NOCO Co. v. OJ Com., LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0110p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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NOCO COMPANY,
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Plaintiff-Appellee, │
> No. 21-3488
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v. │
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OJ COMMERCE, LLC, │
Defendant-Appellant. │
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Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:19-cv-02298—James S. Gwin, District Judge.
Decided and Filed: May 20, 2022
Before: CLAY, DONALD, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Aaron W. Davis, VALHALLA LEGAL, PLLC, Northfield, Minnesota, for
Appellant. Jon J. Pinney, KOHRMAN JACKSON & KRANTZ, LLP, Cleveland, Ohio, for
Appellee.
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OPINION
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NALBANDIAN, Circuit Judge. NOCO Company manufactures and sells battery chargers
and related products. Although it sells these products itself, NOCO also authorizes resellers if they
sign an agreement. This dispute began when NOCO discovered that OJ Commerce (OJC) was
selling NOCO’s products on Amazon without authorization. NOCO complained to Amazon that
OJC was selling NOCO’s products in violation of Amazon’s policy. And around the same time,
another company also complained to Amazon about OJC. Amazon asked OJC for proof that it
No. 21-3488 NOCO Co. v. OJ Commerce, LLC Page 2
was complying with its policy. But OJC didn’t provide adequate documents and Amazon
temporarily deactivated OJC’s account. Now, OJC blames NOCO. It argues that NOCO
submitted false complaints, and it brings three claims against NOCO: defamation, tortious
interference with a business relationship, and a violation of the Ohio Deceptive Trade Practices
Act.
To succeed on these claims, though, OJC must establish that NOCO was the proximate
cause of its injury. But it can’t do this because three intervening causes broke the causal chain,
relieving NOCO of any liability. Thus, the district court rejected OJC’s claims on summary
judgment, and we AFFIRM.
I.
NOCO produces battery chargers and related products. It sells these products online and
to authorized resellers, who must sign an agreement with NOCO. Under the agreement, the
resellers can only sell to customers, not to retailers. And the resellers must abide by NOCO’s
minimum-advertised-price policy.
One reseller, CWR Electronics, broke the agreement and sold NOCO’s products to OJC,
an online retailer. And, in March 2016, OJC began selling the products on Amazon without a
reseller agreement with NOCO. So NOCO complained to Amazon. And Amazon removed the
items from its platform.
About two years later, NOCO again found that OJC was selling its products on Amazon.
So it sent a letter to OJC demanding that it either sign the reseller agreement or stop selling
NOCO’s products. But its efforts were futile, so NOCO submitted multiple reports to Amazon.
NOCO submitted these reports under Amazon’s anti-counterfeiting policy. That policy
prohibits a seller from listing counterfeit products and products that infringe on another’s
intellectual property. It also permits Amazon to ask for proof of authenticity and authorization to
sell. And even though OJC claims that the NOCO products it was selling were genuine, NOCO
alleged that the policy covered OJC’s listings because OJC sold NOCO’s products without
authorization.
No. 21-3488 NOCO Co. v. OJ Commerce, LLC Page 3
NOCO was doing what Amazon encourages rights owners to do; namely, to notify it of
any violations. But importantly, Amazon investigates and acts based on its own independent
review. So any decision that a seller is violating Amazon’s policy is based on Amazon’s
independent investigation.
And here Amazon investigated. From October 2, 2019, to January 6, 2020, NOCO filed
six complaints. In response to each, Amazon sent a warning to OJC that it was violating NOCO’s
intellectual property rights. Amazon removed the products from the website and gave OJC ninety
days to provide documents to the contrary.
In response to Amazon’s first warning, OJC submitted a letter from CWR stating that OJC
was allowed to buy (not sell) NOCO products. But Amazon was not satisfied and did not reinstate
the listing. In response to another email, OJC told Amazon that it was an “authorized reseller” of
NOCO’s products. (R. 37-12, Gardner’s Dec. 30, 2019, Email to Amazon, PageID 424.) But
again, Amazon rejected this and asked for other documents.
Then on January 14, 2020, another party entered the scene. Emson, a manufacturer, filed
a complaint with Amazon stating that OJC violated its patent. About two weeks later, on January
29, Amazon sent OJC a final warning. It gave OJC seventy-two hours to provide documentation
or risk having its account deactivated. Three days later, Amazon deactivated the account. The
reason? Amazon had “not received a valid plan of action addressing the listings” that OJC was
warned about earlier. (R. 36-10, PageID 340-42.) One of the listings was for a NOCO product,
the other was for an Emson product. Other than this, OJC has given no evidence for why Amazon
deactivated its account.
