Sheet Metal Workers' National Pension Fund Board of Trustees v. Courtad, Inc.
Memorandum Opinion and Order: Defendant's motion to dismiss the amended complaint is denied. (Doc. No. 44 .) This case management plan in this case was previously set aside pending the Court's ruling on defendant's motion for judgment on plaintiff's original complaint. (Non-document Order April 23, 2014.) The Court will conduct a telephonic status conference with counsel only on October 1, 2015 at 11:30 a.m. to establish a revised case management plan. Counsel shall confer in advance of the status conference and jointly file a proposed case management plan by September 28, 2015, that includes deadlines for any remaining discovery and for summary judgment motions. Judge Sara Lioi on 9/21/2015. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
SHEET METAL WORKERS’
NATIONAL PENSION FUND
BOARD OF TRUSTEES,
CASE NO. 5:12-cv-2738
JUDGE SARA LIOI
MEMORANDUM OPINION AND
This matter is before the Court on the motion of defendant Courtad, Inc.
(“defendant” or “Courtad, Inc.”) to dismiss plaintiff’s amended complaint for breach of
contract pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6). (Doc. No. 44 [“Mot.”].) Plaintiff
has opposed the motion (Doc. No. 45 [“Opp’n”]), and defendant has replied (Doc. No. 46
[“Reply”]). This matter is ripe for decision, and, for the reasons that follow, defendant’s
motion to dismiss is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The instant action revolves around the efforts of plaintiff Board of
Trustees, Sheet Metal Workers’ National Pension Fund (“plaintiff” or “Fund”) to collect
the withdrawal liability incurred by Courtad Construction Systems (“Courtad
Construction”) pursuant to ERISA in the amount of $141,580.54 when it completely
withdrew from the Fund on May 1, 2004.1 (Document No. 43 (Amended Complaint
[“AC”]) ¶¶ 11-12.) Courtad Construction is not a party to this action.
A. The First Lawsuit
Courtad Construction did not pay its withdrawal liability as required, and
the Fund sued Courtad Construction in the United States District Court, Eastern District
of Virginia, to collect those sums. That case was resolved when Courtad Construction
and the Fund entered into a settlement agreement on March 27, 2007 (the “first
settlement agreement”), which required certain payments by Courtad Construction. (Id.
¶¶ 15-18.) After the first settlement agreement was executed, Courtyard Construction was
dissolved by the Ohio Secretary of State. (Id. ¶ 19.).
Plaintiff alleges that the assets of Courtad Construction were acquired by
Courtad, Inc.2 for inadequate or no consideration in order to escape the liabilities of
Courtard Construction, and that Courtad, Inc. is a mere continuation of Courtad
Construction. (Id. ¶¶ 20-35.) Courtad, Inc. paid the first four payments required by the
first settlement agreement, but neither Courtad Construction nor Courtad, Inc. made any
of the remaining payments. (Id. ¶¶ 36-37.) Plaintiff alleges that by making the first four
Courtad Construction employed employees represented by the Sheet Metal Workers’ International
Association Local Union No. 33, and was a signatory to the collective bargaining agreement with Local
Union 33, which required Courtrad Construction to make contributions to the Fund on behalf of its union
employees. (AC ¶¶ 9-10.) The Fund is a multiemployer pension plan within the meaning of the Employee
Retirement Income Security Act of 1974 (“ERISA”), as amended by the Multiemployer Pension Plan
Amendments Act of 1980, 29 U.S.C. §§ 1001 et seq. (1982). (Id. ¶¶ 1, 4.) The Court has previously
concluded that this action is a state law matter before the Court on diversity jurisdiction, and is not
preempted by ERISA. (Doc. No. 42 (Opinion and Order [“OO”]) at 342 n.1.) All references to page
numbers are to the page identification number generated by the Court’s electronic filing system.
According to the original complaint filed in this case, Courtad, Inc. was incorporated on June 30, 2003.
(Doc. No. 1 [“Compl.”] ¶ 9.).
payments, Courtad, Inc. agreed to assume the liability of Courtad Construction under the
first settlement agreement. (Id. ¶¶ 38-39.).
