Lesniak v. Mission Essential Personnel, LLC

Filing 28

ORDER granting 23 Motion to Dismiss for Failure to State a Claim. Signed by Judge George C Smith on 11-13-13. (ga)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Earl K. Lesniak,
Plaintiff,
-v-

Case No.: 2:12-cv-1041
JUDGE SMITH
Magistrate Judge Kemp

Mission Essential Personnel, LLC,
Defendant.

OPINION AND ORDER
Plaintiff Earl K. Lesniak initiated this action alleging that Defendant Mission Essential
Personnel LLC (“MEP”) breached its obligation to renew his Top Security Clearance Status
while he was employed by MEP. This matter is before the Court on Defendant MEP’s Motion
for Partial Dismissal of Second Amended Complaint (Doc. 23). The Motion is fully briefed and
ripe for review. For the reasons that follow, Defendant MEP’s Motion for Partial Dismissal is
GRANTED.
I.

BACKGROUND

This matter arises from an employment relationship between Plaintiff Earl K. Lesniak
and Defendant MEP. Plaintiff Lesniak is a resident of Fernandina Beach, Florida. Defendant
MEP is an Ohio limited liability company with its primary place of business in Franklin County,
Ohio.
Lesniak is a former Counterintelligence Special Agent with the United States Air Force
Office of Special Investigations, where he carried the rank of Master Sergeant and held a Top

Secret Security Clearance (“TSC”). He served twenty-two years in the United States Air Force.
He retired from the Air Force in September 2011. (Second Am. Compl. ¶¶ 6-9).
Lesniak was contacted by an MEP recruiter, Carrie Collins, in April 2011 about a Senior
Counter Intelligence Support Specialist (“Senior CI Support Specialist”) position with MEP in
Afghanistan. The position was advertised as requiring a Secret security clearance, but a TSC
was preferred. (Id. ¶¶ 10-11).
While considering the position, Lesniak “made it clear” to the MEP Recruiter, Ms.
Collins, that he required his TSC to be maintained, and was told that if he accepted the position
that MEP would maintain his TSC. From April 2011 to September 2011, Lesniak was also
considering job offers from other security contractors, and allegedly forewent these offers in
reliance upon MEP’s representation that it would apply for, process, and maintain his TSC.
(Second Am. Compl. ¶¶ 11-20). On August 23, 2011, MEP offered Lesniak a position as a
Senior CI Support Specialist, and he began working at MEP on September 6, 2011. (Id. ¶¶ 2125).
During his new employment orientation in September 2011, Lesniak learned that he was
not on MEP’s list to initiate a required reinvestigation of his TSC status. (Second Am. Compl. ¶
26). Lesniak asked MEP’s Facility Security Officer, Todd Jones, about this and was told that
his position only required a Secret clearance. (Id. ¶ 27). Lesniak inquired about the clearance
with another MEP employee, Brian McCall, and was ultimately referred to Rick Hoppe of MEP
who said he would speak with MEP’s security office to initiate the reinvestigation of Lesniak’s
TSC. (Id. ¶ 28-29).
Following this conversation, Jones requested additional information from Lesniak, and
allegedly represented to Lesniak that if he sent the document required to process his TSC

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renewal, MEP would process the renewal so that it would not expire. Lesniak alleges that he
provided additional information to the U.S. Office of Personnel Management, and appeared to
“sign” the document electronically. According to Lesniak, he was assured by Jones that he need
not do anything else to process his TSC renewal application. (Id. ¶ 30-34).
Lesniak completed his assignment as a Senior CI Support Specialist in Afghanistan in the
spring of 2012. Lesniak leaned upon his return that MEP had not processed his TSC renewal
application. Lesniak lost his TSC status, and alleges that he was not considered by MEP for new
positions that he was interested in because he no longer had a TSC. (Second Am. Compl. ¶ 4144). Lesniak is no longer employed by MEP. Lesniak alleges that MEP was aware that
maintaining a TSC status was valuable to security specialists like Lesniak, and that his TSC
coupled with a distinguished background in the United States Air Force made him an excellent
candidate for employment opportunities in the industry. (Id. ¶ 45-46).
Lesniak alleges that the other security positions he considered would have renewed his
TSC status, and that he is no longer eligible for positions that require a TSC. Lesniak further
alleges that he has been denied employment with several other security contractors that he would
have been offered but for the lapse in his TSC, and that he has suffered damages in excess of
$150,000 per year as a result. (Second Am. Compl. ¶¶ 42-46).
On November 11, 2012, Plaintiff initiated this action asking the Court to award a
judgment in favor of Plaintiff against Defendant for a minimum of $400,000.00, along with pre
and post judgment interest, costs, and any other equitable relief. (Doc. 1). Plaintiff subsequently
filed an Amended Complaint on December 6, 2012, (Doc. 4), and the Second Amended
Complaint on July 29, 2013 (Doc. 22). Plaintiff Lesniak asserts claims for: fraud in the
inducement, negligent misrepresentation, and promissory estoppel.

