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Bracken v. Dasco Home Medical Equipment, Inc.

United States District Court, Sixth Circuit

June 27, 2013



MICHAEL R. BARRETT, District Judge.

This matter is before the Court on Defendants Diversified Employment Solutions' and Cornerstone Innovations Inc.'s Motion to Dismiss or Motion for Summary Judgment. (Doc. 7). Plaintiff Matthew Bracken has filed a response in opposition to the motion to dismiss (Doc. 11), [1] and Defendants Diversified Employment Solutions and Cornerstone Innovations Inc. have filed a reply (Doc. 13). Plaintiff Matthew Bracken also has filed a surreply. (Doc. 17).[2] The matter is now ripe for review.


The background facts construed in the light most favorable to Plaintiff Matthew Bracken ("Bracken") are as follows:

Bracken was employed as a Director of Operations by Defendant DASCO Home Medical Equipment, Inc. ("DASCO") and Defendant Diversified Employee Solutions, Inc. a/k/a Cornerstone Innovations, Inc. ("DES" and "Cornerstone") (Doc. 1, ¶¶ 1, 8). The business addresses of DES and Cornerstone are the same, and each entity has designated with the Ohio Secretary of State the same individual to serve as its statutory agent for service of legal process. (Doc. 1, ¶ 1). Bracken's 2011 W-2 identified Cornerstone as his employer. (Doc. 1, ¶ 2).

His immediate supervisor was Rachel Mazur, the Chief Executive Offer. (Doc. 1, ¶ 9). Mazur's brother, Jason Seeley, was President. (Doc. 1, ¶ 10). Mazur and Seeley owned DASCO. (Doc. 1, ¶ 11).

On or about November 25, 2009, Bracken entered into a Confidentiality and Noncompetition Agreement ("Agreement") with DASCO. (Doc. 7-1). The Agreement provides, in pertinent part:

The Company would not have agreed to hire Associate but for and in reliance on Associate's agreements herein....
§ 1. Employment is At-Will. Associate's employment is at-will, which means it can be terminated at any time by either party, for any reason or for no reason at all, with or without advance notice. No provision of this Agreement is intended to alter the at-will nature of Associate's employment....
§ 8. Miscellaneous Provisions.
(a) Entire Agreement; Amendment. This Agreement contains the entire agreement of the parties as to the subject matter hereof and merges and supersedes all prior discussions, agreements and undertakings between them. This Agreement may only be amended by a writing signed by the party who is to be bound thereby.
(b) Governing Law. This Agreement shall be construed and enforced with Ohio law without regard to its conflicts of laws provisions. Any action brought by either the Company or Associate must be maintained in the state courts situated in Franklin County, Ohio. The parties hereby consent to the jurisdiction of such courts.

(Doc. 7-1, §§ 1, 8(a)-(b)). DASCO and Bracken are the only signatories to the Agreement. (Doc. 7-1).

Bracken had a "disability, " which he disclosed to Mazur, as well as to the Chief Financial Officer and the Director of Reimbursement, in October 2011. (Doc. 1, ¶ 13). He was terminated on November 29, 2011. (Doc. 1, ¶ 15). Prior to his termination, Mazur and Seeley had expressed satisfaction with Bracken's performance, and had asked him to assume the Sales Manager position, to be the Joint Venture Sales Representative, and to continue in the position of Director of Operations. (Doc. 1, ¶¶ 17-18). DASCO and DES a/k/a Cornerstone allegedly denied him a reasonable accommodation and terminated him because of his disability. (Doc. 1, ¶ 20).

On February 24, 2012, Bracken filed charges with the Equal Employment Opportunity Commission ("EEOC"), alleging that DASCO and DES a/k/a Cornerstone had denied him a reasonable accommodation and terminated his employment because of disability. (Doc. 1, ¶ 22). On or about August 21, 2012, the EEOC issued a notice of right to sue on each charge. (Doc. 1, ¶ 23).

On November 19, 2012, Bracken filed his Complaint in this Court, alleging disability discrimination under the American with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA") and Ohio Revised Code § 4112.99. (Doc. 1, ¶¶ 25-28).


A. Motion to Dismiss

DES and Cornerstone's motion to dismiss is made pursuant to Federal Rules of Civil Procedure 12(b)(1)-(3) and 12(b)(6).

"A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists." DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). "A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading." Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). "In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss." Id. On the other hand, a factual attack is "not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). With a factual attack, this Court must "weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist." Ohio Nat'l Life Ins. Co., 922 F.3d at 325. The Court may allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts. Id.

Under Rule 12(b)(2), the plaintiff bears the burden of proving personal jurisdiction exists. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir. 1996). In the face of a supported motion to dismiss, the plaintiff may not rest on his pleadings, but must, by affidavit or otherwise, set forth specific evidence supporting jurisdiction. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991) (citing Weller v. Cromwell Oil Co., 504 F.2d 927, 930 (6th Cir. 1974)). When the Court considers a motion to dismiss pursuant to Rule 12(b)(2) without an evidentiary hearing on the issue of personal jurisdiction, however, the plaintiff "need only make a prima facie showing of jurisdiction.'" Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002) (quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002) (internal citation omitted)). The plaintiff can make this prima facie showing by "establishing with reasonable particularity sufficient contacts between [the Defendant] and the forum state to support jurisdiction.'" Neogen Corp., 282 F.3d at 887 (quoting Provident Nat'l Bank v. California Fed. Savings Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987)).

In deciding a Rule 12(b)(2) motion to dismiss, the Court is to construe the facts in the light most favorable to the non-moving party. Id. Significantly, the Court is not to weigh the controverting assertions of the party seeking dismissal. CompuServe, 89 F.3d at 1262 (citing Theunissen, 935 F.2d at 1459). This refusal to weigh the defendants' controverting assertions is necessary to prevent non-resident defendants from avoiding jurisdiction simply by filing an affidavit that denies all jurisdictional facts. Id.

Under Rule 12(b)(3), a case may be dismissed for improper venue. Fed.R.Civ.P. 12(b)(3). However, a motion to dismiss for improper venue pursuant to Rule 12(b)(3) will only be granted if the case was not filed in a venue prescribed by 28 U.S.C. § 1391. Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 536 (6th Cir. 2002).

Under Rule 12(b)(6), this Court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). "[T]o survive a motion to dismiss[, ] a complaint must contain (1) enough facts to state a claim to relief that is plausible, ' (2) more than a formulaic recitation of a cause of action's elements, ' and (3) allegations that suggest a right to relief above a speculative level.'" Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 1974, 167 L.Ed.2d 929 (2007)). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although the plausibility standard is not equivalent to a "probability requirement, '... it asks for more than a sheer possibility that a defendant has acted ...

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