The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEVIN JONES, et al., ) Case No. 1:20-cv-00511
)
Plaintiffs, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge
) William H. Baughman, Jr.
LUBRIZOL ADVANCED )
MATERIALS, INC., et al., )
)
Defendants. )
)
OPINION AND ORDER
Pursuant to Rule 12(f) and Rule 23, Defendants The Lubrizol Corporation and
Lubrizol Advanced Materials, Inc., Cresline Plastic Pipe Company Inc., and Charlotte
Pipe and Foundry Company move to strike the class allegations in Plaintiffs’
consolidated amended complaint. (ECF No. 54.) Because the classes as defined
inescapably include members who have not suffered an injury, and no amount of
discovery can cure that legal defect, the Court GRANTS the motion.
FACTUAL AND PROCEDURAL BACKGROUND
This case remains in the early stages of discovery following the Court’s ruling
on Defendants’ motions to dismiss.
A. Plaintiffs’ Remaining Claims
Based on the Court’s ruling, each of the named Plaintiffs has a claim for breach
of express warranty under the law of the State in which he or she lives. Additionally,
Plaintiffs have two additional claims (for negligence and negligent failure to warn)
under Massachusetts law. Specifically, Plaintiffs have the following remaining
claims.
A.1. The Joneses’ Claims Under Arizona Law
Plaintiffs Kevin and Janet Jones state a claim for breach of express warranty
(Count VI) on two theories: (1) Charlotte Pipe failed to replace their allegedly
defective pipes and fittings under the 1999 limited warranty; and (2) Charlotte Pipe
and Lubrizol provided products defective in workmanship and materials under the
express warranties created through the brochures, catalogs, websites and marketing
materials of Charlotte Pipe and Lubrizol. Plaintiffs seek to bring this claim on behalf
of a nationwide class or an Arizona class of individuals and entities who purchased
FlowGuard Gold from Charlotte Pipe or its predecessor Thompson Plastics. (ECF
No. 17, ¶ 194, PageID #229; id., ¶ 132, PageID #216.)
A.2. Mr. Cochrane’s Claims Under Massachusetts Law
Plaintiff Douglas Cochrane states a claim for breach of the express warranties
(Count VI) on two theories: (1) Charlotte Pipe breached the applicable limited
warranty by failing to replace defective FlowGuard Gold; and (2) Charlotte Pipe and
Lubrizol breached the express warranties made in their brochures, catalogs, websites
and marketing materials. Additionally, Plaintiff states claims for negligence
(Count I) and negligent failure to warn (Count II). (ECF No. 47, PageID #1062.)
Plaintiffs seek to bring this claim on behalf of a nationwide class or a Massachusetts
class of individuals and entities who purchased FlowGuard Gold from Charlotte Pipe
or its predecessor Thompson Plastics. (ECF No. 17, ¶ 194, PageID #229; id., ¶ 132,
PageID #216.)
A.3. Ms. Baker’s Claims Under Washington Law
Plaintiff Donna Baker states a claim for breach of express warranty (Count VI)
on two theories: (1) Charlotte Pipe failed to replace the allegedly defective pipes
under the alleged written express warranty; and (2) Charlotte Pipe breached the
warranty created through its brochures, catalogs, websites and marketing materials.
Plaintiff also states a breach of warranty claim against Lubrizol. Plaintiffs seek to
bring this claim on behalf of a nationwide class or a Washington class of individuals
and entities who purchased FlowGuard Gold from Charlotte Pipe or its predecessor
Thompson Plastics. (ECF No. 17, ¶ 194, PageID #229; id., ¶ 132, PageID #217.)
A.4. Ms. Martin’s Claims Under Michigan Law
Plaintiff Catherine Martin states a claim for breach of express warranty
(Count VI) against Cresline Plastic on two theories: (1) the failure to repair and
replace the allegedly defective pipes under the Cresline Written Warranties; and
(2) providing a defective product under the Cresline Additional Warranties. They
also state a claim for breach of express warranty against Lubrizol. Plaintiffs seek to
bring this claim on behalf of a nationwide class or a Michigan class of individuals and
entities who purchased FlowGuard Gold from Cresline Plastic. (ECF No. 17, ¶ 194,
PageID #229; id., ¶ 132, PageID #217.)
B. Relevant Facts
As to these remaining claims, the consolidated amended complaint pleads the
following relevant facts. Although Defendants attach some basic information about
the FlowGuard Gold pipes at issue to their motion to strike (ECF No. 54-1), they make
no specific arguments based on that document. In addition, Defendants’ reply brief
presents written discovery responses from Plaintiffs. (See ECF No. 58.) But
presenting new evidence and arguments for the first time in reply is not proper, so
the Court disregards those submissions and Defendants’ arguments based on them.
