UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Melanie Beckemeyer, 

Plaintiff, Case No. 1:17cv695

v. Judge Michael R. Barrett

Gelco Corporation,

Defendant.

OPINION & ORDER 

This matter is before the Court upon Defendant Gelco Corporation’s Motion for 

Judgment on the Pleadings. (Doc. 14). Plaintiff has filed a Response in Opposition. 

(Doc. 15). Also before the Court is Plaintiff Melanie Beckemeyer’s Amended Motion for 

Leave to Amend the Complaint. (Doc. 21). Defendant opposes Plaintiff’s Amended 

Motion for Leave to Amend. (Doc. 22).

I. BACKGROUND

In 2016, Plaintiff Melanie Beckemeyer became employed by Avanir 

Pharmaceuticals as a senior Medical Science Liaison. (Doc. 21, ¶ 5). Plaintiff was 

responsible for covering the territory of Ohio, Kentucky and parts of Indiana and 

Pennsylvania. (Doc. 21, ¶ 5). Avanir contracted with Defendant to provide a company 

vehicle to Plaintiff. (Doc. 21, ¶ 6). This contract between Avanir and Defendant is titled

“Master Lease Agreement.” (Doc. 14-1). Plaintiff alleges that the vehicle she received 

was contaminated with mold or some other environmental hazard. (Doc. 21, ¶ 7). Plaintiff 

claims that she developed severe health conditions as a result of the contamination. 

(Doc. 21, ¶ 8).
2

Plaintiff informed Defendant of the contamination. (Doc. 21, ¶ 9). Defendant took 

steps to remedy the contamination. (Doc. 21, ¶ 9). 

In her original Complaint, Plaintiff brought claims for negligence and breach of 

contract. In response, Defendant filed a Motion for Judgment on the Pleadings. (Doc. 

14). In May of 2018, Plaintiff filed a Motion for Leave to Amend the Complaint (Doc. 16), 

but on August 17, 2018, Plaintiff filed an Amended Motion for Leave to Amend the 

Complaint (Doc. 21). Plaintiff’s proposed amended complaint does not add any claims or 

parties, but merely adds factual allegations.

Defendant opposes Plaintiff’s Amended Motion, maintaining that the motion is 

untimely and amending the Complaint would futile because Plaintiff’s claims cannot 

overcome Defendant’s Motion for Judgment on the Pleadings.

II. ANALYSIS

A. Motion for Judgement on the Pleadings

A motion for judgment on the pleadings under Federal Rule of Civil Procedure 

12(c) is subject to the same standard of review as a Rule 12(b)(6) motion. 

Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir. 

2005). “The factual allegations in the complaint need to be sufficient to give notice to the 

defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient factual 

matter’ to render the legal claim plausible, i.e., more than merely possible.” Fritz v. 

Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 

556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

Defendant’s Motion for Judgment on the Pleadings is directed toward the original 

Complaint. If the Court grants Plaintiff’s Amended Motion for Leave to Amend the 
3

Complaint, Defendant’s Motion for Judgment on the Pleadings would be denied as moot. 

See Drake v. City of Detroit, Michigan, 266 F. App'x 444, 448 (6th Cir. 2008) (amended 

complaint renders original complaint a nullity, because an amended complaint 

supercedes all prior complaints) (citing Pintando v. Miami–Dade Housing Agency, 501 

F.3d 1241, 1243 (11th Cir. 2007)). Therefore, the Court will first address Plaintiff’s 

Amended Motion for Leave to Amend the Complaint.

B. Motion for Leave to Amend the Complaint

Federal Rule of Civil Procedure 15(a)(2) provides that a Court “should freely give 

leave [to amend] when justice so requires.” A motion to amend may be denied where 

there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated 

failure to cure deficiencies by amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowance of the amendment, futility of amendment, etc.” 

Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 521 (6th Cir. 2010), cert. 

denied, 131 S. Ct. 220 (2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 

Defendant maintains that Plaintiff’s Amended Motion for Leave to Amend is 

untimely because this Court set March 31, 2018 as the deadline for filing a motion for 

leave to amend the complaint. (Doc. 10, ¶ 2).

