The Cadle Company II, Inc. v. Menchion et al

Filing 74

ORDER denying 34 Motion to Dismiss for Failure to State a Claim; denying 37 Motion to Dismiss ; denying 45 Motion to Dismiss for Failure to State a Claim; denying 46 Motion to Dismiss ; denying 62 Motion to Dismiss ; denying 13 Motion to Dismiss ; denying 17 Motion to Dismiss for Failure to State a Claim; denying 19 Motion to Stay. Signed by Judge Thomas W. Thrash, Jr on 10/6/2014. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
THE CADLE COMPANY II, INC.,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:14-CV-1418-TWT

KENNETH MENCHION, et al.,
Defendants.

OPINION AND ORDER

This is an action seeking to recover on a note. It is before the Court on the
Defendant Prime Asset Fund V, LLC’s Motion to Dismiss Cross-Claims of Defendant
The Best Service Co., Inc. [Doc. 13], the Defendant Prime Asset Fund V, LLC’s
Motion to Dismiss the First Amended Crossclaim of Defendant The Best Service Co.,
Inc. [Doc. 46], the Plaintiff’s Motion to Dismiss Counterclaim of Defendant The Best
Service Co., Inc. [Doc. 17], the Plaintiff’s Motion to Dismiss Amended Counterclaim
of Defendant The Best Service Co., Inc. [Doc. 45], Prime Asset Fund V, LLC’s
Motion to Stay Proceedings [Doc. 19], the Plaintiff’s Motion to Dismiss Counterclaim
of Defendants Kenneth Menchion and Padrica Menchion [Doc. 34], the Defendant
Prime Asset Fund V, LLC’s Motion to Dismiss Plaintiff’s Complaint for Lack of

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Personal Jurisdiction [Doc. 37], and Prime Asset Fund V, LLC’s Renewed Motion to
Dismiss Plaintiff’s [Amended] Complaint for Lack of Personal Jurisdiction [Doc. 62].
For the reasons stated below, all of the motions are DENIED.
I. Background
This case arises out of an effort to collect on a note. On May 10, 2006, Kenneth
and Padrica Menchion (“Menchion Defendants” or “the Menchions”) executed a
$200,000 note in favor of non-party American Home Mortgage.1 American Home
Mortgage assigned the note to Prime Asset Fund V, LLC (“Prime Asset”), via an
indorsement on the note.2
Prime Asset then did several things with the note. First, on August 17, 2011,
Prime Asset entered a written “Collection Agreement” with The Best Service Co., Inc.
(“Best Service”).3 Then, on November 15, 2011, it entered into an “Assignment for
Collection,” which assigned the note to Best Service for the purposes of collection.4

1

Pl.’s First Amended Compl. on Note, for Damages, and to Set Aside
Judgment ¶ 12.
2

Id. ¶ 14, Ex. C, p. 7.

3

Def. The Best Service Co., Inc.’s First Amended Crossclaim Against
Def. Prime Asset Fund V, LLC ¶ 2.
4

Pl.’s First Amended Compl. on Note, for Damages, and to Set Aside
Judgment ¶ 19; Def. The Best Service Co., Inc.’s First Amended Crossclaim Against
Def. Prime Asset Fund V, LLC ¶ 6.
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Prime Asset executed that assignment on November 29, 2012.5 Best Service never
took possession of the original note.6 On December 21, 2012, Prime Asset also
assigned the note to The Cadle Company II, Inc., by an Unsecured Loan Sale
Agreement.7
The Menchions are in default of their obligations under the note.8 On February
7, 2013, Best Service initiated a legal action in the State Court of Henry County,
Georgia, to collect the amount due.9 A default judgment was entered against the
Menchions on April 11, 2013.10 On April 16, 2013, the State Court entered a writ of
fieri facias against the Menchions in the amount of the judgment, $273,753.75.11
Subsequently, on June 26, 2013, the Menchions entered a settlement agreement with
5

Def. The Best Service Co., Inc.’s First Amended Crossclaim Against
Def. Prime Asset Fund V, LLC ¶ 6.
6

Pl.’s First Amended Compl. on Note, for Damages, and to Set Aside
Judgment ¶ 20.
7

Id. ¶ 15.

