IdentifySensors Biologics Corp. v. Kashmolah

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IDENTIFYSENSORS BIOLOGICS 	) 	CASE NO.: 1:24-cv-01459
CORP., 	)
)
Plaintiff/Counterclaim Defendant, 	) 	JUDGE BRIDGET MEEHAN BRENNAN
)
v. 	)
)
GHAZI KASHMOLAH, 	) 	MEMORANDUM OPINION
) 	AND ORDER
Defendant/Counterclaim Plaintiff. 	)
Counterclaim Defendants IdentifySensors Biologics Corp., IdentifySensors Fresh Food
Enterprises, LLC, Greg Hummer, Bruce Raben, and Matthew Hummer move this Court to
dismiss the Amended Counterclaim Complaint. (Doc. 20.) Counterclaim Plaintiff Ghazi
Kashmolah opposed the motion (Doc. 21), and Counterclaim Defendants replied (Doc. 24). For
the reasons stated herein, Counterclaim Defendants’ Motion to Dismiss the Amended
Counterclaim Complaint is GRANTED in part and DENIED in part.
Also before the Court is Counterclaim Plaintiff’s Motion for Reconsideration of the
Court’s June 27, 2025 Order. (Doc. 16.) The Motion for Reconsideration is DENIED as moot.
I. 	BACKGROUND
A. 	Counterclaim Allegations1
Ghazi Kashmolah (“Kashmolah”) resides in San Diego, California. (Doc. 18 at ¶ 1.) In
January 2023, while Kashmolah was gainfully employed elsewhere, Greg Hummer, Matt
1 The facts alleged in the Amended Counterclaim Complaint are taken as true for purposes of this
motion. See Cates v. Crystal Clear Techs., LLC, 874 F.3d 530, 534 (6th Cir. 2017).
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Hummer, and Bruce Raben (“Raben”) spoke to Kashmolah about joining them at
IdentifySensors Biologics Corp. (“IdentifySensors”). (Id. at ¶ 11.) Greg Hummer was Chief
Executive Officer at IdentifySensors. (Id. at ¶ 4.) Matt Hummer was a co-founder of
IdentifySensors. (Id. at ¶ 6.) Raben was President of IdentifySensors. (Id. at ¶ 5.)
IdentifySensors Fresh Food Enterprises, LLC (“Fresh Food”) was IdentifySensors’ parent entity.
(Id. at ¶¶ 8, 23.)
Greg Hummer, Matt Humer, and Raben wanted Kashmolah to commercialize
IdentifySensor’s breakthrough product. (Id. at ¶ 11.) They spoke to Kashmolah through an
executive recruiter. (Id.) Before joining them, Kashmolah signed an NDA. (Id.) Kashmolah
was shown a presentation to convince him to join IdentifySensors. (Id.) He was convinced to
join IdentifySensors over other opportunities with more established products. (Id.) Kashmolah
gave notice to his former employer. (Id. at ¶ 12.) Kashmolah later learned the presentation he
was shown “deliberately misrepresented the product status in development, suggesting that the
[IdentifySensors] graphene ink formulation was already successful, and that the product was
ready for his help to lead them to commercialization and market access.” (Id. at ¶ 11.)
On February 16, 2023, Kashmolah joined IdentifySensors as Chief Quality Officer, EVP
of Regulatory Affairs. (Id. at ¶ 12.) IdentifySensors, Fresh Food, Greg Hummer, Matt Hummer,
and Raben (collectively “Counterclaim Defendants”) were each Kashmolah’s joint employers.
(Id. at ¶ 7.) Counterclaim Defendants were co-owners, partners, agents, joint venturers, and/or
parent/subsidiary corporations of each other. (Id. at ¶ 8.)
As a condition of Kashmolah’s employment with Counterclaim Defendants, he signed an
Employment Agreement. (Id. at ¶ 13 (citing Doc. 1-1).) He signed the Employment Agreement
in California. (Id. at ¶ 16.) The Employment Agreement provided, “This Agreement will be
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governed by and construed in accordance with the applicable laws of the [sic] Ohio, without
giving effect to the principles of that State relating to conflicts of law.” (Doc. 1-1 at ¶ 20.)
Exhibit C to the Employment Agreement provided that Kashmolah would receive options at
25,000 “per quarter at the end of each quarterly three month period of employment,” an SEP
retirement plan of up to $7,000 per year, three weeks paid vacation per year, and bonuses. (Doc.
18 at ¶ 13.)