Once the scheduling order's pleading deadline passes, “a plaintiff first must show 

good cause under Rule 16(b) for failure earlier to seek leave to amend before a court will 

consider whether amendment is proper under Rule 15(a).” Leary v. Daeschner, 349 F.3d 

888, 906-907 (6th Cir. 2003) (citing Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th 

Cir. 1998)). “The primary measure of Rule 16's good cause standard is the moving party's 

diligence in attempting to meet the case management order's requirements.” Inge v. Rock 
4

Fin. Group, 281 F.3d. 613, 625 (6th Cir. 2002) (internal citation and quotation marks 

omitted). A court must also consider whether the amendment will prejudice the party 

opposing it. Leary, 349 F.3d at 906, 908.

The Sixth Circuit has explained that “[i]n determining what constitutes prejudice, 

the court considers whether the assertion of the new claim or defense would: require the 

opponent to expend significant additional resources to conduct discovery and prepare for 

trial; significantly delay the resolution of the dispute; or prevent the plaintiff from bringing 

a timely action in another jurisdiction.” Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 

1994).

The Court notes that this Court recently granted the parties request to extend the 

discovery deadline to March 31, 2019 and the dispositive motion deadline to April 15, 

2019. Therefore, Defendant would not suffer prejudice if Plaintiff is permitted to amend 

her Complaint.

Defendant also maintains that the Amended Motion for Leave to Amend is futile

for a number of reasons. A proposed amendment to a complaint is futile only if it could 

not withstand a Rule 12(b)(6) motion to dismiss. Rose v. Hartford Underwriters Ins. Co., 

203 F.3d 417, 421 (6th Cir. 2000).

Defendant first argues that the Amended Motion is futile because even the newlycreated allegations in the proposed amended complaint (Doc. 21-1) do not establish a 

recognized negligence claim under Ohio law. Defendant explains the allegations are 

insufficient to establish liability under Ohio’s Product Liability Act (“OPLA”), Ohio Revised 

Code § 2307.71, et seq. because Defendant is not a “supplier.” 

The OPLA expressly abolished all common law product liability claims. 
5

Krumpelbeck v. Breg, Inc., 491 Fed.Appx. 713, 715 (6th Cir. 2012). Under the statute:

“Product liability claim” means a claim or cause of action that is asserted in 

a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code 

and that seeks to recover compensatory damages from a manufacturer or 

supplier for death, physical injury to person, emotional distress, or physical 

damage to property other than the product in question, that allegedly arose 

from the following:

(a) The design, formulation, production, construction, creation, assembly, 

rebuilding, testing or marketing of that product;

(b) Any warning or instruction, or lack of warning or instruction, associated 

with that product;

(c) Any failure of that product to conform to any relevant representation or 

warranty.

Ohio Rev. Code § 2307.71(A)(13). A “supplier” is defined as a “person that, in the course 

of business conducted for the purpose, sells, distributes, leases, prepares, blends, 

packages, labels, or otherwise participates in the placing of a product in the stream of 

commerce.” Ohio Rev. Code § 2307.71(A)(15)(a)(1). 

Plaintiff argues that her negligence claim does not fall within the category of claims 

preempted by OLPA because her claim is based on Defendant’s own negligence, not 

because Defendant placed a product into the stream of commerce. 

This Court has held that the common law negligence actions which are preempted 

by the OPLA are those where “[t]he actionable conduct that forms the basis of the 

negligence claim-negligent research, manufacturing, testing, marketing, and failure to 

warn-is the same conduct that the OPLA defines as giving rise to a ‘products liability 

claim.’” Mitchell v. Proctor & Gamble, No. 2:09-CV-426, 2010 WL 728222, at *4 (S.D. 

