Johnson et al v. Jos. A. Bank Clothiers, Inc.

Filing 51

OPINION AND ORDER: Defendants Motion, ECF 47 , is DENIED. Because plaintiffs failed to address defendants objections and relevancy in the context of the specific discovery requests at issue, plaintiffs Motion to Compel, ECF 48 , is DENIED without prejudice to renewal. Signed by Magistrate Judge Norah McCann King on 03/30/2015. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MATTHEW B. JOHNSON, et al.,
Plaintiffs,
vs.

Civil Action 2:13-cv-756
Magistrate Judge King

JOS. A. BANK CLOTHIERS, INC.,
Defendant.
OPINION AND ORDER
Plaintiffs instituted this action on behalf of themselves and a
putative class of Ohio residents, alleging multiple violations of the
Ohio Consumer Sales Practices Act (“OCSPA”), O.R.C. § 1345.01 et seq.,
and rules promulgated thereunder, in connection with the marketing
practices of defendant Jos. A. Bank Clothiers, Inc., based on
allegedly false advertised regular prices.

Amended Complaint, ECF 32.

On August 19, 2014, the Court granted defendant’s motion to dismiss
the class allegations, reasoning that plaintiffs had failed to allege
actual damages, a prerequisite to a class action under the OCSPA.
Opinion and Order, ECF 40.
This matter is now before the Court for consideration of
Defendant’s Motion for a Protective Order (“Defendant’s Motion”), ECF
47.

Defendant seeks “an Order striking the First Set of

Interrogatories and Requests for Production served by Plaintiffs” or,
in the alternative, a protective order “to protect Jos. A. Bank from
the annoyance and undue burden that Plaintiffs’ discovery requests
impose.”

Id. at PAGEID 930-32.

Plaintiffs filed a response to

Defendant’s Motion and their own motion to compel response to the

contested interrogatories and document requests.
ECF 48.

Motion to Compel,

Defendant filed a response to plaintiffs’ Motion to Compel,

Defendant’s Response in Opposition to Plaintiffs’ Motion to Compel
(“Defendant’s Response”), ECF 49, and plaintiff filed a reply,
Plaintiffs’ Reply Brief in Support of their Motion to Compel, ECF 50.
This matter is now ripe for consideration.
I.

Background
The Court has previously set forth the allegations in the Amended

Complaint:
Defendant Jos A. Bank Clothiers, Inc., is a Delaware
corporation with its principal place of business in
Maryland.
Amended Complaint, ¶ 10.
Defendant operates a
national
chain
of
retail
clothing
stores
and
has
approximately twenty-five stores throughout Ohio, including
four stores in Franklin County, Ohio.
Id. at ¶ 11.
Defendant frequently advertises sales via “television
commercials, targeted mailings, Facebook, email, targeted
telephone campaigns and in-store advertising” in which the
purchaser of one suit at the “regular” price receives a
specified number of additional suits for free. See id. at
¶¶ 20-21, 41, 46.
The
named
plaintiffs,
Matthew
Johnson
and
Charles
Patterson, are Ohio residents. Id. at ¶ 8.
In 2013, each
purchased a suit from defendant at a store operated by
defendant in Ohio. Id. at ¶¶ 13-14. Plaintiffs purchased
their suits at “the purported ‘regular price’ of $795” and,
based on the advertised sale at the time, each was promised
“three ‘free’ suits.” Id. at ¶¶ 13-15. Plaintiffs do not
allege that they did not receive four suits in exchange for
their payment of $795, nor do they allege that the four
suits actually received by them were worth, collectively,
less than $795 or that they could have obtained four suits
of
similar
quality
elsewhere
for
less
than
$795.
Plaintiffs do allege, however, that the “regular price” of
each purchased suit was “vastly inflated above the true
regular market price regularly paid by consumers for Jos.
A. Bank suits.”
Id. at ¶ 16.
Plaintiffs further allege
that the “regular price” of the suits “was grossly inflated
by Jos. A. Bank in order to pass the costs of the ‘free
suits’ on to the Plaintiffs.” Id. at ¶ 17.
According

