NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0684n.06 No. 11-4375 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

FRANKL I

N PARK L I

NCOL N-MERCURY, I

NC., P laintif f-App ellant,

v. FORD MOT OR COMPANY, Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNI TED STATES DI STRI CT C O U R T F O R T H E NOR THERN DI STRI CT OF OHI O O P I N I O N

BEFORE: NORRIS , MOORE, an d DONALD, Circuit Judges. 1 ALAN E. NORRIS, Circuit Judge. Plaintiff Fr ankli n P ar k L incoln-Mer cury , I nc. (“F ranklin Park”) is a deale rship in Toledo, Ohio that sells automobiles manufa cture d by defe ndant For d Motor Company (“F ord”)

. I t filed suit ag ainst For d afte r the latter permitted another L incolnMerc ury deale r in the Toledo are a to merg e wi t h an ex i s t i n g For d deale rship. Acc ording to the complaint, For d not only permitted the merg er, it fac ilitated the transac tion despite knowing that it would harm Fr anklin Park beca use the Toledo are a could only support one L incoln-Mer cury deale rship. Fr anklin Park alleg ed that For d’s actions violated the Ohio Motor Vehicle Dea lers Act (“O hio Dea lers Act”), Ohio Rev. Code § 4517.01 et seq. , the federa l Automobile Dea lers’ Day in Court Act, 15 U.S.C. § 1221 et seq. , and constituted a brea ch of For d’s common law fiduciar y duties.

Following argument in this case , J udg e Donald rec used herself from further participa tion. This 1 decision is filed by

a quorum of the panel pur suant to 28 U.S.C. § 46(d).No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. I n a series of opinions, the district c ourt dismiss ed cer tain of plaintiff’s counts for failure to state a claim and g rante d summary judgme nt to For d with respe ct to the rema ining claims. Only the statelaw cla ims are be fore us on appea l. I. Fr anklin Park has been selling car s manufa cture d by For d since 1977. Their rela tionship is g overne d by two sales and service ag ree ments (“SSA”): one perta ining to L incoln vehicles; the other
to Merc ury vehicles. Be fore 2008, there was a second L incoln-Mer cury deale rship, Rouen L incoln- 2 Merc ury (“Rouen” ), in near by Maumee , Ohio. Another deale rship af fi l i ated with For d, Br ondes For d Maumee , L td. (“B rondes F ord”) , was located nea r Rouen. Since at least 2002, Fr anklin Park President Robert Fleishe r has repe atedly told For d that the Toledo marke t w as too sma ll to support two L incoln-Mer cury deale rships. Acc ording to F ranklin Park, this assessment was supported by th e d ep o s i tion testimony of For d repr esenta tive Kurt Br inkman. I n 2005, a marke t study commissioned by For d s h o wed one deale rship was optimal, albeit with a cave at that two deale rships might better serve the convenie nce of its customers. (Pag e I D 4043.) I n fac t, by 2006 For d had beg un a marke t contra ction prog ram. As Br inkman put it, “I n 2006, we started our consolidation eff orts to reduc e our deale r count for the purpose of driving more throug hput and having healthier deale rs and improv[i ng ] the fra nchise v al u e o f b o th For d and L incoln Merc ury .” (Pag e I D 4026.) This theme continued and, i n i t s 2 008 annual repor t, For d stated, “At our curr ent and expected future marke t share

. . . we have too many deale rs, particula rly

Since this suit was filed, the Merc ury product line ha s been discontinued. 2 - 2 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. in U.S. metropolitan are as, which makes it incre asing ly difficult to sustain a healthy and profitable deale r base.” (Pag e I D 4157.) The same repor t said that For d would fund deale r consolidations “in the future to reduc e further our deale r network to match our sales and deale r sales objectives.” Id. Wit hin this economic context, For d helped to fund a merg er betwee n Roue n an d Brondes For d. I n its first memorandum opinion, the district court summed up the consolidation, and Fr anklin Park’s re sponse to it, in these terms:

Sometime in late 2007 or ear ly 2 0 0 8 , R o u en and Br ondes For d enter ed contra ct neg otiations for Br ondes For d to purc h as e the Rouen L incoln-Mer cury deale rship. Plaintiff alleg es that Def endant participa

ted in the s e n e g o ti a

tions and kept them secr et from him. Under the neg otiated sale ag ree ment betwee n Rouen and Br ondes For d, Br ondes For d ag ree d to operate the L incoln-Mer cury deale rship at the Rou e n lo c a ti o n for howeve r long it would take for Br ondes to reloc ate the deale rship to the Br ondes For d location. Br ondes For d operated the Rouen deale rship at the Rouen location for one day befor e moving it to the Br ondes Fo rd l o ca tion. After Rouen and Br ondes For d finalized the sale ag ree ment, Def endant notified Plaintiff of the Rouen/Br ondes For d owner ship chang e. After re ceiving notice of the owner ship chang e, Plaintiff filed a notice of protest with the Ohio Motor Vehicle Dea lers Boa rd (“B oard” ). The Boa

rd’s Hea ring Ex aminer stated that “[t] he statutory lang uag e of Revised Code 4517.50 is deter minative of the issues raised here in.” (Doc

