PROGRESSIVE FREIGHT, INC. v. FRAMAUR ASSOCIATES, L.L.C. et al
OPINION filed. Signed by Judge Freda L. Wolfson on 9/5/2017. (mmh)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PROGRESSIVE FREIGHT, INC.,
Civil Action No. 16-9366 (FLW)
FRAMAUR ASSOCIATES, LLC; TEE
WAY LOGISTICS, LLC; and TEE WAY :
WOLFSON, United States District Judge:
In this contract dispute, Defendants Tee Way Logistics, LLC (“Tee Way Logistics”) and
Tee Way Transportation, LLC (“Tee Way Transportation”) (collectively, “Tee Way”) move to
dismiss Plaintiff Progressive Freight, Inc.’s (“Plaintiff” or “Progressive”) Complaint, pursuant to
Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. The Complaint alleges that
Tee Way Logistics, Tee Way Transportation, and Framaur Associates, LLC (“Framaur”)
(collectively, “Defendants”) breached a contract to pay Plaintiff for providing transportation
services for the delivery of alcoholic beverages. For the reasons that follow, Tee Way’s Motion
to Dismiss is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On a motion to dismiss, the Court reviews the complaint by taking its allegations as true.
Plaintiff is a Georgia corporation that operates as a transportation services broker. Compl. ¶¶ 1,
6. Framaur and Tee Way Logistics are New Jersey limited liability companies that are also in
the transportation brokerage industry. See id. at ¶¶ 2-3, 6. Tee Way Transportation is a New
Jersey based limited liability company that operates a trucking business. See id. at ¶¶ 4, 6. The
Complaint alleges that Framaur operates and conducts business through Tee Way Logistics and
Tee Way Transportation. Id. at ¶ 9. In that regard, Plaintiff alleges that Framaur, Tee Way
Logistics, and Tee Way Transportation each operate from the same principal place of business in
New Jersey, and are controlled by members of the D’Agostino family. See id. at ¶¶ 2-4.
According to the Complaint, non-party MillerCoors LLC contracted with Defendants to
provide transportation brokerage services for the delivery of MillerCoors’ beer and other
alcoholic beverages (the “Goods”). Compl. ¶¶ 6, 10. The Complaint alleges that between April
2016 and October 2016, Defendants entered into several written contracts (collectively, the
“Contracts”) with Plaintiff, under which Plaintiff agreed to broker the actual transportation of the
Goods. See id. at ¶¶ 11, 17. Specifically, the Complaint alleges that the Contracts were
memorialized through bills of lading and invoices issued by each of the Defendants, and stated
that Defendants would, collectively or separately, compensate Plaintiff for transportation
services rendered, including freight and brokerage charges. Id. at ¶¶ 17-18. Importantly, as
alleged, Plaintiff contracted with each of the Defendants in this regard.
The Complaint alleges that Plaintiff retained various inline carriers to deliver the Goods
to their final destinations, and fully compensated those carriers upon delivery. Id. at ¶¶ 11-13.
Additionally, the Complaint alleges that MillerCoors fully compensated Defendants for delivery
of the Goods. Id. at ¶ 16. However, according to the Complaint, despite the fact Plaintiff
performed all of its obligations under the Contracts, Defendants failed to pay Plaintiff
$261,195.00 allegedly due and owing under the terms of the agreements. Id. at ¶¶ 23-27.
On December 19, 2016, Plaintiff filed its Complaint, asserting three causes of action
against Defendants. Count One asserts a claim for breach of contract, alleging that Defendants
breached the Contracts by failing to compensate Plaintiff for freight and brokerage charges upon
completion of Plaintiff’s obligations under the Contracts. See id. at ¶¶ 21-27. Count Two asserts
a related claim for account stated under New Jersey law. See id. at ¶¶ 28-32. Finally, Count
Three asserts a claim for unjust enrichment. See id. at ¶¶ 33-40. On February 3, 2017,
Defendants Tee Way Logistics and Tee Way Transportation filed the instant Motion to Dismiss,
which has been fully briefed. See ECF Nos. 12, 14, 20.
STANDARD OF REVIEW
In reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure
12(b)(6), the court “accept[s] all factual allegations as true, construe[s] the complaint in the light
most favorable to the plaintiff, and determine[s] whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224,
233 (3d Cir. 2008) (citation and quotations omitted). As such, a motion to dismiss for failure to
state a claim upon which relief can be granted does not attack the merits of the action, but merely
tests the legal sufficiency of the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009); see also FED. R. CIV. P. 8(a)(2) (“A pleading that states a claim for relief . . . must
contain a short and plain statement of the claim showing the pleader is entitled to relief”). In other
words, to survive a motion to dismiss for failure to state a claim, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
However, “the tenet that a court must accept as true all the allegations contained in the
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S.
at 555). A plaintiff must show that there is “more than a sheer possibility that the defendant has
acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). This plausibility determination is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In other words, for the plaintiff to
prevail, the “complaint must do more than allege the plaintiff's entitlement to relief; it must
“‘show’ such an entitlement with its facts.” Fowler, 578 F.3d at 211 (citing Phillips, 515 F.3d at
The Third Circuit has cautioned, however, that Twombly and Iqbal “do not provide a
panacea for defendants”; rather, “they merely require that plaintiff raise a ‘plausible claim for
relief.’” Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir.
