Terlesky v. Fifth Generation, Inc.
Filing
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ORDER granting in part and denying in part 6 Motion to Dismiss. Defendants Motion is GRANTED with respect to Plaintiffs ODTPA claim, OCSPA class claim, and fraud claim. Plaintiffs OCSPA claim brought in her individual capacity will survive. Defendants Motion is DENIED with respect to Plaintiffs promissory estoppel claim and request for declaratory judgment and injunctive relief.. Signed by Judge Susan J. Dlott on 11/17/15. (wam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Anne Terlesky, and all others similarly
situated,
Plaintiffs,
v.
Fifth Dimension, Inc.,
Defendant.
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Case No. 1:15-cv-374
Judge Susan J. Dlott
Order Granting in Part and Denying in
Part Defendant’s Motion to Dismiss
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Class
Action Complaint (Doc. 6). For the reasons that follow, Defendant’s Motion to Dismiss will be
GRANTED IN PART AND DENIED IN PART.
I.
BACKGROUND
A.
Facts1
The action is brought by Plaintiff on behalf of herself and class members who purchased
Tito’s Handmade Vodka because the label described the product as both “Handmade” and
“Crafted in an Old Fashioned Pot Still by America’s Original Microdistillery.” Defendant, Fifth
Generation, Inc.,2 is alleged to manufacturer, distribute, market, and/or sell Tito’s Handmade
Vodka. Plaintiff alleges that the product is not actually handmade, because it is made from
commercially manufactured neutral grain spirit that is trucked and pumped into an industrial
facility, distilled in a large industrial complex with modern, technologically advanced stills, and
produced and bottled in extremely large quantities.
1
The Court has drawn the background facts from Plaintiff’s Complaint (Doc. 3) unless otherwise indicated.
Defendant was named in the Complaint as “Fifth Dimension, Inc.” but asserts in its Motion to Dismiss that its
proper party name is “Fifth Generation, Inc.” (Doc. 6 at PageID 53.) The Court will accordingly refer to the
Defendant as Fifth Generation, Inc.
2
Plaintiff Anne Terlesky alleges that she purchased Tito’s Handmade Vodka once every
month for the past several years from the Kroger’s in Hyde Park, Ohio. She claims that at the
time of purchase, Tito’s Handmade Vodka was prominently marked with a “Handmade” label
and as being “Crafted in an Old Fashioned Pot Still by American’s Original Microdistillery.”
Plaintiff alleges that she believed she was buying a high-quality product made by human hands,
not a product made in large industrial vats in mass quantities. Plaintiff asserts the following
claims: violation of the Ohio Deceptive Trade Practices Act, violation of the Ohio Consumer
Sales Practices Act, unjust enrichment, promissory estoppel, negligent misrepresentation, fraud,
and declaratory judgment/injunctive relief. Although she has not yet moved to certify a class,
Plaintiff brings her action on behalf of herself and persons residing in the state of Ohio who
purchased Tito’s Handmade Vodka.
On June 24, 2105, Defendant filed a Motion to Dismiss Plaintiff’s Class Action
Complaint and Memorandum in Support. (Doc. 6.) Plaintiff opposes the Motion (Doc. 8.) For
the reasons that follow, Plaintiff’s Motion will be GRANTED IN PART AND DENIED IN
PART.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for “failure
to state a claim upon which relief can be granted.” To withstand a motion to dismiss pursuant to
Rule 12(b)(6), a complaint must comply with the pleading requirements of Federal Rule of Civil
Procedure 8(a), which requires “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). When considering a
motion to dismiss pursuant to Rule 12(b)(6), the Court must construe the complaint in a light
most favorable to the plaintiff and accept the factual allegations as true. Lambert v. Hartman,
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517 F.3d 433, 439 (6th Cir. 2008). The Court “need not, however, accept conclusory allegations
or conclusions of law dressed up as facts.” Erie Cnty., Ohio v. Morton Salt, Inc., 702 F.3d 860,
867 (6th Cir. 2012).
III.
