UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION (CINCINNATI) 

HAWES, et al., 

Plaintiffs, 

v. 

MACY’S INC., et al., 

Defendants. 

Civil Action: 1:17-CV-00754 

Judge Timothy S. Black 

DEFENDANT AQ TEXTILES, LLC’S 

REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 

Defendant AQ Textiles, LLC (“AQ”) submits this Reply Memorandum in support of its 

Motion to Dismiss Plaintiffs’ claims. In their Response to AQ’s Motion to Dismiss, Plaintiffs 

attempt to recast their allegations as more robust than they actually are and to imbue them with 

meaning that cannot reasonably be implied. Careful consideration of the actual allegations in the 

Complaint—and the inapposite legal authorities cited by Plaintiffs—reveals that all claims should 

be dismissed. 

ARGUMENT 

I. PLAINTIFFS’ ALLEGATIONS PROVIDE NO BASIS FOR THE ASSERTION OF 

PERSONAL JURISDICTION OVER AQ. 

In their Response, Plaintiffs appear to concede that general jurisdiction over AQ is lacking, 

but argue that the Court can exercise specific jurisdiction over AQ “given AQ’s relationship with 

Macy’s, which is headquartered in Ohio, as well as AQ’s substantial connections to this forum.” 

Plaintiffs’ Combined Response to AQ’s Motion to Dismiss, DE #26 (“Pltfs.’ Resp.”) at 3. They 

also argue that exercising specific jurisdiction over AQ satisfies federal due process requirements, 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 1 of 20 PAGEID #: 312
2 

in particular claiming that their claims arise out of AQ’s activities in Ohio. Id. Both arguments 

are legally deficient and are refuted by Plaintiffs’ own allegations. 

A. Plaintiffs do not allege any connections between AQ and Ohio to support specific 

jurisdiction. 

In support of their position that specific jurisdiction exists, Plaintiffs point to paragraphs 

13-18 for the proposition that “AQ imported and supplied the falsely advertised products . . . to 

the Ohio-headquartered entity Macy’s”; to paragraphs 45 and 56 for the proposition that “AQ sold 

these inflated thread-count textiles in many markets . . . including Ohio”; and to paragraphs 8 and 

86 for the proposition that “AQ intended to target consumers in states like Ohio.” Pltfs.’ Resp. at 

4. Plaintiffs do not claim to allege that AQ imported or distributed the products at issue into Ohio; 

they instead say they alleged that the products “imported and supplied . . . to the Ohioheadquartered entity Macy’s.” They do not claim to allege that AQ sold the products at issue in 

Ohio; instead, they say they alleged that AQ sold the products in “many markets . . . including 

Ohio.” And finally, they do not claim to allege that AQ intended to target consumers in Ohio; 

instead, they say they alleged that “AQ intended to target consumers in states like Ohio.” 

A review of the specific allegations in question further reveals the weaknesses in Plaintiffs’ 

position. For example, in paragraphs 45 and 56, Plaintiffs allege the following: 

45. Despite their knowledge, Defendants Creative Textiles and AQ Textiles 

sold sheets and bedding products with inflated thread counts in order to obtain more 

business, and sell more products in a competitive market. 

56. Additionally or in the alternative to the California and Missouri State 

Classes, and pursuant to Federal Rules of Civil Procedure Rule 23(c)(5), Plaintiffs 

seek to represent a Nationwide Class and/or Classes (the “Subclasses”) consisting 

of members from the 50 States and the District of Columbia, as well as any 

subclasses or issue classes that Plaintiffs may proposed and/or the Court may 

designate at the time of class certification. The alternative Nationwide Class or 

state-based Classes could be defined as follows: 

. . . . 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 2 of 20 PAGEID #: 313
3 

Ohio State Class: 

All persons in Ohio that purchased bedding or linen from Defendant Macy’s that 

was manufactured or supplied by Defendant AQ Textiles and/or Defendant 

Creative Textiles and that was packaged or advertised with a representation 

regarding thread count. 

There is no allegation in those paragraphs or anywhere else in the Complaint that AQ sold the 

products at issue “in many markets . . . including Ohio.” The attempt to rely on a description of a 

subclass of unidentified persons in Ohio (neither of the named Plaintiffs is a resident of Ohio) who 

may have purchased the products at issue is unavailing.1

Similarly, Plaintiffs allege the following in paragraphs 8 and 86 of the Complaint: 

8. Venue is proper in this district pursuant to 28 U.S.C. § 1391, because 

Defendants conduct business in this District, and have intentionally availed 

themselves of the laws and market of this District, and a substantial part of the 

events or omissions giving rise to the claims occurred in this District. 

86. Plaintiffs and each of the other Nationwide Class members have had 

sufficient direct dealings with Defendant Macy’s to establish privity of contract. 