B. The Second Lawsuit
The Fund then sued Courtad Construction, Courtad, Inc., and Dennis
Courtad3 in United States District Court, Northern District of Ohio, Case No. 5:08-cv1357,4 to collect the remaining withdrawal liability owed to the Fund. (Id. ¶ 40.) To
resolve the second lawsuit, Courtad Construction and Dennis Courtad entered into a
second settlement agreement (“Agreement”) with the Fund on July 11, 2008 (Doc. No.
43-2 [“Agrmnt.”]), attached as Exhibit B to the amended complaint. (Id. ¶ 41.)5
Under the Agreement, an initial payment to the Fund was required, to be
followed by several subsequent payments. (Id.) In addition, Courtad Construction and
Dennis Courtad consented to the immediate entry of judgment in the amount of
$125,048.59, but the Fund agreed not to execute on the consent judgment (Doc. No. 43-1
[“Consent Jdgmnt.”]) unless Dennis Courtad and Courtad Construction failed to make the
required payments. (Agrmnt. ¶ 4.)
Courtad, Inc. is not a party to the Agreement or consent judgment, and
was dismissed by the Fund from Case No. 5:08-cv-1357 without prejudice the same day
the consent judgment was entered. (AC ¶ 40; Agrmnt. ¶ 6; Case No. 5:08-cv-1357, Doc.
Plaintiff alleges that Dennis Courtad is the president, director, and sole shareholder of both Courtad
Construction and Courtad, Inc. (AC ¶ 21.).
The case number and venue of the second lawsuit are reflected in Exhibits A and B attached to the
amended complaint. The docket of Case No. 5:08-cv-1357 is a public record, of which the Court may take
The amended complaint refers to this document as the “Second Settlement Agreement,” but the document
attached as Exhibit B to the amended complaint is entitled “Agreement in Lieu of Execution.”
Courtad, Inc. sent a check to the Fund for the initial payment, but the
check was returned unpaid. No further payments were made by either Courtad
Construction or Courtad, Inc. (AC ¶¶ 43, 45.)
C. The Instant Action—The Third Lawsuit
The Fund sued a third time, but in this lawsuit, the only defendant is
Courtad, Inc. The initial complaint asserted a claim against Courtad, Inc. under the
federal common law doctrine of alter ego liability, and was the subject of a motion for
judgment on the pleadings by Courtad, Inc. (Doc. No. 27.) In ruling on that motion, the
Court concluded that the federal common law doctrine of alter ego liability does not
apply to a state law claim for breach of contract. (OO at 349.) But the Court noted that
plaintiff’s complaint did not attempt to state a claim for relief under Ohio corporate
liability doctrines, and concluded that the Court could not determine whether plaintiff had
stated a claim under other theories of corporate liability. (OO at 350.).
The Court granted plaintiff leave to amend its complaint to state a claim
for relief under other theories of corporate liability. In the amended complaint, the
plaintiff alleges that by sending a check to the Fund for the initial payment of the
Agreement, Courtad, Inc. expressly or impliedly agreed to assume the liability of Courtad
Construction thereunder. (AC ¶ 44.) Plaintiff asserts one count for breach of contract
against Courtad, Inc. as the corporate successor to Courtad Construction. (Id. ¶¶ 46-53.).
Defendant contends that the amended complaint should be dismissed
because the Agreement limits plaintiff’s remedy for default to execution of the consent
judgment, Courtad, Inc. has no duty or obligation under the Agreement, and because any
direct action against Courtad, Inc. is time barred. (Mot. at 374-75.).
A. Standard of Review
1. Fed. R. Civ. P. 12(b)(6)
A complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Although this
pleading standard does not require great detail, the factual allegations in the complaint
“must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citing
authorities). In other words, “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket
assertion, of entitlement to relief.” Id. at 556, n.3 (criticizing the Twombly dissent’s
assertion that the pleading standard of Rule 8 “does not require, or even invite, the
pleading of facts”). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting
Twombly, 550 U.S. at 570).
While the Court’s consideration of documents for Rule 12(b)(6) analysis is
normally limited to the pleadings, there are certain exceptions. The Court may also
consider documents that are attached to, incorporated by, or referred to in the pleadings.
Documents attached to a motion to dismiss are also “considered part of the pleadings if
they are referred to in the plaintiff’s complaint and are central to [plaintiff’s] claim.”
Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (quoting Venture Assocs.
Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1983)). Further, the Court
may consider “materials in addition to the complaint if such materials are public records
or are otherwise appropriate for taking judicial notice.” New England Health Care Emps.
Pension Fund v. Ernst & Young LLP, 336 F.3d 495, 501 (6th Cir. 2003) (citations
Accordingly, the Court may consider the consent judgment and agreement
attached to plaintiff’s amended complaint, and take judicial notice of the public docket of
Northern District Ohio Case No. 5:08-cv-1357, where the second lawsuit was filed. See
Rhone v. Wayne Cnty. Prosecutor’s Office, No. 13-13400, 2013 WL 5775475, at *1 n.1
(E.D. Mich. Oct. 25, 2013) (citing Graham v. Smith, 292 F. Supp. 2d 153, 155 n.2 (D.Me.
While the Federal Rules of Civil Procedure govern the procedural aspects
of defendant’s motion to dismiss, this matter is before the Court pursuant to diversity
jurisdiction. 28 U.S.C. § 1332. In diversity actions, federal courts apply the forum state’s
substantive law and choice of law provisions. See Savedoff v. Access Grp., Inc., 524 F.3d
754, 762 (6th Cir. 2008) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 187, 82 L.
Ed. 1188 (1938)). The Agreement between the Fund, Courtad Construction, and Courtad,
Inc. to resolve the second lawsuit in the Northern District of Ohio, Case No. 5:08-cv1357, does not contain a choice of law provision. But neither party has indicated that the
substantive law from any state other than Ohio applies to this case, so the Court will
apply the law of the forum state—Ohio.
2. Fed. R. Civ. P. 12(b)(1)
A motion to dismiss for lack of subject matter jurisdiction, under Fed. R.
Civ. P. 12(b)(1), can challenge either the sufficiency of the complaint itself (a facial
attack) or the factual existence of subject matter jurisdiction (a factual attack). Cartwright
v. Garner, 751 F.3d 752, 759 (6th Cir. 2014) (citing United States v. Ritchie, 15 F.3d 592,
598 (6th Cir. 1994)). If the attack is facial, the court takes all the factual allegations in the
complaint as true, and if the allegations establish federal claims, then jurisdiction exists.
Amburgey v. United States, 733 F.3d 633, 636 (6th Cir. 2013). If the challenge is factual,
the court can weigh evidence to confirm the factual predicate for subject matter
jurisdiction. Id. Either way, plaintiff bears the burden of establishing subject matter
jurisdiction. Lewis v. Whirlpool Corp., 630 F.3d 484, 487 (6th Cir. 2011) (citation
1. A forbearance agreement may be subject to a breach of contract action
As an initial matter, defendant makes much of the point that the
Agreement is entitled “Agreement in Lieu of Execution,” not “Second Settlement
Agreement,” as referred to in the amended complaint. According to defendant, the
Agreement is a forbearance agreement, not a settlement agreement. The defendant
presumably advances this characterization as a foundation for its ultimate argument that
the Fund’s only remedy for default is execution of the consent judgment against Courtad
Construction and Dennis Courtad.
A forbearance agreement is no different than a settlement agreement. See
Somerset Synfuel No. 1, L.L.C. v. Resource Recovery Int’l. Corp., 935 N.E.2d 497, 502
(Ohio Ct. App. 2010) (“The forbearance agreement was an attempted settlement intended
to replace the parties original obligations under the note. Thus, a new contract was being
created.”) (citation omitted). A settlement agreement is a binding contract between the
parties that requires a meeting of the minds, consideration, and offer and acceptance. See
Consolo v. Menter, No. 25394, 2011 WL 6076340, at *2 (Ohio Ct. App. Dec. 7, 2011)
(citing Rulli v. Fan Co., 79 Ohio St. 3d 374, 376 (1997)); see also Forester v. Scott, 311
N.E.2d 27, 29 (Ohio Ct. App. 1973) (“well-recognized principle of contract law that a
promise to forbear” a valid action that one has a right to pursue is sufficient consideration
to support a contract).
Settlement agreements are subject to enforcement under standard contract
law. See Consolo, 2011 WL 6076340, at *2 (citing Rulli, 79 Ohio St. 3d at 376). Like any
settlement agreement, a forbearance agreement may be subject to an action for breach.
