that preservation of the artwork was of utmost
importance to Plaintiffs,” and that they wanted to “preserve the pieces in perfect condition.” (Id. at
¶ 32, ECF No. 10, PageID.69-70.) Plaintiffs assert that they were told by Michaels employees that,
if they paid for preservation mounting, they would receive preservation mounting. (Id. at ¶¶ 34, 3742, PageID.70-71.) In total, Plaintiffs paid $2,459.60 for preservation-framing services. (Id. at ¶
43.) But Plaintiffs allege that they did not receive the preservation mounting that they paid for;
instead, they received framing of lesser value. They assert that 25 of their pieces were tape mounted
with inferior adhesive tape that could not be removed from the artwork, which caused permanent
damage and diminished the artwork’s value. (Id. at ¶¶ 46-47, PageID.72.)
Plaintiffs contend that pamphlets in the Holland store advertised employee skills in state-ofthe-art preservation techniques, and that they relied upon the price listed in those pamphlets.
Plaintiffs allege that “Michaels warranted skilled certified framing experts who would use ‘archival
photo corners’ and ‘museum-quality archival mats’ supplied by Defendants’ wholly-owned
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subsidiary, Artistree.” (Id. at ¶ 51, PageID.73.) Plaintiffs also assert that the Holland store’s framing
manager, Katie, explained that the Holland store and other Michaels stores received multiple
shipments of inferior adhesive tape from December 2014 through August 2015. (Id. at ¶ 49,
PageID.72-73.) The amended complaint also includes online comments from an art collector
community resource forum where one user from South Carolina complained of Michaels’ use of
masking tape in 2007, and another user commented in 2016 that Michaels always uses tape per store
policy. (Id. at ¶ 54, 55, PageID.73-74.)
II.
Defendants move to strike the class allegations under Federal Rules of Civil Procedure 12(f)
and 23.1 Rule 12(f) provides that “[t]he [C]ourt may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). A Rule
12(f) motion is designed “to avoid the expenditure of time and money that must arise from litigating
spurious issues by dispensing with those issues prior to trial.” Kennedy v. Cleveland, 797 F. 2d 297,
305 (6th Cir. 1986).
A court may strike class-action allegations before a motion for class certification if the
complaint demonstrates that the requirements for maintaining a class action cannot be met and
discovery or factual development would not “alter the central defect in th[e] class claim.” See e.g.,
Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011) (noting “[t]hat the motion

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“Rule 23’s requirements must be interpreted in keeping with Article III constraints[.]” Amchem
Prods. v. Windsor, 521 U.S. 591, 613 (1997). Although Defendants also raise arguments that Plaintiffs lack
standing, “[t]he class certification issues are dispositive, [and] because their resolution here is logically
antecedent to the existence of any Article III issues, it is appropriate to reach them first.” Id. at 612 (internal
citations and quotations omitted); cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997)
(declining to definitively resolve the question of whether petitioners had standing because mootness issue
was dispositive of the case).

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to strike came before the plaintiffs had filed a motion to certify the class does not by itself make the
court’s decision reversibly premature” and affirming the district court’s grant because it “cannot see
how discovery or for that matter more time would have helped [the plaintiffs]”); Sherrod v. Enigma
Software Grp. USA, LLC, No. 2:13-cv-36, 2016 WL 2597, at *1 (S.D. Ohio Jan. 4, 2016); Wright
v. State Farm Fire & Cas. Co., No. 09-15055, 2015 WL 1737386, at *1 (E.D. Mich. Apr. 16, 2015).
When a defendant moves “to strike class action allegations on the basis that class certification is
precluded as a matter of law, the defendant bears the burden of establishing that the plaintiff will be
unable to demonstrate facts supporting certification, even after discovery and the creation of a full
factual record.” Jimenez v. Allstate Indem. Co., No. 07-14494, 2010 WL 3623176, at *3 (E.D. Mich.
Sept. 15, 2010). “If a defendant can clearly show that a class definition is legally impermissible,
fairness and efficiency require that the Court address the issue in response to a properly filed
motion.” Boyer v. Diversified Consultants, Inc., 306 F.R.D. 536, 538 (E.D. Mich. 2015); see also
Green v. Liberty Ins. Corp., No. 15-10434, 2016 U.S. Dist. LEXIS 42602, at *4-5 (E.D. Mich. Mar.
30, 2016).