Ohio Mar. 1, 2010) (quoting Stratford v. SmithKline Beecham Corp., No. 2:07-CV-639, 

2008 WL 2491965, at *5 (S.D. Ohio June 17, 2008). Here, Plaintiff has not alleged 
6

conduct which would form the basis of a products liability claim under the OPLA. In her 

proposed amended complaint, Plaintiff alleges that she notified Defendant that the vehicle 

was contaminated, but Defendant failed to alleviate the hazard and provided faulty 

directions concerning remediation of the hazard. (Doc. 21-1 at ¶¶ 8, 10, 22). These 

allegations do not involve the design, formulation, production, construction, creation, 

assembly, rebuilding, testing or marketing of a product; a lack of warning regarding a 

product; or breach of an implied warranty. Therefore, Plaintiff’s negligence claim does 

not fall within the definition of a “products liability claim” under Ohio Revised Code § 

2307.71(A)(13). Accordingly, Plaintiff’s negligence claim is not preempted by OPLA.

Next, Defendant maintains that the Amended Motion for Leave to Amend is futile 

because the pleadings in Plaintiff’s proposed amended complaint do not establish a 

relationship between Defendant and Plaintiff that gives rise to a legal duty. Defendant 

argues that under the Master Lease Agreement, Plaintiff’s employer, Avanir, has the 

responsibility for maintenance, selection, possession and operation of the vehicle.

One Ohio court has held that financial lessors do not owe a legal duty to persons 

using the equipment that is the subject of the lease. Long v. Tokai Bank of California, 

114 Ohio App. 3d 116, 127, 682 N.E.2d 1052, 1060 (Ohio Ct. App. 1996). In Long, an 

employee was injured by a flocking machine which was leased by his employer. Id. at 

1053. The employee brought a claim for negligence against the seller and manufacturer 

of the machine, along with the bank which provided the financing for the purchase of the 

machine. Id. The bank did not participate in the selection or negotiation of terms of the 

sale; never had possession, custody, or control over the machine; and did not participate 

in its possession, maintenance, or operation. Id. The court explained that based on the 
7

defendant’s lack of involvement as a financial lessor, the defendant did not owe a duty to 

the employee. Id. at 1060. The court explained:

The sole argument advanced by appellants to establish a duty is the control 

that Tokai exercised, pursuant to the master lease agreement. As we 

previously noted, Tokai had no direct involvement with the flocking machine 

other than as a financial lessor. Under the circumstances, Tokai was not in 

a position to inspect the product, nor was it required to do so. See Bickram 

v. Case I.H. (E.D.N.Y.1989), 712 F.Supp. 18, 23. See, also, Starobin v. 

Niagara Machine & Tool Works Corp. (N.Y.App.1991), 172 A.D.2d 64, 66–

67, 577 N.Y.S.2d 327, 329 (holding that even reservation of right by lessor 

to inspect leased equipment at any time did not create affirmative duty of 

care). As a result, Tokai is not liable to appellants based on negligence 

theories.

Id.

1 Here, in her proposed amended complaint, Plaintiff alleges that Defendant:

directly contacted Plaintiff by electronic mail on April 29, 2016 to provide 

details regarding the vehicle Defendant was arranging to deliver to Plaintiff. 

(See Ex. A hereto). The email provided Plaintiff with Defendant’s phone 

number and email address and instructed Plaintiff: “[Defendant’s] Driver 

Support Center should be your First Point of Contact for all your fleet 

needs.” (emphasis in original). The email also attached a document entitled 

“Welcome Melanie” which provided further information about when and how 

Plaintiff should contact Defendant for maintenance needs. (Ex. B).

(Doc. 21-1, PAGEID# 114). Plaintiff also alleges that after receiving the vehicle, she 

contacted Defendant as instructed and reported the condition of the vehicle. (Doc. 21-1, 

PAGEID# 114). Plaintiff claims Defendant provided her with instructions for service of 

the vehicle over the next several months. (Doc. 21-1, PAGEID# 115). Plaintiff alleges 

further that “Defendant made affirmative representations to Plaintiff that maintenance, 

service and repair needs would be promptly addressed and remedied by Defendant.” 

