Gentry Technology of SC Inc v. Baptist Health South Florida Inc

Filing 21

ORDER AND OPINION: The court GRANTS IN PART AND DENIES IN PART Defendant's Motion to Dismiss the First Amended Complaint for failure to state a claim and dismisses Plaintiff's claims for breach of contract, conversi on, theft of services, and fraudulent concealment pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 7.) The court DENIES without prejudice Defendant's Motion to Dismiss Plaintiff's First Amended Complaint for Lack of Personal Jurisdiction purs uant to Fed. R. Civ. P. 12(b)(2), Defendant's Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56, and Defendant's Motion for Costs pursuant to Fed. R. Civ. P. 41(d). (ECF Nos. 7, 15.) The parties will proceed to discovery on Plainti ff's remaining claims for unjust enrichment and civil conspiracy. granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim; denying 7 Motion for Summary Judgment; denying 15 Motion For Costs, Including Attorneys' Fees, per Rule 41(d). Signed by Honorable J Michelle Childs on 3/17/2015.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Gentry Technology of S.C., Inc.,

)
)
Plaintiff,
)
)
v.
)
)
Baptist Health South Florida, Inc.,
)
)
Defendant.
)
___________________________________ )

Civil Action No. 1:14-cv-02127-JMC

ORDER AND OPINION

Plaintiff Gentry Technology of S.C., Inc. (“Plaintiff”), filed the instant action against
Defendant Baptist Health South Florida, Inc. (“Defendant”), seeking to recover monetary
damages based on state law claims for breach of contract, unjust enrichment, conversion, theft of
services, fraudulent concealment, and civil conspiracy. (ECF No. 5.)
This matter is before the court on Defendant’s Motion to Dismiss Plaintiff’s First
Amended Complaint for Lack of Personal Jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2)
(“Rule 12(b)(2) motion”) and for Failure to State a Claim pursuant to Fed. R. Civ. P. 12(b)(6)
(“Rule 12(b)(6) motion”) or, in the alternative, Motion for Summary Judgment pursuant to Fed.
R. Civ. P. 56 (“Rule 56 motion”). (ECF No. 7.) Additionally, Defendant has moved the court
for an award of costs, including attorneys’ fees, pursuant to Fed. R. Civ. P. 41(d). (ECF No. 15.)
For the reasons set forth below, the court DENIES Defendant’s Rule 12(b)(2) motion, GRANTS
IN PART AND DENIES IN PART Defendant’s Rule 12(b)(6) motion, DENIES Defendant’s
Rule 56 motion, and DENIES Defendant’s Motion for Costs.
I.

RELEVANT BACKGROUND TO PENDING MOTIONS

The following relevant facts from the First Amended Complaint are taken as true only for

1

the purposes of the pending motions. On April 1, 2007, the parties entered into a contract1
whereby Plaintiff agreed to provide a digital satellite distribution system (“DSDS”) to Defendant
at its facility in Miami, Florida. (ECF No. 5 at 2 ¶ 8.) The DSDS allowed Defendant to acquire,
receive, and distribute programming services at its hospital facilities. (Id.) The agreement of the
parties was for a three-year term, effective retroactively as of October 1, 2006, and allowed for
renewal for three (3) successive three-year terms unless one of the parties provided written notice
of termination ninety (90) days prior to the expiration of each term. (Id. at ¶ 10.) The contract
was automatically renewed on October 1, 2009. (Id. at ¶ 12.) Plaintiff contends that the contract
was materially breached by Defendant subsequent to its renewal. (Id. at 3 ¶ 20–4 ¶ 23.)
On May 20, 2011, Plaintiff filed a complaint in Gentry Tech. of S.C., Inc. v. Baptist
Health S. Fla., Inc., C/A No. 1:11-cv-01232-JMC (D.S.C. May 20, 2011) (“Gentry 1”), alleging
breach of contract (Count 1) and unjust enrichment (Count 2). (ECF No. 1 (C/A No. 1:11-cv01232-JMC).) On March 13, 2012, the court denied Defendant’s motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) or, in the alternative, to transfer venue.
(ECF Nos. 9, 17 (C/A No. 1:11-cv-01232-JMC).) Thereafter, on May 21, 2014, the court
granted Defendant’s motion to dismiss and dismissed Gentry 1 without prejudice for lack of
subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (ECF Nos. 71, 91 (C/A No.
1:11-cv-01232-JMC).)
Plaintiff commenced the instant action on June 2, 2014, alleging breach of contract
(Count 1) and unjust enrichment (Count 2).2 (ECF No. 1 at 2–5.) Plaintiff filed a First Amended
Complaint on June 4, 2014, which filing was permitted by Fed. R. Civ. P. 15(a)(1)(A). (ECF

1
The parties agreed to an amended contract on January 1, 2008. (ECF No. 5 at 2 ¶ 9.)
2 The court notes that the Complaint in this action is identical to the Gentry 1 complaint. (See
ECF No. 1; see also ECF No. 1 (C/A No. 1:11-cv-01232-JMC).)
2

No. 5.) In the First Amended Complaint, Plaintiff alleged claims for breach of contract (Count
1); unjust enrichment, conversion, theft of services, and fraudulent concealment (Count 2); and
civil conspiracy (Count 3). (Id. at 2–8.)
On July 9, 2014, Defendant filed its Rule 12(b)(2) motion, Rule 12(b)(6) motion, and
Rule 56 motion. (ECF No. 7.) Plaintiff filed opposition to Defendant’s Motions to Dismiss or
for Summary Judgment on July 28, 2014, to which Defendant filed a reply memorandum in
support of its motions on August 7, 2014. (ECF Nos. 9, 13.)
Thereafter, on August 25, 2014, Defendant filed its Motion for Costs. (ECF No. 15.)
Plaintiff filed opposition to Defendant’s Motion for Costs on September 18, 2014, to which
Defendant filed a reply memorandum in support of its Motion for Costs on September 29, 2014.
(ECF Nos. 18, 19.)
II.
A.