2013) (quoting Iqbal, 556 U.S. at 679). Thus, factual allegations must be more than speculative,
but the pleading standard “is not akin to a ‘probability requirement.’” Id. (quoting Iqbal, 556 U.S.
Tee Way argues that Plaintiff’s claims for breach of contract and account stated should be
dismissed, because neither Tee Way entity was a party to the contract between Plaintiff and
Framaur, and Tee Way Logistics, Tee Way Transportation, and Framaur are separate corporate
entities. Additionally, Tee Way maintains that Plaintiff’s unjust enrichment claim should be
dismissed, because the Tee Way entities did not derive any benefit from the services Plaintiff
performed. In opposition, Plaintiff argues that Tee Way impermissibly seeks to rely on a
certification in arguing that Framaur and Tee Way are separate legal entities, and that Plaintiff
has presented sufficient facts in support of its claims for breach of contract, account stated, and
unjust enrichment to survive dismissal and proceed to discovery. The Court agrees.
At the outset, the Court notes that Tee Way’s argument that Tee Way Logistics, Tee Way
Transportation, and Framaur are distinct corporate entities is not based on Plaintiff’s pleadings,
but rather, on the certification of Thomas D’Agostino, Jr., attached to Tee Way’s Motion to
Dismiss. See D’Agostino, Jr. Cert., ECF No. 12-3. As a general rule, however, “a district court
ruling on a motion to dismiss may not consider matters extraneous to the pleadings.” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); see W. Penn Allegheny
Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 n. 6 (3d Cir. 2010). A limited exception to that rule
exists “for documents that are ‘integral to or explicitly relied upon in the complaint.’” Id.
(citation omitted). “The rationale underlying this exception is that the primary problem raised by
looking to documents outside the complaint—lack of notice to the plaintiff—is dissipated
‘[w]here plaintiff has actual notice . . . and has relied upon these documents in framing the
complaint.’” In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426 (quoting Watterson v.
Page, 987 F.2d 1, 3–4 (1st Cir. 1993)). Here, the certification offered by Tee Way does not fall
within that exception, because it was not relied upon by Plaintiff in forming the Complaint; to
the contrary, the D’Agostino, Jr. certification is dated more than a month after the filing date of
the Complaint. See Campbell v. John, No. 12-2750, 2016 WL 2347038, at *3 (D.N.J. May 4,
2016) (“[B]ecause a post-complaint certification is not the sort of document conceived of in the
case law, this Court cannot consider Dr. Woodward's certification in deciding the instant motion
to dismiss.”). Moreover, the D’Agostino, Jr. certification does not become “integral” to the
Complaint merely because it addresses the corporate distinctions between Framaur, Tee Way
Logistics, and Tee Way Transportation. See Jackson v. Alpharma Inc., No. 07-3250, 2008 WL
508664, at *3 (D.N.J. Feb. 21, 2008) (“The Donohue Certification does not become ‘integral to .
. . the Complaint’ merely because it addresses a central factual issue in the Complaint.”); see also
Morgan v. Martinez, No. 14-02468 2015 WL 2233214, at *2 n. 5 (D.N.J. May 12, 2015)
(Disregarding the defendant’s reliance on a certification in motion to dismiss, because the
“certification [was] not integral to, or relied upon, in Plaintiff's Amended Complaint.”).
Accordingly, the Court will not look to the certification's contents in considering Tee Way’s
Motion to Dismiss.1
Without the certification – and thus, without Tee Way’s contention that Tee Way
Logistics and Tee Way Transportation are separate corporate entities from Framaur – the Court
is left with only with Tee Way’s arguments that: (1) Plaintiff cannot state a claim for breach of
contract against Tee Way, because neither Tee Way entity was a party to the Contracts; and (2)
Plaintiff cannot state a claim for unjust enrichment against Tee Way, because Tee Way did not
receive a benefit on behalf of Framaur.
