Boyle v. FedEx Corp

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

CHRISTIAN MARTIN BOYLE, )

)

Plaintiff, )

)

v. ) Case No. CIV-21-117-G

)

FEDERAL EXPRESS )

CORPORATION, )

)

Defendant. )

ORDER

Plaintiff Christian Martin Boyle initially filed this action in state court, raising

various claims arising from his employment with Defendant Federal Express Corporation.

Defendant removed the action to this Court on February 17, 2021, and Plaintiff has twice

since amended his pleading. Now before the Court is Defendant’s Motion to Dismiss (Doc.

No. 24) the Second Amended Complaint (“Complaint,” Doc. No. 17), to which Plaintiff

has responded (Doc. No. 25).

I. Summary of the Pleadings

Citing federal and Oklahoma law, Plaintiff’s Complaint raises an assortment of

claims against Defendant: (1) gender discrimination under Title VII of the 1964 Civil

Rights Act (“Title VII”), 42 U.S.C. §§ 2000e et seq.; (2) age discrimination under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.; (3) disability

discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 et

seq.; (4) religious discrimination under Title VII; (5) national origin discrimination under

Title VII; (6) state-law fraud; (7) state-law interference with a protected property interest;

(8) state-law breach of fiduciary duty; (9) state-law intentional interference with emotional

distress; (10) violation of the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. §§ 1961-1968; (11) violation of the Robinson-Patman Act (“RPA”),

15 U.S.C. § 13; (12) state-law breach of contract; and (13) state-law conversion. See

Compl. ¶¶ 12-57.

II. Defendant’s Motion to Dismiss

Citing Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant seeks

dismissal of Plaintiff’s claims in their entirety for “failure to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). In analyzing a motion to dismiss under Rule

12(b)(6), the court “accept[s] as true all well-pleaded factual allegations in the complaint

and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec.

Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013).

“[T]o withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain

enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its

face.’” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Rule 12(b)(6) standard does not

require that a plaintiff establish a prima facie case in the pleading, the court discusses the

essential elements of each alleged cause of action to better “determine whether [the

plaintiff] has set forth a plausible claim.” Id. at 1192. A complaint fails to state a claim

on which relief may be granted when it lacks factual allegations sufficient “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).” Twombly, 550 U.S. at 555 (footnote and

citation omitted). Bare legal conclusions in a complaint are not entitled to the assumption

of truth; “they must be supported by factual allegations” to state a claim for relief. Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009).

A. Plaintiff’s Title VII Claims

Defendant first argues that Plaintiff’s Title VII claims of discrimination based upon

gender, religion, and national origin—Claims One, Four, and Five—should be dismissed

due to Plaintiff’s failure to exhaust his administrative remedies prior to bringing suit. See

Def.’s Mot. at 10-12.

Pursuant to 42 U.S.C. § 2000e-5(e)(1), a plaintiff must exhaust administrative

remedies prior to filing a Title VII claim challenging an unlawful employment practice.

See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1181 (10th Cir. 2018); see also Douglas v.

Norton, 167 F. App’x 698, 704-05 (10th Cir. 2006).

A plaintiff normally may not bring a Title VII action based upon claims that

were not part of a timely-filed EEOC charge for which the plaintiff has

received a right-to-sue-letter. That requirement, known as the exhaustion

rule, derives from two principal purposes: 1) to give notice of the alleged

violation to the charged party; and 2) to give the EEOC an opportunity to

conciliate the claim, which effectuates Title VII’s goal of securing voluntary

compliance.

To advance these purposes . . . [a] plaintiff’s claim in court is generally

limited by the scope of the administrative investigation that can reasonably

be expected to follow the charge of discrimination submitted to the EEOC.

The EEOC charge must contain facts concerning the discriminatory and

retaliatory actions underlying each claim. This court has held, time and

again, that the reasonable and likely scope of the investigation is determined

by the allegations contained in the Charge itself, rather than in the Charge

and any responsive documents.

Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1170 (10th Cir. 2020) (omission and

alteration in original) (emphasis, citations, and internal quotation marks omitted).

Plaintiff filed a charge of discrimination with the U.S. Equal Employment

Opportunity Commission (or “EEOC”). See EEOC Charge, Def.’s Mot. Ex. 1 (Doc. No.