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Defendant MEP moves for partial dismissal of the Second Amended Complaint,
asserting Plaintiff has still failed to sufficiently plead claims for fraud in the inducement and
negligent misrepresentation. (Doc. 23).
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a lawsuit for “failure to
state a claim upon which relief can be granted.” A Rule 12(b)(6) motion to dismiss is directed
solely to the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp.,
705 F.2d 134, 155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at
issue on a motion to dismiss for failure to state a claim. Consequently, a complaint will be
dismissed pursuant to Rule 12(b)(6) only if there is no law to support the claims made, or if the
facts alleged are insufficient to state a claim, or if on the face of the complaint there is an
insurmountable bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.
1978). Rule 12(b)(6) must be read in conjunction with Rule 8(a) of the Federal Rules of Civil
Procedure, which requires the complaint to contain a “short and plain statement of the claim
showing that the pleader is entitled to relief[.]”
A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the
light most favorable to the plaintiff,” accepting as true all the plaintiff’s factual allegations.
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Although in this context all of the
factual allegations in the complaint are taken as true, a court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Furthermore, to survive dismissal pursuant to Rule 12(b)(6), a claim must contain
sufficient factual matter to “state a claim to relief that is plausible on its face.” Twombly, 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.” Iqbal, at
678. While a complaint need not contain “detailed factual allegations,” its “factual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true.” Twombly, at 555. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged
– but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ ” Iqbal, at 679 (quoting Fed. R.
Civ. P. 8(a)(2)). In the final analysis, the task of determining plausibility is “context-specific
[and] requires the reviewing court to draw on its judicial experience and common sense.” Id.
III.

DISCUSSION

Defendant MEP moves for partial dismissal of Plaintiff Lesniak’s Second Amended
Complaint, arguing that Plaintiff has failed to sufficiently plead claims for fraud in the
inducement and negligent misrepresentation. MEP does not seek to dismiss the promissory
estoppel claim; therefore it will remain pending.
A.

Fraud in the Inducement Claim
Plaintiff alleges that Defendant MEP fraudulently induced him to accept their offer of

employment in exchange for the promise that it would process a renewal application for his TSC
clearance. Defendant, however, argues that Plaintiff has failed to plead fraud in the inducement
with the requisite particularity.
The Ohio Supreme Court has identified the following elements of fraud/fraudulent
inducement claims:

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(a)
(b)
(c)

(d)
(e)
and
(f)

a representation or, where there is a duty to disclose,
concealment of a fact,
which is material to the transaction at hand,
made falsely, with knowledge of its falsity, or with such
utter disregard and recklessness as to whether it is true or
false that knowledge may be inferred,
with the intent of misleading another into relying upon it,
justifiable reliance upon the representation or concealment,
a resulting injury proximately caused by the reliance.

