MUNKSJO PAPER AB v. BEDFORD MATERIALS CO., INC.

Filing 30

MEMORANDUM OPINION AND ORDER terminating 9 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 16 Motion to Dismiss for Failure to State a Claim. Defendant's Motion is GRANTED to the extent that only Count IV of the Amended Complaint is DISMISSED WITH PREJUDICE. Defendant's Motion is DENIED in all other regards, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 1/9/2018. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)

MUNKS JO PAPER AB,

Case No. 3:16-cv-270

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)

v.

)

)

BEDFORD MATERIALS CO., INC.,

)
)

Defendant.

)

MEMORANDUM OPINION

I.

Introduction

Pending before the Court is Defendant's Motion to Dismiss Plaintiff's Amended
Complaint. (ECF No. 16.) The Motion has been fully briefed (see ECF Nos. 17, 18) and is
ripe for disposition.
This case arises from Defendant Bedford Materials Co., Inc.' s ("Bedford") alleged
failure to make timely payments owed to Plaintiff Munksjo Paper AB ("Munksjo")
pursuant to a long-term supply agreement and two promissory notes. Bedford now asks
this Court to dismiss Count I, Count III, and Count IV of Munksjo' s four-count Amended
Complaint for failure to state a claim upon which relief may be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6). Bedford has not moved to dismiss Count II. 1

While Bedford's Brief in Support of Motion to Dismiss Amended Complaint for Failure to State a
Claim Upon Which Relief Can Be Granted includes a final section that briefly references the
dismissal of Count II (see ECF No. 17 at 18-19), Bedford's Motion to Dismiss Plaintiff's Amended
Complaint (ECF No. 16) asks for the dismissal of only Count I, Count III, and Count IV. The language
in Bedford's Brief regarding the dismissal of Count II does not provide any Count II-specific
argument, and this passing reference to the dismissal of Count II in the brief is contradicted by the
remainder of the brief, which asks only for the dismissal of Count I, Count III, and Count IV. (See
ECF No. 17at19-20.) Moreover, Bedford's proposed order, likewise, asks this Court to dismiss only
1

For the reasons that follow, this Court will GRANT IN PART and DENY IN PART
Bedford's Motion.

II.

Jurisdiction and Venue
The Court has subject matter jurisdiction pursuant to 28 U.S.C § 1332(a)(l) because,

according to the allegations of the Amended Complaint, Munksjo is a Swedish company
with its principal place of business in Sweden, Bedford is a Pennsylvania corporation with
its principal place of business in the Commonwealth of Pennsylvania, and the amount in
controversy exceeds $75,000. (ECF No. 13 ':[':[ 1-3.) The Court has personal jurisdiction
because Bedford has established sufficient minimum contacts with Pennsylvania and/or the
claims asserted are related to or arise out of Bedford's contacts with Pennsylvania. (Id. ':II
4.) Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because a substantial
portion of the alleged events or omissions giving rise to Munksjo's claims occurred in the
Western District of Pennsylvania. (Id. at ':II 8.)

III.

Procedural History
Munksjo initiated the present matter by filing its original Complaint on December

27, 2016. (ECF No. 1.) In response, Bedford filed its first Motion to Dismiss and an
accompanying brief on May 26, 2017. (ECF Nos. 9, 10.)
Mooting this first Motion to Dismiss prior to a decision by this Court, Munskjo filed
its Amended Complaint on June 15, 2017. (ECF No. 13.) Munksjo organized its Amended
Complaint into four counts-all alleging claims arising out of business transactions

Count I, Count III, and Count IV-not Count II. (See ECF No. 16-1.) Bedford's omission of a request
to dismiss Count II is further discussed below. See supra Part VI.D.

