KB Industries, Inc et al v. Mr. Appliance, LLC et al
Filing
71
MOTION by Defendants Mark Bruckbauer, Dwyer Franchising LLC, Mr. Appliance, LLC, ProTradeNet, LLC, The Dwyer Group, Inc, The Dwyer Group, LLC for judgment on Counts I and VII of Plaintiffs' Amended Complaint Pursuant to Rule 12(C) (Bundy, Kerry)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
KB INDUSTRIES, INC., an Illinois
Corporation, KIMBERLY GANDY, an
individual, and ROBERT HOSIER, an
individual
Plaintiffs,
Case No. 3:16-cv-50202
v.
MR. APPLIANCE, LLC, a Texas Limited
Liability Company, DWYER GROUP, INC., a
Delaware Corporation, DWYER
FRANCHISING LLC, a Delaware Limited
Liability Company, THE DWYER GROUP
LLC, a Delaware Limited Liability Company,
THE FINANCE STORE, INC., a Nevada
Corporation, PROTRADENET, LLC, a
Delaware Limited Liability Company, MARK
BRUCKBAUER, an individual, and Grey
Nguyen, an individual, and John Does,
Defendants.
TDG DEFENDANTS’ MOTION FOR JUDGMENT ON COUNTS I AND VII
OF PLAINTIFFS’ AMENDED COMPLAINT PURSUANT TO RULE 12(C)
Now come Defendants, Mr. Appliance LLC (“Mr. Appliance”), The Dwyer Group, Inc.
(“TDG,”improperly named as Dwyer Group, Inc.) (“TDG”), Dwyer Franchising LLC (“Dwyer
Franchising”), The Dwyer Group LLC (“Dwyer”), ProTradeNet LLC (“ProTradeNet”), and
Mark Bruckbauer (“Bruckbauer”) (collectively the “TDG Defendants”), by and through their
attorneys, Faegre Baker Daniels LLP, and move for judgment on Counts I and VII of Plaintiffs’
Amended Complaint pursuant to Rule 12(c). In support of this Motion, the TDG Defendants
state as follows:
US.113344735.01
1.
In 2014, Plaintiff Kimberly Gandy contracted with Mr. Appliance to license a Mr.
Appliance® Franchise.
2.
In their Amended Complaint, KB Industries, Inc., Kimberly Gandy, and Robert
Hosier (collectively “Plaintiffs”) allege that The Finance Store and Grey Nguyen (“The Finance
Store Defendants”) fraudulently secured financing for their Mr. Appliance franchise, causing
them to close their franchise and suffer certain economic losses. Because The Finance Store was
a “preferred vendor” of ProTradeNet, a network of vendors owned by TDG, Plaintiffs allege that
the TDG Defendants are also to blame for the closure of their Mr. Appliance Franchise.
3.
Pursuant to the franchise agreement that governs Plaintiffs’ relationship with the
TDG Defendants all state law claims are governed by Texas Law.
4.
In Counts I and VII of the Amended Complaint, Plaintiffs allege that the TDG
Defendants negligently recommended (or endorsed) that they explore the services of The
Finance Store Defendants. Plaintiffs seek economic damages for injuries they allegedly incurred
as a result of the TDG Defendants’ alleged negligence.
5.
Under Texas law (as under Illinois law), the economic loss rule bars parties to a
commercial transaction from recovering for economic losses based on a theory of negligence,
regardless of whether either party can sustain a claim for breach of contract.
6.
Further, though framed as negligent misrepresentation, Count I of Plaintiffs’
Amended Complaint alleges that the TDG Defendants negligently induced Plaintiffs to enter into
a franchise agreement with TDG. Negligent inducement, however, is not a recognized cause of
action under Texas law.
7.
of law.
US.113344735.01
Accordingly, Counts I and VII of Plaintiffs Amended Complaint fail as a matter
WHEREFORE, the TDG Defendants respectfully ask this Court to grant their
Rule 12(c) Motion for Judgment on Counts I and VII of Plaintiffs’ Amended Complaint, dismiss
Counts I and VII of Plaintiff’s Amended Complaint with prejudice, and grant such other relief as
the Court deems just and appropriate.
Dated: July 21, 2017
Respectfully submitted,
FAEGRE BAKER DANIELS LLP
/s/ Kerry L. Bundy
Colby A. Kingsbury (No. 6272842)
Kerry L. Bundy (No. 0266917)
Kate E. Middleton (No. 6306578)
FAEGRE BAKER DANIELS LLP
311 South Wacker Drive, Suite 4300
Chicago, IL 60606
Tel: (312) 212-6500
Fax: (312) 212-6501
Colby.Kingsbury@FaegreBD.com
Kerry.Bundy@FaegreBD.com
Kate.Middleton@FaegreBD.com
Attorneys for Defendants, Mr. Appliance LLC,
Dwyer Group, Inc., Dwyer Franchising LLC, The
Dwyer Group, LLC, ProTradeNet LLC and Mark
Bruckbauer
US.113344735.01
CERTIFICATE OF SERVICE
I, Kerry L Bundy, an attorney, hereby certify that on July 21, 2017, I caused a true copy
of TDG Defendants’ Motion to For Judgment on Counts I and VII of Plaintiffs’ Amended
Complaint Pursuant to Rule 12(c) to be filed electronically. Notice of this filing will be sent to
the following parties by operation of the Court's electronic filing system:
Sara E. Cook
Kristin Tauras
MCKENNA STORER
1004 Courtaulds Drive, Suite A
Woodstock, Illinois 60098
scook@mckenna-law.com
ktauras@mckenna-law.com
(815) 334-9690
Counsel for Plaintiffs
Law Office of Thomas E. Ladegaard
923 Bloomfield Ave.
San Marcos, CA 92078
(858)-699-2461
tel@ladegaardlaw.com
Joseph E. Mallon
JOHNSON & KROL, LLC
300 S. Wacker Drive, Suite 1313
Chicago, IL 60606
mallon@johnsonkrol.com
(312) 757-5462
Counsel for The Finance Store, Inc.
and Greg Nguyen
/s/ Kerry L. Bundy
US.113344735.01
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