Nonetheless, privity is not required here because Plaintiffs and each of the other 

Nationwide Class members are intended third-party beneficiaries of contracts 

between Creative Textiles, AQ Textiles, and Macy’s, and specifically, of Creative 

Textiles’ and AQ Textiles’ warranties. Upon information and belief these contracts 

provided for products warranted to be of a particular thread count, and therefore of 

a quality that would merit a higher price than products labeled with a lower thread 

count. Defendant Macy’s was not intended to be the ultimate consumer of the 

sheets and bedding products and has no rights under the warranty agreements 

attaching to the products, which were for benefit of the consumers only. 

1

 Even if Plaintiffs had alleged this, the case of Demaria v. Nissan N. Am., Inc., No. 15 C 3321, 2016 WL 374145, 

(N.D. Ill. Feb. 1, 2016), demonstrates that out-of-state plaintiffs cannot establish personal jurisdiction over out-ofstate defendants simply by alleging that the defendant engaged in a nationwide course of conduct that included conduct 

in the forum state. In DeMaria, the Court dismissed all claims but those of the Illinois plaintiff because “each 

plaintiff’s claim is predicated on the law of the particular state where he or she purchased a car and the claims of the 

other plaintiffs as alleged remain unrelated to anything that transpired in Illinois.” Id. at *8. Here, determination of 

the named plaintiffs’ claims will depend on the law of the states where they claim to have purchased sheets, and have 

nothing to do with any conduct of AQ occurring in Ohio, even if such conduct had been alleged. 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 3 of 20 PAGEID #: 314
4 

Nowhere in those paragraphs is there an allegation that AQ intended to “target” customers in Ohio 

or indeed any allegation that AQ intended to target customers at all. Plaintiffs cannot remedy such 

failures by recasting those allegations in their brief. 

A review of paragraphs where Plaintiffs claim to have alleged “substantial connections” 

between AQ and Ohio reveals that there are no such connections. There is no allegation that AQ 

has ever done business in Ohio; no allegation that it sells or ships product there; no allegation that 

it owns or leases property or employs persons there; no allegation that it participated in any conduct 

there, whether tied to this lawsuit or otherwise; and indeed, no allegation that any representative 

of Ohio has ever even been to Ohio. In fact, the word “Ohio” appears in only four places in the 

entire Complaint: once in the case caption naming this Court; once in paragraph 13, in the address 

of Macy’s headquarters; and twice in Paragraph 56, where Plaintiffs describe their proposed 

alternative Ohio Class. Given the complete lack of any connections, much less “substantial” 

connections, alleged between AQ and Ohio, there can be no specific jurisdiction over AQ. 

B. Exercising specific jurisdiction over AQ would violate its due process rights. 

In their response, Plaintiffs argue that the due process requirements set forth by the Sixth 

Circuit are satisfied here. The Sixth Circuit’s due process analysis requires that each of three 

prongs be satisfied: 

First, the defendant must purposefully avail himself of the privilege of acting in the 

forum state or causing a consequence in the forum state. Second, the cause of action 

must arise from the defendant's activities there. Finally, the acts of the defendant or 

consequences caused by the defendant must have a substantial enough connection 

with the forum state to make the exercise of jurisdiction over the defendant 

reasonable. 

Rodkey v. 1-800 Flowers Team Servs., Inc., No. 3:16-CV-311, 2017 WL 318473, at *6 (S.D. Ohio 

Jan. 23, 2017) (quoting Means v. United States Conference of Catholic Bishops, 836 F.3d 643, 649 

(6th Cir. 2016)). 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 4 of 20 PAGEID #: 315
5 

Plaintiffs claim that AQ “has only contested the second prong of this test” (the “arising 

from”) prong. In fact, AQ contests all three prongs. The first prong requires “purposeful 

availment” of the privilege of acting in Ohio. Plaintiffs argue that AQ has purposefully availed 

itself of doing business in Ohio by virtue of its “own contacts with Ohio, and its associated business 

dealings with Macy’s.” Pltfs.’ Resp. at 5. As discussed above, there is not a single contact between 

AQ and Ohio alleged in the Complaint. Any finding of “purposeful availment,” then, would seem 

to rest on AQ having allegedly contracted with Macy’s, which is headquartered in Ohio.2 Courts 

in the Sixth Circuit, following the United States Supreme Court, have consistently held that merely 

contracting with an entity based in the forum state, without more, is not sufficient to satisfy due 

process. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985) (“If the question is 

whether an individual’s contract with an out-of-state party alone can automatically establish 

sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that 

it cannot.”); Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 151 (6th Cir. 1997) (“The 

mere fact that Paragon entered into a contract with a Michigan corporation does not mean that 

Paragon purposefully availed itself of the ‘benefits and protections’ of Michigan law.”); 

McMunigal v. Bloch, No. 1:09-CV-01674, 2010 WL 2106189, at *4 (N.D. Ohio Apr. 21, 2010) 

(finding that the purposeful availment prong was not satisfied where “there is no indication that 

Defendant, by entering into the Aspen agreement, intended to create an ongoing relationship with 

Ohio or with Plaintiff beyond what was called for by the agreement”); see also Calphalon Corp. 