B.1. The Joneses of Arizona
Plaintiffs Kevin and Janet Jones live in Arizona. (ECF No. 17, ¶ 10, PageID
#183.) In 1999, they constructed a new home and installed FlowGuard Gold pipes.
(ECF No. 17, ¶ 21, PageID #185.)
Twenty years later, in October 2019, the pipes leaked, eventually causing the
ceiling of one of the bedrooms to cave in. (Id., ¶ 22.) When they first discovered the
leak, they turned off the water to their house and put a bucket under the leak. (Id.,
¶ 23.) They called a contractor to repair the leak, and the contractor told them the
leaky pipe was brittle. (Id.) Later, another leak occurred in the ceiling above the
home’s kitchen and front bathroom, damaging those areas of the home. (Id., ¶ 24.)
Due to the leaks and the pipes’ alleged brittleness, the Joneses replumbed their
house, at a cost in excess of $11,000 apart from incidental hotel bills totaling more
than $2,000. (Id., ¶ 27, PageID #186.) The Jones’s insurance only covered part of
those claimed damages. (Id., ¶ 25.)
Mrs. Jones contacted Charlotte Pipe to make a warranty claim. (Id., ¶ 28.)
She spoke with a company representative, but claims Charlotte Pipe never sent her
the form required to process her claim. (Id., ¶¶ 29–30.) The consolidated amended
complaint includes photos of the Jones’s allegedly defective FlowGuard Gold pipes.
(Id., ¶ 32, PageID #187–88.)
B.2. Mr. Cochrane of Massachusetts
Plaintiff Douglas Cochrane lives in Massachusetts. (ECF No. 17, ¶ 11, PageID
#183.) In 2008, he built his home with FlowGuard Gold pipes and fittings designed
by Lubrizol and Charlotte Pipe. (Id., ¶ 34, PageID #188.) He claims his FlowGuard
Gold pipes first leaked in June 2019. (Id., ¶ 35.) That leak flooded his basement,
damaged his ceiling tiles, trim, carpet and furniture, and caused his insurance
company to drop him. (Id., ¶¶ 35–36.) Between August 2019 and May 2020, he claims
further leaks damaged his house. (Id., ¶ 37, PageID #189.)
He contacted Charlotte Pipe and initiated a warranty claim. (Id., ¶ 38.) He
sent Charlotte Pipe photos and a sample of the failed FlowGuard Gold fitting. (Id.)
Two months later, Charlotte Pipe sent him an email and report concluding that the
pipe and fitting was not defectively manufactured and failed “due to environmental
stress cracking caused by exposure on the exterior to incompatible plasticizers and
nonionic surfactants[.]” (Id., ¶ 39.) Accordingly, Charlotte Pipe rejected his claim.
(Id., ¶ 40.)
His house continues to experience leaks, and Mr. Cochrane believes his pipes
will have to be replaced. (Id., ¶ 41–42, PageID #189–90.) He claims he would not
have purchased a house with FlowGuard Gold pipes and fittings had he known the
pipes would fail. (Id., ¶ 45, PageID #190.) The consolidated amended complaint
includes photos of the allegedly defective FlowGuard Gold pipes and fittings from his
house. (Id., ¶ 46, PageID #191.)
On May 4, 2020, Mr. Cochrane’s counsel sent a letter to Lubrizol and Charlotte
Pipe, notifying them of alleged violations of Massachusetts laws and demanded relief
for himself and a putative Massachusetts class against Charlotte Pipe. (Id., ¶ 43,
PageID #190.) According to the consolidated amended complaint, a month later,
Lubrizol and Charlotte Pipe failed to offer any “fair and reasonable” relief. (Id., ¶ 44.)
B.3. Ms. Baker of Washington
Plaintiff Donna Baker lives in Washington. (ECF No. 17, ¶ 12, PageID #183.)
During construction of her home in 2004, FlowGuard Gold pipes and fittings designed
and manufactured by Lubrizol, Charlotte Pipe, and Thompson Plastics were
installed. (Id., ¶ 48, PageID #192.) Pipes in her living room wall leaked in
November 2018 and damaged the wall, requiring it to be cut open to replace the failed
piping. (Id., ¶ 49.) In July 2020, Ms. Baker discovered mold in her spare bedroom.
(Id., ¶ 50, PageID #192–93.) A mold remediation company discovered a leak in the
bedroom wall and elsewhere, so Ms. Baker had the FlowGuard Gold pipes in the
bedroom wall replaced. (Id., PageID #193.) Ms. Baker’s insurance company did not
cover the damage leaks from the FlowGuard Gold pipes allegedly caused. (Id., ¶ 51.)
After the bedroom leak, Ms. Baker initiated a warranty claim with Charlotte
Pipe, complete with photos of the failed product. (Id., ¶ 52.) Charlotte Pipe denied
the claim, explaining that Thompson Plastics manufactured Ms. Baker’s piping, not
Charlotte Plastics. (Id., ¶ 53.) The consolidated amended complaint includes photos
of both leaks. (Id., ¶¶ 56–57, PageID #194–97.)