Kashmolah worked in California for Counterclaim Defendants. (Id. at ¶ 18.) All areas
under Kashmolah’s leadership were progressing ahead of schedule. (Id. at ¶ 24.) He was
promoted to Chief Operating Officer. (Id.) But the sensor ink product, which was under Matt
Hummer’s leadership, prevented the company from moving forward with clinical studies and
resulted in huge costs. (Id. at ¶ 25.)
Kashmolah became aware that IdentifySensors misled their SEC/IRS filings of estimated
regulatory and research and development expense tax deductions. (Id. at ¶ 28.) When reviewing
the profit and loss report, Kashmolah identified items miscategorized as regulatory instead of
research and development. (Id.) He raised his concerns with Hummer and with IdentifySensor’s
accountant and CFO. (Id.)
On December 14, 2023, Greg Hummer spoke with Kashmolah about the need to cut
salaries. (Id. at ¶ 30.) On December 18, 2023, during a team meeting Kashmolah announced he
planned to take vacation between December 22, 2023, and January 2, 2024. (Id. at ¶ 31.) The
next day, Kashmolah discovered the “Go To Market Report” contained numerous exaggerations.
(Id.) He provided redlines to the document. (Id.) He also made Greg Hummer and
IdentifySensor’s Chief Marketing Officer aware of his proposed changes. (Id.)
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On December 27, 2023, Kashmolah received a call from one of his direct reports. (Id. at
¶ 32.) His direct report and another employee were locked out of the IdentifySensors system.
(Id.) Although still on vacation, Kashmolah discovered he had also been locked out of the
system. (Id.) Greg Hummer and Raben contacted Kashmolah. (Id.) Raben told him he was
being laid off and his last day of employment would be January 10, 2024. (Id.) The purported
reason for Kashmolah’s termination was that IdentifySensors could no longer support his salary.
(Id.) IdentifySensors offered Kashmolah a severance agreement, which he rejected. (Id. at ¶ 34.)
B. 	Procedural History
On August 26, 2024, IdentifySensors filed this diversity action for declaratory judgment.
(Doc. 1.) IdentifySensors seeks a declaration that Ohio law applies to this dispute and that
Kashmolah is not entitled to any of his demands under the Employment Agreement. (See id.)
On August 30, 2024, Kashmolah filed his own lawsuit in California state court. (Doc. 7-4.) On
October 15, 2024, Kashmolah moved to stay this action based on the California state court
action. (Doc. 7.) On May 6, 2025, IdentifySensors notified this Court that the California state
court dismissed the action for lack of personal jurisdiction. (Doc. 10.) On May 14, 2025, this
Court denied Kashmolah’s motion to stay. (5/14/2025 Order.)
Kashmolah answered the Complaint and asserted four counterclaims for wrongful
termination under California law, wrongful termination in violation of public policy, breach of
contract, and intentional misrepresentation. (Doc. 12.) He asserted his counterclaims against
IdentifySensors. (Id.) He also added new parties as counterclaim defendants: Fresh Food, Greg
Hummer, and Bruce Raben. (Id.) Kashmolah alleged IdentifySensors, Fresh Food, Hummer,
and Raben were his joint employers. (Id. at ¶¶ 56, 57.) Although styled as a counterclaim
complaint, Kashmolah did not move for joinder of the new counterclaim defendants. Nor did he
cite any Federal Rules of Civil Procedure. He simply included an allegation that joinder of Fresh
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Food, Hummer, and Raben was permissible because Kashmolah asserted a right to relief against
them arising out of the same transaction, and questions of law or fact were common to all
counterclaim defendants. (Id. at ¶ 58.)
On June 27, 2025, this Court found the attempt to add counterclaims against the new
parties was improper under Rule 14. (6/27/2025 Order.) The same day, Kashmolah filed a
motion for reconsideration, asserting for the first time his counterclaims against the new parties
were being filed under Rule 13(h), which permits the addition of a party to a counterclaim under
Rules 19 and 20. (Doc. 16.) On July 2, 2025, IdentifySensors moved to dismiss Kashmolah’s
counterclaims. (Doc. 17.)
On July 23, 2025, Kashmolah filed an Amended Counterclaim Complaint against
IdentifySensors, Fresh Food, Greg Hummer, and Bruce Raben. (Doc. 18.) He also added Matt
Hummer as a counterclaim defendant. (Id.) The Amended Counterclaim Complaint similarly
alleges joinder is permissible but does not move for joinder or reference Rules 13(h), 19, or 20.
(Id. at ¶ 10.) Kashmolah brings four amended counterclaims: (1) Wrongful Termination Under
California Labor Code 1102.5 (against IdentifySensors and Fresh Food); (2) Wrongful
Termination in Violation of Public Policy (against IdentifySensors and Fresh Food); (3) Breach
of Contract (against IdentifySensors and Fresh Food); and (4) Intentional Misrepresentation
(against Raben, Greg Hummer, and Matt Hummer). (Id. at ¶¶ 36-65.)