2

between Munksjo and Bedford. Specifically, the Amended Complaint alleges claims for (1)
breach of the Long Term Supply Agreement by Bedford for failure to make timely
payments, (2) breach of the Promissory Note and the First Amendment to the Promissory
Note by Bedford for failure to make timely payments, (3) breach of the Long Term Supply
Agreement by Bedford relating to advance inventory held by Munksjo, and (4) unjust
enrichment by Bedford for retaining Munksjo's product without payment. (Id. <JI<JI 31-64.)
On June 29, 2017, Bedford responded by filing its Motion to Dismiss Plaintiff's
Amended Complaint (ECF No. 16) and its Brief in Support of Motion to Dismiss Amended
Complaint for Failure to State a Claim Upon Which Relief Can Be Granted. (ECF No. 17.)
Lastly, Munksjo filed its Brief in Response to Defendant's Motion to Dismiss Plaintiff's
Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted on
July 19, 2017. (ECF No. 18.)
IV.

Factual Allegations Set Forth in the Amended Complaint
The following facts, which the Court accepts as true for the purposes of deciding

Bedford's Motion to Dismiss, are alleged in the Amended Complaint. (See ECF No. 13.)
On or about March 1, 2013, Munksjo entered into a Long Term Supply Agreement
("LTS Agreement") with Bedford.

(Id. <JI 6.)

Broadly, Bedford agreed to purchase

"thermally-upgraded kraft paper" ("Product") from Munksjo at preferred pricing levels for
five years. (Id.) Despite being dated "December 21, 2012," (see ECF 13-1, Ex. A at 1), the
LTS Agreement was not made effective until March 12, 2013. (ECF No. 13 at 2 n.1.)
Under the terms of the LTS Agreement, Bedford agreed to order a minimum of 60%
of its yearly Product requirement from Munksjo. (Id. <JI 7.) Munksjo agreed to maintain two
3

to three months' worth of advance inventory of the Product. (Id.) The LTS Agreement
provides that orders would be made according to the "usual customary practices of [the
parties]." (Id. <JI 8; ECF No. 13-1, Ex. A <JI 3.) Munksjo would supply Bedford with the
Product and subsequently invoice Bedford for the supplied Product. (ECF No. 13 <JI 8.)
Bedford agreed to pay all invoices within 60 calendar days of the date of the invoice. (ECF
No. 13 <JI 8; ECF No. 13-1, Ex. A <JI 5.A.) Bedford also agreed to pay interest on all past due
invoices equal to the greater of 0.9% per month or the highest rate allowed by law. (ECF
No. 13 <JI 9; ECF No. 13-1, Ex. A <JI 5.B.)
Since the implementation of the LTS Agreement, Munksjo has provided the Product
to Bedford as specified under the LTS Agreement and has issued invoices for payment for
the Product. (ECF No. 13 <JI 10.) However, in 2013, Bedford failed to timely make payments
on "several" invoices, resulting in Bedford becoming delinquent under the terms of the LTS
Agreement. (Id. <JI 11.) From that first failure to make timely payments until at least the
filing of the Amended Complaint, Bedford has "continually made late and/or no payment
on invoices" issued by Munksjo, resulting in a past due and owing balance of $932,372.44,
including interest. (Id. <JI 12; ECF No. 13-1, Ex. B.)
To accommodate Bedford's delinquency under the LTS Agreement, on March 12,
2013, Munksjo agreed to remove $750,000 from accounts receivable liability and transform
that same amount into the Promissory Note. (ECF No. 13 <JI 14; ECF No. 13-1, Ex. C.) The
Promissory Note states that, in the event of default,2 Munksjo may immediately declare the

Default occurs when "(a) [Bedford] shall fail to pay when due any amounts under this Note" or
"(b) [t]he occurrence of an Event of Default under that certain Long Term Supply Agreement