First, Plaintiff’s allegations regarding its claims for breach of contract and account stated
are sufficient to survive dismissal. To state a claim for breach of contract under New Jersey law,
Moreover, the Court will not convert the Motion to Dismiss into a motion for summary
judgment at this juncture. “Under Rule 12(d) of the Federal Rules of Civil Procedure, a district
court properly converts a motion to dismiss into a motion for summary judgment if (1) the
materials submitted go outside of the pleadings and are not excluded by the court and (2) the
parties had adequate notice of the district court's intention to convert.” Brown v. U.S. Steel
Corp., 462 F. App'x 152, 155 (3d Cir. 2011). Where “a motion to dismiss is treated as a motion
for summary judgment, then the ‘parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.’” Id. (quoting FED. R. CIV. P. 12(d)). A “‘reasonable
opportunity to present all materials’ includes the opportunity to engage in discovery to obtain the
pertinent information.” Id. Here, Tee Way did not contemplate converting its Motion to Dismiss
to a motion for summary judgment in its moving papers, and therefore, Tee Way has not placed
Plaintiff on “adequate notice.” By failing to raise the issue of conversion in its briefing, Tee
Way “deprived Plaintiff of the opportunity to file a Rule 56(d) affidavit explaining why
discovery is necessary to address the assertions” that Mr. D’Agostino, Jr. makes in his
certification. Campbell v. John, No. 12-2750, 2016 WL 2347038, at *3 (D.N.J. May 4, 2016).
Given the lack of discovery in this case, and Tee Way’s failure to place Plaintiff on adequate
notice, the Court will not convert the Motion to Dismiss into a motion for summary judgment,
and accordingly, the certification will be disregarded.
a plaintiff must “allege (1) a contract between the parties; (2) a breach of that contract; (3)
damages flowing therefrom; and (4) that the party stating the claim performed its own
contractual obligations.” Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007). A claim
for account stated is similar to a claim for breach of contract, and requires a plaintiff to prove
that there is an “exact and definite balance” for goods delivered or services rendered that can be
proven by a statement of account. See Manley Toys, Ltd. v. Toys R Us, Inc., No. 12-3072, 2013
WL 244737, at *5 (D.N.J. Jan. 22, 2013). Here, Tee Way’s challenge to Plaintiff’s claims for
breach of contract and account stated is confined to the argument that neither Tee Way entity
was a party to the Contracts; i.e., Tee Way only argues that Plaintiff has failed to demonstrate the
existence of a contract with the Tee Way entities. However, taking as true the Complaint’s
allegations that “Plaintiff and Defendants entered into several written contracts,” see Compl. ¶
17, and that the Contracts were memorialized through the issuance of invoices and bills of lading
using the names of the Tee Way entities, see id. at ¶¶ 17-19, Plaintiff has sufficiently pled the
existence of an agreement with Tee Way.2 Thus, having so pled, and coupled with the fact that
Tee Way does not challenge any other elements of Plaintiff’s prima facie case, dismissal of
Plaintiff’s claims for breach of contract and account stated is not appropriate.3
At most, Tee Way has raised a genuine issue of material fact as to whether Tee Way Logistics
or Tee Way Transportation were parties to the Contracts.
The sole case that Tee Way cites in support of its argument that Plaintiff’s breach of contract
claim should be dismissed, Jacobsen Diamond Ctr., LLC v. ADT Sec. Servs., Inc., No. A-157814T1, 2016 WL 3766236 (N.J. Super. Ct. App. Div. July 15, 2016), is readily distinguishable
from the present case. Importantly, that unreported decision was rendered at the summary
judgment stage, after the parties had “engaged in extensive discovery.” Id. at 2. Moreover, the
plaintiff in that case did not even assert a claim for breach of contract; but rather, asserted claims
for violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., common-law
fraud, willful and wanton misconduct, gross negligence, breach of express and implied warranty,
and negligent infliction of emotional distress. Id. at *2. Accordingly, Jacobsen is inapposite.
Second, the Court finds that Plaintiff has sufficiently pled a cause of action for unjust
enrichment. To state a claim for unjust enrichment under New Jersey law, a plaintiff must
demonstrate that “it expected remuneration from defendant at the time it performed or conferred
a benefit on defendant and that the retention of that benefit without payment would be unjust.”
Woodlands Cmty. Ass'n, Inc. v. Mitchell, 450 N.J. Super. 310, 317 (App. Div. 2017). Here, Tee
Way argues that Plaintiff has failed to meet its burden of stating a prima facie case for unjust
enrichment, because “neither of the Tee Way Defendants derive any enrichment – unjust or
otherwise – from the services Plaintiff allegedly performed.” Mot. to Dismiss 5. However,
Plaintiff alleges that MillerCoors paid Defendants for the transportation services performed by
Plaintiff, but that Defendants failed to compensate Plaintiff for those services. See Compl. ¶¶
33-38. Those allegations, taken as true for the purposes of the instant Motion, are sufficient for
the Court to find that Plaintiff expected remuneration from Tee Way for performing the
transportation services, and that Tee Way’s receipt of payment from MillerCoors, without
compensating Plaintiff, would be unjust. Accordingly, Tee Way’s Motion to Dismiss Plaintiff’s
unjust enrichment claim is denied.
For the foregoing reasons, Tee Way’s Motion to Dismiss is DENIED.
Dated: September 5, 2017
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge
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