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Inc. v. Southeastern Visuals, LLC

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

September 5, 2017

XXX INT'L AMUSEMENTS, INC. Plaintiff,
v.
SOUTHEASTERN VISUALS, LLC, and SUN BELT VISUALS MANAGEMENT COMPANY, LLC, Defendants.

          OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS (DKT. 6)

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a breach of contract case, involving adult video “arcade booths, ” (perhaps more commonly known as “peep shows”) allegedly installed by Plaintiff into several of Defendants' adult books stores, located throughout the State of Georgia. Plaintiff alleges that Defendants failed to pay for the booths and related service work, thereby breaching several written contracts between the parties. Defendants filed a motion to dismiss (Dkt. 6), arguing: (1) that Plaintiff never installed the booths; (2) that Defendants do not own the adult book stores in question; and (3) that Plaintiff is not entitled to collect liquidated damages. Attached to Defendants' motion to dismiss is an affidavit of Ded Dedvukaj, who purports to be Defendants' sole member and manager. Mr. Dedvukaj's affidavit sets forth various facts in support of Defendants' three arguments listed above, and also claims that the person who signed the contracts in question on behalf of Defendants (James Olsafsky) did not have any authority to enter into those contracts.

         The Court has concluded that oral argument is not necessary to resolve the pending motion. Accordingly, Defendant's motion to dismiss will be decided solely on the basis of the parties' written submissions. See E.D. Mich. LR 7.1(f). For the reasons set forth below, Defendants' motion is DENIED.

         II. Standard of Review

         When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “Courts must construe the complaint in the light most favorable to plaintiff, accept all well-pled factual allegations as true, and determine whether the complaint states a plausible claim for relief.” Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). To survive a motion to dismiss, a complaint must plead specific factual allegations, and not just legal conclusions, in support of each claim. Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading only contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”

         As the Sixth Circuit stated, “[a] motion under rule 12(b)(6) is directed solely to a complaint itself....” Sims v. Mercy Hosp., 451 F.2d 171, 173 (6th Cir. 1971). Thus, “when deciding a motion to dismiss a court may consider only matters properly a part of the complaint or pleadings.” Armengau v. Cline, 7 Fed.Appx. 336, 343 (6th Cir. 2001). “Documents attached 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 the plaintiff's claim.” Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (adopting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).

         III. Analysis

         On this record, simply to recite the standard of review leads inevitably to the resolution of Defendants' motion to dismiss. Plaintiff alleges specific breach of contract claims against Defendants. Plaintiff attaches the contracts in question to its Complaint, and contends that Defendants breached by not paying what was due under those contracts (Dkt. 1, Exs. 1-9). That is enough to state a plausible breach of contract claim.[1] In an attempt to support their motion to dismiss, Defendants improperly rely on assertions of fact that fall outside of the allegations of the Complaint. For purposes of adjudicating a motion to dismiss, the facts alleged in the Complaint must be accepted as true. The factual disputes raised in Defendants' motion to dismiss are more properly addressed at the summary judgment stage of litigation, after the parties have had the opportunity to conduct sufficient discovery.

         Likewise, Plaintiff's unjust enrichment claim - pled in the alternative to its breach of contract claims - is not subject to dismissal at this juncture. Courts may imply a contract when a plaintiff can establish that no express contract concerning the subject matter exists and that the defendant has received a benefit from the plaintiff and retained it, resulting in an inequity. See Fodale v. Waste Mgmt. of Mich., Inc., 271 Mich.App. 11, 718 N.W.2d 827, 841 (Mich. 2006). Peabody v. DiMeglio, 306 Mich.App. 397, 856 N.W.2d 245, 251 (2014) (“[T]he law operates to imply a contract in order to prevent unjust enrichment, and ... this will not occur if there is already an express contract on the same subject matter”) (internal citation and quotation omitted). Federal Rule of Civil Procedure 8(a)(3) permits pleadings in the alternative “when, for instance, there is a dispute between the parties as to whether an express agreement exists.” Bowlers' Alley, Inc. v. Cincinnati Ins. Co., 32 F.Supp.3d 824, 833- 34 (E.D. Mich. 2014) (citing Cascade Elec. Co. v. Rice, 70 Mich.App. 420, 245 N.W.2d 774, 777 (1976)).[2]

         This case is in its infancy, but Defendants already seem to be implying that that no valid contracts exist between the parties (Defendants assert, for example, that Mr. Olsafsky had no authority to enter into the contracts in question). Though Plaintiff contends that the contracts are valid and constitute a binding agreement between the parties for the purpose of its breach of contract claims, taking this position does not preclude Plaintiff from pleading an unjust enrichment claim in the alternative. It would be premature to dismiss Plaintiff's unjust enrichment claim on the assumption that Defendants will not dispute the existence of the contract in subsequent stages of the proceedings. See Terry Barr Sales Agency, Inc. v. All-Lock Co., Inc., 96 F.3d 174, 182 (6th Cir. 1996) (allowing plaintiff to proceed under both breach of contract and unjust enrichment theories where defendant “kept its options open, and may deny the existence of a contract”).

         Finally, Plaintiff's Complaint also states a valid conversion claim against Defendants. The thrust of this claim is that Plaintiff owns the peep show booths, and that Defendants unlawfully kept, altered or destroyed them. “Conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation. Any distinct act of dominion wrongfully asserted over another's property in denial of his right, or inconsistent with it, is a conversion.” WESI, LLC v. Compass Envtl., Inc., 509 F.Supp.2d 1353, 1361 (N.D.Ga. 2007) (internal citation omitted); see also Foremost Ins. Co. v. Allstate Ins. Co., 439 Mich. 378, 391, 486 N.W.2d 600 (1992).

         IV. Conclusion

         For the foregoing reasons, Defendants' motion to dismiss (Dkt. 6) is DENIED. Defendants are hereby ordered to file an Answer to Plaintiff's Complaint with fourteen ...


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