Kenny et al v. LC Holdings, LLC et al
ORDER granting 4 Unopposed Motion to Realign Defendant Community Insurance and granting 17 Partial Motion to Dismiss Counts One and Seven of the Amended Complaint. Signed by Judge Timothy S. Black on 12/18/18. (sct)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
STEPHEN KENNY, et al.,
LC HOLDINGS, LLC, et al.,
Case No. 1:18-cv-472
Judge Timothy S. Black
ORDER GRANTING DEFENDANT CORNING INCORPORATED’S
PARTIAL MOTION TO DISMISS (Doc. 17)
This civil action is before the Court upon Defendant Corning Incorporated
(“Corning” or “Defendant”)’s Partial Motion to Dismiss Counts One and Seven of
Plaintiffs’ Amended Complaint (Doc. 17) and the parties’ responsive memoranda
(Docs. 23 and 28). Also before the Court is Defendant Corning’s unopposed motion to
re-align Defendant Community Insurance Co. d/b/a Anthem Blue Cross and Blue Shield
(“Community Insurance”) as a party plaintiff in this action. (Doc. 4).
FACTS AS ALLEGED BY THE PLAINTIFF
For purposes of this motion to dismiss, the Court must: (1) view the complaint in
the light most favorable to Plaintiffs; and (2) take all well-pleaded factual allegations as
true. Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).
This civil action arises out of allegedly defective PYREX test tubes (the
“Product”) made by Defendant Corning. (Doc. 15 at ¶¶ 12, 16). Plaintiff Stephen Kenny
purchased the Product, “6 Piece PYREX Glass Test Tube Set with Caps and Rack,” on
Defendant Amazon.com, Inc.’s website (“Amazon”). The test tube set was sold by
Defendant LC Holdings, LLC d/b/a Karter Scientific Labware Manufacturing (“LC
Holdings”) and/or SEOH Corporation (“SEOH”). (Id. at ¶ 15). While using the Product,
it shattered in Plaintiff Stephen Kenny’s hand and caused serious and permanent injuries.
(Id. at ¶¶ 12, 17). Plaintiffs claim that Defendants SEOH, LC Holdings, Corning,
Amazon, and John Does 1 through 10 each participated, individually and/or in concert, in
the development, design, manufacturing, promotion, advertising, packaging, marketing,
testing, assembling, distribution, and/or sale of the Product and placed them into the
stream of commerce for use by Mr. Kenny. (Id. at ¶ 18).
Plaintiffs’ claims are brought under the Ohio Products Liability Act and statutory
breach of warranty claims. Defendant Corning’s motion seeks to dismiss Counts One
and Seven of Plaintiffs’ Amended Complaint. Count One, brought under O.R.C.
§ 1302.26, claims that Defendant Corning breached an express warranty to Plaintiffs that
that the Product was manufactured and/or designed to acceptable and requisite standards,
and was safe for its intended use. (Id. at ¶¶ 25–30). Count Seven, brought under O.R.C.
§ 2307.77, claims that the Product failed to conform to a representation made by
Defendant Corning. (Id. at ¶¶ 69–75).
MOTION TO REALIGN
As an initial matter, Defendant Corning moves to re-align Defendant Community
Insurance as a party plaintiff in this action. (Doc. 4). The motion is unopposed.
Plaintiffs’ sole claim against Community Insurance is for declaratory judgment that
Community Insurance be required to assert any subrogation rights or otherwise be barred
from doing so later. (Doc. 15 at ¶¶ 81–85). Corning contends that because Community
Insurance is not alleged to have engaged in any of the conduct giving rise to this action,
and its only interest in the action relates to a right of subrogation against the other
Defendants, Community Insurance’s interests are aligned with Plaintiffs. Therefore,
Corning contends that Community Insurance should be realigned as party plaintiff in this
It is a court’s “responsibility to ensure that the parties are properly aligned
according to their interests in the litigation.” Cleveland Housing Renewal Project v.
Deutsche Bank Trust Co., 621 F.3d 554, 559 (6th Cir. 2010). Parties must “be aligned in
accordance with the primary dispute in the controversy, even where a different, legitimate
dispute between the parties supports the original alignment.” United States Fidelity and
Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085, 1089 (6th Cir. 1992).
Here, the primary dispute in controversy is whether Defendants SEOH, LC
Holdings, Corning, and Amazon are responsible for Plaintiff Stephen Kenny’s injuries.
Community Insurance’s only interest in the litigation relates to its subrogation rights.
“[S]ubrogation rights allow the subrogee to stand in the shoes of [the subrogor] and assert
that person’s rights against the defendant.” Roman v. Barlow, 2012 WL 6594961, at *3
(S.D. Ohio Dec. 18, 2012) (internal quotation marks omitted). In Roman, the court found
that a subrogated insurer should be realigned as a plaintiff when its right to a recovery
derives from the plaintiff it insures. See id. at *2–3. The Court agrees.
Here, Community Insurance’s interests align with Plaintiffs. Accordingly,
Corning’s unopposed motion to realign Community Insurance (Doc. 4) is GRANTED,
and Community Insurance shall be realigned as a plaintiff in this case.
PARTIAL MOTION TO DISMISS
A. Standard of Review
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the
sufficiency of the complaint and permits dismissal of a complaint for “failure to state a
claim upon which relief can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)
requires that the complaint contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555).
In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a
legal conclusion couched as a factual allegation[.]’” Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265 (1986)). Further, “[f]actual allegations must be enough
to raise a right to relief above the speculative level[.]” Id.