B.4. Ms. Martin of Michigan
Plaintiff Catherine Martin lives in Michigan. (ECF No. 17, ¶ 13, PageID #183.)
In 1997, construction of her house used FlowGuard Gold pipes Lubrizol and Cresline
Plastic manufactured. (Id., ¶ 59, PageID #197.) During replacement of a bathroom
vanity in March 2019, a FlowGuard Gold pipe broke and leaked, causing the kitchen
ceiling beneath to sag, which required replacement and repainting. (Id., ¶ 60.) About
a year later, in February 2020, a FlowGuard Gold pipe broke behind Ms. Martin’s
laundry room wall after a flooring installer turned off the water to her washing
machine. (Id., ¶ 61.) As a result, the laundry room, basement, and ductwork flooded
and required the removal and replacement of drywall. (Id.) The next day, a
FlowGuard Gold pipe broke and flooded Ms. Martin’s basement. (Id., ¶ 62, PageID
#198.) During the repairs, a plumber told Ms. Martin the FlowGuard Gold pipe was
brittle and difficult to cut. (Id., ¶ 63.)
Ms. Martin submitted a warranty claim to Cresline Plastic on March 4, 2020.
She included details of the problems FlowGuard Gold had caused and included
photographs and a piece of the FlowGuard Gold pipe that had leaked or was adjacent
to the leaks. (Id., ¶ 64.) Three weeks later, Cresline Plastic responded by email that
it inspected the samples Ms. Martin submitted and found them “free of
manufacturing defects.” (Id., ¶ 65.) Ms. Martin included photos of the allegedly
defective pipe in the consolidated amended complaint. (Id., ¶ 71, PageID #200.)
C. Warranties
Other than Mr. Cochrane’s negligence claims, Plaintiffs’ remaining claims
allege breach of warranties of FlowGuard Gold products Charlotte Pipe and Cresline
Plastic offered or representations Defendants made about the products when
marketing them.
C.1. Lubrizol
Plaintiffs do not allege that Lubrizol provides a written warranty for any
FlowGuard Gold product, but make a general claim that Lubrizol warranted the
product through “brochures, catalogs, websites and marketing materials.” (Id., ¶ 200,
PageID #230.) To support this allegation, the consolidated amended complaint points
to various representations the company makes about the product. For example,
Lubrizol touts that “FlowGuard Gold piping systems are backed by a nearly 60-year
track record and provide long-term reliability and performance. The systems are
durable and will not degrade, pit or scale, even when in contact with high chlorine
levels.” (Id., ¶ 78, PageID #202.) Further, Lubrizol claims that the product is “100%
immune to corrosion or degradation cause by chlorinated water and will never fail
due to contact with normal drinking water.” (Id., ¶ 79.) Additionally, Lubrizol boasts
that “FlowGuard Gold pipe and fittings are designed for a 50-year service life.” (Id.)
C.2. Charlotte Pipe
In 1999, Charlotte Pipe’s written warranty provided that the pipes and fittings
would “be free from manufacturing defects and conform to currently applicable ASTM
standards under normal use and service for as long as the single-family residential
dwelling is owned and occupied by the original owner.” (Id., ¶ 99, PageID #206.)
Charlotte Pipe modified its warranty four times between 1997 and 2009. (See ECF
No. 30-2, PageID #493.) Charlotte Pipe attached copies of the relevant warranties to
its motion to dismiss. (ECF Nos. 30-3, 30-4, 30-5 & 30-6.) In addition, Plaintiffs
allege that Charlotte Pipe created express warranties for FlowGuard Gold products
through “brochures, catalogs, websites and marketing materials.” (Id., ¶ 200, PageID
#230.)
C.2.a. 1999 Limited Warranty
Charlotte Pipe’s 1999 Limited Warranty was effective when the Joneses
contracted to have their home built and
warrants to the original owner and occupant of the residential dwelling
in which its CPVC-CTS FlowGuard Gold Pipe and Fittings (the
“Products”) have been installed that the Products will be free of defects
in material and workmanship under normal use and service for as long
as the residential dwelling is owned and occupied by the original owner.
(ECF No. 30-3, PageID #495.) If any FlowGuard Gold products “fail during the
warranty period due to defects in materials or workmanship,” the warranty promises
that Charlotte Pipe will “replace the defective pipe or fitting at its expense and after
inspection and determination that the Product is defective.” (Id.)
