Star Construction & Restoration, LLC v. Mountain Real Estate Capital, LLC a/k/a Mountain Asset Management et al
Filing
27
OPINION and ORDER Denying Defendant's 23 Motion to Dismiss. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
STAR CONSTRUCTION & RESTORATION, LLC,
Plaintiff,
v.
Case No. 16-cv-12413
Honorable Thomas L. Ludington
GRATIOT CENTER LLC, and MOUNTAIN
ASSET MANAGEMENT GROUP, LLC,
Defendants.
_______________________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS
Plaintiff Star Construction and Restoration, LLC, (“Star”) filed a Complaint on June 27,
2016, against Defendants Mountain Real Estate Capitol, LLC, (“MREC”) and Gratiot Center
LLC (“Gratiot”). ECF No. 1. The Complaint alleged that Star entered into a contract with
Defendants to restore a Kmart store located in Saginaw, Michigan, and further alleged that Star
had not been paid in full for its work. Although the Complaint named MREC as a Defendant, the
Complaint alleged that MREC was also known as Mountain Asset Management. Gratiot filed an
answer and affirmatives defenses on August 26, 2016. ECF Nos. 10, 11. On the same day,
MREC filed a motion to dismiss, ECF No. 12, which argued among other things that MREC was
not a party to any agreements made between Star and Gratiot. On September 16, 2016, Star filed
an Amended Complaint, ECF No. 14, which named Gratiot and Mountain Asset Management
Group, LLC, (“MAMG”) as Defendants, but which did not name MREC as a Defendant. On
September 20, 2016, the parties stipulated to the dismissal of MREC without prejudice. ECF No.
16.
Now, MAMG has filed a motion to dismiss, ECF No. 23, which alleges broadly that
Star’s claims should be dismissed because MAMG is not a party to any agreements that may
have existed with Star regarding the Kmart restoration project. For the reasons stated below,
MAMG’s motion to dismiss will be denied.
I.
As discussed in Section III, MAMG’s motion will be construed as a motion to dismiss,
not a motion for summary judgment. Accordingly, all well-pleaded facts in the Amended
Complaint will be assumed to be true. To the extent certain documents are referred to in Star’s
Amended Complaint and are central to the claims in this case, they will also be considered as
supplementary to the pleadings.
Star’s Amended Complaint names MAMG as Defendant, and identifies Mountain
Funding, LLC, as a subsidiary member of MAMG and MREC as a subsidiary member of
Mountain Funding. Am. Compl. at ¶2, ECF No. 14. Rather than directly identifying or attaching
the alleged contracts, Star simply asserts that “Star and Mountain entered into one or more
agreements” and that the “agreements were verbal and/or in writing” and “in the possession of
Mountain.” Id. at ¶¶8–9. The Amended Complaint alleges that Star was hired by MAMG to
perform restoration and repair work on a Kmart store located in Saginaw, Michigan. Id. at ¶7.
Star alleges that it periodically sent work proposals to J. Brett Anderson, who was an agent of
MAMG. Id. at ¶10. According to the Amended Complaint, Star performed the work agreed on
and received partial payment. Id. at ¶11. Although MAMG allegedly assured Star that it would
pay for all necessary repairs, Star asserts that it is still owed $636,139.27, excluding interest. The
-2-
Amended Complaint brings breach of contract, unjust enrichment,1 account stated, promissory
estoppel, and fraud/misrepresentation claims.
Star attached two exhibits to the Amended Complaint. The first is a “recap of final
billing” (Exhibit C in the original Complaint) which is addressed to J. Brett Anderson in his
capacity as MAMG’s Senior Director of Commercial Real Estate and which listed the remaining
amount due as of March 8, 2016. Final Billing Recap, ECF No. 1, Ex. A. Exhibit B is an
affidavit by James F. Pickens, President of Star Construction, confirming that MAMG still owes
Star $636,139.27. Pickens Aff., ECF No. 1, Ex. B.
II.
A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that
support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the nonmovant’s favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517
F.3d 433, 439 (6th Cir. 2008). The pleader need not provide “detailed factual allegations” to
survive dismissal, but the “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the
pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face” and “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678-79
(quotations and citation omitted).