Burr v. Board of County Comm’rs of Stark County et al., 23 Ohio St.3d 69, 73 (1986); Gaines v.
Preterm—Cleveland, Inc., 33 Ohio St.3d 54 (1987); Cohen v. Lamko, Inc., 10 Ohio St.3d 167,
169 (1984).
According to Rule 9(b) of the Federal Rules of Civil Procedure, all claims of fraud must
be stated with specificity regarding “the parties and the participants to the alleged fraud, the
representations made, the nature in which the statements are alleged to be misleading or false,
the time, place and content of the misrepresentations, the fraudulent scheme, the fraudulent intent
of the defendants, reliance on fraud, and the injury resulting from the fraud.” AAA Installers v.
Sears Holding Corp., 764 F. Supp.2d 931, 939 (S.D. Ohio 2011); see also Power & Tel. Supply
Co. v. Sun Trust Banks, Inc., 447 F.3d 923, 931 (6th Cir. 2006) (recognizing that plaintiffs
asserting a fraud claim must “allege the time, place, and content of the alleged
misrepresentations on which he or she justifiably relied, the fraudulent scheme, the fraudulent
intent of the defendants, and the injury resulting from the fraud.”). The threshold test is whether
the complaint places the defendant on “sufficient notice of the misrepresentation,” allowing the
defendant to “answer, addressing in an informed way plaintiffs [sic] claim of fraud.” Coffey v.
Foamex L.P., 2 F.3d 157, 162 (6th Cir. 1993) (citing Brewer v. Monsanto Corp., 644 F. Supp.
1267, 1273 (M.D. Tenn. 1986)).

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Lesniak alleges in his Second Amended Complaint that “MEP affirmatively represented
to Mr. Lesniak that it would process a renewal application for Mr. Lesniak’s TSC through email
correspondence with Ms. Collins on April 21, 2011 and May 17, 2011 and telephone calls with
Ms. Collins in April and May 2011; in-person conversations with Messrs. McCall and Jones, and
phone conversations with Mr. Hoppe, on September 12, 13, and 14, 2011 in Columbus, Ohio.”
(Second Am. Compl. ¶ 49). Plaintiff further alleges that “But for MEP’s promise to process Mr.
Lesniak’s TSC renewal application, Mr. Lesniak would not have entered into his employment
contract with MEP and instead accepted other employment which would have maintained his
TSC.” (Id. ¶ 51).
Plaintiff’s Second Amended Complaint attempts to cure the deficiencies noted in this
Court’s previous Opinion and Order, such as Plaintiff’s failure to state with specificity the dates
that the allegedly fraudulent statements occurred and whether the employees knew that they were
making false statements with the intent of misleading another into relying upon it.
Defendant argues that the information provided by Plaintiff is still insufficient, as the
specific emails identified by Plaintiff do not make any representations to Plaintiff about MEP
renewing his TSC on his behalf. 1 In the April 21 email to the Plaintiff, Ms. Collins writes “[i]n
terms of your TS/SCI—you actually don’t necessarily need the SCI in order to be eligible for this
position. As long as you have an active Secret [clearance] you would still qualify for the SR CI
position.” (April 21 email attached as Ex. A to Def.’s Mot.).
Similarly, in the May 17 email to Plaintiff, there is no representation by Ms. Collins that
she would renew Plaintiff’s TSC clearance. The only reference to any type of clearance was her
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Because Plaintiff referred to the emails in his Second Amended Complaint, the Court can rely on those
without converting the motion to dismiss into a summary judgment motion. Adkins v. Uranium
Dispositions Servs., 2011 U.S. Dist. LEXIS 26819 *6 (S.D. Ohio Feb. 14, 2011). Plaintiff failed to attach
copies of the emails to his Second Amended Complaint, but Defendant attached them as Exhibits A and B
to its Motion.

