Opinion
Case No. C2 04 1078.
October 28, 2005
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on the Motions to Dismiss Plaintiffs' Complaint pursuant to Fed.R.Civ.P. 12(b)(6) brought by Defendant Philip Morris USA Inc. and Defendant Sun Tobacco, Inc. (collectively, "Defendants"). Defendants contend that Plaintiffs fail to state any claim upon which relief can be granted.
For the reasons set forth herein, the Court GRANTS Defendants' Motions to Dismiss on all counts.
II. BACKGROUND
Nigest Tilahun and Alemayehu Getachew (collectively, "Plaintiffs") have sued Defendants Philip Morris, Sun Tobacco, R.J. Reynolds Tobacco Co. ("Reynolds Tobacco"), and Farmer's Tobacco Company of Cynthiana, Inc., ("Farmer's Tobacco") for the following claims: breach of contract; tortious interference with contract; hazardous negligence; intentional infliction of emotional distress; bias; and violations of both "Ohio's Consumer Safety Law" and "Sales Practices Act." Defendants Philip Morris and Sun Tobacco moved to dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted.
Plaintiffs fail to cite either of these two laws in their Complaint. The Court assumes that their reference to the "Ohio Sales Practice Act" refers to the Ohio Consumer Sales Practices Act ("OCSPA"). See Ohio Rev. Code § 1345.01 et seq. Further, the Defendants submit that Ohio has no "Consumer Safety Law." The Court can find no such Ohio Consumer Safety Law supporting Plaintiffs' contentions. If Plaintiffs' had meant to reference a different Ohio law, they did not make their intentions clear in their Complaint. As such, the Court must dismiss Plaintiffs' claim under the Ohio Consumer Safety Law for failing to state a claim for which relief may be granted.
A. Facts
On February 26, 2003, Plaintiffs opened "Smoker Friendly," a Columbus, Ohio retail business dealing primarily with tobacco products. Topicz, a Cincinnati, Ohio-based grocery wholesaler, agreed to supply Smoker Friendly with tobacco products pursuant to an oral agreement made on February 18, 2003. Plaintiffs allege that this agreement with Topicz included a product return policy allowing Smoker Friendly credit or refunds for returned cigarettes.
The bulk of Smoker Friendly's tobacco inventory consisted of products manufactured by Defendants Philip Morris, Sun Tobacco, Farmer's Tobacco, and Reynolds Tobacco. Smoker Friendly opened for business on February 26, 2003. Plaintiffs' marketing strategy was based primarily on their promise to provide customers with the "freshest cigarettes."
Smoker Friendly also sold merchandise from Lorillard Tobacco Company, Brown Williamson Tobacco Company, and Lane Limited Tobacco Company. Plaintiffs claim that all three of these companies acted properly concurrent to their agreement with Topicz.
Plaintiffs claim to have communicated their freshness guarantee to customers with a "Tell and Sell" policy, flyers, advertising circulars, local newspapers, and on a store web-site.
Plaintiffs aver that over the next eleven months, Defendants' sales managers did not visit the store, check their products' fitness for sale, or rotate and remove outdated products. Further, they assert that Defendants' sales representative did not give Plaintiffs information that would have allowed them to read the companies' freshness codes themselves. Plaintiffs also allege that Defendants did not pay Plaintiffs the required "display allowance" to provide Plaintiffs with money to display Defendants' product.
Plaintiffs claim that the store allowance for display space was pursuant to a contractual obligation. They state that such allowances typically range from $300 to $600 per month.
On July 2003, Topicz sent Plaintiffs a document regarding various cigarette manufacturers' product return policies. Topicz informed Plaintiffs that, as of July 18, 2003, Defendants would no longer replace outdated and/or damaged product, and that Defendants would also no longer guarantee their products' freshness. The document also contained a No Return/No Refund Cigarette Policy (the "Policy"), which stated:
IN THE EVENT YOU SHOULD RECEIVE DAMAGED CIGARETTES FROM TOPICZ, YOU MUST CALL THEM INTO OUR OFFICE WITHIN 24 HOURS OF DELIVERY TO RECEIVE CREDIT.
Please keep in mind these new return policies have been put in place by the cigarette manufacturers, not by Topicz. If we accept product that is not returned properly, we do not receive credit for it.
