Olwin Metal Fabrication LLC v. MultiCam Inc. et al

Filing 51

ENTRY SUSTAINING DEFENDANT MULTICAM, INC.'S MOTION TO DISMISS, IN PART, THE SECOND AMENDED COMPLAINT OF PLAINTIFF OLWIN METAL FABRICATION, LLC (DOC. # 41 ); CLAIMS TWO AND THREE OF OLWIN'S SECOND AMENDED COMPLAINT (DOC. # 38 ) ARE DISMISSED WITH PREJUDICE AS AGAINST MULTICAM; FINAL JUDGMENT SHALL ULTIMATELY ENTER IN FAVOR OF MULTICAM AND AGAINST OLWIN AS TO THOSE CLAIMS. Signed by Judge Walter H. Rice on 2/5/2024. (srb)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

OLWIN METAL
FABRICATION, LLC,

Case No. 3:22-cv-333

Plaintiff,

Judge Walter H. Rice

V.

Mag. Judge Peter B. Silvain, Jr.

MULTICAM, INC., et al.,
Defendants.

ENTRY SUSTAINING DEFENDANT MULTICAM, INC.'S MOTION TO DISMISS, IN
PART, THE SECOND AMENDED COMPLAINT OF PLAINTIFF OLWIN METAL
FABRICATION, LLC (DOC. #41); CLAIMS TWO AND THREE OF OLWIN'S SECOND
AMENDED COMPLAINT (DOC. #38) ARE DISMISSED WITH PREJUDICE AS
AGAINST MULTICAM; FINAL JUDGMENT SHALL ULTIMATELY ENTER IN FAVOR OF
MULTICAM AND AGAINST OLWIN AS TO THOSE CLAIMS

On October 19, 2023, Plaintiff Olwin Metal Fabrication, LLC, a pass-through
entity with both members being residents of Ohio, filed its Second Amended Complaint,
raising claims of Breach of Contract (Claim One), Fraud (Claim Two), and Unjust
Enrichment (Claim Three) against Defendants MultiCam, Inc. ("MultiCam"), a Texas
corporation, and MultiCam Great Lakes, Inc., d/b/a MultiCam Ohio Valley Technology
Center ("Great Lakes"), a Michigan corporation. (Doc. #38, PAGEID 476-77,

ffll 1-3).

MultiCam subsequently filed a Motion to Dismiss, In Part, Olwin's Second Amended
Complaint, moving that Claims Two (fraud) and Three (unjust enrichment) be dismissed
with prejudice as, for a third time, Olwin has failed to state claims upon which relief may

be granted. (Motion, Doc. #41, PAGEID 535, citing FE0.R.CIv.P. 12(b)(6)). For the
reasons set forth below, the Motion is SUSTAINED.

I.

Factual Background and Procedural History
As MultiCam has moved to dismiss under Rule 12(b)(6), the Court accepts all

well-pleaded factual allegations in the Second Amended Complaint as true. Solo v. Utd.

Parcel Serv. Co., 819 F.3d 788, 793 (6th Cir. 2016), citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). "On or about November 12, 2021, Olwin and Defendants began
discussions about Olwin's interest in purchasing the ARCOS Series Plasma Machine
(the Machine')." (Doc. #38, PAGEID 477, ,r 6). On November 17, 2021, Brian
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Newhouse, a Great Lakes sales representative, sent an email to Derrick Olwin, owner
of Olwin, making the following representations about the Machine: "All the standard
bevel cuts are thoroughly tested: A, V, Y, Inverted Y, X and K[;] Major angles tested
45,30, 15[; and] The cut charts are included in the Sigmanest Software[.]" (Ex. B, Doc.
#38-1, PAGEID 491 ). The signature block contained a logo accompanied by the phrase
"MULTICAM Complete CNC Solutions[.]" (Id.). The next day, Olwin agreed to
purchase the Machine, paying $111,652.00, fifty percent of the sale price, to Great
Lakes. (Doc. #38, PAGEID 477, ,r 8). Olwin agreed to the ARCOS Bridge & Rail
Plasma Agreement ("Agreement"), which contained an express warranty that "the
Machine would be 1fully functional and operating properly' at the time of installation."