to

plaintiffs,

defendant’s

2

suits

are

“almost

never” sold at the “regular price;” plaintiffs believe that
fewer than one percent of defendant’s suits sold in Ohio
are sold at the “regular price.”
Id. at ¶¶ 23-25, 27.
Because defendant’s suits “are on ‘sale’ almost 100% of the
time,” defendant’s advertised “regular prices” “do not
reflect the true price regularly paid by consumers for
their suits.” Id. at ¶ 22-23; see also id. at ¶ 38 (“[A]s
soon as one sale ends, another substantially similar sale
begins.”).
In addition, plaintiffs allege that, because
Jos. A. Bank suits are almost never sold at the regular
price, “the purported ‘regular price’ is by definition not
‘regular,’ and is, instead, illusory.”
Id. at ¶ 25; see
also id. at ¶ 36 (“the ‘sales price’ of Jos. A. Bank’s
suits. . . has become the true ‘regular price’ due to the
fact that the sales are never ending.”).
Opinion and Order, ECF 40, pp. 2-3.
II.

Standard
Plaintiff’s motion to compel response to interrogatories and

requests for production of documents is governed by Rule 37 of the
Federal Rules of Civil Procedure.

Rule 37 authorizes a motion to

compel discovery when a party fails to provide a proper response to an
interrogatory under Rule 33 or a proper response to a request for
production of documents under Rule 34.

Fed. R. Civ. P. 37(a)(3)(B).

“The proponent of a motion to compel discovery bears the initial
burden of proving that the information sought is relevant.”

Martin v.

Select Portfolio Serving Holding Corp., No. 1:05–cv–273, 2006 U.S.
Dist. LEXIS 68779, at *2 (S.D. Ohio Sept. 25, 2006) (citing Alexander
v. Fed. Bureau of Investigation, 186 F.R.D. 154, 159 (D.D.C. 1999)).
Rule 26(b) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s
claim or defense.”

Fed. R. Civ. P. 26(b)(1).

purposes is extremely broad.
F.3d 389, 402 (6th Cir. 1998).

Relevance for discovery

Lewis v. ACB Bus. Servs., Inc., 135
“The scope of examination permitted

3

under Rule 26(b) is broader than that permitted at trial.

The test is

whether the line of interrogation is reasonably calculated to lead to
the discovery of admissible evidence.”

Mellon v. Cooper-Jarrett,

Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).

However, “district courts

have discretion to limit the scope of discovery where the information
sought is overly broad or would prove unduly burdensome to produce.”
Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305
(6th Cir. 2007) (citing Fed. R. Civ. P. 26(b)(2)).

See also Lewis,

135 F.3d at 402 (determining the proper scope of discovery falls
within the broad discretion of the trial court).

In determining the

proper scope of discovery, a district court balances a party’s “right
to discovery with the need to prevent ‘fishing expeditions.’”

Conti

v. Am. Axle & Mfg. Inc., 326 F. App’x 900, 907 (6th Cir. 2009)
(quoting Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998)).
Defendant’s motion for a protective order is governed by Rule
26(c), which provides that “[t]he court may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.”

Fed. R. Civ. P. 26(c)(1).

“The burden of establishing good cause for a protective order rests
with the movant.”

Nix v. Sword, 11 F. App’x 498, 500 (6th Cir. 2001)

(citing Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th
Cir. 1973)).

“To show good cause, a movant for a protective order

must articulate specific facts showing ‘clearly defined and serious
injury’ resulting from the discovery sought and cannot rely on mere
conclusory statements.”

Id. (quoting Avirgan v. Hull, 118 F.R.D. 252,

254 (D.D.C. 1987) (internal quotation marks omitted)).

4

Finally, the

grant or denial of a protective order falls within “‘the broad
discretion of the district court in managing the case.’”

Conti, 326

F. App’x at 903-04 (quoting Lewelling v. Farmers Ins. of Columbus,
Inc., 879 F.2d 212, 218 (6th Cir. 1989)).
A party moving to compel discovery must also certify that it “has
in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain
it without court action.”
Ohio Civ. R. 37.2.

Fed. R. Civ. P. 37(a)(1).

See also S.D.

A party seeking a protective order must certify

that it “has in good faith conferred or attempted to confer with the
other affected parties in an effort to resolve the dispute without
court action.”

Fed. R. Civ. P. 26(c)(1).

These prerequisites have

been met here.
III. Discussion
The motions currently before the Court are reciprocal;
plaintiffs’ Motion to Compel seeks to compel response to the
interrogatories and requests for production from which Defendant’s
Motion seeks protection.

