Chapman et al v. Tristar Products, Inc.

Filing 32

Opinion & Order signed by Judge James S. Gwin on 10/25/16. The Court, for the reasons set forth in this order, grants in part and denies in part defendant's motion to dismiss plaintiffs' class action complaint. (Related Docs. 18 , 23 , and 29 ) (D,MA) Modified text 10/25/2016 (C,KA).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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KENNETH CHAPMAN et. al.,
:
:
Plaintiffs,
:
:
v.
:
:
TRISTAR PRODUCTS, INC.,
:
:
Defendant.
:
:
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CASE NO. 16-cv-1114

OPINION & ORDER
[Resolving Docs. 18, 23, 29]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiffs Kenneth Chapman, Jessica Vennel, and Jason Jackson bought pressure cookers
from Defendant Tristar.1 Plaintiffs filed a lawsuit alleging that the Defendant’s pressure cookers
have manufacturing and design defects that cause them to explode.2 The Defendant moves to
dismiss several of the Plaintiffs’ claims.3 Plaintiffs oppose.4
For the following reasons, this Court GRANTS IN PART and DENIES IN PART the
Defendant’s motion to dismiss.
I.

Background
Pressure cookers cook food by building-up and trapping steam within the appliance.

After use, pressure cookers slowly release the accumulated pressure so a user can safely open the
device.
During 2015 and 2016, the Plaintiffs each purchased the Power Pressure Cooker XL
(“Pressure Cooker” or “Cooker”) from Defendant Tristar. The Plaintiffs say that the Pressure

1

Doc. 1 ¶¶ 35-46.
Id. ¶ 4.
3
Doc. 18.
4
Doc. 23.
2

Case No. 16-cv-1114
Gwin, J.
Cookers suffer from a design defect that causes them to explode during routine use.5
Specifically, the Plaintiffs allege that the Pressure Cookers have a defective pressure release
valve that inaccurately informs users that they can safely open their Pressure Cookers.6 The
Plaintiffs say that they suffered injuries when they opened their Cookers and scalding contents
erupted onto them and their property.7
The Plaintiffs seek to certify a nationwide class to sue Defendant Tristar for breach of
express warranty, breach of implied warranty of merchantability, negligence, unjust enrichment,
strict product liability, and injunctive and declaratory relief. Additionally, Ohio resident Plaintiff
Chapman moves to certify an Ohio class to sue for violations of the Ohio Product Liability Act
and the Ohio Consumer Sales Practices Act. Pennsylvania resident Plaintiff Vennel seeks to
certify a Pennsylvania class to sue Tristar for violating the Pennsylvania Unfair Trade Practices
and Consumer Protection Law and breaching the appliance’s express warranty and the implied
warranty of merchantability. Finally, Colorado resident Plaintiff Jackson moves to certify a
Colorado class to sue for violations of the Colorado Consumer Protection Act and the Colorado
Product Liability Act.8
Defendant Tristar now moves to dismiss most of the Plaintiffs’ claims.9 Tristar says that
the Plaintiffs lack standing to pursue their nationwide claims as well as their requests for
injunctive and declaratory relief. Furthermore, the Defendant argues that the Plaintiffs fail to
state a claim for several state actions. Plaintiffs oppose.10

5

Doc. 1 ¶¶ 3-4.
Id. ¶¶ 4-5.
7
Id. at ¶ 9.
8
Id.
9
Doc. 18.
10
Doc. 23.
6

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Gwin, J.
II.

Legal Standard
Defendant Tristar seeks to dismiss the Plaintiffs’ claims under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6).
Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of jurisdiction over
the subject matter” of claims asserted in the complaint.11 Generally, Fed. R. Civ. P. 12(b)(1)
motions fall into two categories: facial attacks and factual attacks.12
Defendant Tristar facially attacks the Plaintiffs’ standing,13 and this Court therefore
must accept the Plaintiff's material allegations in the complaint as true.14 The Plaintiffs have the
burden of proving subject matter jurisdiction in order to survive a motion to dismiss pursuant to
Rule 12(b)(1).15 Lack of subject matter jurisdiction is a non-waivable, fatal defect.16
Tristar also attacks the sufficiency of the Plaintiffs’ complaint under 12(b)(6).17 “To
survive a [12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”18 The plausibility
requirement is not “akin to a probability requirement,” but requires “more than a sheer
possibility that the defendant has acted unlawfully.”19
A court may grant a motion to dismiss only when “it appears beyond doubt” that the
plaintiff fails to state a claim upon which relief may be granted.20 In deciding a motion to dismiss