(Id. at PAGEID 477-78, ,r 9 (citation omitted)). The Agreement contained descriptions
and specifications of the Machine and its component parts, along with a one-year parts
and labor warranty. (Ex. D, Doc. #38-1, PAGEID 510-15).

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The Agreement was executed by Newhouse, on behalf of Great Lakes, and
Derrick Olwin, on behalf of Olwin, with no mention of MultiCam. (Doc. #38-1, PAGEID
517). The Agreement's Terms and Conditions contained a choice of law clause,
providing that Texas law governed the Agreement. (Id. at PAGEID 520, ,r 13). "On or
about December 16, 2021, Olwin paid the remaining 50% due on the Machine, for a
total purchase price of $223,304.00." (Doc. #38, PAGEID 478, ,r 11 ). This payment,
like the previous payment, was made to Great Lakes. (Id. at PAGEID 478, ,r 13; Ex. C,
Doc. #38-1, PAGEID 492-94). However, the Machine was shipped from MultiCam's
facility in Dallas to Olwin's facility in Dayton, Ohio. (Ex. E, Doc. #38-1, PAGEID 521 ).
In January 2022, "MultiCam's subcontractor installed the machine and performed
training for Olwin on the Machine." (Doc. #38, PAGEID 479, ,r 16). However, the
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Machine suffered from myriad defects, and [c]onsistent with the Agreement listing
MultiCam and Great Lakes as sellers, representatives from MultiCam and Great Lakes
worked together to troubleshoot the Machine's deficiencies." (Id. at ,r 18). Yet, despite
Defendants' efforts, the Machine "has not worked as promised[,]" (id. at ,r 17), and has
been worthless to Olwin. (Id. at ,r 21 ).
On March 15, 2022, Olwin filed suit against MultiCam and Great Lakes in
Montgomery County, Ohio, Court of Common Pleas (Notice of Removal, Doc. #1,
PAGEID 1-2, ,r 1), and on April 14, 2022, filed an amended complaint. (Id. at PAGEID
2, ,r 7; First Am. Compl., Doc. #4). The First Amended Complaint raised five claimsthe breach of contract, fraud, and unjust enrichment claims described above, and two
claims arising under Texas statutory law. (Doc. #4, PAGE ID 210-12, fflI 17-34). Also
on April 14, MultiCam removed the matter to this Court, but it was remanded to the state

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court on September 28, 2022, as MultiCam had not shown the citizenship of Olwin's two
owner-members, and thus could not conclusively demonstrate that there was complete
diversity. (Id. at PAGEID 3,

,r 11, citing Case No. 3:22-cv-100).

MultiCam subsequently

propounded discovery on Olwin, and based on Olwin's answers to interrogatories dated
October 26, 2022, ascertained that Olwin's members are Ohio residents and that
complete diversity existed. (Id. at ,r 13, citing Resp. to Interrogatories, Doc. #1-3,
PAGEID 20). On November 21, 2022, MultiCam, with Great Lakes's consent, again
removed the case. (Id. at PAGEID 2, ,r 2). This removal was proper, as MultiCam is
correct that complete diversity exists and the amount in controversy exceeds $75,000.
28 U.S.C. § 1332(a).
On November 28, 2022, MultiCam moved to dismiss the First Amended
Complaint in toto as against MultiCam. (Doc. #6). On September 28, 2023, this Court
overruled MultiCam's motion as to the breach of contract claim but sustained it as to the
fraud, unjust enrichment, and the two Texas statutory claims, dismissing the latter four
without prejudice to refiling subject to the strictures of Rule 11. (Entry, Doc. #32,
PAGEID 398). Olwin subsequently filed its Second Amended Complaint, abandoning
its Texas statutory claims and repleading only its claims for breach of contract (Claim
One), fraud (Claim Two), and unjust enrichment (Claim Three). (Doc. #38). On
November 2, 2023, MultiCam filed the instant Motion. (Doc. "1141 ).