“‘When the defendant challenges class certification based solely on the allegations in the
complaint, the standard is the same as applied in deciding a motion to dismiss under Rule
12(b)(6).’” Green, 2016 U.S. Dist. LEXIS 42602, at *5 (quoting Jimenez, 2010 WL 3623176, at *3)
(emphasis in original). As such, the complaint must contain “[f]actual allegations . . . enough to
raise a right to [class certification] above the speculative level . . . on the assumption that all the
allegations in the complaint are true[.]” Id. (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “The court views the complaint in the light most favorable to the plaintiffs and takes all
wellpleaded (sic) factual allegations as true.” Id. (citing Tackett v. M&G Polymers, USA, LLC, 561.
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F.3d 478, 488 (6th Cir. 2009) and Carrier Corp. v. Outokumu Oyj, 673 F.3d 430, 440 (6th Cir.
2012)). “‘[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of [class certification], the complaint has alleged—but it has not shown—that the pleader
is entitled to relief.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)) (alterations in
original).
“The substantive analysis, therefore, ‘must begin and end with a rigorous analysis into
whether the prerequisites of Rule 23 are met.” Id. (quoting Jimenez, 2010 WL 3623176, at *3)
(internal citations omitted). Rule 23(a) sets forth the following requirements for class certification:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the
class.
Fed. R. Civ. P. 23(a). A plaintiff seeking class certification must also satisfy one of the three
subsections of Rule 23(b). Here, Plaintiffs seek certification under Rule 23(b)(3), which permits
certification if “the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is superior
to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.
23(b)(3).
“Given the huge amount of judicial resources expended by class actions, particular care in
their issuance is required.” Pipefitters Local 636 v. Blue Cross Blue Shield of Michigan, 654 F.3d
618, 630 (6th Cir. 2011). And failure to satisfy the requirements of Rule 23(a) or (b) “dooms the
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class.” Pilgrim, 660 F.3d at 946.
III.
Plaintiffs’ proposed class consists of “[a]ll persons residing in Michigan (‘Michigan Class’)
and/or the United States (‘Nationwide Class’) who purchased custom framing products, specifically
preservation mounting and/or archival tape mounting from Defendants’ store locations and who did
not receive preservation mounting and/or archival tape mounting.” (Am. Compl. ¶ 66, ECF No. 10,
PageID.78.) Defendants argue that the Court should strike Plaintiffs’ class claims because Plaintiffs
allege an unascertainable, fail-safe class. Plaintiffs respond that, through discovery, they can
ascertain class members, and that they have not proposed a fail-safe class. Defendants also argue
that Plaintiffs’ complaint does not contain well-pleaded facts to satisfy Rule 23’s typicality,
commonality, and predominance requirements. Plaintiffs argue that the complaint satisfies all of
Rule 23’s requirements.
A. Ascertainability
Nothing in Rule 23 expressly requires the Court to analyze ascertainability. Young v.
Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir. 2012)); Eager v. Credit Bureau Collection
Servs., Inc., Nos. 1:13-cv-30, 1:13-cv-84, 1:13-cv-173, 1:13-cv-261, 2014 WL 3534949, at *3 (W.D.
Mich. July 16, 2014) (citing Stinson v. City of New York, 282 F.R.D. 360, 373 (S.D.N.Y. 2012)).
“Ascertainability is either an ‘implied requirement’ of Rule 23, see Eager, [2014 WL 3534949, at
*3], or an inherent requirement of Article III standing.’” Sherrod, 2016 U.S. Dist. LEXIS 179, at *9.
The Court’s initial focus is whether “the proposed class definition is ‘sufficiently definite so
that it is administratively feasible for the court to determine whether a particular individual is a
member.’” Eager, 2014 WL 3534949, at *3 (quoting 7A Charles Alan Wright, et al., Federal
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Practice and Procedure § 1760 and citing Young, 693 F.3d at 537-38).2 When a class cannot be
determined without individualized fact-finding, its definition is unsatisfactory. Romberio v.
Unumprovident Corp., 385 F. App’x 423, 431 (6th Cir. 2009) (citing John v. Nat’l Sec. Fire & Cas.
Co., 501 F.3d 443, 445 (5th Cir. 2007) (noting that “[t]he existence of an ascertainable class of
persons to be represented by the proposed class representative is an implied prerequisite of Federal
Rule of Civil Procedure 23”), Crosby v. Soc. Sec. Admin., 796 F.2d 576, 580 (1st Cir. 1986)
(explaining that class definition should be based on objective criteria so that class members may be
identified without individualized fact-finding) and 5 James Wm. Moore et al., Moore’s Federal
Practice ¶ 23.21[3][c] (3d ed. 2007) (explaining that “[a] class definition is inadequate if a court
must make a determination on the merits of the individual claims to determine whether a particular
person is a member of the class”)).
