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Star Construction & Restoration, LLC v. Gratiot Center LLC

United States District Court, E.D. Michigan, Northern Division

December 14, 2016




         Plaintiff Star Construction and Restoration, LLC, (“Star”) filed a Complaint on June 27, 2016, against Defendants Mountain Real Estate Capitol, LLC, (“MREC”) and Gratiot Center LLC (“Gratiot”). ECF No. 1. The Complaint alleged that Star entered into a contract with Defendants to restore a Kmart store located in Saginaw, Michigan, and further alleged that Star had not been paid in full for its work. Although the Complaint named MREC as a Defendant, the Complaint alleged that MREC was also known as Mountain Asset Management. Gratiot filed an answer and affirmatives defenses on August 26, 2016. ECF Nos. 10, 11. On the same day, MREC filed a motion to dismiss, ECF No. 12, which argued among other things that MREC was not a party to any agreements made between Star and Gratiot. On September 16, 2016, Star filed an Amended Complaint, ECF No. 14, which named Gratiot and Mountain Asset Management Group, LLC, (“MAMG”) as Defendants, but which did not name MREC as a Defendant. On September 20, 2016, the parties stipulated to the dismissal of MREC without prejudice. ECF No. 16.

         Now, MAMG has filed a motion to dismiss, ECF No. 23, which alleges broadly that Star's claims should be dismissed because MAMG is not a party to any agreements that may have existed with Star regarding the Kmart restoration project. For the reasons stated below, MAMG's motion to dismiss will be denied.


         As discussed in Section III, MAMG's motion will be construed as a motion to dismiss, not a motion for summary judgment. Accordingly, all well-pleaded facts in the Amended Complaint will be assumed to be true. To the extent certain documents are referred to in Star's Amended Complaint and are central to the claims in this case, they will also be considered as supplementary to the pleadings.

         Star's Amended Complaint names MAMG as Defendant, and identifies Mountain Funding, LLC, as a subsidiary member of MAMG and MREC as a subsidiary member of Mountain Funding. Am. Compl. at ¶2, ECF No. 14. Rather than directly identifying or attaching the alleged contracts, Star simply asserts that “Star and Mountain entered into one or more agreements” and that the “agreements were verbal and/or in writing” and “in the possession of Mountain.” Id. at ¶¶8-9. The Amended Complaint alleges that Star was hired by MAMG to perform restoration and repair work on a Kmart store located in Saginaw, Michigan. Id. at ¶7. Star alleges that it periodically sent work proposals to J. Brett Anderson, who was an agent of MAMG. Id. at ¶10. According to the Amended Complaint, Star performed the work agreed on and received partial payment. Id. at ¶11. Although MAMG allegedly assured Star that it would pay for all necessary repairs, Star asserts that it is still owed $636, 139.27, excluding interest. The Amended Complaint brings breach of contract, unjust enrichment, [1] account stated, promissory estoppel, and fraud/misrepresentation claims.

         Star attached two exhibits to the Amended Complaint. The first is a “recap of final billing” (Exhibit C in the original Complaint) which is addressed to J. Brett Anderson in his capacity as MAMG's Senior Director of Commercial Real Estate and which listed the remaining amount due as of March 8, 2016. Final Billing Recap, ECF No. 1, Ex. A. Exhibit B is an affidavit by James F. Pickens, President of Star Construction, confirming that MAMG still owes Star $636, 139.27. Pickens Aff., ECF No. 1, Ex. B.


         A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not provide “detailed factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” and “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678-79 (quotations and citation omitted).

         Federal Rule of Civil Procedure 9(b) provides a heightened pleading standard for claims of fraud. “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Id. As explained by the Sixth Circuit in Frank v. Dana Corp. 547 F.3d 564 (6th Cir. 2008), claims of fraud must meet the following requirements: “(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.” Id. at 569 (citation omitted). At a minimum, a claimant must allege “the time, place and contents” of the alleged fraud. Id.



         The threshold question presented by the briefing is whether and to what extent the various exhibits attached to the parties' briefs can be considered. A court faced with a Rule 12(b)(6) motion must typically limit its consideration to the pleadings or convert it to a motion for summary judgment under Federal Rule of Civil Procedure 12(d). Tackett v. M & G Polymers, USA, L.L.C., 561 F.3d 478, 487 (6th Cir. 2009). Conversion to a motion for summary judgment, however, “‘should be exercised with great caution and attention to the parties' procedural rights.'” Id. (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366). A court has discretion regarding whether to convert a motion to dismiss to a motion for summary judgment. Jones v. City of Cincinnati, 521 F.3d 555, 561-62 (6th Cir. 2008). Because of the risk of “prejudicial surprise, ” the court must typically provide the other party with notice and “an opportunity to supplement the record” before the court converts a motion to dismiss and enters summary judgment. Armengau v. Cline, 7 F. App'x 336, 343 (6th Cir. 2001).

         However, a court may sometimes consider extrinsic evidence without converting the motion to one for summary judgment. The Sixth Circuit has held that “documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.” Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997). Additionally, Federal Rule of Civil Procedure 10(c) provides, in part, that “[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.” Of course, a plaintiff is not required to attach to the complaint the documents upon which the action is based. Weiner, 108 F.3d at 89 (citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1327, at 762 (2d ed. 1990)). And although exhibits to filings may not typically be considered when addressing motions to dismiss, a defendant may introduce, and a court may consider “certain pertinent documents if the plaintiff fails to do so.” Weiner, 108 F.3d at 89. “Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document upon which it ...

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