This 1999 warranty also includes exclusions and limitations. (See generally
id.) It excludes liability for incidental and consequential damages to the extent State
law permits. Further, it excludes liability for “other damage including, without
limitation, costs of removal and reinstallation of the product. Loss of use. Loss of
profits or personal injuries or property damage whether arising out of breach of
warranty, breach of contract or otherwise.” (Id.) Also, the 1999 warranty limits the
implied warranties of merchantability and fitness for a particular purpose to the
“time that the residential dwelling in which the Products have been installed is owned
and occupied by the original owner or five (5) years from the date of purchase of said
product, whichever is less.” (Id.) Like the damages exclusion, these limitations only
apply to the extent State law permits. (Id.) Additionally, the 1999 warranty lists five
circumstances under which the warranty will not apply, none of which is relevant to
resolving Charlotte Pipe’s motion to dismiss.
Finally, Charlotte Pipe’s 1999 warranty provides that it “will not apply to any
Products for which a defect is claimed unless written notice is mailed to Charlotte
within 30 days after the date of the discovery of any such defect” at a specific address.
(Id.)
C.2.b. Other Limited Warranties
Over the years, Charlotte Pipe issued other limited warranties with various
changes from the 1999 warranty. (See ECF No. 30-2.) In addition to the 1999
warranty, Charlotte identifies three other written limited warranties it deems
relevant. (Id.) The other warranties were effective March 16, 2000 through February
2, 2002 (ECF No. 30-4); January 25, 2005 through March 23, 2008 (ECF No. 30-5);
and March 24, 2008 through October 16, 2009 (ECF No. 30-6). The March 2000
limited warranty changes “free of defects in material and workmanship” to “free from
manufacturing defects” and adds that FlowGuard Gold will “conform to currently
applicable ASTM standards.” (ECF No. 30-3, PageID #495; ECF No. 30-4, PageID
#497.) The January 2005 limited warranty does not include any material changes.
The March 2008 limited warranty changed the warranty period, as compared to the
1999 limited warranty, from “for as long as the residential dwelling is owned and
occupied by the original owner” to “a period of ten years.” (ECF No. 30-3, PageID
#495; ECF No. 30-6, PageID #501.)
C.3. Cresline Plastic
Cresline Plastic provided two statements of express warranty dating from
1997, when Ms. Martin’s home was built. First, the terms and conditions provided to
the purchaser warranted that the product “shall be free of . . . any and all defects in
material and workmanship” and limited liability to replacement of any defective
pipes and fittings. (ECF No. 37-1, PageID #770.) In its entirety, the provision states:
2. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS—
Seller represents and warrants that each item of merchandise shall be
free of rot, rust, electrolytic corrosion and any and all defects in material
and workmanship for the Seller’s applicable limited warranty period, if
any, as provided for in Seller’s product literature. The Seller’s complete
responsibility for its warranty is limited to the furnishing of sufficient
plastic pipe and fittings to replace defective materials. SELLER
HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND ALL IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE. SELLER HEREBY
DISCLAIMS ALL INDEMNITIES AND PROVISIONS FOR
ASSESSMENT OF ATTORNEY FEES AND EXPENSES.
(Id.)
Second, accompanying its terms and conditions, Cresline Plastic included
similar language:
LIMITED WARRANTY
CRESLINE PIPE IS GUARANTEED AGAINST ROT, RUST, AND
ELECTROLYTIC CORROSION, AND TO BE FREE FROM DEFECTS
IN MATERIAL AND WORKMANSHIP. THE MANUFACTURER’S
COMPLETE RESPONSIBILITY IS LIMITED TO THE FURNISHING
OF SUFFICIENT PLASTIC PIPE AND FITTINGS TO REPLACE
MATERIALS ACKNOWLEDGED BY IT TO BE DEFECTIVE.
In addition, Plaintiffs allege Cresline Plastic created express warranties for
FlowGuard Gold products through “brochures, catalogs, websites and marketing
materials.” (Id., ¶ 200, PageID #230.)
D. Plaintiffs’ Proposed Class Definitions
Plaintiffs seek to certify a nationwide class of individuals and entities who have
owned houses or other structures in which FlowGuard Gold sold by Charlotte Pipe
(or its predecessor Thompson Plastics) or Cresline was installed since January 1,
1991. (Id., ¶ 132, PageID #216.) Specifically, they seek certification of a nationwide
class comprising:
All individuals and entities that own or have owned homes or other
structures located in the United States in which FlowGuard Gold CPVC
sold by Charlotte Pipe and Foundry Company, Thompson Plastics, Inc.,
or Cresline Plastic Pipe Co., Inc. is or was installed from January 1, 1991
to present.
(Id.)
Plaintiffs also seek certification of four State classes—for houses or other
structures located in Arizona, Massachusetts, Michigan, and Washington. (Id.,
PageID #216–17.) For the Arizona, Massachusetts, and Washington classes,
Plaintiffs name Charlotte Pipe as the defendant. Other than the particular State,
each seeks to certify a class of:
All individuals and entities that own or have owned homes or other
structures located in the State of Arizona in which FlowGuard Gold
CPVC sold by Charlotte Pipe and Foundry Company or Thompson
Plastics, Inc. is or was installed from January 1, 1991 to present.
