Parillo et al v. New Werner Co. et a.
Filing
39
ENTRY AND ORDER GRANTING, IN PART, DEFENDANTS' PARTIAL MOTION TO DISMISS 33 AND DISMISSING COUNTS 1, 2, 6, AND 7 OF THE THIRD AMENDED COMPLAINT 31 . Accordingly, Counts 1, 2, 6 and 7 of the Third Amended Complaint 31 are dismissed. Signed by Judge Thomas M. Rose on 7-28-2015. (de)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVE J. PARILLO, et al.,
Plaintiffs,
Case No. 3:14-cv-369
v.
Judge Thomas M. Rose
WERNER CO., et al.,
Defendants.
______________________________________________________________________________
ENTRY AND ORDER GRANTING, IN PART, DEFENDANTS’ PARTIAL
MOTION TO DISMISS (DOC. 33) AND DISMISSING COUNTS 1, 2, 6, AND
7 OF THE THIRD AMENDED COMPLAINT (DOC. 31)
______________________________________________________________________________
This case is before the Court on the “Partial Motion to Dismiss” (Doc. 33) filed by
Defendants Lowe’s Home Centers, LLC, New Werner Co., and Werner Co. (“Defendants”). For
the reasons stated below, the Court grants Defendants’ motion as to Counts 1, 2, 6 and 7 of the
Third Amended Complaint, and denies the motion as to Count 3.
I.
PROCEDURAL BACKGROUND
On October 28, 2014, Defendant New Werner Holding Co. removed this action from the
Clark County Court of Common Pleas (Ohio). (Doc. 1). On the same day, Plaintiffs filed a copy
of the Second Amended Complaint, which they had originally filed in Clark County. (Doc. 3)
On May 26, 2015, with the Court’s leave, Plaintiffs filed a Third Amended Complaint. (Doc.
31.) On June 9, 2015, Defendants filed the Partial Motion to Dismiss, which seeks dismissal of
the first, second, third, sixth, and seventh claims asserted in the Third Amended Complaint.
(Doc. 33.) The Partial Motion to Dismiss has been fully briefed and is now ripe for the Court’s
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review. (Docs. 37, 38.)
II.
LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a complaint can be
dismissed for a “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P
12(b)(6). In evaluating a motion to dismiss under Rule 12(b)(6), the Court accepts “well-pled
factual allegations as true and determines whether they plausibly state a claim for relief.” Rapp
v. Dutcher, 556 Fed.Appx. 444, 447 (6th Cir. 2014) (citing Roberts v. Hamer, 655 F.3d 578, 581
(6th Cir. 2011)). However, “threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must allege
enough facts to “move the claim across the line from conceivable to plausible.” Twombly, 550
U.S. at 570.
III.
ANALYSIS
Defendants move to dismiss five of the eight claims asserted in the Third Amended
Complaint. (Doc. 31.) Specifically, Defendants seek dismissal of Counts 1 (Violation of the
Ohio Consumer Sales Protection Act), 2 (Negligent Misrepresentation), 3 (Fraudulent
Concealment), 6 (Negligence), and 7 (Breach of Warranties). Defendants do not move to
dismiss Counts 4 and 5, which are brought against Defendants under the Ohio Product Liability
Act (“OPLA”), Ohio Rev. Code § 2307.71, et seq., and Count 8 for loss of consortium.
A.
Ohio Consumer Sales Protection Act and Negligent Misrepresentation Claims
Defendants argue, and Plaintiffs concede in their response, that Plaintiffs’ claims under
the Ohio Consumer Sales Protection Act (Count 1) and for negligent misrepresentation (Count 2)
should be dismissed because they are preempted by the OPLA. (Doc. 33 at 4-8; Doc. 37 at 1.)
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As the Court agrees with the parties, Counts 1 and 2 of the Third Amended Complaint are
DISMISSED.
B.
Fraudulent Concealment
Defendants present two grounds for dismissal of Plaintiffs’ claim for fraudulent
concealment (Count 3): that Plaintiffs have not pled the claim with sufficient particularity under
Fed. R. Civ. P. 9(b), and that the claim is preempted by the OPLA. The Court finds that
Plaintiff’s fraudulent concealment claim is not preempted by the OPLA and that Plaintiff has met
the standard for pleading fraud under Rule 9(b). As a result, Defendants’ motion to dismiss this
claim is denied.
The OPLA applies to “[a]ny recovery of compensatory [or punitive] damages based on a
product liability claim.” Ohio Rev. Code § 2307.72(A)-(B). The OPLA defines a “product
liability claim” as:
[A] claim or cause of action that is asserted in a civil action pursuant to sections
2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory
damages from a manufacturer or supplier for death, physical injury to person,
emotional distress, or physical damage to property other than the product in
question, that allegedly arose from any of the following:
(a) The design, formulation, production, construction, creation, assembly,
rebuilding, testing, or marketing of that product;
(b) Any warning or instruction, or lack of warning or instruction, associated
with that product;
(c) Any failure of that product to conform to any relevant representation or
warranty.
‘Product liability claim’ also includes any public nuisance claim or cause of
action at common law in which it is alleged that the design, manufacture, supply,
marketing, distribution, promotion, advertising, labeling, or sale of a product
unreasonably interferes with a right common to the general public.
Ohio Rev. Code Ann. § 2307.71(M).
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Pursuant to an amendment effective April 7, 2005, “the OPLA eliminated common law
product liability causes of action.” Mitchell v. Proctor & Gamble, No. 2:09-CV-426, 2010 WL
728222, at *3 (S.D. Ohio Mar. 1, 2010) (citing Ohio Rev. Code § 2307.71(B) (“Sections 2307.71
to 2307.80 of the Revised Code are intended to abrogate all common law product liability claims
or causes of action.”) and, among others, Miles v. Raymond Corp., 612 F.Supp.2d 913, 920 (N.D.