Defendant argues in its motion that

plaintiffs’ discovery requests “amount to discovery on a class-wide
basis, are far too overbroad for the individual claims of the two
Plaintiffs at issue, impose a tremendous burden on Jos. A. Bank, and
serve only as harassment.”

Defendant’s Motion, PAGEID 931.

According

to defendant, plaintiffs’ discovery requests seek “thousands upon
thousands of transactions involving people all over the state of Ohio
over the course of two years.”

Id. at PAGEID 938.

Defendant

characterizes plaintiffs’ discovery requests as “grossly

5

disproportional to the $400.00 at issue in this case” because they
“seek nothing short of an audit of Jos. A. Bank’s business in the
entire state of Ohio.”

Id. at PAGEID 943.

Defendant presents the

“more salient points” of its objections to plaintiffs’ discovery
requests in a table that spans four pages.

Id. at PAGEID 940-43.

Plaintiffs argue in their motion that defendant’s objections to
the discovery requests “effectively constituted a complete refusal to
engage in the discovery process.”

Motion to Compel, p. 1.

Plaintiffs

characterize their discovery requests as relevant and “necessary to
prove what the true ‘regular price,’ as that term is statutorily
defined, of a JAB suit was over the relevant statutory period – a
strict necessity to prove Plaintiffs’ case.”

Id.

Plaintiffs dispute

defendant’s contention that only $400 is at issue in this case and
they argue that the discovery sought is relevant to their claims for
declaratory and injunctive relief.

Id. at p. 2.

According to

plaintiffs, “all sales to the Ohio public by JAB” over the previous
two years are relevant and necessary to determine the price at which
defendant’s suits “are openly and actively sold . . . to the public on
a continuing basis for a substantial period of time.”

Id. at p. 3.

Defendant’s Response argues that plaintiffs “lack[] Article III
standing to seek injunctive relief” because they do “not claim [to be]
under a threat of suffering future injury.”
2-3.

Defendant’s Response, pp.

Defendant should not be required to respond to plaintiffs’

discovery requests, defendant argues, because “the cost of responding
outweighs the need for the discovery sought” and “responding to
discovery is not necessary to resolution of the action.”

Id.

The Amended Complaint seeks declaratory, injunctive, and monetary

6

relief for alleged violations of the OCSPA.

Amended Complaint, p. 17.

Defendant challenges plaintiffs’ standing to pursue injunctive relief
and argues that a protective order is necessary because the discovery
sought is disproportionate to the $400 statutory maximum award
available to plaintiffs.

Defendant’s arguments are not well taken.

The OCSPA prohibits a supplier from committing an unfair or
deceptive act or practice in connection with a consumer transaction.
O.R.C. § 1345.02(A).

The OCSPA also authorizes the Ohio Attorney

General to promulgate “substantive rules defining . . . acts or
practices that violate” the OCSPA.

O.R.C. § 1345.05(B)(2).

Where a

consumer establishes a deceptive act by a supplier in violation of
such a rule,
the consumer may rescind the transaction or recover, but
not in a class action, three times the amount of the
consumer’s actual economic damages or two hundred dollars,
whichever is greater, plus an amount not exceeding five
thousand dollars in noneconomic damages or recover damages
or other appropriate relief in a class action under Civil
Rule 23, as amended.
O.R.C. § 1345.09(B).
The Amended Complaint asserts a claim under a rule promulgated
pursuant to the OCSPA, O.A.C. § 109:4-3-04, which regulates suppliers’
use of the word “free” in advertisements.

That rule provides, in

pertinent part, as follows:
It shall be a deceptive act or practice in connection with
a consumer transaction for a supplier to use the word
“free” or other words of similar import or meaning, except
in conformity with this rule. It is the express intent of
this rule to prohibit the practice of advertising or
offering goods or services as “free” when in fact the cost
of the “free” offer is passed on to the consumer by raising
the regular (base) price of the goods or services that must
be purchased in connection with the “free” offer.
In the
absence of such a base price a “free” offer is in reality a

7

single price for the combination of goods or services
offered, and the fiction that any portion of the offer is
“free” is inherently deceptive.
O.A.C. § 109:4-3-04(A).