ANALYSIS
Defendant argues in its Motion to Dismiss that each of Plaintiff’s claims is subject to
dismissal. Defendant claims Plaintiff lacks standing to allege a claim under the Ohio Deceptive
Trade Practices Act and fails to allege notice sufficient to pursue a class action under the Ohio
Consumer Sales Practices Act. Defendant claims Plaintiff’s remaining claims are either
inadequately plead or fail as a matter of law.3 The Court will consider each argument in turn.
A. Ohio Deceptive Trade Practices Act
The Court first will consider the viability of Plaintiff’s Ohio Deceptive Trade Practices
Act, Ohio Rev. Code § 4165.01, et seq. (“ODTPA”), claim. Plaintiff alleges that the Defendant
made and continues to make deceptive, false, and misleading statements that Tito’s Handmade
Vodka is “Handmade” and “Crafted in an Old Fashioned Pot Still by America’s Original
Microdistillery,” which deceived Plaintiff and the proposed class in violation of the ODTPA.
The parties diverge over the issue of whether Plaintiff, as a consumer, has standing to
bring her claim under the ODTPA. The Ohio Supreme Court has not yet resolved the issue of
whether a consumer may pursue a claim under the ODTPA4, and there is a split of authority
between the Northern and Southern Districts of Ohio, and even within the Southern District, on
3
Although Defendant originally moved to dismiss Plaintiff’s unjust enrichment claim, Plaintiff withdrew her claim
for unjust enrichment in response to Defendant’s Motion to Dismiss. (Doc. 8 at PageID 195.) Accordingly, the
Court need not address those arguments.
4
In McKinney v. Bayer Corp., Judge O’Malley certified to the Ohio Supreme Court the question of a consumer’s
standing under the ODTPA. 744 F. Supp. 2d 733, 749–52 (N.D. Ohio 2010). But because the plaintiff dismissed
his ODTPA claim, this issue never was addressed by the Court. Robins v. Global Fitness Holdings, LLC, 838 F.
Supp. 2d 631, 650 n.3 (N.D. Ohio 2012) (Polster, J.).
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the issue. See Schumacher v. State Auto. Mut. Ins. Co., 47 F. Supp. 3d 618, 630–33 (S.D. Ohio
2014) (acknowledging split of authority and discussing cases). Thus, the Court must do its best
to anticipate how the Ohio Supreme Court would rule. Id. at 630.
The ODTPA confers standing to commence a civil action upon a “person who is likely to
be damaged by a person who commits a deceptive trade practice” or a “person who is injured by
a person who commits a deceptive trade practice.” Ohio Rev. Code § 4165.03(A)(1)–(2). A
“person” is defined under the ODTPA as “an individual, corporation, government, governmental
subdivision or agency, business trust, estate, trust, partnership, unincorporated association,
limited liability company, two or more of any of the foregoing having a joint or common interest,
or any other legal or commercial entity.” Ohio Rev. Code § 4165.01(D).
The majority of courts addressing this issue have reasoned that the ODTPA is
substantially similar to Section 43(a) of the Lanham Act, which confers standing on “any person
who believes that he or she is likely to be damaged” by prohibited conduct under 15 U.S.C. §
1125(a). In re Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801, 874 (S.D. Ohio 2012); Dawson
v. Blockbuster, Inc., 8th Dist. No. 86451, 2006 WL 1061769, at *4 (Ohio App Ct. Mar. 16,
2006), cert. denied, 110 Ohio St. 3d 1442, 852 N.E.2d 190 (Ohio 2006)). These courts reason
that because “the ODTPA is substantially similar to Section 43(a) of the Lanham Act and the
Lanham Act protects the interests of a purely commercial class that does not include individual
consumers,” the ODTPA does not confer standing upon consumers. In re Porsche, 880 F. Supp.
2d at 874 (citing Dawson, 2006 WL 1061769, at *3 (citing Yocono’s Rest., Inc. v. Yocono, 100
Ohio App. 3d 11, 17, 651 N.E.2d 1347 (1994))). Defendant urges this Court to adopt the
conclusions of In re Porsche, Dawson, and other cases in which the court held that the ODTPA
does not provide relief for a “consumer.” See, e.g., CitiMortgage, Inc. v. Crawford, 934 F. Supp.