On August 26, 2025, IdentifySensors, Fresh Food, Greg Hummer, Raben, and Matt
Hummer moved to dismiss all four amended counterclaims. (Doc. 20.) The motion is fully
briefed. (Docs. 21, 24.)
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II. 	LAW AND ANALYSIS
A. 	Standard of Review
Under Rule 12(b)(6), a court must dismiss a complaint if it fails “to state a claim upon
which relief can be granted.” F ED. R. C IV. P. 12(b)(6). To state a claim, a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. C IV. P. 8(a)(2). To survive a Rule 12(b)(6) motion, the complaint must make out a
plausible legal claim, meaning the complaint’s factual allegations must be sufficient for a court
“to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Plausibility does not require any specific
probability of success, but it does demand “more than a sheer possibility that a defendant has
acted unlawfully.” Id.
When evaluating a motion to dismiss, the Court must accept all factual allegations as true
and draw all reasonable inferences in the plaintiff’s favor. Cates v. Crystal Clear Techs., LLC,
874 F.3d 530, 534 (6th Cir. 2017) (quoting Bickerstaff v. Lucarelli, 830 F.3d 388, 396 (6th Cir.
2016)). But the court “‘need not accept as true legal conclusions or unwarranted factual
inferences, and conclusory allegations or legal conclusions masquerading as factual allegations
will not suffice.’” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014) (quoting Terry v.
Tyson Farms, Inc., 604 F.3d 272, 275-76 (6th Cir. 2010)). A pleading that offers “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
(quoting Republic Bank & Tr. Co. v. Bear Stearns & Co., Inc., 683 F.3d 239, 246-47 (6th Cir.
2012)). Nor does a complaint suffice if it “tenders naked assertions devoid of further factual
enhancement.” Iqbal, 556 U.S. at 678 (quotations and citations omitted).
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B. 	Counterclaim One: Wrongful Termination Under California Labor Code
§ 1102.5 (against IdentifySensors and Fresh Food)
“[A] federal court sitting in diversity applies the choice-of-law rules of the state in which
the court sits.” Performance Contracting Inc. v. DynaSteel Corp., 750 F.3d 608, 611 (6th Cir.
2014) (citation omitted). “Ohio has adopted sections 187 and 188 of the Restatement (Second)
of Conflict of Laws to govern choice of law in contract disputes.” Down-Lite Int’l, Inc. v.
Altbaier, 821 F. App’x 553, 554 (6th Cir. 2020) (citing Wise v. Zwicker & Assocs., P.C., 780
F.3d 710, 715 (6th Cir. 2015)). “The appropriate analysis therefore begins with § 187, which
instructs courts to generally respect choice-of-law provisions.” Wise, 780 F.3d at 715. “Under
Ohio law, contractual choice-of-law provisions are valid and enforceable.” CajunLand Pizza,
LLC v. Marco’s Franchising, LLC, 513 F. Supp. 3d 801, 805 (N.D. Ohio 2021) (quotations and
citations omitted). Paragraph 20 of the Employment Agreement provides: “This Agreement will
be governed by and construed in accordance with the applicable laws of the [State of] Ohio,
without giving effect to the principles of that State relating to conflicts of law.” (Doc. 1-1 at
¶ 20.) Counterclaim Defendants assert the Ohio choice of law provision in the Employment
Agreement applies to any dispute between Kashmolah and IdentifySensors. (Doc. 20-1 at 220.)2
Kashmolah argues that even if Ohio law applies, his statutory claim is outside the scope
of the choice of law provision. (Doc. 21 at 240-41.) To Kashmolah, the choice of law provision
applies only to the interpretation of the Employment Agreement. (Id.) It is not broad enough to
encompass his statutory wrongful termination claim, Kashmolah urges. (Id.) However, choice
of law provisions almost identical to the one at issue here govern not just the interpretation of the
agreement, but also disputes that are directly related to it, including contract and tort claims. See
2 For ease and consistency, record citations are to the electronically stamped CM/ECF document
and PageID# rather than any internal pagination.
