Wani et al v. MI Windows and Doors, Inc.

Filing 43

ORDER granting in part and denying in part 9 Motion to Dismiss. The court grants defendant's motion to dismiss and dismisses Counts II, III, and VI without prejudice. The court denies defendant's motion to strike. Signed by Honorable David C Norton on 9/27/12.(juwo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
IN RE: MI WINDOWS AND DOORS,
INC. PRODUCTS LIABILITY
LITIGATION

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MANZOOR AHMAD WANI AND SOZI
WANI, individually and on behalf of all
others similarly situated,

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Plaintiffs,
vs.
MI WINDOWS AND DOORS, INC. ,
Defendant.

MDL No. 2333
No. 2:12-mn-00001

No. 2:12-cv-01255-DCN

ORDER

This matter is before the court on defendant’s motion to dismiss Counts II, III,
and VI of plaintiffs’ amended complaint and to strike plaintiffs’ request for equitable
tolling of the statute of limitations. The court grants the motion to dismiss as to Count II
(unjust enrichment), Count III (fraudulent concealment), and Count VI (Ohio Consumer
Sales Practices Act), but denies defendant’s request to strike.
I. BACKGROUND

On December 5, 2011, plaintiffs Manzoor Ahmad Wani and Sozi Wani (Wanis)

filed a class action complaint in the United States District Court for the Southern District
of Ohio against MI Windows and Doors, Inc. (MIWD), alleging jurisdiction based on
diversity of citizenship. The Wanis filed an amended complaint on January 9, 2012.
MIWD filed its answer on February 13, 2012 along with the instant partial motion to
dismiss. On April 23, 2012, this and other cases were transferred to this court by the

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Judicial Panel on Multidistrict Litigation for consolidated pretrial proceedings.
Following the transfer, on August 15, 2012, the Wanis filed a response in opposition to
MIWD’s partial motion to dismiss. MIWD filed a reply on August 27, 2012. This court
held a hearing on September 19, 2012.
In their amended complaint, the Wanis bring claims for breach of implied
warranty, unjust enrichment, fraudulent concealment/non-disclosure, negligent
misrepresentation, negligence, violation of the Ohio Consumer Sales Practices Act,
breach of express warranty, and declaratory relief. The Wanis allege that MIWD
manufactured certain windows that were defective in design in that the loss of seal along
the bottom of the glass allowed moisture and water intrusion into their home. Am.
Compl. ¶ 18. The Wanis further allege that this defect led to growth of mineral deposits
and mold and caused damage to other property in the home. Id. ¶ 8. According to the
Wanis, MIWD denied warranty coverage because they are the second owners of their
home. Id. The Wanis seek to recover damages both individually and on behalf of two
classes of persons owning structures in Ohio in which MIWD’s 3500, 4300, and 8500
series of windows were installed. Id. ¶ 10. Finally, the Wanis allege that MIWD should
be estopped from relying on a statute of limitations defense since MIWD knew of the
defect for years but failed to disclose it to the Wanis and the purported class members.
Id. ¶¶ 23-24.
II. STANDARDS
A. Applicable Law
This case is predicated on diversity jurisdiction and was filed in federal court, so
it is governed by state substantive law and federal procedural law. V&M Star Steel v.

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Centimark Corp., 678 F.3d 459, 465 (6th Cir. 2012). For diversity cases that are
transferred in a MDL, “the law of the transferor district follows the case to the transferee
district.” Manual for Complex Litigation Fourth § 20.132. Therefore, this court must
apply Ohio substantive law and federal procedural law.
B. Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for
“failure to state a claim upon which relief can be granted.” When considering a Rule
12(b)(6) motion to dismiss, the court must accept the plaintiff’s factual allegations as true
and draw all reasonable inferences in the plaintiff’s favor. See Directv, Inc. v. Treesh,
487 F.3d 471, 476 (6th Cir. 2007). But “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
On a motion to dismiss, the court’s task is limited to determining whether the
complaint states a “plausible claim for relief.” Id. at 679. A complaint must contain
sufficient factual allegations in addition to legal conclusions. Although Rule 8(a)(2)
requires only a “short and plain statement of the claim showing that the pleader is entitled
to relief,” “a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “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 (quoting Twombly, 550 U.S. at 570). Factual allegations
“‘merely consistent with liability’” are not sufficient. Ctr. for Bio-Ethical Reform, Inc.
v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Iqbal, 129 S. Ct. at 1949).

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III. DISCUSSION
MIWD moves to dismiss counts II, III, and VI of the amended complaint.
A.

