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The Sherwin-Williams Co. v. Advanced Collision Center of Mobile, Inc.

United States District Court, S.D. Alabama, Southern Division

June 13, 2018

THE SHERWIN-WILLIAMS COMPANY, Plaintiff,
v.
ADVANCED COLLISION CENTER OF MOBILE, INC., d/b/a ADVANCED COLLISION CENTER, et al., Defendants.

          MEMORANDUM ORDER AND OPINION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants Danny Woodward's and Advanced Collision Center of Mobile, Inc.'s, ("Advanced") Renewed Motion to Dismiss and Supporting Brief ("renewed motion to dismiss") (Doc. 21), which was filed on December 4, 2017. As the parties are no doubt aware, this case has been randomly assigned to the undersigned for all purposes, including trial. (See Doc. 2 ("In accordance with 28 U.S.C. § 636(c), the Magistrate Judges of this District Court have been designated to conduct any and all proceedings in a civil case, including a jury or non-jury trial, and to order the entry of a final judgment, upon the consent of all parties.")). Inasmuch as the parties, as of the date of the memorandum order and opinion, have not returned to the Clerk of Court a Request for Reassignment to a United States District Judge (see Doc. 2 at 1-2 ("You have the right to have your case reassigned to a United States District Judge for trial and disposition. If you wish to have the case reassigned, you or your attorney need only return the Request for Reassignment to a United States District Judge (attached) by email to Edwina_Crawford@alsd.uscourts.gov. Do not electronically file document.")), there presently exists implicit consent to the undersigned conducting all proceedings in this case. See Roell v. Withrow, 538 U.S. 580, 123 S.Ct. 1696, 1703, 155 L.Ed.2d 775 (2003) ("We think the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge. Inferring consent in these circumstances thus checks the risk of gamesmanship by depriving parties of the luxury of waiting for the outcome before denying the magistrate judge's authority. Judicial efficiency is served; the Article III right is substantially honored.").

         PROCEDURAL HISTORY

         The case was originally filed in the Northern District of Ohio on September 23, 2016, where, upon Defendants' motion, it was dismissed on July 18, 2017, on the basis of the absence of personal jurisdiction. (Doc. 21, at 3; Doc. 22, at 7). On September 26, 2017, Plaintiff filed its Complaint with this Court, in which it stated separate breach of contract claims against Defendants Advanced Collision and Woodward. (Doc. 1). Summons were issued for Defendants on September 27, 2017, (Doc. 4), that were served on September 28, 2017, which made Defendants' responsive pleadings due on or before October 19, 2017, (Docs. 6-7). On October 19, 2017, Defendants filed their Motion to Dismiss and Supporting Brief, (Doc. 9), for which the Court entered a submission Order, (Doc. 14).[1] On November 8, 2017, Plaintiff filed its Amended Complaint as a matter of course pursuant to Rule 15, Federal Rules of Civil Procedure, (hereinafter "FRCP" followed by the Rule number), in which it stated separate breach of contract claims against Defendants Advanced Collision and Woodward. (Doc. 17). On December 4, 2017, Defendants filed their Renewed Motion to Dismiss and Supporting Brief, (Doc. 21), and Plaintiff filed its response on December 13, 2017, (Doc. 22).

         Counsel for Defendants, Ian Rosenthal, filed his Notice of Withdrawal of Counsel on February 28, 2018, (Doc. 23), which the Court granted, and on March 13, 2018, Thomas Galloway, Jr., filed his Notice of Appearance as counsel for Defendants, (Doc. 25).[2]

         SUMMARY OF FACTS

         Plaintiffs Amended Complaint contains two causes of action, a breach of contract claims against each of Defendants Woodward and Advanced. (Doc. 17). Plaintiff alleges it entered into a Supply Agreement with Advanced, pursuant to which Advanced agreed to purchase certain categories of products exclusively from Plaintiff until a date upon which those purchases equaled $350, 000. (Doc. 17, ¶ 6). In consideration for this agreement, Plaintiff agreed to provide discounts to Advanced in the amount often percent (10%) on those purchases and, also, to pay an advance in the amount of $65, 000 to Advanced. (Doc. 17, ¶ 7-9). Plaintiff alleges Woodard personally guaranteed the payment and performance of Advanced under the Supply Agreement by executing a written guaranty agreement. (Doc. 17, ¶ H)- Plaintiff alleges, after purchasing approximately $200, 000 worth of products, Advanced breached the agreement when it failed to continue to purchase the required quantity of products and, also, refused to repay the $65, 000 advance. (Doc. 17, ¶¶ 15-18 & 21). Plaintiff sued Advanced for breach of contract for its breach of the Supply Agreement and Woodard for breach of contract for his breach of the guaranty. (Doc. 17).

         STANDARD OF REVIEW

         "When considering a motion to dismiss, all facts set forth in the plaintiffs complaint 'are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'" Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993)). All "reasonable inferences" are drawn in favor of the plaintiff. St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). "Generally, 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Smedley v. City of Ozark, No. 1:15cv81-WKW-WC, 2015 U.S. Dist. LEXIS 123546, at *5 (M.D. Ala. Aug. 26, 2015) (quoting In, re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996)).

         These rules apply with particular force to motions to dismiss based on affirmative defenses such as a statute of limitations:

A statute of limitations bar is "an affirmative defense, and . . . plaintiffs [are] not required to negate an affirmative defense in [their] complaint." Tregenza v. Great [Am. Commc'ns] Co., 12 F.3d 717, 718 (7th Cir. 1993). Not surprisingly, our cases say that a Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is "apparent from the face of the complaint" that the claim is time-barred. See Omar [v. Lindsey], 334 F.3d [1246, ] 1251 [(11th Cir. 2003)]; Carmichael v. Nissan Motor Acceptance Corp., 291 F.3d 1278, 1279 (11th Cir. 2002). Accord In re [Se.] Banking Corp., 69 F.3d 1539, 1551 (11th Cir. 1995) ("For better or worse, the Federal Rules of Civil Procedure do not permit district courts to impose upon plaintiffs the burden to plead with the greatest specificity they can.").

La Grasta v. First Union Sec, Inc., 358 F.3d 840, 845-46 (11th Cir. 2004) (reversing dismissal and stating "on this record, it is not apparent on the face of the complaint that the securities fraud claim is time-barred") (emphasis added).

         ANALYSIS

         Subject ...


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