B&S Transport, Inc. et al v. Bridgestone Americas Tire Operations, LLC et al

Filing 45

Opinion and Order: Plaintiffs' motion for leave to file an amended complaint is granted in part and denied in part. Plaintiffs shall file an amended complaint in compliance with this order within 7 days. Related Doc # 38 ). The Court construes defendants' motion to strike as a motion to disregard and grants same. (Related Doc # 41 ). Judge Sara Lioi on 7/24/2014. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

B&S TRANSPORT, INC., et al.,

PLAINTIFFS,
vs.
BRIDGESTONE AMERICAS TIRE
OPERATIONS, LLC, et al.,
DEFENDANTS.

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CASE NO. 5:13-cv-2793

JUDGE SARA LIOI

OPINION AND ORDER

This matter is before the Court on plaintiffs’ motion for leave to file an amended
complaint. (Doc. No. 38.) Defendants have filed an opposition. (Doc. No. 39.) Plaintiffs filed a
reply (Doc. No. 40), which defendants have moved to strike. (Doc. No. 41.) Plaintiffs oppose the
motion to strike. (Doc. No. 43.) Because the Court’s Case Management Plan and Trial Order
does not permit replies to motions for leave to amend (see Doc. No. 35 at 302), the Court
construes defendants’ motion to strike as a motion to disregard2 and GRANTS same.
I. Background
As authorized Bridgestone dealers, plaintiffs B&S Transport, Inc. (“B&S”) and its
president, Ronnie Harris (“Harris”), sold Bridgestone tires primarily to government customers
for nearly three decades. (Compl., Doc. No. 1 at ¶¶ 15-16.) On February 28, 2013, Harris met
with two Bridgestone representatives, who informed Harris that Bridgestone had decided to
terminate B&S as an authorized dealer, ceasing tire shipments on December 31, 2013. (Id. at ¶

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A motion to strike applies only to pleadings and is not the proper vehicle for attacking plaintiffs’ reply brief. See
Fed. R. Civ. P. 12(f); Physicians Ins. Capital, LLC v. Praesidium Alliance Grp., LLC, No. 4:12CV1789, 2013 WL
3787671, at *4 (N.D. Ohio July 18, 2013).