II.

Legal Standards
Federal Rule of Civil Procedure 8(a) provides that a complaint must contain "a

short and plain statement of the claim showing that the pleader is entitled to relief." The
complaint must provide the defendant with "fair notice of what the ... claim is and the
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grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Claims of fraud, however, are
governed by Rule 9(b ), under which "a party must state with particularity the
circumstances constituting fraud . . . . Malice, intent, knowledge, and other conditions of
a person's mind may be alleged generally." FED.R.CIv.P. 9(b) (emphasis added). The
United States Court of Appeals for the Sixth Circuit has interpreted Rule 9(b) to require
a claimant to specify the " who, what, when, where, and how of the alleged fraud."

Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006) (internal
quotation marks and citation omitted).
Rule 12(b)(6) allows a party to move for dismissal of a complaint on the basis
that it "fail[s] to state a claim upon which relief can be granted." The moving party "has
the burden of showing that the [opposing party] has failed to adequately state a claim
for relief." DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007), citing Carver v.

Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991 ). The purpose of a Rule 12(b)(6) motion to
dismiss "is to allow a defendant to test whether, as a matter of law, the plaintiff is
entitled to legal relief even if everything alleged in the complaint is true." Mayer v.

Mylod, 988 F.2d 635,638 (6th Cir. 1993). In ruling on the motion, the Court must
"construe the complaint in the light most favorable to the plaintiff, accept its [wellpleaded] allegations as true, and draw all reasonable inferences in favor of the plaintiff."

Treesh, 487 F.3d at 476.
Nevertheless, to survive a Rule 12(b)(6) motion to dismiss, the complaint must
contain "enough facts to state a claim to relief that is plausible on its face." Twombly,
550 U.S. at 570. Unless the facts alleged show that the plaintiff's claim crosses "the line

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from conceivable to plausible, [the] complaint must be dismissed." Id. Although this
standard does not require "detailed factual allegations," it does require more than
"labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do." Id. at 555. "Rule 8 ... does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79. Legal
conclusions "must be supported by well-pleaded factual allegations" that "plausibly give
rise to an entitlement of relief." Id. at 679.
In ruling on a motion to dismiss, the Court may consider "the Complaint and any
exhibits attached thereto, public records, items appearing in the record of the case and
exhibits attached to defendant's motion to dismiss so long as they are referred to in the
Complaint and are central to the claims contained therein." Bassett v. Nat'/ Collegiate
Athletic Ass'n, 528 F .3d 426, 430 (6th Cir. 2008).

Ill.

Analysis
A.

Claim Two: Fraud

Before evaluating, the Court must determine what state's substantive law
applies, as Claims Two and Three arise under state law and the Agreement has a
choice-of-law clause As this Court is sited in Ohio, it must apply Ohio's choice-of-law
rules. See, e.g., Cassirer v. Thyssen-Bornemisza Collection Found., 596 U.S. 107, 115
(2022) C-According to long-settled precedent, a federal court sitting in diversity borrows
the forum State's choice-of-law rule."). "Under Ohio law, contractual choice-of-law
provisions are valid and enforceable." Miami Valley Mobile Health Servs., Inc., v.
ExamOne Worldwide, Inc., 852 F. Supp. 2d 925, 932 (S.D. Ohio 2012) (Rice, J.), citing

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Schulke Radio Prod. Ltd. v. Midwestern Broad. Co., 6 Ohio St. 3d 436, 438-39 (1983). 1
Thus, as MultiCam notes and Olwin does not dispute, Texas law applies to Olwin's
claims.
Texas law requires a plaintiff claiming fraud to plead that: (1) the defendant made
a material misrepresentation, (2) the statement was made with knowledge of its falsity
or in reckless disregard of the truth, (3) the statement was made with the intent of
inducing reliance by plaintiff, (4) plaintiff did, in fact, rely on the statement; and (5)
plaintiff suffered a consequent injury. (Doc. #41, PAGEID 536-37, quoting Anderson v.