2

4

unpaid principal balance and accrued interest to be due. (ECF No. 13 <[<[ 15-16; ECF No.
13-1, Ex. C.) The Promissory Note further provides for a "late fee" equal to 5% amounts
paid 10 days or more late and provides Munksjo with the option to impose 18% fixed
interest per annum on the unpaid principal balance of the Promissory Note in the event of
a default. (ECF No. 13 <[ 17; ECF No. 13-1, Ex. C.) Under the Promissory Note, Bedford
also agreed "to pay all costs, including but not limited to attorneys' fees, incurred by
[Munksjo] in connection with collecting or enforcing an obligation of [Bedford] to
[Munksjo] hereunder." (ECF No. 13 <[ 18; ECF No. 13-1, Ex. C.)
On March 2, 2016, Munksjo further agreed to accommodate Bedford's delinquency
by executing the First Amendment to the Promissory Note ("First Amendment"). (ECF No.
13 <[ 19; ECF No. 13-1, Ex. D.)

The First Amendment modified Bedford's payment

obligation, deferring the principal amount due until December 21, 2018, with principal
payments of $150,000 plus all accrued interest due on or before each of December 21, 2016,
December 21, 2017, and December 21, 2018. (ECF No. 13 <[ 20; ECF No. 13-1, Ex. D.)
As of December 21, 2016, Bedford has failed to make payment pursuant to the
Promissory Note and the First Amendment as required by their terms. (ECF No. 13 <[ 21.)
Additionally, under the LTS Agreement, Munksjo manufactured and maintains two
to three months' advance inventory of the Product ("Advance Inventory"). (Id. <[ 22.)
Because the Product is a unique specialty electrotechnical paper specifically manufactured
for Bedford, Munksjo is unaware of any alternate buyer for the Product. (Id. <[<[ 23-24.)

between Munksjo Paper AB and Bedford Materials Co., Inc. dated March 12, 2013." (ECF No. 13 'JI
16; ECF No. 13-1, Ex. C.)

5

In the spring of 2016, Bedford ceased communications with Munksjo, preventing
Munksjo from making arrangements regarding the disposition of Advance Inventory and
the delinquent invoices. (Id.

<J[

25.) At the time the Amended Complaint was written,

Munksjo had in excess of $963,858.90 worth of the Product that it manufactured and
maintained specifically for Bedford, which is unlikely to be sold. (Id.

V.

<J[

27.)

Standard of Review
A complaint may be dismissed under Federal Rule of Civil Rule 12(b)(6) for "failure

to state a claim upon which relief can be granted." Connelly v. Lane Const. Corp., 809 F.3d
780, 786 (3d Cir. 2016). But, detailed pleading is not generally required. Id. The Rules
demand only "a short and plain statement of the claim showing that the pleader is entitled
to relief" to give the defendant fair notice of what the claim is and the grounds upon which
it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P.
8(a)(2)).
Under the pleading regime established by Twombly and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps. 3 First, the court must "tak[e] note of the
elements [the] plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009). Second, the court should identify allegations that, "because they are no more than
conclusions, are not entitled to the assumption of truth." Id. at 679; see also Burtch v. Milberg

Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) ("Mere restatements of the elements of a claim

Although Iqbal described the process as a "two-pronged approach," Iqbal, 556 U.S. at 679, the
Supreme Court noted the elements of the pertinent claim before proceeding with that approach, id.
at 675-79. Thus, the Third Circuit has described the process as a three-step approach. See Connelly,
809 F.3d at 787; Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d Cir. 2011) (citing Santiago v.
Warminster Township, 629 F.3d 121, 130 (3d Cir. 2010)).

3

6

are not entitled to the assumption of truth.") (citation omitted). Finally, "[w]hen there are
well-pleaded factual allegations, [the] court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at
679. "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.; see also Connelly, 809 F.3d at 786. Ultimately, the plausibility determination is
"a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Iqbal, 556 U.S. at 679.

VI.