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2d 942, 950 (S.D. Ohio 2013) (Black, J.) (“a consumer does not have standing to [s]ue under the
DPTA”); Phillips v. Philip Morris Cos., 290 F.R.D. 476, 484 (N.D. Ohio 2013) (Lioi, J.) (“the
Court holds that consumers lack standing to bring claims under the DTPA”); Hamilton v. Ball, 7
N.E.3d 1241, 1253 (Ohio App. 2014) (consumers lack standing to file suit under the DTPA).
Further, in Holbrook v. Louisiana-Pacific Corp., 533 Fed. App’x 493, 497–98 (6th Cir. 2013),
the Sixth Circuit affirmed the proposition cited by Judge Lioi in Phillips that the ODTPA is not
available to consumers.
An alternative, and minority, school of thought on this position has been articulated by
the Honorable Walter H. Rice in Bower v. Int’l Bus. Machs., Inc., 495 F. Supp. 2d 837, 842–44
(S.D. Ohio 2007), and recently followed and expounded upon by the Honorable S. Arthur
Spiegel in Schumacher, 47 F. Supp. 3d at 630–33 (S.D. Ohio 2014). Both decisions concluded
that the plain language of the ODPTA is not so restrictive to exclude a consumer from bringing a
civil action. Schumacher, 47 F. Supp. 3d at 632; Bower, 495 F. Supp. 2d at 844.
The Court will heed the majority opinion on this issue and hold that a “consumer” does
not have standing to commence a civil action under the ODTPA. As such, the Court will
GRANT Defendant’s Motion to Dismiss Plaintiff’s ODTPA claim on this basis.
B. Ohio Consumer Sales Practices Act
The Court will next consider whether Plaintiff adequately plead her Ohio Consumer Sales
Practices Act, Ohio Rev. Code § 1345.01, et seq. (“OCSPA”) claim. Plaintiff alleges Defendant
committed and continues to commit unfair and deceptive acts or practices in connection with a
consumer transaction by manufacturing, selling, marketing, packaging, and advertising Tito’s
Handmade Vodka to consumers with false and misleading statements concerning the nature of
the product, such as that it was “Handmade” and “Crafted in an Old Fashioned Pot Still by
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America’s Original Microdistillery.” Plaintiff claims that these alleged practices deceived her
and the proposed class, were material to their purchasing and payment decisions, and damaged
Plaintiff and the proposed class.
Under the OCSPA, “[n]o supplier shall commit an unfair or deceptive act or practice in
connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier
violates this section whether it occurs before, during, or after the transaction.” Ohio Rev. Code §
1345.02 (A). “Plaintiffs bringing OCSPA claims must allege that the defendant performed an act
or omission that was unfair or deceptive, and that the alleged act ‘impacted [the plaintiffs’]
decision to purchase the item at issue.’” In re Porsche, 880 F. Supp. 2d at 868 (citing Temple v.
Fleetwood Enters., Inc., 133 Fed. App’x 254, 265 (6th Cir. 2005)).
“Plaintiffs bringing class actions under the OCSPA are subject to the class action notice
requirement outlined in Ohio Rev. Code § 1345.09(B). Under the OCSPA, consumers may seek
relief in a class action only if the defendant was sufficiently on notice that its conduct was
deceptive or unconscionable under the statute at the time it committed the alleged acts.” Id.
(citing Ohio Rev. Code § 1345.09(B)); Marrone v. Philip Morris USA, Inc., 110 Ohio St. 3d 5,
850 N.E.2d 31, 34 (2006)). “Plaintiffs bringing claims on behalf of a class must demonstrate that
either (1) the alleged violation is an act or practice that was declared to be deceptive or
unconscionable by a rule adopted by the Attorney General before the consumer transaction on
which the action is based or (2) the alleged violation is an act or practice that was determined by
a court to violate the OCSPA and the court’s decision was available for inspection before the
transaction took place.” Id. (citing Ohio Rev. Code § 1345.09(B)). A plaintiff bringing putative
class claims under the OCSPA must therefore identify in her complaint the rule or case that
satisfies the notice requirement under Ohio Rev. Code § 1345.09(B). Id. If a plaintiff fails to do
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so, dismissal of the claim as a class action is proper, and the plaintiff may proceed in her
individual capacity alone. Id.