Count II – Unjust Enrichment

First, MIWD argues that Count II must be dismissed because there was no
“economic transaction” between the parties, so plaintiffs could not have possibly
conferred a benefit on MIWD.
The Wanis are not the original purchasers of either their home or the windows in
that home. According to MIWD, a claim for unjust enrichment under Ohio law requires
a showing of an economic transaction between the parties. The Wanis respond that they
are “indirect purchasers” and that Ohio law does not require privity of contract in order
for a plaintiff to recover for unjust enrichment.
Unjust enrichment is a “quasi-contractual equitable claim which is limited to
situations where the court may create an implied contract between the parties when one
side has provided a benefit for which it should be compensated.” Davis v. Lawyers Title
Ins. Corp., No. 06-357, 2007 WL 782158, at *5 (N.D. Ohio Mar. 13, 2007). To recover
for unjust enrichment, a party must show: “(1) a benefit conferred by a plaintiff upon a
defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit
by the defendant under circumstances where it would be unjust to do so without
payment.” Hambleton v. R.G. Barry Corp., 465 N.E.2d 1298, 1302 (Ohio 1984) (internal
quotation marks omitted).
The Wanis are correct in asserting that, generally, Ohio courts allow a plaintiff to
bring a claim for unjust enrichment when the plaintiff lacks privity of contract with the
defendant. See DVCC, Inc. v. Med. Coll. of Ohio, No. 05-237, 2006 WL 496036, at *6-7

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(Ohio Ct. App. Mar. 2, 2006). However, courts still require that the defendant at least
have received a passive benefit from a transaction that would be inequitable for the
defendant to retain. To illustrate, in Johnson v. Microsoft Corp., 834 N.E.2d 791 (Ohio
2005), the Ohio Supreme Court held that a plaintiff who purchased a personal computer
from a retailer could not maintain an unjust enrichment claim against software-maker
Microsoft. The court stated that the “rule of law is that an indirect purchaser cannot
assert a common-law claim for . . . unjust enrichment against a defendant without
establishing that a benefit had been conferred upon that defendant by the purchaser.” Id.
at 799. Where “no economic transaction occurred” between the plaintiff and defendant,
the plaintiff cannot establish that the defendant retained any benefit to which it was not
justly entitled and, therefore, the claim for unjust enrichment must be dismissed. Id.
Similarly, in Eisenberg v. Anheuser-Busch, Inc., No. 04-1081, 2006 WL 290308,
at *12 (N.D. Ohio Feb. 2, 2006), the court dismissed an unjust enrichment claim because
there was no allegation of a transaction between the parties:
The only economic transactions the Defendants have allegedly entered
into were the transactions by which they sold their products to a retailer.
Those products were sold without regard to who the final consumer might
be, and there is no allegation that the Defendant had any control over who
the retailer chose to sell its products to. . . . There is no allegation of a
transaction between the Defendants and the Plaintiffs, . . . [t]herefore,
Plaintiffs cannot establish that the Defendants retained a benefit, conferred
by the Plaintiffs, to which they were not entitled. Consequently, the
Plaintiffs’ claim for unjust enrichment cannot be sustained.
Id.; see also Bower v. Int’l Bus. Machs., 495 F. Supp. 2d 837, 844 & n.1 (S.D. Ohio
2007) (“Nowhere in their complaint have the Plaintiffs alleged that they ever paid money
directly to IBM. Absent this, there is no way to determine that the Plaintiffs' loss has
caused the Defendant's benefit. . . . Presumably, the Defendant, as manufacturer, has

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received all of the money/benefit due from the sale of the product by its receipt of
payment for the product from the retailer.”).
An argument similar to that of the Wanis’ was rejected in a MDL case involving
the application of Ohio law. In In re Whirlpool Corp. Front-Loading Washer Products
Liability Litigation, 684 F. Supp. 2d 942 (N.D. Ohio 2009), Whirlpool, the defendant,
moved to dismiss the plaintiffs’ claim for unjust enrichment because the plaintiffs failed
to allege that they purchased their washers directly from Whirlpool. The plaintiffs did
not allege that they ever paid any money directly to Whirlpool. Instead, they claimed that
Whirlpool profited from repair services and the purchase of cleaning products, but did not
specify whether those services and products were purchased from Whirlpool or another
vendor. The court held that the plaintiffs “fail[ed] to allege that they entered into any
economic transaction with Whirpool, as required to state an unjust enrichment claim
under Ohio law.” Id. at 953.
Analogously here, the Wanis allege a transaction that is too remote for a court to
plausibly find that MIWD retained a benefit conferred by the Wanis. In their amended
complaint, the Wanis specifically state that they are the “second owners of their home,”
thus, they did not purchase the home or windows. Am. Compl. ¶ 8. Simply relying on a
“chain of sale” is insufficient. See Hoffer v. Cooper Wiring Devices, Inc., No. 07-763,
2007 WL 1725317, at *4 (N.D. Ohio June 13, 2007) (“Ohio courts have not . . . held that
purchase of products within a ‘chain of sale’ is sufficient to establish that a plaintiff has
bestowed a benefit on a defendant.”). While the Wanis have plausibly alleged that they
suffered a loss, the focus of unjust enrichment “is not to compensate the plaintiff for any
loss or damage suffered by him but to compensate him for the benefit he has conferred on