Discussion
Bedford has moved to dismiss Count I, Count III, and Count IV for failure to state a

claim upon which relief may be granted. (See ECF No. 17 at 4-18.) Bedford also included a
"catchall" request for the dismissal of Count II, Count III, and Count IV in its brief. (See id.
at 18-19.) The Court will address each of Bedford's arguments in tum.

A. Count I Sufficiently Alleges a Claim for Breach of Contract
Bedford first asserts that Count I of the Amended Complaint should be dismissed
because it "is premised on the speculative, nonconcrete, allegations that 'Bedford has
ceased purchasing sixty percent (60%) of the Product it requires as mandated by the
Agreement, and has not provided any assurances that Bedford will comply with this
requirement in the future."' (ECF No. 17 at 4 (quoting ECF No. 13 11: 35).) Bedford also
argues that, in the alternative, Count I is not ripe for adjudication. (Id. at 8.) The Court is
not persuaded by either of Bedford's arguments.

7

While Bedford may certainly question whether Munksjo can produce sufficient facts
to support its allegations through a motion for summary judgment or argue the credibility
of Munksjo's evidence at trial, the Court holds that Munksjo has alleged sufficient,
presumptively true factual content to allow the Court to draw the reasonable inference that
Bedford is liable for breach of the LTS Agreement. See UPMC v. CBIZ, Inc., Case No. 3:16cv-204, 2017 WL 4357984, at *8 (W.D. Pa. Sept. 29, 2017) (citing Iqbal, 556 U.S. at 679;

Connelly, 809 F.3d at 786).
To establish a breach of contract claim under Pennsylvania law, 4 a plaintiff must
allege: "(1) the existence of a contract, including its essential terms, (2) a breach of a duty
imposed by the contract, and (3) resultant damages." Seneca Resources Corp. v. S & T Bank,
122 A.3d 374, 379 (Pa. Super. Ct. 2015) (quoting McCausland v. Wagner, 78 A.3d 1093, 1101
(Pa. Super. Ct. 2013)).

Munksjo's Amended Complaint includes sufficient factual

allegations to reasonably infer that each of these elements is satisfied. UPMC, 2017 WL
4357984, at *8 (citing Iqbal, 556 U.S. at 679; Connelly, 809 F.3d at 786).
First, the Amended Complaint not only alleges the existence of the LTS Agreement
but also includes the LTS Agreement itself as an exhibit. (See ECF No. 13 <]"[<JI 6-13; ECF No.

The Court observes that the LTS Agreement expressly provides for the application of Pennsylvania
Jaw. (ECF No. 13-1, Ex. A 'II 16.) While neither party provided argument regarding whether
Pennsylvania substantive law governs the LTS Agreement, the Court holds that the contractual
choice of law provision in the LTS Agreement is enforceable because Bedford is a Pennsylvania
corporation with its principal place of business in Pennsylvania, making Pennsylvania law a
reasonable choice of law by the parties, and nothing before the Court suggests that the fundamental
policies of any other state overrides Pennsylvania's interest. See Kruzits v. Okuma Mach. Tool, Inc., 40
F.3d 52, 55 (3d Cir. 1994) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941)); Schifano
v. Schifano, 471 A.2d 839, 843 n.5 (Pa. Super. Ct. 1984); Hadeed v. Advanced Vascular Resources of
Johnstown, LLC, Case No. 3:15-cv-22, 2017 WL 4998663, at *7 n.12 (W.D. Pa. Oct. 30, 2017);
Restatement (Second) of Conflict of Laws§ 187 (Am. Law. Inst. 1971).
4

8

13-1, Ex. A.) Second, despite Munksjo purportedly fulfilling its obligations under the LTS
Agreement, Munksjo alleges that Bedford breached its duties under the LTS Agreement by
"failing or refusing to make timely payments due to Munksjo under the Invoices." (ECF
No. 13 <JI<JI 33-34.) Third, the Amended Complaint alleges that "Munksjo has suffered
damages in the amount of $932,372.44, plus interest accruing and lost profits in an
unliquidated amount." (Id. <JI 36.) The Amended Complaint also features numerous other
details that, if assumed to be true, lead to the reasonable inference that Bedford breached
the LTS Agreement. (See id. <JI<JI 1-36.)

