Graiser v. Visionworks of America, Inc.
Filing
32
Opinion and Order signed by Judge James S. Gwin on 1/20/15 granting plaintiff's motion to remand; this case is remanded to the Court of Common Pleas of Cuyahoga County. (Related Docs. 1 , 16 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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ELLIOTT GRAISER,
:
:
Plaintiff,
:
:
v.
:
:
VISIONWORKS OF AMERICA, INC.,
:
:
Defendant.
:
:
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CASE NO. 1:14-CV-01641
OPINION & ORDER
[Resolving Docs. 1, 16]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Elliott Graiser seeks an injunction on behalf of a putative class against allegedly
deceptive advertising by Defendant Visionworks of America, Inc. (“Visionworks”).1/ He filed his
complaint in the Court of Common Pleas of Cuyahoga County, and Visionworks removed to this
Court on the basis of diversity jurisdiction.2/
Plaintiff Graiser has filed a motion to remand the case to state court, suggesting that this
Court’s decision in Neuman v. L’Oréal USA S/D, Inc. requires remand.3/ Defendant Visionworks
opposes this motion, arguing that Neuman is distinguishable, and therefore not controlling.4/
Although the Court agrees with Visionworks that Neuman does not control, the Court nonetheless
concludes that Graiser lacks Article III standing to pursue his claim for an injunction in federal court.
Accordingly, and for the following reasons, the Court REMANDS the case to the Court of Common
1/
Doc. 1-3.
2/
Doc. 1.
Doc. 16.
3/
4/
Doc. 21.
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Gwin, J.
Pleas of Cuyahoga County.
I. Background
In his complaint, Graiser generally alleges that Visionworks’s buy one get one free
advertising campaign for eyeglasses was deceptive and violated Ohio consumer protection law.5/
Plaintiff Graiser says that Visionworks’s use of the word “free” was impermissible because
Visionworks “routinely offered a single pair of eyeglasses at a ‘discounted price’” to customers who
forgo the “free” pair.6/ And, he adds, to the degree that Visionworks attempted to limit its offer with
disclaimers, those disclaimers were insufficiently clear and conspicuous to be effective.7/
Plaintiff Graiser alleges that on April 30, 2014, he went to a Visionworks store in
Beachwood, Ohio, to purchase eyeglasses.8/ While there, he saw a sign advertising Visionworks’s
buy one get one free sale.9/ Graiser says that the sign contained footnoted language including phrases
such as “restrictions apply” or “See associate for details.”10/ Graiser also alleges that Visionworks
maintains similar advertisements online.11/
When Graiser arrived at the Visionworks store, he was greeted by a salesman who reiterated
the buy one get one free offer and quoted a price of $409.93.12/ After further inquiry, the salesman
told Graiser that he could purchase one pair of eyeglasses for $245.95 if he gave up any claim for
5/
Doc. 1-3.
6/
Id. at 4.
7/
Id. at 5.
8/
Id. at 4.
9/
Id. at 4-5.
10/
Id. at 5.
Id. at 3-4.
11/
12/
Id. at 5.
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Gwin, J.
the “free” second pair.13/ Graiser did so.14/
On June 24, 2014, Graiser filed a complaint in state court seeking an injunction under the
Ohio Consumer Sales Practices Act.15/ He also sought to represent a state-wide class.16/ He
disclaimed any intention of seeking damages.17/ On July 25, 2014, Defendant Visionworks removed
the case to this Court on the basis of diversity jurisdiction.18/
Plaintiff Graiser now says that the case should be remanded to state court based on this
Court’s decision in Neuman v. L’Oréal USA S/D, Inc.19/ Defendant Visionworks responds that
Neuman does not control because, unlike the plaintiff in that case, Graiser has not disclaimed an
intention to purchase the product again.20/ Although other motions are also pending,21/ the Court’s
lack of jurisdiction means that these motions are more properly presented to and resolved by the state
court on remand.
II. Legal Standard
“The district courts of the United States . . . are ‘courts of limited jurisdiction. They possess
only that power authorized by Constitution and statute.’”22/ A defendant may remove a civil action
13/
Id.
14/
Id. at 5, 20.
15/
See Ohio Rev. Code § 1345.01 et seq.