See Wendy’s Int’l. v. Saverin, 337 F. App’x 471 (6th Cir. 2009) (affirming grant of
summary judgment in favor of franchisor that franchisor did not breach the parties’
forbearance agreement); First Horizon Home Loans v. Fanous, No. 95924, 2011 WL
3759687, at *1-2 (Ohio Ct. App. Aug. 25, 2011) (affirming trial court’s dismissal of First
Horizon’s Civ. R. 60(B)(4) motion for relief from dismissal of initial foreclosure action
when parties settled initial foreclosure action by entering into a forbearance agreement,
holding that a forbearance agreement is no different than other settlement agreements,
and plaintiff’s remedy for breach of the forbearance agreement is to file a new action for
Having concluded that a forbearance agreement may be subject to an
action for breach like any contract, the issue before the Court on defendant’s motion is
whether the Agreement precludes a breach of contract action and/or limits the Fund’s
remedy to executing on the consent judgment. In order to make this determination, the
Court must interpret the Agreement.
2. Agreement not limited by exclusive remedy
“Under Ohio law, the interpretation of written contract terms, including
the determination of whether those terms are ambiguous, is a matter of law for initial
determination by the court.” Savedoff v. Access Grp., Inc., 524 F.3d 754, 763 (6th Cir.
2008) (citations omitted). It is the role of the Court to discern the intent of the parties,
which is “presumed to reside in the language they choose to use in their agreement.”
Savedoff, 524 F.3d at 763 (quoting Graham v. Drydock Coal Co., 667 N.E.2d 949, 952
(Ohio 1996)). “The Court must look to the plain language of the contract, and only go
beyond the plain language of the agreement to determine the rights and obligations of the
parties if it is ambiguous.” Airlink Commc’ns, Inc. v. Owl Wireless, LLC, No. 3:10 CV
2296, 2011 WL 4376123, at *2 (N.D. Ohio Sept. 20, 2011) (internal citations omitted).
“Contractual language is ‘ambiguous’ only where its meaning cannot be
determined from the four corners of the agreement or where the language is susceptible
of two or more reasonable interpretations.” Covington v. Lucia, 784 N.E.2d 186, 190
(Ohio Ct. App. 2003) (citation omitted); see Sec’y of USAF v. Commemorative Air Force,
585 F.3d 895, 900 (6th Cir. 2009). When both parties offer “plausible interpretations of
the agreement drawn from the contractual language itself [this] demonstrates that the
provision is ambiguous.” Int’l Union UAW Local 91 v. Park-Ohio Indus., Inc., 876 F.2d
894 (Table), 1989 WL 63871, at *6 (6th Cir. 1989). In determining whether contractual
language is ambiguous, the contract “must be construed as a whole.” See Tri-State Grp.,
Inc. v. Ohio Edison Co., 782 N.E.2d 1240, 1246 (Ohio Ct. App. 2002) (internal citation
and quotation marks omitted).
Relying on paragraphs 4 and 9 of the Agreement, defendant argues that, in
the event of non-payment, the Agreement limits the Fund to the exclusive remedy of
execution of the judgment against Courtad Construction and Dennis Courtad, and
therefore plaintiff’s breach of contract action fails to state a claim for relief. The
Agreement language at issue provides as follows:
4. Courtad Construction and Dennis Courtad consent to the immediate
entry of judgment in the amount of $125,048.59. So long as Courtad
Construction and Dennis Courtad timely make the payments referred to in
Paragraph 2, the Fund shall not execute on the Judgment nor purse any
action against Courtad Construction or Dennis Courtad. . . . In the event of
default, no provision in this Agreement shall be construed to prevent the
Fund from immediately executing upon the Judgment. . . .
9. If any of the payments referenced in Paragraph 1 are not made on time,
then the Fund shall have the right to execute on the Judgment entered in
the Action and to bring an action against any and all trades or businesses
under common control with Courtad Construction and Dennis Courtad on
the date of withdrawal.
(Agrmnt. ¶¶ 4, 9 (emphasis added).).
In support of a contract interpretation that excludes breach of contract as
an available remedy, defendant argues:
. . . Paragraphs 4 and 9 very clearly state that if [Courtad Construction]
does not make its payment obligations, [p]laintiff’s only two remedies are
to 1) execute on the [consent judgment], and/or 2) bring an action against
any business under common control with [Courtad Construction] and
Dennis Courtad “on the date of withdrawal.”