LEGAL STANDARD

Motions to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2)
When a defendant challenges the court’s personal jurisdiction under Rule 12(b)(2),

plaintiff has “the burden of proving” that jurisdiction exists “by a preponderance of the
evidence.” In re Celotex Corp., 124 F.3d 619, 628 (4th Cir. 1997). “[W]hen, as here, a district
court rules on a Rule 12(b)(2) motion without conducting an evidentiary hearing or without
deferring ruling pending receipt at trial of evidence relevant to the jurisdictional issue, but rather
relies on the complaint and affidavits alone, ‘the burden on the plaintiff is simply to make a
prima facie showing of sufficient jurisdictional basis in order to survive the jurisdictional
challenge.’” Id. (citation omitted); see also New Wellington Fin. Corp. v. Flagship Resort Dev.
Corp., 416 F.3d 290, 294 (4th Cir. 2005) (noting that a plaintiff need only make a prima facie
showing of jurisdiction when the court does not conduct an evidentiary hearing). In deciding

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whether plaintiff has met this burden, the court construes all disputed facts and draws all
reasonable inferences from the proof in favor of jurisdiction. Carefirst of Md., Inc. v. Carefirst
Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003); Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d
56, 60 (4th Cir. 1993). In ruling on a motion to dismiss for lack of personal jurisdiction, the
court may consider evidence outside of the pleadings, such as affidavits and other evidentiary
materials, without converting the motion to dismiss into a motion for summary judgment. Magic
Toyota, Inc. v. Se. Toyota Distribs., Inc., 784 F. Supp. 306, 310 (D.S.C. 1992).
A federal court may exercise personal jurisdiction over a defendant in the manner
provided by state law. Fed. R. Civ. P. 4(k)(1)(A); ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d
617, 623 (4th Cir. 1997). “In order for a district court to validly assert personal jurisdiction over
a nonresident defendant, two conditions must be satisfied . . . [f]irst, the exercise of jurisdiction
must be authorized by the long-arm statute of the forum state, and, second, the exercise of
personal jurisdiction must also comport with the Fourteenth Amendment due process
requirements.” Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan, 259 F.3d 209,
215 (4th Cir. 2001).
South Carolina’s long arm statute provides as follows:
(A) A court may exercise personal jurisdiction over a person who acts directly or
by an agent as to a cause of action arising from the person’s: (1) transacting any
business in this State; (2) contracting to supply services or things in the State; (3)
commission of a tortious act in whole or in part in this State; (4) causing tortious
injury or death in this State by an act or omission outside this State if he regularly
does or solicits business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services rendered in
this State; (5) having an interest in, using, or possessing real property in this State;
(6) contracting to insure any person, property, or risk located within this State at
the time of contracting; (7) entry into a contract to be performed in whole or in
part by either party in this State; or (8) production, manufacture, or distribution of
goods with the reasonable expectation that those goods are to be used or
consumed in this State and are so used or consumed.
S.C. Code Ann. § 36-2-803 (2005). “South Carolina’s long-arm statute has been interpreted to
4

reach the outer bounds permitted by the Due Process Clause.” ESAB Grp., 126 F.3d at 623.
Therefore, the appropriate question for the court in considering a personal jurisdiction defense
raised by an out-of-state defendant is whether that defendant has “minimum contacts with [South
Carolina] such that the maintenance of the suit does not offend ‘traditional notions of fair play
and substantial justice.” Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (A
court’s exercise of jurisdiction over a nonresident defendant comports with due process if the
defendant has “minimum contacts” with the forum state, such that to require the defendant to
defend its interests in that state “does not offend traditional notions of fair play and substantial
justice.”)).
Personal jurisdiction may arise through specific jurisdiction, based on the conduct alleged
in the suit, or through general jurisdiction. CFA Inst. v. Inst. of Chartered Fin. Analysts of India,
551 F.3d 285, 292 n.15 (4th Cir. 2009); ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293
F.3d 707, 711 (4th Cir. 2002). Under general jurisdiction, a defendant’s contacts/activities in the
forum state are not the basis for the suit, but it may be sued in the court of the forum state “for
any reason, regardless of where the relevant conduct occurred,” because its activities in the
forum state are “continuous and systematic.” CFA Inst., 551 F.3d at 292 n.15. These activities
must be “so substantial and of such a nature as to justify suit against [a defendant] on causes of
action arising from dealings entirely distinct from those activities.” Int’l Shoe Co., 326 U.S. at
318. General jurisdiction is proper where the defendant has purposefully “availed himself of the
privilege of conducting business [in the forum state].” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 476 (1985).
Under specific jurisdiction, a defendant may be sued in this court if the litigation results
from alleged injuries that arose out of or related to their contacts with South Carolina and those

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contacts were sufficient. See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414 (1984). To determine whether specific jurisdiction exists, courts should examine “(1)
the extent to which the defendant ‘purposefully avail[ed]’ itself of the privilege of conducting
activities in the State; (2) whether the plaintiffs’ claims arise out of those activities directed at the
State; and (3) whether the exercise of personal jurisdiction would be constitutionally
‘reasonable.’” ALS Scan, Inc., 293 F.3d at 712.
B.

Motions to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted

“challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th
Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.”). To be legally
sufficient a pleading 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).
A Rule 12(b)(6) motion should not be granted unless it appears certain that the plaintiff
can prove no set of facts that would support her claim and would entitle her to relief. Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6)
motion, the court should accept as true all well-pleaded allegations and should view the
complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th
Cir. 1999); Mylan Labs., Inc., 7 F.3d at 1134. “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 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual

6

content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
C.