Where, as is alleged here, there is

a consumer transaction in which goods or services are
offered as “free” upon the purchase of other goods or
services the supplier must insure:
(1) That the unit regular price charged for the other goods
or services is not increased, or if there is no unit
regular price, the unit price charged for the other goods
or services is continued for a reasonable period of time[.]
O.A.C. § 109:4-3-04(D)(1).

In addition,

[o]nly the supplier's regular price for the goods or
services to be purchased may be used as the basis for a
“free” offer.
It is, therefore, a deceptive act or
practice for a supplier to offer “free” goods or services
based on a price which exceeds the supplier's regular price
for other goods or services required to be purchased.
O.A.C. § 109:4-3-04(E).

“Regular price” is defined as

the price at which the goods or services are openly and
actively sold by a supplier to the public on a continuing
basis for a substantial period of time. A price is not a
regular price if:
(a) It is not the supplier’s actual selling price;
(b) It is a price which has not been used in the recent
past; or
(c) It is a price which has been used only for a short
period of time.
O.A.C. § 109:4-3-04(F)(1).

Moreover,

[c]ontinuous or repeated "free" offers are deceptive acts
or practices since the supplier's regular price for goods
to be purchased by consumers in order to avail themselves
of the "free" goods will, by lapse of time, become the
regular price for the "free" goods or services together
with the other goods or services required to be purchased.
Under such circumstances, therefore, an offer of "free"
goods or services is merely illusory and deceptive.

8

O.A.C. § 109:4-3-04(H).
The Amended Complaint specifically alleges that defendant
advertises sales of suits in which the purchaser of one suit at the
“regular” price of $795 receives three additional suits for free.
Amended Complaint, ¶¶ 20-21, 41, 46.

See

Plaintiffs also allege, however,

that defendant’s suits are “almost never” sold at the “regular price.”
Id. at ¶¶ 23-25, 27.

Thus, plaintiffs contend, defendant’s advertised

“regular prices” “do not reflect the true price regularly paid by
consumers for their suits.”

Id. at ¶ 22.

Because suits are almost

never sold at the “purported ‘regular price,’” that price is illusory
and it is the “sale price” that is the true regular price.

Id. at ¶¶

25, 36.
The Amended Complaint seeks monetary relief, a declaration that
“Jos. A. Bank’s sales and marketing practices [are] wrongful, unfair,
unconscionable and in violation of Ohio law,” and an injunction
prohibiting “Jos. A. Bank from further use of inflated ‘regular price’
descriptions and order compliance with R.C. § 1345.02 and the
associated Administrative Rules.”

Amended Complaint, p. 17.

Defendant argues that “this case could be resolved for $400,”
Defendant’s Response, p. 1, because plaintiffs’ monetary damages are
limited to $400 under O.R.C. § 1345.09(B).

However, O.R.C. §

1345.09(D) provides that “[a]ny consumer may seek a declaratory
judgment, an injunction, or other appropriate relief against an act or
practice that violates [the OCSPA].”

The remedy of injunctive relief

is statutory and does not require, as defendant argues, see
Defendant’s Response, p. 4 (arguing that Illinois and New Jersey law

9

requires the plaintiff to prove that he will likely be harmed by the
defendant in the future), that plaintiffs be under a threat of future
injury.

See Midland Funding LLC v. Brent, No. 3:08-CV-1434, 2009 WL

3086560, at *2 (N.D. Ohio Sept. 23, 2009).

Accordingly, if plaintiffs

prove the OCSPA violation alleged by them, the Court must then
determine whether injunctive relief is an appropriate remedy.

See

Cartwirght v. Beverly Hills Floors, Inc., No. 11MA109, 2013 WL
2423185, at *7-8 (Ohio Ct. App. May 30, 2013).

In that regard, courts

routinely issue injunctions to enjoin deceptive conduct that violates
the OCSPA:
Ohio Rev.Code Ann. § 1345.09(D) provides that “[a]ny
consumer may seek a declaratory judgment, an injunction, or
other appropriate relief against an act or practice that
violates [the OCSPA].”
The Ohio courts have interpreted
the statute as follows: “Since the remedy of injunctive
relief is statutory, it may be granted upon a showing the
[O]CSPA has been violated, without regard to equitable
principles that must ordinarily be demonstrated when a
plaintiff seeks an injunction, such as irreparable injury
or the absence of an adequate remedy at law.” See Oh.
Consumer L. § 2:132 (2009), and cases cited therein. In
cases brought by consumers under the OCSPA, “[Ohio] courts
have issued broad injunctions, usually enjoining the
suppliers from engaging in the acts or practices the court
has determined violate the [O]CSPA.” Id.
Midland Funding LLC, 2009 WL 3086560 at *2.