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statement that “I have almost everything else and I have already confirmed your clearance in
JPAS.” (May 17 email attached as Ex. B to Def.’s Mot.). Despite there being nothing in the
email about TSC, Plaintiff still maintains that the email is “direct evidence of Ms. Collins’
fraudulently inducing Mr. Lesniak to accept employment.” (Pl.’s Response at 7). Plaintiff also
asserts that “the April 21, 2011 and May 17, 2011 emails provide the context for Ms. Collins’
verbal misrepresentations to Mr. Lesniak.” (Id. at 8). However, Plaintiff is merely trying to
make connections that simply aren’t there. There is nothing in either email that even discusses
security clearance renewal, or contains any misrepresentation, fraudulent or otherwise. To assert
that the emails provide the context for Ms. Collins’ verbal misrepresentations that she later made
on the phone calls is disingenuous.
Plaintiff only generally alleges that Ms. Collins made assurances that his TSC would be
renewed during telephone conversations and that these alleged communications from Ms. Collins
fraudulently induced him to accept MEP’s employment offer. But Plaintiff fails to state with any
particularity or specificity the time, place or content of the alleged oral misrepresentations as
required under Rule 9(b). Plaintiff generally states various dates in April and May 2011, but
does not state how many telephone calls, who initiated the calls, and what the purpose of the
calls was and ultimately the general topics discussed during the calls. Plaintiff admits that he “is
not able to reiterate the exact words used by Ms. Collins, or able to pinpoint the exact time of
day on which she promised that MEP would process Mr. Lesniak’s TSC renewal.” (Pl.’s
Response at 8). Plaintiff’s assertion that any deficiency in his pleadings should be excused until
after he can conduct discovery is also disingenuous as Plaintiff should have first-hand knowledge
of what was said. Any details about these alleged communications that contained fraudulent
inducements are already within Plaintiff’s custody, control or possession, and discovery cannot

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be of any further help. See Mukamal v. BMO Harris Bank, N.A., 488 B.R. 758, 776 (Bankr. S.D.
Fla 2013) (dismissing fraudulent inducement claims when plaintiff did not suffer any reasonable
lack of knowledge sufficient to justify relaxing Rule 9(b)’s heightened pleading standard).
Plaintiff’s claim for fraudulent inducement, as set forth in his Second Amended
Complaint, fails to set forth the specific statements made to him by Ms. Collins, as well as the
specific dates and times, and therefore is dismissed.
Plaintiff also alleges that MEP employees Brian McCall, Rick Hoppe, and Todd Jones
misrepresented to Plaintiff that if he sent in the U.S. Office of Personnel Management Electronic
Questionnaire for Investigation Processing (“eQip”) fact sheet, then MEP would process that
renewal so that it would not expire. (Second Am. Compl. ¶¶ 30-31). Defendant MEP argues
that none of Plaintiff’s allegations in the Second Amended Complaint support a claim for
fraudulent inducement. Specifically, with respect to Brian McCall, Plaintiff only alleges that he
asked Mr. McCall about his security clearance while they drove together. Mr. McCall responded
by calling Mr. Hoppe and giving the phone to Plaintiff. Plaintiff does not make any allegations
that Mr. McCall made any statements, let alone any fraudulent statement, regarding renewing his
TSC.
Additionally, with respect to Messrs. Hoppe and Jones, Defendant argues, and the Court
agrees, that they could not have fraudulently induced Plaintiff into working at MEP because he
already worked there by the time he had the conversations with them about his TSC. Plaintiff
counters that he was an at-will employee and he was free to terminate his employment with MEP
at any time, with or without cause. There is no dispute that Plaintiff was an at-will employee,
but that does not negate Defendant’s argument that MEP employees needed to offer him
incentives to do his job. Plaintiff asserts for the first time in his response that Messrs. McCall,

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Hoppe, and Jones were human resources/recruiting personnel. He further states that they were
“financially and professionally rewarded for getting overqualified candidates to fill positions in
the field for MEP.” (Second Am. Compl. ¶ 36). However, there is no reasonable explanation
provided by Plaintiff for why MEP would hire overqualified employees only to have them
disqualified while still working for them. Therefore, not only is there is no specific allegations to
support a fraudulent inducement claim, but there is no reasonable explanation as to MEP’s
fraudulent intent to dupe Plaintiff into losing his TSC. Accordingly, Plaintiff’s claims for fraud
in the inducement is hereby dismissed. Having previously dismissed this claim without
prejudice to allow Plaintiff to cure the pleading deficiencies, at this time, Plaintiff’s claim is
dismissed with prejudice. See EEOC v. Ohio Edison Co., 7 F.3d 541, 546 (6th Cir. 1993) (“a
plaintiff must be given at least one chance to amend the complaint before the district court
dismisses the action with prejudice”). Where previous amendments were allowed, a court need
not sua sponte allow further opportunities to amend where no further attempt to amend the
complaint is sought. Simon v. Belwith Int’l Inc., 3 Fed.Appx. 363, 365 (6th Cir. 2001).
B.