. 21, Ex

. 9, at 4). He conclude d that [D] efe ndant was not require d to provide Plaintiff notice of the owner ship ch ang e under the Ohio Dea ler Act beca use: 1) the Rouen/Br ondes transac tion did not cre ate an additional new motor vehicle deale r i n t h e rele vant marke t are a and thus § 4517.50(A) [t he notice require ment] d i d n o t ap ply ; and 2) the reloc ation of the Rouen deale rship to the Br ondes location was a move of less than one mile, and thus fell within a

n exception to the notice require ment, § 4517.50(C)(1)

. He deter mined the protest should be dismiss ed beca use notice was not require d, and thus no rig ht to protest ar ose . . . .

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Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. (P ag e I D 1693-94) (footnote omit ted). The hearing examiner’s decision was affirmed first by th e Ohio Motor Vehicle Boa

rd, then by

the Court of Common Pl eas, a nd finally by the Ohio Court of Appea ls, Tenth District. The Ohio Supreme Court denied re view. Whil e these state-c ourt actions wer e proce eding , Fr anklin Park filed the instant suit in fede ral
court. As mentioned ea

rlier, the F irst Amended Complaint includes three counts: 1) brea ch of the Ohio Motor Vehicle Dea lers Ac t; 2) brea ch of the federa l Automobile Dealer s’ Day in Court Act; and 3) c ommon law brea ch of f iduciary duty

. For d filed a motion to dismiss , which was gra n t ed i n part by the district court. Whil e the
court conclude d that cer

tain actions wer e not prec luded based upon collater al estoppel, it he ld that “Plaintiff is prec luded from asser ting claims under the Ohio Motor Vehicle Dea lers Act that it was entitled to no t i ce o f and an opportunity to protest the Rouen/Br ondes transac tion and that it was entitled to a g ood cause hear ing, and is prec luded from relitig ating cer tain fac tual issues.” (Pag e I D 1705.) For d later filed another motion to dismiss

. The district court g rante d that motion in part on J uly 2, 2010. The court deter mined that Fr anklin Park had stated a claim for brea ch of fiduciar y duty under common law and for a predatory prac tice of discrimination under the Ohio Dea lers Act, Ohio Rev. Code § 4517.59(A)( 15) (for merly § 4517.59(M)). Howeve r, it dismiss ed claims broug ht under the federa l Automobile Dea lers’ Day in Court Act and under the g ood faith provisi on of t he Ohio Dea lers Ac t. For d filed a motion for summary judgme nt with respe ct to these rema ining claims, which the district court g rante d on October 31, 2011. - 4 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. Turning firs t t o t h e fiduciar y duty claim, the court beg an by defining its para meters: “To establish a brea ch of fiduciar y duty under Ohio law, a plaintiff must show: (1) the exis tence of a duty arising from a fiduciar

y rela tionship; (2) a failure to observe the dut y ; and (3) a resulting inj ury .” (Pag e I D 4197) (citing Camp St. Mary’ s Ass’n of W

. Ohio Conference of the United Methodist Church v. Otterbein Homes , 8 89 N.E.2d 1066, 1076 (Ohio. App. 2008)). I t then distinguished Manhattan Motorcars, Inc. v . A u to m o b il i La m b o rghini , 244 F.R.D. 204, 219 (S.D.N.Y. 2007), a case relied upon by plaintiff for the proposition that a fra nchisor-f ranc hisee rela tionship can g ive rise to fiduciar y obligations under exceptional circ umstances. Af ter re viewing the spec ial circ umstances cited by Fr anklin Park, the court conclude d, “Plaintiff fails to point to any contra ct provision, or any

case law, sugg esting its rela ti o n s h i p wi th Def

endant was any

thing other than a ty

pical franchisorfra nchisee rela tionship.” (Pag e I D 4200.) W ith respe ct t o Fr anklin Park’s alleg ation that For d eng ag ed in a predatory prac tice un d er the Ohio Motor Dea lers Act, Ohio Rev. Code § 4 717.59(A)( 15), the court conclude d that “De fenda nt’s approva l of the Rouen/Br ondes tr a n s a c ti o n ma

y n o t h a ve been optimal—indeed, it may

even have been a bad decision—but the Ohio statute does not prohibit bad decisions, only predatory and discriminatory

ones.” ( Pag e I D 4203.) The district court g rante d summary judgme nt to For d. A motion to alter or amend was also denied. II. We now turn to eac h of the a ssignments of e rror desig nated by