2

 Plaintiffs allege the existence of such a contract in paragraph 86 of the Complaint. The vague allegations regarding 

the purported contract do not include any allegation of where the contract was signed, where or how it was negotiated, 

or where it was to be performed. The absence of such allegations is also fatal to Plaintiffs’ attempt to satisfy due 

process. Accord Calphalon Corp. v. Rowlette, 228 F.3d 718, 722 (6th Cir. 2000) (“In Burger King, 471 U.S. at 479, 

105 S.Ct. 2174, the Supreme Court stated that ‘prior negotiations and contemplated future consequences, along with 

the terms of the contract and parties’ actual course of dealing’ must be considered to determine whether ‘the defendant 

purposefully established minimum contacts within the forum.’” (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 

462, 479 (1985))). 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 5 of 20 PAGEID #: 316
6 

v. Rowlette, 228 F.3d 718, 722 (6th Cir. 2000) (“We think the district court correctly recognized 

that the mere existence of a contract between Rowlette and an Ohio citizen for seventeen months 

is insufficient to confer personal jurisdiction over Rowlette.”). 

Plaintiffs also fail the second prong of the due process test: “the cause of action must arise 

from the defendant’s activities there.” Plaintiffs claim that they have satisfied the second prong 

because “Defendants (including AQ), through Macy’s principal place of business in Ohio, 

effectuated the harm to Plaintiffs” and “AQ cannot credibly deny that Ohio serves as an important 

factual nexus for the operative facts in this controversy.” Pltfs.’ Resp. at 6. 

It is Plaintiffs who cannot credibly deny that there is no factual nexus, much less an 

important one, between Ohio and their claims. The only allegation tying any conduct by the 

Defendants to Ohio is the allegation that Macy’s is headquartered there. Plaintiffs do not allege 

that any products were shipped or distributed through Ohio; that any products were labeled in 

Ohio; that any misrepresentations were made in Ohio; that they heard or saw any 

misrepresentations in Ohio. Plaintiffs attempt to remedy this by casting Ohio-based Macy’s as the 

“conduit” for AQ’s conduct. It is nothing more than an attempt to impute Macy’s connections 

with Ohio to AQ for jurisdictional purposes, something that would not even be proper were AQ a 

wholly owned subsidiary of Macy’s, rather than merely an alleged contracting partner. Accord 

Rodkey, 2017 WL 318473, at *3 (“The Sixth Circuit has held that a court may not exercise personal 

jurisdiction over a corporate defendant based on its relationship with another corporation that is 

subject to personal jurisdiction, unless the corporate defendant is an alter ego or successor to the 

other corporation.” (citing Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp. 

Worldwide, 545 F.3d 357, 361 (6th Cir. 2008))). 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 6 of 20 PAGEID #: 317
7 

Plaintiffs also fail the third prong—that AQ must have a “substantial connection” with 

Ohio such that the exercise of jurisdiction would be reasonable. Plaintiffs’ only argument that 

they satisfy this prong is based on their misplaced claims that the first two prongs were satisfied. 

See. Pltfs.’ Resp. at 5 n.2. Because Plaintiffs cannot satisfy any of the due process prongs laid out 

by the Sixth Circuit, their claims against AQ must be dismissed. 

C. Bristol-Myers Squibb supports a finding of no jurisdiction over AQ.

Plaintiffs cite three cases for the proposition that Bristol-Myers Squibb does not apply to 

class actions. Those cases are, however, (1) based on a footnote from the lone dissenting Justice 

in Bristol-Myers Squibb, and (2) isolated from the vast majority of cases holding that Bristol-Myers 

Squibb does apply to class action lawsuits. See, e.g., McDonnell v. Nature’s Way Prods., LLC, No. 

16 C 5011, 2017 WL 4864910, at *4 (N.D. Ill. Oct. 26, 2017) (applying Bristol-Myers Squibb and 

declining to exercise specific jurisdiction over non-resident class members’ claims); Wenokur v. 

AXA Equitable Life Ins. Co., No. CV-17-00165-PHX-DLR, 2017 WL 4357916, at *4, n.4 (D. Ariz. 

Oct. 2, 2017) (noting lack of personal jurisdiction over putative class members with no connection 

to Arizona); In re Dental Supplies Antitrust Litig., No. 16 Civ. 696, 2017 WL 4217115, at *9 

(E.D.N.Y. Sept. 20, 2017) (applying Bristol-Myers Squibb and noting that personal jurisdiction in 

class actions “must comport with due process just the same as any other case”); Practice Mgmt. 

Support Servs., Inc. v. Cirque du Soleil Inc., No. 14 C 2032, --- F. Supp. 3d ----, 2018 WL 1255021, 

at *16 (N.D. Ill. Mar. 12, 2018) (citing Bristol-Myers Squibb as part of finding no reason to 

distinguish mass action from class action); DeBernardis v. NBTY, Inc., No. 17 C 6125, 2018 WL 

461228, at *2 (N.D. Ill. Jan. 18, 2018) (dismissing out-of-state class claims under Bristol-Myers 

Squibb); LDGP, LLC v. Cynosure, Inc., No. 15 C 50148, 2018 WL 439122, at *3 (N.D. Ill. Jan. 