24-1).1 On the form, however, he checked the boxes alleging “retaliation,” “age,” and

“disability” discrimination, leaving blank any boxes that would reasonably reference

discrimination on the basis of gender, religion, or national origin. See id. at 1. Further,

Plaintiff’s factual averments to the EEOC are devoid of any reference to discrimination on

these bases. See id. at 1-2. Accordingly, although the Court construes the EEOC Charge

“liberally,” it agrees with Defendant that the alleged conduct underlying Claims One, Four,

and Five would not “fall within the scope of an EEOC investigation [that] would

reasonably grow out of the charges actually made in the EEOC charge.” Smith v. Cheyenne

Ret. Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (alteration and internal quotation

marks omitted); see also Sanderson, 976 F.3d at 1170.

Plaintiff responds to Defendant’s Motion by supplying nearly four pages of

conclusory allegations that he states should have been included in the Complaint regarding

his exhaustion effort. See Pl.’s Resp. at 4-8. The gist of these broad allegations is that

Plaintiff should not be penalized for failing to check all of the applicable boxes on the

EEOC Charge because the facts supplied by Plaintiff provided a sufficient basis to trigger

1 Because the EEOC Charge and EEOC Notice (see infra) are referenced in the Complaint

and central to both Plaintiff’s claims and Defendant’s affirmative defenses, the Court may

consider the documents in determining whether dismissal is proper. See Compl. ¶¶ 10-11;

Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

an agency investigation as to gender, religion, and national origin discrimination. See id.

at 4-5. As stated above, however, the facts set forth by Plaintiff to the EEOC do not touch

upon these matters and would not reasonably have apprised the agency of such alleged

conduct. See EEOC Charge at 1-2. Even assuming Plaintiff’s pleading was again amended

to include this language, the EEOC Charge cannot be found to have fulfilled the notice and

conciliation purposes of the exhaustion requirement. See Sanderson, 976 F.3d at 1170.

Claims One, Four, and Five are therefore subject to dismissal on this basis.

B. Plaintiff’s ADA and ADEA Claims

In an ADEA or ADA case, the aggrieved person may bring a civil action within 90

days after notice has been given that the EEOC is not taking action and that the person has

a right to sue. See 29 U.S.C. § 626(e); 42 U.S.C. § 12117(a) (citing 42 U.S.C. § 2000e-5);

see also Panicker v. Compass Grp. U.S.A. Inc., 712 F. App’x 784, 785 (10th Cir. 2017)

(noting that the 90-day time limit is not jurisdictional but is a condition precedent to suit).

The EEOC issued its right-to-sue letter (“EEOC Notice”) on April 6, 2018. See

EEOC Notice, Def.’s Mot. Ex. 2 (Doc. No. 24-2). Although the record does not reflect

when Plaintiff received the Notice, it is undisputed that Plaintiff timely filed his first

lawsuit raising his discrimination claims (“Boyle I”) on July 3, 2018. Def.’s Mot. at 7-8

(noting that the suit was filed 88 days after the EEOC Notice was issued). That suit,

initially filed in Cleveland County District Court, was removed to this Court on July 24,

2018. See Boyle v. FedEx Corp., No. CIV-18-715-C (W.D. Okla.). On June 17, 2019,

Boyle I was dismissed without prejudice after Plaintiff failed to comply with the Court’s

order regarding discovery. See Boyle I, 2019 WL 2503967, at *1 (W.D. Okla. June 17,

2019).

On June 17, 2020, Plaintiff filed the instant lawsuit in Cleveland County District

Court. See Pet. (Doc. No. 1-1). Defendant argues that Plaintiff’s Claims Two and Three,

alleging discrimination on the basis of age and disability, are subject to dismissal due to

Plaintiff’s failure to timely bring suit after receiving his right-to-sue letter from the EEOC.

See Def.’s Mot. at 12-14. Specifically, Defendant asserts that the initiation of this lawsuit

on June 17, 2020, took place over 800 days from the issuance of the EEOC Notice and that

Plaintiff’s efforts in Boyle I and state savings provisions did not toll the 90-day limitation

period. See id. at 13-14 (citing Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959

(10th Cir. 1991), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002)).