1
This claim is brought against Defendant Gratiot only. Id. at ¶28.
-3-
Federal Rule of Civil Procedure 9(b) provides a heightened pleading standard for claims
of fraud. “In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind
may be alleged generally.” Id. As explained by the Sixth Circuit in Frank v. Dana Corp. 547
F.3d 564 (6th Cir. 2008), claims of fraud must meet the following requirements: “(1) specify the
statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where
and when the statements were made, and (4) explain why the statements were fraudulent.” Id. at
569 (citation omitted). At a minimum, a claimant must allege “the time, place and contents” of
the alleged fraud. Id.
III.
A.
The threshold question presented by the briefing is whether and to what extent the
various exhibits attached to the parties’ briefs can be considered. A court faced with a Rule
12(b)(6) motion must typically limit its consideration to the pleadings or convert it to a motion
for summary judgment under Federal Rule of Civil Procedure 12(d).
Tackett v. M & G
Polymers, USA, L.L.C., 561 F.3d 478, 487 (6th Cir. 2009). Conversion to a motion for summary
judgment, however, “‘should be exercised with great caution and attention to the parties’
procedural rights.’” Id. (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1366). A court has discretion regarding whether to convert a motion to dismiss
to a motion for summary judgment. Jones v. City of Cincinnati, 521 F.3d 555, 561–62 (6th Cir.
2008). Because of the risk of “prejudicial surprise,” the court must typically provide the other
party with notice and “an opportunity to supplement the record” before the court converts a
-4-
motion to dismiss and enters summary judgment. Armengau v. Cline, 7 F. App’x 336, 343 (6th
Cir. 2001).
However, a court may sometimes consider extrinsic evidence without converting the
motion to one for summary judgment. The Sixth Circuit has held that “documents that a
defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred
to in the plaintiff’s complaint and are central to her claim.” Weiner v. Klais and Co., Inc., 108
F.3d 86, 88 (6th Cir. 1997). Additionally, Federal Rule of Civil Procedure 10(c) provides, in part,
that “[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for
all purposes.” Of course, a plaintiff is not required to attach to the complaint the documents upon
which the action is based. Weiner, 108 F.3d at 89 (citing 5 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1327, at 762 (2d ed. 1990)). And although exhibits to
filings may not typically be considered when addressing motions to dismiss, a defendant may
introduce, and a court may consider “certain pertinent documents if the plaintiff fails to do so.”
Weiner, 108 F.3d at 89. “Otherwise, a plaintiff with a legally deficient claim could survive a
motion to dismiss simply by failing to attach a dispositive document upon which it relied.” Id.
See also Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993) (“We now hold that a court may consider an undisputedly authentic document that a
defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the
document.”).
In the motion to dismiss, MAMG argues that the Amended Complaint fails to state a
claim against MAMG because Star has not made sufficient allegations of fact that MAMG was a
signatory to a written contract. In support, MAMG argues that Star has not identified or attached
any written agreements signed by both parties and instead alleges that all written agreements are
-5-
in MAMG’s possession. MAMG has attached several exhibits to its motion to dismiss. As
Exhibit A, MAMG attaches Star’s Amended Complaint, including its exhibits. ECF No. 23, Ex.
A. As Exhibit B, MAMG attaches the original Complaint and its exhibits. ECF No. 23, Ex. B.2
Exhibit C provides a visual representation of the ownership and legal structure of both MAMG
and Gratiot. ECF No. 23, Ex. C. In its response to the motion to dismiss, Star attaches numerous
emails, proposals, and invoices between MAMG employees and Star. See ECF No. 25, Exs. A–
L.
