Memorandum of Opinion and Order
Introduction
This matter is before the Court upon Defendant Coach, Inc.’s Partial Motion to Dismiss (Doc. 5). This case arises from the distribution of in-store coupons by defendant. For the reasons set forth below, defendant’s motion is GRANTED.
Facts
Plaintiff, Julie Pattie, brings this putative class action against defendant, Coach, Inc. (“Coach”). Plaintiff has shopped at defendant’s factory stores on several occasions, most recently in Spring 2013. (Comp. ¶ 5). On each occasion, plaintiff was given a coupon by one of defendant’s employees. The coupon contained the following or similar language: “TAKE AN ADDITIONAL 50% OFF YOUR PURCHASE VALID TODAY ONLY IN THIS COACH FACTORY LOCATION.” (Comp. ¶ 6). Plaintiff purchased items from defendant on these occasions, believing she was receiving a price advantage available for a limited time. (Comp. ¶ 7). However, these coupons are distributed nearly every day in factory stores. (Comp. ¶ 8). Consequently, plaintiff contends she did not receive the discount as represented in the coupon because defendant’s “products are not discounted but stay constant over time.” (Comp. ¶ 11).
Plaintiff originally brought this suit in Lake County on behalf of herself and all other similarly situated Ohio residents who purchased a product using defendant’s percentage-off discount coupon. On behalf
This matter is before the Court upon defendant’s Partial Motion to Dismiss. Defendant moves to dismiss all of plaintiffs Complaint, with the sole exception of her individual claim under O.R.C. § 1345.02(B)(8). Plaintiff opposes the motion.
Standard of Review
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the sufficiency of a complaint. In order to survive a motion to dismiss, a complaint’s factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true. Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio,
Discussion
A. OCSPA Class Claims
Plaintiff seeks to bring a class action suit on behalf of all similarly situated Ohio residents who purchased a product using defendant’s percentage-off discount coupon for violations of O.R.C. §§ 1345.02(B)(1) and (B)(8). Defendant moves to dismiss these class claims because they do not satisfy the prior notice requirement of the OCSPA.
To pursue a class action claim under the OCSPA, plaintiff must allege that defendant had prior notice that its conduct was “deceptive or unconscionable.” O.R.C. § 1345.09(B); Johnson v. Microsoft Corp.,
To qualify as sufficient notice, the defendant’s alleged violation of the OCSPA must be “substantially similar to an act or practice previously declared to be deceptive by one of the methods identified in R.C. 1345.09(B).” Marrone v. Philip Morris USA Inc.,
Plaintiff points to three cases and one rule which it contends meets the prior notice requirement of § 1345.09(B). Defendant objects that plaintiffs cases were not decisions on the merits, so she cannot rely on them for prior notice. And moreover, the conduct at issue in those cases differs substantially from the conduct at issue here. Defendant also argues that the rule plaintiff cites in her brief does not apply.
Upon review, the Court is unpersuaded that plaintiffs case citations constitute pri- or notice.
The Court is not persuaded by the reasoning in Charvat. The OCSPA requires that the Attorney General shall make available for public inspection “all judgments, including supporting opinions, by courts of this state that determine the rights of the parties ... determining that specific acts or practices violate” the OCS-PA. O.R.C. § 1345.05(A)(3) (emphasis added). Reading this broad command alongside § 1345.09, “it is clear that the reference to a court’s ‘determination’ in § 1345.09(B) is a reference to a court’s final determination, i.e. a judgment with supporting reasoning.” Gascho v. Global Fitness Holdings, LLC,
Moreover, the Court finds that these cases do not involve “substantially similar” conduct. All three of these cases deal with out-of-store advertisements, which either enticed plaintiffs into the defendant’s store or lured them into scheduling in-home sales presentations. State ex rel. Celebrezze v. Nationwide Warehouse & Storage, Inc., 90CVH08-6199,
Plaintiff also argues that Ohio Administrative Code 109:4-3-12(E), a rule issued by the Ohio Attorney General, meets the prior notice requirement and prohibits the conduct at issue here. The Court is not persuaded it does. O.R.C. § 1345.09(B) does provide that a rule adopted by the Attorney General can serve as prior notice. And OAC 109:4-3-12(E) does deal with deceptive practices involving comparison with a supplier’s own price, which is the crux of plaintiffs Complaint. However, the applicability of OAC 109:4-3-12 is expressly limited to out-of-store advertisements. OAC 109:4-3-12(A) (“This rule deals only with out-of-store advertisements as defined in paragraph (B)(3) of this rule.”). Therefore, the Court concludes that this is insufficient to constitute prior notice to defendant under the statute. And, for the reasons stated above, the Court does not find the conduct to be “substantially similar.” Plaintiffs class claims under §§ 1345.02(B)(1) and (B)(8) are dismissed.
B. O.R.C. § 1345.02(B)(1) Individual Claim
Defendant argues that plaintiffs individual claim under O.R.C. § 1345.02(B)(1) should be dismissed because this particular statutory prohibition does not apply to representations involving price.