(Id.) For the proposed Michigan class against Cresline Plastic, Plaintiffs define the
class as including:
All individuals and entities that own or have owned homes or other
structures located in the State of Michigan in which FlowGuard Gold
CPVC sold by Cresline Plastic Pipe Co., Inc. is or was installed from
January 1, 1991 to present.
(Id., PageID #217.) None of the classes Plaintiffs define include Lubrizol. (Id.,
PageID #216–17.)
PROCEDURAL CONSIDERATIONS
Rule 23 directs that courts determine “[a]t an early practicable time” whether
to certify a class. Fed. R. Civ. P. 23(c)(1)(A). At the outset, the parties dispute
whether a motion to strike before much discovery has occurred presents a
procedurally appropriate device to raise the question of certification. Defendants
bring their motion pursuant to Rule 12(f) and Rule 23. The Court begins by
considering the procedural propriety of each option.
A. Rule 12(f)
Under Rule 12(f), a “court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.” On the face of the
Rule, class allegations do not present “redundant, immaterial, impertinent, or
scandalous matter” subject to striking under Rule 12(f). Nor does the Rule
contemplate dismissal of a pleading in whole or in part. Other provisions of the rules
do that more substantive work. A motion to strike class allegations, then, amounts
to a square peg Defendants try to hammer into a round procedural hole.
Other procedural difficulties accompany using Rule 12(f) for such a motion.
The Rule has timing requirements. See Fed. R. Civ. P. 12(f)(2) (requiring a motion to
strike before a responsive pleading or within 21 days of one). But that deadline lapsed
long ago. Further, Rule 12(g)(2) limits the ability of a litigant to file multiple or
successive motions directed at the pleadings. It provides that a party, like
Defendants here who previously moved to dismiss under Rule 12(b)(6), “must not
make another motion under this rule raising a defense or objection that was available
to the party but omitted from its earlier motion.” Defendants could have moved to
strike class allegations as part of their prior motions to dismiss, if Rule 12(f) provided
a proper procedural vehicle to do so. Therefore, the bar on multiple Rule 12 motions
forecloses a second motion now, including a motion to strike class allegations under
Rule 12(f).
B. Rule 23
Rule 23(d)(1)(D) provides that a court may “require that the pleadings be
amended to eliminate allegations about representation of absent persons and that
the action proceed accordingly.” In Pilgrim v. Universal Health Card, LLC, 660 F.3d
943 (6th Cir. 2011), in a lawsuit alleging deceptive advertising of a healthcare
discount program, the district court granted a motion to strike class allegations before
the plaintiffs moved for certification of their putative nationwide class. On appeal,
the plaintiffs contended that decision was premature. On the circumstances
presented in Pilgrim, the Sixth Circuit rejected the argument. Id. at 949. In
particular, the defect in the proposed class there turned on the application of the laws
of different States, and no amount of discovery could change that legal determination.
Id.; see also id. at 946. Consistent with a basic rule of textual interpretation that a
specific provision (Rule 23) controls over a general one (Rule 12(f)), the Sixth Circuit
in Pilgrim rested on analysis of Rule 23 and did not mention Rule 12(f). See id. at
949.
Since Pilgrim, district courts decide certification issues “where it is facially
apparent from the pleadings that class claims cannot satisfy one or more of Rule 23’s
requirements,” Legrand v. IntelliCorp Records, Inc., No. 1: 15 CV 2091, 2016 U.S.
Dist. LEXIS 38690, at *7 (N.D. Ohio Mar. 22, 2016), or “where the complaint itself
demonstrates that the plaintiff cannot meet the requirements for maintaining a class
action,” Jackson v. Cuyahoga Cnty., No. 1:20-CV-02649, 2021 U.S. Dist. LEXIS
156300, at *6 (N.D. Ohio Aug. 19, 2021) (quoting Johnson v. Geico Choice Ins. Co.,
No. 1:18-cv-1353, 2018 U.S. Dist. LEXIS 207938, 2018 WL 6445617, at *4 (N.D. Ohio
Dec. 10, 2018)). Based on Pilgrim and its progeny, the Court agrees with Defendants
that Rule 23(d)(1)(D) provides for a pre-certification motion to strike, at least in
circumstances like those here and limited to purely legal questions or those resolved
with little factual development.