Two days later, though, Amazon restored OJC’s account. Amazon gave no reason why.
This diversity action began while these events were going on. NOCO sued OJC in October
2019 for selling its products without authorization. OJC countersued NOCO for (1) defamation,
(2) tortious interference with a business relationship, and (3) a violation of the Ohio Deceptive
Trade Practices Act.
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After discovery and the filing of amended pleadings, both parties moved for summary
judgment. The district court granted both motions. Relevant here, the court held that OJC failed
to show that NOCO was the proximate cause of its injury. And because all three of OJC’s claims
require proximate cause, they all fail. Only OJC appealed.
II.
Before we get to the merits, we must be satisfied that we have jurisdiction. JPMorgan
Chase Bank v. Winget, 920 F.3d 1103, 1105 (6th Cir. 2019). Neither party contests, or even
addresses, the issue. But we must address it sua sponte if we have doubt. See Rote v. Zel Custom
Mfg. LLC, 816 F.3d 383, 392 (6th Cir. 2016). And here, we do.
OJC, the appellant, is the original defendant. Its appeal is from the dismissal of its
counterclaims brought in response to NOCO’s amended complaint. NOCO brought its original
complaint as a federal question case arising under trademark law. See 28 U.S.C. § 1338(a). It
explicitly brought claims under 15 U.S.C. § 1114 for trademark infringement and 15 U.S.C. § 1125for trademark dilution. From the face of that initial complaint, there was no reason to question
jurisdiction.
But that original complaint is not the operative complaint here. The trial court dismissed
much of NOCO’s original complaint, including its claim for trademark infringement, under the
“first sale exception” doctrine (though not the claim for trademark dilution). Following that
dismissal, which is uncontested now, and some discovery, NOCO filed an amended complaint.
The amended complaint, of course, supersedes the original complaint. And it must stand on its
own jurisdictional basis. See Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473 (2007)
(“[W]hen a plaintiff files a complaint in federal court and then voluntarily amends the complaint,
courts look to the amended complaint to determine jurisdiction.”). There is a question here
whether it does. The amended complaint cited no federal statutes, even though NOCO again
invoked only federal question jurisdiction. Instead, the amended complaint brought one count for
relief under Ohio Revised Code § 2721.03, which is part of Ohio’s Declaratory Judgment Act.
And although state laws may “arise under” federal trademark law, see Gunn v. Minton, 568 U.S.
No. 21-3488 NOCO Co. v. OJ Commerce, LLC Page 5
251, 258-59 (2013), that’s typically only where the resolution of the claim calls for interpreting
federal law, see Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988).
But the lack of federal jurisdiction over the initial complaint would not end our inquiry nor
would it doom this appeal. NOCO has not appealed the court’s rejection of its amended complaint
on summary judgment. Instead, this appeal is about the court’s rejection of OJC’s counterclaims.
And even when a court lacks subject matter jurisdiction over an initial complaint, it may resolve
counterclaims where it has an independent basis for jurisdiction over those claims. Safeco Ins. Co.
of Am. v. City of White House, 36 F.3d 540, 546 (6th Cir. 1994); see also 6 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1414 (3d ed. 2021) (“[I]f the court
determines that there is no basis for federal jurisdiction over plaintiff’s original claim, then it
cannot proceed to adjudicate a compulsory counterclaim that does not have an independent
jurisdictional basis.”). OJC brought its counterclaims asserting diversity jurisdiction under 28
U.S.C. § 1332. And unlike NOCO, it made specific allegations about the diversity of citizenship
between the parties and the amount in controversy. NOCO didn’t move to dismiss on that
jurisdictional ground and we have no reason to doubt it. So we can exercise jurisdiction over
OJC’s counterclaims here regardless of the status of the amended complaint.
And even if we may, in our discretion, refuse jurisdiction, we see no reason for doing so
here. See, e.g., Columbia Gas Transmission Corp., v. Drain, 191 F.3d 552, 559 (4th Cir. 1999)
(recognizing the “usual rule” that a court “may exercise jurisdiction over a compulsory
counterclaim after the original claim has been dismissed” if “the counterclaim has an independent
basis for jurisdiction” but refusing to do so); see also Wright & Miller, supra, § 1414 (“If the
counterclaim does present an independent basis of federal jurisdiction, however, the court may
adjudicate it . . . despite the dismissal of plaintiff’s complaint” (emphasis added)).
III.