16, 2018) (same); Dyson v. Bayer Corp., No. 4:17CV2584 SNLJ, 2018 WL 534375, at *5 (E.D. 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 7 of 20 PAGEID #: 318
8 

Mo. Jan. 24, 2018) (finding no jurisdiction over out-of-state plaintiffs’ claims pursuant to BristolMyers Squibb); Jordan v. Bayer Corp., No. 4:17-cv-00865-AGF, 2018 WL 837700, at *4 (E.D. 

Mo. Feb. 13, 2018) (same); Jordan v. Bayer Corp., No. 4:17-cv-00865 (CEJ), 2017 WL 3006993, 

at *4 (E.D. Mo. July 14, 2017) (same); Spratley v. FCA US LLC, 3:17-CV-0062, 2017 WL 

4023348, at *9 (N.D. N.Y. Sept. 12, 2017) (same). AQ’s reading of Bristol-Myers Squibb is not 

expansive, but merely the correct application of the law.3

D. Ohio’s long-arm statute is not satisfied solely by an allegation that AQ contracted 

with Macy’s, an Ohio-based corporation. 

Plaintiffs cannot satisfy Ohio’s long-arm statute. The statute, Ohio Rev. Code § 2307.382, 

provides several different bases for jurisdiction, each of which will be sufficient to confer 

jurisdiction only with respect to “a cause of action arising from acts enumerated in this section.” 

Ohio Rev. Code § 2307.382(c). In their Response, Plaintiffs argue that two of the enumerated 

bases apply: 2307.382(a)(1), regarding the transaction of business in Ohio; and 2307.382(a)(2), 

“contracting to supply services or goods in this state.” Pltfs.’ Resp. at 7-8. Both provisions are 

unavailing. 

Plaintiffs first argue that AQ has transacted business in Ohio, and that their claims arise 

out of such transaction. It appears that Plaintiffs argue that AQ has transacted business in Ohio 

through contracting with Macy’s, an Ohio-headquartered entity. That argument has already been 

shown to be deficient in the due process inquiry, and the same argument has been rejected by this 

Court in the context of the long-arm statute. See Field Aerospace, Inc. v. Boeing Co., No. 1:17-

CV-379, 2017 WL 2688050, at *5 (S.D. Ohio June 22, 2017) (holding that, to be transacting 

business in Ohio, the out-of-state defendant must have ‘ongoing substantive contacts,’ and ‘the 

3

 Plaintiffs should take no comfort in the Supreme Court’s denial of certiorari in GlaxoSmithKline LLC v. M.M., 199 

L.E.2d 20 (2017). The Court did not reveal any reason for its denial. In addition, in GSK, the defendant conceded 

purposeful availment with the State of Illinois. M.M. v. GlaxoSmithKline LLC, 2016 IL App (1st) 151909 (2016).

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 8 of 20 PAGEID #: 319
9 

existence of a contract or simply soliciting business in Ohio is not enough.’” (quoting Evenflo Co., 

Inc. v. Augustine, No. 3:14-cv-00076, 2014 WL 3105016, at *10 (S.D. Ohio July 3, 2014));

Rodkey, 2017 WL 318473, at *5 (holding that defendant did not “transact business” for purposes 

of the long-arm statute where it “does not have an office or mailing address in Ohio; does not own, 

lease, manage, or maintain any property in Ohio; and does not have any employees in Ohio” and 

“[t]here is no evidence that [defendant] negotiated or entered into [a contract] in Ohio.”); see also 

Ashton Park Apts., Ltd. v. Carlton-Naumann Constr., Inc., 2009-Ohio-6335, ¶¶ 15-19 (affirming 

dismissal for lack of personal jurisdiction and holding that appellee “was not ‘transacting business’ 

in Ohio by entering into a single contract with two Ohio residents to build a home in Florida.”). 

Plaintiffs’ first argument fails. 

Plaintiffs then argue that jurisdiction is proper under the long-arm statute because AQ 

“contracted with Macy’s, a corporation based in Ohio, to supply goods and services.” Pltfs.’ Resp. 

at 8. This argument, however, ignores the full text of subsection 2307.382(a)(2), which requires 

that Plaintiffs’ claims arise from AQ’s “contracting to supply services or goods in this state” 

(emphasis added). Plaintiffs do not allege anywhere that AQ contracted with Macy’s to provide 

goods or services in Ohio, or that AQ in fact provided any goods or services in Ohio. They instead 

suggest that contracting with an Ohio company alone, regardless of where goods and services will 

be provided, is enough to confer jurisdiction. That runs counter to the holding in the Ashton Park 

Apartments case cited above, and would produce absurd results; for example, it would suggest that 

a North Carolina-based company that contracted with Macy’s to maintain the premises in Macy’s 

North Carolina stores could be sued in Ohio for an injury suffered in a North Carolina Macy’s. 

