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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

THE SHARRON GROUP, INC., : 

 : Case No. 2:17-cv-01008 

 Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge 

BAKER’S SEPTIC SERVICE : Chelsey M. Vascura 

& PORT-A JOHN RENTALS LLC, : 

 : 

 Defendant. : 

OPINION & ORDER 

 This matter is before the Court on Plaintiff’s Motion to Dismiss Defendant’s 

Counterclaim. (ECF No. 6). For the reasons set forth below, Plaintiff’s Motion is GRANTED.

I. BACKGROUND 

Plaintiff, The Sharron Group, Inc., filed a Complaint on November 16, 2017, against 

Defendant, Baker’s Septic Service and Port-a-John Rentals LLC, alleging breach of contract and 

violation of the Uniform Commercial Code. (ECF No. 1). The allegations arise out of a transaction 

in which Defendant was to purchase a truck and related equipment from Plaintiff, which was then 

doing business as Buckeye Western Star (Buckeye). (ECF. No 1 at 2). The truck and equipment 

were both designed specifically for the septic tank industry. Id. The Complaint alleges on or about 

August 22, 2017, Plaintiff attempted to deliver the truck to Defendant, but Defendant refused to 

accept it. (Id. at 3). 

Defendant filed an answer and counterclaim on March 30, 2018. (ECF. No 3). Defendant 

alleges Plaintiff breached the agreement by failing to deliver the truck in June 2017 and by 

misrepresenting to Defendant that the truck would be manufactured in Ohio. Id. 
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Plaintiff filed a Motion to Dismiss Defendant’s Counterclaim. (ECF No. 6). Plaintiff argues 

the agreement with Defendant did not require delivery by June 2017, and thus, there was no breach. 

(ECF. No 6 at 3). Additionally, Plaintiff argues that Defendant’s Counterclaim fails to contain 

adequate factual allegations showing Plaintiff was required to manufacture the truck in Ohio. (Id.). 

Plaintiff now seeks to dismiss Defendant’s Counterclaim. (Id.). 

II. STANDARD OF REVIEW 

A counterclaim must contain a “short and plain statement of the claim showing the pleader 

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) allows a court to dismiss a counterclaim 

for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 

counterclaim fails to state a claim upon which relief can be granted when, accepting all wellpleaded allegations as true, it does not contain “enough facts to state a claim to relief that is 

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible 

when the court is able “to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, the grounds for relief 

must entail more than “labels and conclusions.” Twombly, 550 U.S. at 555. The Supreme Court 

has held a simple “formulaic recitation of the elements of a cause of action will not do.” Id. 

III. ANALYSIS 

The federal district courts have original jurisdiction in cases where the case or 

controversy is between citizens of different states and the amount in controversy exceeds 

$75,000. 28.U.S.C §1332(a)(1). The amount in controversy in the instant case is $103,590. (ECF 

No. 1 at 4). In addition, Plaintiff is a citizen of Ohio and Defendant is a citizen of Kentucky. 

(ECF No. 1 at 1). 
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 In diversity cases, the substantive law of the forum state is applied. CenTra, Inc. v. 

Estrin, 538 F.3d 402, 409 (6th Cir. 2008). The choice of law selection clause in the Commercial 

Retail Installment Sale Contract Master Agreement (Exhibit F) specifies that Ohio will be the 

governing law; therefore, “there is further reason to consider Ohio law controlling.” Power Mktg. 

Direct, Inc. v. Pagnozzi, 2006 WL 2849815, at *2 (S.D. Ohio 2006). 

Under Ohio law, in order to establish breach of contract, a defendant must prove (1) the 

existence of a valid contract (2) performance (3) breach (4) damages. Pavlovich v. Nat'l City 

Bank, 435 F.3d 560, 565 (6th Cir. 2006). A party alleging breach of contract is required to 

satisfy all four elements. Schumacher v. State Auto. Mut. Ins. Co., 47 F. Supp. 3d 618, 626 (S.D. 

Ohio 2014). 

The sole element in dispute is breach. Defendant claims Plaintiff committed a material 

breach in two ways. (ECF. No 3 at 10). First, Defendant alleges Plaintiff materially breached the 

contract by failing to deliver the truck by June 2017. (Id.). A party claiming breach of contract 

must show a term of the contract was actually breached. Northhampton Rest. Grp., Inc v. 

FirstMerit Bank, N.A., 492 Fed. Appx. 518, 522 (6th Cir. 2012) (unpublished). Defendant does not 

plead any facts showing delivery of the truck by June 2017 was a part of the contract. Defendant 

alleges they informed representatives of Plaintiff they needed the truck by June 2017, but does not 

provide any evidence that delivery by June 2017 was ever an agreed upon term included in the 

contract between the two parties. If there is no evidence the alleged breach was on a term of the 

contract, “there obviously can be no proof of breach.” Id. 

Here, Defendant claims delivery of the truck was discussed with Plaintiff after Defendant 

placed the order. (ECF. No 3 at 9). However, the June 2017 date is not a term of the contract, and 

Defendant does not allege any facts to support the conclusion that the delivery date was discussed 
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as a term of the contract. In fact, a June 2017 delivery date is not contained in any of the 

documented agreements provided to the Court. Defendant’s first claim of breach contract must be 

dismissed. 

Defendant’s second claim for breach of contract centers on Plaintiff’s purported 

misrepresentation that the truck was manufactured in Ohio. Defendant’s second claim fails for the 

same reasons as the first claim. A party “can only advance a claim of breach of written contract by 

identifying and presenting the actual terms of the contract allegedly breached.” Harris v American 

Postal Workers Union, 198 F.3d 245 (6th Cir. 1999). Defendant claims one of Plaintiff’s 

representatives “represented to Baker’s Septic that the truck Baker’s Septic wanted to purchase 

would be made in Ohio at its plant.” (ECF. No 3 at 8). However, once again, Defendant does not 

allege the truck’s being manufactured in Ohio was a term of the contract. Additionally, there is 

nothing contained in the exhibits attached to the complaint indicating that the contract specified 

the truck was to be manufactured in Ohio. Because there are no factual allegations that delivery of 

the truck by June 2017 was a term of the agreement, Defendant’s second claim for breach of 

contract must be dismissed. 

IV. CONCLUSION 

Based on the foregoing analysis, Plaintiff’s Motion to Dismiss Defendant’s Counterclaim 

is GRANTED. 

IT IS SO ORDERED. 

 /s/ Algenon L. Marbley 

 ALGENON L. MARBLY 

 UNITED STATES DISTRICT JUDGE 

DATED: January 14, 2019