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Adelman’s Truck Parts Corp. v. Jones Trans., 797 F. App’x 997, 1000-01 (6th Cir. 2020) (choice
of law clause stating “[t]his Purchase Order shall be governed by and construed in accordance
with the laws of the State of Ohio” was sufficiently broad to encompass “any disputes, whether
contractual or tortious,” that “arose out of and [were] directly related to the Purchase
Agreement”); Moses v. Bus. Card Express, Inc., 929 F.2d 1131, 1139-40 (6th Cir. 1991)
(agreement language stating “‘[t]his Franchise and License Agreement and the construction
thereof shall be governed by the laws of the state of Michigan . . . .’ [c]learly [] refers to more
than construction of the agreement; otherwise the first six words would be surplusage”).
Here, Ohio law governs the construction of the Employment Agreement and disputes
related to or arising out of it. The Employment Agreement sets forth the terms and conditions of
Kashmolah’s employment, including potential termination. There is no question that disputes
related to his employment and termination arise out of or are related to the Employment
Agreement. Kashmolah’s argument that the choice of law provision does not apply to his
statutory claim also fails. See Adelman, 797 F. App’x at 999-1001 (finding that choice-of-law
provision applied to statutory claims).
Kashmolah also argues he declared the Ohio choice of law provision “void” under
California Labor Code § 925. (Doc. 21 at 242-43.) Section 925 provides:
(a) An employer shall not require an employee who primarily resides and works in
California, as a condition of employment, to agree to a provision that would do either of
the following:
(1) Require the employee to adjudicate outside of California a claim arising in
California.
(2) Deprive the employee of the substantive protection of California law with
respect to a controversy arising in California.
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(b) Any provision of a contract that violates subdivision (a) is voidable by the employee,
and if a provision is rendered void at the request of the employee, the matter shall be
adjudicated in California and California law shall govern the dispute.
California Labor Code § 925. Kashmolah cites to two Central District of California cases and
one California state court case in support of this argument. (Doc. 21 at 242.)
But courts outside of California have not applied § 925 unless the court first finds that
California law applies to the dispute. See Willis Re Inc. v. Herriott, 550 F. Supp. 3d 68, 90-91
(S.D.N.Y. 2021) (finding that, if New York law applied to the employment contract at issue,
§ 925 “would not come into the picture at all”); see also Ronnoco Coffee, LLC v. Castagna, No.
21-CV-00071, 2021 U.S. Dist. LEXIS 41707, 2021 WL 842599, at *6 (E.D. Mo. Mar. 5, 2021)
(collecting cases) (“district courts outside of California considering choice of law provisions and
forum selection clauses have refused to apply § 925 when another state’s law has been chosen by
the parties”); C.H. Robinson Worldwide, Inc. v. Traffic Tech, Inc., 60 F.4th 1144, 1150 (8th Cir.
2023) (holding that § 925 would not apply to California-based employees if the trial court
determined that their claims arose out of their employment contracts, which selected Minnesota
law); Downing v. Neurovascular, No. 18-cv-841, 2018 U.S. Dist. LEXIS 248981, 2018 WL
11473724, at *10 (W.D. Mich. Dec. 27, 2018) (considering injunctive relief, “California Labor
Code Section 925—did not overcome the parties’ bargained for choice of venue” because
Michigan law likely applied).
Here, Ohio law applies to Counterclaim One and § 925 does not void the choice of law
provision. Kashmolah cannot state a counterclaim for wrongful termination under California
Labor Code § 1102.5. Counterclaim One is DISMISSED with prejudice.
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C. 	Counterclaim Two: Wrongful Termination in Violation of Public Policy
(against IdentifySensors and Fresh Food)
Kashmolah brings Counterclaim Two in the alternative to Counterclaim One. (Doc. 18 at
¶ 44.) This counterclaim also fails.
A plaintiff must establish the following four elements for a wrongful termination in
violation of public policy claim:
(1) that a clear public policy existed and was manifested either in a state or federal
constitution, statute or administrative regulation or in the common law (“the clarity
element”), (2) that dismissing employees under circumstances like those involved
in the plaintiff’s dismissal would jeopardize the public policy (“the jeopardy
element”), (3) that the plaintiff’s dismissal was motivated by conduct related to the
public policy (“the causation element”), and (4) that the employer lacked an
overriding legitimate business justification for the dismissal (“the overriding-
justification element”).
House v. Iacovelli, 152 N.E.3d 178, 181 (Ohio 2020) (citations omitted). The first two elements
(clarity and jeopardy) are questions of law. Id.
