KEVIN JONES, et al. v. LUBRIZOL ADVANCED MATERIALS, INC., et al.
Case No. 1:20-cv-
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION
February 1, 2022
Judge J. Philip Calabrese; Magistrate Judge William H. Baughman, Jr.
Pursuant to
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. (
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). (
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. (
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. (
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 (
B.1. The Joneses of Arizona
Plaintiffs Kevin and Janet Jones live in Arizona. (
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.)
Plaintiff Douglas Cochrane lives in Massachusetts. (
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. (
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. (
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
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.
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
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. (
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
Under
Other procedural difficulties accompany using
B. Rule 23
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
However,
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
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. Id. 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 1/4 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. (
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
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
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
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
III. Certification
Under
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to strike (
SO ORDERED.
Dated: February 1, 2022
J. Philip Calabrese
United States District Judge
Northern District of Ohio