Therefore, Munksjo has adequately pleaded the

elements to sustain a breach of contract claim under Pennsylvania law. See Seneca, 122 A.3d
at 379 (quoting McCausland, 78 A.3d at 1101).
Bedford offers extensive argument regarding the Advance Inventory, lack of a
request for adequate assurance of performance, the purportedly speculative nature of
Munksjo's allegations, and ripeness. (See ECF No. 17 at 4-8.) Bedford's arguments may
prove successful at a later time and under a different procedural posture, but not at this
early stage. See Connelly, 809 F.3d at 786. Simply stated, Munksjo alleges that Bedford failed
to timely pay invoices due pursuant to the LTS Agreement, therein causing Munksjo harm.
(See ECF No. 13 <JI<JI 33-36.) Munksjo may eventually fail to establish these allegations, but
the Federal Rules of Civil Procedure do not require detailed pleading, and the
presumptively true allegations of the Amended Complaint sufficiently plead Count I under
the Federal Rules. See Iqbal, 556 U.S. at 679; Connelly, 809 F.3d at 786.

9

B. Count III Sufficiently Alleges a Claim for Breach of Contract
Bedford next offers numerous arguments in favor of the dismissal of Count III. (See
ECF No. 17 at 8-16.) These arguments largely overlap and/or supplement Bedford's
arguments with respect to Count I.

(See id.)

Once again, these arguments may be

meritorious at a later stage; however, as this Court has already discussed in regard to Count
I, Munksjo' s presumptively true allegations, although imperfect, are sufficient at this early
stage. See UPMC, 2017 WL 4357984, at *8 (citing Iqbal, 556 U.S. at 679; Connelly, 809 F.3d at
786).
Bedford's argument regarding the applicability of Pennsylvania's enactment of the
Uniform Commercial Code, 13 Pa. Cons. Stat. and Cons. Stat. A:r;m. §§ 1101-9809, the failure
to make a request for adequate assurance, and the lack of allegations sufficient to establish
an anticipatory repudiation are of significant merit. (See ECF No. 17 at 8-16.) Nevertheless,
when the veracity of Munksjo' s allegations are assumed and all reasonable inferences are
made in favor of Munksjo, see Iqbal, 556 U.S. at 679; Connelly, 809 F.3d at 786, this Court
concludes that Count III of the Amended Complaint does not rely on Bedford having
anticipatorily repudiated the LTS Agreement.
Rather, much like Count I, Count III is sufficient at this early stage because it alleges
an actual breach of the LTS Agreement. (ECF No. 13 at 1I1I 47-56.) Specifically, Munksjo
directly alleges that, in violation of its obligations under the LTS Agreement, Bedford failed
to pay for Product delivered to Bedford and ceased communications with Munksjo. (See

id.) Whether Munksjo truly sustained $963,858.90 of damages as a result of Bedford's
alleged breach, whether and when invoices were issued to Bedford by Munksjo, whether
10

Bedford paid the invoices, whether Bedford's alleged breach was "material," whether
Bedford refused to communicate with Munksjo, and any other disputes regarding a lack of
evidence to support Munksjo's allegations or the veracity of Munksjo's allegations can
certainly be raised by Bedford at the summary judgment stage and trial stage respectively.
However, at the pleading stage, Munksjo' s presumptively true allegation that Bedford
breached the LTS Agreement through non-payment and refusal to communicate with
Munksjo and the reasonable inferences therefrom possess the "facial plausibility" of
liability required by the Federal Rules. See Iqbal, 556 U.S. at 679; Connelly, 809 F.3d at 786.
C. Count IV is Dismissed Because Unjust Enrichment Cannot Provide Munksjo