Motions for Summary Judgment Pursuant to Fed. R. Civ. P. 56
A court may convert a motion to dismiss for failure to state a claim into a summary

judgment proceeding in order to consider matters outside of the pleadings.3 Fed. R. Civ. P.
12(d); Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). Summary judgment should
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if
proof of its existence or non-existence would affect the disposition of the case under the
applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). A genuine
question of material fact exists where, after reviewing the record as a whole, the court finds that
a reasonable jury could return a verdict for the non-moving party. Newport News Holdings Corp.
v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123–
24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with
mere allegations or denials of the movant’s pleading, but instead must “set forth specific facts”
demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Anderson, 477 U.S. at 252; Shealy v. Winston, 929 F.2d 1009, 1012 (4th
Cir. 1991). All that is required is that “sufficient evidence supporting the claimed factual dispute

3 Materials—such as exhibits—are outside the pleadings if a complaint’s factual allegations are
not expressly linked to and dependent upon such matters. Am. Chiropractic Ass'n v. Trigon
Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). However, “a court may consider [a
document outside the complaint] in determining whether to dismiss the complaint” where the
document “was integral to and explicitly relied on in the complaint” and there was no
authenticity challenge. Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999).
7

be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a
summary judgment motion.” Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62
(4th Cir. 1995).
D.

Motions for Costs Pursuant to Fed. R. Civ. P. 41(d)
Fed. R. Civ. P. 41(d) provides that “[i]f a plaintiff who previously dismissed an action in

any court files an action based on or including the same claim against the same defendant, the
court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2)
may stay the proceedings until the plaintiff has complied.” Id. Rule 41(d) is designed to prevent
vexatious litigation and discourage forum shopping. Lawson v. Toney, 169 F. Supp. 2d 456, 466
(M.D.N.C. 2001). The decision to impose costs under Rule 41(d) is a matter of discretion with
the court. Andrews v. America’s Living Ctrs., LLC, No. 1:10cv257, 2011 WL 3359921, at *1
(W.D.N.C. Aug. 3, 2011); 9 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L.
Marcus, Federal Practice and Procedure § 2375 (3d ed. 2008). A showing of bad faith is not
required. Andrews, 2011 WL 3359921, at *1; Siepel v. Bank of Am., N.A., 239 F.R.D. 558, 563
(E.D. Mo. 2006).
III.
A.

ANALYSIS

The Parties’ Positions
1. Motion to Dismiss for Lack of Personal Jurisdiction
In support of its Rule 12(b)(2) motion, Defendant argues that it “did not expressly aim its

activities at South Carolina such as to subject it to personal jurisdiction in this state.” (ECF No.
7-1 at 11.) Defendant further argues that its “connection with South Carolina is so tenuous that
requiring it to defend this lawsuit in South Carolina would be inconsistent with the standards of

8

due process.” (Id. at 12.) In support of these arguments, Defendant asserts that the court erred
when it denied the Rule 12(b)(2) motion in Gentry 1 because that decision relied on
misrepresentations by Plaintiff and case law that “did not support a finding of minimum contacts
or were clearly distinguishable from this case.” (Id. at 14.)
Plaintiff opposes the Rule 12(b)(2) motion on the basis that the court has already
addressed and rejected Defendant’s personal jurisdiction arguments, and “there are no additional
material facts since [the filing of] that Order.” (ECF No. 9 at 1.) In this regard, Plaintiff asserts
that the instant Rule 12(b)(2) motion should be denied because (1) the “exercise of personal
jurisdiction over Defendant is authorized by the South Carolina long-arm statute” and (2)
“Defendant’s minimum contacts with South Carolina renders it subject to the personal
jurisdiction of this Court in conformity with traditional notions of fair play and substantial
justice.” (Id. at 15–18.)
2. Motion to Dismiss for Failure to State a Claim
Even if the court has personal jurisdiction over it, Defendant argues that the court should
grant the Rule 12(b)(6) motion because all of Plaintiff’s causes of action “are barred by the
statute of limitations and neither the tolling statutes4, equitable tolling5 nor equitable estoppel6

4 Defendant identifies the tolling statutes as S.C. Code Ann. § 15-3-30 (2014) (stating exceptions
to the running of the statute of limitations when the defendant is out of the state) and S.C. Code
Ann. § 15-3-40 (2014) (providing exceptions for persons under a disability, including being
underage or insane).
5 Defendant contends that equitable tolling “applies in cases where a litigant was prevented from
filing suit because of an extraordinary event beyond his or her control.” (ECF No. 7-1 at 26
(citing Hooper v. Ebenezer Sr. Servs. & Rehab. Ctr., 687 S.E.2d 29, 32 (S.C. 2009) (citations
omitted)).) Defendant argues extraordinary circumstances do not exist to allow equitable tolling
because Plaintiff has known about the material facts of the matter since 2010. (Id.)
6
Defendant asserts that equitable estoppel “applies when the statute of limitations has run and . .
. the defendant is estopped from benefitting from the statute of limitations as a defense because
the defendant has acted in such a manner as to induce the plaintiff to delay in timely filing a
cause of action.” (Id. (citing Kelly v. Logan, Jolley, & Smith, L.L.P., 682 S.E.2d 1, 7 (S.C. Ct.
9