O.R.C. § 1345.02(B)(1) prohibits a supplier from representing that “[tjhat the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits that it does not have.” Plaintiff argues that defendant fails to demonstrate that “benefit” as used in § 1345.02(B)(1) does not mean price since defendant’s cases only demonstrate that product characteristics are benefits. The Court is unpersuaded by plaintiffs argument. “Benefit” in § 1345.02(B)(1) does not refer to price, which is dealt with in § 1345.02(B)(8).
C. Breach of Contract
Defendant moves to dismiss plaintiffs breach of contract claim because plaintiff cannot establish the existence of a contract. Defendant maintains that the coupons distributed in its stores do not establish a meeting of the minds on the essential terms of the contract. The coupons do not identify the parties to be bound, the subject matter of the contract, consideration, or a price term.
Plaintiff argues that it has alleged the existence of a contract and the terms that were breached, namely the 50% off discount. Plaintiff maintains that advertisement terms can be part of a contract and that in any case, the parties’ manifestations can make up a contract.
“An enforceable contract in Ohio arises from a meeting of the minds, and ‘must ... be specific as to its essential terms, such as the identity of the parties to be bound, the subject matter of the contract, consideration, a quantity term, and a price term.’ ” Scotts Co. v. Cent. Garden & Pet Co.,
Upon review, the Court finds that the coupons in question lack the requirements of a valid contract. Only one of the parties&emdash;defendant Coach&emdash;is identified. There is no quantity term here. Moreover, none of defendant’s products that plaintiff is purchasing are identified in the supposed contract. And the price term is also ambiguous, only indicating that the coupon recipient would receive “50% off your entire purchase.” (Doc. 1-1 p. 11). Accord Henry v. Michaels Stores, Inc., Case No. 12 CV 001097 (Lake Com. Pl. Oct. 25, 2012) (dismissing plaintiffs breach of contract claim based on an advertisement for 40% off framing products and services for ambiguity as to the price term). The Court is unpersuaded that plaintiffs citations warrant a different result. The advertisement at issue in McSweeney v. Jackson contained an offer at a specific price for a piece of land, which plaintiff accepted when he handed the defendant a check.
D. Fraud
Defendant moves to dismiss plaintiffs claim for fraud. Defendant argues that plaintiffs claim fails to meet the heightened pleading standard in Federal Rule of Civil Procedure 9. Plaintiff fails to allege the time, place, or the individuals involved in the alleged fraud, only generally indicating that the fraud took place in Spring 2013 at a Coach Ohio factory store. Defendant maintains that this is insufficient to provided it with the notice required by Rule 9(b).
Plaintiff contends that her claim is sufficiently pled since she alleges that she has visited defendant’s stores “within the last several years” and most recently in Spring 2013. In the alternative, plaintiff maintains that she should be allowed to amend her complaint.
When pleading fraud, Rule 9(b) requires a plaintiff to “state with particularity the' circumstances constituting
The Court finds that plaintiffs claims are not pled with particularity. Plaintiff fails to identify which store she was shopping at when she received the coupons. Nor does she identify when she shopped there other than to say that she has done so “on several occasions, the most recent being Spring, 2013.” (Doc. 1-1 ¶ 6). The identification of the several month time span encompassed by “Spring, 2013,” is not particular. Such allegations are insufficient to meet the requirements of Rule 9(b). The fraud claim is dismissed.
E. Unjust Enrichment
Defendant moves to dismiss plaintiffs claim for unjust enrichment based on fraudulent inducement because it is also subject to the particularity requirement in Rule 9(b). For the reasons stated in discussion of the fraud claim, the unjust enrichment claim is dismissed.
Conclusion
For the reásons set forth above, Defendant Coach, Inc.’s Partial Motion to Dismiss (Doc. 5) is GRANTED.
IT IS SO ORDERED.
Notes
. The Court also rejects plaintiff's cursory, arguments that two other cases establish prior notice. (Doc. 7 p. 4). Martin v. Lamrite West, Inc., CV-12-783766 (Cuyahoga Com. Pl. Aug. 1, 2013), which plaintiff cites, is a one paragraph journal entry without any supporting reasoning. (Doc. 7-2). It also postdates plaintiff's allegation that she went to defendant’s store in “Spring, 2013,” having been issued August 1, 2013. The Court also rejects Henry v. Michaels Stores, Inc., Case No. 12 CV 001097 (Lake Com. Pl. Oct. 25, 2012). As plaintiff herself notes, the defendant in that case did not raise the issue of prior notice. Moreover, that case involved out-of-store advertisements which are not substantially similar to the in-store coupons.
. Plaintiff has asked for leave to amend, which defendant opposes because plaintiff failed to file an amendment with her opposition brief. Federal Rule of Civil Procedure 15(a) requires that leave to amend shall be freely given, and this Court’s Case Management Order states that the pleadings may be amended by August 1, 2014 without leave of Court. (Doc. 10). Plaintiff may amend in accordance with this prior Order.