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Mlungwana v. Covenant Care Marion LLC

United States District Court, N.D. Indiana, Fort Wayne Division

April 13, 2015



WILLIAM C. LEE, District Judge.

This matter is before the court on the motion to dismiss filed by Defendant Covenant Care Marion LLC ("Affirma").[1] [DE 12.] Affirma filed a brief in support of its motion on that same date. [DE 13.] Defendant seeks dismissal of Count II of Plaintiff's complaint. Plaintiff Dumisani Mlungwana filed a response in opposition to the motion [DE 17] and Affirma filed a reply brief. [DE 18.] For the reasons discussed below, Defendant's motion to dismiss Count II of Plaintiff's complaint is GRANTED. Counts I, III, IV, and V of the complaint are not affected by this Order and remain pending.


Mlungwana was employed by Affirma "as a PRN (as needed) registered occupational therapist (OTR) from July 2011 until March 11, 2012." (Complaint, p. 2, ¶ 6.). "Thereafter, he was employed by [Affirma] as a regular full time registered occupational therapist (OTR) until March 12, 2014, when his employment was terminated." (Complaint, p. 2, ¶ 7.). Mlungwana states that "[t]hroughout the last year of his employment, from March 2013, [Affirma] paid [him] at the rate of $40.00 per hour for each hour he worked, up to 40 hours per week." (Complaint, p. 2, ¶ 8.). Mlungwana contends, however, that he worked an average of 55 hours per week during that last year. (Complaint, p. 2, ¶ 9.). He claims that he was paid $40.00 per hour for the first 40 hours that he worked each week, but received nothing for the hours that he worked in excess of 40 per week. (Complaint, p. 2, ¶ 10.). Mlungwana asserts that [Affirma] failed to pay him for the overtime that he worked. (Complaint, p. 2, ¶ 11.). Based on those allegations, Mlungwana filed this lawsuit and asserts claims against Affirma "for unpaid overtime pursuant to the Fair Labor Standards Act ("FLSA), 29 U.S.C. 207 and 213, unpaid wages pursuant to Indiana Code 22-2-5-2, 34-24-3, 22-2-9-2, and conversion, breach of implied contract, and unjust enrichment under Indiana common law." (Complaint, p. 1, ¶ 1). Count II of the complaint, the state law claim for conversion, is the only count at issue in Affirma's motion to dismiss.


When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court presumes all well-pleaded allegations to be true, views them in the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995). The Supreme Court has articulated the following standard regarding factual allegations that are required to survive dismissal:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... 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 (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). A complaint must contain sufficient factual matter to "state a claim that is plausible on its face." Id. at 547. "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

Although the court must accept as true all well-pleaded facts and draw all permissible inferences in the Plaintiff's favor, it need not accept as true "threadbare recitals of a cause of action's elements, supported by mere conclusory statements..." Id. Legal conclusions can provide a complaint's framework, but unless well-pleaded factual allegations move the claims "from conceivable to plausible, " they are insufficient to state a claim. Id. at 683 (quoting Twombly, 550 U.S. at 570).


The parties do not dispute the applicable Indiana law regarding conversion (although they certainly debate its application to the facts of this case). Affirma summarized that law in its memorandum as follows:

Conversion requires the knowing or intentional exertion of unauthorized control over the personal property of another. Ind. Code § 35-43-4-3(a) (emphasis added); see also Huff v. Biomet, Inc., 654 N.E.2d 830, 835 (Ind.Ct.App. 1995) overruled on other grounds; Stevens v. Butler, 639 N.E.2d 662, 666 (Ind.Ct.App. 1994), trans. denied. Money is subject to conversion only if it is a "special chattel." A "special chattel" is "a determinative sum with which the defendant was entrusted to apply to a certain purpose." Huff, 654 N.E.2d at 835-36 (citing Stevens, 639 N.E.2d at 666). Failure to pay a debt does not constitute criminal conversion. Id. at 836 (citing National Fleet Supply, Inc. v. Fairchild, 450 N.E.2d 1015, 1019 (Ind.Ct.App. 1983)).

Def's. Mem., p. 3.

Affirma asks this court to dismiss Mlungwana's conversion claim because, it argues, it did not exercise control over property belonging to the Plaintiff, a necessary element in establishing a prima facie case of conversion under Indiana law. Affirma argues that its "alleged failure to distribute the correct amount of its money to Mlungwana for services he performed does not constitute conversion." Id., p. 1 (italics in original). According to Affirma, "Mlungwana's conversion claim is about Affirma's money, not Mlungwana's.... Mlungwana ...

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