are available to save [Plaintiff] Gentry’s claims.” (ECF No. 7-1 at 18.) In support of this
argument, Defendant asserts that “South Carolina’s statute of limitations applies to all of
[Plaintiff] Gentry’s claims presented in the instant Complaint” and the statute of limitations for
each of Plaintiff’s claims is three (3) years. (Id. at 19 (citing S.C. Code Ann. §§ 15-3-530(1),
530(5) (2014) (“Within three years: (1) an action upon a contract, obligation, or liability, express
or implied, . . . (5) an action for assault, battery, or any injury to the person or rights of another,
not arising on contract and not enumerated by law, . . . .”)).) Moreover, Defendant asserts that
neither the discovery rule nor the court’s dismissal of Gentry 1 preclude application of the statute
of limitations to Plaintiff’s claims. (Id. at 19–20 (citing Davis v. Lunceford, 335 S.E. 2d 798,
799 (S.C. 1985) (“When an action is dismissed without prejudice, the statute of limitations will
bar another suit if the statute has run in the interim.”)).)
In accordance with the foregoing, Defendant contends that Plaintiff was on notice that it
had claims for (1) breach of contract and theft of services on July 10, 2010; (2) unjust enrichment
on May 20, 2011; and (3) conversion, fraudulent concealment, and civil conspiracy on
September 22, 2010. (Id. at 20–25.) In this regard, because this lawsuit was not filed until June
2, 2014, Defendant contends that all of Plaintiff’s claims are barred by the applicable three-year
statute of limitations. (Id.)
In response to Defendant’s arguments in support of its Rule 12(b)(6) motion, Plaintiff
asserts that the court should disregard Defendant’s contentions because the statute of limitations
is an affirmative defense that “cannot be established in a motion to dismiss.” (ECF No. 9 at 19
(citing Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)

App. 2009) (internal citations omitted)).) Defendant argues that equitable estoppel is
inapplicable because Plaintiff has known about the material facts of the matter since 2010. (Id.
at 28.)
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(“A motion under Rule 12(b)(6) is intended to test the legal adequacy of the complaint, and not
to address the merits of any affirmative defenses.”)).) In addition, Plaintiff asserts that it alleges
tortious conduct in the First Amended Complaint that occurred in Florida and, therefore, “Florida
law may govern one or more of the claims in this case.” (Id. at 21.) Moreover, because the
court’s choice of law determination would include the statute of limitations as a substantive
element of the law being applied, Plaintiff asserts that its claims would be timely filed if the
court applies the relevant statutes of limitations of Florida. (Id. at 23–24.) Specifically, Plaintiff
asserts that its claims are timely under Florida law since a five-year limitations period applies to
“legal or equitable action on a contract, obligation, or liability founded on a written instrument,”
and a four-year limitations period is applicable to an “action for taking, detaining, or injuring
personal property [or] to recover specific personal property [or a] legal or equitable action
founded on fraud [or, a]ny action not specifically provided for in these statutes.” (Id. at 24–25
(citing Fla. Stat. §§ 95.11(2)(b), (3)(h), (3)(i), (3)(j), and (3)(p) (2014)).)
Plaintiff also argues that even if South Carolina’s statutes of limitations should be applied
to its claims, Defendant waived its application by failing “to move the court [in Gentry 1] to
dismiss [the case] with prejudice” or by not protesting when its motion to dismiss was granted
without prejudice, since Defendant's position is that the statute of limitations ran before Gentry 1
was dismissed. (Id. at 26.) Alternatively, Plaintiff argues that the statute of limitations should be
equitably tolled because it refiled the action with diligence and Defendant cannot claim that it
was without timely notice of Plaintiff’s claims or suffered prejudice. (Id. at 27 (citing Aikens v.
Ingram, 524 F. App’x 873, 882–83 (4th Cir. 2013) (“Under that [equitable tolling] test, . . . we
must consider whether defendants . . . received timely notice of [the] . . . claims, whether the
defendants have been prejudiced by delay of the litigation, and whether [the party] . . . has acted

11

with diligence.) (citing Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 429–30 (1965)).
3. Motion for Summary Judgment
Defendant moves for summary judgment as an alternative to its Motions to Dismiss to
account for documents that were filed as attachments in support of the Rule 12(b)(6) motion.
(ECF No. 7-1 at 1 n.1 (citing Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) . . .,
matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.”)).)

More specifically, Defendant

requested as part of its Rule 56 motion that the court take judicial notice of the following
documents: (1) the complaint filed in Gentry 1; (2) Plaintiff’s interrogatory responses from
Gentry 1; (3) deposition excerpts from Gentry 1; and the complaint filed in Gentry Tech. of S.C.,
Inc. v. Baptist Health S. Fla., Inc., Case No. 10-43183 CA 31 (Cir. Ct. MD Cnty. Fla. Aug. 6,
2010) (the “Florida case”), a similar case involving the parties which Plaintiff filed in the Circuit
Court for Miami-Dade County, Florida. (ECF No. 7-1 at 2 (referencing ECF Nos. 7-3, 7-4, 7-5,
7-6).)
Plaintiff opposes the court converting the Rule 12(b)(6) motion into a Rule 56 motion on
the basis that it has not had the opportunity to conduct discovery on the documents attached to
the Motion to Dismiss and “summary judgment [should] be refused where the nonmoving party
has not had the opportunity to discover information that is essential to his opposition.” (ECF No.
9 at 20 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)).) Therefore,
Plaintiff requests the opportunity to conduct discovery “to present facts essential to justify its
opposition to summary judgment.” (Id. at 21.)
Additionally, Plaintiff opposes the court taking judicial notice of deposition excerpts and
partial discovery submitted by Defendant from Gentry 1. Plaintiff asserts that Defendant should

12

not be allowed to use these documents to establish dates for the statute of limitations when there
are other underlying documents in Defendant’s possession that have not been produced and
“which can verify or dispute these dates.” (Id.)
4. Motion for Costs
In its Motion for Costs, Defendant contends that this matter should be stayed until
Plaintiff pays it $25,419.94 in costs and $142,555.00 in attorneys’ fees (a total of $167,974.94)
to account for the court’s dismissal of Gentry 1 and Plaintiff’s dismissal of the Florida case.
(ECF No. 15 at 3.) Defendant contends that “to deter forum shopping and vexatious litigation,”
which clearly exist in this matter, “Rule 41(d) gives the Court discretion to award to a defendant
all or part of the costs [including attorneys’ fees] of the previous action and to stay the new case
until that payment has been made.” (Id. at 4 (citations omitted).) Defendant further contends
that Rule 41 applies to both voluntary and involuntary dismissals and the court has discretion to
tax the awarded costs to the party and/or its attorney. (Id. at 5–6 (citing, e.g., Zaegel v. Pub. Fin.
Co., 79 F.R.D. 58, 59 (E.D. Mo. 1978) (“While . . . [Fed. R. Civ. P. 41(d)] generally applies to
actions voluntarily dismissed by the plaintiff, there is no bar to the rule being invoked where the
dismissal is involuntary.”)).)
Plaintiff asserts that Defendant’s Motion for Costs should be denied because there is no
evidence that Plaintiff pursued this action, Gentry 1, or the Florida case in bad faith or for the
purpose of harassment or intimidation. (ECF No. 18 at 20.) Moreover, Plaintiff asserts that its
conduct is not “anywhere close to the conduct in cases w[h]ere Rule 41(d) sanction[s] have been
imposed.” (Id.)
B.