To satisfy the “clarity” element of his public policy claim, Kashmolah was required to
identify the specific federal or state constitutional provisions, statutes, regulations, or common
law that support the policy because “[a] court may not do so sua sponte.” Romero v. City of
Middletown, 479 F. Supp. 3d 660, 674 (S.D. Ohio 2020) (“it is the plaintiff’s burden to identify
the public policy and the sources for that policy”). Kashmolah asserts his counterclaim is based
on “[a] clear public policy prohibiting retaliation for complaining about employer violations of
IRS and SEC laws and regulations.” (Doc. 18 at ¶ 45.) He cites to “26 U.S.C §§ 7201 and 7206
as well as the Sarbanes-Oxley Act of 2002 [“SOX”]” as “example[s].” (Id.) Counterclaim
Defendants argue these “examples” do not satisfy the clarity element. (See Doc. 20-1 at 223-25.)
Even if clarity could be established, jeopardy could not. Kashmolah believes his
termination jeopardizes public policy “because employees are not encouraged to complain about
[violations of IRS and SEC laws] if they could be terminated for such complaints.” (Doc. 21 at
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244.) He further asserts, without any supporting legal authority, that he “does not have an
adequate remedy under any other statute.” (Id.) This position is contrary to established law.
“The issue that most often arises under the jeopardy analysis . . . is whether the public
policy tort should be rejected where the statute expressing the public policy already provides
adequate remedies to protect the public interest.” Collins v. Rizkana, 652 N.E.2d 653, 660 (Ohio
1995). “[T]here is no need to recognize a common-law action for wrongful discharge if there
already exists a statutory remedy that adequately protects society’s interests.” Carrasco v.
NOAMTC Inc., 124 F. App’x 297, 304 (6th Cir. 2004) (quoting Wiles v. Medina Auto Parts, 773
N.E.2d 526, 531 (Ohio 2002) (availability of other statutory remedies precluded fulfilling the
jeopardy element)).
“In analyzing the jeopardy element, the Court must ‘inquir[e] into the existence of any
alternative means of promoting the particular public policy to be vindicated by a common-law
wrongful-discharge claim.’” Hanna v. Roehl Transp. Inc., No. 24-CV-4226, 2025 U.S. Dist.
LEXIS 114206, 2025 WL 1685308, at *3 (S.D. Ohio June 16, 2025) (quoting Wiles, 773 N.E.2d
at 531). “If an existing ‘statutory scheme contains a full array of remedies’ that ‘adequately
protect society’s interests,’ then ‘it is unnecessary to recognize a common-law claim’ for
wrongful discharge.” Id. (quoting Leininger v. Pioneer Nat’l Latex, 875 N.E.2d 36, 42-43 (Ohio
2007) (jeopardy element not met where Federal Motor Carrier Safety Administration’s
whistleblower statute provided adequate remedy for wrongful discharge)); see also Watson v.
Ohio Ambulance Sols., LLC, No. 20-CV-802, 2023 U.S. Dist. LEXIS 209498, 2023 WL
8119305, at *12 (S.D. Ohio Nov. 22, 2023), R&R adopted, 2023 WL 8718106 (S.D. Ohio Dec.
18, 2023), aff’d, No. 24-3046, 2024 WL 5340668 (6th Cir. Aug. 8, 2024) (jeopardy element not
met where Title VII and Ohio Rev. Code § 4112.02 provided adequate remedies); Kleinmark v.
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CHS-Lake Erie, Inc., No. 07-cv-1512, 2008 U.S. Dist. LEXIS 52665, 2008 WL 2740817, at *5-6
(N.D. Ohio July 10, 2008) (plaintiff could not state public policy wrongful discharge claim based
on FMLA retaliation because adequate statutory remedy existed); Bennett v. Bd. of Educ. of
Washington Cnty. Joint Vocational, No. 08-CV-663, 2009 U.S. Dist. LEXIS 82760, 2009 WL
2973001, at *7 (S.D. Ohio Sept. 10, 2009) (jeopardy element not met where plaintiff had
adequate remedy under ADA); Tracy v. Northrop Grumman Sys. Corp., No. 08-cv-126, 2009
U.S. Dist. LEXIS 19566, 2009 WL 690255, at *5 (S.D. Ohio Mar. 12, 2009) (jeopardy element
not met where False Claims Act and Ohio Whistleblower Protection Act adequately protected
alleged public policy).
Under SOX, the statute creates a civil action for retaliation to protect whistleblower
employees. See 18 U.S.C. § 1514A. A prevailing employee is entitled to “all relief necessary to
make the employee whole.” 18 U.S.C. § 1514A(c)(1). Accordingly, “SOX provides sufficiently
broad and inclusive remedies which adequately protect the public policy embodied in that
statute . . . .” Stewart v. Everyware Global, Inc., 68 F. Supp. 3d 759, 765 (S.D. Ohio 2014)
(plaintiff could not meet jeopardy element where plaintiff relied on SOX). The same goes for
IRS whistleblower laws. Under 26 U.S.C. § 7623(d), employers may not retaliate against
employees who provide information regarding alleged violations of the internal revenue laws.