In its response, Star argues that because MAMG attached the original Complaint and its
accompanying exhibits to the motion to dismiss, the motion should be converted into a motion
for summary judgment. That makes little sense. As already explained, a court need not convert a
motion to dismiss if it reviews only pleadings on its docket. Although the filing of an amended
complaint typically operates as a withdrawal of previous pleadings, the fact that MAMG
referenced outdated pleadings and exhibits is not an adequate reason to convert the motion to one
for summary judgment. The Court has discretion regarding whether the convert the motion and
chooses not to do so. Tackett, 561 F.3d at 487. Accordingly, only the pleadings and incorporated
documents will be considered in resolving the motion to dismiss. The Amended Complaint does
not clearly incorporate the original Complaint or the original Complaint’s exhibits. For that
reason, the original Complaint and exhibits will not be considered. See Levitch v. Columbia
Broad. Sys., Inc., 94 F.R.D. 292, 294 (S.D.N.Y. 1982) (refusing to construe a previous complaint
as incorporated in the amended complaint because any references to the prior complaint were
extremely vague). Likewise, none of the emails, proposals, or invoices that Star attaches to its
response will be considered.
2
MAMG asserts in the motion to dismiss that the proposal which Star included as Exhibit A in the original
Complaint was signed by Mr. Peterson only on behalf of Gratiot. Star does not appear to contest that representation,
but is alleging that additional documentation of agreements between MAMG and Star exists.
-6-
B.
MAMG now argues that Star has not adequately alleged that MAMG is a party to any
agreement with Star regarding the Kmart restoration and that Star has not adequately alleged an
accounted stated claim.3 Although the allegations in Star’s Amended Complaint are sparse, Star
has alleged sufficient facts to state a claim for relief.
In diversity cases like this one, federal courts “must apply the substantive law of the state
in which the court sits.” Mill's Pride, Inc. v. Cont'l Ins. Co., 300 F.3d 701, 704 (6th Cir. 2002).
Thus, this Court will apply Michigan’s substantive laws, including Michigan’s choice of law
rules. Id. The parties have not briefed the issue of whether Michigan’s choice of law rules would
result in another state’s substantive contract law applying. However, the alleged contract appears
to have been negotiated primarily in Michigan and involved construction services to be
performed in Michigan. The parties rely on Michigan law in their briefing and there appears to
be no reason to apply another state’s law. See id. at 704–05. Michigan contract law governs this
dispute.
1.
MAMG first argues that Star has not adequately alleged that a contract exists between
MAMG and Star. Although Star’s Amended Complaint alleges that the agreements between Star
and MAMG were both verbal and written, MAMG primarily argues that Star’s failure to produce
a written document evidencing a contract between the two parties necessitates dismissal.
To establish breach of contract, a plaintiff must prove “the elements of a contract and the
breach of it.” RSM Richter, Inc. v. Behr Am., Inc., 781 F. Supp. 2d 511, 517 (E.D. Mich. 2011).
3
MAMG additionally argues that it cannot be held liable under an ownership theory because Gratiot, not MAMG,
owns the property in question. MAMG also asserts that Star cannot advance a “piercing the veil” theory of liability
because MAMG is not a “member in the chain of membership/ownership of Gratiot Center.” Mot. Dismiss at 16.
ECF No. 23. In response, Star explains that it is not relying on an ownership or veil piercing theory. This opinion
and order will address only the contested issues between the parties.
-7-
“In Michigan, the essential elements of a valid contract are (1) parties competent to contract, (2)
a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and (5) mutuality
of obligation.” Thomas v. Leja, 187 Mich. App. 418, 422 (1991). Absent satisfaction of those
elements, mere discussions or negotiations are insufficient to create a contract. Id. Michigan law
provides that contracts can be written or oral. See Power Press Sales Co. v. MSI Battle Creek
Stamping, 238 Mich. App. 173, 176 (1999); McMath v. Ford Motor Co., 77 Mich. App. 721,
724, (1977) (“A contract, written or oral, may be orally modified.”).4
Star has alleged that Star and MMAG entered into agreements to perform work and that
the agreements may have been verbal or in writing. MMAG argues that contracts are generally
not binding on nonsignatories and that contracts entered into by one legal corporate entity should
not be imputed to another, citing several cases. See AFSCME Council 25 v. Wayne Cty., 292
Mich. App. 68, 80, 811 N.W.2d 4, 11 (2011) (explaining that contracts cannot bind a nonparty);
Eberspaecher N. Am., Inc. v. Van-Rob, Inc., No. 06-15752, 2007 WL 2332470, at *4 (E.D. Mich.
