B&P Company v. TLK Fusion Entertainment, LLC
3:11-cv-00276
S.D. OhioFeb 26, 2013Background
- B&P moves to dismiss Counts III and IV of Jenner Defendants’ Amended Counterclaim under Rule 12(b)(6).
- Count III alleges fraudulent misrepresentation; Count IV alleges negligent misrepresentation.
- Alleged misrepresentations occurred during discussions leading to the February 2011 contract with TLK; Jenner Defendants were not involved in negotiations.
- Court applies Twombly/Iqbal pleading standard and Rule 9(b) heightened pleading standard for fraud.
- Jenner Defendants seek leave to file a Second Amended Counterclaim if deficiencies are found; deadline to amend pleadings had passed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counts III and IV meet Rule 9(b) and Rule 12(b)(6) standards | Jenner fails to plead time/place/content of misrepresentations. | Amended Counterclaim provides misrepresentation details and notice. | Counts III and IV fail; dismissal granted. |
| Whether negligent misrepresentation is barred by contract | Textron rule allows tort claim parallel to contract if independent duty exists. | No independent duty or damages beyond contract; tort claim premised on contract. | Count IV dismissed as duplicative of contract claim. |
| Whether Jenner Defendants are properly alleged to have been the source and timing of misrepresentations | Amended Counterclaim does not identify who spoke or when. | TLK and others were agents; misrepresentations related to negotiations. | Dismissal upheld; lack of specificity undermines Rule 9(b). |
| Whether leave to amend should be granted | Requests for leave to file a Second Amended Counterclaim if needed. | Deadline passed; no good cause shown; amendment would be futile. | Alternative motion to amend denied; leave to amend denied. |
Key Cases Cited
- Mayer v. Mylod, 988 F.2d 635 (6th Cir. 1993) (Rule 12(b)(6) testing when pleadings fail to state relief)
- Nishiyama v. Dickson County, 814 F.2d 277 (6th Cir. 1987) (liberal pleading standards referenced)
- Twombly, 550 U.S. 544 (Supreme Court 2007) (pleading must show plausible claim for relief)
- Iqbal, 556 U.S. 662 (Supreme Court 2009) (concludes that legal conclusions from mere recitals are insufficient)
- Sanderson v. HCA-The Healthcare Co., 447 F.3d 873 (6th Cir. 2006) (pleading requires who, what, when, where, and how of fraud)
- Cataldo v. U.S. Steel Corp., 676 F.3d 542 (6th Cir. 2012) (Rule 9(b) specifics for fraud pleading)
- Heinrich v. Waiting Angels Adoption Services, Inc., 668 F.3d 393 (6th Cir. 2012) (Rule 9(b) heightened pleading standard applied to fraud claims)
- Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137 (Ohio App. 9th Dist. 1996) (contract-based tort claims require independent duty; Textron applicable)