On January 30, 2004, eleven months after opening, Plaintiffs closed Smoker Friendly. Plaintiffs alleged that they were forced to close mainly because Defendants failed to: (1) guarantee the freshness of their products; (2) provide adequate shelving of those products; (3) provide adequate merchandising; (4) abide by their product return policy; and (5) honor various promotional purchase programs. Plaintiffs also claim that the terms of the Policy forced them to terminate their contract with Topicz, amounting to contract interference.
The Complaint does not state an allegation of "tortious interference with contract relations," but the Court has analyzed it as such. See supra Part V.B.
B. Procedural History
On October 5, 2004, Plaintiffs sued Defendants in the Franklin County Court of Common Pleas. Defendant Farmer's Tobacco subsequently filed its Notice of Removal and Answer with this Court. Defendant Philip Morris moved to dismiss Plaintiff's Complaint. Plaintiffs in turn filed their Memorandum in Opposition to Philip Morris' Motion to Dismiss and Defendant Sun Tobacco filed its own Motion to Dismiss, to which Plaintiffs filed their Memorandum in Opposition. Defendants Philip Morris and Sun Tobacco separately filed their reply briefs to Plaintiffs' Memorandum in Opposition. By agreement between the parties, Defendant Reynolds Tobacco was dismissed from this action with prejudice.This matter is now before the Court on Defendants' Motion to Dismiss Plaintiffs' Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that Plaintiffs fail to state a claim for which relief can be granted.
III. STANDARD OF REVIEW
In considering a Rule 12(b)(6) Motion to Dismiss, the Court is limited to evaluating whether a plaintiff's complaint sets forth allegations sufficient to make out the elements of a cause of action. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983). All factual allegations made by a plaintiff are deemed admitted and ambiguous allegations must be construed in his favor. Murphy v. Sofamor Danek Gp., Inc., 123 F.3d 394, 400 (6th Cir. 1997). A complaint should not be dismissed under Rule 12(b)(6) "`unless it appears beyond doubt that the [p]laintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 724 (6th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). While the complaint need not specify every detail of a plaintiff's claim, it must give the defendant "`fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994) (quoting Conley, 355 U.S. at 47).
Nonetheless, this liberal standard of review does require more than the bare assertion of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted). A complaint must contain either direct or inferential allegations with respect to all the material elements necessary to sustain a recovery under some viable legal theory. Id. (citations omitted). Finally, though courts afford pro se complaints a measure of leniency, the Sixth Circuit held that even with such cases, courts should not accept legal conclusions in unwarranted factual inferences. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 2003). Pro se plaintiffs are not entitled to a lenient application of the substantive law of a claim. See Wolfel v. United States, 711 F.2d 66, 67 (6th Cir. 1983)
IV. ANALYSIS A. Breach of Contract Claim
There are four elements of a breach of contract claim: (1) the existence of a contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff. See Oglebay Norton Co. v. Armco, Inc., 556 N.E.2d 515 (Ohio 1990). Accordingly, absent proof that a contract exists, a plaintiff's breach of contract suit cannot survive a Rule 12(b)(6) motion to dismiss. See Thomas v. Publishers Clearing House, Inc., 2002 WL 193935, at *2 (6th Cir. Feb. 5, 2002) (affirming a trial court's dismissal of plaintiff's breach of contract claim because plaintiff failed to allege properly the existence of a contract). Thus, if Plaintiff's Complaint fails to show that Plaintiffs had a contract with the Defendants, this Court must dismiss the breach of contract claim. See id.
As a threshold consideration, this Court must determine whether there was a valid contract. The elements of a contract are, "an offer and acceptance, supported by valid consideration." Sashti, Inc. v. Glunt Ind., Inc., 140 F. Supp. 2d 813, 816 (N.D. Ohio 2001). Acceptance may be expressed by "word, sign, writing, or act." Id. Plaintiffs offer four different theories to support their declaration that they had a valid contract with Defendants. First, Plaintiffs allege that Topicz and Defendants had similar attributes such that they could be considered one entity. As such, they suggest that Plaintiffs' contract with Topicz must also be enforceable against Defendants. Second, Plaintiffs contend that the "logic of ABC" dictates that because Plaintiffs had a contract with Topicz, and Topicz had a contract with Defendants, Plaintiffs must also have a contract with Defendants. Third, Plaintiffs view their receipt showing a cash purchase of the Defendants' product from Topicz as proof of a contract between Plaintiffs and Defendants. Last, Plaintiffs argue that a contract existed because the Defendants were the leaders in the business relationship existing between Plaintiffs and Topicz. They assert that the law recognizes manufacturers as in infractions associated with the manufacturers' products.