8

Id. ¶ 18.

9

Id. ¶ 21; Def. The Best Service Co., Inc.’s First Amended Crossclaim
Against Def. Prime Asset Fund V, LLC ¶ 10.
10

Pl.’s First Amended Compl. on Note, for Damages, and to Set Aside
Judgment ¶ 23; Def. The Best Service Co., Inc.’s First Amended Crossclaim Against
Def. Prime Asset Fund V, LLC ¶ 11.
11

Pl.’s First Amended Compl. on Note, for Damages, and to Set Aside
Judgment ¶¶ 23, 24.
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Best Service, under which they would pay $150,000 to Best Service, in full
satisfaction of the judgment.12 The Menchions paid Best Service the full $150,000.13
Best Service then cancelled the writ of fieri facias.14 Of the $150,000, Best Service
retained $60,000 and remitted the remaining $90,000 to Prime Asset, pursuant to their
collection agreement.15
The Plaintiff filed this action in the State Court of Henry County, Georgia, on
April 22, 2014.16 Best Service removed the action to this Court on May 9, 2014.17 The
Plaintiff asserts a claim against the Menchions to recover on the note itself.18 It also
claims that Best Service tortiously interfered with the Plaintiff’s contractual relations
by collecting on the note.19 Third, the Plaintiff claims that it is entitled to recover the
12

Def. The Best Service Co., Inc.’s First Amended Crossclaim Against Def.
Prime Asset Fund V, LLC ¶ 12.
13

Id. ¶ 13.

14

Id.; Pl.’s First Amended Compl. on Note, for Damages, and to Set Aside
Judgment ¶ 26.
15

Def. The Best Service Co., Inc.’s First Amended Crossclaim Against Def.
Prime Asset Fund V, LLC ¶ 14.
16

Notice of Removal ¶ 1.

17

Id. at 5.

18

Pl.’s First Amended Compl. on Note, for Damages, and to Set Aside
Judgment ¶¶ 33-34.
19

Id. ¶¶ 36-40.

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Menchions’ settlement money from Best Service and Prime Asset.20 The Plaintiff
fourth claims that Prime Asset breached the Unsecured Note Sale Agreement.21 It then
asserts claims for expenses of litigation and attorney’s fees against Prime Asset and
Best Service,22 as well as a claim for punitive damages against Best Service.23 Finally,
the Plaintiff requests that the State Court judgment be set aside.24
The Defendants have also asserted various counterclaims against the Plaintiff
and crossclaims against each other. Best Service asserts a counterclaim against the
Plaintiff for set off on a theory of unjust enrichment.25 It also asserts crossclaims
against Prime Asset for breach of contract, indemnification, and quantum meruit.26
The Menchion Defendants initially asserted counterclaims against the Plaintiff, but

20

Id. ¶¶ 42-44.

21

Id. ¶¶ 46-47.

22

Id. ¶¶ 49-50.

23

Id. ¶¶ 52-53.

24

Id. ¶¶ 55-56.

25

Def. The Best Service Co., Inc.’s First Amended Counterclaim Against

Pl. ¶ 15.
26

Def. The Best Service Co., Inc.’s First Amended Crossclaim Against Def.
Prime Asset Fund V, LLC ¶¶ 20, 32, 40.
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those have now been dismissed.27 They also assert various crossclaims against Prime
Asset and Best Service,28 which are not presently at issue.
II. Motion to Dismiss Standards
A.