Fr anklin Park. 1. Breach of Fiduc iary Duty Claim - 5 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. The third count of the First Amended Complaint alleg es that For d brea ched its fiduciar y duty to Fra nklin Park in this m anner : The L incoln SSA and Merc ury SSA and resulting fra nchise rela

tionship (1) place For d in a position o f d i s p ro portionate power and dominance over Fr anklin Park, (2) require Fr anklin Park t o provide c onfidential and proprietar y information to F ord, cre ating a confide ntial r elationship, and (3) make Fr anklin Park depende nt upon Fo rd for economic survival, forc ing Fra nklin Park t o repose specia l trust and confide nce in F ord. (Pag e I D 1717.) As just mentioned, the district court g rante d summary judgme nt to Ford o n t h is issue. Consequently , our revie w is de novo. Thom v. Am. Sta ndard, Inc. , 666 F.3d 968, 972 (6th Cir. 2012). The evidenc e is viewed in the light most favor able to the non-moving party

. V illegas v. Metro. Gov ’t of Nashville , 709 F.3d 563, 568 ( 6th Cir. 2013). As the district co u rt recog nized, Fr anklin Park must jump sever al hurdles if it wishes to establish a brea ch of fiduciar y duty

. Even the deale rship candidly conce des, “A s a gen eral rule, fra nchise relationships—i ncluding those in the automotive industry —are not inhere ntly fiduciar y in
nature .” Br ief at 21; see generally Saydell v. Geppe tto’s Pizza & Ribs Franchise Sys., Inc , 652 N.E.2d 218, 231 (Oh i o App. 1994) (“A fiduciary rela tionship does not exis t betwee n a franchisor and a fra nchisee in the absenc e of a statute expressly cre ating such fiduciar y rela tionship or, in the alternative, absent an understanding , held by both parties to the subject ag ree ment, that a specia l trust and confide nce has been repose d by the fra nchisee in the fra

nchisor.”)

. I ts principal case in support of such a duty is Manhattan Motorcars

. L ike t h e i nstant case , Manhattan Motorcars involved a dispute betwee n a deale rship and a manufa cture r, in that case L amborghi ni. When L amborg hini

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Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. permitted another deale rship to open in plaintiff’s territory , Manhattan Motorcar s sued and included

a claim of brea ch of fiduciar y duty

. Whil e the case involved Ne w Yo rk law, the elements of the claim mirror those in Ohio:

A cl ai m fo r b rea ch of fiduciar y duty involves three elements: brea ch by a fiduciar y of a duty owed to plaintiff; defe ndant’s knowing participa tion in the brea ch; and dama g es. There are four elements essential to the esta blishment of a fiducia

ry rela tionship: (1) [t ]he vulne rability of one party to the other which (2) results in the empower ment of the strong er party by the weaker which (3) empower ment has been solicited or acc epted by the st ro ng er party and (4) preve nts the weaker party from eff ectively protec ting its el f. Gene rally , wher e parties deal at arms-le ng th in a commerc ial transac tion, no rela tion of confide nce or trust suffi cient to find the exis tence of a fiduciar

y rela tionship wil l arise a bsent extraordinary

circ umstances. Neve rtheless, a distribut orship agreem ent may, in some rare instanc es, create a confidential relationship out of which a duty of fiduciary care arises

. Manhattan Motorcars , 244 F.R.D. at 214-15 (citations and punctuation omitted) (empha sis added)

. Fr anklin Park relies on the final sentenc e of the quoted lang uag e in urg ing us to find that, at the very least, i t had crea ted a materia l issue of fact t hat s hou ld have prec luded s ummary judgme nt. Were

we to a dopt the Manhattan Motorcar rationale , we would deter mine whether the circ umstances of this case repr esent a “ra

re instance” wher e a fiduciar y rela tionship exis ts betwee n the fra nchisor and fra nchisee

