RCSUS Inc. v. AC Karma Repair, LLC, et al
Memorandum Opinion and Order: For the reasons as outlined, defendants/third-party defendants Berrylane Trading, Inc. and Felix International, Inc.'s motion to dismiss plaintiff's first amended complaint against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is denied (Related document 64 ). Signed by Magistrate Judge George J. Limbert on 3/7/18. (S,AA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
AC KARMA REPAIR, LLC., et al.,
BERRYLANE TRADING, INC.,
FELIX INTERNATIONAL, LLC.,
CASE NO. 5:16CV2820
GEORGE J. LIMBERT
MEMORANDUM OPINION & ORDER
This matter is before the Court on a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure (“Rule 12(b)(6)”) filed by Defendants/Third-Party Defendants
Berrylane Trading, Inc. (“Berrylane”) and Felix International, LLC. (“Felix”)(collectively
“Defendants”). ECF Dkt. #64. Defendants move to dismiss the first amended complaint filed
against them by Plaintiff RCSUS, Inc. ECF Dkt. #s 38, 64.
For the following reasons, the Court DENIES Defendants’ motion to dismiss the claims
against them in Plaintiff’s first amended complaint. ECF Dkt. #64.
FACTUAL AND PROCEDURAL HISTORY
On November 18, 2016, Plaintiff filed its initial complaint against Defendant AC Karma
Repair, LLC. (“ACK”) indicating that it was a corporation that was engaged in the buying and
selling of cell phones and ACK was engaged in the “procurement, refurbishment, and sale of mobile
devices, including cell phones and Smartphones in particular. ECF Dkt. #1 at 2. Plaintiff set forth
a series of six written transactions between the parties that occurred in August of 2016 for the sale
of various iPhone 5S cell phones by ACK to Plaintiff with specific requirements, particularly that
the cell phones be unlocked, meaning that they could be used in any country and by any mobile
network provider, and that ACK have unencumbered legal titles to the phones free of any third party
claims or liens. Id. at 2-14. Plaintiff set forth the details concerning the supplier’s agreements that
ACK executed and delivered to Plaintiff for each transaction, in which ACK confirmed that it was
the sole owner of the cell phones and that the ACK was in custody of the phones which were free
of any charges. Id. at 3. Plaintiff further outlined the invoices that ACK issued to Plaintiff for each
purchase order. Id. at 3-4.
Plaintiff alleged that the phones ordered in each of the six transactions were delivered by
ACK to Plaintiff’s freight forwarder, Prime Transport, in Florida, where the phones were then
shipped to Plaintiff’s various clients in the United States and all over the world. ECF Dkt. #1 at 214. Plaintiff further averred that ACK sold it a total of 3,550 cell phones and it paid ACK in total
the sum of $978,130.00. Id. at 15. Plaintiff alleged that of the 3,550 cell phones for which they paid
money and then sold to their customers, 1,706 of them were stolen property and were confiscated
by the Miami-Dade Police Department in Florida as part of an investigation and indictment of a ring
of cell phone thieves in Miami, Florida, and the other 1,844 phones were locked and possibly also
stolen property. Id. at 15. Plaintiff averred that all of the phones that it purchased from ACK were
useless to Plaintiff and its customers because they were locked and ACK lacked good title. Id.
Plaintiff asserted causes of action against ACK for Uniform Commercial Code (“UCC”)
breach of contract, UCC breach of warranties, theft and conversion, unjust enrichment, and negligent
misrepresentation. ECF Dkt. #1 at 16-20. Plaintiff detailed its attempts at recovery from ACK and
alleged that when it was finally able to have conversation with ACK, ACK agreed to unlock the
phones if Plaintiff paid a fee of $39.00 per phone and if Plaintiff bought ACK’s remaining stock of
iPhones. Id. at 16.
On February 1, 2016, ACK filed an answer. ECF Dkt. #21. The parties thereafter consented
to the jurisdiction of the undersigned on February 28, 2017, which the District Court Judge approved
on March 2, 2017. ECF Dkt. #s 25, 26.