(Doc. 21-2, PAGEID#115). Based on these allegations, Defendant did exert some control 

 1

The OPLA has codified this holding to the extent that the statute applies to product 

liability claims. The OPLA provides that a “supplier” does not include “[a]ny person who acts 

only in a financial capacity with respect to the sale of a product, or who leases a product under a 

lease arrangement in which the selection, possession, maintenance, and operation of the 

product are controlled by a person other than the lessor.” Ohio Rev. Code § 2307.71 (15)(a)(iv).
8

over the vehicle; and did participate to some extent in its maintenance. Therefore, Plaintiff 

alleges that Defendant was more than just a financial lessor. Given that Plaintiff’s 

negligence claim is limited to Defendant’s response once Plaintiff notified Defendant that 

the vehicle was contaminated, Plaintiff’s proposed amendments to this claim would not 

be futile.

However, Defendant argues that Plaintiff has not adequately plead a negligence 

claim because Defendant did not owe a duty to Plaintiff. It is well-established that before

there can be negligence, there must be a duty. Thompson v. Germantown Cemetery, 

188 Ohio App. 3d 132, 137, 934 N.E.2d 956, 959-960 (Ohio Ct. App. 2010). A duty of 

care may be imposed by operation of law or by contract. Hubbell v. Xenia, 175 Ohio App. 

3d 99, 105, 885 N.E.2d 290, 295 (Ohio Ct. App. 2008). “The existence of a duty in a 

negligence action is a question of law for the court, and there is no express formula for 

determining whether or not a duty exists.” Adelman v. Timman, 117 Ohio App.3d 544, 

549, 690 N.E.2d 1332 (Ohio Ct. App. 1997).

A party can voluntarily undertake a duty toward another, leading to potential liability 

in tort. Brink v. Giant Eagle, 98 N.E.3d 822, 828 (Ohio Ct. App. 2017). A claim for the 

negligent performance of an undertaking to render service is based on 2 Restatement of 

the Law 2d, Torts (1965), Section 323, which provides:

One who undertakes, gratuitously or for consideration, to render services to 

another which he should recognize as necessary for the protection of the 

other's person or things, is subject to liability to the other for physical harm 

resulting from his failure to exercise reasonable care to perform his 

undertaking . . . (b) the harm is suffered because of the other's reliance 

upon the undertaking.

As one Ohio court has explained: 

“The theory of recovery under Section 323(b) is that ‘when one undertakes 
9

a duty voluntarily, and another reasonably relies on that undertaking, the 

volunteer is required to exercise ordinary care in completing the duty.’” 

Kerr–Morris v. Equitable Real Estate Invest. Mgt., Inc. (1999), 136 Ohio 

App.3d 331, 335 [736 N.E.2d 552], * * *. In other words, ‘(a) voluntary act, 

gratuitously undertaken, must be (* * *) performed with the exercise of due 

care under the circumstances.’ Briere v. Lathrop Co. (1970), 22 Ohio St.2d 

166, 172 [258 N.E.2d 597], * * *. This theory of negligence does not require 

proof of a special relationship between the plaintiff and the defendant, or 

proof of somewhat overwhelming circumstances. This type of negligence 

follows the general rules for finding negligence, with the addition of one 

extra element of proof, that of reasonable reliance by the plaintiff on the 

actions of the defendant.” (Parallel citations omitted.) Douglass v. Salem 

Community Hosp., 153 Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, 

¶ 70–74 (7th Dist.).

Brink, 98 N.E.3d at 828. 

Plaintiff alleges in her proposed amended complaint that Defendant made 

affirmative representations to Plaintiff that maintenance, service and repair needs would 

be promptly addressed and remedied by Defendant. Plaintiff alleges that these 

representations created a duty. While Plaintiff must still establish that it was reasonable 

for her rely on the actions of Defendant, Plaintiff has adequately plead a claim for 

negligence in her proposed amended complaint; and her Amended Motion for Leave to 

Amend would not be futile as it relates to her claim for negligence.

Finally, Defendant maintains that the Amended Motion for Leave to Amend is futile 

because Plaintiff’s proposed amended complaint fails to state a claim for breach of 

contract. Defendant explains that Plaintiff’s allegations do not establish that she was an

intended third-party beneficiary to the Master Lease Agreement. Defendant points out 

that it entered into the Master Lease Agreement with Plaintiff’s employer, Avanir, ten 

years before Plaintiff became an employee at Avanir. Defendant also explains that the 

Master Lease Agreement does not identify any intended third-party beneficiaries. 

