Great American Sports Complexes, LLC v. Fifth Third Bank
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
GREAT AMERICAN SPORTS
CASE NO. 1:11-cv-719
HON. ROBERT HOLMES BELL
FIFTH THIRD BANK,
This matter is before the Court on Defendant’s motion to dismiss Plaintiff’s first
amended complaint. (Dkt. No. 23.) For the reasons that follow, Defendant’s motion will
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of a
complaint. To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “sufficient
factual matter” to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
In reviewing the motion, the Court must “construe the complaint in the light most favorable
to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of
the plaintiff.” Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 992 (6th Cir. 2009) (quoting
Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)). However, “that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of all the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Plaintiff argues that Defendant’s motion to dismiss is inappropriate because Defendant
does not deny the factual allegations raised in the amended complaint. (Dkt. No. 26 at 1.)
However, when considering a motion to dismiss, the Court must accept as true all of
Plaintiff’s factual allegations. To survive the motion, Plaintiff must allege facts sufficient
to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1950.
Plaintiff maintains that it entered into an enforceable contract with Defendant, and that
Defendant breached this contract by failing to provide $40 million in funding. However, this
is a legal conclusion which need not be accorded deference, and the Court finds that
Plaintiff’s breach of contract claim (Count I) fails to state a claim for which relief may be
Plaintiff references a letter of intent (Dkt. No. 1, Ex. 1) as the basis of an express
contract to provide $40 million in funding. Defendant argues that this letter was merely an
offer which, as the pleadings show, was subsequently revoked. (Dkt. No. 1, Ex. 2.) The
Court is inclined to agree. However, even if Plaintiff could establish that a contract was
formed, the letter of intent clearly includes a condition precedent which Plaintiff did not
satisfy. The letter states, “Please be advised that our approval for this funding is based upon
issuance of a Letter of Credit . . . Great American Sports Complexes, LLC desiring to borrow
such funds must obtain a Letter of Credit (LOC) from a domestic (U.S.) or international bank
having offices in the U.S. or confirmed by a U.S. bank.” Under Michigan law, Plaintiff
cannot prevail on a breach of contract claim unless it first satisfied the express condition
precedent in the alleged contract. See Culver v. Castro, 338 N.W.2d 232, 234 (Mich. Ct.
App. 1983). Plaintiff does not allege that it sought or obtained such a letter. Thus, whether
or not a contract was formed, Plaintiff’s breach of contract claim must fail.
Plaintiff’s claim for unlawful interference with business opportunities (Count II) also
Unlawful interference involves intentional interference with a valid business
relationship between the claimant and a third party. Health Call of Detroit v. Atrium Home
& Health Svcs., Inc., 706 N.W.2d 843, 849 (Mich. Ct. App. 2005). Plaintiff’s complaint fails
to allege a business relationship with any third party. Indeed, Plaintiff’s response brief
indicates that the claim is directed at the relationship between Plaintiff and Defendant. As
the relationship between a claimant and defendant cannot itself serve as a basis for an
unlawful interference claim, dismissal is proper. Hutton v. Roberts, 451 N.W.2d 536, 538
(Mich. Ct. App. 1988).
Plaintiff’s pleadings are also deficient with respect to its unjust enrichment claim
(Count III). Plaintiff’s complaint alleges that “[a]s a direct result of Defendant’s unlawful
actions, Defendant has had the use of said $40,000.00 [sic] which Defendant failed to loan
to Plaintiff. In addition, Defendant, to the extreme detriment of Plaintiff, received excessive
consideration from Plaintiff. Said action was unjust enrichment to Defendant to the direct
detriment of Plaintiffs.” (Dkt. No. 1 ¶ 30.) Thus, Plaintiff asserts that Defendant was
unjustly enriched by retaining its own money and by “excessive consideration.”
The claim that Fifth Third improperly retained its own money does not state a claim
for unjust enrichment, which must derive from “a receipt of a benefit by the defendant from
the plaintiff . . . .” Barber v. SMH (US), Inc., 509 N.W.2d 791, 796 (Mich. Ct. App. 1993).
Plaintiff’s allegation that Defendant was unjustly enriched by “excessive consideration” also
fails because Plaintiff does not plead with any specificity what, if any, consideration it gave
to Defendant. Count III must be dismissed because Plaintiff has not put forward facts that
raise its right to relief above a speculative level. Twombly, 550 U.S. at 555.
Plaintiffs remaining claims of fraudulent misrepresentation (Count IV) and negligent
misrepresentation (Count V) will also be dismissed. Under Fed. R. Civ. P. 9(b), a plaintiff
must plead “with particularity the circumstances constituting fraud or mistake.” “To meet
the particularity requirements of Rule 9(b), Plaintiff must (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.” Mekani v.
Homecomings Fin., LLC, 752 F. Supp. 2d 785, 792 (E.D. Mich. 2010) (quoting Frank v.
Dana Corp., 547 F.3d 564, 569-570 (6th Cir. 2008)).
Plaintiff’s complaint lists the elements of a claim of fraudulent representation (Count
IV) and alleges that Defendant made material representations that it knew were false. The
complaint does not, however, specify the time, place, or contents of the alleged
misrepresentations, and fails to provide defendant with a “more specific form on notice as
to the particulars of [its] alleged misconduct” as required by Rule 9(b). United States ex rel
Bledsoe v. Cmty. Health Sys. Inc., 501 F.3d 493, 503 (6th Cir. 2007).
Plaintiff’s claim of negligent misrepresentation (Count V) fares no better. Under
Count V, Plaintiff alleges that “Defendant’s representations were fraudulent in inducing
Plaintiff’s herein referenced reliances . . . .” (Dkt. No. 1 at ¶ 37 (emphasis added).) As the
claim alleges fraud, it must also be plead with particularity, and also falls astray of Rule 9(b).
Finally, several counts in Plaintiff’s complaint are also subject to dismissal because
of their reliance on oral statements barred by the statute of frauds. Counts II (unlawful
interference), IV (fraudulent representation), and V (negligent representation) all reference
unspecified “promises” and “representations.” To the extent that Plaintiff is relying on
alleged oral promises by Defendant, such promises are barred by Mich Comp. Laws
Having carefully considered Plaintiff’s complaint and the briefs submitted on
Defendant’s motion to dismiss, the Court concludes that Plaintiff has failed to state a claim
upon which relief may be granted. Accordingly, Defendant’s motion will be granted, and
Plaintiff’s claim will be dismissed. An order consistent with this opinion will be entered.
Dated: January 20, 2012
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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