16/
Doc. 1-3 at 6-8.
17/
Id. at 6.
18/
Doc. 1.
19/
Doc. 16.
20/
Doc. 21.
21/
E.g., Doc. 23 (Defendant Visionworks’s motion for judgment on the pleadings).
22/
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (quoting Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
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Gwin, J.
filed in a state court to a United States district court having original jurisdiction over the action.23/
But for a district court to have original jurisdiction, the strictures of Article III, including standing,
must be satisfied. “Removal statutes are strictly construed with all doubts resolved against
removal.”24/ This rule both shows respect for state sovereignty25/ and minimizes the risk of the
parties having to litigate the case in state court anew if a final judgment in federal court is vacated
for lack of jurisdiction.
A federal court has “an independent obligation to investigate and police the boundaries of
[its] own jurisdiction.”26/ This is the case even where the parties have ignored the issue completely
or attempted to consent to the lack of jurisdiction because “subject-matter jurisdiction . . . can never
be forfeited or waived.”27/ For this reason, the Court must consider all jurisdictional problems, not
just those raised in Plaintiff Graiser’s motion to remand.
In general, Article III standing requires (1) an injury in fact (2) caused by the defendant that
(3) can be redressed by a favorable resolution of the suit.28/ Plaintiffs seeking injunctions must show
that they are “likely to suffer future injury” in order to establish standing.29/ The mere fact of a past
injury does not necessarily establish the required likelihood of future harm.30/ And the future injury
23/
28 U.S.C. § 1441(a).
24/
Sollitt v. KeyCorp, 463 F. App’x 471, 473 (6th Cir. 2012) (citing Syngenta Crop Prot., Inc. v. Henson, 537
U.S. 28, 32 (2002)).
25/
Syngenta, 537 U.S. at 32.
26/
Heartwood, Inc. v. Agpaoa, 628 F.3d 261, 266 (6th Cir. 2010) (internal quotation marks and citation omitted).
27/
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630
(2002)).
28/
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
29/
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).
Id.
30/
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in question must not be “conjectural” or “hypothetical.”31/ In the context of a putative class action,
at least one named plaintiff must have standing.32/
III. Analysis
As an initial matter, the Court agrees with Defendant Visionworks that Neuman does not
control this case. In Neuman, as in this case, a plaintiff sought to bring an injunction-only class
action lawsuit for violation of Ohio consumer protection law. She lacked standing to do so in federal
court, however, because she had effectively disclaimed any intention of purchasing the product
again. Given that disclaimer, any deceptive advertising of the product would not have harmed her
in the future. By contrast, Plaintiff Graiser has made no such disclaimer in this case.
That does not, however, end the Article III standing inquiry. Federal courts are courts of
limited subject matter jurisdiction, and because the alleged future harm must not be “conjectural”
or “hypothetical,”33/ the Court must examine the particular claims brought by Plaintiff Graiser. On
the facts of this case, the injunction Graiser seeks would not remedy or prevent any cognizable future
harm to him.
It is true that in some cases, a consumer not at risk of being deceived by an advertising
campaign might nonetheless have standing to seek to enjoin it as unlawfully deceptive. For example,
consider a consumer who purchases a food product that was deceptively advertised as being organic
and who prefers the product for other reasons anyway (e.g., he likes how it tastes). Even if that
consumer knows that the “organic” claim is deceptive, it could still harm him by allowing the
31/
Id. at 102 (internal quotation marks and citations omitted).
32/
Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege and show that they personally have been
injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which
they purport to represent.”).
33/
Lyons, 461 U.S. at 102 (internal quotation marks and citations omitted).
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Gwin, J.
producer to sell at a higher price–a price the consumer will pay because he still wants the product
for reasons unrelated to the deceptive claim. This sort of analysis may well provide Article III
standing to many false advertising claims where (1) the allegedly false claim is one about the product
itself, rather than the terms of purchase and (2) the plaintiff intends to buy the product again.