Motion to Dismiss for Lack of Personal Jurisdiction

Regarding a motion to dismiss for lack of personal jurisdiction where no
evidentiary hearing is held, “the plaintiff bears the burden of establishing a prima facie
case of jurisdiction over the movant, nonresident defendant.”29 The plaintiff
establishes a prima facie case by presenting “enough evidence to withstand a motion
for directed verdict.”30 A party presents enough evidence to withstand a motion for
directed verdict by putting forth “substantial evidence . . . of such quality and weight
that reasonable and fair-minded persons in the exercise of impartial judgment might
reach different conclusions.”31 The facts presented in the plaintiff’s complaint are

27

Stipulation of Dismissal of Counterclaims of Defs. Kenneth Menchion
and Padrica Menchion, at 1.
28

See generally Defs. Kenneth and Padrica Menchion’s Answer, Aff.
Defenses, Crossclaims, Counterclaims, and Mot. to Set Aside Judgment.
29

Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988).

30

Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

31

Walker v. NationsBank of Fla., 53 F.3d 1548, 1555 (11th Cir. 1995).

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taken as true to the extent they are uncontroverted.32 If, however, the defendant
submits affidavits challenging the allegations in the complaint, the burden shifts back
to the plaintiff to produce evidence supporting jurisdiction.33 If the plaintiff’s
complaint and supporting evidence conflict with the defendant’s affidavits, the court
must construe all reasonable inferences in favor of the plaintiff.34
B.

Motion to Dismiss for Failure to State a Claim

A complaint should be dismissed under Rule 12(b)(6) only where it appears that
the facts alleged fail to state a “plausible” claim for relief.35 A complaint may survive
a motion to dismiss for failure to state a claim, however, even if it is “improbable” that
a plaintiff would be able to prove those facts; even if the possibility of recovery is
extremely “remote and unlikely.”36 In ruling on a motion to dismiss, the court must
accept the facts pleaded in the complaint as true and construe them in the light most

32

Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200, 1207 n.10 (N.D. Ga.

1995).
33

Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249,
1257 (11th Cir. 2010); Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir.
2002).
34

Madara, 916 F.2d at 1514.

35

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Fed. R. Civ. P. 12(b)(6).

36

Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).

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favorable to the plaintiff.37 Generally, notice pleading is all that is required for a valid
complaint.38 Under notice pleading, the plaintiff need only give the defendant fair
notice of the plaintiff’s claim and the grounds upon which it rests.39
III. Discussion
A.

Prime Asset’s Motion to Stay Proceedings

Prime Asset moves to stay these proceedings until a ruling on its motion to
dismiss Best Service’s counterclaims.40 Because this Court rules on the motion to
dismiss today, Prime Asset’s Motion to Stay is now denied as moot.

37

See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir.
1994) (noting that at the pleading stage, the plaintiff “receives the benefit of
imagination”).
38

See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.
1985), cert. denied, 474 U.S. 1082 (1986).
39

See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550

U.S. at 555).
40

Prime Asset Fund V, LLC’s Mot. to Stay Proceedings, at 1.

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B.

The Plaintiff’s Motion to Dismiss Menchion Defendants’
Counterclaims

The Plaintiff moves to dismiss the Menchion Defendants’ counterclaims for
failure to state a claim.41 On August 22, 2014, the Plaintiff and all the Defendants
stipulated that all counterclaims by the Menchion Defendants against the Plaintiff
were dismissed.42 The Plaintiff’s motion to dismiss those counterclaims is now
therefore moot.
C.

Prime Asset’s Motions to Dismiss for Lack of Personal Jurisdiction

Prime Asset moves to dismiss the Plaintiff’s Amended Complaint and Best
Service’s Amended Crossclaim for lack of personal jurisdiction.43 Assessing personal
jurisdiction is a two-step inquiry.44 First, the court must determine whether personal

41

Pl.’s Mot. to Dismiss Counterclaim of Defs. Kenneth Menchion and
Padrica Menchion, at 1.
42

Stipulation of Dismissal of Counterclaims of Defendants Kenneth
Menchion and Padrica Menchion, at 1-2.
43