The Court’s Ruling
In light of the foregoing authorities and the parties’ respective positions, the court

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considers the merits of each of Defendant’s motions in turn below.
1. Motion to Dismiss for Lack of Personal Jurisdiction
In Gentry 1, the court found its assertion of personal jurisdiction over Defendant was
supported by South Carolina’s long arm statute and did not violate due process. (ECF No. 17
(C/A No. 1:11-cv-01232-JMC).) Plaintiff argues that “Defendant should be collaterally estopped
from relitigating the issue of personal jurisdiction, or in the alternative, this Court should adopt
the Orders in the prior action as the issues are identical and there has been no material change in
the facts.” (ECF No. 9 at 13.) Defendant opposes Plaintiff’s collateral estoppel argument
asserting that the court’s Gentry 1 decision on personal jurisdiction is void and not binding in
this case because the court “lacked subject-matter jurisdiction from the case’s inception, as there
was no diversity of citizenship” between Plaintiff and Defendant. (ECF No. 13 at 2 (citing
Wendt v. Leonard, 431 F.3d 410, 412 (4th Cir. 2005) (“An order is void for purposes of Rule
60(b)(4) only if the court rendering the decision lacked personal or subject matter jurisdiction or
acted in a manner inconsistent with due process of law”) (citation omitted)).)
For collateral estoppel to apply to the issue of personal jurisdiction relevant to the merits
of Defendant’s Rule 12(b)(2) motion, Plaintiff must establish “(1) that ‘the issue sought to be
precluded is identical to the one previously litigated’ (‘element one’); (2) that the issue was
actually determined in the prior proceeding (‘element two’); (3) that the issue’s determination
was ‘a critical and necessary part of the decision in the prior proceeding’ (‘element three’); (4)
that the prior judgment is final and valid (‘element four’); and (5) that the party against whom
collateral estoppel is asserted ‘had a full and fair opportunity to litigate the issue in the previous
forum’ (‘element five’).” Collins v. Pond Creek Mining Co., 468 F.3d 213, 217 (4th Cir. 2006)
(quoting Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998)). Here, the

14

court finds that collateral estoppel is inapplicable because the personal jurisdiction order in
Gentry 1 cannot be considered valid since the court did not have subject matter jurisdiction over
the action. The court makes this finding as to element four based on the Fourth Circuit’s
recognition that “any action by a court without subject-matter jurisdiction is 'ultra vires' and
therefore void.” U.S. v. Hartwell, 448 F.3d 707, 715 (4th Cir. 2006) (citing Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999) (quoting Steel Co. v. Citizens for Better Env’t, 523
U.S. 83, 101–02 (1998))). Therefore, Defendant is correct in its assertion that the finding of
personal jurisdiction over it in Gentry 1 is not binding in this case.
Because the Gentry 1 decision is inapplicable to the instant personal jurisdiction issue,
the court is required to address Defendant’s personal jurisdiction challenge. Initially, the court
notes that the record supports finding that Defendant was not engaged in “continuous and
systematic” activities in South Carolina such as to subject it to general jurisdiction in this state.
Therefore, the court can only have jurisdiction over Defendant if its contacts were sufficient to
subject it to specific jurisdiction in South Carolina.
In the Declaration of David R. Friedman (“Friedman”), Defendant’s Corporate Vice
President and General Counsel, Defendant attempts to establish why the court should find that it
did not purposefully avail itself of the privilege of conducting activities in South Carolina.
Specifically, Friedman declared that Defendant’s principal place of business and main corporate
office is in Coral Gables, Florida. (ECF No. 7-2 at 2 ¶¶ 3, 4.) He declared that Defendant stores
paper copies of records in Florida and employs most of its employees in a South Florida location.
(Id. at ¶ 4.) Friedman further declared that Defendant does not have any “business operations in
the State of South Carolina - - it has no offices, [records], employees, representatives or agents
within South Carolina” and has never been “authorized, licensed, or registered to do business in

15

South Carolina.” (Id. at 2 ¶¶ 4–5, 3 ¶ 6.) He also declared that Defendant does not pay taxes or
own real estate, bank accounts, or assets in South Carolina. (Id. at 3 ¶¶ 6–7.)
As to the specifics of its relationship with Plaintiff, Defendant asserts that the contract
between the parties was for the provision of services in Miami, Florida, and did not provide that
South Carolina law would govern the disputes between the parties. (Id. at ¶ 9; see also ECF 7-1
at 12.) Defendant further asserts that it did not make any in-person contact with Plaintiff in
South Carolina regarding their business relationship. (ECF No. 7-1 at 12.) Defendant contends
its only connection to South Carolina is that “it is a participant in a risk retention group based in
South Carolina that provides malpractice insurance to [Defendant] Baptist physicians, all of
whom practice in South Florida.” (ECF No. 7-2 at 3 ¶ 8.)
To show that Defendant has sufficient minimum contacts with South Carolina, Plaintiff
submits the Affidavit of Robert Taylor, Plaintiff’s corporate officer. Taylor stated that while he
was in South Carolina, he was contacted by Defendant’s representative to determine whether
Plaintiff “was interested in designing, engineering, and installing TV cable systems for certain
Baptist facilities.” (ECF No. 9-1 at 2 ¶ 4.) Once the parties reached an agreement, Taylor
declared that Plaintiff performed in South Carolina everything required of it under its contract
with Defendant. (Id. at 3 ¶ 5.) Taylor further declared that Defendant knew services for it were
being performed in South Carolina because it sent “numerous documents and other
correspondence to [Plaintiff] Gentry’s office as part of not only the contract negotiations, but
also as part of the design, engineering, and programming aspect of developing the digital TV
systems.” (Id.) Taylor also stated that Defendant sent Plaintiff “in South Carolina purchase
orders specifying the products and services [Defendant] Baptist desired” and large volumes of
other documents, such as budgets, lists of desired channels, charts, and other communications.