We review a grant of summary judgment de novo. Ohio State Univ. v. Redbubble, Inc.,
989 F.3d 435, 441 (6th Cir. 2021). Summary judgment is appropriate only if the movant, here
NOCO, “shows that there is no genuine dispute as to any material fact and the movant is entitled
No. 21-3488 NOCO Co. v. OJ Commerce, LLC Page 6
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the evidence in the light most
favorable to the nonmoving party, here OJC. Mays v. LaRose, 951 F.3d 775, 783 (6th Cir. 2020).
IV.
OJC brings three claims against NOCO: defamation, tortious interference with a business
relationship, and a violation of the Ohio Deceptive Trade Practices Act.1 All three claims require
that OJC prove that NOCO was the proximate cause of its injury.2 But OJC can’t. That’s because
three intervening causes break the causal chain and relieve NOCO of liability. These are:
(1) Emson’s complaint, (2) Amazon’s independent investigation and decision, and (3) OJC’s
opportunity to prevent the harm to itself. So NOCO is entitled to summary judgment.3
1OJC argues that NOCO’s complaints to Amazon were defamation per se, entitling it to a presumption of
damages. But OJC has not submitted the contents of NOCO’s complaints into the record. And without the statements,
OJC cannot argue that they were defamatory per se. This is because “[d]efamation per se occurs when material is
defamatory on its face.” Ne. Ohio Elite Gymnastics Training Ctr., Inc. v. Osborne, 916 N.E.2d 484, 490 (Ohio 9th
Dist. 2009) (internal quotation omitted). Without the content of the complaints, it is impossible to determine whether
they were defamatory on their face. Cf. Desai v. Charter Commc’n, LLC, 835 F. App’x 25, 29 (6th Cir. 2020);
Voyticky v. Vill. of Timberlake, 412 F.3d 669, 678 (6th Cir. 2005) (affirming summary judgment for the defendant
when the plaintiff failed to place the allegedly defamatory statements into the record). This is especially true here
because the anti-counterfeiting policy includes authorization to sell authentic goods. So there is no evidence that
NOCO made any false statements to Amazon, even if it believed that OJC were selling authentic goods.
2Defamation requires that the plaintiff show: “(1) that a false statement of fact was made, (2) that the
statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate
result of the publication, and (5) that the defendant acted with the requisite degree of fault . . . .” Anthony List v.
Driehaus, 779 F.3d 628, 632-33 (6th Cir. 2015) (quoting Am. Chem. Soc. v. Leadscope, Inc., 866 N.E.2d 151 (Ohio
2012)). Tortious interference with a business relationship requires a plaintiff to show: “(1) a business relationship,
(2) the wrongdoer’s knowledge thereof, (3) an intentional interference causing a breach or termination of the
relationship, and (4) damages . . . .” Westfall Auto Sales, LLC v. Zurich Am. Ins. Co., 2021 WL 5298540, at *4 (6th
Cir. Nov. 15, 2021). And finally, under the Ohio Deceptive Trade Practices Act, the plaintiff “need only establish an
injury that was proximately caused by a person who commits a deceptive trade practice” listed in the act. Torrance v.
Rom, 157 N.E.3d 172, 189 (Ohio 8th Dist. 2020).
3OJC argues that it is improper to grant summary judgment on the question of proximate cause because it is
a question for the jury. (Appellant’s Br. at 23.) It’s true that proximate cause is generally a question for the jury under
Ohio law. Nye v. CSX Transp., Inc., 437 F.3d 556, 564 (6th Cir. 2006) (discussing Ohio law). But “if the plaintiff’s
evidence on the issue of proximate cause requires mere speculation and conjecture to determine the cause of the event
. . . , then the defendant is entitled to summary judgment.” Id. As explained below, OJC has not shown that there is
an issue of material fact as to proximate causation. So the question is not for the jury.
No. 21-3488 NOCO Co. v. OJ Commerce, LLC Page 7
A.
We begin with some general principles of proximate cause. In Ohio, “the proximate cause
of an event is that which is a natural and continuous sequence, unbroken by any new, independent
cause, produces that event and without which that event would not have occurred.” Aiken v. Indus.
Comm’n, 53 N.E.2d 1018, 1020 (Ohio 1944).