Aug. 15, 2007) (recognizing that a third party defendant was not a party to the contracts which
plaintiffs had submitted in support of their claim); Seasword v. Hilti, Inc., 449 Mich. 542, 547
(1995) (“It is a well-recognized principle that separate corporate entities will be respected.”).
MMAG also cites Midfield Concession Enterprises, Inc. v. Areas USA, Inc., for the proposition
that a non-controlling and non-signatory entity should not be named as a defendant under a
contract. No. 2:14-CV-12174, 2014 WL 4211013, at *3 (E.D. Mich. Aug. 26, 2014).
But none of those cases address the situation currently presented. Star alleges that Star
and MMAG entered into a verbal and/or written contract to perform work. At the motion to
dismiss stage, well-pleaded allegations must be accepted as true. Star is not alleging that MMAG
4
Although defenses to enforcement of oral contracts, like the statute of frauds, exist, MAMG has not argued that
those defenses are applicable here.
-8-
should be held liable despite being a nonparty to the underlying contracts. Rather, Star is alleging
that MMAG is liable because it is a party to the contracts. MMAG makes much of the fact that it
was not a party to the “proposal” which Star attached as Exhibit A to the original Complaint. But
Star is not now alleging that the “proposal” forms the basis for the contract between Star and
MMAG. Further, Star is not required to attach any existing contracts to the Complaint and need
not produce evidence of such contracts at the motion to dismiss stage. Weiner, 108 F.3d at 89
(citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1327, at 762
(2d ed. 1990)). More importantly, Star is alleging that verbal agreements between the parties
existed. Regardless of whether those verbal agreements turn out to be enforceable, the absence of
a written record of the agreements cannot form the basis for granting a motion to dismiss.
Thus, MMAG’s arguments confuse the immediate question before the Court. Star alleges
that MMAG is a party to a contract with Star. The Court must accordingly determine whether
those allegations are well-pleaded. As already discussed, legal conclusions and bare factual
allegations need not be accepted as true. Twombly, 550 U.S. at 555.
Star’s Amended Complaint adequately alleges a breach of contract. Star has adequately
alleged that each element of contract formation, listed above, is present. The Amended
Complaint identifies the parties who allegedly contracted, the subject matter of the work to be
performed, and the total amount due under the contract. The only element that MMAG appears
to argue is missing is mutuality of agreement. MMAG argues that Mr. Peterson was not acting as
an agent of MMAG and asserts that “it is not reasonable to accept at this stage that J. Brett
Peterson . . . was at any time acting on behalf of MMAG.” But at the motion to dismiss stage, the
court does not inquire into the “reasonableness” of otherwise well-pleaded allegations. Star
alleges that Mr. Peterson, acting as an agent of MMAG, corresponded with Star regarding the
-9-
alleged contracts. In further support, Star attaches a recap of final billing. Recap, ECF No. 14,
Ex. A. That document is addressed to Mr. Peterson in his capacity as Senior Director of
Commercial Real Estate for Mountain Asset Management. Id. These allegations and the exhibit
do not, of course, prove that Mr. Peterson was acting as MMAG’s agent and actually bound
MMAG to any contract. Perhaps discovery will reveal that Mr. Peterson’s actions and
communications were only undertaken on behalf of Gratiot. But the allegations, in combination
with the exhibit, go far beyond mere legal conclusions and labels in alleging that Mr. Peterson,
acting on behalf of MMAG, agreed to the contract.
MMAG does not appear to argue that Star has not adequately alleged that breach of the
contract occurred. Even if MMAG did contest that point, the affidavit attached to Star’s
Amended Complaint which indicates that Star is still owed money is sufficient to allege that a
breach has occurred. Because Star has adequately alleged that a contract between Star and
MMAG exists and that MMAG has breached that contract, Star has stated a claim for breach of
contract.
2.
