United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. PEARSON UNITED STATES DISTRICT JUDGE
is Defendant Hooberry & Associates, Inc.'s, d/b/a
Laurie Ann Nursing Home, Rule 12(b)(6) partial
motion to dismiss the Second Claim of the Amended Complaint
(ECF No. 11) filed by Plaintiff Patricia A Heib.
ECF No. 13. The Court has been advised, having
reviewed the record, the parties' briefs, and the
applicable law. For the reasons set forth below,
Defendant's motion is granted.
Patricia A. Heib filed this action in Trumbull County, Ohio
Court of Common Pleas on January 31, 2017. ECF No.
1-1. The action was removed to the Northern District of
Ohio pursuant to 28 U.S.C. §§ 1331, 1441(a)-(b).
ECF No. 1 ¶ 3. Afer seeking and being granted
leave of Court (see Motion to Amend Complaint,
ECF No. 9), Plaintiff filed an Amended Complaint
(ECF No. 11) on May 1, 2017. The two-count Amended
Complaint alleges claims for violations of the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq., and
the Portal-to-Portal Pay Act, 29 U.S.C. § 251, et
seq.(“First Claim”), and breach of contract
(“Second Claim”). ECF No. 11. On July
28, 2017, Plaintiff filed a notice withdrawing the First
Claim of the Amended Complaint. See ECF No. 21.
Second Claim remains before the Court pursuant to the
Court's exercise of supplemental jurisdiction under 28
U.S.C. 1367(a). The Second Claim alleges breach of an
“implied term of [Plaintiff's] employment
relationship.” ECF No. 11 at PageID #: 77, ¶
2. Plaintiff avers that the implied term “provided
a severance benefit [of a sum equal to 50% of the separated
employee's annual compensation] for those management
employees separated from employment after having served the
Defendant for more than ten (10) years.” Id.
at PageID #: 77, ¶¶ 2-3. Plaintiff alleges
that, upon separation from employment with Defendant as
Director of Nursing on December 30, 2016, she had served as a
management employee for over ten years but was tendered a
severance benefit less than 50% of her salary. Id. at
¶¶ 4-5. Plaintiff seeks damages in the amount
of approximately $35, 500.00 for breach of the alleged
implied term severance benefit. Id. at ¶ 7.
filed a partial 12(b)(6) motion to dismiss the
breach of contract claim. ECF No. 13. Plaintiff
opposes (ECF No. 15), and Defendant filed a reply
(ECF No. 16).
survive a Fed. R. Civ. P.12(b)(6) motion to dismiss,
the plaintiff's complaint must allege enough facts to
“raise a right to relief above the speculative
level.” Ass'n of Cleveland Fire Fighters v.
City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir.
2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Fed.R.Civ.P. 8(a)(2) requires only that a
pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
However, “a plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). A
complaint requires “further factual enhancement,
” which “state[s] a claim to relief that is
plausible on its face.” Id. at 557, 570. A
claim has facial plausibility when there is enough factual
content present to allow “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). When a claim lacks “plausibility
in th[e] complaint, ” that cause of action fails to
state a claim upon which relief can be granted. Twombly,
U.S. 550 at 564.
prevailing rule is that a complaint showing on its face that
relief is barred by an affirmative defense is properly
subject to a 12(b)(6) motion to dismiss for failure
to state a claim upon which relief can be granted.”
Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,
702 (6th Cir. 1978). The Court's inquiry is limited to
the four corners of the complaint, along with any other
materials permitted under Fed. R. Civ. P. 12(b)(6)
and 10(c). Jackson v. Maui Sands Resort,
Inc., No. 1:08-CV-2972, 2009 WL 7732251, at *3 (N.D.
Ohio Sept. 8, 2009). “A dismissal is only proper on the
grounds of an affirmative defense, where the complaint,
together with any other documents appropriately considered
under Fed. R. Civ. P. 12(b)(6) leave no doubt that
the plaintiff's action is barred by the asserted
seeks to dismiss the Second Claim of the Amended Complaint on
the following grounds: (1) “Plaintiff does not plead [,
nor attach to the Amended Complaint, ] a written contract, or
any other written document that establishes an obligation by
Defendant to provide her with specific severance
payments[;]” and (2) ¶4 of the Amended Complaint
pleads an implied contract that is barred under the Ohio
Statute of Frauds, Ohio Rev. Code § 1335.05,
because the alleged implied contract “could
not have been performed with a year because
it required” at least ten (10) years of service.
ECF No. 13-1 at PageID #: 98-99 (emphasis in
opposition, Plaintiff argues the following: (1) the Ohio
Statute of Frauds is an affirmative defense under Fed R.
Civ. P. 8(c)(1) and Defendant's motion may be
granted only when the defense appears clearly on the face of
the Amended Complaint; and, (2) the Statute of Frauds defense
does not appear clearly in ¶4 of the Amended Complaint
because ¶4 alleges part performance and part performance
removes the claim from operation of the Ohio Statute of
Frauds. ECF No. 15. In her second argument, it
appears Plaintiff is asserting that the language
“having served in that capacity for more than 10
years” alleges part performance. See Amended
Complaint, ECF No. 11 ¶ 4. Thus, Plaintiff
contends that the part performance exception to the Ohio
Statute of Frauds applies in this case.
attached a sworn affidavit to her opposition, that alleges
“a promissory estoppel component of the parties'
agreement.” ECF No. 15 at PageID #: 108;
see also Affidavit of Patricia A. Heib, ECF No.
15-1 (the “Affidavit”). In the Affidavit,
Plaintiff swore that she was told she would receive a
severance benefit during her interview in February 2006 and
that she relied on the promise of a severance benefit when
she accepted the position with Defendant. ECF No. 15-1
¶¶ 2-5. Plaintiff contends that the
allegations contained in the Affidavit invoke the promissory
estoppel exception to Ohio's Statute of
Ohio Statute of Frauds, Ohio Rev. Code ...