Burrows v. Fuyao Glass Am. Inc.
| Decision Date | 08 December 2017 |
| Docket Number | CASE NO. 3:17-cv-00186-TMR |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | DAVID P. BURROWS, Plaintiff, v. FUYAO GLASS AMERICA INC., ET. AL. Defendants. |
Pending before the Court are Motions to Dismiss from each of the two Defendants: Fuyao Glass America Inc., (Doc. #6) and Cho Tak Wong (Doc. # 18). Therein, Defendant Fuyao Glass America Inc. requests that the Court dismiss Counts 1, 2, 3, and 4 against it, and Defendant Cho Tak Wong requests that the Court dismiss Counts 1, 3, and 4 against him. These Motions are now fully briefed and ripe for decision. A factual background will be followed by the applicable legal standard and analysis of the motions to dismiss.
Plaintiff David P. Burrows ("Burrows") brings a complaint for recovery on claims of fraud in the inducement, breach of contract, promissory estoppel, defamation, and three (3) separate, but related discrimination claims. (Doc #1 PAGEID #4).
In August of 2013, then-President of Defendant Fuyao Glass America Inc. ("Fuyao") sought to hire Burrows away from his employment with the Dayton Development Coalition ("Coalition"), as well as from his position as owner and operator of a Cold Stone Creamery franchise. (Doc. #1 PAGEID #5). Fuyao is a North American subsidiary of Fuyao Group, a Chinese company. Id. According to Burrows, Co-Defendant, Cho Tak Wong ("Cho"), is the chairman of Fuyao Group and Fuyao. Id. Due to his position with the Coalition, Burrows had numerous meetings with Cho related to Fuyao's selection of the greater Dayton metropolitan area for expansion. Id.
Burrows insisted he would not leave his employment for parallel pay, but claims he was instructed by Cho to tell Fuyao "what you want and I will sign it." Id. Burrows made Fuyao aware that if he agreed to accept employment, he wanted to be sure he was compensated through 2017. Id. Following these conversations, Cho allegedly approved Burrows' proposed terms of employment which were guaranteed to continue through 2017, and included a base pay higher than the president of Fuyao. (Doc. #1 PAGEID #6). According to Burrows, the term sheet was signed by Cho, however, Burrows was not given a copy of the signed form. Id.
On July 24, 2015, the term sheet prepared by Burrows was formatted into an employment contract by Fuyao's Director of Human Resources, and signed by Fuyao President John Gauthier. (Ex. A). The terms of the employment contract read:
The following terms and conditions of employment are agreed upon between Chairman Cho and Mr. David Burrows:
Id. Fuyao's Human Resources Department extended an express offer of employment to Burrows which included the previously mentioned employment contract, outlining the compensation package, as well as information regarding a tentative mid-August 2015 start date, which was presumably accepted by Burrows. (Ex. B).
On November 14, 2016, during a company meeting, Cho falsely announced Burrows' resignation from Fuyao. (Doc. #1 PAGEID #7). Two days later, an online news article published on the Dayton Business Journal's website stated that Burrows had stepped down from his position. Id. The author of the article, Tristan Navera, confirmed that the article was written based upon information received from Fuyao representatives. Id. Cho was quoted directly in the article stating, "These changes to our senior management team are an important step forward as we transition from a construction phase into a mass production phase." (Ex. D).
Burrows claims Cho had no intention of continuing Burrows' employment past Fuyao's construction phase and into its mass-production phase. (Doc#1 PAGEID #8). According to Burrows, he was replaced by Sunny Yiqun Sun ("Sun"), a Fuyao worker from China. Id. Allegedly, Sun was unable to continue employment with Fuyao until she worked with Fuyao in China for a year, which would enable Sun to procure her L-1 visa. Id. at #8, #9. Burrows claims Cho, while in negotiations with Sun, made reference that her working at Fuyao "would be good to help her Chinese heritage," and how "Americans need to listen to Chinese." (Doc. #1PAGEID #7). Burrows claims he was terminated by Fuyao without cause and without written notice. Id.