The term “proximate cause” is a bit of a misnomer. Johnson v. Univ. Hosps. of Cleveland,
540 N.E.2d 1370, 1377 (Ohio 1989) (“Proximate cause” is “an unfortunate term” (quoting Prosser
& Keeton, The Law of Torts § 41, at 264 (5th ed. 1984))); Hester v. Dwivedi, 733 N.E.2d 1161,
1165 (Ohio 2000). Indeed, it’s not about causation, but “the limitations . . . upon the actor’s
responsibility for the consequences of the actor’s conduct.” See id.; see also 1 Dan B. Dobbs,
et al., The Law of Torts § 198 (2d ed. 2011) (explaining that a better term for proximate cause is
“scope of liability”). This means that the plaintiff must show that the defendant should be held
liable for causing the injury. See Hester, 733 N.E.2d at 1166.
But it doesn’t make sense to hold the defendant liable for every potential cause that stems
from his action. Id. at 1165 (calling this limitation the “outer bounds of causation”). For example,
suppose a surgeon negligently performs a vasectomy that leads to his patient fathering a child.
Should the surgeon be liable if that child later sets fire to a barn? The law says no. See Dobbs,
supra, § 198; cf. Johnson, 540 N.E.2d at 1378 (holding that in wrongful pregnancy actions parents
can recover for costs of the pregnancy but not for the costs of child-rearing). So we ask if the
defendant’s action and the plaintiff’s injury are connected to such a “significant degree” as to
justify “imposing liability.” Walls v. Durrani, No. C-200167, slip op. at 2, 2021 WL 5860869(Ohio 1st Dist., Dec. 10, 2021).
The thing is, though, there will always be some cause between the initial action and the
injury. See Dobbs, supra, § 201. In fact, it’s “inevitabl[e]” that “something” even “if only the
movement of air” will “intervene between the defendant’s act and the plaintiff’s injury.” Id.;
cf. Johnson, 540 N.E.2d at 1377 (“In a philosophical sense, the consequences of an act go forward
to eternity, and the causes of an event go back to the dawn of time.” (quoting Prosser, supra, at
264)).
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Sometimes these intervening acts “unite[] with the original act to cause injury.” Doyle v.
Fairfield Machine Co., Inc., 697 N.E.2d 667, 680 (Ohio 11th Dist. 1997). This happens when the
original cause “put in motion the sequence of events leading to the injury.” Id. at 679. In that
case, the original wrongdoer is still liable. Id. And this is why an event can have more than one
proximate cause. Murphy v. Carrollton Mfg. Co., 575 N.E.2d 828, 830 (Ohio 1991).
At other times, however, an intervening cause will break the causal chain. Czarney v.
Porter, 853 N.E.2d 692, 694 (Ohio 8th Dist. 2006) (citing Queen City Terminals, Inc. v. Gen. Am.
Transp. Corp., 653 N.E.2d 661, 670 (Ohio 1995)). Courts call this a superseding cause. See
McRoberts v. Dayton Power Light Co., 757 N.E.2d 1230, 1236 (Ohio 2d Dist. 2001). And in that
case, the original party is no longer liable. Id.What’s the difference under Ohio law? Foreseeability. If the intervening cause was
“reasonably foreseeable” by the original actor, then the original actor will be liable. Cascone v.
Herb Kay Co., 451 N.E.2d 815, 819 (Ohio 1983). In other words, even if there is an intervening
event, the defendant will still be liable if he could have reasonably foreseen the intervening event.
For example, if the defendant negligently spills gasoline in a place where children usually play,
and one of the children sets the gasoline on fire, the defendant could be liable for the injury that
results. See Cascone, 451 N.E.2d at 820.
B.
With that in mind, we turn to the three intervening causes in this case. Remember these
were: (1) Emson’s complaint, (2) Amazon’s independent investigation, and (3) OJC’s own action
in failing to prevent the harm. Each of these presents a different scenario but the underlying
question is the same: Whether these causes supersede the causal chain and relieve NOCO of
liability. We think they do.
Emson’s Complaint. As noted above, Emson complained to Amazon about OJC’s
infringement of its patent. This complaint could have, by itself, led to Amazon’s investigation.
So, in this scenario, the acts of a third party independently could have caused the harm. Is that a
superseding cause that relieves NOCO of responsibility? The answer depends on foreseeability.
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The acts of a third party that independently cause the plaintiff's harm are a superseding
cause only if the defendant couldn’t have foreseen it. See Taylor v. Webster, 231 N.E.2d 870, 872-
73 (Ohio 1967). But that act must be “an efficient, independent, and self-producing cause of the
injury” to break the causal chain. Smith v. Hess, 108 N.E.3d 1266, 1272 (Ohio 2d Dist. 2018).
Consider two cases from Ohio. Both involved BB guns. In one, a high schooler took a BB
gun from his friend’s room during a party, shot at the plaintiff, and injured her eye. Morner v.