Def. Prime Asset Fund V, LLC’s Mot. to Dismiss Pl.’s Compl. for Lack
of Personal Jurisdiction, at 1; Prime Asset Fund V, LLC’s Renewed Mot. to Dismiss
Pl.’s [Amended] Compl. for Lack of Personal Jurisdiction, at 1-2; Def. Prime Asset
Fund V, LLC’s Mot. to Dismiss the First Amended Cross-claim of Def. The Best
Service Co., Inc., at 1.
44

Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249,
1257-58 (11th Cir. 2010).
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jurisdiction exists under the state’s long-arm statute.45 Then, the court must determine
whether the defendant has sufficient minimum contacts with the forum state to satisfy
the Due Process Clause of the Fourteenth Amendment.46 Here, Prime Asset has
presented no affidavit or declaration evidence to contravert the allegations in the
complaint and the crossclaim, so this Court will take them as true.
1.

The Long-Arm Statute

Prime Asset is subject to personal jurisdiction under the Georgia long-arm
statute. Both the Plaintiff and Best Service allege that personal jurisdiction exists
under the first prong of Georgia’s long-arm statute.47 That prong provides jurisdiction
where the cause of action arises out of the defendant’s transaction of business in
Georgia.48

45

Id.

46

Id.; International Shoe Co. v. Washington, 326 U.S. 310 (1945).

47

Pl.’s First Amended Compl. on Note, for Damages, and to Set Aside
Judgment ¶ 8; Def. The Best Service Co., Inc.’s Resp. in Opp’n to Def. Prime Asset
Fund V, LLC’s Mot. to Dismiss First Amended Crossclaim, at 7. The Plaintiff also
alleges jurisdiction under the second and third prongs of the long-arm statute. Pl.’s
First Amended Compl. on Note, for Damages, and to Set Aside Judgment ¶ 8. Both
of those prongs, however, require some tortious action, and the Plaintiff has not
alleged a tort claim against Prime Asset. Regardless, because this Court finds that
Prime Asset transacted business in Georgia, long-arm jurisdiction is proper.
48

O.C.G.A. § 9-10-91(1).

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In considering whether a Georgia court may exercise jurisdiction over
a nonresident based on the transaction of business, we apply a three-part
test: Jurisdiction exists on the basis of transacting business in this state
if (1) the nonresident defendant has purposefully done some act or
consummated some transaction in this state, (2) if the cause of action
arises from or is connected with such act or transaction, and (3) if the
exercise of jurisdiction by the courts of this state does not offend
traditional fairness and substantial justice.49
The initial two prongs of the test serve to establish minimum contacts with the state
and the third allows the court to consider whether it is fair to exercise personal
jurisdiction over the defendant.50 There is no doubt, however, that the defendant must
have transacted some business in Georgia for the long-arm statute to apply.51 Physical
presence in Georgia is not required for jurisdiction under the “transacts any business”
prong of the long-arm statute – mail, telephone, and other intangible contacts may
suffice.52

49

Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 517-18 (2006).

50

Id.

51

Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249,
1259 (11th Cir. 2010).
52

Innovative Clinical & Consulting Servs. v. First Nat’l Bank of Ames,
Iowa, 279 Ga. 672, 676 (2005); First Nat’l Bank of Ames, Iowa v. Innovative Clinical
& Consulting Servs., LLC, 280 Ga. App. 337, 338 (2006) (citing Aero Toy Store, 279
Ga. App. at 515).
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Here, Prime Asset transacted some business in Georgia. It purchased a note
from American Home Mortgage.53 That note was executed within the state of
Georgia.54 Prime Asset also executed an Assignment for Collection with Best
Service.55 That assignment lists the Menchion Defendants’ Georgia address.56 Prime
Asset’s Operations Manager, Karen Cooksey, also prepared and signed an affidavit
related to collecting on the note.57 Prime Asset clearly expected to receive revenue
from the state of Georgia, and did in fact receive $90,000 under the collection
agreement.58
As the Georgia Supreme Court noted in Innovative Clinical, even mail or
telephone contacts can satisfy the “transacts any business” prong of the long-arm
statute.59 Here, Prime Asset transacted business in Georgia by making contracts,

53

Pl.’s First Amended Compl. on Note, For Damages, and to Set Aside
Judgment ¶ 14.
54

Id. at Ex. C, p. 7.