However, Rule 23 demands rigorous analysis and proof sufficient for Plaintiffs
to carry their burden of meeting the requirements for class certification. Comcast
Corp. v. Behrend, 569 U.S. 27, 33 (2013). And the law of the Circuit acknowledges
that, before discovery, a motion to strike tests whether Plaintiffs may certify a class
as pleaded, which is to say as a matter of law or based on with limited development
of the record. Put another way, a motion to strike raises the question of certification
before a plaintiff moves to certify a class, even with little to no discovery, where the
complaint shows that maintaining a class is not possible. See Colley v. Proctor &
Gamble Co., No. 1:16-cv-918, 2016 U.S. Dist. LEXIS 137725, at *8, 2016 WL 5791658,
at *2 (S.D. Ohio Oct. 4, 2016).
Here, bearing in mind the Sixth Circuit’s endorsement in Pilgrim of a
somewhat narrow use of a motion to strike class allegations before discovery or in its
early stages, the Court limits the inquiry in the current procedural posture of this
case to a threshold determination whether Plaintiffs may or may not maintain any of
their remaining claims on behalf of a class as a matter of law. In this respect, the
Court treats the motion to strike as something of a pleading-stage determination.
Such a decision will have value for the parties and the Court because of the potential
effects on the scope and proportionality of discovery and judicial management of any
certified class.
ANALYSIS
Standing presents a “threshold determinant[] of the propriety of judicial
intervention.” Warth v. Seldin, 422 U.S. 490, 517–18 (1975). “[A]t an irreducible
minimum, Article III requires the party who invokes the court’s authority to show
that he personally has suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant” and that “the injury fairly can be traced
to the challenged action and is likely to be redressed by a favorable decision.” Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 542 (1986) (cleaned up). “A plaintiff
must demonstrate standing for each claim he seeks to press and for each form of relief
that is sought.” Kanuszewski v. Mich., 927 F.3d 396, 406 (6th Cir. 2019) (quoting
Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 1650 (2017)).
I. Standing of Putative Class Members
No one contends that any of the individual class representatives lacks
standing. Instead, Defendants maintain that the proposed class definitions include
potentially millions of members who have no trouble with their pipes or fittings and
lack standing because they have not suffered a concrete and particularized injury in
fact. At most, they say, putative class members who have not yet suffered an injury
might someday experience harm if Plaintiffs’ allegations that FlowGuard Gold is
brittle and prone to cracking are true. If class members have not had a problem,
however, Defendants argue they lack standing. Further, as defined, the classes
include people who no longer own property with FlowGuard Gold pipes or fittings. If
they did not experience problems, such individuals will never suffer an injury.
Because “Article III does not give federal courts the power to order relief to any
uninjured plaintiff, class action or not,” each class member must have standing.
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (quoting Tyson Foods,
Inc. v. Bouaphakeo, 577 U.S. 442, 466 (2016) (Roberts, C.J., concurring)). To
establish injury in fact, a plaintiff must show that she suffered “an invasion of a
legally protected interest” that is “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). For claims seeking monetary damages, “mere risk of future harm,
standing alone, cannot qualify as a concrete harm.” TransUnion, 141 S. Ct. at 2211.
On their face, Plaintiffs’ proposed class definitions appear highly likely to
include a large number of people or entities that purchased FlowGuard Gold and lack
standing. Although these putative class members might experience harm in the
future, taking Plaintiffs’ allegations as true, that risk does not confer standing.
TransUnion, 141 S. Ct. at 2211. Indeed, another federal court in Ohio has so held.
In Loreto v. Procter & Gamble Co., No. 1:09-cv-815, 2013 WL 6055401, at *4 (S.D.
Ohio Nov. 15, 2013), the court granted a motion to strike class allegations based on
the lack of standing of the putative class members. Reasoning that the vast majority
of potential class members did not see the marketing claim at issue in that false
advertising action, the court ruled that the plaintiffs could not prove they paid a price
premium. Id.
Plaintiffs argue that the Loreto Court ruled only after the record established
that “less than ¼ of 1% of all purchasers” of the product might have seen the
marketing at issue. Id. But that information came from materials the defendants
appended to their motion to strike, which the plaintiffs did not have an opportunity
to test in discovery. In fact, the court ruled in the face of the plaintiffs’ request for an
opportunity for discovery. Id. at *2. Because no amount of discovery could change
the fact that the marketing at issue in Loreto was not an advertisement subject to
claims under the State law at issue, the court granted the motion to strike.
I.A. Alleged Harm to Class Members
Plaintiffs advance several different theories of harm every potential class
member has suffered. First, this case differs from Loreto, Plaintiffs say, because they
paid a price premium for FlowGuard Gold, meaning they and every putative class
member suffered concrete and particularized harm. The specific paragraphs of the
amended complaint to which Plaintiffs point to support that claim contain no such
allegation. One alleges that Defendants market FlowGuard Gold as tough, reliable,
and durable for an extended period of time. (ECF No. 17, ¶ 3, PageID #181.) The
other alleges that Lubrizol touts that the product “’will never fail” due to contact
with normal drinking water” and that FlowGuard Gold pipes and fittings are
designed for a 50-year service life. (ECF No. 17, ¶ 79, PageID #202.) Neither
paragraph to which Plaintiffs point allege a price premium. Nor does any other
allegation in the amended complaint.