The Plaintiffs' argue that each of their four arguments shows that in their relationship with Defendants, "the elusive concept of a contract [became a] reality."
Though Plaintiffs offer four different theories for their claim that a contract existed, they offer no support for these theories. Plaintiffs cite no case law and fail to allege facts suggesting the formation of a contractual relationship. A complaint must contain either direct or inferential allegations with respect to all the material elements necessary to sustain a recovery under some viable legal theory. See Allard, 991 F.2d at 1240. Moreover, a complaint must contain more than the bare assertion of legal conclusions. Id. As such, the Court must find each of the Plaintiff's theories untenable.
Nevertheless, Plaintiffs posit that even if the Court finds that they failed to prove the existence of a valid contract with Defendants under one of the above theories, the Court should find that they were third party beneficiaries to a contract between Defendants and Topicz. Again, the Court finds Plaintiffs' argument to be meritless.
Before a third party can enforce a contract, "it must appear that the contract was made and entered into directly or primarily for the benefit of such third person." See Berge v. Columbus Comm. Cable Access, 136 Ohio App. 3d 281, 303 (Ohio Ct.App. 1999) (holding that only intended third party beneficiaries have the right to enforce a contract). Plaintiffs' factual allegations do not show evidence that they were the intended beneficiaries of a contract between Defendants and Topicz. Further, they point to no case-law to support their claim. As such, Plaintiffs have not established a claim as third party beneficiaries of a contract between Defendants and Topicz. See Allard, 991 F.2d at 1240.
Because Plaintiffs cannot substantiate their claim that a contract existed between Plaintiffs and Defendants or that they were the intended third party beneficiaries of a contract between Defendants and Topicz, the Court must dismiss Plaintiffs' breach of contract claim. See Thomas, 2002 WL 193935, at *2.
B. Contract Interference Claim
Plaintiffs assert that Defendants' Policy forced them to terminate their contract with Topicz, constituting contractual interference. In this case, to make out a claim of tortious interference with contract, Plaintiffs must prove the following: (1) that Topicz breached the contract; (2) that Defendants were aware of the particular provisions that were breached; (3) that Defendants knew that the actions it requested of Topicz would result in breach; and (4) that Defendants purposefully and intentionally induced Topicz to breach the contract. See Fred Siegel Co., L.P.A. v. Arter Hadden, 707 N.E.2d 853, 857 (Ohio 1999).
Plaintiffs avow that they, not Topicz, unilaterally cancelled the parties' contract. As such, they do not allege that Topicz breached the contract. Because Plaintiffs fail to establish the first element of a claim of tortious interference with contract, the Court need not consider the remaining three elements, and the claim must be dismissed. See Allard, 991 F.2d at 1240.
Because Plaintiffs cannot establish the first element of a claim of tortious interference with contract, the Court need not consider the remaining three elements of the claim.
C. Negligence Claim
Plaintiffs' third cause of action is entitled, "Duty Breach, Contract Breach, and Negligence." Nevertheless, Plaintiffs' allegations do not refer to a breach of contract. Further, as existence of a duty is one of the elements of a negligence claim, the Court focuses only on the Plaintiffs' negligence claim.
Plaintiffs' aver that Defendants were negligent in their failure to prevent Plaintiffs from allegedly selling expired cigarettes. To establish a prima facie case of negligence, a plaintiff must establish four elements: (1) an existing duty owed to him; (2) a breach of that duty; (3) proximate cause; and (4) some resulting injury. See Menifee v. Ohio Welding Prods., Inc., 472 N.E.2d 707, 710 (Ohio 1984).
As such, the viability of Plaintiffs' negligence claim depends on whether they can establish that Defendants owed them a duty. Plaintiffs claim that Defendants owed them a special duty arising from their fiduciary relationship. A fiduciary relationship is one in "which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust." See Ed Schory Sons, Inc. v. Soc'y Nat'l Bank, 662 N.E.2d 1074, 1081-82 (Ohio App. 1996). Because the Court did not find that Plaintiffs could substantiate the existence of a valid contract between Plaintiffs and Defendants, unless Plaintiffs can provide alternative explanations as to why the Court should consider them Defendants' fiduciaries, the Court can find no such special relationship. Plaintiffs fail to explain the legal basis of a fiduciary relationship with Defendants. Further, Plaintiffs do not offer any other theories as to why Defendants owed Plaintiffs a special duty. If Defendants do not owe Plaintiffs a duty, Plaintiffs negligence claim fails to state a claim for which relief may be granted. See Allard, 991 F.2d at 1240. Thus, Plaintiff's negligence claim is dismissed.