a Basis for Relief
In regard to Count IV of the Amended Complaint, Bedford argues that Munksjo
may not plead a claim for unjust enrichment and claims for breach of contract because the
parties' relationship is based on an express written contract, therein barring a claim for
unjust enrichment. (See ECF No. 17 at 16-18.) Bedford acknowledges that, as a general
matter, pleadings may contain alternative counts, but suggests that "the majority of courts"
have not allowed parties to plead unjust enrichment in the alternative under the
circumstances of the present case, i.e., when a written agreement that encompasses the
entire relationship between the parties is attached to the complaint and the parties do not
dispute the validity or enforceability of the agreement. (Id. at 17-18.)
The Court agrees with Bedford that Count IV should be dismissed. Not only do
"the majority of courts," as represented by the non-binding trial-level decisions cited by

11

Bedford, 5 hold that parties cannot alternatively plead unjust enrichment and breach of
contract claims under the present circumstances, binding precedent from the U.S. Court of
Appeals for the Third Circuit does as well. See Grudkowski v. Foremost Ins. Co., 556 F. App'x
165, 169-70 (3d Cir. 2014).
Under Pennsylvania law, "the doctrine of unjust enrichment is inapplicable when
the relationship between parties is founded upon a written agreement or express contract,
regardless of how harsh the provisions of such contracts may seem in the light of
subsequent happenings." Id. (quoting Wilson Area Sch. Dist. v. Skepton, 895 A.2d 1250, 1254
(Pa. 2006)). Both parties agree that claims for unjust enrichment and breach of contract are
contradictory. (See ECF No. 17at17; ECF No. 18 at 9.) In its brief, "Munksjo acknowledges
that no claim for unjust enrichment will lie if the transaction between the parties is
governed by the contracts and the conduct of the parties as interpreted under the UCC."
(ECF No. 18 at 9.)
However, the parties dispute whether alternative pleading permits Munksjo' s
unjust enrichment claim to proceed alongside its breach of contract claims. Specifically,
Munksjo argues that, "assuming, arguendo, no contracts exist, Munksjo is entitled to plead
unjust enrichment in the alternative." (Id.) While this Court recognizes the appeal of
Munksjo' s argument based on the language of Federal Rule of Civil Procedure 8( d)(3),
binding Third Circuit precedent agrees with Bedford's position. See Grudkowski, 556 F.

Bedford cites a number of district court opinions from the Third Circuit. See, e.g., ULC Oil & Gas
Field Servs., Civil Action No. 2:14-cv-72, 2014 WL 6607280, at *3-*8 (W.D. Pa. Nov. 19, 2014) (Fischer,
J.); Montanez v. HSBC Mortg. Corp. (USA), 876 F. Supp. 2d 504, 516 (E.D. Pa. 2012); AmerisourceBergen
Drug Corp. v. Allscripts Healthcare, LLC, Civ. A. No. 10-6087, 2011WL3241356, at *3 (E.D. Pa. July 29,
2011).
5

12

App'x at 169-70.
Pleading in the alternative is, of course, permissible under the Federal Rules of Civil
Procedure. See id.; Fed. R. Civ. P. 8(d)(3). Yet, "pleading both breach of contract and unjust
enrichment is plausible only when the validity of the contract itself is actually disputed,
making unjust enrichment a potentially available remedy." Grudkowski, 556 F. App'x at 170
n.8 (citing Montanez v. HSBC Mortg. Corp. (USA), 876 F. Supp. 2d 504, 515-16 (E.D. Pa. 2012);