. Fr anklin Park takes the district court to task for weig h in g e v id e n c e, making judge ments about

cre dibilit y , ignor ing aff

idavits and admissions ag ainst interest, and assuming fac ts not in the rec ord. I t reminds us that “it is an incontestible fa ct in our judicial history that the jury

is the sole tribunal
to weig h and deter

mine fac ts.” Thigpen v. Cory , 80 4 F.2d 893, 902 (6th Cir. 1986). Wit h that prec ept in mind, we turn to the evidenc e th at t h e district court alleg edly overlooke d or misint erpr eted. - 7 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. First, Fr anklin Park contends that the district court selec tively cited to portions of President Robert Fleishe r’s deposition. The court cited Fleishe r’s conce ssion that For d thought that it would 3 make more money with two rathe r than one deale rship in T oledo. He followed that conce ssion by stating that, in his opinion, there was no business justification for two deale rships. (Pag e I D 4203) (district court opinion); (Pag e I D 2078-79) (F leisher deposition). After ci t i n g t his testimony , the district court conclude d, “De fenda nt thought two deale rsh i p s were better than one, and making a profit is cer

tainly a leg itimate business justification.” Id. Fr anklin Park contends th at t h e “c o urt completely ignor ed Mr. Fleishe r’s express deposition testimony that there [was] ‘no business justification’ for two L incoln deale rships in Toledo. I lleg al profits are not a leg itimate business justification.” Br ief at 24. To the contra ry , the district court acknow ledg ed Mr. Fleishe r’s testimony but determined tha t, if Ford thoug ht that it could make more mone y with two deale rships, it had a l egit imate business justification for its position: “De fenda nt’s approva l of the Rouen/Br on d es transac tion may not have been optimal—indeed it may even have been a bad decision—but the Ohio
statute does not pr ohibit bad decisions, only predatory and discriminatory ones.” (Pag e I D 4203.) We detec t no misrepre sentation of Mr. F leisher’ s deposition nor do we take issue with the district court’s consideration of For d’s alleg ed business justification f or authorizing two deale rships. The burden lies with Fr anklin Park t o raise a m ater ial issue as t o wh ether For d’s profit motive was, in

The alleg ed misrepre sentations to which Fr anklin Park objects wer e actua lly made by the district 3 court in its discussion of the assig nment of err or reg arding predatory prac tices, not in the context of the fiducia

ry duty claim. - 8 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. fac t, illega l. Moreove r, the court did not rely upon this deposition testimony in resolving this issue. We turn to its ot her a

rg uments. Fr anklin Park complains that the di strict court did not cite to an af fidavit submitted by

Dr. Jo hn M a tt h e ws, an expert who teac hes automotive logistics at the University of Wis con s in

- M a d is o n . Matthews opined that “the Toledo marke t would be better serve d by one store with a highe r throug hput, making profits that can be reinve sted in the L incoln brand.” (Pag e I D 3957.) Fr anklin Park takes the view that this testimony establishes that the Toledo marke t could only economica lly support one L incoln-Mer cury deale r. Acc ordi n g to the deale rship, Dr. Matthews’ opinion is consistent with For d repr esenta tive Kurt Br inkman’s deposition testimony

. As mentioned ear lier, Br inkman conce ded that For d was shrinking the number of deale rs in metropolitan are as during the period in question. Br inkman testified that the optima l number of deale rships was one in Toledo “base d on best-in-c lass throug hput.” (Pag e I D 4043.) He also conce ded that For d had not done a marke t analy sis in 2008 when approving the consoli dation of the Rouen a nd Br ondes dea lerships, nor did For d consider the eff ect upon F ranklin Park. ( Pag e I D 4075.) Turning to the SSA itself, Fr anklin Park arg ues that it imposes a number of obligations on 4 the deale rship that g ave For d such extreme control over the rela tionship that, like the L amborg hini deale rship in Manhattan Motorcars , a fiduciar y duty was cre ated. The specific obligations cited by Fr anklin Park wer e addre ssed by the district court in its opinion. (Pag e I D 4198.) They include the

I n fac t, there are two near ly identical sales and service ag ree ments in the rec ord: one g overns the 4 L incoln line and the other Merc ury . Be cause the Merc ury line no longe r exis ts, all ref ere nces are to the SSA gove rning the L incoln line of automobiles. (Pag e I D 2335.) - 9 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. duty to repor

t sensitive information to For d, such as the deale rship’s balanc e sheet, profitability , and other ope rations information. For its part, For d reminds us that a fra nchisor-f ranc his ee rela

tionship does not cre ate a fiduciar y duty u n l es s b y s p ecific and mutual ag ree ment. I t direc ts us to a case with simil ar fac ts—albeit from Geor g ia—in which the court noted, “not hing about this case sug g ests that Def endant exercised the ty