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the defendant.” Johnson, 834 N.E.2d at 286 (internal quotation marks omitted). As it
stands, the Wanis’ allegation that they “conferred a benefit on [MIWD] when they
purchased the Windows” is not supported by enough factual support. Am. Compl. ¶ 34.
The court grants MIWD’s motion to dismiss without prejudice.
B.

Count III – Fraudulent Concealment

Second, MIWD argues that Count III must be dismissed because the fraudulent
concealment claim is not sufficiently plausible under Federal Rule of Civil Procedure
12(b)(6) and fails to satisfy the heightened pleading standard under Rule 9(b).
“To maintain an action for fraudulent concealment [under Ohio law], the plaintiff
must show proof of (1) an actual concealment (2) of a material fact (3) with knowledge of
the fact concealed (4) with intent to mislead another into relying upon such conduct (5)
followed by actual reliance thereon by such other person having the right to so rely [and]
(6) with injury resulting to such person because of such reliance.” Ross v. Trego, 681
N.E.2d 989, 991 (Ohio Ct. App. 1996) (alteration in original) (internal quotation marks
omitted).
Federal Rule of Civil Procedure 9(b) requires a plaintiff to plead fraud by stating
“with particularity the circumstances constituting fraud.” “This rule requires a plaintiff:
(1) to specify the allegedly fraudulent statements; (2) to identify the speaker; (3) to plead
when and where the statements were made; and (4) to explain what made the statements
fraudulent.” Republic Bank & Trust Co. v. Bear Stearns & Co., 683 F.3d 239, 247 (6th
Cir. 2012). A plaintiff must “at a minimum, . . . allege the time, place and contents of the
misrepresentation upon which they relied.” Frank v. Dana Corp., 547 F.3d 564, 570 (6th

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Cir. 2008); see also Republic Bank, 683 F.3d at 253 (“Nowhere does [plaintiff] indicate
when, where, or to whom the alleged misstatement was made. This defect is fatal.”).
The court finds that dismissal is appropriate under Rule 9(b). The Wanis’
amended complaint contains broad rather than particularized allegations regarding time
and place of concealment. See Am. Compl. ¶¶ 16-18 (“MIWD has sold . . . thousands of
windows nationwide and in . . . Ohio”; “Through various forms of media . . . MIWD
marketed, advertised and warranted that each Window was . . . free from defects . . . .
However, the Windows contain a defect . . . .”); id. ¶ 9 (stating that “MIWD marketed,
advertised, warranted and/or sold the Windows in Ohio and throughout the United
States”). While the Wanis argue they have sufficiently identified the “speaker” that gave
false representations as MIWD, some courts have held that to adequately plead fraud, a
plaintiff must specify “who at the company made the statements.” Sullivan v. Leor
Energy, LLC, 600 F.3d 542, 551 (5th Cir. 2010).
Because dismissal is appropriate under Rule 9(b), the court need not reach
MIWD’s argument for dismissal under Rule 12(b)(6). The court makes note that Ohio
law clearly requires a plaintiff to allege a duty to disclose in a case of fraudulent
concealment. See Spears v. Chrysler, LLC, No. 08-331, 2011 WL 540284, at *9 (S.D.
Ohio Feb. 8, 2011) (“The Ohio Supreme Court instructs that the elements of a cause of
action for fraud are as follows: (a) a representation or, where there is a duty to disclose,
concealment of a fact. . . . [I]f a complaint alleges concealment, it must also allege an
underlying duty to speak.”). Factual allegations supporting such a duty are particularly
important here, since the Wanis did not purchase the windows directly from MIWD.

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Such allegations are also subject to scrutiny under the Rule 9(b) standard. See Boggs v.
Landmark 4 LLC, No. 12-614, 2012 WL 3485288, at *6 (N.D. Ohio Aug. 13, 2012).
Because the Wanis filed their amended complaint without the benefit of
discovery, the court finds it appropriate to dismiss their claim for fraudulent concealment
without prejudice.
C.