In Brown, the Tenth Circuit explained that “as a general rule, a voluntary dismissal

without prejudice leaves the parties as though the action had never been brought.” Brown,

926 F.2d at 961. The Court went on to hold that “[i]n the absence of a statute to the

contrary, the limitation period is not tolled during the pendency of the dismissed action”

and that “the filing of a complaint that is dismissed without prejudice does not toll the

statutory filing period of Title VII.” Id.

Plaintiff responds that because Boyle I was not voluntarily dismissed as were the

prior lawsuits in Brown, the rule pronounced in that decision is inapplicable. See Pl.’s

Resp. at 8. Contrary to Plaintiff’s assertion, the Tenth Circuit has applied the no-tolling

rule even when, as here, dismissal of the previous lawsuit was not voluntarily sought by

the plaintiff. See Scott v. Boeing Co., 48 F. App’x 730, 731-32 (10th Cir. 2002) (finding

no tolling of the 90-day statutory period when the plaintiff’s previous lawsuits were both

dismissed for failure to effect service). District courts in this circuit have held likewise.

See, e.g., Collins v. McHugh, No. 14-CV-526, 2015 WL 4111324, at *2 (E.D. Okla. July

7, 2015); Smith v. Brownlee, No. 03-CV-929, 2004 WL 7337683, at *6 (D.N.M. July 9,

2004).

Further, even if the Court were to toll the 90-day period during the pendency of

Boyle I, Plaintiff would still be out of time: approximately 88 days already had elapsed

prior to the filing of that lawsuit in 2018, and another 366 days elapsed between the

dismissal of Boyle I and the filing of this case. “[S]tate tolling and saving provisions are

not applicable” to the federal 90-day limitation period. Brown, 926 F.2d at 961.2

Plaintiff’s Claims Two and Three therefore shall be dismissed as untimely filed.

C. Plaintiff’s RICO Claim

Subsection 1962(c) of RICO prescribes that it is “unlawful for any person employed

by or associated with any enterprise engaged in, or the activities of which affect, interstate

or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such

enterprise’s affairs through a pattern of racketeering activity or collection of unlawful

debt.” 18 U.S.C. § 1962(c). “To successfully state a RICO claim, a plaintiff must allege

four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering

2 Plaintiff does not argue that he is entitled to equitable tolling, and no basis for such tolling

is established by the record in this matter. See Scott, 48 F. App’x at 732.

activity.” Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002) (internal quotation

marks omitted).

“RICO broadly defines ‘enterprise’ as ‘any individual, partnership,

corporation, association, or other legal entity, and any union or group of

individuals associated in fact although not a legal entity.’” George v. Urban

Settlement Servs., 833 F.3d 1242, 1248 (10th Cir. 2016) (quoting 18 U.S.C.

§ 1961(4)). . . . .

. . . .

To state a plausible RICO claim, the “person” and the “enterprise”

engaged in racketeering activities must be distinct entities. Cedric Kushner

Promotions, Ltd. v. King, 533 U.S. 158, 160, 121 S.Ct. 2087, 150 L.Ed.2d

198 (2001); George, 833 F.3d at 1249; Brannon v. Boatmen’s First Nat’l

Bank, 153 F.3d 1144, 1146 (10th Cir. 1998). Also, “it’s true that a defendant

corporation, acting through its subsidiaries, agents, or employees typically

can’t be both the RICO ‘person’ and the RICO ‘enterprise.’” George, 833

F.3d at 1249 (citing Brannon, 153 F.3d at 1149 (further citations omitted)).

Tronsgard v. FBL Fin. Grp., 312 F. Supp. 3d 982, 994-95 (D. Kan. 2018) (alteration in

original).

Defendant asserts that the Complaint fails to plausibly state a violation of RICO

because “Plaintiff does not identify the ‘person’ and merely alleges one ‘enterprise.’”

Def.’s Mot. at 17. Defendant therefore argues that Plaintiff does not allege facts to show a

RICO “enterprise” distinct from the “person” who was employed by or associated with that

enterprise. See Def.’s Mot. at 16-18; 18 U.S.C. § 1962(c); George, 833 F.3d at 1249.

Plaintiff’s RICO allegations are vague and largely conclusory, referring to

unidentified “Defendants and their agents” as both constituting and associating with an

unidentified “enterprise” and engaging in an unidentified fraudulent “scheme to defraud.”