Additionally, Plaintiffs claim injury in fact because no class member would
have purchased or installed FlowGuard Gold with knowledge of its alleged defects.
For this argument, Plaintiffs rely on Bearden v. Honeywell International Inc., 720
F. Supp. 2d 932 (M.D. Tenn. 2010). Plaintiffs’ reliance on Bearden is misplaced for
two reasons. Procedurally, the district court denied a motion to strike brought under
Rule 12(f), which the Court has already determined is generally inappropriate for a
motion to strike class allegations, and did so before the Sixth Circuit endorsed using
Rule 23 to raise legal deficiencies with class allegations on a limited record in Pilgrim.
Bearden, 720 F. Supp. 2d at 942. Substantively, Bearden involved an unjust
enrichment claim where the product at issue allegedly emitted harmful levels of
ozone, resulting in harm for every purchaser. Id. at 943–44. It did not involve a case,
as Plaintiffs’ claims here do, where injury might occur in the future. Because each
product in Bearden had manifested the same alleged defect, the court was unwilling
to say that class members lacked standing on the limited record there. But that
decision does not support Plaintiffs’ argument that all putative class members have
standing because no class member would have purchased FlowGuard Gold (if any
class member knew it was purchasing the product) because of the risk of a future
failure of the pipes or fittings.
Plaintiffs also rely on Rikos v. Procter & Gamble Co., 799 F.3d 497 (6th Cir.
2015). There, the Sixth Circuit affirmed certification of five single-State classes of
consumers who purchased a probiotic supplement advertised as promoting digestive
health. Because of an absence of scientific evidence that the probiotic at issue
promoted digestive health for anyone, the plaintiffs alleged violations of unfair or
deceptive practices statutes. With respect to standing, the court rejected the
defendant’s argument based on the plaintiffs’ theory of liability. That is, although
the defendant argued that the probiotic worked for most people, the plaintiffs alleged
that the defendant deceptively advertised the product to all consumers, meaning that
every potential class member experienced harm. Id. at 524.
From these cases, a basic principle emerges. Where an allegedly defective
product results in harm to every potential class member that has already manifested,
the class has standing. But where, as here, the remaining allegations show a risk of
harm in the future, Plaintiffs will not be able to carry their burden under Rule 23 of
establishing the propriety of class certification, making striking the class allegations
an appropriate procedural response. Plaintiffs might object that discovery would
show that most or all class members suffered some injury. Such a contention defies
reason and commonsense. Based on the allegations of the consolidated amended
complaint, the product, its alleged defects, and the ways the large number of
consumers who have the pipes and fittings at issue suffer harm rules out a
widespread epidemic of failures nationally or in four particular States. Simply put,
the proposed classes as defined include substantial numbers of people who have not
suffered an injury and, therefore, lack standing.
I.B. Additional Authorities and Arguments
Plaintiffs cite three additional authorities that bear on Defendants’ standing
argument. In each of the cases on which Plaintiffs rely, the claims, issues, and
arguments differ materially from those alleged here. Generally, they involve causes
of action like unjust enrichment or deceptive practices based on alleged defects that
already caused harm to all consumers. None suggests they will be able to overcome
the standing defect in their class definitions.
First, Plaintiffs rely on Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. 2006),
to argue that class members whose FlowGuard Gold pipes and fittings have not yet
failed should not be excluded from the class. There, the Sixth Circuit affirmed
certification of an Ohio class of vehicle owners that “include[d] those owners who
never actually experienced a manifestation of the alleged defect.” Id. at 550. But the
court did not discuss standing for members of that class, and the defendant appears
to have limited its argument about owners who did not experience the alleged defect
to the typicality and adequacy of the named class representative. Id. at 552–54.
Second, Plaintiffs make the same point by citing Glazer v. Whirlpool Corp. (In
re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.), 722 F.3d 838 (6th Cir.
2013). There, the Sixth Circuit relied on Daffin, among other cases, to conclude
“under Ohio law that not all class members must demonstrate manifestation of
biofilm and mold growth in their [washing machines] before those individuals may be
included in the certified class.” Id. at 857. But that discussion related to the injury
all members of the certified class experienced in the plaintiffs’ premium-price theory,
which is not part of the case here. Again, the court did not discuss standing of class
members beyond briefly noting that such a theory satisfies standing requirements.
Id.
Third, Glazer relied on Wolin v. Jaguar Land Rover North America, LLC, 617
F.3d 1168 (9th Cir. 2010). In Wolin, the Ninth Circuit rejected an argument that the
failure of the alleged defect at issue to manifest in a majority of class members’ vehicle
precluded certification. Id. at 1173. The court took up this issue under its precedent
in the context of arguments over commonality. It did not consider standing of class
members.