In this case, Defendant argues Plaintiff’s Complaint does not identify any rule adopted by
the Attorney General or determined by a court to violate the OCSPA to demonstrate the
Defendant was on notice that the conduct in question was deceptive or unconscionable. The
Court agrees. The Court was unable to locate any such language in the Complaint, and in
responding to Defendant’s Motion to Dismiss, Plaintiff did not draw the Court’s attention to or
otherwise identify any provisions in her Complaint that would demonstrate she has met the
notice requirement of Ohio Rev. Code § 1345.09(B). Rather, Plaintiff argues that the OCSPA
does not mandate a pleading requirement. The Court does not find this argument compelling,
and the authority cited above demonstrates otherwise. Plaintiff also cites four cases and/or
consent decrees and argues that these demonstrate Defendant had prior notice; however, these
cases and/or consent decrees were not cited in the Complaint.5 In re Porsche, 880 F. Supp. 2d at
870 (declining to consider cases cited in opposition to motion to dismiss as giving notice under
the OCSPA where those cases were not identified in the complaint). Thus, the Court concludes
that Plaintiff has not met the notice pleading requirement of Ohio Rev. Code § 1345.09(B). As
such, she is precluded from advancing an OCSPA claim on behalf of a class. Although
Plaintiff’s individual OCSPA claim survives, her class claim brought under the OCSPA will
therefore be dismissed.
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In any event, Defendant cites persuasive authority that a consent decree would not serve as statutory notice under
the OCSPA. See Pattie v. Coach, Inc., 29 F. Supp. 3d 1051, 1057 (N.D. Ohio 2014) (“[C]onsent decrees . . . cannot
serve as the basis of prior notice.”)
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C. Promissory Estoppel
Defendant argues that Plaintiff’s claim for promissory estoppel must be dismissed
because she cannot satisfy the “promise” element of the claim. A promissory estoppel claim
under Ohio law is comprised of four elements: “(1) a clear, unambiguous promise; (2) reliance
upon the promise by the person to whom the promise is made; (3) the reliance is reasonable and
foreseeable; and (4) the person claiming reliance is injured as a result of reliance on the
promise.” Pappas v. Ippolito, 177 Ohio App. 3d 625, 641, 895 N.E.2d 610, 622 (Ohio Ct. App.
2008) (citation omitted).
In asserting her promissory estoppel claim, Plaintiff alleges: “Defendant made clear and
unambiguous representations and promises concerning the Vodka. Defendant also concealed
material facts relating to these representations and promises so as to render them deceptive and
misleading.” (Doc. 3 at PageID 42.) Plaintiff alleges that as a result of these representations,
promises, and deceptive practices, Defendant induced Plaintiff and the proposed class to
purchase Tito’s Handmade Vodka, and Plaintiff and the proposed class reasonably relied upon
the Defendant’s alleged misrepresentations when doing so. (Id.)
Defendant argues that Plaintiff fails to plead an enforceable promise, or “an intention to
do or refrain from doing something in the future[,]” as opposed to “a misrepresentation of an
existing or past fact[.]” Pappas, 895 N.E.2d at 622. In responding to Defendant’s Motion,
Plaintiff asserts that whether something is “handmade” is a statement of existing or past fact or a
statement of intention to do or refrain from doing something in the future is a factual dispute to
be decided at summary judgment.
The Court is satisfied that the Plaintiff has, at this early stage, adequately pled facts to
support a plausible claim of promissory estoppel. The Court anticipates that the legal issue
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raised by Defendant may be expounded upon at a later stage in the court proceeding, such as
summary judgment. Accordingly, Defendant’s Motion to Dismiss Plaintiff’s promissory
estoppel claim will be DENIED.
D. Negligent Misrepresentation
Defendant moves to dismiss Plaintiff’s negligent misrepresentation claim on several
grounds. The elements of negligent misrepresentation are as follows: (1) the defendant supplied
false information; (2) in the course of his business, profession, or employment, or any other
transaction for which he has a pecuniary interest; (3) that caused pecuniary loss to the plaintiff;
(4) justifiable reliance; and (5) the defendant failed to exercise reasonable care or competence in
obtaining or communicating the information at issue. Delman v. City of Cleveland Heights, 41
Ohio St. 3d 1, 4, 534 N.E.2d 835, 838 (1989).