The failure to make required payments during the forbearance period does
not give rise to a claim for breach of contract under the [Agreement],
rather it is a triggering event that simply permits execution on an alreadyin-place judgment. In other words, [Courtad Construction’s] alleged
failure to pay pursuant to the [Agreement] does not give rise to a breach of
contract but, rather, gives [p]laintiff the right to execute on the Consent
Judgment Order against [Courtad Construction].
(Mot. at 374-75 (emphasis added).).
The Court finds no ambiguity in the contract language of paragraphs 4 and
9 of the Agreement regarding the available remedies in the event of default. The plain
and unambiguous language of paragraph 4 provides that as long as the required payments
are made, the Fund will not execute on the judgment or pursue other actions against
Courtard Construction; but if the payments are not made, paragraph 9 permits the Fund to
pursue two remedies: First, the Fund has the right to execute on the consent judgment in
the event of non-payment. Second, the Fund may bring an action against businesses
under common control of Courtad Construction and Dennis Courtad on the date of
Courtad Construction’s withdrawal from the Fund. But the analysis does not end here.
Rather, the issue is whether the Agreement excludes the Fund’s common
law remedies, or limits plaintiff’s remedies to only those described in the Agreement.
“[U]nder Ohio law, a contract remedy is exclusive only if the parties so stipulate[.]” Bank
One, N.A. v. Echo Acceptance Corp., 380 F. App'x 513, 522 (6th Cir. 2010) (citing Mead
Corp. v. ABB Power Generation, Inc., 319 F.3d 790, 796 (6th Cir. 2003)); M.G.A., Inc. v.
Amelia Station, Ltd., No. C–010606, 2002 WL 31127518, at *4 (Ohio Ct. App. Sept. 27,
2002) (“[L]imitations-of-remedies clauses are not favored and the parties' intent to make
the specified remedy exclusive must be clear from all the facts and circumstances of the
case.”); Dean Tech., Inc. v. CE Power Solutions, LLC, -- F. Supp. 3d --, 2015 WL
1468299, at *11 n.24 (S. D. Ohio Mar. 30, 2015) (citing Echo Acceptance Corp., 380 F.
App'x at 522).
But, although “[i]t is a basic principle of contract law that parties by an
express agreement may contract for an exclusive remedy that limits their
rights, duties and obligations,” the parties must clearly indicate in the
contract their intent “to make the stipulated remedy exclusive.” Bd. of
Regents v. Wilson, 27 Ill. App. 3d 26, 326 N.E.2d 216, 220 (1975).
Thus, where a “contract fails to expressly exclude the owner's common
law remedies, or to limit plaintiff's remedies to those expressly stipulated
in the contract,” a party can still invoke independent remedies. Id. at 222;
see All Seasons Water Users Ass'n v. N. Improvement Co., 399 N.W.2d
278, 285 (N.D. 1987); Omaha Home for Boys v. Stitt Constr. Co., 195
Neb. 422, 238 N.W.2d 470, 473 (1976).
Mead Corp., 319 F.3d at 796 (footnote omitted).
Defendant argues that paragraph 9 of the Agreement describes the
plaintiff’s “only two remedies,” but does not explain how such a conclusion is supported
by the agreement language. On its face, the Agreement is devoid of express language of
any sort that could be reasonably interpreted to exclude the Fund’s common law remedies
or limit plaintiff’s remedies to those contained in the Agreement. See Kurtz v. W.
Property, L.C.C., No. 10AP-1099, 2011 WL 6916196, at *4-6 (Ohio Ct. App. Dec. 27,
2011) (agreement to purchase real property expressly recognized liquidated damages
(loss of security deposit) as the “sole remedy at law and in equity,” thus excluding a
breach of contract claim) (emphasis added). The plain language of paragraphs 4 and 9 is
permissive, not mandatory, and gives the Fund the right to execute on the consent
judgment in the event of non-payment but does not require the Fund to do so. Simply
specifying the availability of a particular remedy is not sufficient to render that remedy
exclusive. See M.G.A., Inc., 2002 WL 31127518, at *3 (specification of one remedy,
without more, does not necessarily preclude other remedies).