pe of control over Plaintiffs which would be require d to impute a fiduciar y duty .” Capital Ford Truck Sales, Inc. v. Ford Motor Co. , 819 F.Supp. 1555, 1580 (N.D. Ga. 1992). Acc ording to For d, its rela tionship to Fr anklin Park was one of business entities operating at arm’s leng th. In fac t, t h e SSAs spell out that eac h party prese rved its rig hts and int ere sts. For instance, For d “re serve s the rig ht to deter mine, from time to time, in its best judgme nt, the numbers, locations and siz es of authorized deale rs nece ssary for proper and satisfac tory sales and service repr esenta tion for COMPANY PRODUCTS within and without the DEAL ER’S L OCAL I TY.” (Pag e I D 2349.) He n ce , i n For d’s view, it expli citly rese rved the rig ht to appoint a repla ceme nt deale r such as Br ondes. I n addition, For d argues that, beca use the parties are regulated by the Ohio Dea lers Act, they have conflicting interests which prec lude a fiduciar y rela tionship. Under the Act, For d was oblige d
to approve Ro u en’s transfe r of assets absent “g ood cause .” Ohio Rev. Code § 4517.57(C). Good

cause does not include a fra nchisee ’s plan to reloc ate a deale rship. Id

. § 4517.56(E)( 5). Henc e, even if For d had deter

mined that one deale rship was the optimal number for Toledo, the Ohio Dea lers Act would have pr evente d it from thwarting the transf er.

- 10 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. Finally , For d contends that a Manhattan Motorcars ty pe of exception would not apply in this

case for a number of rea sons. Fr anklin Park re t ai n ed ex clusive control over its human resour ces decisions and ad v er t i s ing; and the deale rship was not oblige d to share confide ntial information reg arding prospec tive customers with For d. I n short, For d did not exercise total cont ro l o ver the deale rship. Whil e we rec og nize that the automobile marke t is a highly co m p et i t i v e one and that the exis tence of a second Toledo deale rship may have had a neg ative impact on Fr anklin Park’s bottom line, those considerations do not take this case out of the rea lm of a ty pical fra n ch i s or-f ranc hisee rela tionship. The SSAs established a number of duties on the p art of Fr anklin Park, but, as the district court rec og nized, they also g rante d the deale rship a fair amount of autonomy in adver tising, staffing , the purcha se and sale of used car s, the ability to sell car s outside of its marke t are a. I n short,

we see nothing that makes this a “ra re instance” wher e a co nfidential rela tionship g ave rise to a fiduciar y duty

. Acc ording ly , we aff irm the district court’s g rant of summary judgme nt on this issue. 2. Predatory Prac tices Claim The Ohi o De alers Act includes a cause of action for predatory prac tices. The provision, which wa s amende d in 2010, rea ds as follows: (A) Not withstanding the terms, provisions, or conditions of any ag ree ment, fra nchise, or w aiver , no fra

nchisor shall:

. . . . (15) Eng ag e in any predatory prac tice or discriminate ag ainst any new motor vehicle deale r including discriminating ag ainst a fra nchisee , as compar ed to a same line-make fra

nchisee , with reg ard to motor vehicle allo cation, motor vehicle sales expectations, motor vehicle m arke t penetr ation, motor vehicle planning volume - 11 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. requirements, customer service satisfac tion require ments, deale rship fac ility require ments, or dea ler c apitalization requirements[.] Ohio Rev. Code § 4517.59(A)( 15). I n reje cting this claim, the district court provided the following rationale : Ohio courts have not interpre ted the meaning o f “pre datory prac tice” or “d i s criminate” as used in the [Ohio Dea lers Act]. “[W ]hen compar able leg isl at i o n has been construed in other jurisdictions prior to the enac tment of a simil ar Ohio statute, the interpre tation g iven the law in the other jurisdictions is to be g iven g reat weig ht in construing the Ohio statute.” Koster v. Boudreaux , 11 Ohio App. 3d 1, 6 (Ohio Ct. App. 1982); see also Schne ider v. Laffoon , 40 Ohio St. 89, 96 (1965). The c urre nt version of Revised Code § 4517.59 was adopted in 2010. Prior to th i s adoption, other jurisdictions define d what constitutes preda tory prac tice or discrimination by a vehicle m anufa cture r aga inst its dealers. A manufa cture r is not predatory if it “ac ts in g ood faith and with g ood cause . . . .” Saccuc ci Auto Grp., Inc. v. Am. H onda Motor Co., I

nc. , 2009 U.S. Dist. L EXI S 122015, * 21 (D. R.I . 2009) (interna l quotations omitted). “Predatory conduct ‘has no leg itimate business justification other than to destroy or damag e competition.’” Id. (citing Great Escape, Inc. v. Union City Body Co. Inc. , 791 F.2d 532, 541 (7th Cir. 1 9 8 6 )). I nterpre ting lang uag e near ly identical in the [Ohio Dea lers Act], a Delaw ar e co u rt define d predatory prac tice or discrimination as a “sac rificing of prese nt reve nue with the aim of driving a competitor out of the marke t