Compl. ¶¶ 41-48; see, e.g., id. ¶¶ 43 (“Defendants devised, participated and conspired with

others in practices, schemes, artifices, devices and conduct which constitute a pattern of

racketeering activity . . . .”), 44 (Defendants and their agents, individually or in an

association . . . , constitute an enterprise . . . .”). Even considering the “General Facts”

presented at the outset of the Complaint and incorporated into these allegations (id. ¶¶ 4-

11), Plaintiff fails to sufficiently allege a RICO enterprise that is “distinct” from the

employed or associated person. The Complaint therefore fails “to raise a right to relief

above the speculative level” on this RICO claim, and Claim 10 shall be dismissed pursuant

to Federal Rule of Civil Procedure 12(b)(6). Twombly, 550 U.S. at 555.

D. Plaintiff’s Robinson-Patman Act Claim

The Robinson-Patman Act states the following:

Payment or acceptance of commission, brokerage or other compensation. It

shall be unlawful for any person engaged in commerce, in the course of such

commerce, to pay or grant, or to receive or accept, anything of value as a

commission, brokerage, or other compensation, or any allowance or discount

in lieu thereof, except for services rendered in connection with the sale or

purchase of goods, wares, or merchandise, either to the other party to such

transaction or to an agent, representative, or other intermediary therein where

such intermediary is acting in fact for or in behalf, or is subject to the direct

or indirect control, of any party to such transaction other than the person by

whom such compensation is so granted or paid.

15 U.S.C. § 13(c).

In Claim Eleven, Plaintiff alleges that Defendant violated the statute as follows:

49. Defendants engaged in interstate commerce and in the course of such

commerce paid to agents and employees of Defendant commissions or

compensation in the form of secret payments, excessive payments or bribes

to induce these agents and employees of Defendant to issue opinions and

decisions to provide fraudulent documentation to justify the decision to

terminate Plaintiff.

50. Such payments constitute commercial bribery, a per se violation of [15

U.S.C. § 13(c)].

Compl. ¶¶ 49-50.

Defendant argues that Plaintiff fails to adequately plead this claim because “the

Complaint is devoid of a transaction involving the sale of goods, wares, or merchandise”

and “commercial bribery that does not involve goods” does not establish an RPA violation.

Def.’s Mot. at 18-19; see Fiore v. Kelly Run Sanitation, Inc., 609 F. Supp. 909, 916 (W.D.

Pa. 1985) (holding that to allege an action under 15 U.S.C. § 13(c) “the complaint must

state that transactions between the parties constitute a sale of goods, wares, or merchandise

and not merely a contract for services” (internal quotation marks omitted)); accord May

Dep’t Store v. Graphic Process Co., 637 F.2d 1211, 1214 (9th Cir. 1980); see also Union

City Barge Line, Inc. v. Union Carbide Corp., 823 F.2d 129, 142 (5th Cir. 1987)

(explaining that kickbacks received in connection with an agreement for services “fall

outside the [RPA’s] commercial bribery reach”).

Plaintiff does not dispute Defendant’s point but responds, “It is anticipated

Discovery will reveal that what Defendant calls a ‘Service,’ it actually calls its ‘Product.’”

Pl.’s Resp. at 9. Plaintiff may not rely upon possible future discovery in this manner,

however; he is obligated to plead facts that “support[] all the elements necessary to

establish an entitlement to relief under the legal theory proposed.” Forest Guardians v.

Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). It is not proper for the Court to assume

that Plaintiff can prove facts he has not alleged or that Defendant has violated the law in

ways that have not been alleged. See Associated Gen. Contractors of Cal., Inc. v. Cal.

State Council of Carpenters, 459 U.S. 519, 526 (1983).

Having reviewed the pleading, the Court concurs that Plaintiff fails to state a claim

for violation of the RPA upon which relief can be granted. Claim Eleven shall be

dismissed.

