Heib v. Hooberry & Associates, Inc.
Memorandum of Opinion and Order For the reasons set forth herein, Defendant's Motion to Dismiss (ECF No. 13 ) is granted. The Second Claim of the Amended Complaint is dismissed with prejudice. The matter is closed. Judge Benita Y. Pearson on 11/22/2017. (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
PATRICIA A HEIB,
HOOBERRY & ASSOCIATES, INC.,
CASE NO. 4:17CV360
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 13]
Pending 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.
Plaintiff 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.1 See ECF No. 21.
The Second Claim remains before the Court pursuant to the Court’s exercise of
supplemental jurisdiction under 28 U.S.C. 1367(a).2 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.
Defendant 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).
At the Case Management Conference, the parties informed the Court that, after
preliminary discussion among counsel, Plaintiff agreed to voluntarily dismiss the First
Claim. The Court ordered Plaintiff to file a formal notice. See Mins. of Proceedings,
July 26, 2017 (“No later than 8/9/2017, Plaintiff shall file a formal notice to the Court
regarding the voluntary dismissal of Plaintiff's FLSA claims.”).
Under 28 U.S.C. § 1367(a), a federal district court may exercise supplemental
jurisdiction over a state law claim that is part of the same case or controversy.
II. Legal Standard
To 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.
“[T]he 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 defense.” Id.
Defendant 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
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.
Plaintiff 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 Frauds.3
The Ohio Statute of Frauds, Ohio Rev. Code § 1335.05, provides:
No action shall be brought whereby to charge the defendant, . . .
upon an agreement that is not to be performed within one year
from the making thereof; unless the agreement upon which such
action is brought, or some memorandum or note thereof, is in
writing and signed by the party to be charged therewith or some
other person thereunto by him or her lawfully authorized.
Exceptions to the Statute of Frauds have been recognized by Ohio’s appellate courts.
Ohio appellate courtswill permit an agreement to be
removed from operation of the Statutes of Frauds but only by virtue
of either of the following: (1) partial performance; and (2) the
doctrine of promissory estoppel. 
An agreement is removable from operation of the Statutes of
Frauds by virtue of partial performance only where the party relying
on the agreement changes his position to his detriment thereby
making it impractical or impossible to return the parties to their
original status.  An agreement is removable from operation of the
Statutes of Frauds by virtue of the doctrine of promissory estoppel
Because the Affidavit presents a matter outside of a pleading, Plaintiff avers that
the Court should treat Defendant’s motion to dismiss as a Rule 56 motion for summary
judgment under Fed. R. Civ. P. 12(d) and the motion should be denied. ECF No. 15 at
PageID #: 108.
only when there has been a misrepresentation of compliance with the
Statutes of Frauds or a promise to make a writing of an oral
Saydell v. Geppetto's Pizza & Ribs Franchise Sys., Inc., 652 N.E.2d 218, 224 (Ohio Ct. App.
1994) (citations omitted).
Plaintiff has filed no writing as evidence of the alleged implied agreement for a severance
benefit owed to Plaintiff. Moreover, the Court finds that by alleging exceptions to the Ohio
Statute of Frauds in her opposition, Plaintiff concedes that the Ohio Statute of Frauds applies in
this case—i.e., the alleged implied agreement for a severance benefit was not reduced to writing
and is an agreement that is not to be performed within one year from the making. The
affirmative defense is also evident on the face of the pleadings. The Amended Complaint asserts
that the alleged implied agreement for a severance benefit was in existence “[t]hroughout”
Plaintiff and Defendant's employment relationship. ECF No. 11 ¶ 2. Plaintiff alleges that she
served as Defendant’s Director of Nursing for over 10 years. Id. at ¶ 4. Therefore, Plaintiff has
pled that the alleged implied agreement for a severance benefit was in place for at least 10 years.
The Court also finds that the part performance exception to the Ohio Statute of Frauds is
not evident on the face of the Amended Complaint. Plaintiff does not plead that, relying on the
alleged implied agreement for a severance benefit, she changed her position to her detriment.
Moreover, Plaintiff’s claim for promissory estoppel, i.e., a second exception to the statute of
frauds, appears to be a concession that the statute of frauds applies in this case. Yet, the
Amended Complaint and Plaintiff’s opposition do not plead facts that constitute
misrepresentation of compliance with the Statutes of Frauds or a promise to make a writing of an
oral agreement such that the promissory estoppel exception to the Statute of Frauds applies.4 See
Saydell, 652 N.E.2d at 224.
Accordingly, the Court finds that the Ohio Statute of Frauds defense appears clearly on
the face of the Amended Complaint, and, as explained above, the Second Claim of the Amended
Complaint must be dismissed for failure to state a claim upon which relief may be granted under
Fed. R. Civ. P. 12(b)(6).
For the foregoing reasons, Defendant’s motion to dismiss (ECF No. 13) is granted. The
Second Claim of the Amended Complaint is dismissed with prejudice. The matter is closed.
IT IS SO ORDERED.
November 22 2017
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
Because it is clear on the face of the Amended Complaint that Plaintiff will not
succeed on the merits of either exception asserted, the Court will not convert Defendant’s
motion into a Rule 56 motion for summary judgment. See ECF No. 15 at PageID #: 107;
ECF No. 16 at PageID #: 112 n.1. See also Arnold v. Family Indep. Agency, No.
2:11-CV-260, 2011 WL 5840908, at *2 (W.D. Mich. Nov. 21, 2011) (“[A]n affirmative
defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without
resort to summary judgment procedure, if the defense appears on the face of the
complaint.”) (explaining the Sixth Circuit’s adherence to this rule in Pierce v. Oakland
Cty., 652 F.2d 671, 672 (6th Cir. 1981)).
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