Durant, 550 S.W.3d 605, 614 (Tex. 2018)). Olwin's fraud claim arises out of statements
contained in two sources: ( 1} Newhouse's email; and (2) the Agreement. (Doc. #41,
PAGEID 538, 540). MultiCam argues that Olwin lacks a viable fraud claim based on
those statements, for four reasons. First, Newhouse is a Great Lakes employee, and
Olwin has failed to allege an agent-principal relationship between Newhouse and
MultiCam, such that the farmer's representations could be imputed to the latter. (Id. at
PAGEID 537-38). Second, Olwin claims only that MultiCam or Great Lakes made
misrepresentations in the Agreement itse/f.-specifically, that the Machine and specific
component parts would work properly. That the Machine did not work may give rise to a
breach of contract claim, but absent some indicia that MultiCam or Great Lakes knew
that the contractual provisions were false at the time the Agreement was consummated,
any misrepresentations cannot support a freestanding fraud claim. (Id. at PAGEID 540,

Even if this Court were to construe the Agreement as an adhesion contract, rather than a bilateral
meeting of the minds, the choice-of-law provision would still apply so long as its application "does not
'result in substantial injustice.'ff Wise v. Zwicker & Assocs., P.C., 780 F.3d 710, 715 (6th Cir. 2015),
quoting Restatement (Second) of Conflict of Laws § 187 cmt. b. As Olwin is a sophisticated party that
negotiated an arms-length purchase of the Machine, no substantial Injustice results from its enforcement.
1

7

quoting Crim Truck & Tractor Co. v. Navistar Int'/ Transp., 823 S.W.2d 591,597 (Tex.
1992), superseded by statute on other grounds as discussed in Subaru of Am., Inc. v.
David McDavid Nissan, Inc., 84 S.W.3d 212, 225-26 (Tex. 2002); Sudan v. Sudan, 145
S.W.3d 280,290 (Tex. App. Houston 14th Dist. 2004), rev'd on other grounds, 199
S.W.3d 291 (Tex. 2006)).
Third, MultiCam claims that while Olwin alleged in a conclusory fashion that
MultiCam made false statements in the Agreement, it failed to identify what those
statements were, and thus failed to plead with the specificity required by Rule 9(b ).
(Doc. #41, PAGEID 540, quoting Doc. #38, PAGEID 482, ,r 35). Finally, Olwin failed to
identify: which statements by Newhouse or in the Agreement that it relied upon in
entering the Agreement; how it relied upon the statements; or why, as is required under
Texas law, its reliance was justified. (Id. at PAGEID 541, quoting Doc. #38, PAGEID
482, ,r 36; Tri-Med Fin. Co. v. Nat'/ Century Fin. Enterprises, Inc., 2000 WL 282245, *7,
208 F.3d 215 (6th Cir. Mar. 6, 2000) (unpublished table disposition); Allen v. Devon
Energy Holdings, L.L.C., 367 S.W.3d 355,386 (Tex. App. Houston 1st Dist. 2012),
vacated per agreement at Devon Energy Holdings, L.L.C. v. Allen, No. 12-0253, 2013
WL 12499073 (Tex. Jan. 11, 2013)). MultiCam asserts that because failure to plausibly
allege all elements is fatal to a fraud claim, and Olwin has failed with respect to
plausibly allege several of the elements, Claim Two should be dismissed with prejudice.
(Id.).
Olwin argues that it specifically alleged false representations by Newhouse in his
email to Plaintiff, and that the Agreement contained specific guarantees about the
Machine. (Doc. #44, PAGEID 559-60, quoting Doc. #38, PAGEID 477-78, 481;

8

ffll 9,

32-34; citing Doc. #38-1, PAGEID 517). Olwin also notes that the Court allowed the
breach of contract claim to proceed because the Court concluded that it was plausible
that MultiCam and Great Lakes were in privity with respect to the sale of the Machine.
Olwin argues that, just as MultiCam could be bound by Great Lakes's assent to the
Agreement, MultiCam can be bound by Newhouse and Great Lakes's representations.