Giuliano, 857 N.E.2d 602, 604 (Ohio 12th Dist. 2006). His actions “broke the causal chain” and
relieved the defendant of any negligence in storing the gun. Id. at 611. That’s because not only
were these acts “independent” of the defendant, but he “could not have reasonably foreseen” them.
Id. Yet the Supreme Court of Ohio, faced with a very similar fact pattern, came out the other way.
See Taylor, 231 N.E.2d at 871. In that case, a mother gave her ten-year-old son a BB gun while
his friends were around. Id. Unsurprisingly, he fired it and injured the plaintiff’s eye. Id. Because
this was foreseeable, the Ohio Supreme Court held that the mother could be liable for the injury.
Id. at 873.
Now consider Emson’s complaint here. To relieve NOCO of liability, the complaint must
(1) have been an “efficient, independent, and self-producing” cause that (2) NOCO couldn’t
foresee. Emson’s complaint checks both boxes.
Emson was a third party who independently complained to Amazon that OJC was violating
its patent just two weeks before Amazon deactivated OJC’s account. That complaint led Amazon
to investigate. And Amazon cited it as a reason for deactivating OJC’s account. So, by itself, that
complaint could have led to the deactivation of OJC’s account. Thus, it was just the kind of
“efficient, independent, and self-producing” cause that could break the causal chain.
And NOCO couldn’t foresee Emson’s complaint. Emson is a different company from
NOCO. Nothing in the record suggests that NOCO knew that OJC was violating Emson’s patent
or that Emson would complain to Amazon. So Emson’s complaint was an “efficient, independent,
and self-producing” cause of the injury that wasn’t foreseeable and relieves NOCO of any
responsibility.
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OJC attacks both aspects of Emson’s complaint that make it a superseding cause. First, it
argues that violating Amazon’s IP policy—the policy Emson complained under—doesn’t result in
deactivation. This is wrong. Amazon’s IP policy explicitly states that a violation “may result in
loss of selling privileges” and provides actions a seller can take if its “account has been suspended
because of notices of IP infringement.”4 Amazon, Intellectual Property Policy for Sellers,
https://sellercentral.amazon.com/gp/help/external/201361070 (last visited, Feb. 17, 2022).5 So
violating Amazon’s intellectual property policy does result in suspension, which means that
Emson’s complaint, by itself, could have led to the deactivation of OJC’s account.
Second, OJC argues that NOCO could foresee that Amazon would deactivate its account.
But OJC can’t have its cake and eat it too. The only reason that it would be foreseeable to NOCO
that Amazon would deactivate its account would be if OJC was actually violating the anti-
counterfeiting policy. But if OJC violated the policy, then NOCO’s complaint was not the
proximate cause of the deactivation. Rather, it was its own failure to abide by the policy. In any
event, NOCO submitted complaints to Amazon for three months and Amazon did not deactivate
OJC’s account. It was not until Emson also complained that Amazon deactivated the account. So
based on Amazon’s previous inaction, it wasn’t foreseeable to NOCO that Amazon would
deactivate OJC’s account. And again, it wasn’t foreseeable to NOCO that Emson would have even
complained.
Amazon’s Independent Investigation. But even if Emson weren’t in the picture, NOCO
would still not be liable. Why? Because Amazon conducted its own independent investigation.
So here we have another scenario where a third party is intervening. But, unlike Emson’s
complaint, Amazon is not independently causing the harm. Instead, Amazon could have prevented
the harm and failed to do so. Is that a superseding cause? Yes.
4OJC relies on Amazon’s Intellectual Property for Rights Owners. But that is not the policy that would be
relevant to OJC. As a seller, OJC is governed by the policy for sellers.
5Both parties cite the current Amazon IP policy without suggesting that it differs from the policy in effect at
the time of the relevant events here.
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When a third party that could have prevented the harm acts to cause the harm instead, then
the chain of causation is broken. The Ohio courts explain it this way: A break occurs when
“another conscious, responsible agency that could or should have eliminated the hazard intervenes
in an agency creating a hazard and an injury result[s] therefrom.” See Czarney, 853 N.E.2d at 694.
For an illustration, consider Durrani. See Walls v. Durrani, No. C-200167, slip op., 2021
WL 5860869 (Ohio 1st Dist., Dec. 10, 2021). There, the plaintiff sued a doctor who first advised
her to get an intrusive surgery. Id. at *1. She didn’t. Id. Instead, she chose a less intrusive surgery
and a different doctor performed it. Id. The Ohio Court of Appeals found no proximate cause.
