United States District Court, N.D. Ohio, Eastern Division
STEVEN J. HOPP, Plaintiff,
ARTHUR J. GALLAGHER & CO., Defendant.
CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE
matter comes before the Court upon the Motion (ECF DKT #10)
of Defendant, Arthur J. Gallagher & Co., to Dismiss
Counts I, III and IV of the Complaint. For the following
reasons, the Motion is denied.
is a provider of employee benefits services, human resources
consulting services and commercial insurance products.
Plaintiff, Steven J. Hopp, was employed as an Area Vice
President and sold insurance and benefits services for
parties executed an Employment Agreement on November 18,
2010. Plaintiff alleges that the parties agreed to a
modification of Plaintiff's compensation on December 31,
2013. Further, Plaintiff alleges that Defendant failed and
refused to compensate him in accordance with the terms of the
initial Agreement and the subsequent modification. Plaintiff
tendered his written resignation on February 27, 2018.
March 5, 2018, Plaintiff filed the instant Complaint setting
forth five claims for relief: Count I - Declaratory Judgment;
Count II - Breach of Contract; Count III - Civil Theft; Count
IV - Conversion; Count V - Waiting Time Violation (Ohio
Revised Code § 4113.15).
moves for dismissal of the Declaratory Judgment cause of
action for lack of a real and justiciable controversy and for
redundancy; dismissal of the Civil Theft cause of action
because it does not set forth a separate civil claim under
Ohio law; and dismissal of the Conversion cause of action
because a breach of contract does not create a viable tort
LAW AND ANALYSIS
of Review for Fed.R.Civ.P. 12(b)(6)
deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the
court must accept as true all of the factual allegations
contained in the complaint. Erickson v. Pardus, 551
U.S. 89, 93-94 (2007). The court need not, however, accept
conclusions of law as true:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” As the
Court held in [Bell Atlantic v.] Twombly,
550 U.S. 544, 127 S.Ct. 1955');">127 S.Ct. 1955 [(2007)], the pleading standard
Rule 8 announces does not require “detailed factual
allegations, ” but it demands more than an unadorned,
the-Defendant-unlawfully-harmed-me accusation. Id.
at 555. A pleading that offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555. Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of
“further factual enhancement.” Id. at
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Id. at 570. A claim has facial plausibility when the
Plaintiff pleads factual content that allows the court to
draw the reasonable inference that the Defendant is liable
for the misconduct alleged. Id. at 556. The
plausibility standard is not akin to a “probability
requirement, ” but it asks for more than a sheer
possibility that a Defendant has acted unlawfully.
Id. Where a complaint pleads facts that are
“merely consistent with” a ...