Defendants’ motion to strike presents the difficult procedural problem that
Plaintiffs through discovery might be able to establish that some significant
percentage of class members have standing. Even then, TransUnion teaches that a
federal court may not award relief to any uninjured plaintiff. 141 S. Ct. at 2208.
Plaintiffs’ class definitions unavoidably include such individuals. Finally, Plaintiffs
seek to avoid this problem by pointing to the State subclasses the amended complaint
pleads. But the State classes Plaintiffs seek to certify suffer from the same legal
defect. There is no allegation or reason to believe that FlowGuard Gold pipes and
fittings failed in Washington or Arizona, for example, to any greater degree than the
rest of the nation.
* * *
For these reasons, the Court determines that the class allegations in the
amended complaint may not be maintained as a matter of law because Plaintiffs
cannot show that members of the putative classes have standing, and no amount of
discovery will be able to overcome this defect.
II. Rule 23(b)(2) Class
Plaintiffs also seek certification of a class under Rule 23(b)(2) requesting
injunctive and declaratory relief. Under this rule, a plaintiff may maintain a class
action if the defendant “has acted or refused to act on grounds that apply generally
to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Certification of
this sort of class action depends on “the indivisible nature of the injunctive or
declaratory remedy warranted—the notion that the conduct is such that it can be
enjoined or declared unlawful only as to all of the class members or as to none of
them.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (quoting Richard A.
Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132
(2009)). Put another way, Rule 23(b)(2) only permits certification where a single
declaratory judgment will apply to every class member. Id. This is so because of the
indivisible nature of declaratory relief at issue, which will apply to all class members
or none of them. Id.
Although TransUnion formally addressed the risk of future harm only for
claims seeking monetary damages, 141 S. Ct. at 2211, for purposes of standing it is
difficult to see how that principle of standing under Article III does not extend to
claims for equitable relief as well. Additionally, two features of Rule 23(b)(2) make
certification of a class here improper on the face of the classes Plaintiffs seek to
certify. First, according to the Supreme Court, Rule 23(b)(2) “does not authorize class
certification when each class member would be entitled to an individualized award of
monetary damages.” Dukes, 564 U.S. at 360–61. “[I]ndividualized monetary claims
belong in Rule 23(b)(3).” Id. at 362. Second, the Supreme Court held that Rule
23(b)(2) does not permit class certification where “the monetary relief is not incidental
to the injunctive or declaratory relief.” Id. at 360. Fundamentally, Plaintiffs seek an
award of monetary damages, both for themselves and on behalf of the classes they
seek to represent. Moreover, the monetary relief or costs associated with any
injunction or declaration of rights applying to all consumers would not be incidental
to such a remedy, instead mandating substantial expenditures. For example, a
repair-or-replace remedy would carry enormous costs and necessarily implicate the
same standing deficiencies as a class or classes under Rule 23(b)(3) because it would
extend to those who have not suffered harm and might not. Accordingly, Wal-Mart
v. Dukes forecloses certification of a class under Rule 23(b)(2) here.
III. Certification
Under Rule 23(f), a court of appeals may grant interlocutory review “from an
order granting or denying class-action certification.” Fed. R. Civ. P. 23(f). Obviously,
Rule 23(f) does not describe an order under Rule 23(d)(1)(D). Nonetheless, with
respect to standing, Defendants’ motion to strike “involves a controlling question of
law as to which there is substantial ground for difference of opinion,” and “an
immediate appeal from the order may materially advance the ultimate termination
of the litigation[.]” 28 U.S.C. § 1292(b). In the Court’s opinion, the questions of law
addressed in this Opinion and Order, over which there is substantial ground for
differences of opinion among reasonable jurists and lawyers, might well prove
outcome-determinative in this case. Without class allegations, Plaintiffs might have
little incentive to pursue their claims. Therefore, appellate review will materially
advance the resolution of this case on the merits. Without review, this action is likely
at or near its end. Accordingly, the Court certifies this Order for interlocutory review
under Section 1292(b).
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to strike
(ECF No. 54.) Accordingly, pursuant to Rule 23(d)(1)(D), the Court ORDERS
Plaintiffs to amend their complaint to eliminate class allegations and to do so no later
than 21 days from the date of this Order. When amending the complaint, the Court
directs Plaintiffs to comply with the Court’s Civil Standing Order for filing
amendments and to make no other substantive amendments or changes to the
complaint. Further, pursuant to 28 U.S.C. § 1292(b), the Court CERTIFIES this
Order for interlocutory review.
SO ORDERED.
Dated: February 1, 2022
J.Philip Calabrese
United States District Judge
Northern District of Ohio
25