Premier Payments Online, Inc. v. Payment Sys. Worldwide, 848 F. Supp. 2d 513, 527 (E.D. Pa.
2012)).
Here, as in Grudkowski, Munksjo and Bedford "had a contractual relationship, the
existence and validity of which [is] not challenged." Id. In Bedford's own words, "there is
·no dispute that the written agreements are valid and enforceable." (ECF No. 17at18.) The
LTS Agreement, the Promissory Note, and the First Amendment are all attached to the
Amended Complaint and govern the relationships of the parties relevant to the instant
matter. (See ECF No. 13-1., Ex. A, C, D.) Thus, because the relationship between Munksjo
and Bedford was governed by the valid and enforceable LTS Agreement, Promissory Note,
and First Amendment, unjust enrichment cannot provide Munksjo a basis for relief. See

Grudkowski, 556 F. App'x at 170.
Munksjo's claim for unjust enrichment, even when pied in the alternative, is
properly dismissed. See id. at 170 n.8 ("Here, Grudkowski and Foremost had a contractual
relationship, the existence and validity of which are not challenged. Thus, Grudkowski's
claim for unjust enrichment, even when pled in the alternative, was appropriately
dismissed.").
13

D. Bedford's "Catchall" Request for Dismissal is Denied
In Part III.4 of Bedford's Brief in Support of Motion to Dismiss Amended Complaint,
Bedford states that Count II, Count III, and Count IV should be dismissed because these
counts "expressly incorporate all of the previous paragraphs of the Complaint" and should
be dismissed for "all of the reasons argued above." (ECF No. 17 at 18-19.)
As an initial matter, the Court notes that Bedford's Motion to Dismiss Plaintiff's
Amended Complaint-asking for the dismissal of only Count I, Count III, and Count IVdoes not move for the dismissal of Count II of the Amended Complaint. (ECF No. 16.)
Likewise, Bedford's proposed order asks this Court to dismiss only Count I, Count III, and
Count IV-not Count II. (See ECF No. 16-1.) In its brief, Bedford provides no argument to
justify the dismissal of Count II beyond this short one-paragraph "catchall" request in Part
III.4 and the remainder of the brief expressly asks for only the dismissal of Count I, Count
III, and Count IV. (See ECF No. 17at19-20.) Therefore, the dismissal of Count II is arguably
not properly raised before this Court. Nevertheless, assuming arguendo that Bedford has
properly moved to dismiss Count II, the Court sees no basis for such a dismissal and
Bedford has offered no cognizable argument to merit the dismissal of Count II.
In regard to the remainder of Bedford's "catchall" request for dismissal in Part III.4
of its brief, the Court has previously analyzed and denied requests to dismiss Count I and
Count III of the Amended Complaint, see supra Part VI.A and Part VI.B, and will not offer
any further discussion here. Count IV of the Amended Complaint is dismissed for the
reasons stated supra Part VI.C and, likewise, merits no further discussion.

14

VII.

Conclusion
In sum, the presumptively true factual allegations of the Amended Complaint

plausibly give rise to entitlement to relief on Count I, Count II, and Count III. Thus,
Defendant's Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 16) will be denied
as it pertains to those three counts.
However, Count IV is dismissed because unjust enrichment cannot provide
Munksjo a basis for relief.

Accordingly, Defendant's Motion to Dismiss Plaintiff's

Amended Complaint (ECF No. 16) is granted as to Count IV.
A corresponding order follows.

15

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MUNKSJO PAPER AB,

)

Case No. 3:16-cv-270

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)

v.

)
)

BEDFORD MATERIALS CO., INC.,

)

)

Defendant.

+~

NOW,

)

.

ORDER

this~ day of January 2018, upon consideration of the Defendant's Motion

to Dismiss Plaintiff's Amended Complaint (ECF No. 16), and for the reasons set forth in the
accompanying Memorandum Opinion, IT IS HEREBY ORDERED that Defendant's
Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 16) is GRANTED IN PART
and DENIED IN PART.
Defendant's Motion is GRANTED to the extent that only Count IV of the Amended
Complaint is DISMISSED WITH PREJUDICE. Defendant's Motion is DENIED in all
other regards.

KIM R. GIBSON
UNITED ST A TES DISTRICT JUDGE