Negligent Misrepresentation Claim
In Plaintiff’s previous two Complaints, he alleged a claim for negligence. However, in

the briefing on the last Motion to Dismiss, Plaintiff’s claim became one for negligent
misrepresentation. The Court noted that raising a new claim for the first time in response to a
motion to dismiss was improper and instructed Plaintiff to include a new claim in an amended
complaint. Plaintiff has now pled a claim for negligent misrepresentation and Defendant argues
that it must be dismissed because Plaintiff has not alleged any duty owed to him by MEP.
Under Ohio law, negligent misrepresentation occurs when:
One who, in the course of his business, profession or employment, or in any other
transaction in which he has a pecuniary interest, supplies false information for the
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guidance of others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon the information, if
he fails to exercise reasonable care or competence in obtaining or communicating
the information.
Delman v. Cleveland Hts., 41 Ohio St.3d 1, 4 (Ohio 1989).
Defendant argues that Plaintiff’s claim for negligent misrepresentation must be dismissed
because he has not alleged any duty owed to him by MEP, specifically that Messrs. McCall,
Hoppe, Jones and Collins owed any fiduciary duty to him or had any pecuniary interest in his
employment. Plaintiff, however, argues that any person who makes an incorrect statement in the
scope of his or her employment is liable for negligent misrepresentation regardless of their
financial interest in making the misstatement. Plaintiff is incorrect. The law is clear that the
misrepresenting party must have a financial interest in making the false statement—whether it be
in his business, profession, employment or other transaction that is not connected to his business
or employment. See Restatement (2d) of Torts, § 552 at cmt. c (“The rule stated in Subsection
(1) applies only when the defendant has a pecuniary interest in the transaction in which the
information is given. If he has no pecuniary interest and the information is given purely
gratuitously, he is under no duty to exercise reasonable care and competence in giving it.”).
Negligent misrepresentation claims are generally brought against professionals who are
in the business of rendering opinions to others. Picker Int’l v. Mayo Found., 6 F. Supp.2d 685,
689 (N.D. Ohio 1998). Lawyers, surveyors, inspectors of goods and abstractors of title are other
professions that fit the Picker definition. Premier Bus. Group, LLC v. Red Bull of N. Am., Inc.,
2009 U.S. Dist. LEXIS 91647, at *31 (N.D. Ohio Sept. 30, 2009). The aforementioned
occupations have a pecuniary interest in giving advice. The individual employees of MEP that
allegedly made the misrepresentations to Plaintiff were not MEP’s accountants, lawyers or
consultants. Plaintiff does not allege that they were in the business of advising or rendering
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opinions to MEP employees, nor that they had any special relationship with him. Without more,
there can be no negligent misrepresentation. See Premier, 2009 U.S. Dist. LEXIS 91647 at *32
(Plaintiff “has alleged an ordinary business transaction, and nothing more. No special
relationship was ever formed between the parties based on the conversation [the plaintiff] had
with [defendant’s] representative.”). Further, “[n]o court in Ohio. . . has held the tort of
negligent misrepresentation applicable to the employer-employee relationship.” Nichols v. Ryder
Truck Rentals, Inc., 1994 Ohio App. LEXIS 2697 *11-12 (Ohio Ct. App. June 23, 1994).
There is no dispute that Plaintiff was not a client of the individual employees of MEP,
nor did he pay them for their advice. The individual employees were just regular employees of
MEP. While Plaintiff’s situation is unfortunate, it appears that it was ultimately his
responsibility to see that his TSC was renewed. Accordingly, Plaintiff’s claim for negligent
misrepresentation is hereby dismissed with prejudice.

IV.

DISPOSITION

Based on the aforementioned discussion, the Court GRANTS Defendant’s Motion for
Partial Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff’s claims for
fraud in the inducement and negligent misrepresentation are dismissed with prejudice.
The Clerk shall remove Document 23 from the Court’s pending motions list.

IT IS SO ORDERED.
/s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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