In her Complaint, Plaintiff alleges Defendant “negligently and falsely represented the
scope and nature of their Vodka[,]” that those misrepresentations were made in the course of
Defendant’s business and with respect to transactions for which it had a pecuniary interest, and
that Defendant supplied the false information to Plaintiff and the proposed class to influence and
guide their purchasing decisions. (Doc. 3 at PageID 43.) Plaintiff alleges that “Defendant’s [sic]
breached their duty of care by, among others, failing to accurately communicate the statements
that the Vodka was ‘Handmade’ and that the Vodka was ‘Crafted in an Old Fashioned Pot Still
by America’s Original Microsdistillery.’” (Id.) Plaintiff claims that she and the proposed class
reasonably and justifiably relied upon Defendant’s false and negligent misrepresentations and
suffered damages as a result. (Id.)
Defendant advances several arguments in support of its Motion to Dismiss Plaintiff’s
negligent misrepresentation claim. First, Defendant contends that Plaintiff’s definition of
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“handmade” must be based upon a “misunderstanding,” because Plaintiff’s definition for what
“handmade” means appears to be based upon her subjective definition and without consideration
for the remainder of the Defendant’s label.6 Defendant also argues the Court should find that
Plaintiff’s claim fails the plausibility standard. Second, Defendant claims that the Complaint
fails to adequately plead the elements of negligent misrepresentation. Specifically, Defendant
relies upon Gutter v. Down Jones, Inc., 22 Ohio St. 3d 286, 288–89, 490 N.E.2d 898, 900–01
(1986) for the proposition that communicating information to a general, undifferentiated
audience or to the general public cannot form the basis of a negligent misrepresentation claim.
Third, Defendant contends that the Complaint does not allege any “business purpose” that
Plaintiff had in buying the Tito’s Handmade Vodka or in relying upon the label content, and she
fails to show a relationship between herself and Defendant other than being a member of the
general public. Fourth, Defendant argues that Plaintiff does not allege any personal injury or any
damages beyond economic loss based upon the perceived value of the Tito’s Handmade Vodka
in the retail marketplace. Plaintiff responds that she has adequately pled all elements of her
claim, but she does not otherwise address the underlying substantive arguments raised by the
Defendant.
The Court finds Defendant’s second argument compelling and dispositive. The Ohio
Supreme Court has explained that liability for negligent misrepresentation is limited to “the
person or one of a limited group of persons for whose benefit and guidance [the defendant]
intends to supply the information or knows that the recipient intends to supply it.” Gutter, 490
N.E.2d at 900. “The determination of whether the plaintiff is a member of a limited class of
6
By way of separate filing, Defendant asks the Court to take judicial notice of the “Tito’s Handmade Vodka” label.
(Doc. 7.)
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foreseeable persons is dependent upon the factual circumstances of the representation made and
the relationship between the parties.” National Mulch and Seed, Inc. v. Rexius Forest ByProducts Inc., No. 2:02-cv-1288, 2007 WL 894833, at * 10 (S.D. Ohio Mar. 22, 2007). “[A]
person may not maintain an action for negligent misrepresentation when the alleged
misrepresentation is intended to reach an extensive, unresolved class of persons.” Id.
In her Complaint, Plaintiff alleges her action is brought on behalf of herself and all
persons similarly residing in Ohio who purchased Defendant’s Tito’s Handmade Vodka. (Doc. 3
at PageID 37.) She asserts that the Tito’s Handmade Vodka was manufactured or produced at
the rate of 500 cases of vodka an hour and that the Tito’s Handmade Vodka bottles are labeled in
the same manner. (Id. at PageID 35, 43.) The facts as pled demonstrate that Plaintiff is not part
of a limited class, but rather, an “extensive, unresolved class of persons.” National Mulch, 2007
WL 894833, at *10. Because the Defendant’s alleged misrepresentation is intended to reach an
extensive, unresolved, class of people, the Court construes the claim as being made to the publicat-large. Accordingly, Defendant’s Motion to Dismiss Plaintiff’s negligent misrepresentation
claim will be GRANTED.