Id. at *5. The court explained that any “initial negligence” by the defendant “was cut off” by the
second doctor’s “independent recommendation and performance of” the less-intrusive surgery. Id.
That’s because proximate cause “does not include acts interrupted by another person’s tortious
conduct.” Id. And the second doctor “was a conscious and responsible agent” that “could have”
and “in fact did, eliminate any hazard” from the first doctor’s negligence. Id.
And our malicious prosecution cases are also informative. The causation issues presented
here are analogous to those we resolve in malicious prosecution cases brought under 42 U.S.C.
§ 1983. See, e.g., Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010). Typically, in those cases, a
plaintiff who was wrongfully prosecuted sues the police officer whose actions began the criminal
proceedings. The plaintiff generally argues that false information provided by the investigating
officer began a chain of events that eventually caused the criminal proceedings. And, like NOCO,
the officer responds that the chain of causation was broken because prosecutors and courts
independently determine issues like probable cause.
How do we decide those cases? We look at whether the officer’s actions influenced the
final decision. For example, in Gregory, the plaintiff brought malicious prosecution claims against
two officers based on some false investigatory notes and false testimony at a hearing. Gregory v.
City of Louisville, 444 F.3d 725, 757 (6th Cir. 2006). We found that the false investigatory notes
were not linked to the court’s decision, so the claim based on them couldn’t proceed to the jury.
Id. at 759-60. But the false testimony directly factored into the court’s decision, so that claim
could. Id. at 758-59. And in Sykes too, we explained that even though it was the prosecutor who
made the decision, there was still “ample evidence” of the officer’s “influence[] or participat[ion]”
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in the ultimate decision to prosecute. Sykes, 625 F.3d at 317. Compare that with DePiero, where
we rejected a malicious prosecution claim because the officer “had no role” in issuing the warrant.
DePiero v. City of Macedonia, 180 F.3d 770, 789 (6th Cir. 1999).
Here, Amazon conducted its own independent investigation. And it made the decision to
deactivate OJC’s account based on that investigation. Amazon’s anti-counterfeiting policy tells
us just as much. In its policy, Amazon explicitly states that it takes actions based on its own
review. And Amazon sent multiple warning emails to OJC before deactivating OJC’s account.
This shows that Amazon did, in fact, investigate the claims and that NOCO had no role in the
investigation or the ultimate decision. OJC provided no evidence to the contrary. Thus, even if
NOCO’s complaint alone set off Amazon’s investigation, Amazon had the chance to “eliminate
the hazard” and didn’t. So Amazon's independent investigation was an intervening cause that
relieves NOCO of any responsibility.
OJC’s Own Conduct. Finally, consider the third cause in this case: OJC’s own conduct.
Unlike the previous two causes, this one is based on the party’s own action. Can a party’s own
action be a superseding cause? It can.
When the plaintiff’s own conduct could have prevented the harm but didn’t, the plaintiff’s
actions are considered a superseding cause. So, to find proximate cause, the “causal connection”
between the defendant’s acts and the plaintiff’s injury, must not be “broken by the plaintiff’s own
negligence.” See Smith v. Hess, 108 N.E.3d 1266, 1273 (Ohio 2d Dist. 2018) (quotation marks and
emphasis omitted); see also Miller v. Nussbaum, 1999 WL 3568, No. 98COA01253, (Ohio 5th
Dist. Dec. 14, 1998).
In Hess, the Ohio Court of Appeals found that the plaintiff’s own actions were a
superseding cause that broke the causal chain. See 108 N.E.3d at 1274. After a car crash, the
plaintiff exited his car and eventually “stepp[ed] over the guardrail and attempt[ed] to make his
way down what he knew to be a ‘very steep’ and ice-covered hillside.” Id. at 1273. The court
found that the plaintiff’s “own conduct,” had “interrupt[ed] any sequence set in motion by
[Defendant’s] alleged negligence.” Id. at 1274.
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In Nussbaum, too, the Ohio Court of Appeals found that the plaintiff’s arrest and
prosecution “were the result of her actions” in fleeing from the police. 1999 WL 3568, at *4. Even
though the police chased the plaintiff because of the defendant’s statements to them, the plaintiff’s
actions were “an intervening and superseding cause.” Id. So the defendant’s statements were not
the proximate cause of the plaintiff’s injuries. Id.So too here. OJC’s account was suspended because of its failure to submit documents that
satisfied either of Amazon’s policies. After every complaint, Amazon sent OJC an email asking
for documentations that prove it was following the policies. At this point, OJC could have stopped
the harm. But it didn’t. Its documents didn’t convince Amazon that it was following the policy.