Count VI – Violation of Ohio Consumer Sales Practices Act

Third, MIWD argues that Count VI must be dismissed because the Wanis did not
engage in a “consumer transaction” and cannot bring an action under the Ohio Consumer
Sales Practices Act (OCSPA or the Act). MIWD also argues that the OCSPA claim lacks
sufficient factual matter under Rule 12(b)(6) and fails satisfy allege fraud with
particularity under Rule 9(b).
The OCSPA, Ohio Revised Code Annotated § 1345.01 et seq., prohibits suppliers
from committing “an unfair or deceptive act or practice in connection with a consumer
transaction,” regardless of whether the act or practice occurs “before, during, or after the
transaction.” Ohio Rev. Code Ann. § 1345.02(A) (2012). Under the Act, a “consumer”
is “a person who engages in a consumer transaction with a supplier.” Id. § 1345.01(D).
A “supplier” is a “seller . . . engaged in the business of effecting or soliciting consumer
transactions, whether or not the person deals directly with the consumer.” Id. §
1345.01(C). A “consumer transaction” includes “a sale . . . or other transfer of an item of
goods . . . to an individual for purposes that are primarily personal, family, or household.”
Id. § 1345.01(A).
Privity of contract between a “consumer” and “supplier” is not a prerequisite to
recovery under the OCSPA. Garner v. Borcherding Buick, Inc., 616 N.E.2d 283, 285

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(Ohio Ct. App. 1992). This is because “the definition of ‘supplier’ under the . . . Act
includes those who engage in the business of effecting consumer transactions, whether or
not they deal directly with the consumer,” and because a “supplier’s representations may
violate the . . . Act whether they occur ‘before, during, or after the transaction.’” Id.
(quoting Ohio Rev. Code Ann. § 1345.02(A)). Nevertheless, a “defendant must have
some connection to the consumer transaction in question in order to be liable as a
supplier for deceptive practices.” Id.
It is undisputed that the Wanis did not engage in any direct transaction with
MIWD. Thus, the “consumer transaction” at issue must be the purchase of the Wanis’
home, including the windows, from the previous homeowner. The purchase of an
existing home is not a commercial transaction under the OCSPA. “The Ohio Supreme
Court has held that [the] definition [of ‘consumer transaction’] was clearly intended to
exclude real estate transactions from the [O]CSPA.” DeLuits v. Ashworth Home
Builders, Inc., 2009 WL 606121, at *2 (Ohio Ct. App. Mar. 11, 2009); see also Shore W.
Constr. Co. v. Sroka, 572 N.E.2d 646, 648 (Ohio 1991) (noting that real estate
transactions are excluded because the definition of “consumer transaction” is limited to
“goods, services, franchises, and intangibles”). Because the Wanis have not sufficiently
alleged a “consumer transaction,” the court dismisses their claim under the OCSPA
without prejudice.1

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MIWD also seeks dismissal of Count VI for failure to plead fraud with particularity under Rule
9(b). The court points out that there is “a split in case law regarding whether one must comply
with the particularity requirement of Rule 9(b) in pleading claims arising under the OCSPA.”
Polinsky v. Comm. Health Partners Reg. Health Sys., No. 10-2544, 2012 WL 832503, at *9 (N.D.
Ohio Mar. 9, 2012). Based on the lack of a valid “consumer transaction” in the current
complaint, the court withholds judgment on the Rule 9(b) issue at this time.

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D.

Equitable Tolling of Statute of Limitations

Finally, MIWD asks the court to strike the Wanis’ request for equitable tolling of
the statute of limitations. Equitable tolling is “available only in compelling
circumstances which justify a departure from established procedures.” Puckett v. Tenn.
Eastman Co., 889 F.2d 1481, 1488 (6th Cir. 1989). To specifically show that equitable
tolling is warranted due to fraudulent concealment, the plaintiff must “allege and
establish” that: (1) defendant concealed the conduct that constitutes the cause of action;
(2) the concealment prevented the plaintiff from discovering the cause of action within
the limitation period; and (3) until discovery of the cause of action, the plaintiff exercised
due diligence to try to find out about the cause of action. Whittiker v. Deutsche Bank
Nat’l Trust Co., 605 F. Supp. 2d 914, 927 (N.D. Ohio Mar. 17, 2009). MIWD has not
moved to dismiss the Wanis’ claims on a statute of limitations basis. The court finds it
unnecessary to strike the allegations regarding equitable tolling from the amended
complaint. Rather, the better course is for the parties to proceed to discovery and, if
MIWD seeks dismissal based on the expiration of a statute of limitations in the future, the
Wanis may contend that tolling is appropriate. The court will rule on the Wanis’ claim at
that time. As such, the court denies MIWD’s request to strike.
IV. CONCLUSION
Based on the foregoing, the court GRANTS defendant’s motion to dismiss and
DISMISSES Counts II, III, and VI WITHOUT PREJUDICE, and DENIES
defendant’s motion to strike.
AND IT IS SO ORDERED.

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_________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

September 27, 2012
Charleston, South Carolina

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