United States District Court, S.D. Indiana, Indianapolis Division
JANE MAGNUS-STINSON, UNITED STATES DISTRICT JUDGE
pending before the Court in this breach of contract case is
Defendant Bradley Consulting & Management, Inc.'s
(“Bradley”) Motion to Dismiss Second
Amended Complaint. [Filing No. 26.]
Standard of Review
Rule of Civil Procedure 8(a)(2) “requires only ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief.'” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Fed.R.Civ.P.
8(a)(2)). “Specific facts are not necessary, the
statement need only ‘give the defendant fair notice of
what the…claim is and the grounds upon which it
rests.'” Erickson, 551 U.S. at 93 (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
12(b)(6) motion to dismiss asks whether the complaint
“contain[s] 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 Twombly, 550 U.S. at 570).
In reviewing the sufficiency of the complaint, the Court must
accept all well-pled facts as true and draw all permissible
inferences in favor of the plaintiff. See Active
Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th
Cir. 2011). The Court will not accept legal conclusions or
conclusory allegations as sufficient to state a claim for
relief. See McCauley v. City of Chicago,
671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must
plausibly state an entitlement to relief “to a degree
that rises above the speculative level.” Munson v.
Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This
plausibility determination is “a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
factual allegations in the Second Amended Complaint filed by
Plaintiff John Hurlburt, which the Court must accept as true
for purposes of ruling on the pending motion, are as follows:
Hurlburt began working for Bradley as a Sales Consultant in
August 2014, earning an annual salary of $43, 000.
[Filing No. 21 at 2.] Mr. Hurlburt met and exceeded
Bradley's legitimate work expectations as a Sales
Consultant. [Filing No. 21 at 2.] In May 2015, Mr.
Hurlburt received an offer of employment from Alpha Review
Corporation (“Alpha”) for a permanent
position as Sales Representative at a base salary of $73, 000
plus commission (for an estimated annual total of $100, 000
to $110, 000). [Filing No. 21 at 2.] On or about
June 1, 2015, Mr. Hurlburt notified Bradley president Eric
Bradley that he was going to accept the position with Alpha
and that he would be resigning from Bradley effective June 9,
2015. [Filing No. 21 at 2.] Mr. Hurlburt also told
Mr. Bradley what his compensation would be in the new
position at Alpha. [Filing No. 21 at 2.]
about June 5, 2015, Mr. Bradley emphasized to Mr. Hurlburt in
a telephone conversation the importance of Mr. Hurlburt's
service at Bradley and convinced Mr. Hurlburt to stay on at
Bradley. [Filing No. 21 at 3.] To entice and induce
Mr. Hurlburt to stay on at Bradley, Mr. Bradley offered to
promote Mr. Hurlburt to Director of Sales and to
substantially increase his salary. [Filing No. 21 at
3.] Mr. Hurlburt accepted Mr. Bradley's offer to
stay during that telephone conversation. [Filing No. 21
series of email messages that followed the June 5, 2015
telephone conversation, Mr. Bradley offered to beat
Alpha's base salary offer by $20, 000. [Filing No.
21 at 3.] Specifically, Mr. Hurlburt's base salary
increased by 216.28% from $43, 000 to $93, 000. [Filing
No. 21 at 3.] Additionally, the Director of Sales
position included a five percent commission based on growth
from the previous year. [Filing No. 21 at 3.] During
the email message exchange, Mr. Hurlburt was told that his
position as Director of Sales would be a permanent position.
[Filing No. 21 at 3.]
Director of Sales oversaw the individual sales
representatives, attended conferences and association
meetings, interfaced with prospective and existing clients,
and was the “face of the company.” [Filing
No. 21 at 3.] Between June 2015 and February 2016, Mr.
Hurlburt pursued new clients, maintained existing client
accounts, attended conferences and association meetings
throughout the country, and was recognized by Bradley clients
as the “face” of Bradley. [Filing No. 21 at
February 3, 2016, Bradley terminated Mr. Hurlburt's
employment. [Filing No. 21 at 3.] In the meantime,
Alpha had hired someone else to fill the position it had
offered to Mr. Hurl-burt. [Filing No. 21 at 4.] Mr.