More importantly, such a formulation would run afoul of the consistent guidance from federal 

courts that jurisdiction be based on contacts that are not “fortuitous” or “attenuated.” See, e.g., 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 9 of 20 PAGEID #: 320
10 

Calphalon, 228 F.3d at 723 (refusing to find personal jurisdiction over out-of-state defendant 

where any contacts with Ohio “occurred solely because Calphalon chose to be headquartered in 

Ohio, not because [defendant] sought to further its business and create ‘continuous and substantial’ 

consequences there.”). 

The claims against AQ must be dismissed for lack of personal jurisdiction. 

II. PLAINTIFFS LACK STANDING TO BRING CLASS CLAIMS FOR PRODUCTS 

THEY DID NOT PURCHASE. 

Plaintiffs argue that they have standing because the misrepresentations at issue are 

substantially similar, and that the determination of their standing should be deferred until the class 

certification stage. Although Plaintiffs identify the proper test, they do not apply it correctly. 

A. Plaintiffs have no standing to bring class claims for products they did not purchase 

because different sheet sets present distinct factual and legal issues. 

Plaintiffs first argue that they have standing to bring claims with respect to not just the 

sheets they purchased, but “all “bedding or linen manufactured or supplied by Defendant AQ 

Textiles and/or Defendant Creative Textiles that was packaged or advertised with a representation 

regarding its thread count and sold at a Macy’s store,” because those claims “arise from the 

identical misleading labeling statement – that Defendants’ products are of a higher thread count 

than they are.” Pltfs.’ Resp. at 9. They claim that “[t]he underlying harm [to consumers] is 

identical no matter if the misrepresentation is 500, 700, or 1200 thread count, or any other 

misrepresented number.” Id. at 10. 

That formulation of Plaintiffs’ claims, however, ignores the very logic on which their 

claims rest. Plaintiffs allege that “thread count is used as an indicator of fabric quality and a basis 

on which they make purchasing decisions. As the thread count increases, so does the price that 

consumers are willing to pay for bedding and linens.” Compl. ¶ 19. They then claim that “[t]he 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 10 of 20 PAGEID #: 321
11 

inflated thread counts put forth by Defendants in their products induced Plaintiffs and other Class 

Members to purchase their products when Plaintiffs and other Class Members would not have 

purchased them, or would only have paid a lower price for the product if they had known the actual 

thread counts at the time of purchase.” Id. ¶ 50. They claim that “[t]he Products were therefore 

worth less than the Products as represented, and Plaintiffs and Class Members paid extra or a 

premium for them.” Id. ¶ 94. 

Those allegations demonstrate the central theme of Plaintiffs’ claims: that consumers will 

pay more for sheets with higher thread counts, and how much they will pay depends on consumers’ 

perceptions of how much sheets of a certain thread count are worth. It is not then the case that 

“[t]he underlying harm [to consumers] is identical no matter if the misrepresentation is 500, 700, 

or 1200 thread count, or any other misrepresented number.” Instead, the harm for each plaintiff 

will depend on no less than five distinct factual issues: (1) the represented thread count of the 

sheets purchased, (2) the “actual” thread count of the sheets purchased, (3) the amount that each 

plaintiff paid for her sheets, (4) the quality or utility of the sheets purchased, and (5) the amount 

that each plaintiff “would” have paid if she knew the true thread count and/or quality of the sheets. 

If it is true that consumers would pay more for 700-thread-count sheets than 500 thread-count 

sheets, and more for 1200 thread-count sheets than 700 thread-count sheets, then the exact 

represented thread count (not to mention the exact “actual” thread count) of each set of sheets is 

crucial, and differences in those thread counts could completely change the nature and outcome of 

individual plaintiffs’ claims. Conversely, if Plaintiffs actually mean to suggest that there is no 

difference between thread counts of 500, 700, or 1200, then they are admitting that their claims 

are without merit. 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 11 of 20 PAGEID #: 322
12 

Plaintiffs cite to three cases in support of their claim that the unpurchased products here 

are substantially similar to the ones they actually purchased (Pltfs.’ Resp. at 9-10 & n.3), but each 

case is factually distinguishable from this one. In Astiana v. Dreyer’s Grand Ice Cream, Inc., No. 

C-11-2910 EMC, 2012 WL 2990766, at *13 (N.D. Cal. July 20, 2012, the court found that the 

plaintiffs were challenging the “same basic mislabeling practice” on ice cream products where 

each of the labels at issue said one of two things—“All Natural Flavors” or “All Natural Ice 

Cream.” In Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 892 (N.D. Cal. 2012), the 

Plaintiffs claimed that all products at issue were identically labeled as “organic,” and the court 

based its ruling in part on the fact that the plaintiffs disclaimed “any intent to challenge whether 

specific ingredients actually are organic.” Finally, in Mednick v. Precor, Inc., No. 14 C 3624, 

2014 WL 6474915, at *4 (N.D. Ill. Nov. 13, 2014), the Court found that the plaintiffs’ claims 

regarding both purchased and unpurchased exercise equipment the claims relied “on essentially 

the same misrepresentation”—that touch sensors contained in each product were accurate. There 

is no basis in the Complaint for a finding that the alleged misrepresentations for the unpurchased 

products are “substantially similar” to alleged misrepresentations for the purchased products.