Ohio 2009) (“the language of 2307.71(B) clearly proclaims the legislature’s specific intention to
eliminate common law product liability causes of action”)).
The OPLA’s preemption of
common law product liability claims does not extend, however, to “[a]ny recovery of
compensatory damages for economic loss based on a claim that is asserted in a civil action, other
than a product liability claim.” Ohio Rev. Code § 2307.72(C). “Economic loss” refers to
“direct, incidental, or consequential pecuniary loss, including, but not limited to, damage to the
product in question, and nonphysical damage to property other than that product.” Ohio Rev.
Code § 2307.71(A)(2). “Economic loss” excludes “death, physical injury to person, serious
emotional distress, or physical damage to property other than the product in question.” Ohio
Rev. Code § 2307.71(A)(7) (defining “Harm”). Thus, to the extent that a plaintiff asserts a nonproduct liability claim for exclusively economic loss, it is not preempted by the OPLA.
Plaintiffs’ claim for fraudulent concealment falls within the category of claims that are
not preempted by the OPLA. Plaintiffs premise this claim on allegations that “Defendants were
aware that the ladder at issue here would not support the amount of weight stated on the ladder’s
disclosure.” (Doc. 37 at 2 (citing Doc. 37-1).) Plaintiffs further allege that “Defendants fraudulently
concealed the defective condition of the ladder, causing damages to Plaintiffs in the form of
replacement and other costs.” (Doc. 31, ¶ 52 (emphasis added).) Construing this claim in the light
most favorable to Plaintiffs, Plaintiffs seek only economic damages for the fraudulent concealment of
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the ladder’s weight capacity. Doe v. SexSearch.com, 551 F.3d 412, 416 (6th Cir. 2008) (on
motion to dismiss, the court construes the complaint “in the light most favorable to the
nonmoving party and accept[s] all well-pleaded factual allegations as true”). So construed, this
claim is not preempted by the OPLA.
Plaintiffs have also pled fraudulent concealment with sufficient particularity under Rule
9(b). Rule 9(b) requires a party to “state with particularity the circumstances constituting fraud
or mistake.” Fed. R. Civ. P. 9(b). This means that a plaintiff must plead “the time, place, and
content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the
fraudulent intent of the defendants; and the injury resulting from the fraud.” Allen v. Andersen
Windows, Inc., 913 F.Supp.2d. 490, 515 (S.D. Ohio 2012) (quoting Bird v. Delacruz, 411 F.
Supp. 2d 891, 895 (S.D. Ohio 2005)).
In order to plead a claim for fraud or fraudulent concealment under Ohio law, a plaintiff
must allege: “(a) a representation or, where there is a duty to disclose, concealment of a fact, (b)
which is material to the transaction at hand, (c) 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, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance
upon the representation or concealment, and (f) a resulting injury proximately caused by the
reliance.” Bryk v. Berry, 2008-Ohio-2389, ¶¶ 6-7, 2008 WL 2079463, *2 (Ct. App. Ohio, May
19, 2008). The Supreme Court of Ohio has held that “a vendor has a duty to disclose material
facts which are latent, not readily observable or discoverable through a purchaser’s reasonable
inspection.” Layman v. Binns, 35 Ohio St. 3d 176, 178, 519 N.E.2d 642, 644 (1988).
The Third Amended Complaint contains allegations that Plaintiff Dave Parillo purchased
a ladder from a Lowe’s store in Plymouth, Indiana in 2007. (Doc. 31, ¶ 24.) That ladder
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allegedly contained a latent defect that caused the ladder to break when, six years later, Mr.
Parillo used it to replace a light bulb in his garage. (Id.) Plaintiffs allege that Defendants had a
duty to disclose the ladder’s latent defect when it was sold, but did not. Plaintiffs describe the
nature of the alleged defect in detail – that the zinc aluminum “used to create the hinges and legs
for the Ladder is unstable and prone to bending, cracking, shattering and shearing.” (Id., ¶ 19.)
Plaintiffs allege that Defendants had knowledge of the alleged defect through allegations that
Lowe’s learned of the defect and, as a result, required New Werner Holding Co., Inc. and
Werner Co. to agree to indemnify Lowe’s entities “for any past and future liabilities associated
with these ladders.” (Id., ¶ 6.) The Court finds these allegations sufficiently particularized to
meet the standard for pleading fraud under Rule 9(b).
Defendants’ motion to dismiss Plaintiffs’ claim for fraudulent concealment is DENIED.
C.
Negligence and Breach of Warranties
Defendants move to dismiss Plaintiffs’ claims for negligence and breach of warranties as
preempted by the OPLA. In response, Plaintiffs argue that they have pled all of the elements of
simple negligence and implied warranty. They do not address Defendants’ argument that the
claims are preempted.
As discussed above, OPLA eliminated common law causes of action based on product
liability under Ohio law. Courts have expressly held that claims for negligence and breach of
warranty are among the claims that are preempted. See, e.g., Miles v. Raymond Corp., 612
F.Supp.2d. 913, 917-24 (N.D. Ohio 2009) (dismissing common law negligence and breach of
warranty claims as preempted under OPLA). Accordingly, Plaintiffs’ claims of negligence and
breach of implied warranty are DISMISSED.
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IV.
CONCLUSION
Defendants’ Partial Motion to Dismiss is GRANTED as to Counts 1, 2, 6 and 7, and
DENIED as to Count 3. Accordingly, Counts 1, 2, 6 and 7 of the Third Amended Complaint are
DISMISSED.
DONE and ORDERED in Dayton, Ohio, this Tuesday, July 28, 2015.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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