The statute allows an employee to bring an enforcement action and provides for “all relief
necessary to make the employee whole.” 26 U.S.C. §§ 7623(d)(2)-(3). The IRS statutory
scheme provides sufficiently broad and inclusive remedies to adequately protect the public
policy. And Ohio’s whistleblower protection statute, Ohio Rev. Code § 4113.52, “provides
adequate remedies so as to not jeopardize the public policy.” Tracy, 2009 U.S. Dist. LEXIS
19566, 2009 WL 690255, at *14.
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Kashmolah cannot demonstrate that statutory remedies under SOX, IRS whistleblower
protections, or Ohio whistleblower laws and regulations are inadequate. Accordingly,
Kashmolah’s claim for wrongful termination in violation of public policy fails as a matter of law.
See Hanna, 2025 U.S. Dist. LEXIS 114206, 2025 WL 1685308, at *14. Counterclaim Two is
DISMISSED with prejudice.
D. 	Counterclaim Three: Breach of Contract (against IdentifySensors and Fresh
Food)
“Under Ohio law, the elements of a breach of contract claim are: (1) the existence of a
contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to
the plaintiff as a result of the breach.” V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465
(6th Cir. 2012) (applying Ohio law) (citations omitted).
Kashmolah entered into the Employment Agreement with IdentifySensors and Fresh
Food. (Doc. 18 at ¶¶ 13, 53.) He notes the Employment Agreement is attached to the underlying
Complaint. (Doc. 18 at ¶ 13; see also Doc. 1-1 at 11-34.) Under Exhibit C to the Employment
Agreement, Kashmolah claims he was to receive 25,000 options per quarter, an SEP retirement
plan of up to $7,000 per year, three weeks paid vacation per year, and bonuses. (Doc. 18 at
¶¶ 13, 53.) Kashmolah asserts he fully performed under the Employment Agreement. (Id. at
¶ 54.) IdentifySensors and Fresh Food “breached the contract by not paying Kashmolah all of
his vacation time, vested stock options, bonuses, and SEP retirement plan contributions.” (Id. at
¶ 55.) Kashmolah claims he has been damaged by the breach. (Id. at ¶ 57.)
Counterclaim Defendants argue Kashmolah failed to allege facts that plausibly support a
breach of contract claim. (Doc. 20-1 at 227-28; Doc. 24 at 256-57.) To Counterclaim
Defendants, he has not pled an entitlement to any of his claimed relief. (Id.) Kashmolah
responds that whether any money is owed under the terms of the Employment Agreement is a
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factual issue that cannot be decided on a motion to dismiss. (Doc. 21 at 236-37.) And there is
no requirement that breach of contract claims be pled with particularity, Kashmolah urges. (Id.
at 236.)
In Northampton Rest. Grp., Inc. v. FirstMerit Bank, N.A., 492 F. App’x 518 (6th Cir.
2012), the Sixth Circuit clarified what the plaintiff must allege to plead a plausible breach of
contract claim. There, the court found the plaintiff failed to state a breach of contract claim
because the plaintiff merely alleged it had written agreements with the defendant, which
contained terms that the defendant breached. Northampton, 492 F. App’x at 522. But, instead of
attaching the contracts to the complaint, the plaintiff asserted it “no longer possessed copies of
the [contracts]” and asked that it “be allowed to conduct discovery in order to obtain the
contracts that would show [the defendant’s] actions violated their agreement.” Id. The court
held that this was not enough to survive a motion to dismiss. Id. The plaintiff did not fulfill the
“basic tenet of contract law” of identifying the written contract and term within it that was
allegedly breached. Id. (quotations and citations omitted).
Kashmolah’s breach of contract claim does not have the same shortcomings as the
Northampton plaintiff’s breach of contract claim. Kashmolah stated the parties entered into the
Employment Agreement. (Doc. 18 at ¶¶ 13, 53.) He noted the Employment Agreement was
attached to the underlying Complaint. (Id. at ¶ 13.) And he alleged IdentifySensors and Fresh
Food breached the terms in Exhibit C to the Employment Agreement. (Id. at ¶¶ 53, 55.)
Accordingly, Kashmolah satisfied applicable notice pleading standards. See FED. R. C IV. P.
8(a)(2). He pled a plausible breach of contract claim. Counterclaim Defendants’ request to
dismiss Counterclaim Three is DENIED.
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Although Kashmolah did not move for joinder under Rule 13, he may add Fresh Food as
a counterclaim defendant to Counterclaim Three pursuant to Rule 13(h).3 IdentifySensors and
Fresh Food must answer Counterclaim Three on or before January 2, 2026.