11

Fed. R. Civ. P. 12(b)(1).
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
13
Doc. 18 at 10-11.
14
Ritchie, 15 F.3d at 598.
15
Madison–Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996)
16
Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990).
17
Doc. 18 at 11.
18
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
19
Id.
20
Fed. R. Civ. P. 12(b)(6); Conley v. Gibson, 355 U.S. 41, 45 (1957).
12

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Gwin, J.
under Rule 12(b)(6), “a court should assume the[ ] veracity” of “well-pleaded factual
allegations.”21
III.

Analysis
First, this Court denies Defendant’s 12(b)(1) challenges regarding the Plaintiffs’ standing

to bring a nationwide class claim or to sue for injunctive relief. Next, the Court denies the
Defendant’s 12(b)(6) motions to dismiss Plaintiffs Chapman and Vennel’s respective state law
claims. Finally, this Court grants Tristar’s motion to dismiss Plaintiff Jackson’s Colorado class
claim.
A. This Court will determine if the Plaintiffs have standing to bring nationwide claims at the
class certification stage
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.22 Plaintiffs Chapman, Vennel, and Jackson
have standing to bring to bring Ohio, Pennsylvania, and Florida claims.23
However, Tristar challenges the Plaintiffs’ standing to bring a nationwide class claim
because Plaintiffs represent only three states. Tristar says this Court should rule on this standing
question now, rather than wait until the class certification stage.24 The Court disagrees.
In two cases involving class settlements, the Supreme Court noted that class certification
was dispositive, and, consequently, “logically antecedent” to standing questions.25 Although the
Sixth Circuit is silent on whether this rule extends beyond settlement litigation,26 several other

21

Iqbal, 556 U.S. at 678-79.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
23
Generally, the Plaintiffs all allege that their Tristar-manufactured pressure cookers exploded causing them personal
or property damage. This injury can be redressed through damages or injunctive relief. Therefore, the Plaintiffs
individually have standing under Article III.
24
Doc. 18. at 18-23.
25
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 612 (1997); Ortiz v. Fibreboard Corp., 527 U.S. 815, 831
(1999).
26
See, e.g., In re Auto. Parts Antitrust Litig., 2013 WL 2456612, at *11 (E.D. Mich. June 6, 2013).
22

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Case No. 16-cv-1114
Gwin, J.
courts have concluded that it does.27 This Court agrees that “it is appropriate to reach class
certification issues first, if they are dispositive, because their resolution is ‘logically antecedent’”
to standing inquiries for the class.28
This Court’s ruling on class certification will be dispositive as to the Plaintiffs’
nationwide class claims. As part of that ruling, this Court will evaluate the Plaintiffs’ standing to
bring claims in states other than Ohio, Colorado, and Pennsylvania. The Plaintiffs have
adequately established their own individual standing, and this Court will determine the validity
of the nationwide class at the certification stage.

B. The Plaintiffs have standing to sue for declaratory and injunctive relief
Defendant Tristar says that the Plaintiffs lack standing to seek declaratory and injunctive
relief. This argument loses because Plaintiffs remain at risk for injury from their Pressure
Cookers.
Plaintiffs seeking injunctions have standing if they are “likely to suffer future injury.”29
The mere fact of a past injury does not necessarily establish the required likelihood of future
harm.30
The Plaintiffs have standing to sue for an injunction because they are sufficiently likely to
suffer future injury using the Pressure Cookers. They do not say they will never use the Pressure

Newberg on Class Actions § 2:2 (5th ed.) (2016) (noting there is “a growing consensus among lower courts . . .
that class certification should indeed be decided [before standing] where its outcome will affect the Article III
standing determination”) (internal citations omitted). See, e.g., Hoving v. Transnation Title Ins. Co., 545 F. Supp.
2d 662, 667-68 (E.D. Mich. 2008).
27

28

Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 353 n.2 (3d Cir. 2013) (quoting Amchem, 521 U.S. 591, 612
(1997).
29
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).
30
Id.