55

Id. at Ex. E.

56

Id.

57

Id. at Ex. F, p. 6.

58

Def. The Best Service Co., Inc.’s First Amended Crossclaim Against Def.
Prime Asset Fund V, LLC ¶ 14.
59

Innovative Clinical & Consulting Servs. v. First Nat’l Bank of Ames,
Iowa, 279 Ga. 672, 676 (2005).
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allowing a collection action to continue, and receiving substantial revenue from the
state. The Plaintiff’s suit arises out of Prime Asset’s actions regarding this note, as
does Best Service’s crossclaim, satisfying the second prong of the test from Aero Toy
Store.60 The long-arm statute applies to Prime Asset.
2.

Due Process

In terms of due process standards, the Court agrees with Prime Asset that there
is no general personal jurisdiction over Prime Asset in Georgia. General jurisdiction
may be exercised over a business entity when its contacts with the state “are so
‘continuous and systematic’ as to render [it] essentially at home in the forum State.”61
The Plaintiff admits that Prime Asset is a limited liability company organized under
the laws of Nevada, with its principal place of business in Florida.62 There is no
evidence whatsoever that Prime Asset has continuous and systematic contacts with
Georgia such that general jurisdiction would be appropriate.

60

Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 517-18 (2006)
“Jurisdiction exists on the basis of transacting business in this state if . . . (2) the cause
of action arises from or is connected with such act or transaction.”).
61

Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846,
2851 (2011).
62

Pl.’s Amended Compl. on Note, for Damages, and to Set Aside Judgment

¶ 5.
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Specific jurisdiction, however, is proper. Essentially, for specific jurisdiction
to exist, “the defendant must have ‘purposefully availed’ itself of the privilege of
conducting activities–that is, purposefully establishing contacts–in the forum state and
there must be a sufficient nexus between those contacts and the litigation.”63 A single
act can support jurisdiction if the defendant creates a substantial connection with the
forum state.64 Additionally, a contract alone does not establish the requisite minimum
contacts, but combined with its terms, contemplated future consequences, and the
parties’ course of dealing, it may establish that the defendant has sufficient minimum
contacts with the forum state.65 Here, Prime Asset clearly could have anticipated a
lawsuit being filed in Georgia because the Menchions’ Georgia address was on the
assignment for collection.66 It also received substantial revenue ($90,000) as a result
of that assignment contract and the resulting lawsuit.67 It cannot be said that where
Prime Asset initiated actions leading to a lawsuit in Georgia that it has not

63

Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249,
1267 (11th Cir. 2010).
64

Licciardello v. Lovelady, 544 F.3d 1280, 1285 (11th Cir. 2008).

65

Burger King v. Rudzewicz, 471 U.S. 462, 478 (1985).

66

Pl.’s First Amended Compl. on Note, For Damages, and to Set Aside
Judgment, Ex. E.
67

Def. The Best Service Co., Inc.’s First Amended Crossclaim Against Def.
Prime Asset Fund V, LLC ¶ 14.
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“purposefully availed” itself of the benefits of Georgia law. The forum selection and
choice of law provisions in the various contracts at issue do not change this result
because Prime Asset still created a connection with the state of Georgia.
Prime Asset urges this Court to find that fairness requires a different result. The
Supreme Court requires courts to consider five factors in determining whether
exercising jurisdiction would offend “traditional notions of fair play and substantial
justice.” Those factors are the burden on the defendant, the forum state’s interest in
resolving the dispute, the plaintiff’s interest in obtaining relief, the interstate judicial
system’s interest in efficiency, and the shared interest of the states in furthering
fundamental social policies.68
As to the first factor, Prime Asset concedes that it would be willing to travel to
New York to adjudicate this suit.69 Traveling to Georgia would not therefore impose
an undue burden on Prime Asset. Georgia has an interest in resolving this dispute
because it involves Georgia citizens – the Menchions. The plaintiff’s interest is in
favor of resolving the entire case together, which counsels in favor of Georgia courts
exercising jurisdiction. Similarly, it would be most efficient to resolve all claims,

