ZAYO GROUP LLC v. COMSOUTH TELECOMMUNICATIONS INC

Filing 27

ORDER DENYING 12 Motion to Dismiss for Failure to State a Claim. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/25/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ZAYO GROUP LLC,

Plaintiff,
v.
COMSOUTH TELECOMMUNICATIONS
INC,
Defendant.

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CIVIL ACTION NO. 5:17-CV-83 (MTT)

ORDER
Plaintiff Zayo Group LLC filed a breach of contract claim against Defendant
ComSouth Telecommunications Inc. Doc. 1. In response, ComSouth filed a
counterclaim, which was later amended, alleging, among other claims, that Zayo
committed fraud in the inducement and fraud in the performance. Docs. 8; 18. Zayo
has now moved to dismiss those fraud claims. Docs. 12; 13. Accepting the allegations
in ComSouth’s amended counterclaim as true, it alleges sufficient factual matter to
“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted); Garfield v. NDC Health Corp.,
466 F.3d 1255, 1261 (11th Cir. 2006) (internal quotation marks and citation omitted)
(stating that, at the motion to dismiss stage, all of the plaintiff’s well-pleaded facts are
accepted as true). Because there are fact issues as to whether ComSouth timely
rescinded the contract and the effect of the merger clause in the parties’ initial
agreement, the Court cannot accept Zayo’s argument that ComSouth’s fraud claims fail
as a matter of law. Moreover, despite Zayo’s argument to the contrary, ComSouth

sufficiently alleges that Zayo misrepresented what was being provided under the
contract so as to support a fraud in the performance claim.1 Accordingly, Zayo’s Motion
to Dismiss (Doc. 12) is DENIED.

SO ORDERED, this the 25th day of Sep, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

1

In its Motion to Dismiss, Zayo alleged that ComSouth failed to allege intent and knowledge as to
ComSouth’s fraud in the inducement claim. Doc. 13 at 7. In its Reply to ComSouth’s Response, Zayo
concedes that Zayo alleges intent and knowledge as to the fraud in the inducement claim in its amended
counterclaim. Doc. 26 at 1. Thus, the Court does not address that argument.

2