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Case No. 16-cv-1114
Gwin, J.
Cookers again.31 Instead, the Plaintiffs ask Tristar to “take corrective action to prevent further
injuries including . . . issuing a nationwide recall of the Pressure cooker.”32
In the past, this Court held that a plaintiff lacked standing for prospective relief when the
plaintiff would not use a defendant’s product again in the future.33 The instant case differs
because Plaintiffs Chapman, Vennel, and Jackson seek injunctive relief to correct a defect in
their Pressure Cookers that they may continue to use.
Plaintiffs have standing to sue for injunctive and declaratory relief.

C. Plaintiff Chapman’s Ohio Consumer Sales Practices Act class action claim survives
Defendant Tristar says that Ohio Plaintiff Chapman fails to state a class claim under the
Ohio Consumer Sales Practice Act (“OCSPA”).34 That statute’s section on remedies prohibits a
plaintiff from bringing a class action under the statute unless the defendant has prior notice that
conduct substantially similar to its alleged conduct is deceptive or unconscionable as declared by
either (1) a rule adopted by the Ohio Attorney General, or (2) an Ohio state court holding.35
Ohio courts are to construe the OCSPA liberally in favor of consumers.36 Tristar argues that
Plaintiff Chapman has failed to allege sufficient prior notice, and thus the Court should dismiss
their OCSPA claims.
Defendant Tristar’s position suffers two flaws. First, Tristar’s notice argument is not
appropriate at the motion-to-dismiss stage; it belongs at the class certification or summary
See, e.g., Doc. 1 ¶ 48. Defendant points to the complaint where Plaintiffs say they are “unable to use their
Pressure Cookers for their intended purpose” as evidence the Plaintiffs will not use the Cookers in the future. Id. ¶
27. However, the Defendant excludes the rest of the sentence which states “or [the Plaintiffs] are required to place
themselves and their families at risk when using [the Cookers].” Id.
32
Id. at ¶ 243.
33
Neuman v. L'Oreal USA S/D, Inc., 2014 WL 5149288, at *2 (N.D. Ohio Oct. 14, 2014).
34
Doc. 18. at 28-29. Ohio Rev. Code Ann. § 1345.01 et seq.
35
See Ohio Rev. Code § 1345.09(B); see also Marrone v. Philip Morris USA, Inc., 110 850 N.E.2d 31, 33 (Ohio
2006).
36
Einhorn v. Ford Motor Co., 548 N.E.2d 933, 937 (Ohio 1990).
31

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Case No. 16-cv-1114
Gwin, J.
judgment stages.37 Second, this Court finds the Brown v. Lyons decision satisfies OCSPA’s
liberal notice requirement.38 In Lyons, an Ohio state court concluded that a defendant violated
the OCSPA when he misled consumers about the quality and operation of appliances he sold.39
Here, Plaintiff Chapman says Tristar misled him about his appliance’s safety features. 40 The
Court denies Tristar’s 12(b)(6) motion to dismiss Chapman’s OCSPA class claim.

D. Plaintiff Chapman’s Ohio Consumer Sales Practice Act survives because he may plead
his claims in the alternative
Defendant Tristar says that Plaintiff Chapman’s Ohio Products Liability Act (“OPLA”)
claim preempts his individual claim under OCSPA. Tristar cites two unreported cases where
courts found that an OPLA claim can preempt an OCSPA claim when “both [claims are]
primarily rooted in product liability claims.”41 However, Federal Rule of Civil Procedure 8(d)(2)
permits Plaintiff Chapman to make alternative claims at this stage of litigation.42 Tristar may
raise this argument at a later point in this case. The Court denies Tristar’s premature challenge.