(Id. at PAGEID 560-61, quoting Doc. #32, PAGEID 402-03). Further, Olwin asserts that
MultiCam and Great Lakes hold themselves out as part of a unified company, MultiCam
Complete CNC Solutions, and the "Second Amended Complaint is replete with
evidence that MultiCam and Great Lakes worked together on the sale, agreement,
payment, delivery, installation, training and troubleshooting of the Machine." (Id. at
PAGEID 562-63, quoting Doc. #38, PAGEID 478-79,

ffll 10-16, 18). Thus, Olwin

concludes, the representations made by Newhouse in the email and by Great Lakes in
the Agreement are attributable to MultiCam. (Id. at PAGEID 563). "It was the
representations contained within the Agreement, coupled with the specific
representations from a MultiCam Complete CNC Solutions employee that Plaintiff relied
upon to purchase the Machine. Unfortunately, the Machine could not perform as
represented by Defendants, rendering those representations both in the Agreement and
the email fraudulent." (Id.).
For Claim Two, the Court need not address whether Newhouse's statements
may be attributed to Multi-Cam; even if the statements are attributable, thus satisfying
the "who" element of fraud, they do not satisfy the "what." The only representations
made by Newhouse were: "All the standard bevel cuts are thoroughly tested: A, V, Y,
Inverted Y, X and K[;] Major angles tested 45,30, 15[; and] The cut charts are included in

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the Sigmanest Software." (Doc. #38, PAGEID 481, 1132). Yet, the problems with the
Machine identified in the Second Amended Complaint are: "the 5-axis feature does not
work properly when attempting to bevel; the Machine will not part mark with the
Hypertherm XPR as it should (without modification of G-code); and the Machine will not
pre-pierce (without modification of G-code).n (Id. at PAGEID 479, 1117). There are no
allegations of issues with the bevel cuts; nor does Olwin claim that the cut charts were
not properly loaded onto the Machine's software. Thus, it is not apparent that
Newhouse even stated anything untrue.
More importantly, there is no reasonable way to read Newhouse's statements as

fraudulent, i.e., with knowledge of falsity or reckless disregard of the truth. Anderson,
550 S.W.3d at 614. The Second Amended Complaint's allegations and supporting
materials are devoid of any indication that that the bevel cuts and angles were not
tested prior to shipping, much less that Newhouse knew that. Nor is there any
indication that Newhouse knew or reasonably should have known that the cut charts
loaded on the Machine did not work properly with the software, or that the cut charts
would cause the Machine to malfunction.
The same analysis applies with respect to the statements made in the
Agreement. Other than the 5-axis head not working properly (Doc. #38, PAGEID 479,

,r

17), Olwin does not allege whether, much less how, problems with the other
specifications represented by Great Lakes and MultiCam2 (id. at PAGEID 481,

,r 33),

prevented the Machine from working properly. More importantly, as above, Olwin does

Because it does not affect the outcome, the Court assumes arguendo for the purpose of Claim Two that
Defendants were in privity such that contractual representations made by Great Lakes are attributable to
MultiCam.