25.)
At the time of its termination, B&S had six ongoing contracts with the Defense
Logistics Agency (“DLA”). DLA renewed each contract for an additional year in fall 2013, after
B&S had received the termination letter from Bridgestone. (Compl. at ¶ 24.) Unable to meet the
requirements of the DLA contracts, plaintiffs filed this lawsuit on December 19, 2013.
The complaint asserts the following causes of action: (1) violation of 42 U.S.C. §
1981; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing;
(4) promissory estoppel; (5) tortious interference with contract; and (6) fraud. (Compl. at ¶¶ 32102.) Contemporaneously with their complaint, plaintiffs filed a motion for temporary
restraining order and a motion for preliminary injunction. (Doc. No. 4.) Concluding that
plaintiffs had not shown a substantial likelihood of success on the merits of their claims, the
Court denied the motions. (Minute Order, Jan. 15, 2014; Doc. No. 36.)
Plaintiffs now seek to add Bridgestone Corporation (Japan) as a defendant. In
addition, they seek to add the following causes of action: (1) violation of Ohio Rev. Code §
1353.06, (2) civil conspiracy, and (3) restraint of trade. Finally, plaintiffs seek to add facts
adduced in discovery, particularly facts relating to an April 1, 1991 letter from Bridgestone to
Harris that contains certain terms of the parties’ dealership agreement. (See Doc. No. 38-1.)
According to defendants, leave to amend should be denied because plaintiffs
provided no grounds for amendment other than timeliness and defendants’ corporate disclosure
statement. (Doc. No. 39 at 388.) Without more, defendants claim that plaintiffs have not met
Fed. R. Civ. P. 7(b)(1)(B)’s requirement that a party “state with particularity the grounds for
seeking the order[.]” Defendants also claim that plaintiffs unduly delayed in adding Bridgestone
Corporation as a defendant. (Doc. No. 39 at 389.) Finally, defendants assert that each new claim
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is futile and would not withstand a motion to dismiss. (Id. at 390-400.)
II. Standard of Review
Rule 15(a)(2) of the Federal Rules of Civil Procedure governs the plaintiffs’
motion. It provides, in relevant part, that the Court should “freely give leave” to amend pleadings
“when justice so requires.” “Nevertheless, denying leave is appropriate in instances of ‘undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.’” Glazer v. Chase Home Fin. LLC, 704
F.3d 453, 458 (6th Cir. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L.
Ed. 2d 222 (1962)). Courts should freely give leave to amend in the absence of these factors.
Foman, 371 U.S. at 182. When filed “at a late stage in the litigation,” however, a motion for
leave to amend carries “an increased burden to show justification for failing to move earlier.”
Wade v. Knoxville Utils. Bd., 259 F.3d 452, 459 (6th Cir. 2001) (citation omitted).
III. Analysis
Plaintiffs seek to amend the complaint to add an additional party, three additional
claims, and additional facts, and the Court shall address each separately.
A. Additional Party
Plaintiffs have provided no basis upon which to grant leave to add Bridgestone
Corporation (Japan) as a defendant. Plaintiffs have offered no justification for adding
Bridgestone Corporation (Japan) as a defendant after six months of litigation, stating only that
defendants identified Bridgestone Corporation (Japan) in their corporate disclosure statement,
which was filed three months before plaintiffs’ motion. Plaintiffs have not alleged any facts
explaining Bridgestone Corporation (Japan)’s relationship to this lawsuit or to the events
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described in the complaint. That Bridgestone Corporation (Japan) is the parent corporation of the
existing defendants does not by itself justify adding it to the lawsuit. Plaintiffs must have some
justification for amending the complaint, and plaintiffs have not provided any relative to
Bridgestone Corporation (Japan).
B. Additional Claims
a. Ohio Rev. Code § 1353.06
Plaintiffs assert that defendants violated Ohio Rev. Code § 1353.06, which
prohibits suppliers from terminating, failing to renew or substantially altering a dealer agreement
without good cause. (Doc. No. 38-1 at 374.) According to plaintiffs, defendants’ cited reason for
terminating the contract—a change in distribution and go to market solution strategies—does not
constitute good cause under the statute. (Id. at 376.)
Chapter 1353 of the Ohio Revised Code governs equipment dealer agreements,
specifically, agreements between dealers and suppliers of farm machinery and construction
equipment. Under this chapter, a “supplier” is “a manufacturer, wholesaler, or distributor of farm
machinery or construction equipment to dealers . . . .” Ohio Rev. Code § 1353.01(D). A “dealer”
is “a person engaged in the business of the retail sale of farm machinery or construction
equipment . . . .” Ohio Rev. Code § 1353.01(G). The definitions of “farm machinery” and
“construction equipment” include their “attachments, special service tools, and repair parts[,]” in
addition to the machinery and equipment themselves. Both farm machinery and construction
equipment specifically exclude motor vehicles. Ohio Rev. Code § 1353.01(H), (J).
Ohio Rev. Code § 1353.06, the section cited by plaintiffs, details specific actions
that do or do not constitute good cause to terminate a contract between dealers and suppliers of
farm machinery or construction equipment. If a supplier terminates the contract in violation of §
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1353.06, the statute provides only one remedy. The supplier must repurchase inventory held by
the dealer at the time the dealer agreement was terminated. Ohio Rev. Code § 1353.02(B). “A
dealer to whom [Chapter 1353] applies may elect to pursue either a contract remedy or to
enforce repurchase of inventory under this chapter.” Ohio Rev. Code § 1353.03(B) (emphasis
added).3
B&S has not stated a plausible claim for relief under this statutory scheme. First,
B&S does not allege that it is a dealer and Bridgestone is a supplier pursuant to the statutory
definitions of those terms. Plaintiffs state only that “[s]aid provisions of Ohio law were enacted
for the benefit and protection of persons and businesses such as [p]laintiffs’ business.” (Doc. No.
38-1 at 375.) But plaintiffs do not allege that they are engaged in the retail sale of farm
machinery or construction equipment, only in the sale of tires. Even if the statute applied to B&S
as a dealer and Bridgestone as a supplier, plaintiffs are not seeking the remedy provided by the
statute. Plaintiffs do not ask Bridgestone to repurchase their inventory.4 If the Court permitted
plaintiffs to add a claim under Ohio Rev. Code § 1353.06, the claim would not survive a motion
to dismiss.
Because permitting plaintiffs to amend their complaint to add a claim under Ohio
Rev. Code § 1353.06 would be futile, the Court denies plaintiffs’ motion to amend insofar as it
seeks to do so.
b. Civil Conspiracy
Plaintiffs seek to add a conspiracy claim against all defendants, in allegations so
conclusory that the Court cannot even discern whether plaintiffs assert the claim under state or

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If a dealer pursues contract remedies, the dealer may also demand repurchase of inventory not affected by the
contract remedy. Ohio Rev. Code § 1353.03(B).
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federal law. Under either, plaintiffs have not stated a valid claim for relief.
“Under Ohio law, a claim for civil conspiracy requires ‘a malicious combination
of two or more persons to injure another in person or property, in a way not competent for alone,
resulting in actual damages.’” Burgess v. Fischer, 735 F.3d 462, 483 (6th Cir. 2013) (quoting
Kenty v. Transamerica Premium Ins. Co., 650 N.E.2d 863, 866 (Ohio 1995)). Here, plaintiffs did
not allege malice, even in conclusory fashion. Insofar as plaintiffs have attempted to plead civil
conspiracy under Ohio law, the claim would not survive a motion to dismiss.
Under federal law, “‘a civil conspiracy is an agreement between two or more
persons to injure another by unlawful action. . . . All that must be shown is that there was a single
plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an
overt act was committed in furtherance of the conspiracy that caused injury to the complainant.’”
Huffer v. Bogen, 503 F. App’x 455, 461 (6th Cir. 2012) (quoting Hooks v. Hooks, 771 F.2d 935,
934-44 (6th Cir. 1985)). Conspiracy claims “must be pled with some degree of specificity” and
merely describing the acts taken by various individual defendants does not suffice. Id. at 461-62
(citation and quotation marks omitted). Here, plaintiffs offer no more than vague and conclusory
allegations, neglecting even to describe the actions of the individual defendants relative to the
conspiracy claim.
Whether under Ohio or federal law, plaintiffs’ conspiracy claim would not survive
a motion to dismiss. Their motion for leave to amend to add a conspiracy claim is therefore
futile, and the Court denies plaintiffs’ motion to amend as to the conspiracy claim.
c. Restraint of Trade