Second, MMAG argues that Star has not adequately alleged an account stated claim. “An
account stated ‘is a contract based on assent to an agreed balance, and it is an evidentiary
admission by the parties of the facts asserted in the computation and of the promise by the debtor
to pay the amount due.’” Fisher Sand & Gravel Co. v. Neal A. Sweebe, Inc., 837 N.W.2d 244,
252 (Mich. 2013) (quoting 13 Corbin, Contracts (rev. ed.), § 72.4(2), p. 478). Both parties must
manifest consent to the correctness of statement of the account between them. Id. The
manifestation of consent can be express or implied (inferred from a party’ inaction). Id. at 557–
- 10 -
58. Further, “an action on an account stated is . . . an independent cause of action, separate and
distinct from the underlying transactions giving rise to the antecedent debt.” Id. at 559.
MMAG argues that an account stated claim cannot be brought where a written contract
exists. In support, MMAG cites several cases. See Thomasma v. Carpenter, 175 Mich. 428, 435,
141 N.W. 559, 561 (1913) (“[T]he rule of law that, where an account is rendered and no
objection taken, it is prima facie evidence of the correctness of such account, has no application
where the claim is the subject of a special contract.”); Seyburn, Kahn, Ginn, Bess, Deitch &
Serlin, P.C. v. Bakshi, 483 Mich. 345, 357 (2009) (“[T]he existence of a contract rules out the
existence of a mutual and open account.”); Fisher, 837 N.W.2d at 258–59. However, MMAG’s
argument confuses “account stated” claims with “open account” claims. Although Star brought
an “open account” claim in the original Complaint, the Amended Complaint contains only an
“account stated” claim. Thus, the sections of Seyburn and Fisher that MMAG cites are
discussing a different cause of action. Thomasma does offer some support for the argument that
an express contract precludes an account stated claim, but the Michigan Supreme Court’s
reasoning one-hundred years later in Fisher is contradictory. In Fisher, the Michigan Supreme
Court explained that an account stated claim is “an independent cause of action, separate and
distinct from the underlying transactions giving rise to the antecedent debt.” 837 N.W.2d at 254.
Thus, the existence of an underlying contract does not seem incompatible with an account stated
claim.5 Star’s Amended Complaint appears to allege that the parties entered into a contract for
5
Even if allegations of an express contract and an “account stated” claim were irreconcilable, Star is entitled to
plead in the alternative. See Fed. R. Civ. P. 8(a)(3). MMAG attempts to argue that Star cannot plead, alternatively,
both a breach of contract claim and an “account stated” claim. In support, MMAG cites Sivak v. United Parcel Serv.
Co., 28 F. Supp. 3d 701, 713–14 (E.D. Mich. 2014), where the district court dismissed an unjust enrichment claim
because the complaint relied solely on the existence of a contract. The Sivak Court relied on the fact that unjust
enrichment claims are incompatible with breach of contract claims in dismissing the unjust enrichment claim as
inadequately plead. But, as already explained, account stated claims are not necessarily similarly incompatible. Even
if they were, Solo v. United Parcel Serv. Co. supports approval of alternative pleading in this context. 819 F.3d 788,
796 (6th Cir. 2016). In Solo (a companion case to Sivak), the Sixth Circuit approved alternative pleading of breach
- 11 -
the work and then, later, the parties agreed on a statement of the amount owed. Even if there was
an express contract for the underlying job, Star has not alleged that there was an express contract
for the latter settlement of the claim.
MMAG also cites Kaunitz v. Wheeler, 344 Mich. 181, 185 (1955), in support of its
argument that Star has not shown enough to state a claim for an account stated. But in Kaunitz,
the court was reviewing an order on a motion for summary judgment. Here, Star need merely
allege facts giving rise to a claim for relief, not prove them. Star has alleged sufficient facts to
state a claim for an account stated. In the Amended Complaint, Star alleges that it sent MAMG a
“reconciliation of the amount owed” after completion. Am. Compl. at ¶30. Star further alleges
that MAMG never objected to that amount. Id. at ¶32. The recap of final billing which Star
attached to the Amended Complaint further supports those allegations. As already mentioned, it
is addressed to Mr. Peterson in his capacity as an agent of MAMG and lists the final amount
owed. Perhaps MAMG did not expressly or implicitly consent to that amount, but Star has
alleged that it did. At the motion to dismiss stage, that is sufficient.
