recognizing “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”
How later courts described this case
- recognizing “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL V. SIMMONS ) JUDGE JOHN R. ADAMS
)
Plaintiff, ) CASE NO.: 4:22-CV-00221
)
vs. ) ORDER AND DECISION
) (Resolving Doc. 36)
DOLLAR GENERAL, et al., )
)
)
Defendants. )
Pending before this Court is Defendant Dollar General Corporation’s (“Dollar General”)
motion for judgment on the pleadings. Doc. 36. Plaintiff, Michael V. Simmons, did not oppose the
motion. For the reasons set forth below, the Court GRANTS Dollar General’s motion.
I. STATEMENT OF FACTS
Plaintiff asserts that after midnight of February 9, 2020, he was outside walking his 35-
pound dog in snowy conditions. Doc. 6, ¶¶1, 2. He asserts that he purchased a retractable leash
with a 50-pound weight maximum from Defendant Dollar General. Doc. 6, ¶2. Plaintiff contends
that the leash fully extended and then made a whipping action. Doc. 6, ¶ 4. Plaintiff alleges that he
was knocked unconscious and upon waking noticed he suffered an injury. Doc. 6, ¶¶ 4, 5.
Plaintiff filed the instant Complaint on February 9, 2022, against Defendants Dollar
General Corporation and Everpet LLC for their alleged “defective design” of the retractable leash.
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D oc. 1, ¶ 10. On March 15, 2022, Plaintiff filed an Amended Complaint adding Cosmic Pet as a
defendant. Plaintiff’s Amended Complaint raises claims of products liability, personal injury, and
damage to personal property, and sought judgment in the amount of $2,000,000.00. Doc. 6, ¶ 27.
On April 29, 2022, Dollar General answered the amended complaint. Doc. 13. On May 27, 2022,
Plaintiff filed a response to Dollar General’s answer to the amended complaint. Doc. 20. On
September 19, 2022, the Court dismissed Defendant Cosmic Pets. Doc. 31. On October 4, 2022,
Dollar General, the sole remaining defendant, filed its motion for judgment on the pleadings. Doc.
36.
II. JUDGMENT ON THE PLEADINGS, FED.R. 12(c)
The standard for reviewing a judgment on the pleadings under Fed. 12 (c) is the same as
the standard for reviewing a motion to dismiss under Fed.R. 12(b)(6). The Sixth Circuit stated the
standard for reviewing a motion to dismiss in Assn. of Cleveland Fire Fighters v. Cleveland, 502
F.3d 545 (6th Cir. 2007) as follows:
The Supreme Court has recently clarified the law with respect to what a plaintiff
must plead in order to survive a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007). The Court stated that “a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Id. at 1964-
65 (citations and quotation marks omitted). Additionally, the Court emphasized that
even though a complaint need not contain “detailed” factual allegations, its
“[f]actual allegations must be enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the complaint are true.” Id.
(internal citation and quotation marks omitted). In so holding, the Court
disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson, 355 U.S. 41,
45-46 (1957) (recognizing “the accepted rule that a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief”),
characterizing that rule as one “best forgotten as an incomplete, negative gloss on
an accepted pleading standard.” Twombly, 550 U.S. at 563.
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Id. at 548. Instead, “a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949,
173 L.Ed.2d 868 (2009) (internal quotations omitted).
If an allegation is capable of more than one inference, this Court must construe it in the
plaintiff’s favor. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (citing
Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993)). This Court may not grant a Rule
12(b)(6) motion merely because it may not believe the plaintiff’s factual allegations. Id. Although
this is a liberal standard of review, the plaintiff still must do more than merely assert bare legal
conclusions. Id. Specifically, the complaint must contain “either direct or inferential allegations
respecting all the material elements to sustain a recovery under some viable legal theory.” Scheid
v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quotations and emphasis
omitted).
A. Ohio Product Liability Act (“OPLA”)
The Court has previously concluded that Plaintiff’s claims are product liability claims
governed by the OPLA. Doc. 31, p. 4.