The “fail-safe” class is an aspect of ascertainability. Eager, 2014 WL 3534949, at *4. “A
fail-safe class ‘is defined so that whether a person qualifies as a member depends on whether the
person has a valid claim.’” Id. (quoting Messner v. Northshore Univ. Health System, 669 F.3d 802,
825 (7th Cir. 2012)). “Such classes are improper because ‘[e]ither the class members win or, by
virtue of losing, they are not in the class and, therefore, not bound by the judgment.’” Id. (quoting
Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011)). A fail-safe class is
also “unfair to the defendant because ‘it prevents an adverse judgment being entered against

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Recently, the Sixth Circuit used this “administratively feasible” language in Sandusky Wellness Ctr.
LLC v. ASD Speciality Healthcare, Inc., No. 16-3741, 2017 WL 2953039, at *8-10 (6th Cir. July 11, 2017),
but noted that courts have categorized class member identity concerns differently within Rule 23’s
framework, so it “[saw] no need to add [its] own opinion to this debate.” Id. at *10 (collecting cases). The
court noted that “Rule 23(b)(3) classes must also meet an implied ascertainability requirement.” Id. at *4
(citing Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016)).

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plaintiffs, and it is unmanageable because the members of the class could only be known after a
determination of liability.’” Id. (quoting Mazzei v. Money Store, 288 F.R.D. 45, 55 (S.D.N.Y. 2012)).
Defendants argue that, as a matter of law, Plaintiffs’ proposed class is not ascertainable
because it is not administratively feasible to determine who purchased but did not receive
preservation mounting and/or archival tape mounting from Michaels. Class member determinations
would require individualized fact-finding after review of proposed class member and employee
testimony, contracts, receipts, and a physical assessment of each piece of framed artwork.
Plaintiffs assert that, through discovery, they will be able to identify class members.
Plaintiffs contend that, without discovery, they cannot adequately address the information in
Defendants’ possession, including purchase and shipment records, sales and inventory data, and
other company files. Plaintiffs rely on Young and Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th
Cir. 2015), to argue that “additional, even substantial review of files” does not defeat class
certification. Young, 693 F.3d at 540; Rikos, 799 F.3d at 525. But this argument ignores how the
Court would determine whether the purchasers of preservation mounting actually received
preservation mounting. Such determination is not administratively feasible because it would require
removing the framing from the artwork of all customers who purchased preservation mounting or
archival tape mounting.
Plaintiffs argue that if a customer received preservation mounting, then he or she would not
be a class member and would not have a claim; the existence of people who do not qualify for class
membership does not make class certification impossible. Plaintiffs equate this to a class action for
iPhone users, arguing that there is no fail-safe problem when someone has a phone other than an
iPhone because they would not be included in the class. But the proposed class is not just customers
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who ordered preservation mounting. Rather, the proposed class is anyone who paid for preservation
mounting and did not receive preservation mounting; it includes only the customers that Plaintiffs
claim are entitled to relief. As such, it is an improper fail-safe class. See Randleman, 646 F.3d at
352 (explaining that a class defined by customers entitled to special rates for title insurance and who
paid more such insurance was an improper fail-safe class); see also Sherrod, 2016 U.S. Dist. LEXIS
179, at *9 (class composed of consumers who cancelled software subscription but were charged for
renewal was an improper fail-safe class); Boyer, 306 F.R.D. at 540 (class of people who did not
provide prior express consent to be contacted by defendants to establish a violation of the law was
improper fail-safe class); Eager, 2014 WL 3534949, at *5 (“[T]he proposed [a]ssignment [c]lass is
an improper fail safe class. An individual falls within the class only if the assignment allegation in
the particular state-court complaint was false, i.e. no assignment existed.”).
The Court sees no way in which the proposed class can be modified to avoid the fail-safe
problem. Plaintiffs do not offer a viable solution; and they do not explain how discovery would
resolve this problem. Indeed, removing the requirement that a member did not receive preservation
mounting would remedy the fail-safe problem. But it would also render the class over-inclusive: it
would include all individuals who purchased preservation mounting, even if they received such
mounting. See Eager, 2014 WL 3534949, at *5.
B. Typicality
Likewise, problems with class definition carry over into problems with typicality. Romberio,
385 F. App’x at 431. “‘The premise of the typicality requirement is simply stated: as goes the claim
of the named plaintiff, so go the claims of the class.’” Id. (quoting Sprague v. Gen. Motors Corp.