On November 17, 2016, following Burrows' alleged resignation, Fuyao's Assistant General Counsel informed Burrows that he is not entitled to compensation or any remuneration for work not performed. (Doc #1 PAGEID #28). Additionally, Fuyao's Assistant General Counsel informed Burrows that the form titled "employment contract" amounted to nothing more than a compensation agreement. Id.
Burrows claims it is Fuyao's contention that Burrows was an employee at will, and could be terminated with or without cause at any time. Id. Approximately three weeks into employment, an employee handbook acknowledgement and receipt was signed by Burrows, stating:
I have entered into my employment relationship with Fuyao voluntarily and acknowledge that there is no specific length of employment. Accordingly, either I or Fuyao can terminate the relationship at will, with or without cause at any time, so long as there is not a violation of applicable state or federal laws.
Subsequently, Burrows sued Fuyao and Cho. Burrows' complaint was originally filed in the Common Pleas Court of Montgomery County, Ohio claiming:
1. Fraud in the inducement;
2. Breach of contract;
3. Promissory estoppel;
4. Defamation; and
5. Three (3) counts of Discrimination (Doc. #1 PAGEID #4). On May 25, 2017, the case was removed to the U.S District Court, Southern District of Ohio (Dayton), by Defendants.
On June 14, 2017, Cho filed a motion to quash and to dismiss, arguing that Burrows failed to effectuate service in accordance with the mandates of the Convention of Services Abroad of Judicial and Extrajudicial Documents, as Cho is a resident of the People's Republic of China. (Doc. #5 PAGEID # 85). In addition, Cho alleged a violation of insufficient process under Rule 12(b) (4), on the grounds the summons and complaint were not translated into Chinese, as required by the Hague Convention. Id. Burrows filed a memorandum in opposition to Cho's motion to quash and dismiss, arguing Cho was properly served at his place of business pursuant to Civ. R. 4.1(1) (Doc. #9 PAGEID #110).
In his reply memorandum, Cho again argues that service was not valid due to Hague Convention Specifications. However, a proof of service entry dated September 18, 2017, asserting that Cho was served at the Marriott Hotel in Dayton Ohio was entered on the docket. (Doc. #14 PAGEID # 161). On June 14, 2017, Fuyao filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6), alleging that Burrows failed to state a claim for which relief may be granted. (Doc. #6 PAGEID #90, 96). Burrows filed a memorandum in opposition to Fuyao's motion to dismiss, arguing that relief can be granted for all claims stated. (Doc. #10 PAGEID #114). Fuyao's reply memorandum in support of motion to dismiss, argues Burrows' simultaneous pursuit of fraud-in-the- inducement tort and his breach of contract claim cannot be based on the same obligations. (Doc. # 11 PAGEID #135, 136). In addition, Fuyao argues that a promissory estoppel claim and a breach of contract claim cannot be simultaneously maintained. (Doc. #11 PAGEID # 139).
According to Fuyao, Burrows' defamation claim fails due to intra-corporate immunity privilege, and his discrimination claims should not be held to the higher standard for reverse discrimination claims. (Doc. #11 PAGEID # 143). On October 6, 2017, Cho adopts and incorporates by reference the motion to dismiss filed by Defendant Fuyao, and all arguments regarding Counts 1, 3, 4, 5, 6, and 7 of the complaint. (Doc. #18 PAGEID #168).
The purpose of a Rule 12(b)(6) motion to dismiss is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F. 2d 635, 638 (6th Cir. 1993) (citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987)). Put another way, "the purpose of a motion under Federal Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; the motion is not a procedure for resolving a contest between the parties about the facts or the substantive merits of the plaintiff's case." 5B Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed. 2004). Further, for purposes of the motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).
To survive a 12(b) (6) motion to dismiss, a plaintiff must provide more than labels and conclusions, and a formulaic recitation of the elements of a cause of action is not enough. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistentwith the allegations in the complaint." Id. at 1969. However, the factual allegations must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp., 127 S.Ct. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, p. 235-236 (3d ed. 2004)). The...
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