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(Id. at 3 ¶ 7, 5–6 ¶ 14.) In addition, Defendant submitted payments on Plaintiff’s invoices to its
Aiken, South Carolina, location.

(Id. at 5 ¶ 10.)

Finally, Taylor stated that Defendant’s

representatives telephoned him “in South Carolina regularly.” (Id. at ¶ 14.)
After careful consideration of the facts presented by the parties, the court concludes that
Defendant “purposefully established minimum contacts within the forum” of South Carolina.
Burger King, 471 U.S. at 479; see also CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551
F.3d 285, 294–97 (4th Cir. 2009) (finding personal jurisdiction where foreign defendant (1)
reached into the forum state to initiate business with plaintiff, (2) corresponded and collaborated
with plaintiff over an extended period, and (3) made in-person contact with plaintiff twice);
Ameristone Tile, LLC v. Ceramic Consulting Corp., Inc., 966 F. Supp. 2d 604, 613 (D.S.C.
2013) (“Alpert reached into South Carolina to initiate the business relationship in general and
specifically to solicit Ameristone’s participation in the Lowe's program; he made in person
contact with Campbell at least once to discuss the business relationship; he maintained almost
daily communication with Campbell, who was located in South Carolina, regarding the
relationship and the Lowe’s program; and he knew Ameristone was to perform its contractual
duties mainly in South Carolina. Under these facts, the Court concludes that Alpert ‘purposefully
established minimum contacts within the forum.’”) (Citations omitted.).

The court further

concludes that Plaintiff’s claims arose out of Defendant’s activities directed at the state.
As a result of Defendant having the requisite contacts with South Carolina as set forth
above, the court must now consider whether the exercise of jurisdiction “would comport with
‘fair play and substantial justice.’” Burger King, 471 U.S. at 476 (citing Int’l Shoe Co., 326 U.S.
at 320). In weighing whether the exercise of jurisdiction comports with fair play and substantial
justice, the court considers the following factors: (1) the burden on Defendant of litigating in

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South Carolina; (2) the interest of South Carolina in adjudicating the dispute; (3) Plaintiff’s
interest in obtaining convenient and effective relief; (4) the shared interest of the states in
obtaining efficient resolution of disputes; and (5) the interests of the states in furthering social
policies. See Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 279 (4th Cir. 2009).
Although Defendant faces some burdens in defending against Plaintiff’s claims in South
Carolina, those burdens neither offend the traditional notions of fair play and substantial justice,
nor put Defendant at a severe disadvantage. In addition, South Carolina has an interest in the
resolution of a lawsuit filed by one of its citizens. As a result, the court finds that the exercise of
personal jurisdiction over Defendant would not be constitutionally unreasonable. Accordingly,
the court finds that Plaintiff has met its burden of proving that this court has personal jurisdiction
over Defendant.
Based on the aforementioned record, the court finds that Plaintiff can establish a prima
facie case of personal jurisdiction over Defendant. Accordingly, the court denies Defendant’s
Rule 12(b)(2) motion as to the First Amended Complaint.
2. Motion to Dismiss for Failure to State a Claim
Because the court finds that personal jurisdiction over Defendant is present in this action,
the court must address whether the First Amended Complaint should be dismissed as against
Defendant pursuant to Fed. R. Civ. P. 12(b)(6). At the outset, after reviewing the First Amended
Complaint, pertinent law, and the arguments of the parties, the court must dismiss Plaintiff’s
claims for theft of services and fraudulent concealment. The court finds that there is not an
independent civil cause of action for theft of services7 under either South Carolina or Florida

7 The court has determined that theft of services is usually defined as a criminal act. See, e.g., 18
Pa. Cons. Stat. Ann. § 3926(a)(1) (2014) (“A person is guilty of theft if he intentionally obtains
services for himself or for another which he knows are available only for compensation, by
18

law.8 As a result, the court dismisses Plaintiff’s claim for theft of services pursuant to Fed. R.
Civ. P. 12(b)(6).
The court also observes that a claim for fraudulent concealment is not a viable civil claim
in South Carolina.9 However, such a claim, exists in Florida10, but is subject to the specificity
requirements of Fed. R. Civ. P. 9(b). In this regard, Plaintiff alleges the following in the First
Amended Complaint to establish his fraudulent concealment claim:
Defendant materially breached the Agreement by: a. Contracting with one or
more third parties for services and other matters which GTSC had the exclusive
right to provide pursuant to the Agreement; b. Wrongfully terminating GTSC’s
agreement without proper notice or legal cause; c. Receiving digital satellite and
cable services without proper payment therefore; and d. Otherwise failing to
comply with the terms set forth in the Agreement.