E. Plaintiff’s Claim for Intentional Infliction of Emotional Distress

Plaintiff’s claim for intentional infliction of emotional distress (“IIED”) alleges that

Defendant “acted outrageously and with the intention of inflicting emotional distress on

Plaintiff in an effort to break Plaintiff’s spirit and will and force him to waive his legal

rights to compensation.” Compl. ¶ 39. Plaintiff alleges that Defendant “accused or implied

Plaintiff had been the cause of matters that were beyond Plaintiff’s control and . . .

wrongfully den[ied]” “promises, representations and policies” that had been made to

Plaintiff. Id. ¶ 38. Plaintiff also alleges Defendant engaged in excessive payments or

bribes to induce Defendant’s agents and employees to issue opinions and decisions to

provide fraudulent documentation to justify the decision to terminate Plaintiff. See id. ¶¶

49-51.

To state a claim for IIED under Oklahoma law, a plaintiff must plausibly allege:

“(1) that the tortfeasor acted intentionally or recklessly; (2) that the tortfeasor’s conduct

was extreme and outrageous; (3) that plaintiff actually experienced emotional distress; and

(4) that the emotional distress was severe.” Daemi v. Church’s Fried Chicken, Inc., 931

F.2d 1379, 1387 (10th Cir. 1991). While specific fact questions are for the jury, it is for

the trial court to determine as a matter of law whether the defendant’s conduct is

sufficiently outrageous and whether the distress allegedly suffered by the plaintiff is

sufficiently severe under this standard. See id. at 1388-89.

Defendant first argues that Plaintiff’s allegations fail to reflect conduct by

Defendant that was “outrageous” in the sense required to state an IIED claim under

Oklahoma law. A plaintiff proceeding under an IIED theory must plead, and eventually

prove, “that the defendant’s conduct was so outrageous in character and so extreme in

degree as to go beyond all possible bounds of decency, and that such conduct is regarded

as atrocious and utterly intolerable in a civilized community.” Comput. Publ’ns, Inc. v.

Welton, 49 P.3d 732, 735 (Okla. 2002).

The Court agrees that Plaintiff’s nonspecific allegations of unmerited accusations

and broken promises do not plausibly reflect sufficiently outrageous conduct to support

this IIED claim. “[C]onduct is not extreme and outrageous if it amounts to no more than

mere insults, indignities, or petty oppressions.” Daemi, 931 F.2d at 1388. “Merely

claiming outrageous conduct is insufficient.” Robbins Motorsports, L.L.C. v. Nat’l Fire &

Marine Ins. Co., No. CIV-10-245, 2011 WL 2174911, at *3 (E.D. Okla. June 3, 2011).

Relatedly, “workplace discrimination or harassment rarely rises to the level of extreme and

outrageous conduct.” Barham v. K Mart Corp., No. 14-CV-0401, 2010 WL 3650684, at

*6 (N.D. Okla. Sept. 14, 2010).

Defendant also argues that Plaintiff has failed to adequately plead that he “actually

experienced emotional distress” that was “severe.” Daemi, 931 F.2d at 1387. The distress

required to sustain an IIED claim “must be of such a character that no reasonable person

could be expected to endure it.” Id. at 1389 (internal quotation marks omitted); see also

Robbins Motorsports, 2011 WL 2174911, at *4 (“[W]hat constitutes severe emotional

distress is severely restricted.”). In this regard, Plaintiff alleges that he “fe[lt] impotent and

powerless to remedy the wrongs inflicted upon him” and that he was “vex[ed], injure[d]

and annoy[ed]” by Defendant’s actions. Compl. ¶¶ 38, 40. These allegations are

insufficient to plausibly establish the requisite severe emotional distress under the

governing pleading standards. See Robbins Motorsports, 2011 WL 2174911, at *5; see

also Rayburn v. Braum’s Inc., No. CIV-20-1160-G, 2021 WL 781368, at *3 (W.D. Okla.

Mar. 1, 2021) (citing cases).

For these reasons, Claim Nine shall be dismissed pursuant to Rule 12(b)(6).

F. Plaintiff’s Claim for Breach of Contract

Plaintiff’s allegations of breach of contract are as follows:

51. Plaintiff and Defendant entered into a contract of employment and that

contract was in force for thirty two years.

52. At all material times the contract of employment was in full force and

effect.

53. Plaintiff performed all conditions under the contract but Defendant

breached the contract by terminating Plaintiff contrary to the terms of the

contract.

