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Hopp v. Gallagher

United States District Court, N.D. Ohio, Eastern Division

June 26, 2018

STEVEN J. HOPP, Plaintiff,
v.
ARTHUR J. GALLAGHER & CO., Defendant.

          JUDGE CHRISTOPHER A. BOYKO

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE

         This 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.

         I. FACTUAL BACKGROUND

         Defendant 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 Defendant.

         The 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.

         On 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).

         Defendant 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 claim.

         II. LAW AND ANALYSIS

         Standard of Review for Fed.R.Civ.P. 12(b)(6)

         In 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 557.
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 ...

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