Wilson v. Sherwin Williams Co.

• Decision Date: 06 December 2018
• Docket Number: CASE NO. 1:18 CV 1606
• Parties: Marqueth Wilson, Plaintiff, v. The Sherwin Williams Company, Defendant.
• Court: U.S. District Court — Northern District of Ohio

Marqueth Wilson, Plaintiff, v. The Sherwin Williams Company, Defendant.

CASE NO. 1:18 CV 1606

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

December 6, 2018

JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION

This matter is before the Court upon the Complaint of Plaintiff Marqueth Wilson ("Plaintiff") against Defendant Sherwin Williams Company ("Defendant"). Doc. 1. Plaintiff is a resident of the State of Texas,¹ and states that Defendant's principal place of business is located in Cleveland, Ohio. He claims both federal question (28 U.S.C. § 1331) and diversity² (28 U.S.C. § 1332) as the bases for the Court's jurisdiction. Id. at 1-2.

For the reasons that follow, this case is DISMISSED.

BACKGROUND

According to the Complaint, Plaintiff submitted a bid in 2016 to the North Texas Tollway Authority ("NTTA") for a painting and wall coverings project (the "Project"). Painting supplies were to be obtained from Defendant. Id. at 2. Plaintiff states he told Defendant that he did not have the financial ability to purchase the painting supplies necessary for the Project, but Defendant agreed to provide the necessary supplies upon the execution of a "Third-Party Joint Check Agreement" among Plaintiff, Defendant, and Ferriera Holdings Group ("FHG"). Id. at 8. Plaintiff describes FHG both as a "general contractor" and as a "surety." See id. at 2, 4. Plaintiff repeatedly states in the Complaint that he "spoke with," requested, and emphasized to Defendant that Defendant should speak only to him about the Project - not FHG or NTTA - and Defendant agreed. See id. at 2, 3, 4, 8, 9, 10. According to the Complaint, the reason for this request was that direct contact by Defendant with NTTA or FHG "would likely reveal the inability of Plaintiff to provide materials . . . without a draw or advance on payment" and, if it "got out that Plaintiff could not provide start-up materials he would likely lose the contract." Id. at 8. The arrangement with Defendant as described by Plaintiff was that Defendant would provide Plaintiff with "whatever" supplies he requested, FHG would pay Defendant for the supplies, then Defendant would deduct its "materials costs" and pay the difference to Plaintiff. Id. Plaintiff avers that it was not necessary for Defendant to discuss the Project with FHG because FHG "was only required as surety that there was indeed a contract involving [Plaintiff] and FHG and NTTA and that the Sherwin Williams Company would be paid." Id. at 4.

Plaintiff claims that notwithstanding his repeated requests and Defendant's alleged agreement to speak only with him, Defendant contacted FHG directly about the Project whichresulted in a renegotiation of the cost for painting supplies, and had the effect of reducing Plaintiff's profit and ultimately leaving him unable to supply materials for the Project. Id. at 3, 5, 9, 10.

Based on these facts, Plaintiff alleges causes of action against Defendant for negligence, tortious interference with business relationship, deceptive trade practices, and breach of contract under Texas law, and discrimination. He seeks $1.2 million dollars in actual damages, $250,000.00 in exemplary damages, and a total of $350,000.00 for violation of Texas' Deceptive Trade Practices Act, tortious interference with a business relationship, negligence, and breach of contract. Lastly, Plaintiff seeks $1.2 million dollars for discrimination. Id. at 12.

DISCUSSION

Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), the Court is required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, lacks an arguable basis in law or fact, or seeks monetary relief against a defendant who is immune from such relief. Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised upon an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.

The dismissal standard for Fed. R. Civ. P. 12(b)(6) articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) governs dismissal for failure to state aclaim under § 1915(e)(2)(B). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). A cause of action fails to state a claim upon which relief may be granted when it lacks plausibility in the complaint. Twombly, 550 U.S. at 564.