133 F.3d 388, 399 (6th Cir. 1998)). There must be some connection, in other words, between the
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merits of each individual claim and the conduct affecting the class; without such connection, there
is no basis upon which to fashion class-wide relief. Id. “[T]he typicality requirement is not satisfied
when a plaintiff can prove his own claim but not ‘necessarily have proved anybody’s (sic) else’s
claim.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (quoting Sprague, 133 F.3d
at 399). “[A] representative’s claim need not always involve the same facts or law, provided there
is a common element of fact or law.” Id. (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525
n.31 (6th Cir. 1976)).
“The test for typicality . . . is not demanding[.]” Gilkey v. Cent. Clearing Co., 202 F.R.D.
515, 524 (E.D. Mich. July 30, 2001) (quoting Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101, 1106
(5th Cir. 1993)). “Typicality may be presumed when the plaintiff’s claim ‘arises from the same
event or practice or course of conduct that gives rise to the claims of other class members.’” Id.
(quoting In re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)). This requirement is satisfied
“so long as the plaintiff alleges a common scheme relative to all members of the class.” Galoski v.
Stanley Black & Decker, Inc., No. 1:14 CV 553, 2014 WL 4064016, at *4 (N.D. Ohio Aug. 14,
2014) (internal citations omitted). “Even so, typicality has been defeated when the plaintiffs’ legal
theory requires individualized proof, as the name plaintiffs’ evidence ‘could not advance the interests
of the entire [absent] class.’” In re Nortel Networks Corp. ERISA Litig., No. 3:03-md-01537, 2009
WL 3294827, at *6 (M.D. Tenn. Sept. 2, 2009) (quoting Sprague, 133 F.3d at 399).
Given the individualized nature of custom-framing services, Defendants argue that Plaintiffs
cannot show typicality because proving their own claims will not prove any other proposed class
member’s claim. Defendants contend that, even if Plaintiffs can prove their own claim with respect
to any one of their 25 pieces of art, this would not necessarily prove their claim with respect to any
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of the remaining pieces. For example, if Plaintiffs prove that they purchased preservation mounting
for the “Ben Harper” print they brought to the Holland store on January 11, 2013 by testifying to the
Holland store’s signage, their reliance on such signage, employee recommendations and guidance,
and the signed contract, this would not prove their claims for any of the remaining 24 pieces—let
alone the pieces purchased by other proposed class members.
Plaintiffs argue that their claims are typical of the proposed class; why they paid for the
premium product or which sign they saw is irrelevant. But Plaintiffs allege violations of state
consumer protection statutes, the Uniform Deceptive Trade Practices Act, the Magnuson-Moss
Warranty Act, Michigan’s Consumer Protection Act, fraud and misrepresentation, unjust enrichment,
negligence, breach of express warranty, and breach of implied warranty. (ECF No. 10). The merits
of these claims depend on, inter alia, the signage at the store where the proposed class member
purchased the preservation mounting, their reliance on such signage, conversations with employees,
and the signed contracts.
In the amended complaint, Plaintiffs do not allege a common scheme relative to all members
of the class. Plaintiffs cite to advertisements on Michaels’ website, but do not allege that they saw
or relied upon those online advertisements. Rather, Plaintiffs assert that they relied upon statements
from employees and in-store pamphlets. (Am. Compl. ¶ 33, ECF No. 10, PageID.69-70.) Plaintiffs
argue that the claims arise from Defendants’ uniform course of conduct as it relates to the improper
use of inferior adhesive tape, not on the custom nature of the framing services provided. But here,
“proof [of Plaintiffs’] individual claims would not necessarily prove those of the class members.”
Eager, 2014 WL 3534949, at *6. Further, to assess the merits of the proposed class members’
claims, the Court would need to conduct a “separate, fact-specific inquiry in each case.” Id.
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C. Commonality
Plaintiffs face similar problems with respect to commonality. To satisfy Rule 23(a)(2)’s
commonality requirement, Plaintiffs must show that “there are questions of law or fact common to
the issue.” Fed. R. Civ. P. 23(a)(2). The common question “must be of such a nature that it is
capable of classwide resolution—which means that determination of its truth or falsity will resolve
an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350 (2011). “Although Rule 23(a)(2) speaks of ‘questions’ in the plural,
[the Sixth Circuit has] said that there need only be one question common to the class.” Sprague, 133
F.3d at 397 (citing Am. Med. Sys., 75 F.3d at 1080). “It is not every common question that will
suffice, however; at a sufficiently abstract level of generalization, almost any set of claims can be
said to display commonality.” Id. The Court must look for “a common issue the resolution of which
will advance the litigation.” Id. It must “assess ‘the legal or factual questions that qualify each class
member’s case as a genuine controversy,’ [Amchem Prods., 521 U.S. at 623], and assess whether
those questions are ‘subject to generalized proof, and thus applicable to the class as a whole,’
Bridging Cmtys., Inc. v. Top Flite Fin. Inc., 843 F.3d 1119, 1124 (6th Cir. 2016)[.]” Sandusky
Wellness Ctr., 2017 WL 2953039, at *6. In other words, when a claim depends “upon facts and
circumstances peculiar to that plaintiff,” Sprague, 133 F.3d at 398, the claim lacks commonality.