On April 28, 2017, ACK filed an amended answer and a third-party complaint against
Berrylane. ECF Dkt. #34. ACK alleged that in July of 2016, Mr. Abdelwahab, an officer of
Berrylane, informed the ACK Sales Director that Berrylane had numerous iPhone 5S phones for sale
that were new in their boxes. Id. at 35. ACK alleges that it entered into numerous oral agreements
with Berrylane to buy 3,550 of the iPhone 5S phones for the sum of $952,991.79. Id. at 35-36.
ACK avers that in all of the oral agreements with Berrylane, it was understood and agreed by the
parties that the phones were to be usable and not stolen and Mr. Abdelwahab never told ACK that
their oral agreements involved stolen phones. Id. at 36. ACK averred that thereafter, a portion of
the phones that Berrylane sold to ACK were confiscated by the Miami-Dade Police Department as
a result of an investigation and indictment of a ring of cell phone thieves operating in Miami,
In the first count of its third-party complaint, ACK alleged a UCC breach of contract for
Berrylane entering into each oral contract and then delivering nonconforming goods to ACK as a
condition of those contracts was that the phones not be stolen. ECF Dkt. #34 at 37-38. ACK’s
Count Two alleged a UCC breach of warranty as Berrylane delivered phones to which it did not
have good title and which were not fit for their ordinary purpose. Id. ACK alleged theft and
conversion in its third count based upon the stolen phones, unjust enrichment in its fourth count,
negligent misrepresentation in its fifth count, and fraud in its sixth count. Id. at 38-40.
On May 1, 2017, Plaintiff filed a first amended complaint against ACK, Berrylane and Felix.
ECF Dkt. #38. Plaintiff realleged that it is and was engaged in the purchase and sale of cell phones
and ACK is and was at all relevant times engaged in procuring, refurbishing, and selling mobile
devices, including cell phones, which included a primary focus on Smartphones. ECF Dkt. #38 at
2. Plaintiff further avers that the owner/manager/incorporator of Berrylane, Shadi Abdelwahab,
physically delivered the goods at issue in this case to Prime Transport, Plaintiff’s freight forwarder,
located in Miami, Florida. Id. Plaintiff further alleges that the manager of Felix, Ibrahim Algahim
aka Abe Algahim, was also a driver who physically delivered the goods at issue in this case to Prime
Transport. Id. Plaintiff avers that ACK bought the cell phones at issue in this case from Berrylane
and ACK claims that it never possessed the cell phones and the majority of the money paid by
Plaintiff to ACK was paid to Defendants. Id. Plaintiff further alleges that “[t]o the extent that ACK
was acting at the direction of Berrylane and/or Felix, as an agent of Berrylane and Felix, Berryland
and Felix are liable to Plaintiff for any acts performed by its agent, ACK.” Id. at 3.
Plaintiff then reviews its six transactions concerning its purchase of the cell phones at issue
from ACK as it set forth in its original complaint, including the purchase orders, supplier agreements
and invoices. ECF Dkt. #38 at 3-15. Plaintiff realleges the standard terms and conditions of its
purchase orders, and notes the conditions that the cell phones would be unlocked and that ACK have
“free and unencumbered legal titles to these goods without any third parties claims or liens.” Id. at
3. Plaintiff reiterates that ACK sold it a total of 3,550 cell phones and it paid ACK in total the sum
of $978,130.00. Id. at 16. Plaintiff alleges that of the 3,550 cell phones for which they paid money
and then sold to their customers, 1,706 of them were stolen property and were confiscated by the
Miami-Dade Police Department in Florida as part of an investigation and indictment of a ring of cell
phone thieves in Miami, Florida, and the other 1,844 phones were locked and possibly also stolen
property. Id. Plaintiff avers that all of the phones that it purchased from ACK were useless to
Plaintiff and its customers because they were locked and ACK lacked good title to them. Id.