deception or threat, by altering or tampering with the public utility meter or measuring device by
which such services are delivered or by causing or permitting such altering or tampering, by
making or maintaining any unauthorized connection, whether physically, electrically or
inductively, to a distribution or transmission line, by attaching or maintaining the attachment of
any unauthorized device to any cable, wire or other component of an electric, telephone or cable
television system or to a television receiving set connected to a cable television system, by
making or maintaining any unauthorized modification or alteration to any device installed by a
cable television system, or by false token or other trick or artifice to avoid payment for the
service.”) In consideration of the foregoing, the court finds that the theft of services allegations
are subsumed in the claims for unjust enrichment and/or conversion.
8 Plaintiff fails to allege which state’s law is applicable to the claims asserted in this action.
9 Like the discovery rule, “fraudulent concealment constitutes an implied exception to the statute
of limitations, postponing the commencement of the running of the statute until discovery or
reasonable opportunity of discovery of the concealment by the owner of the cause of action.” In
re Building Materials Corp. of Am. Asphalt Roofing Shingle Prods. Liab. Litig., MDL No. 8:11mn-02000-JMC, C/A No. 8:11-cv-02785-JMC, 2013 WL 139520, at *10 (D.S.C. Jan. 10, 2013)
(citation omitted).
10 “The elements of a claim for fraudulent concealment under Florida law are: (1) a
misrepresentation of material fact or suppression of the truth; (2)[a] knowledge of the representor
of the misrepresentation, or [b] representations made by the representor without knowledge as to
either the truth or falsity, or [c] representations made under circumstances in which the
representor ought to have known, if he did not know, of the falsity thereof; (3) an intention that
the representor induce another to act on it; and (4) resulting injury to the party acting in
justifiable reliance on the representation.” Greenberg v. Miami Children’s Hosp. Research Inst.,
Inc., 264 F. Supp. 2d 1064, 1073 (S.D. Fla. 2003) (citing Jones v. Gen. Motors Corp., 24 F.
Supp. 2d 1335, 1339 (M.D. Fla. 1998)).
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Defendant fraudulently concealed the foregoing breaches not only by failing to
inform GTSC of its actions but also by actively preventing GTSC from
discovering such breaches including, inter alia, changing the user name and
password on accounts GTSC managed pursuant to the Agreement and preventing
GTSC from accessing Defendant’s premises.
Defendant knew that its
concealment of the foregoing breaches would induce GTSC to continue to
provide equipment and services to Defendant at GTSC’s expense. GTSC
detrimentally relied on Defendant’s misrepresentations including but not limited
to by providing equipment and services to Defendant for which GTSC was never
properly paid.
Defendant’s conversion and improper use of GTSC’s property was willfully and
fraudulently concealed from Plaintiff that it had caused, or allowed to cause, the
conversion and improper use of equipment and signals by physical concealment
of its actions and by denial of such actions.
Defendant fraudulently concealed the conversion not only by failing to inform
GTSC of its actions but also by actively preventing GTSC from discovering such
conversion including, inter alia, changing the user name and password on
accounts GTSC managed pursuant to the Agreement and preventing GTSC from
accessing Defendant’s premises. Defendant knew that its concealment of the
conversion would induce GTSC to continue to provide equipment and services to
Defendant at GTSC’s expense. GTSC detrimentally relied on Defendant’s
misrepresentations including but not limited to by providing equipment and
services to Defendant for which GTSC was never properly paid.
(ECF No. 5 at 4 ¶¶ 23, 25; 5 ¶¶ 34, 36.)
Upon review, the court finds that Plaintiff’s allegations do not satisfy the pleading
requirements as to the requisite level of specificity required by Rule 9(b). See Brooks v. Blue
Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997) (“To satisfy the
requirements of Rule 9(b), the complaint must allege: “(1) precisely what statements were made
in what documents or oral representations or what omissions were made, and (2) the time and
place of each such statement and the person responsible for making (or, in the case of omissions,
not making) same, and (3) the content of such statements and the manner in which they misled
the plaintiff, and (4) what the defendants “obtained as a consequence of the fraud.”). Therefore,
the court dismisses Plaintiff’s claim for fraudulent concealment pursuant to Fed. R. Civ. P.
12(b)(6).

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As to the remaining claims for breach of contract, unjust enrichment, conversion, and
civil conspiracy, Defendant asserts that these causes of action are barred by South Carolina’s
applicable three-year statute of limitations. (ECF No. 7-1 at 19.) Because Plaintiff alleges that
subject matter jurisdiction exists over this matter pursuant to 28 U.S.C. § 1332 (ECF No. 5 at 1 ¶
4), the court agrees with Defendant that the statute of limitations of South Carolina, and not
Florida, is controlling in this analysis of whether Plaintiff is barred from proceeding with its
claims. See, e.g., Fiberlink Commc’ns Corp. v. Magarity, 24 F. App’x 178, 181 (4th Cir. 2001)
(“When exercising jurisdiction over claims arising under state law, federal courts look to the law
of the forum state to determine the applicable statute of limitations.”) (citing Guaranty Trust Co.
of N.Y. v. York, 326 U.S. 99, 110 (1945)); Coe v. Thermasol, Ltd., 785 F.2d 511, 514 n.5 (4th
Cir. 1986) (“[F]ederal courts sitting in diversity apply the forum state’s statute of limitations.”)
(citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). Under South Carolina law, the limitations
period for all of Plaintiff’s causes of action is three (3) years. S.C. Code Ann. §§ 15-3-530(1),
530(5) (2014). These statutes of limitations are modified by the “discovery rule” wherein “the
statute of limitations [only] begins to run from the date the injured party either knows or should
know, by the exercise of reasonable diligence, that a cause of action exists for the wrongful
conduct.” True v. Monteith, 489 S.E.2d 615, 616 (S.C. 1997).
The date on which a plaintiff should have discovered his cause or causes of action is an
objective question. Graham v. Welch, Roberts & Amburn, LLP, 743 S.E.2d 860, 862 (S.C. Ct.
App. 2013). A reviewing court “must decide whether the circumstances of the case would put a
person of common knowledge and experience on notice that some right of his has been invaded,
or that some claim against another party might exist.” Bayle v. S.C. Dep’t of Transp., 542
S.E.2d 736, 740 (S.C. Ct. App. 2001) (internal citations omitted). “If there is conflicting