. . . .” Dave Grey tak Enters., Inc. v. Mazada Motors of Am., Inc. , 622 A.2d 14, 20–21 (De l. Ch. 1992). (Pag e I D 4201.) Af

t er re viewing the rec ord, particula rly the deposition of Robert Fleishe r, the district court concluded that “[t] here is absolutely n o ev i d ence i n the record to support the charg e that Def endant wanted to drive Plaintiff out of the Toledo marke t. The rec ord indicates the opposite: Def endant pref

err ed two deale rships.” (Pag e I D 4203.) I n lang uag e quoted in the previous section of this opinion, the district court ended its discussion by n oting that while the Rouen/Br ondes consolidation “may not ha ve been optimal,” it wa s at best a ba d business decision, not a predatory or discriminatory

one. Id.

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Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. Fr anklin Park reminds us that the Ohio Dea lers Act is reme dial in nature and there fore must be construed liberally

. See Earl Evans Chevrolet, Inc., v. Gen

. Mo t o r s Corp. , 598 N.E.2d 1187, 1193 (Ohio. App. 1991). As it did below, Fr anklin Park advanc es the arg ument that, beca

use For d knew that Toledo could not support more than one L incoln-Mer cury deale rship, “consolidating the Rouen L incoln-Mer cury brands at the Br ondes For d deale rship demonstrated that it had made a conscious decision to choose Br ondes over Fr anklin Park.” Br ief at 43. Plaintiff then explains how For d fac ilitated the consolidation and how, without that help, it ne ver would have occur red. First, Mr. Rouen initially wanted to se ll his deale rship for $1,000,000. (Pag e I D 2501.) Randy Stewart, who was Ku rt Br inkman’s supervisor at For d, advised him that he was asking too much. Id. Eventually , Rouen settled for $700,000. Howeve r, Mr Br ondes was only willing to pay $520,000. For d stepped in and paid the differ ence . (Pag e I D 4073.) Acc ording to Fr anklin Park, this cash infusion was essential to the deal. I n addition, F ord ag ree d to pay $250,000 to Br ondes for fac ility improvements. (Pag e I D 4138.) I n short, For d was predatory in its trea tment of Franklin P ark by openly supporting its cr oss-town rival dea lership. For d responds that its approva l o f t h e disputed consolidation was require d by the Ohio De al ers Act and supported by sound business judgme nt. Neither “discrimination” nor “pre datory prac tic e” u n d er t h e Ac t are define d in the Act itself, nor is there any Ohio case law that does so. For d ref ers us to the same case s cited by the district court: Dave Grey tak Enter., Inc. v. Mazda Motors of

Am., Inc. , 622 A.2d 14, 20-21 (De l. Ch. 1992); see also Saccuc ci Auto Group, Inc. v. Am. Honda Motor Co. , 617 F.3d 14, 26 (1st Cir. 2010). As quoted by the district court, Grey tak define d predatory prac tice as follows: “The ty pe of conduct contemplated by that phrase i s t h e s acr ificing - 13 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. of prese nt reve nue with the aim of dr iving a competitor out of the mar ket, expecting to r ecoup the losse s t h ro u g h subsequent higher price s afte r t he competition is eliminated.” 622 A.2d at 20-21. L ike the Delaw ar e statute at issue in Grey tak , For d asks us to note that none of the prohibited behavior s listed in § 4517.59(A)(15) involve the sale or r eloca tion of an existi ng deale rship. Turning to the alleg ation that For d somehow aimed at driving Fr anklin Park out of business, the company cites Mr. Rouen’s deposition testimony that the sale of the deale rship was sparke d by

an offe r for the rea l estate wher e it was located, not the deale rship itself. For his part, Mr. Br ondes stated that no one at For d ever expressed the desire to drive Fr anklin Park out of business. (Pag e I D 2949.) For d then cites Robert Fleishe r’s deposition rema rk that For d would make more money with
two deale rships provided both survived. (Pag e I D 2079.) This testimony convince d the district court that For d had a le g itimate—if perha ps misguided—business rea son for supporting the consolidation. Notably , Fr anklin Park continues to exis t and has rema ined viable. (Pag e I D 2097) (F leisher deposition). Moreove r, the marke t studies relied upon by the district court confirm that the Toledo