In the first amended complaint, Plaintiff asserts a cause of action for UCC breach of contract,
alleging that the purchase orders, supplier agreements and invoices between Plaintiff and ACK
constituted six different contracts and Plaintiff requested specifically identified goods from ACK
in those contracts with conditions of unlocked iPhones and legal title. ECF Dkt. #38 at 19. Plaintiff
alleged that the cell phones were nonconforming because ACK was not the sole owner of the ones
that were confiscated as stolen property, and the remaining cell phones were locked. Id. Plaintiff
averred that it demanded that ACK refund the cost of the nonconforming goods and ACK has failed
and refused to do so. Id. Plaintiff further alleges that “Defendants Berrylane and Felix are liable
to Plaintiff for ACK’s breaches of the Contracts as ACK’s undisclosed principal.” Id. Plaintiff
thereafter avers that due to “Defendants’ breaches of the Contracts,” Plaintiff has been damaged in
the amount of the price of the phones, plus incidental damages, but no less than $978,130.00. Id.
Plaintiff also asserts a cause of action for UCC breach of warranties, alleging that ACK
breached express warranties of fact and description when it failed to deliver conforming goods as
it did not have good title to the 1,706 iPhones that it delivered to Plaintiff. ECF Dkt. #38 at 19.
Plaintiff alleges that by delivering phones that were not fit for their ordinary purpose, ACK breached
implied warranties of merchantability. Id. at 20. Plaintiff avers that due to ACK’s breaches, it was
entitled to reject and did reject acceptance of the goods and “Defendants are liable to Plaintiff for
ACK’s breaches of ACK’s undisclosed principal.” Id. Plaintiff thereafter alleges that “[b]y virtue
of Defendants’ breaches of warranties to Plaintiff, Plaintiff has been damaged” in the amount of the
price of the phones, plus incidental damages, but no less than $978,130.00. Id.
In Count Three of its first amended complaint, Plaintiff alleges theft and conversion,
asserting that “Defendants used deception to deprive Plaintiff of its property, i.e, the funds that
Plaintiff wired to ACK for purchase of goods under the Contracts,” and “Defendants deceived
Plaintiff by representing that ACK had good title to some or all of the goods under the Contracts,
though it did not.” ECF Dkt. #38 at 20. Plaintiff alleges that these actions constitute theft under
Ohio law and it is entitled to recover from “Defendants” an amount believed to be $464,576.00 plus
punitive damages and attorney fees for their “intentional, willful, and wanton conduct.” Id. at 21.
Plaintiff brings a cause of action for unjust enrichment in Count Four of its first amended
complaint, alleging that its delivery of payment to ACK constituted the conferring of a benefit upon
ACK, “and upon Berrylane and Felix, as undisclosed principals of ACK.” ECF Dkt. #38 at 21.
Plaintiff avers that ACK was aware of and intended to receive Plaintiff’s payment for the phones
and allowing “Defendants” to retain the benefit of the payment would be unjust since “Defendants”
failed to deliver conforming goods to Plaintiff. Id. Plaintiff requests relief in the amount of the
price of the goods plus incidental damages, in an amount no less than $978,130.00. Id.
In its last count of the first amended complaint, Plaintiff alleges negligent misrepresentation,
averring that “Defendants” negligently misrepresented that at least 1,706 of the cell phones were not
stolen property when, at the time of the Contracts, they knew or should have known that they were
stolen, which was material to the transactions between the parties and “Defendants negligently failed
to disclose, or negligently concealed, the fact” that at least 1,706 of the phones were stolen. ECF
Dkt. #38 at 22. Plaintiff further alleges that it justifiably relied upon “Defendants’ negligent
representations and warranties,” to its detriment, and it was damaged in amount no less than
$464,576.00 plus punitive damages and attorney fees for “defendants’ intentional, willful, and
wanton conduct as described herein.” Id.
On May 12, 2017, ACK filed its answer to the first amended complaint. ECF Dkt. #40.
On June 29, 2017, Berrylane and Felix consented to the undersigned’s jurisdiction, which was
approved by the District Court on the same date. ECF Dkt. #59.
On July 28, 2017, Berrylane and Felix filed the instant motion to dismiss Plaintiff’s first
amended complaint against them. ECF Dkt. #64. Berrylane also filed an answer to ACK’s thirdparty complaint. ECF Dkt. #65. On August 11, 2017, Plaintiff filed a memorandum in opposition
to the motion to dismiss filed by Berrylane and Felix. ECF Dkt. #66. On August 18, 2017,
Berrylane and Felix filed a reply brief. ECF Dkt. #68.