E. 	Counterclaim Four: Intentional Misrepresentation (against Raben, Greg
Hummer, and Matt Hummer)
Counterclaim Defendants challenge the intentional misrepresentation counterclaim as
both procedurally deficient and legally baseless. (Doc. 20-1 at 229-31.) They argue
Kashmolah’s attempted joinder of Raben, Greg Hummer, and Matt Hummer on a standalone
fraud claim is deficient. (Id. at 229-30; Doc. 24 at 257-58.) Raben, Greg Hummer, and Matt
Hummer are not parties to the original action. (See Doc. 1.) And IdentifySensors is not named
as a defendant to this counterclaim. (See Doc. 18 at ¶¶ 58-65.)
Kashmolah responds that joinder is proper because he may add a counterclaim against
non-parties under Rule 13(h). (Doc. 21 at 237-38.) To Kashmolah, the Amended Counterclaim
Complaint involves at least one party to the original suit—IdentifySensors. (Id. at 238.)
Additional parties may be joined to a counterclaim under Rule 13(h). FED . R. C IV. P.
13(h). “Rules 19 and 20 govern the addition of a person as a party to a counterclaim or
crossclaim.” Id. Pursuant to Rule 13(h), a counterclaim “cannot be directed only against a
person who is not already a party to the original suit.” M.F. v. Cleveland Metro. Sch. Dist., No.
23-CV-2308, 2024 U.S. Dist. LEXIS 193063, 2024 WL 4564423, at *14 (N.D. Ohio Oct. 24,
2024) (emphasis in original) (citing DNA Health, LLC (NJ) v. LIV Health LLC, No. 22-CV-
00121-GFVT, 2023 U.S. Dist. LEXIS 27654, 2023 WL 2110882, at *2 (E.D. Ky. Feb. 17, 2023)
3 The appropriate procedure is “a Rule 13(h) motion to join additional parties to a counterclaim
under Rule 19 or 20.” Lexington Streetsboro, LLC v. Geis, No. 07-CV-02450, 2008 U.S. Dist.
LEXIS 108090, 2008 WL 5723491, at *5 (N.D. Ohio Feb. 22, 2008) (citation omitted). But
“Rule 13 is remedial in nature, and must be construed liberally.” Id. at *6 (citation omitted).
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(“[c]laims directed only at a non-party are not counterclaims but an independent cause of action
against the party to be joined”) (quotations and citations omitted)).
Kashmolah is correct that non-parties to counterclaims may be joined pursuant to Rule
13(h), but only if IdentifySensors, a party to the original suit, is also a party to such
counterclaims. Where Counterclaim Three is asserted against both IdentifySensors and non-
party Fresh Food, Counterclaim Four is only asserted against non-parties. Accordingly,
Counterclaim Four does not properly join Raben, Greg Hummer, and Matt Hummer as
counterclaim defendants.
Notwithstanding the joinder issue, this counterclaim still fails under Rule 9(b). Rule 9(b)
requires that “[i]n alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” F ED . R. C IV. P. 9(b). A plaintiff must “(1) specify
the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where
and when the statements were made, and (4) explain why the statements were fraudulent.”
Frank v. Dana Corp., 547 F.3d 564, 570 (6th Cir. 2008) (quotations and citation omitted). A
plaintiff must allege “(1) the time, place, and content of the alleged misrepresentation, (2) the
fraudulent scheme, (3) the defendant’s fraudulent intent, and (4) the resulting injury.”
Chesbrough v. VPA. P.C., 655 F.3d 461, 467 (6th Cir. 2011) (quotations and citation omitted);
see also Greer v. Strange Honey Farm, LLC, 114 F.4th 605, 616-17 (6th Cir. 2024) (dismissing
fraud claim for plaintiff’s failure to plead when allegedly fraudulent statements were made).
Counterclaim Defendants argue Kashmolah has not met the heightened pleading standard
for fraud claims. (Doc. 20-1 at 230-31; Doc. 24 at 258.) Kashmolah claims he “alleged when
the statements were made, who made them, and what was said” in paragraphs 11 and 59 of the
Amended Counterclaim Complaint. (Doc. 21 at 239 (citing Doc. 18 at ¶¶ 11, 59).) He alleges:
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In January 2023, while Kashmolah was gainfully employed elsewhere and with
other opportunities in the offer stage, Greg Hummer, Matt Hummer and Raben
spoke to Kashmolah while he was in California through an executive recruiter
regarding an employment opportunity to join them and commercialize their
breakthrough 	product. 	Before 	joining 	them, 	Kashmolah 	signed 	an 	NDA.