E. Plaintiff Vennel’s claims survive because she sufficiently pleads reliance
Tristar asks this Court to dismiss Plaintiff Vennel’s breach of express warranty and
Pennsylvania Unfair Trade Practices and Consumer Protection Law claims. Tristar says that

37

In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 684 F. Supp. 2d 942, 948 (N.D. Ohio 2009).
Although some Sixth Circuit trial courts have decided the notice question before the certification stage, this Court
declines to do the same. See, e.g., Gascho v. Glob. Fitness Holdings, LLC, 863 F. Supp. 2d 677, 693 (S.D. Ohio
2012).
38
Brown v. Lyons, 332 N.E.2d 380, 384 (Ohio Com. Pl. 1974).
39
Id.
40
Doc. 1¶¶ 168-170.
41
Mitchell v. Proctor & Gamble, 2010 WL 728222, at *4 (S.D. Ohio Mar. 1, 2010).
42
Fed. R. Civ. Pro. Rule 8(d)(2) provides that “a party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient.”

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Case No. 16-cv-1114
Gwin, J.
Vennel failed to sufficiently plead the reliance element required by both claims.43 The Court
disagrees.
As discussed in Section II, Twombly and Iqbal require plaintiffs to plead claims with
plausible factual backgrounds.44

Here, Plaintiff Vennel alleges she relied on Tristar’s

representations regarding the characteristics, qualities, and standards of the Pressure Cooker.45
She cites the Pressure Cooker’s owner’s manual and other promotional materials as the source of
her reliance.46

These assertions sufficiently establish a plausible factual background that

Plaintiff Vennel relied on Tristar’s representations. The Court denies Defendant’s 12(b)(6)
motion as to Plaintiff Vennel’s claims.

F. Colorado law bars Plaintiff Jackson’s Colorado Consumer Protection Act class claim
The Colorado Consumer Protection Act (“CCPA”) bars class actions seeking monetary
damages. Defendant Tristar says this prohibition extends to CCPA class actions brought in
federal court. The Court agrees.
When evaluating state procedural restrictions on the availably of class actions for
particular types of claims, courts in this district use Justice Stevens’ test from his concurrence in
Shady Grove Orthopedic Assoc’s. P.A. v. Allstate Ins. Co.47 Justice Stevens explains that a state
procedural restriction is not preempted by federal law so long as it is “so bound up with,” or

43

Plaintiff Vennel contests that breach of express warranty claim includes a reliance element. Doc. 23.at 22-23.
This Court declines to address that question in this opinion.
44
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
45
Doc. 1 ¶ 183.
46
Id.
47
559 U.S. 393, 421-23 (2010) (Stevens, J., concurring). See, e.g., McKinney v. Bayer Corp., 744 F. Supp.2d 733,
747 (N.D. Ohio 2010); Phillips v. Philip Morris Companies Inc., 290 F.R.D. 476, 478-479 (N.D. Ohio 2013); In re
Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 2010 WL 2756947, at *2 (N.D. Ohio July 12, 2010)
(vacated on other grounds).

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Case No. 16-cv-1114
Gwin, J.
“sufficiently intertwined with,” a substantive state law remedy “that it defines the scope of that
substantive right or remedy.”48
Here, the CCPA prohibits monetary damages in class actions. This restriction is bound
up with the CCPA’s substantive remedy so that it is defines the CCPA’s remedial scope.49
Therefore, federal law does not preempt the CCPA’s class limitation, and Plaintiff Jackson’s
class claim must be dismissed.
IV.

Conclusion
For the forgoing reasons, the Court GRANTS IN PART and DENIES IN PART

Defendant Tristar’s Motion to Dismiss.

IT IS SO ORDERED.

Dated: October 25, 2016.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

48

Shady Grove, 559 U.S. at 421-423 (Stevens, J., concurring); see also, 1 McLaughlin on Class Actions § 2:46
(13th ed. 2016).
49
See Martinez v. Nash Finch Co., 886 F. Supp. 2d 1212, 1219 (D. Colo. 2012) (“[T]he language of [the CCPA
statute] . . . defines a defendant's liability under the CCPA in a private action. It limits such liability to specified
remedies, and expressly states that such remedies are not applicable in class actions. By logical extension, the CCPA
creates no statutory liability for a defendant in a private class action.”).

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