54. Plaintiff is entitled to the benefits of working under the employment

contract. Although demand for employment and payment under that

employment has been made, Defendant has refused and continues to refuse

to employ Plaintiff and pay Plaintiff. There is therefore the sum due in an

amount in excess of $10,000.00, for breach of contract.

Compl. ¶¶ 51-54.

Under Oklahoma law, to recover under a breach-of-contract theory a plaintiff must

show: “1) formation of a contract; 2) breach of the contract; and 3) damages as a direct

result of the breach.” Digit. Design Grp., Inc. v. Info. Builders, Inc., 24 P.3d 834, 843

(Okla. 2001). Defendant contends that Plaintiff has failed to adequately allege the second

element, as the pleading “fails to give even a hint of factual information to support the

allegation that [Defendant] breached a contract with Plaintiff.” Def.’s Mot. at 19.

Even accepting Plaintiff’s well-pled allegations as true, they do not adequately state

a claim for relief based upon Defendant’s breach of his employment contract. Setting forth

the conclusion that Defendant’s termination of Plaintiff was in some manner “contrary to”

the unidentified “terms” of an uncited contract does not “nudge [Plaintiff’s] claim[] across

the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Such a “formulaic

recitation of the elements of” a breach-of-contract claim, “devoid of further factual

enhancement,” is “merely consistent with”—not a plausible suggestion of—Defendant’s

liability and “will not do” to state a claim for relief that can survive a motion to dismiss.

Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Accordingly, Claim Twelve

must be dismissed.

G. Plaintiff’s Fraud Claim

Plaintiff’s Claim Six alleges that Defendant committed fraud by making

representations, promises, and policies it knew to be false, “with the intent and purpose to

deceive Plaintiff, the general public, and all others similarly situated, and to induce them

to purchase and accept” them. Compl. ¶ 27. Plaintiff further alleges that Defendant “knew

Plaintiff believed such representation, promises and policies to be true and that Plaintiff

would and did justifiably rely on such promises.” Id.; see also id. ¶¶ 6, 28-29.

Defendant argues that that Plaintiff fails to plead this fraud claim with sufficient

particularity to satisfy Federal Rule of Civil Procedure 9(b). See Def.’s Mot. at 20-21; Fed.

R. Civ. P. 9(b) (“In alleging fraud . . . , a party must state with particularity the

circumstances constituting fraud . . . .”). A complaint alleging fraud must “set forth the

time, place and contents of the false representation, the identity of the party making the

false statements and the consequences thereof.” Koch v. Koch Indus., Inc., 203 F.3d 1202,

1236 (10th Cir. 2000) (internal quotation marks omitted). “Rule 9(b)’s purpose is to afford

defendant fair notice of plaintiff’s claims and the factual ground upon which they are

based.” Id. (alteration, omission, and internal quotation marks omitted).

Plaintiff responds by citing the elements of a fraud claim under Oklahoma law,

entirely ignoring Defendant’s Rule 9(b) contentions. See Pl.’s Resp. at 10. This response

is insufficient. Although other portions of the Complaint provide a hint as to the factual

basis for this claim, such hinting is inadequate to provide the requisite fair notice to

Defendant. See RMD, LLC v. Nitto Ams., Inc., No. 09-2056, 2009 WL 10689046, at *4

(D. Kan. Nov. 17, 2009) (noting that a fraud claim “must set out the who, what, where, and

when of the alleged fraud” (internal quotation marks omitted)). The claim does not include

any locations or dates (beyond “[d]uring” Plaintiff’s 32-year employment), and thus it fails

to adequately allege the “time” and “place” of the false representations. Koch, 203 F.3d at

1236. Further, the pleading describes the allegedly fraudulent representations in vague

terms that fail to sufficiently “set forth the . . . contents of the false representation[s]” or

explain how the representations were “false.” Id. (internal quotation marks omitted).

While “intent, knowledge, and other conditions of a person’s mind may be alleged

generally,” Plaintiff’s conclusory allegations and ambiguous references to unfulfilled

promises are insufficient to plausibly plead “the circumstances constituting fraud.” Fed.