E. Fraud
Defendant asserts that Plaintiff’s claim of fraud must fail because she has alleged her
only harm is for economic loss. To maintain a claim of fraud under Ohio law, the plaintiff must
plead: (1) a representation or, where there is a duty to disclose, concealment of a fact, (2) which
is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such
utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,
(4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the
representation or concealment, and (6) a resulting injury proximately caused by the reliance.
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Delahunt v. Cytodyne Tech., 241 F. Supp. 2d 827, 834 (S.D. Ohio 2003). Relying upon
Delahunt, Defendant argues that Plaintiff has failed to plead an injury proximately caused by the
alleged reliance upon the misrepresentation in the label, a requirement under Ohio law.
In Delahunt, the plaintiff similarly attempted to plead a consumer fraud claim on behalf
of a proposed class that suffered no physical or psychological injuries as the result of their use of
the product at issue; rather, the proposed class suffered only financial harm as a result of having
purchased a product that was not accurately described at the time of sale. Id. The court held: “to
allow such claims to proceed would be to eradicate the viability of the tort system by
overcompensating buyers and creating inefficient incentives for manufacturers.” Id. The court
was not persuaded by the plaintiff’s argument that the class members suffered harm for an action
for fraud because they were induced to take an action they would not have taken but for the
defendants’ alleged misrepresentations, and they allegedly received something less valuable that
what was bargained. Rather, the court held “an action for fraud . . . requires more” under Ohio
law. Id. The court found the “absence of an injury above and beyond the reliance on the
misrepresentation itself that is fatal to the fraud claims asserted on behalf of the class.” Id.
Plaintiff argues that Delahunt is not applicable, because the Plaintiff is pleading fraud in
the inducement. The Court does not find Plaintiff’s attempt to distinguish Delahunt meaningful.
In fact, the Delahunt court rejected that very argument. Finding Delahunt controlling, and
because Plaintiff has not alleged an injury proximately caused by the reliance, her claim for fraud
cannot stand. Accordingly, Defendant’s Motion to Dismiss this claim will be GRANTED.
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F. Derivative Claims
Defendant argues that Plaintiff’s derivative claims for injunctive relief and declaratory
judgment should fail if Plaintiff’s other claims fail. Because some claims survive Defendant’s
Motion to Dismiss, this argument is not persuasive.
G. Leave to Amend
Finally, in response to Defendant’s Motion to Dismiss, Plaintiff asks that if the Court find
any of Defendant’s arguments persuasive, it be granted leave to amend the Complaint to cure
such perceived deficiencies. Plaintiff has not proffered a proposed amended complaint or moved
the Court to amend under Fed. Rule Civ. P. 15(a). Even if the Court were to construe Plaintiff’s
statement in passing that leave should be granted, Plaintiff has failed to demonstrate why the
Court should grant such a motion. Begala v. PNC Bank, Ohio Nat. Ass’n, 214 F.3d 776, 784 (6th
Cir. 2000) (finding district court did not err or abuse its discretion in denying right to amend and
that plaintiffs’ stating, almost as an aside, to the district court in a memorandum in opposition
that it should be given an opportunity to clarify their allegations was not a motion to amend);
C&L Ward Bros., Co. v. Outsource Solutions, Inc., 547 Fed. App’x 741, 745 (6th Cir. 2013) (“A
properly filed motion for leave complete with an indication of the grounds upon which the
amendment is sought and the general contents of the amendment is preferable.”) The Court
declines the invitation to grant such leave in this case.
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IV.
CONCLUSION
For the reasons addressed herein, Defendant’s Motion to Dismiss Plaintiff’s Complaint is
GRANTED IN PART AND DENIED IN PART. Defendant’s Motion is GRANTED with
respect to Plaintiff’s ODTPA claim, OCSPA class claim, and fraud claim. Plaintiff’s OCSPA
claim brought in her individual capacity will survive. Defendant’s Motion is DENIED with
respect to Plaintiff’s promissory estoppel claim and request for declaratory judgment and
injunctive relief.
IT IS SO ORDERED.
S/Susan J. Dlott____________________
Judge Susan J. Dlott
United States District Court
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