And so Amazon suspended OJC’s account. Thus, because OJC could have prevented the harm to
itself and failed to do so, its own actions were a superseding cause that relieved NOCO of liability.
In sum, three causes here relieved NOCO of liability: (1) Emson’s complaint,
(2) Amazon’s independent investigation, and (3) OJC’s own actions.
A decision from the Ohio Court of Appeals combines these three causes into one case and
further supports our decision here. See Hetmanski v. Doe, No. 2016-T-0123, 2017 WL 3480363(Ohio 11th Dist. Aug. 14, 2017). The plaintiff in Hetmanski was a social worker employed by a
hospital. Id. at *1. She did not follow the hospital’s policies in an adoption proceeding and the
adoption fell through. Id. at *2. The director of an adoption agency complained to the hospital,
and at the same time, other hospital employees also complained. Id. at *1. Id. So the hospital
investigated. Id. at *2. It found that the plaintiff, according to her own documents, did not follow
hospital policy, and fired her. Id.
The social worker sued the director of the adoption agency. Id. She claimed that his
complaint to the hospital was false and constituted tortious interference with employment. Id. The
court of appeals disagreed. It held that the social worker could not establish that the director’s
complaint was the proximate cause of her firing. Id. at *5.
In coming to this conclusion, the court looked at three facts that broke the causal chain.
First, it found that other employees expressed concern to the hospital. Id. at *5. So even if the
defendant’s complaint led to the hospital’s investigation, it was not the only reason for the
No. 21-3488 NOCO Co. v. OJ Commerce, LLC Page 14
investigation. Id. Second, the hospital conducted an independent investigation, and the defendant
was not involved in it. Id. Finally, the court noted that during the investigation, the plaintiff’s
own documents showed that she did not follow the hospital’s policy. Id. So based on the
intervening acts of third parties (the employees and the hospital’s investigation), as well as the
plaintiff’s own documents, the court held that there was no proximate cause.
The analogy here is obvious. Like the employees in Hetmanski, Emson independently
complained to Amazon. Like the hospital, Amazon conducted its own independent investigation.
And, like the social worker, OJC’s own conduct led to the deactivation of its account. That was
enough for the Ohio Court of Appeals to find no proximate cause exists and it’s enough for us here
too.
For these reasons, we hold that OJC cannot establish proximate cause because three
intervening causes—Emson’s independent complaint, Amazon’s independent investigation, and
OJC’s own response to Amazon—broke the causal chain and relieved NOCO of any liability.
C.
OJC makes one final argument based on statistics. In its view, the district court correctly
recognized that there were three equally likely explanations for why Amazon deactivated its
account. These were that Amazon could have deactivated OJC’s account because of (1) NOCO’s
complaint alone, (2) Emson’s complaint alone, or (3) both of their complaints together. As OJC
sees it, this means that in two out of three scenarios (or 66%), NOCO was involved. And from
this statistical fact alone, OJC concludes that it is more likely than not that NOCO was involved.
We aren’t convinced.
To be fair, the district court’s seeming conclusion that Emson alone likely motivated
Amazon’s actions is probably an impermissible inference. After all, Amazon’s email cites both
NOCO and Emson as reasons for the deactivation. So, without more, we can’t say if Emson alone
is responsible. But we don’t think that’s what the district court meant here anyway. The court
viewed the record as lacking any evidence that NOCO motivated Amazon either alone or in part—
aside from those scenarios being two of three equally likely possibilities. See NOCO Co. v.
OJCommerce LLC, No. 1-19-cv-02298, 2021 WL 1788578, at *3 (N.D. Ohio May 5, 2021)
No. 21-3488 NOCO Co. v. OJ Commerce, LLC Page 15
(“Contrary to OJCommerce’s assertions, these emails are insufficient to establish that Amazon
temporarily removed OJCommerce because of the NOCO complaint.”). So the district court found
that the email wasn’t enough evidence to get to the jury. And we agree.
But even if the district court’s opinion can be taken to endorse a 66% probability that
NOCO was involved, OJC’s claim still fails. Why? Because of the general view in the law that
probabilistic evidence alone can’t carry a plaintiff’s burden. See, e.g., Howard v. Wal-Mart Stores,
Inc., 160 F.3d 358, 360 (7th Cir. 1998) (Posner, J.); see also Richard A. Posner, An Economic
Approach to the Law of Evidence, 51 Stan. L. Rev. 1477, 1508-09 (1999).
