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Trimark Foodcraft, LLC v. Selma Development, LLC

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

August 31, 2018

TRIMARK FOODCRAFT, LLC, Plaintiff,
v.
SELMA DEVELOPMENT, LLC, Defendant.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the Defendant's Motion to Dismiss. (Doc. 7). This motion has been referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b) and S.D. Ala. GenLR 72(b). In reaching its decision, the undersigned has considered the Notice of Removal (Doc. 1), the Motion to Dismiss (Doc. 7), the Plaintiff's Response (Doc. 16), the Defendant's Reply to Response (Doc. 17), and related exhibits. Upon consideration, and for the reasons stated herein, the undersigned RECOMMENDS that the Defendant's Motion to Dismiss (Doc. 7) be GRANTED. The undersigned further recommends that the Plaintiff be afforded the opportunity to file an amended complaint.

         I. Applicable Legal Standards

         In deciding a motion to dismiss under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted, ” the Court construes the complaint in the light most favorable to the plaintiff, “accepting all well-pleaded facts that are alleged therein to be true.” Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013) (citing Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir. 2006)). “ ‘To survive . . . a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”' ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). “The plausibility standard ‘calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' of the defendant's liability.” Id. (quoting Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but [rather] asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendants liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.' ” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 556 (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679, quoting in part Fed.R.Civ.P. 8(a)(2).

         Fed. R. Civ. P. 8(a)(2) generally sets the benchmark for determining whether a complaint's allegations are sufficient to survive a Rule 12(b)(6) motion. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (“Under [Rule] 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.' As the Court held in Twombly, . . . the pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.”).

         Indeed, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557); compare Speaker, 623 F.3d at 1381 (“[G]iven the pleading standards announced in Twombly and Iqbal, [plaintiff] must do more than recite statutory elements in conclusory fashion. Rather, his allegations must proffer enough factual content to ‘raise a right to relief above the speculative level.'” (emphasis added)), with Robinson v. Correctional Med. Assocs., Inc., Civil Action No. 1:09-cv-01509-JOF, 2010 WL 2499994, at *2 (N.D.Ga. June 15, 2010) (“Factual allegations in a complaint need not be detailed but ‘must be enough 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).'” (quoting Twombly, 550 U.S. At 555 (internal citations and emphasis omitted and added))).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. . . .
[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief.

Iqbal, 556 U.S. at 678-79 (internal citations and quotation marks omitted); compare id. at 680 (a plaintiff must nudge his claims “across the line from conceivable to plausible.”), with Patel v. Georgia Dep't BHDD, 485 Fed. App'x 982, 983 (11th Cir. Aug. 8, 2012) (per curiam) (“In order to survive a motion to dismiss, a plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face,' rather than merely conceivable.” (quoting Twombly, 550 U.S. at 570)). In addition to the pleading requirements of Rule 8, Fed.R.Civ.P. 10(b) further requires that “[i]f doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must be stated in a separate count.” Under Fed.R.Civ.P. 41(b), “a defendant may move to dismiss the action or any claim against it” where the “plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order.” Dismissal under Rule 41(b) is usually without prejudice. See, e.g., Boazman v. Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir. 1976).[1] “Dismissal of a lawsuit with prejudice under Rule 41(b) is a severe sanction that should only be used in extreme circumstances where lesser sanctions would not serve the best interests of justice.” Castro v. Dir., F.D.I.C., 449 Fed.Appx. 786, 788 (11th Cir. 2011).

         II. Background

         Plaintiff commenced action in the Circuit Court of Dallas County against the Defendant on April 27, 2018. The lawsuit arises from the Plaintiff's alleged sale of restaurant equipment and materials to a Bojangles restaurant franchise in Selma, Alabama. (Doc. 1-1). Plaintiff alleges that Defendant failed to pay for the equipment and materials provided. (Doc. 1-1). The complaint consists of five counts: (1) open account; (2) account stated; (3) breach of contract; (4) unjust enrichment; and (5) materialman's lie, alleging Plaintiff provided materials and supplies to Defendant from October 2, 2017 to October 30, 2017 which was used to construct, renovate and improve the real property located at 1996 Al Hwy. 14E, Selma, AL 36703 (“Bojangles”). (Doc. 1-1).

         Defendant was served on May 4, 2018 via certified mail. On June 1, 2018, Defendant filed Notice of Removal with this Court pursuant to 28 U.S.C. §1332, 1441, and 1446 based on complete diversity of citizenship between the parties and an amount in controversy exceeding $75, 000. Defendant represents that there was never a contract or agreement formed with Plaintiff. (Doc. 7). Defendant acknowledges that he owns the property on which the Bojangles is located, however he maintains he neither operates the franchise nor entered into an agreement with Plaintiff. (Doc. 7).

         III. Analysis

         “Fed. R. Civ. P. 8(a)(2) requires that a pleading contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' ” American Dental Association, 605 F.3d at 1288 (11th Cir. 2010), quoting Conley, 355 U.S. at 47 (1957). Additionally, a complaint must “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” ...


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