The decision in Rushing v. Williams-Sonoma, Inc., No. 16-CV-01421-WHO, 2016 WL 

4269787 (N.D. Cal. Aug. 15, 2016), in contrast, demonstrated why Plaintiffs lack standing for 

claims about other products. There, the plaintiff brought class-action claims accusing WilliamsSonoma and other retailers of selling sheets with inflated thread counts. The plaintiff attempted 

to bring class-action claims not only with respect to the sheets he purchased—which he claimed 

had an inflated thread count due to counting two-ply yarn as two threads rather than one—but for 

“31 additional products with misleading thread counts at or above 350,” which he claimed could 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 12 of 20 PAGEID #: 323
13 

be reasonably presumed to have exaggerated thread counts. Id. at *2. The defendants sought to 

dismiss all of the plaintiff’s claims with respect to sheets he did not actually purchase. 

The court in Rushing first described the situations in which it would allow a plaintiff to 

proceed with class claims with respect to products he did not purchase, saying that the inquiry 

“necessarily focuses on whether the resolution of the asserted claims will be identical between the 

purchased and unpurchased products.” Id. at *3 (quoting Ang v. Bimbo Bakeries USA, Inc., No. 

13-CV-01196-WHO, 2014 WL 1024182, at *8 (N.D. Cal. Mar. 13, 2014)). The court went on the 

say that “a claim that a reasonable consumer would be misled by a representation on a label may 

well require a context-specific analysis of the appearance of the label, the misrepresentation’s 

placement on the label, and other information contained on the label,” and that “where the actual 

composition or appearance of the product is legally significant to the claim at issue, the consumer 

may only be allowed to pursue claims for products with identical product composition and/or 

appearance.” Id. (quoting Ang, 2014 WL 1024182, at *8). 

Applying those standards, the court found that the plaintiff could only proceed with claims 

for sheets that suffered from the exact same alleged misrepresentation—counting two-ply yarn as 

two threads, holding that “[t]he legal theory and defenses applicable to his claim are legally 

significant and raise different questions not applicable” to any other alleged thread-count defects. 

Id. at *4. And even then, the Court would only allow the plaintiff to proceed with other claims 

“only to the extent that he can plausibly allege, consistent with Rule 11, that the unpurchased 

products are two-ply products that suffer from the same deception of which he complains.” Id. 

Applying the reasoning of the court in Rushing to the alleged facts here, Plaintiffs’ claims 

with respect to products they did not purchase fail. Plaintiffs attempt to characterize all alleged 

misrepresentations regarding thread count as identical, but provide no factual basis for the Court 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 13 of 20 PAGEID #: 324
14 

to assess the validity of that claim. They do not make any allegations regarding how, why, or in 

what proportion the thread counts are incorrect, except to say that they are “inflated.” Indeed, 

there is not even consistency among the named Plaintiffs’ own claims; while Plaintiff Hawes 

alleges that she purchased sheets with a represented thread count of 900 and an “actual” thread 

count of 249 (Compl. ¶ 39), Plaintiff Hill alleges that she purchased sheets with a represented 

thread count of 1000 but says only that the “actual” thread count was “far less.” (id. ¶ 38). Nor do 

Plaintiffs even directly allege which other sheet sets may have misrepresented thread counts; 

instead, they say only that they seek to bring class claims for all sheet sets with thread counts 

provided to Macy’s by AQ, without individually naming those sheet sets or even directly alleging 

that the thread counts for those other sets are inaccurate. 

Plaintiffs’ own allegations reveal that distinct legal and factual issues would determine the 

resolution of any claims for products they did not actually purchase. Plaintiffs have failed even to 

allege sufficient detail for the Court to determine the issues involved, and their claims with respect 

to any products other than the ones they actually purchased must be dismissed. 

B. There is no reason to delay dismissal of Plaintiffs’ claims for products they did not 

purchase until the class certification stage. 

Plaintiffs next argue that the Court should delay a ruling on whether their claims for 

products they did not purchase should proceed until the class certification stage. They argue that 

the Court in Godec v. Bayer Corp., No. 1:10-CV-224, 2011 WL 5513202 (N.D. Ohio Nov. 11, 

2011), cited by AQ, did not dismiss the plaintiff’s claims for products he did not purchase until 

that stage, saying that the court was “engaging in Rule 23(a)(4) analysis.” Pltfs.’ Resp. at 10. 

The court in Godec, however, was not engaging in Rule 23 analysis when it dismissed the 

plaintiff’s claims for products he did not purchase; in fact, the court explicitly did so “before 

turning to the requirements of Rule 23.” Godec, 2011 WL 5513202, at *2. That the court did so 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 14 of 20 PAGEID #: 325
15 

without having to consider class certification issues demonstrates that the question of whether 

Plaintiffs have standing to proceed with respect to products they did not purchase is not 

“intertwined” with class certification issues. See Pltfs.’ Resp. at 10. Plaintiffs’ vague description 

of the other products over which they claim to be suing—and the necessity of determining distinct 

factual and legal issues for each product, if ever identified—demonstrate that there is no reason to 

let those claims proceed any further than the 12(b)(6) stage. 

