United States District Court, S.D. Ohio, Eastern Division
VASCURA MAGISTRATE JUDGE.
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Third-Party Defendant's
Motion to Dismiss for failure to state a claim. (ECF No. 29).
For the reasons that follow, Third-Party Defendant's
Motion is granted in part and denied in part.
Snyder brought this case alleging claims of breach of
contract and negligence in relation with a lease entered with
Defendant AutoZone. (ECF No. 2). In response, AutoZone brought
suit against FD Gahanna. This Opinion & Order concerns
the lease between Autozone Development and FD Gahanna. On
April 3, 2015, AutoZone Development leased premises in the
shopping center pursuant to a new lease with FD Gahanna
(“FD Lease”). In exchange, FD Gahanna agreed to
assume the responsibilities of the Snyder Lease - that is,
the lease between AutoZone and Snyder - after an assignment
had been executed. Id. In December 2015, the
assignment had been executed, and AutoZone Development left
the old premises and relocated to the new premises.
Id. AutoZone Development then contacted Snyder for
consent to the Assignment to FD Gahanna and consent was
refused as FD Gahanna had already failed to pay Snyder for
rent and other required items pursuant to Section 21.1 of the
FD Lease and the Assignment in December. Id.
Party Plaintiff AutoZone, Inc. brought this action against
Third Party Defendant FD Gahanna for claims of Breach of
Contract, Unjust Enrichment, Promissory Estoppel, Tortious
Interference with Contract, Indemnification, and
Contribution. Id. FD Gahanna filed a Motion to
Dismiss (ECF No. 29), arguing that AutoZone failed to state a
claim upon which relief could be granted. Fed.R.Civ.P.
12(b)(6). AutoZone filed a Response in Opposition (ECF No.
31) and FD Gahanna filed a Reply (ECF No. 34).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6), the Court may
dismiss a cause of action for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). Such a motion “is a test of the
plaintiff's cause of action as stated in the complaint,
not a challenge to the plaintiff's factual
allegations.” Golden v. City of Columbus, 404
F.3d 950, 958-59 (6th Cir. 2005). Thus, the Court “must
construe the complaint in the light most favorable to the
plaintiff” and “accept all well-pled factual
allegations as true[.]” Ouwinga v. Benistar 419
Plan Servs., Inc., 694 F.3d 783, 790 (6th Cir. 2012). If
more than one inference may be drawn from an allegation, the
Court must resolve the conflict in favor of the plaintiff.
Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).
The Court cannot dismiss a complaint for failure to state a
claim “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Id.
a complaint must contain a “short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The allegations need not
be detailed but must “give the defendant fair notice of
what the claim is, and the grounds upon which it
rests.” Nader v. Blackwell, 545 F.3d 459, 470
(6th Cir. 2008) (quoting Erickson v. Pardus, 551
U.S. 89, 93 (2007)). A complaint's factual allegations
“must be enough to raise a right to relief above the
speculative level, ” and must contain “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007). A claim is plausible when it
contains “factual content that allows 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). The Court is not required to accept as
true mere legal conclusions unsupported by factual
allegations. Id. (citing Twombly, 550 U.S.
LAW & ANALYSIS
Ohio Law, relationships governed by contract law cannot also
be governed by tort law. Ketcham v. Miller, 104 Ohio
St. 372, 136 N.E. 145, 146 (1922). For the purposes of this
Motion to Dismiss, this Court will not address whether the
Third-Party Plaintiff AutoZone has to elect a specific remedy
in tort or in contract. Third Party Plaintiff is allowed to
plead in the alternative or inconsistently (See Fed.
R. Civ. P. 8(d)) but at some point, AutoZone must elect
whether it will pursue relief in tort or in contract.
Preventing double recoveries for the same wrong is the
primary purpose of the election-of-remedies doctrine.
U.S. ex rel. Augustine v. Century Health Services,
Inc., 289 F.3d 409, 416 (6th Cir. 2002) (citing Gens
v. Resolution Trust Corp., 112 F.3d 569, 573 (1st Cir.
1997)). Therefore, this Court will only address whether Third
Party Plaintiff AutoZone properly stated each claim for
relief, regardless of whether recovery is possible.
Breach of Contract
first claim is for breach of contract. AutoZone argues that
FD Gahanna materially breached Section 21.1 of the FD Lease
and the Assignment by failing to make payments to Snyder for
rent and other items that were required under the Snyder
Lease; by failing to use good faith efforts to terminate the
Snyder Lease; by failing to safeguard the Premises against
the loss alleged and described in the Plaintiff's
Complaint; and by procuring Snyder's refusal to consent
to the Assignment (ECF No. 25). In response, FD Gahanna
argues that AutoZone did not have consent to assign the
Snyder Lease. For the purposes of this motion, this Court is
only concerned with the agreement between AutoZone and FD
Gahanna and not whether the Snyder Lease was properly
order properly to plead a claim for breach of contract, a
plaintiff must show that there was a contract and that the
contract was materially breached. A material breach of
contract occurs when a party violates a term essential to the
purpose of the agreement. See Troy Oaks Homes &
Residential Club, Inc. v. Sokolowski,78 N.E.3d 365,
2016-Ohio-8427. Here, AutoZone alleges that FD Gahanna
materially breached their lease agreement by failing to
assume the liabilities of the Snyder Lease. Whether the
failure to assume the liabilities constitutes a material
breach is not a question that can be answered at this stage
of litigation. To determine if an alleged breach is material,
the factfinder must consider all of the circumstances of the
case, including the conduct and relationship of the parties.
Ohio Educ. Ass'n v. Lopez, 10th Dist. Franklin
Co. No. 09AP-1165, 2010-Ohio-5709, ¶ 12. This Court is
held to the standard for review for a 12(b) motion to dismiss
and thus, cannot, at this stage, determine whether there was
a breach because this Court cannot consider all of the
circumstances of the case ...