R. Civ. P. 9(b). In addition, such conclusory allegations fail to plausibly show that

Defendant’s promises were “known to be false at the time made.” Thrifty Rent-A-Car Sys.,

Inc. v. Brown Flight Rental One Corp., 24 F.3d 1190, 1195 (10th Cir. 1994) (noting that

fraud may be established under Oklahoma law by showing: “(1) a material

misrepresentation; (2) known to be false at the time made; (3) made with specific intent

that a party would rely on it; and (4) reliance and resulting damage”); see also Fed. R. Civ.

P. 8(a)(2), 12(b)(6); Khalik, 671 F.3d at 1192.

The Court therefore concludes that Plaintiff’s Claim Six fails to allege the

underlying facts with sufficient particularity to satisfy the pleading standard of Rule 9(b).

See Koch, 203 F.3d at 1236-37. This claim shall be dismissed.

H. Plaintiff’s Claim for Interference with a Protected Property Interest

In Claim Seven, Plaintiff alleges that he had a protected property interest in the

“benefits” of “financial assistance from representations, promises and policies” but that

Defendant knowingly interfered with that interest “by failing to apply a reasonable

interpretation of the facts, law or terms of the representations, promises and policies.”

Compl. ¶¶ 30, 32. Plaintiff further alleges that he sustained substantial compensable and

economic losses as a result of Defendant’s conduct. See id. ¶ 31.

Even when considered together with the pleading’s introductory factual allegations

(id. ¶¶ 4-11), which reference workers’ compensation and Plaintiff’s termination, these

vague assertions fail to state an actionable claim against Defendant. Although a protected

property interest possibly can arise from “a statutorily based entitlement,” or from “a

contractual agreement” combined with “assurances of continual employment,” Plaintiff

does not identify the relevant representations, promises, and policies in a manner that

permits the Court to discern the nature of his claim. Ross v. Peters, 846 P.2d 1107, 1118

nn.62-63 (Okla. 1993). Nor does he sufficiently plead his alleged benefits in them or

explain how Defendant unreasonably interfered with such a protected property interest.

“Given such a complaint, a defendant seeking to respond to [Plaintiff’s] conclusory

allegations . . . would have little idea where to begin.” Robbins v. Oklahoma, 519 F.3d

1242, 1248 (10th Cir. 2008) (omission in original) (internal quotation marks omitted).

It follows that Plaintiff has not plausibly pled a claim based upon such interference

upon which relief can be granted. See id. (“[The Twombly] requirement of plausibility

serves not only to weed out claims that do not (in the absence of additional allegations)

have a reasonable prospect of success, but also to inform the defendants of the actual

grounds of the claim against them.”); cf. Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 577 (1972) (noting that, to have a property interest in a benefit, a person must “have

a legitimate claim of entitlement to it”); Ross, 846 P.2d at 1118 (“[W]hether one has an

entitlement depends on existing rules or understandings that stem from an independent

source such as state law.” (omission and internal quotation marks omitted)).

I. Plaintiff’s Claim for Breach of Fiduciary Duty

Claim Eight of the Complaint asserts a claim for breach of fiduciary duty. See

Compl. ¶¶ 33-37. In relevant part, Plaintiff alleges:

33. Defendant, by making the representations, promises and policies to

Plaintiff and accepting thirty two years of service from Plaintiff, agreed and

promised that if Plaintiff suffered as set forth in the facts above then

Defendant would investigate the claim, using experienced supervisory

personnel, provide Plaintiff with the information necessary to file informed

and valid claims, to promptly and unambiguously follow those

representations, promises and policies and that when Plaintiff incurred a need

for those representations, promises and policies then the duty of Defendant

to live up to those promises, procedures and policies would arise.

34. Plaintiff submitted claims to Defendant which gave rise to Defendant’s

duty to investigate and live up to those promises, representations and policies

as alleged. After this duty to live up to the representations, promises and

policies arose, such benefits were no longer the property of Defendant but

was held by Defendant for the sole benefit and use of Plaintiff, thereby

creating a fiduciary relationship between Defendant and Plaintiff. A

beneficiary is entitled to a remedy which will put him in the position in which

he would have been if the trustee had not committed the breach of trust.

35. Defendant has breached its fiduciary duty owed to Plaintiff by the acts or

omissions set forth herein, all to Plaintiff’s damage as alleged.

Id. ¶¶ 33-35.