Plaintiffs provide no case-law to support this contention. The Court, too, can find no case-law on point.
See supra, Part V.A.
D. Intentional Infliction of Emotional Distress Claim
To state a claim for intentional infliction of emotional distress, a plaintiff must demonstrate: (1) that a defendant either intended to cause him emotional distress or knew or should have known that actions taken would result in serious emotional distress to plaintiff; (2) that defendant's conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community; (3) that defendant's actions were the proximate cause of plaintiff's psychic injury; and (4) that the mental anguish plaintiff suffered is serious and of a nature that no reasonable person could be expected to endure it. See Yaeger v. Local Union 20, Teamsters, Chauffeurs, Warehousmen, Helpers of Am., 453 N.E.2d 666, 671 (Ohio 1983).To show that he suffered severe emotional distress, a plaintiff must show that the "mental anguish" he suffered is "serious and of a nature that no reasonable man could be expected to endure." Burkes v. Stidham, 668 N.E.2d 982, 989 (Ohio App. 1995). Further, "serious emotional distress requires an emotional injury which is both severe and debilitating." Id. Ohio courts only deem conduct "outrageous" when it is "so extreme in degree, as to go beyond all possible bounds of decency," and "regarded as atrocious, and utterly intolerable in a civilized community." Id. "Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" Yeager, 453 N.E.2d at 671. Conduct amounting to no more than mere "insults, indignities, threats, annoyances, petty aggressions, or other trivialities . . . fall short of the `outrageous standard' called for under Ohio law." Monak v. Ford Motor Co., 95 Fed.Appx. 758, 763 (6th Cir. 2004).
In this case, Plaintiffs do not allege that Defendants engaged in extreme and outrageous conduct, and they do not indicate that they suffered severe emotional distress.
Plaintiffs claim that the closing of their store and the economic damage that followed led them to suffer "emotional trauma." Plaintiffs merely assert that Defendants' "treated [them] differently than other local chain retail stores." Plaintiffs' allegations of "different treatment" do not rise to the level of what Ohio courts view as "outrageous" behavior. Moreover, the record provides no evidence of "emotional trauma." For the foregoing reasons, Plaintiffs' intentional infliction of emotional distress claim is dismissed.
E. Bias Claim
In asserting their bias claim, Plaintiffs assert that Defendants "considered the plaintiffs' foreign traits" in providing its promotional kits. Plaintiffs, however, do not assert their bias claim under any particular law. Defendants assume that Plaintiffs attempt to bring a claim under 42 U.S.C. § 1981. Even giving Plaintiffs the benefit of the doubt and assuming that they intended to bring their claim under Section 1981, their claim must fail.
Again, Plaintiffs do not bring their claim under any particular law, stating only that "defendant's discriminatory supply of promotional items injured the plaintiff's economic and emotional well-being."
Section 1981(a) states, in part:
(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as enjoyed by white citizens . . .42 U.S.C. § 1981(a) (West 2005).
To make out a Section 1981 claim, a plaintiff must allege intentional discrimination by a defendant in the making or enforcement of a contract. See Christian v. Wal-Mart Stores, 252 F.3d 862, 864 (6th Cir. 2001) (plaintiffs claimed that they were denied the right to contract with defendant on account of plaintiff's race). To do so, a plaintiff must show both that he is a member of a protected class, and that defendants treated similarly situated individuals outside that protected class differently. See id. at 872. Plaintiffs neither allege membership in a protected class, nor do they provide evidence of disparate treatment. See Allard, 991 F.2d at 1240. Accordingly, the Court must dismiss Plaintiffs' bias claim.
F. Claim under Ohio Consumer Sales Practices Act
Plaintiffs' claim under the Ohio Consumer Sales Practices Act (OCSPA) that Defendants failed to "check [their] product's salability," disregarding consumer health safety in violation of the Ohio. The OCSPA applies only to "consumer transactions." OHIO REV. CODE § 1345.01(A) (West 2005). A consumer transaction is defined as a sale or transfer of goods "to an individual for purposes that are primarily person, family, or household . . ." Id. Therefore, business transactions are not covered by the OCSPA. Id. Even assuming that Plaintiffs and Defendants did enter into a transaction, it could only have been a business transaction. Therefore, the Court must dismiss Plaintiffs' claim under the OCSPA.