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Though plaintiffs are entitled to assert alternative grounds for relief, the Court does note that recovery on plaintiffs’
asserted claim for breach of contract would foreclose the repurchase remedies of Chapter 1353.
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Finally, plaintiffs seek to add a cause of action for restraint of trade, providing
little detail. Restraint of trade claims under Ohio law are subject to the same analysis as restraint
of trade claims under the Sherman Act, so the Court shall analyze plaintiffs’ claim under that
statute. Erie Cnty., Ohio v. Morton Salt, Inc., 702 F.3d 860, 867 (6th Cir. 2012) (quoting Johnson
v. Microsoft Corp., 834 N.E.2d 791, 795 (Ohio 2005)).
Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form
of trust or otherwise, or conspiracy, in restraint of trade or commerce[.]” 15 U.S.C. § 1. “To state
a Section One claim, a plaintiff must plead more than a restraint of trade; it must plead an
agreement in restraint of trade.” Erie Cnty., 702 F.3d at 867 (emphasis added) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 553, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “To plead
unlawful agreement, a plaintiff may allege either an explicit agreement to restrain trade, or
sufficient circumstantial evidence tending to exclude the possibility of independent conduct.”
Watson Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 457 (6th Cir. 2011)
(citations and quotation marks omitted). Nowhere in their restraint of trade cause of action do
plaintiffs allege an agreement in restraint of trade, express or circumstantial.
Moreover, to state a claim under § 1, the restraint of trade must be unreasonable.
Partner & Partner, Inc. v. ExxonMobil Oil Corp., 326 F. App’x 892, 897 (6th Cir. 2009). Two
frameworks exist for evaluating reasonableness: the per se rule and the rule of reason. The per se
rule is appropriate where the challenged practice is entirely void of redeeming competitive
rationales, while under the rule of reason, a plaintiff has the burden of demonstrating significant
anti-competitive effects within a relevant market. Nat’l Hockey League Players Ass’n v.
Plymouth Whalers Hockey Club, 419 F.3d 462, 469 (6th Cir. 2005) (citation omitted). Here,
plaintiffs have not alleged that defendants’ actions lacked a redeeming competitive rationale;
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indeed, plaintiffs identify defendants’ “change in distribution and go to market solution
strategies” as the proffered justification for their actions. (Doc. No. 38-1 at 378.) Nor have
plaintiffs demonstrated or even alleged anti-competitive effects within a relevant market. They
have alleged that B&S sustained damages; however, the Sherman Act requires an allegation that
competition has sustained damages, not just the plaintiffs.
Even if plaintiffs had stated a valid claim for restraint of trade, the claim would
substantially change the theory on which this contract case has been proceeding. The parties
would have to engage in substantial additional discovery and preparation, delaying prompt
resolution of this dispute. If plaintiffs have antitrust claims against defendants, which they have
not shown thus far, a separate antitrust action would be appropriate. See 6 Wright & Miller, Fed.
Prac. & Proc. § 1487.
Plaintiffs’ claim for restraint of trade would not survive a motion to dismiss and is
therefore futile. Insofar as plaintiffs’ motion to amend seeks to add this claim, the motion is
denied.
C. Additional Facts
Plaintiffs have not provided any justification for amending their complaint. Yet,
defendants do not appear to oppose amending the complaint to reflect the additional facts
contained in the April 1, 1991 letter. Nor does the Court see any reason to prevent plaintiffs from
conforming their complaint to the facts adduced in discovery. Amending the complaint to add
these facts and remove references to the “lost” contract will facilitate more efficient resolution of
this case. Insofar as plaintiffs move to amend the complaint to add facts, their motion is granted.
D. Rule 11
The Court hereby cautions plaintiffs that any future filings that are unsigned under
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Rule 11 will not be considered by the Court.

IV. Conclusion
For the reasons set forth above, plaintiffs’ motion is GRANTED IN PART AND
DENIED IN PART. Plaintiffs shall file an amended complaint in compliance with this order
within seven (7) days.
IT IS SO ORDERED.

Dated: July 24, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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