Smart v. Pohl et al

Filing 10

ORDER granting 4 Motion to Dismiss; granting 5 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 9/24/2014. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RAY SMITH,
Plaintiff,
vs.
MICHAEL POHL, et al.,
Defendants.

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Case No. CIV-14-813-D

ORDER
Before the Court are motions to dismiss [Doc. Nos. 4 and 5] filed pursuant to Fed. R.
Civ. P. 12(b)(6). Defendant Michael Pohl (“Pohl”) seeks a partial dismissal of the action
against him, while Defendant Randy Hill (“Hill”) seeks the dismissal of all claims. Although
Plaintiff requested an extension of time to respond to the motions, no response has been filed
within the deadline set by the Court. Pursuant to LCvR7.1(g), the Court may deem the
motions confessed. For reasons discussed below, however, the Court elects to address the
merits of the motions.
Plaintiff Ray Smart filed suit in state court to recover damages for breach of an oral
agreement regarding the purchase of a horse. Hill allegedly made the agreement while acting
as Pohl’s agent. Plaintiff also asserted a conversion claim based on Defendants’ alleged sale
of the horse before Plaintiff had received all the promised consideration. Plaintiff’s original
pleading did not specify an amount of damages. Following the filing of an amended petition
praying for damages in excess of $75,000.00, Pohl timely removed the case to federal court
based on diversity jurisdiction under 28 U.S.C. § 1332.

The citizenship of Plaintiff and Hill are not diverse. Pohl alleged in the Notice of
Removal that Plaintiff had fraudulently joined Hill in an effort to defeat removal and, thus,
Hill’s citizenship should be disregarded. Plaintiff has not challenged this allegation or sought
remand of the case. Therefore, the case is properly before this Court only if it is an action
solely between Plaintiff and Pohl.
By Plaintiff’s failure to respond to Hill’s motion, Plaintiff appears to concede that the
claims asserted against Hill lack any merit. If Hill was fraudulently joined, however, and is
disregarded as a party, then the Court has no jurisdiction to resolve the merits of Plaintiff’s
claims against him, and he must be dismissed without prejudice. See Albert v. Smith’s Food
& Drug Centers, Inc., 356 F.3d 1242, 1249 (10th Cir. 2004); see also Brereton v. Bountiful
City Corp., 434 F.3d 1213, 1217-18 (10th Cir. 2006) (if district court lacks jurisdiction, it is
incapable of reaching a disposition on the merits, and dismissal must be without prejudice).
Accordingly, the Court will grant Hill’s request for dismissal, but the action against him will
be dismissed without prejudice.
Pohl seeks dismissal of the conversion claim for the reason that the factual allegations
of Plaintiff’s pleading fail to support this theory of recovery. Because the amended petition
states that possession and title to the horse were transferred to Pohl in accordance with the
oral agreement, and does not allege that Plaintiff had any right to possess the horse, Plaintiff
cannot establish an essential element of conversion. See, e.g., Aylesbury Mercantile Co. v.
Fitch, 99 P. 1089, 1095 (Okla. 1908) (“it is essential to the right of recovery that plaintiff
have a right to immediate possession of the goods at the time of the alleged conversion”).

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Instead, the amended petition alleges merely that Plaintiff did not receive all the promised
consideration, namely, two breedings and the first two embryos from the horse after its
racing career ended. Pohl relies on the principles that a tort action for conversion cannot be
brought to satisfy a debt and that there is no “cause of action for conversion of a contractual
right.” See Def. Pohl’s Motion [Doc. No. 5] at 4-5.
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Here, accepting Plaintiff’s factual allegations as true, he cannot
prevail on a conversion claim. “Conversion is the unlawful and wrongful exercise of
dominion, ownership, or control by one person over the property of another, to the exclusion
of the exercise of the same rights by the owner, either permanently or for an indefinite time.”
Griffith v. McBride, 108 P.2d 109 (Okla. 1940) (syllabus). The allegations of Plaintiff’s
pleading do not fit this legal theory, and no conversion claim is stated by the alleged facts.
Further, because Plaintiff has not requested leave to amend his pleading, the Court finds that
Plaintiff’s conversion claim against Pohl should be dismissed with prejudice.1
IT IS THEREFORE ORDERED that Defendant Randy Hill’s Motion to Dismiss
[Doc. No. 4] and Defendant Michael Pohl’s Motion to Dismiss [Doc. No. 5] are GRANTED,
as set forth herein. The claims against Defendant Randy Hill are DISMISSED without

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No opportunity to amend is needed when amendment would be futile. See Brereton v. Bountiful City Corp.
434 F.3d 1213, 1219 (10th Cir. 2006).

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prejudice. Plaintiff’s conversion claim against Defendant Michael Pohl is DISMISSED with
prejudice. The case shall proceed as a breach of contract action against Defendant Pohl only.
IT SO ORDERED this 24th day of September, 2014.

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