2

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not allege that MultiCam and Great Lakes knew or should have known that any of the
specified components would malfunction. Similarly, the statement that MultiCam and
Great Lakes ''will guarantee the MultiCam CNC to be fully functional and operating
properly at the time of installation" (id. at ,r 34 ), is a provision of the Agreement, as
Olwin concedes. (Id., quoting Doc. #38-1, PAGEID 517). Olwin does not allege that
MultiCam and Great Lakes made that promise knowing that the Machine would not
work, or recklessly ignoring facts indicating that it would not, much less that MultiCam
and Great Lakes did so to induce Olwin to sign the Agreement.
In sum, this is simply a case where a product promised by a contract allegedly
did not work as promised, and under Texas law, "[a]s a general rule, the failure to
perform the terms of a contract is a breach of contract, not a tort" such as fraud. Crim

Truck, 823 S.W.2d at 597. The Second Amended Complaint and its exhibits gives this
Court no reason to depart from that general rule.
Olwin attempts to save its claim by alleging that "[a]t all relevant times, these
various representations were false and were known by MultiCam and Great Lakes to be
false; or alternatively, these various representations were made with reckless disregard
of their truth or falsity. Such representations were made with the intent that Plaintiff rely
thereon to its detriment" (Doc. #38, PAGEID 482,

,r 35), and that Olwin "did, in fact,

reasonably rely to its detriment on such representations by agreeing to purchase the
Machine even though the Machine was not capable of performing in the ways in which
Defendants specifically represented." (Id. at ,r 36). Yet, Twombly and Iqbal put to rest
the notion that such conclusory allegations could satisfy Rule 8(a), much less the more
demanding Rule 9{b ): "A pleading that offers 'labels and conclusions' or 'a formulaic

11

recitation of the elements of a cause of action will not do."' Iqbal, 556 U.S. at 678,
quoting Twombly, 540 U.S. at 555; see a/so id., quoting Twombly, 540 U.S. at 555
("Although for the purposes of a motion to dismiss we must take all of the [well-pleaded]
factual allegations in the complaint as true, we 'are not bound to accept as true a legal
conclusion couched as a factual allegation[.]"'). The Court will not consider these
allegations, as they are devoid of substance.
Absent any plausible allegation that Newhouse, Great Lakes, or MultiCam itself
made any knowingly false statements with respect to the Machine, Olwin has failed to
set forth a viable claim for fraud. Accordingly, Claim Two must be dismissed.

B.

Claim Three: Unjust Enrichment

In its September 28, 2023, Entry, the Court held that Olwin's unjust enrichment
claim, while permissible to be pleaded in the alternative, failed as pleaded for two
reasons. First, Olwin did "not specify which of the Defendants the monies were sent to,
nor which of the Defendants delivered the Machine." (Doc. #32, PAGEID 411 ). Thus,
Olwin had "not pleaded sufficient facts for this Court to identify either upon whom the
benefit was conferred or that the recipient of that benefit had knowledge of the benefit."

Id. Second, Olwin "failed to plead enough facts to establish that a legal relationship
exists between MultiCam and Great Lakes (and what that relationship was), thus
enabling Olwin to claim either or both defendants are jointly and severally liable for the
actions or obligations of the other." (Id. at PAGEID 412).
Olwin claims that it has cured the defects with the Second Amended Complaint
by alleging that: (1) it paid Great Lakes $223,304.00 for the machine; (2) MultiCam
delivered the machine to Olwin, acknowledging receipt of the benefit; and (3)

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Defendants kept the money even though the Machine never worked properly, despite
MultiCam and Great Lakes working together to troubleshoot issues. (Doc. #44,
PAGEID 563-65, quoting Doc. #38, PAGEID 479,

,m 17, 19; citing MultiCam Answer,

Doc. #40, PAGEID 529, ,r 18). In so pleading, Olwin argues, it has met its burden of
alleging that (1) Olwin conferred a benefit on MultiCam; (2) MultiCam had knowledge of
the benefit; and (3) MultiCam retained the benefit when doing so was unjust. (Id. at
PAGEID 563, citing Jones v. Ohio Nat'/ Life Ins. Co., No. 1:20-cv-654, 2022 WL
1128596, at *11 (S.D. Ohio Apr. 15, 2022)).
MultiCam correctly notes that under Texas law, unjust enrichment is a quasicontractual remedy theory only available when a party obtains an undue benefit in the

absence of a valid contract. (Reply, Doc. #46, PAGEID 588, quoting Fortune Prod. Co.
v. Conoco, Inc., 52 S.W.3d 671,683 (Tex. 2000); Mason v. Mason, No. 07-12-00007cv, 2014 WL 199649, at *5 {Tex. App. Amarillo Jan. 13, 2014); citing Heldenfels Bros.,

Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 {Tex.1992); Reveille Trucking, Inc. v.
Lear Corp., No. 4:14-cv-511, 2017 WL 661521, at *13 (S.D. Tex. Feb. 17, 2017)). The
Court has already determined that Olwin has a plausible breach of contract claim
against MultiCam. (Doc. #32, PAGEID 405-06). Thus, Olwin could theoretically recover
for unjust enrichment only if it was determined that no contractual relationship existed
between Olwin and MultiCam, but that MultiCam wrongfully retained a benefit conferred
by Olwin. Yet, Olwin's Second Amended Complaint forecloses that alternative. Olwin
alleges that "Great Lakes received, and retained, the full purchase [price] of the
Machine, totaling $223,304.00." (Doc. #38, PAGEID 483, ,r 42 (emphasis added)).
Olwin does not allege that MultiCam ever obtained or retained any of the purchase

13

price. Nor does Olwin claim that it conferred another benefit on either or both of the
Defendants besides payment of the purchase price. As there was no benefit conferred
upon and retained by MultiCam, which Olwin concedes is a separate entity from Great
Lakes (id. at PAGEID 476-77,

,m 2-4), Olwin cannot plausibly allege an unjust

enrichment claim against MultiCam, and Claim Three must be dismissed as against it.

C.

Dismissal with Prejudice

MultiCam has asked that Claims Two and Three be dismissed as against it with
prejudice; i.e., that Olwin not be granted leave to amend further. "The district court has
discretion in determining whether to permit an amendment[.]" Sinay v. Lamson &

Sessions Co., 948 F.2d 1037, 1041 (6th Cir. 1991). While the Court is mindful of its
obligation to ''freely grant leave as justice so requires[,]" FE0.R.CIv.P. 15(a)(2), a "district
court may deny a plaintiff leave to amend his or her complaint ... when the proposed
amendment would be futile"; specifically, when a new amended complaint would not
survive a renewed Rule 12(b)(6) motion to dismiss. Kottmyer v. Maas, 436 F.3d 684,
692 (6th Cir. 2006).
Here, Olwin has already repleaded once, but is no closer to viable fraud and
unjust enrichment claims than it was in the First Amended Complaint. The fraud (Claim
Two) allegations do not support an inference that anyone willfully misrepresented
anything with respect to the Machine; rather, the Machine simply has not worked as it
was supposed to pursuant to the Agreement. In other words, Olwin is alleging a
garden-variety breach of contract claim, and absent additional specific allegations of
bad faith and detrimental reliance that it cannot provide, that breach of contract claim
may not be transformed into one for fraud. Further, Olwin has pleaded a paradox with

14

respect to breach of contract (Claim One) and unjust enrichment (Claim Three). Olwin
can only recover in unjust enrichment if MultiCam is not in contractual privity with Great
Lakes. Yet, if MultiCam is not in privity, then it cannot be sued for unjust enrichment,
because it is not alleged that MultiCam received any independent benefit. These are
structural problems that repleading cannot fix . Accordingly, Olwin will not be granted
leave to amend further Claims Two and Three, and they are dismissed with prejudice.

IV.

Conclusion
For the foregoing reasons, MultiCam's Partial Motion to Dismiss (Doc. #41) is

SUSTAINED. Claims Two (Fraud) and Three (Unjust Enrichment) in the Second
Amended Complaint (Doc. #38) are dismissed with prejudice as against MultiCam.
Final judgment shall ultimately enter in favor of MultiCam and against Olwin on those
claims.

IT IS SO ORDERED .
J

L)c,.;Q-::v l>t • ~ U - .
February 5, 2024

WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT

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