On January 16, 2018, a Consent Judgment Entry was issued entering judgment in favor of
Plaintiff against ACK on Counts One and Two of its first amended complaint in the amount of
$634,033.15. ECF Dkt. #79.
STANDARD OF REVIEW
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a
complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).
Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” To survive a motion to dismiss, a complaint need not
contain “detailed factual allegations,” but it must contain more than “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action...” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). A complaint does not “suffice if it tenders ‘naked assertions’ devoid of ‘further
factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
As the Supreme Court provided in Iqbal and Twombly, “[t]o 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.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard “does not impose a probability requirement at the pleading stage; it simply calls
for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal
[conduct].” Twombly, 550 U.S. at 556.
In deciding whether the plaintiff has set forth a “plausible” claim, the court must accept the
factual allegations in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). This
presumption, however, is not applicable to legal conclusions. Iqbal, 556 U.S. at 668. Therefore,
“[t]hreadbare 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). The plaintiff need not set forth “detailed
factual allegations,” but the pleading standard set forth by the Supreme Court of the United States
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678
(citing Twombly, 550 U.S. at 555).
LAW AND ANALYSIS
Defendants assert in their motion to dismiss that Plaintiff’s claims against them are based
upon a theory that ACK was acting as their agent, but the first amended complaint contains no
factual allegations indicative of an agency relationship between Plaintiff and either Berrylane or
Felix. ECF Dkt. #64-1 at 2. Defendants contend that the first amended complaint sets forth no facts
demonstrating that Berrylane or Felix had any right to control ACK or that any contract, express or
implied, existed between ACK and Berrylane or Felix whereby ACK agreed to sell the phones for
them. Id. at 2-3. Defendants maintain that ACK was acting on its own behalf as neither Berrylane
nor Felix appeared on any of the contracts between Plaintiff and ACK and no facts in the first
amended complaint allege the existence of a principal-agent or master-servant relationship between
Plaintiff and Berrylane or Felix. Id. at 3. Defendants cite to Murray v. Choice Energy, LLC., No.
1:15CV60, 2015 WL 4204398 (S.D. Ohio July 10, 2015) in support of a finding that the Court
should dismiss a complaint for failure to state a claim when a plaintiff who is seeking relief under
a theory of agency fails to plead specific facts indicative of an agency relationship. Id. at 7.
In response, Plaintiff asserts that the existence of an agency relationship is not a claim, but
rather, it is a fact which supports Plaintiff’s claims against them and a dispute over an agency
relationship is a question of fact. ECF Dkt. #66, citing MJ Direct Consulting, L.L.C. v. Brooks &
Stafford Co., 2016-Ohio-7718 (8th Ohio App. Dist. Nov. 10, 2016).
Defendants are correct that a plaintiff must provide more than legal conclusions about the
existence of an agency relationship. “A complaint relying on agency must plead facts which, if
proved, could establish the existence of an agency relationship. It is insufficient to merely plead the
legal conclusion of agency.” McWilliams v. S.E., Inc., 581 F.Supp.2d 885, 893 (N.D. Ohio 2008),
quoting Bird v. Delacruz, No. 04-CV-661, 2005 WL 1625303, at *4 (S.D.Ohio July 6, 2005)
(quoting Gunderson v. ADM Investor Servs., Inc., 85 F.Supp.2d 892, 905 (N.D.Iowa 2000)). “While
the existence and extent of the agency relationship is a question of fact, the plaintiff must sufficiently
allege that an agency relationship existed in order to survive a Rule 12(b)(6) motion to dismiss.” Id.