Defendant maintains that an exclusive remedy analysis is inapposite
because the consent judgment, although unexecuted, was entered as part of the settlement
agreement resolving the second lawsuit and precludes further litigation—“this is a case
where Plaintiff obtained a judgment entry . . . and signed a release against all other claims
against [Courtad Construction] and its agents.” (Reply at 391.) Defendant reasons that
plaintiff cannot have a breach of contract claim against [Courtad Construction] because
any breach of contract is subject to the consent judgment. (Id.)
But the unexecuted consent judgment was part of the negotiated second
settlement agreement: “Courtad Construction and Dennis Courtad consent to immediate
entry of judgment in the amount of $125,048.59.” (Agrmnt. ¶ 4.) The consent judgment is
just one of the non-exclusive remedies available to the Fund in the event of default.
Defendant also argues that “[t]he release language and merger clause in
the agreement prohibit any further recovery against [Courtad Construction] and its
agents.” (Reply at 392.) But the Fund is not pursuing additional recovery—plaintiff is
pursuing the same recovery provided by the Agreement through the common law remedy
of breach of contract.
3. Claim against Courtad, Inc.
a. Breach of contract
Even if a breach of contract claim is available under the Agreement,
defendant argues that the Fund cannot maintain an action against Courtad, Inc. because
“[d]efendant did not contract to do or perform any action. There is no duty required of
[d]efendant spelled out in the ‘contract.’ As such, there can be no claim for breach of
contract. [Courtad, Inc.] did not agree or promise to undertake any obligation in the
contract upon which a breach could ever be premised.” (Id. at 391.)
It is true that Courtad, Inc. is not a party to the Agreement and was
dismissed without prejudice from the second lawsuit. (Agrmnt. ¶ 6.) But plaintiff’s claim
is that Courtard, Inc. is liable for breach of the Agreement as the corporate successor of
Courtad Construction, who was a party to the Agreement. Defendant’s motion to dismiss
does not make the alternative argument that, if the Court concludes plaintiff’s breach of
contract claim is not precluded by the Agreement, the amended complaint fails to state a
claim for breach of contract or fails to state a claim that Courtad, Inc. is the corporate
successor to Courtad Construction.
Accordingly, the Court concludes that plaintiff has alleged a plausible
claim for breach of the Agreement, and a basis for the Court’s subject matter jurisdiction.
Therefore defendant’s motion to dismiss pursuant to Rules 12(b)(1) and (6) for lack of
subject matter jurisdiction and failure to state a claim for breach of contract against
Courtad, Inc. is without merit and is denied.
b. Time barred claims
Defendant concedes that the second part of paragraph 9 of the Agreement
gives plaintiff the right, in the event of non-payment, “to bring an action against any and
all trades or businesses under the common control with Courtad Construction and Dennis
Courtad on the date of withdrawal.” (Mot. at 375; Agrmnt. ¶ 9.) But defendant argues
that a direct claim against Courtad, Inc. for withdrawal liability is time barred by a ten
year statute of limitations. (Mot. at 375.) Defendant further argues that “Plaintiff may
now allege (or this Court may assume) Plaintiff is not bring[ing] a contract claim but a
fraud claim[,]” which is also time barred by a four year statute of limitations. (Id at 376.)
Other legal theories that defendant contends may be “possibly propounded” by the
amended complaint include fraudulent conveyance and fraudulent conversion, which
defendant maintains are also precluded by a four year statute of limitations. (Id.)
The amended complaint asserts a single claim for breach of contract and
does not assert any of the other possible claims described by defendant that defendant
claims are time-barred. Because no such claims have been asserted, there is no basis upon
which to consider defendant’s motion to dismiss these possible claims.
For all of the foregoing reasons, defendant’s motion to dismiss the
amended complaint is DENIED. This case management plan in this case was previously
set aside pending the Court’s ruling on defendant’s motion for judgment on plaintiff’s
original complaint. (Non-document Order April 23, 2014.) The Court will conduct a
telephonic status conference with counsel only on October 1, 2015 at 11:30 a.m. to
establish a revised case management plan. Counsel shall confer in advance of the status
conference and jointly file a proposed case management plan by September 28, 2015, that
includes deadlines for any remaining discovery and for summary judgment motions.
IT IS SO ORDERED.
Dated: September 21, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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?