Thus, all of MAMG’s arguments that Star’s Amended Complaint does not state a claim
for relief are unavailing. Star has adequately alleged that an oral or written contract with MAMG
existed. Star has also alleged, perhaps in the alternative, that MAMG assented to the amount
owed. Although Star is also bringing promissory estoppel and fraud/misrepresentation claims,
MAMG has not argued that Star has failed to state a claim regarding those theories. Star’s
Amended Complaint will not be dismissed.
C.
of contract and unjust enrichment claims reasoning that “it would be improper to prematurely conclude” that the
defendant would not dispute the existence of a contract. Here, MMAG is already disputing the existence of a
contract. Thus, Star’s alternative pleading is permissible.
- 12 -
Finally, MAMG requests that the Court sanction Star under Federal Rule of Civil
Procedure 41(d). According to that Rule, “[i]f a plaintiff who previously dismissed an action in
any court files an action based on or including the same claim against the same defendant,” the
court may order the plaintiff to pay the costs of the previous action. Id. MAMG asserts that
Star’s claims against MAMG are within the scope of the original Complaint, which named
MREC as a Defendant. MAMG argues that MAMG and MREC were alleged to be the same
entity in the original Complaint, meaning that the Amended Complaint’s claims against MAMG
are “the same claim, against the same defendant.” Mot. Dismiss at 22.
A cursory review of the docket shows that MAMG cannot reasonably believe that
sanctions are justified against Star. The original Complaint was filed on June 27, 2016. The
Amended Complaint was filed on September 16, 2016. In the Amended Complaint, Star
summarized the ownership/membership structure of MAMG, which MAMG does not argue was
incorrect. On September 20, 2016, several days after the Amended Complaint was filed, the
Court docketed a stipulated order which dismissed MREC. Clearly, Star realized that it had
named the wrong defendant after filing the original Complaint. Star subsequently filed an
Amended Complaint which named MAMG instead of one of MAMG’s subsidiaries. Afterwards,
the parties agreed to dismiss the subsidiary. In its motion to dismiss, MAMG repeatedly argues
that the “corporate form” must be respected. Now, MAMG argues that MAMG and MREC are
“the same defendant” even though each are separate legal entities. Star initially named the wrong
Defendant, realized its error, and then filed an Amended Complaint which named the proper
Defendant. That is not sanctionable behavior.
If anything, MAMG’s own actions raise questions about good faith compliance with
Federal Rule of Civil Procedure 11(b). In MAMG’s motion to dismiss, the company blurs the
- 13 -
lines between “open account” and “account stated” claims. MAMG’s briefing does not
distinguish these two distinct types of claims and in fact uses cases dealing with “open account”
claims to support legal arguments about “account stated” claims. As already stated, Star is not
bringing an “open account” claim. At best, MAMG’s briefing misrepresents the state of
Michigan law by failing to clearly identify these two legal theories as distinct claims for relief.
More importantly, in MAMG’s reply brief, the company cites Sivak v. United Parcel Serv. Co.,
28 F. Supp. 3d 701, 713 (E.D. Mich. 2014) for the proposition that Star should not be allowed to
alternatively plead breach of contract and account stated claims. MAMG fails to mention,
however, that a companion case to Sivak was appealed to the Sixth Circuit. In Solo v. United
Parcel Serv. Co., 819 F.3d 788, 796 (6th Cir. 2016), the Sixth Circuit held that alternative
pleading of an unjust enrichment claim was permissible even where a breach of contract claim
was brought, because the defendant might dispute the existence of the contract later in the
litigation. Because MAMG is currently disputing the existence of a contract, Solo is exactly on
point. But MAMG never cites to or mentions Solo, despite the fact that Sivak is clearly “redflagged” as precedent that has been abrogated and Westlaw directly links to the Solo opinion
from the Sivak opinion.
Neither party will be sanctioned with the expectation that further briefing will be an
exemplar of careful, accurate legal argument that neither distorts nor obscures the state of the
law.
- 14 -
IV.
Accordingly, it is ORDERED that Defendant Mountain Asset Management Group’s
Motion to Dismiss, ECF No. 23, is DENIED.
Dated: December 14, 2016
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on December 14, 2016.
s/Kelly Winslow for
MICHAEL A. SIAN, Case Manager
- 15 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?