(quoting MJ & Partners Restaurant Ltd. Partnership v. Zadikoff, 10 F.Supp.2d 922, 931
Defendants cite to Murray, an unreported case from the Southern District of Ohio, in which
the District Court granted a motion to dismiss by Defendant Choice Energy, LLC pursuant to Rule
12(b)(6) because the plaintiff sought relief under an agency theory but failed to set forth specific
factual allegations in the complaint to plausibly support an agency theory. ECF Dkt. #64-1 at 7,
citing Murray, 2015 WL 4204398. Defendants contends that in the instant case, much like the
plaintiff in Murray, Plaintiff has failed to plead specific facts of an agency relationship, such as the
right to control and the power to give interim instructions. Id. Through Murray, Defendants cite
to the Restatement (Third) of Agency 1.01 (2006), which provides that “[a]n essential element of
agency is the principal’s right to control the agent’s actions,” and elsewhere explains that “[t]he
power to give interim instructions distinguishes principals in agency relationships from those who
contract to receive services provided by persons who are not agents.” ECF Dkt. #64 at 6, quoting
Murray, 2015 WL 4204398, at *5 (quoting Restatement (Third) of Agency § 1.01 (2006)).
Defendants also cite Ohio caselaw holding that a relationship of agency is created by agreement,
either express or implied, where the parties agree that an agent will act on behalf of the principal.
ECF Dkt. #64-1 at 6, citing Ulhaq v. Trauma Serv. Group, P.C., 114 Ohio App.3d 113, 114, 682
N.E.2d 1050, 1052 (Ohio Ct.App.1996); Lewis v. Ohio Real Estate Comm., 121 Ohio App.3d 23,
27, 698 N.E.2d 1023, 1025 (Ohio Ct.App.1997). Defendants cite Ohio law in asserting that in
determining whether such an agency relationship exists, courts look to see whether the principal has
a right to control an agent’s conduct when the agent is performing work on behalf of the principal.
ECF Dkt. #64-1 at 6, citing Costell v. Toledo Hosp., 98 Ohio App.3d 586, 593, 649 N.E.2d 35, 39
(1994). Defendants note the various factors that Ohio courts look to when determining whether the
necessary amount of control exists in order to form an agency relationship. ECF Dkt. #64-1 at 6,
citing Davis v. Conrad Family Ltd. Partnership, 247 B.R. 690 (Bankr.N.D. Ohio 1999) (citing
Q–Team Nursing Care, Inc. v. Clearview Convalescent Center, Inc., 1989 WL 65395, at *3 (Ohio
App. 10th Dist. June 13, 1989)). Such factors include (1) whether the individual is performing in
the course of the principal's business rather than in some ancillary capacity; (2) whether the
individual was receiving any compensation from the principal; (3) whether the principal supplied
the tools and the place of work in the normal course of the relationship; (4) whether the individual
offers his services to the public at large or to one individual at a time; and (5) the length of the
relationship. ECF Dkt. #64-1 at 6, citing Davis, 247 B.R. 690.
While questions remain as to the existence of an agency relationship in the instant case, the
Court finds that Plaintiff has presented sufficiently specific factual allegations in its first amended
complaint to plausibly show the existence of an agency relationship between ACK, Berrylane and
Felix. Construing the facts alleged in the first amended complaint in a light most favorable to
Plaintiff, and accepting Plaintiff’s allegations as true, ACK bought the cell phones that it sold to
Plaintiff from Berrylane and the owners and manager of Berrylane and Felix physically delivered
the contracted for cell phones to Plaintiff’s freight forwarder in Miami, Florida. ECF Dkt. #38 at
2. Moreover, ACK never took possession of the phones and the majority of the funds that ACK
received from Plaintiff went to Berrylane and Felix. Id. Such facts as alleged by Plaintiff
sufficiently meet at least some of the factors to render it plausible that an agency relationship exists
between ACK, Berrylane and Felix, including the allegations that ACK acted in the course of the
principal’s business because Berrylane supplied the cell phones at issue but ACK indicated in its
contracts with Plaintiff that it owned and had custody of the cell phones, ACK received
compensation for the cell phone transactions but most of that compensation went to Berrylane and
Felix, who supplied the cell phones at issue and physically delivered them to Plaintiff’s freight
forwarder in Florida for the contracts between ACK and Plaintiff.
For the above reasons, the Court DENIES Berrylane and Felix’s motion to dismiss Plaintiff’s
first amended complaint against them. ECF Dkt. #64.
Date: March 7, 2018
/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE
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