By contrast, on the particular facts of this case, it does not appear that an injunction would
remedy any cognizable future harm to Plaintiff Graiser. Graiser’s complaint charges that Defendant
Visionworks falsely claimed to be offering a buy one get one deal, but in fact would allow customers
to purchase a single pair of glasses for a lower price, as in fact he did, and that to the extent
Visionworks noted limitations on this deal, it did so insufficiently conspicuously under the Ohio
Administrative Code.34/ Although there may be several ways to try to show a likelihood of future
harm that a favorable decision could redress, none pass muster.
One route would be through an argument similar to the organic food example above. If
Visionworks’s advertising campaign allowed it to charge a higher price for the single pair of glasses
without the free pair attached, Graiser would likely have Article III standing. But it is far from clear
that the buy one get one advertising campaign has any effect at all on the price of a single pair, let
alone which direction such an effect would push. Since the harms for a standing inquiry must not
be “hypothetical or speculative,” this theory cannot support standing.
A second argument would be that mere exposure to false advertising constitutes a harm for
Article III standing purposes. But this would prove too much. It would give standing to seek an
injunction to anybody who merely walks by the store and sees the sign, even if they have no intent
of ever purchasing glasses. Such a rule would not guarantee the concrete adverseness that Article
34/
Doc. 1-3.
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III standing requirements are meant to ensure. Indeed, this argument is almost certainly inconsistent
with Neuman. The plaintiff there will still likely see the allegedly false claims in various magazines
or when she goes to stores to buy other makeup products.
Finally, the third route, and the one that comes closest to succeeding, would be that under
Ohio law, Visionworks’s buy one get one free advertising campaign compelled it to offer a free pair
of glasses when one was purchased at the lower price that Graiser paid. As noted above, this harm
cannot rest merely on the existence of the allegedly misleading campaign. Rather, it must rest solely
on Graiser’s inability to receive two pairs of glasses at the lower price.
But even if Graiser’s interpretation of Ohio law is correct, Visionworks is under no obligation
to sell two pairs of glasses at the lower price unless it continues its buy one get one free campaign
and continues to offer a single pair at the cheaper price. Accordingly, an unconditional injunction
requiring Visionworks to offer two pairs of glasses at the lower price would be improper. Even if
Graiser is correct, therefore, an injunction would only forbid Visionworks from continuing its buy
one get one free campaign while refusing to sell two pairs of glasses at a lower price offered for a
single pair.
Such an injunction would have virtually no chance of remedying Graiser’s harm.
Visionworks might respond in any number of ways, such as by discontinuing the buy one get one
free campaign altogether, by changing it to a permissible volume discount (e.g., 1 pair for $200, 2
pairs for $350), or by continuing the promotion and directing its sales staff not to offer single pairs
for a lower price. But Visionworks would certainly not begin offering two pairs of glasses for the
discounted price.
Thus, at most, Graiser could obtain an injunction preventing his future exposure to the
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allegedly deceptive advertising. But that injury is not cognizable for purposes of Article III standing.
Because no injunction Graiser could obtain would prevent a future injury cognizable under Article
III, he lacks standing to pursue his injunction-only claim in federal court. This conclusion is further
bolstered by the need to strictly construe removal statutes and resolve all doubts against removal
jurisdiction.35/
Finally, although Graiser also says that members of his putative class may continue to be
deceived,36/ a named plaintiff’s standing to seek an injunction cannot rest on the likelihood of future
harm to unnamed class members.37/
It is worth noting that this conclusion does not foreclose all relief, or indeed, any relief at all.
Although they have been specifically disclaimed in this case, claims for damages could be viable in
federal court if sufficient amounts were in controversy. And because state courts are not bound by
Article III’s strictures, the injunction claim itself may still be viable in state court after remand.
IV. Conclusion
For the reasons set forth above, the Court REMANDS this case to the Court of Common
Pleas of Cuyahoga County.
IT IS SO ORDERED.
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: January 20, 2015
35/
See Sollitt v. KeyCorp, 463 F. App’x 471, 473 (6th Cir. 2012) (citing Syngenta Crop Prot., Inc. v. Henson,
537 U.S. 28, 32 (2002)).
36/
Doc. 1-3 at 6-8.
37/
See Warth, 422 U.S. at 502 (“Petitioners must allege and show that they personally have been injured, not
that injury has been suffered by other, unidentified members of the class to which they belong and which they purport
to represent.”).
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