Peter D. Brown Trust v. Shriver et al
ORDER granting 21 Defendants' partial Motion to Dismiss. Signed by Judge Susan J. Dlott on 2/8/18. (wam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Peter D. Brown Trust,
John Lee Shriver, et al.,
Case No. 1:17-cv-280
Judge Susan J. Dlott
Order Granting Defendants’ Motion for
This matter is before the Court on the Motion for Partial Dismissal filed by Defendants
John Shriver and John L. Shriver Revocable Trust (collectively “Defendants”). (Doc. 21.) For
the reasons that follow, Defendants’ Motion will be GRANTED.
This action originally was brought in the United States District Court for the Northern
District of Illinois, Eastern Division, on November 15, 2016. (Doc. 1.) On March 21, 2017, the
Honorable Charles P. Kocoras granted Defendants’ Motion to Dismiss and transferred the action
to this Court pursuant to 28 U.S.C. § 1631, § 1406(a), and/or § 1404(a). (Doc. 15.) On May 31,
2017, Defendants filed a Motion for Partial Dismissal (Doc. 21), to which Plaintiff responded
(Doc. 27) and Defendants replied (Doc. 28).
As previously set forth by Judge Kocoras, this action pertains to pig farming ventures
between two former friends, John Lee Shriver and Thomas Kolter, in the country of Poland.
Kolter2 is Trustee of Plaintiff Peter D. Brown Trust. Defendant Shriver is Trustee of Defendant
John L. Shriver Revocable Trust. Plaintiff asserts claims of breach of contract, breach of
Presumed to be true for purposes of the pending Motion, the Court has drawn background facts from Plaintiff’s
Complaint (Doc. 1).
Kolter is not a party to this action.
fiduciary duty, tortious interference, aiding and abetting breach of fiduciary duty, participation in
breach of fiduciary duty, estoppel, and accounting. In their Motion, Defendants argue that
Plaintiff’s claims for aiding and abetting breach of fiduciary duty, participation in breach of
fiduciary duty, and equitable estoppel fail as a matter of law.
A. Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for “failure
to state a claim upon which relief can be granted.” To withstand a motion to dismiss pursuant to
Rule 12(b)(6), a complaint must comply with the pleading requirements of Federal Rule of Civil
Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). When considering a
motion to dismiss pursuant to Rule 12(b)(6), the Court must construe the complaint in a light
most favorable to the plaintiff and accept the factual allegations as true. Lambert v. Hartman,
517 F.3d 433, 439 (6th Cir. 2008). The Court “need not, however, accept conclusory allegations
or conclusions of law dressed up as facts.” Erie Cty., Ohio v. Morton Salt, Inc., 702 F.3d 860,
867 (6th Cir. 2012).
A. Aiding and Abetting Breach of Fiduciary Duty and Participation in Breach of
Defendants argue Ohio courts do not recognize Counts V and VI of the Complaint, which
allege aiding and abetting breach of fiduciary duty and participation in breach of fiduciary duty.
DeVries Dairy, LLC v. White Eagle Coop. Assoc., Inc., 132 Ohio. St. 3d 516, 974 N.E.2d 1194
(2012). In DeVries, the United States District Court for the Northern District of Ohio, Western
Division, certified to the Supreme Court of Ohio the question of whether Ohio recognizes a
cause of action for tortious acts in concert under the Restatement (2d) of Torts, § 876. Id. at
1194–95. This Section provides that a defendant may be held liable if he:
(a) does a tortious act in concert with the other or pursuant to a common
design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct himself,
(c) gives substantial assistance to the other in accomplishing a tortious result
and his own conduct, separately considered, constitutes a breach of duty to
the third person.
Sacksteder v. Senney, No. 24993, 2012 WL 4480695, at *16 (Ohio App. Sept. 28, 2012) (citing
Restatement (2d) of Torts, § 876 (1979)). In answering the certified question, the court held that
“[t]his court has never recognized a claim under 4 Restatement 2d of Tort, Section 876 (1979),
and we decline to do so under the circumstances of this case.” 974 N.E.2d at 1195 (emphasis
Plaintiff argues its claims are viable because the holding of DeVries was never intended
to apply beyond the circumstances of that case. Not only has that argument has been squarely
rejected, but the DeVries case also is routinely applied to dismiss analogous claims. Parlin Fund
LLC v. Citibank N.A., No. 1:13-cv-111, 2013 WL 3934997, at *8 (S.D. Ohio July 30, 2013)
(rejecting the argument that the holding of DeVries is limited to the facts of the case and
dismissing claims for aiding and abetting fraud and conversion); Spaude v. Mysyk, No. 16-cv1836, 2017 U.S. Dist. LEXIS 155382, at *36–37 (S.D. Ohio July 14, 2017) (dismissing aiding
and abetting tortious conduct claims and listing Ohio cases that have rejected similar claims
based on DeVries), report and recommendation adopted, 2017 U.S. Dist. LEXIS 155676, 2017
WL 4221076 (Sept. 22, 2017).
Therefore, as Ohio law does not recognize claims for aiding and abetting tortious
conduct, Counts V and VI of the Complaint are properly dismissed.
Defendants also move to dismiss Count VII of the Complaint, which asserts a cause of
action for estoppel under the doctrines of both equitable estoppel and promissory estoppel.
Defendants argue that under well-established Ohio law, equitable estoppel is a defense to a legal
or equitable claim, not a cause of action. Ohio State Bd. of Pharm. v. Franz, 51 Ohio St. 3d 143,
145, 555 N.E.2d 630, 633 (1990). Plaintiff does not offer any legal argument to the contrary.
Rather, it focuses argument on the viability of a promissory estoppel claim and suggests that the
Court could strike references to equitable estoppel from the Complaint. The Court therefore
finds that there is no dispute that a claim for equitable estoppel cannot stand. Accordingly, the
equitable estoppel claim is dismissed.3
The Court finds Defendants’ Motion for Partial Dismissal (Doc. 21) to be well-taken.
Counts V and VI are dismissed. Count VII’s equitable estoppel claim is dismissed, but the
promissory estoppel claim survives.
IT IS SO ORDERED.
S/Susan J. Dlott___________
Judge Susan J. Dlott
United States District Court
The promissory estoppel claim shall remain pending.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?