Defendant argues that even if Plaintiff can establish that she is an intended third-party 
10

beneficiary, Plaintiff’s allegations do not support a finding of liability because Plaintiff has 

not identified a term of the Master Lease Agreement which Plaintiff claims has been 

breached.

The Supreme Court of Ohio has adopted the “intent to benefit” test to determine 

whether a third party is an intended beneficiary of a contract. Huff v. FirstEnergy Corp., 

130 Ohio St. 3d 196, 200, 957 N.E.2d 3, 6 (Ohio 2011). “Under this analysis, if the 

promisee * * * intends that a third party should benefit from the contract, then that third 

party is an ‘intended beneficiary’ who has enforceable rights under the contract. If the 

promisee has no intent to benefit a third party, then any third-party beneficiary to the 

contract is merely an ‘incidental beneficiary,’ who has no enforceable rights under the 

contract.” Id. (quoting Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio St.3d 36, 40, 

521 N.E.2d 780 (Ohio 1988)). The Ohio Supreme Court has explained that in determining 

whether there is an intent to benefit a third party: 

Courts generally presume that a contract's intent resides in the language 

the parties chose to use in the agreement. Shifrin v. Forest City Ents., Inc. 

(1992), 64 Ohio St.3d 635, 638, 597 N.E.2d 499. “Only when the language 

of a contract is unclear or ambiguous, or when the circumstances 

surrounding the agreement invest the language of the contract with a 

special meaning will extrinsic evidence be considered in an effort to give 

effect to the parties' intentions.” Id. at syllabus. Ohio law thus requires that 

for a third party to be an intended beneficiary under a contract, there must 

be evidence that the contract was intended to directly benefit that third party. 

Generally, the parties' intention to benefit a third party will be found in the 

language of the agreement.

Id. Therefore, “for an injured third party to qualify as an intended third-party beneficiary 

under a written contract, the contract must indicate an intention to benefit that third party.” 

Id. at 8.

Plaintiff maintains that she is an intended third-party beneficiary because Avanir 
11

contracted with Defendant to provide a safe vehicle for her. However, the Master Lease 

Agreement between Avanir—the Customer—and Defendant does not indicate an 

intention to directly benefit Plaintiff. The Master Lease Agreement only provides that 

Defendant agrees “to lease to Customer and Customer hereby agrees to lease from 

[Defendant] certain Vehicles for use in its business.” (Doc. 14-1). Moreover, the Master 

Lease Agreement provides that: “Customer agrees to repair the Vehicles and to maintain 

them in safe and good mechanical condition.” (Doc. 14-1). Therefore, under the terms 

of the Master Lease Agreement, it was Avanir who was responsible for maintaining the 

leased vehicles. The language of the Master Lease Agreement does not express an

intent to directly benefit Plaintiff. Therefore, Plaintiff is merely an incidental beneficiary, 

who has no enforceable rights under the contract. Accordingly, Plaintiff’s Amended 

Motion for Leave to Amend her Complaint would be futile as it relates to her claim for 

breach of contract.

Because the Court grants in part Plaintiff’s Amended Motion for Leave to Amend

her Complaint, the amended complaint will render the original complaint a nullity. 

Therefore, Defendant’s Motion for Judgment on the Pleadings is DENIED as MOOT.

Based on the foregoing, it is hereby ORDERED that:

1. Defendant Gelco Corporation’s Motion for Judgment on the Pleadings (Doc. 14) is 

DENIED as MOOT; and 

 

2. Plaintiff Melanie Beckemeyer’s Amended Motion for Leave to Amend the 

Complaint (Doc. 21) is GRANTED in PART and DENIED in PART;

a. Plaintiff’s Amended Motion for Leave to Amend is GRANTED as to Plaintiff’s 

claim for negligence; and

b. Plaintiff’s Amended Motion for Leave to Amend is DENIED as to Plaintiff’s 

claim for breach of contract;
12

3. Plaintiff shall file her Amended Complaint with the claims set forth according to the 

rulings in this Order within twenty-one (21) days of entry of this Order.

IT IS SO ORDERED. 

 

/s/ Michael R. Barrett

JUDGE MICHAEL R. BARRETT