21

evidence as to whether a claimant knew or should have known he or she had a cause of action,
the question is one for the jury.” Manios v. Nelson, Mullins, Riley & Scarborough, LLP, 697
S.E.2d 644, 654 (S.C. Ct. App. 2010); see also Maher v. Tietex Corp., 500 S.E.2d 204, 207 (S.C.
Ct. App. 1998) (“The jury must resolve conflicting evidence as to whether a claimant knew or
should have known he had a cause of action.”) (Citation omitted). However, the statute of
limitations is an affirmative defense that can only be raised in a Rule 12(b)(6) motion when “it
clearly appears on the face of the complaint.” Richmond, 4 F.3d at 250.
Defendant’s Rule 12(b)(6) motion requires the court to determine when Plaintiff knew or
reasonably should have learned of facts that would have given it an indication of its causes of
action against Defendant. In the First Amended Complaint, Plaintiff alleged (1) as part of its
breach of contract claim that it sent Defendant correspondence on June 25, 2010, regarding the
“material breach of the Exclusivity Provision for engaging the services of vendors other than”
Plaintiff (ECF No. 5 at 3 ¶ 21); and (2) in support of its claim for conversion that it demanded on
September 22, 2010, that Defendant return its property, which Defendant refused to return said
property (Id. at 6 ¶ 32). Upon review of these allegations, the court is persuaded that “a person
of common knowledge and experience” would perceive that he had been injured on the specific
dates alleged in the First Amended Complaint. In this regard, the court concludes that Plaintiff’s
claim for breach of contract had accrued by June 25, 2010, and its claims for conversion had
accrued by September 22, 2010. Therefore, these claims are time-barred unless Plaintiff can
persuade the court that the statute of limitations should be equitably tolled or has been waived by
Defendant.
Equitable tolling “is generally applied only where the defendant’s actions hinder the
plaintiff’s discovery of or ability to pursue the claim” and “should be used sparingly and only

22

when the interests of justice compel its use.” Wellin v. Wellin, No. 2:13-cv-1831-DCN, 2014
WL 234216, at *4 (D.S.C. Jan. 22, 2014) (citations omitted). Under South Carolina law, “[a]
waiver is a voluntary and intentional abandonment or relinquishment of a known right.” PCS
Nitrogen, Inc. v. Ross Dev. Corp., No. 2:09-cv-03171-MBS, 2015 WL 627995, at *18 (Feb. 12,
2015) (citation omitted). In this matter, the record does not demonstrate either a voluntary
waiver by Defendant of its statute of limitations affirmative defense or conduct by Defendant
requiring the court to equitably toll the statute of limitations. As a result, the court finds that
Plaintiff’s claims for breach of contract and conversion are barred by the three-year statute of
limitations because Plaintiff did not file this lawsuit until June 4, 2014, or more than three (3)
years after the accrual of the claims. Therefore, the court grants Defendant’s Rule 12(b)(6)
motion as to these claims.
However, the court denies the Rule 12(b)(6) motion as to Plaintiff’s claims for unjust
enrichment and civil conspiracy. If the court draws all reasonable factual inferences from the
First Amended Complaint’s facts in Plaintiff’s favor as it is required to do under Fed. R. Civ. P.
12(b)(6), the allegations do not establish when Plaintiff knew or should have known it had an
unjust enrichment and/or civil conspiracy claim against Defendant. Manios v. Nelson, Mullins,
Riley & Scarborough, LLP, 697 S.E.2d 644, 654 (S.C. Ct. App. 2010) (“If there is conflicting
evidence as to whether a claimant knew or should have known he or she had a cause of action,
the question is one for the jury.”); see also Maher v. Tietex Corp., 500 S.E.2d 204, 207 (S.C. Ct.
App. 1998) (“The jury must resolve conflicting evidence as to whether a claimant knew or
should have known he had a cause of action.”) (Citation omitted). Accordingly, the court denies
Defendant’s Rule 12(b)(6) motion as to Plaintiff’s claims for unjust enrichment and civil
conspiracy.

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3. Motion for Summary Judgment
Given the early stage of this litigation, the court declines to convert the Rule 12(b)(6)
motion to a Rule 56 motion by considering the additional documentation submitted by Defendant
in support of its statute of limitations arguments as to Plaintiff's claims for unjust enrichment and
civil conspiracy. Therefore, the court denies without prejudice Defendant's alternative Motion
for Summary Judgment.
4. Motion for Costs
Defendant moves the court to award costs including attorneys’ fees in the amount of
$167,974.94 for defending Gentry 1 and the Florida case. Upon review, the court does not
ascertain that Plaintiff dismissed the Florida case in order to forum shop or gain a tactical
advantage. Moreover, after the court dismissed Gentry 1, Plaintiff refiled the current lawsuit
after adding and amending the claims in an attempt to strengthen the case. Therefore, the court
finds that Plaintiff was not attempting to engage in “vexatious litigation” such that an award of
costs would be appropriate under Rule 41(d). Accordingly, the court in its discretion will not
award Defendant costs and its motion pursuant to Fed. R. Civ. P. 41(d) is denied.
IV.

CONCLUSION

For the foregoing reasons, the court GRANTS IN PART AND DENIES IN PART
Defendant’s Motion to Dismiss the First Amended Complaint for failure to state a claim and

dismisses Plaintiff’s claims for breach of contract, conversion, theft of services, and fraudulent
concealment pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 7.) The court DENIES without
prejudice Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint for Lack of

Personal Jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), Defendant’s Motion for Summary
Judgment pursuant to Fed. R. Civ. P. 56, and Defendant’s Motion for Costs pursuant to Fed. R.

24

Civ. P. 41(d). (ECF Nos. 7, 15.) The parties will proceed to discovery on Plaintiff’s remaining
claims for unjust enrichment and civil conspiracy.
IT IS SO ORDERED.

United States District Court Judge
March 17, 2015
Columbia, South Carolina

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