Hurlburt has been unemployed since February 3, 2016.
[Filing No. 21 at 4.]
Hurlburt initiated this litigation on March 13, 2016, and
filed the operative Second Amended Complaint (the
“Complaint”) on June 9, 2016.
[Filing No. 21.] He asserts claims for: (1) breach
of contract; (2) promissory estoppel; and (3) negligent
misrepresentation. [Filing No. 21 at 4-5.] Bradley
has moved to dismiss the Complaint in its entirety,
[Filing No. 26], Mr. Hurl-burt opposes the motion,
[Filing No. 30], and the motion is now ripe for the
argues that Mr. Hurlburt has failed to allege that he was not
an at-will employee and that, in any event, he has failed to
adequately allege claims for breach of contract, promissory
estoppel, or negligent misrepresentation. [Filing No. 27
at 4-17.] The Court will consider Brad-ley's
arguments in turn.
outset, the Court notes that it is exercising diversity
jurisdiction over this matter. [See Filing No.
21 at 1-2 (alleging that Mr. Hurlburt is a citizen of
Ohio, Bradley is an Indiana corporation with its principal
place of business in Indiana and therefore an Indiana
citizen, and the amount in controversy exceeds $75, 000,
exclusive of interest and costs).] A federal court sitting in
diversity must apply the choice-of-law provisions of the
forum state. Storie v. Randy's Auto Sales, LLC,
589 F.3d 873, 879 (7th Cir. 2009) (“Because the
district court's subject matter jurisdiction was based on
diversity, the forum state's choice-of-law rules
determine the applicable substantive law”). The parties
rely upon Indiana law in analyzing Mr. Hurlburt's claims.
[See, e.g., Filing No. 27 at 10-11 (Bradley citing
Indiana law); Filing No. 30 at 5 (Mr. Hurlburt
citing Indiana law).] Absent a disagreement, the Court will
apply Indiana law. Mass. Bay Ins. Co. v. Vic Koenig
Leasing, 136 F.3d 1116, 1120 (7th Cir. 1998); Wood
v. Mid-Valley Inc., 942 F.2d 425, 426-27 (7th Cir. 1991)
(“The operative rule is that when neither party raises
a conflict of law issue in a diversity case, the federal
court simply applies the law of the state in which the
federal court sits…. Courts do not worry about
conflict of laws unless the parties disagree on which
state's law applies. We are busy enough without
creating issues that are unlikely to affect the outcome of
the case (if they were likely to affect the outcome the
parties would be likely to contest them)”) (emphasis
added). The Court will apply Indiana law in analyzing the
argues that Mr. Hurlburt does not allege that he had anything
other than an employment at-will relationship with Bradley,
so Bradley could terminate his employment without incurring
any liability. [Filing No. 27 at 4.] It contends
that Mr. Hurlburt has not alleged that he fell within any of
the exceptions to Indiana's employment-at-will doctrine.
[Filing No. 27 at 4-5.] Bradley argues further that
even if there was an oral employment contract, it was not
enforceable because it was not for a definite period of time.
[Filing No. 27 at 5.] Bradley asserts that Mr.
Hurlburt has not alleged any facts that would convert his
at-will employment relationship to a contractual
relationship. [Filing No. 27 at 6-7.] It argues that
the fact that Mr. Hurlburt turned down an offer of employment
to stay on at Bradley is not adequate, independent
consideration to create a contract. [Filing No. 27 at
7-8.] Bradley contends that Mr. Hurlburt's attempt
to assert a claim for promissory estoppel does not rebut the
presumption that his employment with Bradley was at-will, and
that he does not assert his promissory estoppel claim with
any degree of particularity so he does not fall within the
promissory estoppel exception to the employment-at-will
doctrine. [Filing No. 27 at 8-10.]
Hurlburt responds that he falls within two of the three
exceptions to Indiana's employ-ment-at-will doctrine -
that there was adequate independent consideration to support
an employment contract (here, the fact that he gave up the
job at Alpha), and that promissory estoppel applies because
Mr. Hurlburt accepted the new position at Bradley with the
understanding that it would be permanent. [Filing No. 30
at 3-4.] Accordingly, Mr. ...