Defendant’s argument that

this action is worth $400 and that plaintiffs should not be permitted
to pursue injunctive relief is therefore without merit.
Defendant next argues that plaintiffs’ discovery requests are
overbroad because they seek records “for thousands upon thousands of
transactions involving people all over the state of Ohio over the
course of two years.”

Defendant’s Motion, PAGEID 938.

Defendant’s

conclusory statement is not sufficient to justify the protective order

10

sought; defendant has simply failed to articulate specific facts
showing that a clearly defined and serious injury will result from the
requested discovery.

See Nix, 11 F. App’x at 500.

Defendant’s objections were based primarily on the theory that
the discovery sought is disproportionate to the monetary relief
available to plaintiffs.

As discussed supra, however, this argument

fails to take into consideration plaintiffs’ claim for injunctive
relief under O.R.C. § 1345.09(D).

Defendant also argues that the

discovery sought amounts to class-wide discovery and is unjustifiably
overbroad in connection with the individual claims of the two named
plaintiffs.

Defendant’s Motion, PAGEID 931.

Defendant specifically

argues that the discovery requests are overbroad because they seek,
inter alia, information and documents relating to sales, advertising,
and pricing for the line of suits purchased by plaintiffs for all of
defendant’s stores in Ohio over a two year time period.
As discussed supra, plaintiffs allege that defendant violated the
OCSPA by manipulating the “regular price” of suits that are sold in
connection with an offer of free suits.

To prove their claim,

plaintiffs will have to establish the “regular price” of the suits
that they purchased from defendant.

Plaintiffs argue that their

discovery requests are relevant to this determination.

Plaintiffs

have not, however, specifically addressed the individual objections
raised by defendant to each interrogatory and request for production,
nor have they attempted to establish that every request seeks relevant
information.

Instead, plaintiffs argue that “all sales to the Ohio

public” are relevant to determine the “price at which the goods or
services are openly and actively sold by a supplier to the public,”

11

and that two years of sales data is “a substantial period of time.”
Motion to Compel, p. 3.

Defendant disagrees that sales from the

entire state are relevant and argues that providing two years of data
would be unduly burdensome.

Defendant’s Motion, PAGEID 940-43.

Neither plaintiffs nor defendant has offered any support for their
positions.
The term “regular price” is defined broadly, and plaintiffs are
entitled to discovery to establish the “regular price” of defendant’s
suits.

It is not entirely clear, however, what portions of

plaintiffs’ discovery requests are relevant to this determination
because plaintiffs have failed to address relevancy in the context of
the specific discovery requests.

It is clear that, for the relevant

line of suits, plaintiffs will be entitled to discover, for example,
information related to the number of suits sold and the sale prices,
both for suits that were on sale and for suits sold at regular price,
as well as information related to sales promotions, including the
dates, locations, and terms of the promotions.

It is not clear,

however, what constitutes “a substantial period of time” or that
information from all of defendant’s stores is relevant to the
determination of defendant’s “regular price.”

If defendant uses

uniform pricing and promotional strategies throughout Ohio, then all
sales in Ohio may very well be relevant to the issues presented in
this action.

On the other hand, if defendant’s pricing and promotions

vary from store to store or in different regions of the state, then
the “regular price” of a suit will differ in differing locations.
is also unclear how information related to defendant’s planning of

12

It

promotions, defendant’s strategy behind its promotions, defendant’s
cost of goods sold, and defendant’s calculation of its pricing is
relevant to a determination of the “regular price” of defendant’s
suits.
Wherefore, based on the foregoing, Defendant’s Motion, ECF 47, is
DENIED.

Because plaintiffs failed to address defendant’s objections

and relevancy in the context of the specific discovery requests at
issue, plaintiff’s Motion to Compel, ECF 48, is DENIED without
prejudice to renewal.
Considering the foregoing, the posture of the case, and
plaintiff’s demonstrated willingness to discuss modifications to their
discovery requests, the Court DIRECTS the parties to discuss
plaintiffs’ discovery requests with a view toward narrowing the
requests, consistent with the foregoing.

March 30, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

13