Accordingly, “[t]o survive a 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.’” Iqbal, 556 U.S. at 678. A claim is plausible where a “plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief,’” and the case shall be dismissed. Id. (citing Fed. R. Civ. P.
1. Count One: Breach of Express Warranties Under O.R.C. § 1302.26
In Count One, Plaintiffs claim that Corning breached an express warranty
regarding the Product. To state a claim for breach of express warranty a plaintiff must
identify an “affirmation of fact or promise made by the seller to the buyer which relates
to the goods and becomes a part of the basis of the bargain . . . .” O.R.C § 1302.26(A)(1).
Under Ohio law, a positive statement of the quality of goods is an express
warranty if the natural tendency of the statement is to induce a buyer to purchase the
product and the buyer purchased the product in reliance on the statement. Risner v. Regal
Marine Industries, Inc., 8 F.Supp.3d 959, 992 (S.D. Ohio 2014) (citing Schwartz v.
Gross, 93 Ohio App. 445, 114 N.E.2d 103, syll. ¶ 1 (9 Dist.1952)). Courts in this district
have dismissed claims for breach of express warranty where a plaintiff “cannot point to
any  specific language of any promotion or advertisement, much less one that created an
express warranty obligation on the part of [defendant].” Collegy v. P&G, 2016 WL
5791658, at *13 (S.D. Ohio Oct. 4, 2016) (citing Davisson v. Ford Motor Co., 2014 WL
4377792, at *8 (S.D. Ohio Sept. 3, 2014).
Corning argues that Count One must be dismissed because Corning made no
specific representation to Plaintiffs, and Plaintiffs did not rely on any express
representation. Upon a review of the Amended Complaint, the Court agrees.
Plaintiffs argue that the Amended Complaint has sufficiently plead a breach of
express warranty claim because the Product was advertised as PYREX, was placed into
the stream of commerce, and did not meet industry standards. (Doc. 23 at 3–4).
Plaintiffs’ opposition brief provides no case law to support their contention that these
allegations are sufficient to survive a motion to dismiss. The Amended Complaint fails
to identify any “specific language of any promotion or advertisement” regarding the
Product, let alone any express warranty made by Corning regarding the Product. See
Collegy, 2016 WL 5791658, at * 13.
Indeed, Plaintiffs appear to concede that they have not identified any
representation made by Corning to Plaintiffs regarding the quality of the Product.
Nevertheless, Plaintiffs oppose the motion to dismiss by arguing that Count One should
not be dismissed because discovery may uncover representations made by Corning to the
intermediate seller or prospective sellers. (Doc. 23 at 3–4). Plaintiffs state that they
require “discovery to determine exactly what warranties were made regarding the
product.” (Id. at 4). Because Plaintiffs admit they need discovery to identify any
warranties made by Corning, there is no way they can establish that they relied on any
warranties in purchasing the Product.
Accordingly, Count 1 against Corning is dismissed because Plaintiffs have failed
to identify any warranties made by Corning and cannot establish that they relied on any
representations made by Corning in purchasing the Product.
2. Count Seven: Failure to Conform
In Count Seven, Plaintiffs claim that the Product failed to conform to a
representation made by Corning. Under Ohio law, “[a] product is defective if it did not
conform, when it left the control of its manufacturer, to a representation made by that
manufacturer.” O.R.C. § 2307.77. Under the Ohio Product Liability Act, a
“‘[r]epresentation’ means an express representation of a material fact concerning the
character, quality, or safety of a product.” O.R.C. § 2307.71(A)(14). Where a plaintiff
fails to show an express representation, a claim for failure to conform fails. See Paugh v.
R.J. Reynolds Tobacco Co., 834 F. Supp. 228, 232 (N.D. Ohio 1993) (where plaintiff did
“not allege any specific express representation made by” defendants, nor “identifie[d] the
nature, extent, and language of these representations, nor allege[d] that [he] relied upon
any such warranties,” his breach of warranty claim failed); Grange Mut. Cas. Co. v.
Optimus Enter., Inc., 2016 WL 3078956, at *5 (N.D. Ohio June 1, 2016) (finding that
because “Plaintiff does not identify any representations made by the manufacturer [and]
does not identify the manner in which the product fails to conform to the
representations,” plaintiff failed to state a plausible claim for relief).
Plaintiffs argue that they have alleged that the Product was advertised as PYREX,
which they contend is an express representation of a material fact and that the Product
“did not conform with industry standard.” (Doc. 23 at 4). However, as discussed in
dismissing Count One, Plaintiffs failed to identify any specific language that qualifies as
an express warranty and failed to allege any reliance on representations made by Corning.
Moreover, Plaintiffs do not allege how the Product failed to conform with the PYREX
Accordingly, Count Seven against Corning is dismissed because Plaintiffs have
failed to identify any express representation or specific ways that the Product failed to
conform with any such representation.
For the foregoing reasons,
1) Defendant Corning’s unopposed motion to realign Defendant Community
Insurance (Doc. 4) is GRANTED. Defendant Community Insurance
is REALIGNED as a Plaintiff in this case. The Clerk is DIRECTED to place
Community Insurance Co. d/b/a Anthem Blue Cross and Blue Shield on the
Court's docket as a Plaintiff.
2) Defendant Corning’s Partial Motion to Dismiss Counts One and Seven of the
Amended Complaint (Doc. 17) is GRANTED. Count One and Seven are only
dismissed as to Defendant Corning.
IT IS SO ORDERED.
s/ Timothy S. Black
Timothy S. Black
United States District Judge
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