Indeed, the question of pure statistical evidence conjures visions of the classic Blue Bus
hypothetical, which is a variation of the Massachusetts Supreme Court’s opinion in Smith v. Rapid
Transit Inc., 58 N.E.2d 754 (Mass. 1945). See Michael S. Pardo, The Paradoxes of Legal Proof:
A Critical Guide, 99 Boston U. L. Rev. 223, 237 (2019); Posner, An Economic Approach, supra,
at 1508-09. Imagine the following: suppose a plaintiff is hit by a bus. We don’t know anything
about the bus, but we do know that Blue Bus Company owns 75 percent of the buses in town and
Red Bus Company owns 25 percent. The plaintiff sues Blue Bus Company and offers no evidence,
just the statistics. Does the case go to the jury? Most legal authorities say “no.” Howard, 160
F.3d at 360; see also Galvin v. Eli Lilly and Co., 488 F.3d 1026, 1034-35 (2007) (explaining that
courts “usually reject the argument” that statistical evidence alone is enough); Richard W. Wright,
Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble
Bush by Clarifying the Concepts, 73 Ia. L. Rev. 1001, 1050-51 (1988). And that’s what the
Massachusetts Supreme Court held in Smith, too. See 58 N.E.2d at 470. It explained that “it was
not enough” for “the mathematical chances [to] somewhat favor the proposition that a bus of the
defendant caused the accident.” Id.
It’s true, academics have debated the use of statistics given that some commentators,
including Judge Posner, have recognized that all evidence is probabilistic in some sense. See
Howard, 160 F.3d at 360; see also Posner, An Economic Approach, supra, at 1508; compare
Wright, supra, at 1001, 1075 (rejecting use of statistical evidence and arguing that “[t]here should
not be liability . . . when it has not been established that the defendant behaved tortiously”), with
Daniel Shaviro, Statistical-Probability Evidence and the Appearance of Justice, 103 Harv. L. Rev.
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530, 531 (1989) (arguing that the Smith rule rejecting pure statistical evidence “is not convincing”)
and Sam Fox Krauss, Against the Alleged Insufficiency of Statistical Evidence, 47 Fla. St. U. L.
Rev. 801, 802 (arguing that “statistical evidence should be sufficient, on its own, for conviction in
a criminal trial or a ruling a civil trial”).
And it’s also true that some courts, in some special circumstances, have let plaintiffs rely
on statistics alone. See Sindell v. Abbott Lab’ys, 607 P.2d 924 (1980); In re Agent Orange Prod.
Liab. Litig., 597 F. Supp. 740 (E.D.N.Y. 1984); see also Howard, 160 F.3d at 360. But in those
mass-tort cases, particularized evidence was unavailable. Not so here. We have no reason to
believe that particularized evidence from Amazon, that could have added to the statistical
speculation, would not have been available here. In fact, OJC itself has identified a source from
Amazon who it claims could have testified.6 But the record contains no testimony from him. And
OJC has presented no other evidence to support its statistical argument.
The concerns with using only statistical evidence are summarized in the following
dilemma. Just because OJC is relying on pure statistical evidence—that there is a 66% probability
that NOCO was responsible—doesn’t mean that there is, in fact, a 66% probability that NOCO
was responsible. See Howard, 160 F.3d at 360. Rather, it goes to show that either OJC (1)
“investigated and discovered that” NOCO wasn’t responsible, or (2) that it “simply has not
bothered to conduct an investigation.” Id. If it’s the first, then OJC cannot carry its burden of
proof against NOCO. If it’s the second, then OJC’s claim also fails. That’s because “[a] court
shouldn’t be required to expend its scarce resources of time and effort on a case until the plaintiff
has conducted a sufficient investigation to make reasonably clear that an expenditure of public
resources is likely to yield a significant social benefit.” Id. This is, after all, why the plaintiff has
the burden of proof in the first place. Id. We think this case likely falls within this latter category.
And that’s why there is no evidence in the record from Amazon that supports OJC’s statistical
evidence.
6OJC states that “discovery was ongoing during summary judgment briefing.” (Appellant’s Br. at 27-28.)
While it hints at it, OJC doesn’t argue that summary judgment was premature. In any event, if OJC needed more time
for discovery, it should have filed a motion for more discovery under Fed. R. Civ. P. 56(d). But OJC didn’t do that
here.
No. 21-3488 NOCO Co. v. OJ Commerce, LLC Page 17
V.
Because NOCO was not the proximate cause of OJC’s injuries, we AFFIRM.