A product liability clam is defined as follows:
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;
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(c) Any failure of that product to conform to any relevant representation or
warranty.
O.R.C. §2307.71 (A)(13). A “supplier” is “[a] person that, in the course of a business conducted
for the purpose, sells, distributes, leases, prepares, blends, packages, labels, or otherwise
participates in the placing of a product in the stream of commerce.” O.R.C. §2307.71(A)(15(a)(i).
Dollar General acknowledges that it is a supplier under the OPLA.
Under O.R.C. §2307.78(A), a supplier is liable in a product liability claim if either of the
following is applicable:
(1) The supplier in question was negligent and that, negligence was a proximate
cause of harm for which the claimant seeks to recover compensatory damages;
(2) The product in question did not conform, when it left the control of the supplier
in question, to a representation made by that supplier, and that representation and
the failure to conform to it were a proximate cause of harm for which the claimant
seeks to recover compensatory damages. A supplier is subject to liability for such
a representation and the failure to conform to it even though the supplier did not act
fraudulently, recklessly, or negligently in making the representation.
Id.1 Liability under these subsections requires active conduct by the supplier that causes or
contributes to the injury. King v. Centerpulse Orthopedics, Inc., No. 1:05-CV-1318, 2006 U.S.
Dist. LEXIS 7028, at *11-12 (N.D. Ohio Feb. 24, 2006).
Dollar General can only be liable for negligence in this case if it knew or had reason to
know of the alleged product defect, regardless of any “‘failure to discover the danger by an
1 A supplier can also be liable in place of a manufacturer if certain conditions exist as set forth in
O.R.C. §2307.78(B). Dollar General contends that the complaint contains no factual allegations
allowing Plaintiff to hold Dollar General derivatively liable under the eight factors set forth in
O.R.C. § 2307.78(3). In the absence of any opposition, and upon its own review, the Court agrees.
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in spection or test of the [product] before selling it.’” King, supra, quoting Brown v. McDonald’s
Corp., 101 Ohio App. 3d 294, 655 N.E.2d 440, 445 (Ct. App. Ohio 1995).
According to the amended complaint, Plaintiff purchased the leash from Dollar General
and Cosmic Pet LLC is the vendor of the leash. Doc. 6, ¶ 3. Even with a liberal review of
Plaintiff’s complaint, Plaintiff makes no claim that Dollar General is liable as a supplier through
any express or independent negligent conduct. As pled, none of Plaintiff’s claims indicate that
Dollar General knew or should have known that the leash was defective in any way.
Plaintiff asserts that the Defendants “must take responsibility for their product’s
unreasonably dangerous defect and/or product design[,]” (Doc. 6, ¶12) that “the defective product
and/or its dangerous design had a direct and proximate resolute of cause the Plaintiff’s” injuries,
(Doc. 6, ¶14), and that the “defective leash had a direct and proximate result of destroying, mostly
by blood, the Plaintiff’s personal property” (Doc. 6, ¶16). None of these claims establish that
Dollar General knew or should have known about the allegedly defective leash.
The Court notes that Plaintiff asserts that “Defendants were aware of the danger their
defective leash posed[.]” Doc. 6, ¶22. However, Plaintiff points to no facts to indicate how Dollar
General was aware of the danger, or if that danger was caused by an allegedly defective product.
Further, in his reply to Dollar General’s answer, Plaintiff makes it clear that Dollar General was
in fact NOT aware of any issues with the leash until after Plaintiff reported his injury. Doc. 20, p.
4, ¶11. The complaint does not contain any facts or allegations that would support a conclusion
that Dollar General knew or should have known about the defect prior to the injury and continued
to make representations and sell the product anyway.
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Accordingly, Plaintiff’s amended claims against Dollar General are dismissed.
III. CONCLUSION
Defendant Dollar General’s motion for judgment on the pleadings is granted. This matter
is hereby dismissed in its entirety.
IT IS SO ORDERED.
December 14, 2022 /s/ John R. Adams
Date John R. Adams
U.S. District Judge
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