Phillips v. Philip Morris Companies Inc.

290 F.R.D. 476, 85 Fed. R. Serv. 3d 407, 2013 WL 1182233, 2013 U.S. Dist. LEXIS 40908
CourtDistrict Court, N.D. Ohio
DecidedMarch 21, 2013
DocketNo. 5:10-cv-1741
StatusPublished
Cited by24 cases

This text of 290 F.R.D. 476 (Phillips v. Philip Morris Companies Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. Philip Morris Companies Inc., 290 F.R.D. 476, 85 Fed. R. Serv. 3d 407, 2013 WL 1182233, 2013 U.S. Dist. LEXIS 40908 (N.D. Ohio 2013).

Opinion

MEMORANDUM OPINION AND ORDER

SARA LIOI, District Judge.

Before the Court are two dispositive motions: defendants’ motion for partial judgment on the pleadings on plaintiffs’ class action claim under the Ohio Consumer Sales Practices Act (CSPA), Ohio Rev.Code § 1345.01 et seq. (Doc. No. 16); and defendants’ motion for judgment on the pleadings on plaintiffs’ claim under the Ohio Deceptive Trade Practices Act (DTPA), Ohio Rev.Code § 4165.01 et seq. (Doc. No. 17.) Both motions are fully briefed and at issue. {See Doc. Nos. 22, 25 [plaintiffs’ amended response to defendants’ motion for partial judgment on the pleadings on plaintiffs’ CSPA claim; and defendants’ reply, respectively]); {see Doc. Nos. 24, 26 [plaintiffs’ amended response to defendants’ motion for judgment on the pleadings on plaintiffs’ DTPA claim; and defendants’ reply, respectively].)

I. Background

In this action, plaintiffs Eva Marie Phillips and Greg Phillips (plaintiffs) allege that defendants Phillip Morris USA Inc. and Atria Group, Inc. (defendants) violated Ohio statutory and common tort law by advertising and selling certain cigarettes as “light” and “low tar,” when the cigarettes in question had as much tar and nicotine as defendants’ regular line of cigarettes. Specifically, plaintiffs claim that “[w]hile promoting decreased tar and nicotine deliveries, [defendants designed Marlboro Light cigarettes to deliver higher levels of tar and nicotine than could be measured by the standard testing apparatus.” (Doc. No. 1, Complaint at 4.) According to the complaint, defendants launched a deceptive and unlawful advertising campaign devised to conceal the truth behind the “so-called lowered tar and nicotine deliveries of their products----” (Compl. at 4.)

Plaintiffs raise statutory claims under the CSPA and the DTPA. They also assert common law claims alleging fraud, express and implied warranty violations, and unjust enrichment. {See Compl.) Plaintiffs purport to bring these claims in their personal capacities, as well as on behalf of all those similarly situated, and maintain that the damages they seek are economic in nature, and do not include claims for personal injury. (Compl. at 3.) The complaint also contains a request for injunctive relief.

Defendants move for judgment on the pleadings with respect to plaintiffs’ statutory claims under the CSPA and the DTPA. Defendants insist that the class component of plaintiffs’ CSPA claim must be dismissed because plaintiffs have not pleaded compliance with, nor can they satisfy, the notice requirement of Ohio Rev.Code § 1345.09(B). De[478]*478fendants also maintain that they are entitled to judgment as a matter of law on plaintiffs’ DTPA claim because the Act does not provide for a cause of action for consumers.

II. Standard of Review

Under Rule 12(c) of the Federal Rules of Civil Procedure, a party may move for judgment on the pleadings any time after the pleadings are closed, but early enough not to delay trial. The standard of review for a motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim for relief under Rule 12(b)(6). E. E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998)). “ ‘For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.’ ” JPMorgan Chase Bank, N.A. v. Winged, 510 F. 3d 577, 581 (6th Cir.2007) (quoting Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.1973)). The court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.1999) (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987)). “The motion is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.” Paskvan v. Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir.1991) (citation omitted).

III. Discussion

A. Class Actions under the Ohio Consumer Sales Practices Act

“Ohio’s Consumer Sales Practices Act ... prohibits unfair, deceptive, and unconscionable practices in consumer sales transactions.” Marrone v. Philip Morris USA, Inc., 110 Ohio St.3d 5, 6, 850 N.E.2d 31 (2006) (citing Ohio Rev.Code §§ 1345.02, 1345.03). Under the CSPA, a consumer alleging to have been harmed by unlawful sales practices may, “in an individual action, rescind the transaction or recover the consumer’s actual economic damages plus an amount not exceeding five thousand dollars in noneconomic damages.” Ohio Rev.Code § 1345.09(A). The CSPA also allows for a class action, provided that the alleged violation:

was an act or practice declared to be deceptive or unconscionable by rule adopted under division (B)(2) of section 1345.05 of the Revised Code before the consumer transaction on which the action is based, or an act or practice determined by a court of this state to violate section 1345.02, 1345.03, or 1345.031 of the Revised Code and committed after the decision containing the determination has been made available for public inspection under division (A)(3) of section 1345.05 of the Revised Code____

§ 1345.09(B); see Volbers-Klarich v. Middletown Mgmt., Inc., 125 Ohio St.3d 494, 502, 929 N.E.2d 434 (2010) (acknowledging the notice requirement for class actions under the Act) (internal citations and quotations omitted); see, e.g., Marrone, 110 Ohio St.3d at 6, 850 N.E.2d 31 (“a consumer may qualify for class-action certification under Ohio’s CSPA only if the defendant’s alleged violation of the Act is substantially similar to an act or practice previously declared to be deceptive by one of the methods identified in R.C. 1345.09(B)”).

The complaint contains no allegation that defendants engaged in conduct that was “substantially similar” to conduct that was found deceptive by an Ohio administrative rule or an Ohio state court decision, as required by Section 1345.09(B) for class actions. Further, in Marrone,

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Bluebook (online)
290 F.R.D. 476, 85 Fed. R. Serv. 3d 407, 2013 WL 1182233, 2013 U.S. Dist. LEXIS 40908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-philip-morris-companies-inc-ohnd-2013.