A plausible pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 677-78. The factual allegations in the pleading must be sufficient to raise the right to relief above the speculative level on the assumption that all the allegations in the complaint are true. Twombly, 550 U.S. at 555. Plaintiff is not required to include detailed factual allegations, but must provide more than an unadorned, the defendant-unlawfully-harmed-me accusation. Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action does not meet this pleading standard. Id.

When reviewing a complaint, the Court must construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998) (citing Sistrunk, 99 F.3d at 197). That said, the courts are not required to conjure unpleaded facts or construct claims against defendants on behalf of a pro se plaintiff. See Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citation omitted); Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir. 1985).

Texas State Law Claims

Plaintiff asserts four causes of action against Defendant for alleged violations of the following Texas law:³ (1) Deceptive Trade Practices Act (DTPA) (Tex. Bus. & Com. Code § 17.46), (2) tortious interference with business relationship, (3) negligence, and (4) breach of contract. Plaintiff's claims are based entirely upon Defendant's direct contact with FHG about painting supplies for the Project and the alleged resulting price changes which Plaintiff claims injured him financially. Doc. 1 at 3.

In the Complaint, Plaintiff extensively discusses the elements of his Texas state law claims. But instead of advancing factual allegations which, if believed, state plausible claims for relief under Texas law, Plaintiff simply asserts in conclusory fashion that Defendant's contact with FHG, and the alleged consequences, violated Texas law. The Court is not bound, however, to accept Plaintiff's legal conclusions couched as factual allegations. Twombly, 550 U.S at 556. Beyond these conclusory allegations, Plaintiff does not allege facts from which the Court can reasonably infer that Plaintiff states plausible claims for relief under Texas law.

Plaintiff fails to state a breach of contract claim

For example, Plaintiff fails to allege facts from which the Court can infer that Plaintiff has stated a plausible claim for breach of contract under Texas law.⁴ To begin, Plaintiff fails to allege facts that plausibly support the existence of a valid contract - the first element in a breach of contract claim - with respect to his alleged agreement with Defendant not to contact FHG directly and/or the pricing of his painting supplies for the Project, or with respect to any contract with the NTTA or FHG. See Coachmen Indus., Inc. v. Willis of Illinois, Inc., 565 F. Supp. 2d 755, 766 (S.D. Tex. 2008) (The following elements must be present for the formation of a valid contract under Texas law: 1) an offer, 2) acceptance in strict compliance with the terms of the offer, 3) a meeting of the minds, 4) each party's consent to the terms, and 5) execution and delivery of the contract with the intent that it be mutual and binding; consideration is also a "fundamental element" of every contract.) (citations omitted). Given that Plaintiff has failed to allege facts from which the Court could reasonably infer the existence of valid oral or written contracts, Plaintiff fails to state a plausible claim against Defendant for relief for breach of contract.

Plaintiff fails to state a DTPA claim

With respect to his DTPA claim,⁵ Plaintiff generally avers that Defendant "knowingly and intentionally violate[d] at least one or more provisions of Section 17.46 [of the] DTPA by failing, refusing, or neglecting to abide by the agreements made between Plaintiff and Defendant." Doc. 1 at 3. It is not clear to which "agreements" Plaintiff refers or which provisions of the DTPA were violated. While Plaintiff's pro se Complaint must be liberally construed, the Court is not required to conjure unpleaded facts or construct claims on Plaintiff's behalf. See Grinter, 532 F.3d at 577.

Plaintiff does specifically claim that Defendant's original pricing for painting supplies was false and misleading under the DPTA because, after contacting FHG, Defendant modified its pricing to Plaintiff by lowering the price on some materials and raising the price on others and, if Plaintiff had known pricing would be changed in this manner, he would not have entered into the "agreement." Doc. 1 at 3, 4, 5. Under the DTPA, it is false and misleading to advertise goods and services with the intent not to sell them as advertised (§ 17.46(b)(9)), or to fail to disclose information known at the time of the transaction in order to induce entry into the transaction (§ 17.46(b)(24)).

Even assuming that Plaintiff is a consumer for purposes of the DTPA, and that DTPA §§ 17.46(b)(9) and (24) are applicable to Plaintiff's procurement of painting supplies from theDefendant for the Project, Plaintiff's conclusory...