The amended complaint alleges that several common factual questions predominate over
individual questions, including questions of Defendants’ representations, omissions, warranties,
advertisements, duties, fraudulent inducement, training, harm, damages, and fraud. (Am. Compl.
¶ 60, ECF No. 10, PageID.75-77.) Plaintiffs’ typicality and commonality theory have the same flaw:
their general hypothesis is not subject to common proof. As discussed supra, if Plaintiffs prove one
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of their claims regarding a piece of artwork, that would not necessarily prove their 24 remaining
claims, let alone anyone else’s in the proposed class. Id. The individualized fact-finding required
to resolve Plaintiffs’ dispute “would not resolve factual issues for any other class members; instead,
similar facts particular to each individual would have to be presented again and again, making this
case not amenable to class treatment.” Sherrod, 2016 U.S. Dist. LEXIS 179, at *15-16.; see also
Sprague, 133 F.3d at 398 (“Given these myriad variations, it seems to us that the plaintiffs’ claims
clearly lacked commonality.”).
D. Predominance
This individualized fact-finding also strains Plaintiffs’ predominance theory. Under Rule
23(b), the Court must find that common questions predominate. Fed. R. Civ. P. 23(b)(3). To satisfy
this requirement, the Court must find that the “issues subject to generalized proof and applicable to
the class as a whole predominate over those issues that are subject to only individualized proof.”
Randleman, 646 F.3d at 352-53 (citing Beattie, 511 F.3d at 556). “‘The Rule 23(b)(3) predominance
inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by
representation.’” Beattie, 511 F.3d at 564 (quoting Amchem Prod., 531 U.S. at 632 and citing In re
Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001)).
Even if Plaintiffs could satisfy the commonality requirement, any common questions of fact
or law would not predominate over questions affecting individual class members. As discussed
supra, the Court would have to engage in a highly-individualized inquiry to determine whether
proposed class members purchased and actually received preservation or archival tape mounting.
Each claim would depend on a specific, case-by-case analysis. Further, with respect to Plaintiffs’
proposed nationwide class, the applicable state laws would vary substantially. See Pilgrim, 660 F.3d
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at 948 (noting the Sixth Circuit has “refused to allow a nationwide class covered by the laws of
different States”); see also Drooger v. Carlisle Tire & Wheel Co., No. 1:05-cv-73, 2006 U.S. Dist.
LEXIS 20823, at *31 (W.D. Mich. Apr. 18, 2006) (“The great weight of authority observes that
when class claims cannot be brought under a unifying law, predominating questions of law are
absent, and certification is inappropriate.”) (collecting cases). Thus, the predominance requirement
is not met, especially for Plaintiffs’ proposed nationwide class. See, e.g., Randleman, 646 F.3d at
355 (denial of class certification based on lack of predominance affirmed where “each homeowner’s
entitlement to the discount rate turns on an individual case-by-case analysis”); Eager, 2014 WL
3534949, at *4 (predominance requirement not met where “the Court would be required to make
fact-specific inquiries as to each class member to determine [the merits of the claim]”); Stalker v.
MBS Direct, LLC, No. 10-11355, 2012 U.S. Dist. LEXIS 179793, at *21 (E.D. Mich. Dec. 20, 2012)
(predominance lacking where issues raised “are inapplicable to the class as a whole because, varying
from member to member, the issues are not subject to generalized proof”).
IV.
In sum, Plaintiffs’ proposed class is a fail-safe class: it includes only those customers that
Plaintiffs claim are entitled to relief. Although Plaintiffs have not yet moved for class certification
and no discovery has taken place, the Court sees no way in which the proposed class can be modified
to avoid this problem. Moreover, the proposed class also fails to satisfy the typicality, commonality,
and predominance requirements of Rule 23. Given the individualized nature of the claims, the Court
does not believe that discovery will resolve these failures. Thus, the Court will grant Defendants’
motion to strike the class allegations.

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An order will enter in accordance with this opinion.

DATE: July 19, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Court Judge

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