III. PLAINTIFFS’ ATTEMPT TO RECAST THEIR ALLEGATIONS IN THEIR 

RESPONSE CANNOT CURE THE SUBSTANTIVE DEFICIENCIES IN THEIR 

CLAIMS. 

In response to AQ’s original Memorandum, Plaintiffs attempt to supplement their deficient 

Complaint through exposition in their Response. However, “it is black letter law that a plaintiff 

may not cure a pleading deficiency through assertions in a brief in opposition to a motion to 

dismiss.” Mohawk Rebar Serv., Inc. v. Int’l Ass’n of Bridge, Structural, Ornamental & Reinforcing 

Iron Workers Local Union No. 17, No. 1:14 CV 00137, 2015 WL 5657252, at *8 (N.D. Ohio Sept. 

24, 2015). Because their actual allegations fail to state any cognizable claim, each of Plaintiffs’ 

claims must be dismissed.

A. Plaintiffs MMWA claim should be dismissed for failure to plead a “specified level 

of performance over a specified period of time.” 

Plaintiffs have failed to state a claim under the MMWA. Plaintiffs have not alleged a 

warranty that “affirms or promises that such material or workmanship is defect free or will meet a 

specified level of performance over a specified period of time” or which includes a promise “to 

refund, repair, replace, or take other remedial action with respect to such product in the event that 

such product fails to meet the specifications set forth in the undertaking.” See 15 U.S.C. § 2301(6) 

(emphasis added). Even if, arguendo, the Court were to read Plaintiffs’ arguments regarding 

quality of sleep or softness into the Complaint, the Complaint would still contain no allegations 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 15 of 20 PAGEID #: 326
16 

whatsoever as to a level of quality of sleep or a specified period of time. Instead, the allegations 

of the Complaint state only that Plaintiffs had a subjective belief that the sheets “were of a higher 

quality, softer, and better for sleeping than sheets with lower thread counts.” Compl. ¶¶ 11, 12. 

Plaintiffs’ allegations about what Plaintiffs believed about sheets, however, do not constitute 

representations made by Defendants regarding a specified level of performance over a specified 

period of time. Plaintiffs’ MMWA claims must be dismissed. 

B. Plaintiffs’ breach of warranty of merchantability claim should be dismissed for 

failure to plead that the sheets lacked “even the most basic degree of fitness for 

ordinary use.” 

Plaintiffs have also failed to state a claim for breach of the implied warranty of 

merchantability. Under both Missouri and California law, the fundamental inquiry for a claim of 

breach of an implied warranty of merchantability is whether “the product lacks even the most basic 

degree of fitness for ordinary use.” Birdsong v. Apple, Inc., 590 F.3d 955. 958 (9th Cir. 2009); see 

also Hope v. Nissan N. Am., Inc., 353 S.W.3d 68, 90 (Mo. Ct. App. 2011) (“The implied 

warranty of merchantability does not mean a promise by the merchant that the goods are exactly 

as the buyer expected, but rather that the goods satisfy a minimum level of quality.”). 

Plaintiffs claim that they have alleged that “the result of the low thread count and false 

promises caused deficiencies in the bed sheets softness, comfort, and durability necessary for 

quality sleeping.” Pltfs.’ Resp. at 14. In fact they have alleged no such thing. The paragraphs 

they primarily cite to in support of that proposition, paragraphs 1 and 2 of the Complaint say only 

that members of the industry, including Defendants, represent that sheets with higher thread count 

are of better quality than those of lower thread count. Nowhere do they allege that the sheets they 

purchased were not as soft, comfortable, or durable as they should have been, based on their 

represented thread count. Indeed, other than a single, barren allegation that the sheets “were unfit 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 16 of 20 PAGEID #: 327
17 

for the ordinary purpose for which they are used,” Compl. ¶ 160, the Complaint contains no 

allegations whatsoever that Plaintiffs slept less comfortably as a result of using the sheets. In fact, 

the Complaint does not even allege that either of the Plaintiffs used the sheets. Because the 

Complaint contains no actual allegations that the sheets were unfit for their intended purpose, 

Plaintiffs’ breach of implied warranty claim must be dismissed. 