Kashmolah later learned that the presentation used to convince him to join ISB
deliberately misrepresented the product status in development, suggesting that the
ISB graphene ink formulation was already successful, and that the product was
ready for his help to lead them to commercialization and market access. This
misrepresentation by Counterclaim Defendants convinced Kashmolah to join ISB
over other opportunities with more established product.
(Doc. 18 at ¶ 11.) He further alleges “Raben, Greg Hummer and Matt Hummer intentionally
misrepresented the product status in development of the graphene ink formulation, specifically
suggesting that the ISB graphene ink formulation was already successful, and that the product
was ready for his help to lead them to commercialization and market access.” (Id. at ¶ 59.)
At most, Kashmolah alleges he spoke with Greg Hummer, Matt Hummer, and Raben
through a recruiter in January 2023. On some unspecified date, Kashmolah was given a
presentation to convince him to join IdentifySensors. Kashmolah does not detail what the
PowerPoint presentation stated, who drafted or provided the presentation, where or when
Kashmolah viewed the presentation, or how the presentation “suggested” a successful product.
He must do so to meet Rule 9(b)’s particularity requirement. See Frank, 547 F.3d at 570;
Chesbrough, 655 F.3d at 467; Greer, 114 F.4th at 616-17. Additionally, Kashmolah asserts
“Greg Hummer, Matt Hummer, and Raben” made the alleged misrepresentation. (Doc. 18 at ¶
59.) He does not specify what each individual allegedly misrepresented. “The ‘particularity’
requirement of Rule 9(b) precludes plaintiffs from ‘lumping’ allegations against multiple
defendants together, and it requires them to identify which defendant ‘made a particular
misrepresentation.’” Detrick v. KCS Int’l Inc., 781 F. Supp. 3d 588, 623 (N.D. Ohio 2025)
(quoting Little Mt. Precision, LLC v. DR Guns, LLC, No. 22-CV-1471, 2023 U.S. Dist. LEXIS
21665, 2023 WL 1816711, at *10 (N.D Ohio Feb. 8, 2023) (“the complaint improperly lumps the
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Individual Defendants together without separating out which Individual Defendant made a
particular misrepresentation”)). The allegations fall short of the particularity requirement.
Kashmolah’s counterclaim for intentional misrepresentation is DISMISSED without prejudice.
Finally, Kashmolah represents that if more particularity is needed he would like leave to
amend his counterclaim. (Doc. 21 at 239.) Rule 15 generally provides leave to amend should be
given freely. FED. R. C IV. P. 15(a)(2). But one sentence requesting amendment at the end of an
opposition brief is inadequate. See Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am., 648
F.3d 295, 304-05 (6th Cir. 2011). “A request for leave to amend, ‘almost as an aside, to the
district court in a memorandum in opposition to the defendant’s motion to dismiss is . . . not a
motion to amend.’” La. Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th
Cir. 2010) (quoting Begala v. PNC Bank, Ohio, Nat. Ass’n, 214 F.3d 776, 784 (6th Cir. 2000)).
Kashmolah has not properly presented a motion for leave to amend.
F. 	Motion for Reconsideration
On June 11, 2025, Kashmolah filed an Answer and Counterclaim Complaint against
IdentifySensors and new counterclaim defendants. (Doc. 12.) On June 27, 2025, this Court
found the attempt to add counterclaims against the new parties in the Answer and Counterclaim
Complaint was improper. (6/27/2025 Order (citing Doc. 12).) The same day, Kashmolah filed a
Motion for Reconsideration of the Court’s June 27, 2025 Order. (Doc. 16.)
On July 23, 2025, Kashmolah filed an Amended Counterclaim Complaint. (Doc. 18.) In
light of the Amended Counterclaim Complaint, the Motion for Reconsideration of the Court’s
June 27, 2025 Order is DENIED as moot.
III. 	CONCLUSION
For the reasons stated herein, Counterclaim Defendants’ Motion to Dismiss the Amended
Counterclaim Complaint (Doc. 20) is GRANTED in part and DENIED in part. Counterclaim
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Plaintiff’s Motion for Reconsideration of the Court’s June 27, 2025 Order (Doc. 16) is DENIED
as moot. IdentifySensors Biologics Corp. and IdentifySensors Fresh Food Enterprises, LLC
must answer Counterclaim Three on or before January 2, 2026.
IT IS SO ORDERED.
Date: 	December 12, 2025 	_________________________________
BRIDGET MEEHAN BRENNAN
UNITED STATES DISTRICT JUDGE
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