United States District Court, E.D. Michigan, Southern Division
GREAT LAKES ACQUISITION CORP. d/b/a/ GREAT LAKES CARING, Plaintiff,
CHERI LYN DEARY, Defendant.
Steven Whalen Magistrate Judge.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
J. MICHELSON UNITED STATES DISTRICT JUDGE.
Cheri Lyn Deary left her job at Great Lakes Caring
(“Great Lakes”), a business providing home health
care, she did not walk out empty-handed. Great Lakes paid
Deary “in excess of six figures” upon her
departure in April 2017 and, in exchange, Deary signed an
employment agreement that included a covenant not to compete.
(ECF No. 7, PageID.83.)
months later, Great Lakes noticed something suspicious. A
November 2018 filing with the State of Michigan showed the
formation of a new health care company named Careline Health
Group-MI, LLC (“Careline”). (ECF No. 7,
PageID.90.) Cheri Lyn Deary was the company's resident
agent. (Id.) And her home address was the
company's registered office. (Id.) After seeing
this, Great Lakes filed a lawsuit against Deary seeking an
injunction and money damages for violation of the employment
agreement. (ECF No. 1, PageID.13-14; ECF No. 7, PageID.87) In
response to the suit, Deary filed a motion to dismiss for
failure to state a claim upon which relief can be granted.
(ECF No. 3.) Great Lakes amended the complaint but Deary says
it still fails to state a claim. (ECF No. 8.) For the reasons
discussed below, this Court will grant Deary's motion and
dismiss the suit.
deciding a motion to dismiss under Federal Rule of Procedure
12(b)(6), the Court “construes the complaint in the
light most favorable to the plaintiff, accepts the
plaintiff's factual allegations as true, and determines
whether the complaint ‘contain[s] sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.'” Heinrich v. Waiting
Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th
Cir. 2012) (alteration in original) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). The Court “need
not, however, accept unwarranted factual inferences.”
Bennett v. MIS Corp., 607 F.3d 1076, 1091 (6th Cir.
2010) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The factual allegations must “raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
Lakes' original complaint included 22 paragraphs and an
exhibit, which was a copy of Careline's articles of
organization with Deary's name listed as the registered
agent. (ECF No. 1.) The complaint also excerpted the covenant
not to compete, which required Deary not to “engage in
any self-employment, employment with any other entity, work
as a consultant or independent contractor, or have full or
partial ownership of any entity” in the region for two
years in fields such as “home health care, hospice,
care, [and] palliative care”-the core businesses of
Great Lakes. (ECF No. 1, PageID.11; ECF No. 7, PageID.83.)
Deary filed a motion to dismiss, asserting that neither her
status as Careline's resident agent nor her alleged
participation in the operation of Careline stated a claim for
breach of contract. (ECF No. 3, PageID.36-39.)
after, Great Lakes filed an amended complaint that included
the previous material as well as nine new paragraphs. (ECF
No. 7.) The new complaint detailed that Careline was owned by
Joseph Mead (Deary's son-in-law), that Mead had no
experience in the industry, and that Mead nevertheless
created the company. (ECF No. 7, PageID.84- 85.)
Additionally, the complaint contained six other fresh
12. Upon information and belief, Mead established Careline
with Deary's aid and assistance.
13. Upon information and belief, but for Deary's aid and
assistance Mead would not have been able to establish and
operate Careline. . . .
17. Upon information and belief, Deary has been directly and
indirectly assisting Careline in competing with Great Lakes
in violation [of] the Covenant not to Non-Compete [sic].
18. Upon information and belief, Deary acted as the agent of
Careline in violation of the Covenant not to Non-Compete
19. Upon information and belief, Deary has provided formal or
informal consulting services to Careline in violation of the
Covenant not to Non-Compete [sic].
20. Upon information and belief, Careline, with Deary's
assistance, has solicited Great Lakes' prospective
patients and engaged in ...