United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) GRANTING IICC'S MOTION
FOR LEAVE TO FILE SECOND AMENDED COMPLAINT (DKT. 58) AND (2)
GRANTING KOMATSU'S MOTION TO DISMISS
THIRD-PARTY COMPLAINT (DKT. 62)
A. GOLDSMITH U.S. DISTRICT COURT JUDGE.
matter is before the Court on Plaintiff International
Industrial Contracting Corporation's (“IICC”)
motion for leave to file second amended complaint (Dkt. 58)
and Third-Party Defendants Komatsu America Industries LLC and
Komatsu Industries Corporation's (“Komatsu”)
motion to dismiss the third-party complaint filed by Sofir
Italia s.r.l (“Sofir”), Alvaro Fregolent, and
Marco Vergani (Dkt. 62). Because oral argument will not aid
the decisional process, the motions will be decided based on
the parties' briefing. See E.D. Mich. LR
7.1(f)(2); Fed.R.Civ.P. 78(b). For the reasons that follow,
both motions are granted.
factual background of this case was laid out in the
Court's opinion on Sofir's motion to dismiss. See
Int'l Indus. Contracting Corp. v. Sofir Italia
s.r.l., No. 16-13168, 2017 WL 3499899 at *1-*2 (E.D.
Mich. Aug. 16, 2017). In summary, Komatsu was seeking an
American contractor to install its presses in two Chrysler
Group LLC plants located in Michigan. Id. at *1.
Komatsu contacted IICC and issued an invitation to quote the
project; included with the invitation was a “table that
indicated the types and quantities of cables that would have
to be pulled and connected in connection with the
installation . . . .” Id. After IICC submitted
a quote to Komatsu, Sofir contacted IICC and communicated
that Sofir was the supplier of the presses for the project;
Sofir also sent IICC a Request for Quotation
(“RFQ”) for installation services. Id.
Based on information provided by Komatsu and Sofir's RFQ,
IICC submitted a quote in June 2014, first to Komatsu and
then to Sofir after it was instructed to do so. Id.
IICC submitted several revised quotes to Sofir through August
October 10, 2014, IICC and Sofir entered into a contract for
the installation of the Komatsu presses “in accordance
to the Technical Specification.” Id. at *2. As
the installation process began, IICC discovered that it
actually had to pull and connect more than double the number
of cables than it had initially believed. Id. IICC
determined the number of cables and connections required and
informed Sofir. Id. Sofir approved a number of the
changes, but has refused to pay for the installation of
additional cables. Id.
filed suit, and Sofir, Fregolent, and Vergani filed a motion
to dismiss for failure to state a claim. The Court dismissed
IICC's fraud and statutory-conversion claims, but
afforded IICC the opportunity to file a motion for leave to
file an amended complaint. See id. at *12. IICC took
advantage of this opportunity and filed a motion for leave to
file an amended complaint. See Pl. Mot. for Leave
(Dkt. 33). Sofir, Fregolent, and Vergani opposed the motion,
see Def. Resp. to Mot. for Leave (Dkt. 38), and the
Court ultimately afforded IICC another opportunity,
see 11/8/2017 Order (Dkt. 50).
filed a motion for leave to file a second amended complaint.
See Pl. Mot. for Leave (Dkt. 58). The proposed
complaint would amend IICC's statutory conversion claim
and substitute the dismissed fraud claims with claims for
rescission due to unilateral or material mistake.
See Pl. Br. to Mot. for Leave (Dkt. 59). Sofir filed
a response (Dkt. 63) arguing that the amendment would be
futile, and IICC filed a reply (Dkt. 65).
after the Court's opinion on the motion to dismiss,
Sofir, Fregolent, and Vergani filed their answer, which also
included a third-party complaint against Komatsu.
See Third-Party Compl. (Dkt. 34). The complaint
brings claims for indemnification and negligence.
Id. In lieu of filing an answer, Komatsu brought a
motion to dismiss the third-party complaint for failure to
state a claim. See Komatsu Mot. (Dkt. 62). Sofir
filed a response (Dkt. 67), and Komatsu filed a reply (Dkt.
STANDARD OF REVIEW
motion to dismiss pursuant to Rule 12(b)(6), “[t]he
defendant has the burden of showing that the plaintiff has
failed to state a claim for relief.” Directv, Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The motion
“should not be granted 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.”
Id. The Court must assume that all alleged facts are
true, even when their truth is doubtful, and must make all
reasonable inferences in favor in of the plaintiff. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). A
complaint will be dismissed if it does not state a
“plausible claim for relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
Rule of Civil Procedure 15(a)(2) governs amendments to
complaints by leave, and provides that the “court
should freely give leave when justice so requires.” The
Supreme Court has explained that a plaintiff should be
granted leave to amend “[i]n the absence of any
apparent or declared reason-such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962). “A proposed
amendment is futile if the amendment could not withstand a
Rule 12(b)(6) motion to dismiss.” Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir.
IICC's Motion for Leave to File Second Amended
seeks to file a second amended complaint, amending its
initial conversion count and adding claims for reformation
due to unilateral or mutual mistake in place of its previous
fraud claims. Sofir contends that the amendment would be
futile, arguing: (i) that IICC has not alleged a cognizable
claim for reformation based on mutual mistake, because (a) it
has not been pleaded adequately, (b) IICC assumed the risk by
contracting on the basis of information it knew to be
incomplete, and (c) IICC cannot rely on the Komatsu documents
to show mutual mistake; (ii) IICC has not alleged a
cognizable claim for reformation based on unilateral mistake
because it has ...