68

Burger King, 471 U.S. at 477.

69

Def. Prime Asset Fund V, LLC’s Br. in Support of its Mot. to Dismiss
Pl.’s Compl. for Lack of Personal Jurisdiction, at 12.
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counterclaims, and crossclaims in one suit. Further, no fundamental social policies
counsel against this Court exercising jurisdiction here. Because personal jurisdiction
over Prime Asset is proper, its motion to dismiss the Plaintiff’s complaint, renewed
motion to dismiss the Plaintiff’s complaint, and its motion to dismiss Best Service’s
crossclaim must be denied.
D.

Prime Asset’s Motion to Dismiss Best Service’s Crossclaims

Because Prime Asset is subject to the jurisdiction of this Court, its 12(b)(6)
motion to dismiss Best Service’s crossclaims must be considered. Prime Asset moves
to dismiss the first two counts of the crossclaim, those for breach of contract and
indemnification.70 Best Service amended its crossclaims following Prime Asset’s
motion to dismiss, including the same two counts for breach of contract and
indemnification, as well as a third count for quantum meruit. Prime Asset then filed
a motion to dismiss the amended crossclaim for lack of personal jurisdiction, which
this Court has denied. Prime Asset has not moved to dismiss the quantum meruit claim
under Rule 12(b)(6).
Best Service has pleaded sufficient facts to state a claim for breach of contract.
In Georgia, a claim for breach of contract requires proof of the breach and the

70

Prime Asset Fund V, LLC’s Br. in Support of Mot. to Dismiss CrossClaims of Defendant The Best Service Co., Inc., at 2.
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resulting damages.71 Best Service attached the contract between it and Prime Asset to
its Amended Crossclaim.72 The contract required Prime Asset “not to compromise any
accounts assigned to [Best Service],”73 to leave the assigned loans with Best Service
for at least 120 days,74 and to allow the loans to remain with Best Service after any
legal action is initiated.75 The crossclaim alleges that Prime Asset breached these
provisions by assigning the Menchion Account to the Plaintiff.76 It further alleges
damages.77 Taking the factual allegations in the crossclaim as true, as the Court must
on a motion to dismiss, Best Service has stated a claim for breach of contract.
Best Service has also properly pleaded a claim for indemnification. The contract
between Best Service and Prime Asset requires Prime Asset to indemnify Best
Service.78 Prime Asset initially objected to the indemnification claim because Best
71

Budget Rent-a-Car of Atlanta, Inc. v. Webb, 220 Ga. App. 278, 279

(1996).
72

Def. The Best Service Co., Inc.’s First Amended Crossclaim Against Def.
Prime Asset Fund V, LLC, Ex. A.
73

Id. ¶ 3.

74

Id. ¶ 4.

75

Id. ¶ 5.

76

Id. ¶ 20.

77

Id. ¶¶ 22, 23.

78

Id. ¶ 32, Ex. A.

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Service failed to attach the contract to its crossclaim.79 The contract is attached to the
Amended Crossclaim. The crossclaim alleges sufficient facts to show that if Best
Service is liable to the Plaintiff, Prime Asset is required to indemnify Best Service.
Prime Asset’s motion to dismiss is therefore denied.
E.