“The elements of a claim for breach of fiduciary duty are: (1) the existence of a

fiduciary relationship; (2) a breach of a fiduciary duty; and (3) the breach of a fiduciary

duty was the direct cause of damages.” Gray v. Acadia Healthcare Co., No. 19-cv-00338,

2020 WL 5996418, at *9 (E.D. Okla. Oct. 9, 2020) (citing Graves v. Johnson, 359 P.3d

1151, 1155 (Okla. Civ. App. 2015)). Although the existence of a fiduciary duty is generally

an issue of fact, Horton v. Hamilton, 345 P.3d 357, 364 (Okla. 2015), “[b]efore a plaintiff

may proceed on a claim for breach of fiduciary duty the allegations in the complaint must

be sufficient to allege the existence of such a duty.” ATS Grp., LLC v. Legacy Tank &

Indus. Servs. LLC, 407 F. Supp. 3d 1186, 1192 (W.D. Okla. 2019).

Defendant primarily argues that Plaintiff fails to allege sufficient facts regarding the

existence of a fiduciary relationship. “[A] fiduciary relationship springs from an attitude

of trust and confidence and is based on some form of agreement, either expressed or

implied, from which it can be said the minds have been met to create a mutual obligation.”

Lowrance v. Patton, 710 P.2d 108, 112 (Okla. 1985). Plaintiff responds by citing authority

for the proposition that “[a] fiduciary duty can arise from informal relationships such as

business relationships” and by arguing, “Defendant had a fiduciary duty to pay Plaintiff,

which was breached by Defendant who[,] rather than pay, attacked Plaintiff and fired him.”

Pl.’s Resp. at 10-13 (citing Sellers v. Sellers, 428 P.3d 230 (Okla. 1967)).

Having reviewed the pleading and the relevant authorities, the Court concludes that

Plaintiff’s unadorned allegations of an employment relationship and references to

undefined “promises” and “claims” do not plausibly support an inference of a fiduciary

relationship. As noted, the Court may not look to facts that Plaintiff has not alleged or

assume that Defendant has acted in ways that have not been pleaded. See Associated Gen.

Contractors of Cal., 459 U.S. at 526. It cannot be reasonably inferred from the allegations

of the Complaint that Defendant owed a fiduciary duty to Plaintiff. Cf. Jackson v. Educ.

& Emp. Ministry, No. CIV-14-1364-D, 2016 WL 3211989, at *6 (W.D. Okla. June 9, 2016)

(“[T]here is generally no fiduciary relationship flowing from an employer to an employee.”

(internal quotation marks omitted) (applying Oklahoma law)). This claim shall be

dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

J. Plaintiff’s Conversion Claim

Plaintiff’s final claim is that on or about March 18, 2017, Defendant “converted to

its own use the money represented by Plaintiff’s paycheck” and “attempted to justify this

conversion as a setoff for money overpaid by Defendant to Plaintiff.” Compl. ¶ 55.

Defendant argues that this claim must be dismissed because Oklahoma does not

recognize a cause of action based upon the conversion of money. Although Plaintiff’s

Response notes that the Oklahoma Supreme Court has used the term “conversion”

regarding client funds in the context of attorney disciplinary matters, Defendant is correct

that “[t]he general rule in Oklahoma is that only tangible personal property may be

converted.” Shebester v. Triple Crown Insurers, 826 P.2d 603, 608 (Okla. 1992); see also

Childs v. Unified Life Ins. Co., 781 F. Supp. 2d 1240, 1249 (N.D. Okla. 2011) (“When a

plaintiff seeks to recover money, there is no conversion.”).

Accordingly, Plaintiff's conversion claim based upon Defendant’s alleged taking of

money fails to state a claim upon which relief can be granted. See, e.g., Two Sisters, LLC

v. Russell, No. CIV-20-492-G, 2020 WL 6808783, at *3 (W.D. Okla. Nov. 19, 2020).

CONCLUSION

For the reasons outlined herein, Defendant’s Motion to Dismiss (Doc. No. 24) is

GRANTED. Plaintiff's claims against Defendant are dismissed in their entirety without

prejudice. A separate judgment shall be entered.

IT IS SO ORDERED this 30th day of March, 2022.

(Vauba B. Kodo

United States District Judge

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