C. Plaintiffs’ fraud claims should be dismissed for failure to plead those claims with 

particularity.4

Plaintiffs’ fraud claims are not pleaded with particularity and must be dismissed. The lack 

of particularity in Plaintiffs’ allegations is made manifest in their response to AQ’s memorandum 

in support of its motion to dismiss. Plaintiffs’ particularity arguments refer only to “Macy’s,” 

“Defendants,” “Defendant,” or to no party at all. See Pls. Resp. at 15-17. Plaintiffs do not and 

cannot cite a single instance alleging purportedly fraudulent conduct by AQ. See id. Moreover, 

group pleading per se fails to meet the requirements of Rule 9(b). See Streambend Properties II, 

LLC v. Ivy Tower Minneapolis, LLC, 781 F.3d 1003, 1013 (8th Cir. 2015) (“The [Second Amended 

Complaint] attributed fraudulent representations and conduct to multiple defendants generally, in 

a group pleading fashion. The district court correctly concluded that such vague allegations do not 

satisfy Rule 9(b). . . . ‘Where multiple defendants are asked to respond to allegations of fraud, the 

complaint should inform each defendant of the nature of his alleged participation in the fraud.’” 

(quoting DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d. Cir. 1987)); 

Swartz v. KPMG, LLP, 476 F.3d 756, 764-65 (9th Cir. 2007) (“Rule 9(b) does not allow a 

complaint to merely lump multiple defendants together but require[s] plaintiffs to differentiate 

their allegations when suing more than one defendant . . . and inform each defendant separately of 

4

 The fraud claims include Count Ten (fraud under both California and Missouri law) and Counts Two, Three, Four, 

Five, Six and Seven (statutory consumer protection claims) which all sound in fraud. 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 17 of 20 PAGEID #: 328
18 

the allegations surrounding his alleged participation in the fraud.” (internal quotation marks 

omitted)). Plaintiffs’ fraud claims should be dismissed for failure to plead with particularity.5

D. Plaintiffs’ Consumer Legal Remedies Act (“CLRA”) and warranty claims should 

be dismissed not just for failure to plead notice, but because Plaintiffs explicitly 

allege inadequate notice. 

Plaintiffs again seek to supplement the Complaint by claiming they provided adequate 

notice of their warranty and CLRA claims. Plaintiffs’ argument again misses the mark. The 

question is not whether Plaintiffs provided notice, which this reply does not address, but whether 

they pleaded notice, which is required by both California and Missouri law. See Minkler v. Apple, 

Inc., 65 F. Supp. 3d 810, 817 (N.D. Cal. 2014) (dismissing breach of warranty claims for failure 

to plead reasonable notice); Budach v. NIBCO, Inc., No. 2:14-cv-04324-NKL, 2015 WL 687-145, 

at *3 (W.D. Mo. Nov. 6, 2015) (dismissing breach of warranty claims due to failure to plead presuit notice). Not only have Plaintiffs failed to plead appropriate notice,6

 but Plaintiffs allege in the 

Complaint that they have not provided appropriate notice and demand pursuant to California Civil 

Code 1782. See Compl. ¶ 153. Plaintiffs’ CLRA and breach of warranty claims fail. 

For the reasons stated herein and in AQ’s original Memorandum, Plaintiffs’ claims against 

AQ must be dismissed in their entirety. 

5

 Plaintiffs’ arguments regarding economic loss should have no bearing on this matter for the same reason their fraud 

claims should be dismissed: any fraudulent inducement exception to the economic loss rule does not apply because 

Plaintiffs have failed to plead fraud with particularity. 

6

 Plaintiffs allege that they have provided notice by filing multiple complaints. See id. ¶ 161. AQ has been unable to 

any legal support for the argument that filing previous complaints will provide proper notice and opportunity to cure. 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 18 of 20 PAGEID #: 329
19 

Respectfully submitted, this the 23rd day of March, 2018. 

/s/ Beth A. Bryan 

John B. Nalbandian (Ohio Reg. 0073033) 

Beth A. Bryan (Ohio Reg. 0082076) 

TAFT STETTINIUS & HOLLISTER LLP 

425 Walnut Street, Suite 1800 

Cincinnati, Ohio 45202 

Phone: (513) 381-2838 

Fax: (513) 381-0205 

nalbandian@taftlaw.com

bryan@taftlaw.com

Reid L. Phillips (admitted pro hac vice) 

NC State Bar No. 7968

Jennifer K. Van Zant (admitted pro hac vice) 

NC State Bar No. 21280 

Andrew L. Rodenbough (admitted pro hac vice) 

NC State Bar No. 46364

Ryan C. Fairchild (admitted pro hac vice) 

N.C. State Bar No. 47729 

BROOKS, PIERCE, MCLENDON,

HUMPHREY & LEONARD, LLP 

230 North Elm Street 

2000 Renaissance Plaza 

Greensboro, NC 27401 

Telephone: (336) 373-8850 

Facsimile: (336) 378-1001 

rphillips@brookspierce.com

jvanzant@brookspierce.com

arodenbough@brookspierce.com 

rfairchild@brookspierce.com 

Attorneys for Defendant 

AQ TEXTILES LLC 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 19 of 20 PAGEID #: 330
20 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that the foregoing document was filed via the Court’s 

CM/ECF system, which will send electronic notification to all counsel of record. 

This the 23rd day of March, 2018. 

/s/ Beth A. Bryan 

Beth A. Bryan 

22227373.1 

Case: 1:17-cv-00754-DRC Doc #: 33 Filed: 03/26/18 Page: 20 of 20 PAGEID #: 331