The Plaintiff’s Motion to Dismiss Best Service’s Counterclaim

In its Answer, Best Service filed a counterclaim against the Plaintiff, alleging
that if Best Service is liable to the Plaintiff, Best Service is entitled to set off due to
unjust enrichment.80 The Plaintiff then moved to dismiss that counterclaim under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.81 Following the
Plaintiff’s motion to dismiss, Best Service amended its counterclaim.82 The

79

Def. Prime Asset Fund V, LLC’s Mot. to Dismiss Cross-claims of Def.
The Best Service Co., Inc., at 7.
80

Def. The Best Service Co., Inc.’s Answer, Aff. Defenses, Crossclaim &
Counterclaim, Counterclaim ¶ 7.
81

Pl.’s Mot. to Dismiss Counterclaim of Def. The Best Service Co., Inc.,

82

Def. The Best Service Co., Inc.’s First Amended Counterclaim Against

at 1.
Pl.
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amendment struck the initial counterclaim in its entirety.83 The Plaintiff now moves
to dismiss the Amended Counterclaim for failure to state a claim.84
As a threshold matter, because Best Service amended its counterclaim, the
Plaintiff’s initial motion to dismiss has been rendered moot. This Court will address
Best Service’s counterclaim as amended. Unjust enrichment is available when the
party seeking relief has conferred a benefit on another party and the benefitting party
equitably ought to return that benefit.85 In its Amended Counterclaim, Best Service
alleges that it undertook a collection action against the Menchions.86 It further alleges
that it expected to receive compensation for those collection services.87 Additionally,
it alleges that the Plaintiff knew about the collection action and took no steps to
interfere.88 Taking those allegations as true, as the Court must at the motion to dismiss
stage, Best Service has pleaded sufficient facts to state a claim for set off based on
unjust enrichment should the Plaintiff ultimately recover. Although the Plaintiff

83

Id. ¶ 1.

84

Pl.’s Mot. to Dismiss Amended Counterclaim of Def. The Best Service
Co., Inc., at 1.
85

St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1998).

86

Def. The Best Service Co., Inc.’s First Amended Counterclaim ¶ 9.

87

Id. ¶¶ 9, 10.

88

Id. ¶ 8.

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alleges that the amount of Best Service’s claim is not plausible,89 the reasonable value
of the services rendered is a disputed factual issue, which cannot be resolved based
on the pleadings alone. The Plaintiff’s Motion to Dismiss Best Service’s First
Amended Counterclaim is denied.
IV. Conclusion
For the reasons stated above, the Defendant Prime Asset Fund V, LLC’s Motion
to Dismiss Cross-Claims of Defendant The Best Service Co., Inc. [Doc. 13] is
DENIED, the Defendant Prime Asset Fund V, LLC’s Motion to Dismiss the First
Amended Crossclaim of Defendant The Best Service Co., Inc. [Doc. 46] is DENIED,
the Plaintiff’s Motion to Dismiss Counterclaim of Defendant The Best Service Co.,
Inc. [Doc. 17] is DENIED, the Plaintiff’s Motion to Dismiss Amended Counterclaim
of Defendant The Best Service Co., Inc. [Doc. 45] is DENIED, Prime Asset Fund V,
LLC’s Motion to Stay Proceedings [Doc. 19] is DENIED as moot, the Plaintiff’s
Motion to Dismiss Counterclaim of Defendants Kenneth Menchion and Padrica
Menchion [Doc. 34] is DENIED as moot, the Defendant Prime Asset Fund V, LLC’s
Motion to Dismiss Plaintiff’s Complaint for Lack of Personal Jurisdiction [Doc. 37]

89

Br. in Supp. of Pl.’s Mot. to Dismiss Amended Counterclaim of Def. The
Best Service Co., Inc., at 3.
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is DENIED, and Prime Asset Fund V, LLC’s Renewed Motion to Dismiss Plaintiff’s
[Amended] Complaint for Lack of Personal Jurisdiction [Doc. 62] is DENIED.
SO ORDERED, this 6 day of October, 2014.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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