area could support two L incoln-Mer cury deale rs. Even though plaintiff’s expert, Dr. Matthews, submitt ed an aff

idavit stating that the are a would be better serve d by a single deale rship, For d points out that this diffe renc e of opinion doe s not me an that the company was a ttempting to run F ranklin Park out of business. We ag ree with the rea soning of the district court with respe ct to this issue. The Ohio Dea lers Act does not list deale rship transfe rs as a prac tice that could g ive rise to a claim of discrimination

or predatory prac tice. Ohio Rev. Code § 4517.59(A)( 15). As the di s t ri ct co u rt rec og nized, For d made a business decision in what it perc eived to be in its own best interest. There is nothing in the - 14 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co.

rec ord to indicate that it was any thing more than that. Henc e, Fr anklin Park has not established that For d eng ag ed in a pr edator y prac tice as c ontemplated by the Ohio Dea lers Ac t. 3. Duty to Act in Good Faith The district court dismiss ed Fr anklin Park’s claim that For d failed to act in g ood faith as require d by the Ohio Dea lers Ac t for fa ilure to state a claim. Acc ording ly , our revie w is de novo. Buck v. Thomas M. Coo l ey L aw Sch. , 597 F.3d 812, 816 (6th Cir. 2010). To survive a motion to dismiss , Fr anklin Park must plead “enoug h fac ts to state a claim to relief th at is plausible on its fac e.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). “A claim has fac ial plausibilit y when the plaintiff pleads fa ct u al content that allows the court to draw the rea sonable infere nce that the defe ndant is liable for the misconduct alleg ed.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Whil e the court must a cce pt a ll we ll-pleade d fac tual alleg ations as true and construe the complaint in the light most favor able to Fr anklin Park, it need not acc ept unwar rante d fac tual infere nces. Benne tt v. MIS Corp. , 607 F.3d 1076, 1091 ( 6th Cir. 2010). Wit h those prec epts in mind, we turn to the re asoning of the district cour t: The Ohio Motor Vehicle Dea lers Act bars Fo rd from failing to act in g ood faith i n its trea

tment of Franklin P ark. Revised Code Section 4517.59(A) prohibits fra nchisors “in acting or purporting to act under the terms, provisions, or conditions of a fra nchise or in terminating , canc eling , or failing to rene w a fra nchise, [t o] fail to act in g ood faith.” Revise d Code Section 4517.5[9] . “Good f aith” is define d as: honesty in the conduct or t ransa ction conce rned a nd the obs erva

nce of re asonable commerc ial standards of fair dealing in the trade as is define d in

. . . sec t i o n 1 3 0 1 .01 of the Revised Code, including, but not limi ted to, the duty

to act in a f

air a nd equitable manne r so as to g uara ntee fre edom from coer cion, intimi dation, or threa ts of coer cion or intimi dati o n ; p ro v i d ed h o we v er , t h at re commendation,

- 15 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. endorse ment, exposi tion, persua sion, urg ing or argument shall not be considere d to constitute a lack of g ood faith. Revised Code Section 4517.01(B B)

. Fr anklin Park asser

ts For d failed to act in g ood faith by “taking advanta g e of a loophole in the Ohio Dea ler Act by structuring the Br ondes transac tion to avoid a protest,” in addition to “installing a L incoln/Mercur y deale rship at Br ondes when it knew the Toledo marke t c ould not support two L incoln/Mercur y points” (Doc

. No. 38, p. 22). But Fr anklin Park does not alleg e that For d failed to act in g ood faith with reg ard to the “ter

ms, provisions, or conditions” of the fra nchise ag ree ment. Revised Code Section 4517.59(A). The A me n d e d Co mp la in t d o es not ref

ere nce any particula

r term or condition of the fra nchise ag ree ment. Rather, Fr anklin Park s i m p ly states that For d’s eff

orts to dri v e Fr anklin Park out of the marke t and out of business constitute bad faith (Doc

