United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis Mag. Judge.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS COUNTS II-XII 
E. LEVY United States District Judge.
case is currently before the Court on defendants' motion
to dismiss Counts II-XII of plaintiff's
complaint. (Dkt. 9.) On March 14, 2016, plaintiff
filed a complaint against defendants alleging two counts of
breach of contract, promissory estoppel, tortious
interference with business relations, four counts of civil
RICO violations, and a Lanham Act violation. (Dkt. 1.) On
April 21, 2016, defendants filed a motion to dismiss all
counts except Count I, a breach of contract claim. (Dkt. 9.)
For the reasons set forth below, the Court grants
defendants' motion to dismiss Counts II-XII.
is a commercial entity organized under the laws of the Cayman
Islands, and owned by Angolan residents Joao M. Varvalho,
Joao Carlos Varvalho, and Sandra Maria Goncalves. (Dkt. 1 at
1.) It has sold Chrysler, Dodge, and Jeep motor vehicles and
parts in the Republic of Angola since 1988. (Id. at
4.) In 2006, plaintiff entered into a distributorship
agreement (Agreement) with Chrysler International Corp. to
sell these products in the Republic of Angola. After Chrysler
emerged from bankruptcy, defendant FCA U.S. LLC (FCA US)
assumed the agreement, and then assigned it to defendant FCA
International Operations LLC (FCA International).
(Id. at 4-5.) The parties operated under this
Agreement for seven years. (Id. at 5.)
alleges that the breakdown of its business relationship with
defendants occurred when defendants began bribing Angolan
government and military officials to obtain an improper
advantage in the Angolan auto market. (Id. at
17-18.) Specifically, in 2010, defendants allegedly began
working with Grupo Auto-Star S.A. (Auto- Star), an Angolan
auto distributor owned by Persons A, B, and C, and other
members of the Angolan government and military. (Id.
at 10.) Persons A, B, and C are allegedly high-ranking
members of the Angolan government, and plaintiff alleges it
would be unsafe to reveal their identities. (Id. at
10 n.3.) By 2011, defendants were shipping Chrysler products
to Auto-Star even though Auto-Star was not an authorized
distributor of these products. (Id. at 18-19.)
February 2011, Auto-Star allegedly approached plaintiff about
acquiring an ownership interest in plaintiff. (Id.
at 13.) Plaintiff refused the offer, purportedly because
Article 13.6 of the Agreement prohibited plaintiff from being
owned, in whole or in part, by a foreign government.
(Id. at 14.) Two years later, in 2013, plaintiff
notified defendant FCA International that Auto-Star was
purchasing and selling Chrysler products in the Republic of
Angola without authorization. (Id. at 15.) FCA
International denied knowledge of these alleged sales, yet,
on July 30, 2013, sent plaintiff a notice to terminate the
Agreement, effective August 31, 2014. (Id. at
the Agreement was terminated, plaintiff lost its right to
sell Chrysler, Dodge, and Jeep products in the Republic of
Angola. Plaintiff filed this complaint, alleging that
defendant FCA International's behavior breached two
provisions of the Agreement; tortiously interfered with its
business relations; should be held liable under the doctrine
of promissory estoppel; and constitutes an act of unfair
competition under section 1126 of the Lanham Act. Plaintiff
also claims that the acts of both defendants constitute a
pattern of racketeering in violation of the RICO statute, 18
U.S.C. §§ 1962(a)-(d).
deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
court must “construe the complaint in the light most
favorable to the plaintiff and accept all allegations as
true.” Keys v. Humana, Inc., 684 F.3d 605, 608
(6th Cir. 2012). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A plausible claim need not contain “detailed
factual allegations, ” but it must contain more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). “A well pleaded complaint may proceed even if
it appears that a recovery is very remote and
unlikely.” Id. at 556 (internal quotation
marks omitted). But, a plaintiff must plead facts sufficient
to “allow the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 369 (6th Cir. 2011).
reasons set forth below, the Court will grant defendants'
motion to dismiss Counts II-XII.
has alleged that defendant FCA International violated the
implied covenant of good faith and fair dealing, and thereby
breached Article 13.6 of the Distributorship Agreement, which
requires plaintiff to comply with, inter alia, the
Foreign Corrupt Practices Act (FCPA). (Dkt. 1-1 at 21.)
Specifically, plaintiff claims that FCA International not
only failed to comply with or make efforts to comply with the
FCPA, but also that FCA International violated this statute
by conspiring with Auto-Star to bribe Angolan officials.
Michigan law, a breach of the implied covenant of good faith
and fair dealing may be invoked as a breach of contract claim
when one party “makes its performance a matter of its
own discretion.” Stephenson v. Allstate Ins.
Co., 328 F.3d 822, 826 (6th Cir. 2003).
“Discretion arises when the parties have agreed to
defer decision on a particular term of the contract, ”
id., or “omits terms or provides ambiguous
terms.” Wedding Belles v. SBC Ameritech Corp.,
Inc., Case No. 250103, 2005 WL 292270, at *1 (Mich. App.
Feb. 8, 2005). “Whether a performance is a matter of a
party's discretion depends on the nature of the
agreement.” ParaData Comp. Networks, Inc. v.
Telebit Corp., 830 F.Supp. 1001, 1005 (E.D. Mich. 1993).
A party may not invoke the implied covenant of good faith and
fair dealing to override express contract terms.”
Stephenson, 328 F.3d at 826; Gen. Aviation v.
Cessna Aircraft Co., 915 F.2d 1038, 1041 (6th Cir.
has failed to state a claim for breach of contract for
several reasons. First, the text of Article 13.6 is primarily
directed at plaintiff's obligations, not defendant, and
speaks in mandatory, rather than discretionary, terms. At
most, plaintiff may have an argument that Article 13.6(1) is
subject to the implied covenant of good faith and fair
dealing because it refers to “Chrysler or any
DaimlerChrysler Group Company's efforts to comply”
with the FCPA. (Dkt. 1-1 at 21- 22.) Under a generous reading
of the provision, the “efforts to comply”
language may suggest that FCA International's performance
was within its discretion and therefore that the implied
covenant of good faith and fair dealing applies. See
ParaData Comp. Networks, Inc., 830 F.Supp. at 1006
(holding that “duty of best efforts” is an
example of discretionary language that would permit a party
to invoke the implied covenant of good faith and fair
plaintiff has failed to sufficiently plead that FCA
International breached any part of Article 13.6 by violating
the FCPA by engaging in bribery. Plaintiff has pled only
“upon information and belief” that defendants
were involved in bribery, and has not provided any of the
necessary information or context for its belief other than
reference to public media reports and investigations into the
auto industry for corruption in countries other than the
Republic of Angola. Generalizations and evidence of
corruption in other instances cannot serve to sufficiently
allege that FCA International is liable in this specific
case. See Leapers, Inc. v. First Quality Distrib.,
Inc., Case No. 11-15058, 2012 WL 1714938, at *9 (E.D.
Mich. May 15, 2012) (stating that even where courts have
permitted parties to plead “upon information and
belief, ” the ...