. No

. 3 1 , ¶ 7 3 ). Be cause none of the alleg ed fac ts are connec ted to the terms of the fra nchise ag ree ment betwee n Fr anklin Park and For d, the bad f aith claim under

the Ohio Motor Vehic le Dea lers Ac t must be dismi ssed. (Pag e I D 1831-32.) Fr anklin Park argues that the district c ourt err ed in finding that its claim of failure to a ct in g ood faith was alleg ed with insufficient particula rity under the require ments of § 4517.59(A). We ag ree . As an initial matter, the district court misstated the require ments of § 4517.59(A) when it dismiss ed Fr anklin Park’s claim for failure to “alleg e that For d failed to act in g ood faith with regard

to the ‘terms, provisions, or conditions’ of the fra nchise ag ree ment.” (Pag e I D #1832 (quoting Ohio Rev. Code Ann. § 4517.59(A) (empha sis added) .) As evidenc ed by the plain lang uag e of the statute, howeve r, the duty of g ood faith is not tied to specific provisions of a fra nchise ag ree ment. Rather, this duty arises when a fra nchisor acts “ under the terms, provisions, or conditions of a fra nchise.” Ohio R ev . Code Ann. § 4517.59(A) (empha sis added)

. I n other words, a party g overne d by a fra nchise ag ree ment must act in g ood faith under § 4517.59(A). See Eastside Lincoln Merc ury, Inc.

v. Ford Motor Co. , No. C-1-01-567, 2004 WL 6 0 3 3 0 74, at *6 (S.D. Ohio J uly 15, 2004) - 16 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. (“Spec ifically , Eastside claims a v i o l ati on of section 4517.59, which imposes on motor vehicle fra nchisors a g ood faith re q u irement.” ); cf. Bill Call Ford, Inc. v. Ford Motor Co. , 48 F.3d 201, 206–07 (6th Cir. 1995) (addr essin g a § 4 5 1 7

. 59(A) claim under the ag ree ment as a whole and descr ibing the claim without r efe renc e to a spe cific pr ovision); Car Bus., Inc. v. Fle etwood Motor Homes of Indiana, Inc. , 492 N.E.2d 488, 491 (Ohio Ct. Com. Pleas 1985) (“That is, parties that have fra n c h ises, reg ardle ss of whether they are written or verba l, under the liberal construction rule, would have the protec tion of this remedial sec tion.” (citing Ohio Rev. Code Ann. § 4517))

. When the corr ect standard is applied, it is clea r that Fr anklin P ark alleg ed with sufficie nt particula rity a cla im under § 4517.59(A). I n its factual ba ckg round sec tion, Fra nklin Park alleg ed that “F ranklin Park is a deale r of new L incoln-bra nd motor vehicles pursuant t o a franchiseag ree ment contra ct betwee n Fr anklin Park and For d, namely , a ‘L incoln Sales an d S er v i ce Ag ree ment’ (‘the L incoln SSA’)” and that “[i] n addition to the L incoln SSA

. . . , the relationship betwee n Fr anklin Park and For d is c ontrolled by state and fede ral laws.” R. 31 (F irst A m. Compl.
at ¶¶ 9, 11) (Pag e I D #1709–10). Fr anklin Park also asser ted that “Ohio Revised Code 4517.59 bars For d from failing to act in g ood faith in its trea tment of Fr anklin Park.” Id. ¶ 39 (Pag e I D #1713). Fr anklin Park then detailed the purported acts of bad faith, such as intent i o n all y conce aling from Fr anklin Park that “the Br ondes/Rouen buy -sell arr ang ement was conting ent upon the opera tion of the L incoln/Mercur

y fra nchise,” befor e concluding that “F ord’s eff orts to drive Fr anklin Park out of the mar

ket and out of business c onstitut e bad f aith.” Id. ¶¶ 40–75 ( Pag e I D #1713–16). I n sum, Fr anklin Park has alleg ed that For d an d Fr an k l in Park operated under a fra nchise ag ree ment and that, while g overne d by the franchise ag ree ment, For d acte d in bad faith. Fr anklin - 17 -No. 11-4375

Franklin Park Lincoln-Me rcury, I nc. v. F ord Motor Co. Park has there fore sufficie ntly pleade d a violation of § 4517.59(A). We reve rse the dismiss al by the district court of F ranklin Park’ s claim that For d failed to a ct in g ood faith under § 4517.59(A). 4. Motion to Alter or Amend Finally , Fr anklin Park attempts to appea l the district court’s de nial of its motion t o alter or amend. Howeve r, Fr anklin Park failed to desig nate the district court’s denial as an o rder to be appea led; hence it is not befor e us. Fe d. R. App. P. 4(a) (4)( B) (ii); see also Gruene r v. Ohio Cas. Ins. Co. , 510 F.3d 661, 665 (6th Cir. 2008) (d ec l i n i n g t o enter tain the denial of motion for new trial beca use the orde r wa s not designated in the notice of appea l). III. The judgme nt of the distri ct co u rt i s a f f irm ed in part and reve rsed in part. This cause is

rem anded for f

urther pr ocee dings c onsistent with thi s opinion.

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