National Bankers Trust Corporation v. Peak Logistics LLC et al

Filing 122

ORDER denying 105 Motion to Dismiss. Signed by Judge S. Thomas Anderson on 6/17/2013. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

NATIONAL BANKERS TRUST CORPORATION,
a Tennessee corporation,
Plaintiff,
v.
PEAK LOGISTICS LLC, an Indiana limited liability
company; SUMMITT TRUCKING LLC, an Indiana
limited liability company; PACER
TRANSPORTATION SOLUTIONS INC., an Ohio
corporation; ZAPPOS.COM, INC., a Delaware
corporation; and DECKERS OUTDOOR, INC.;
Defendants,
v.
ANDY TRANSPORT, INC.;
Third Party Defendant.

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No. 12-2268-STA-tmp

ORDER DENYING DEFENDANT PEAK LOGISTICS LLC’s MOTION TO DISMISS

Before the Court is Defendant Peak Logistics, LLC (“Peak”) Motion to Dismiss (D.E. #
105) filed April 22, 2013. Plaintiff National Bankers Trust Corp. (“NBT”) filed a Response
(D.E. # 107) on April 30, 2013. Peak filed a Reply (D.E. # 113) on May 14, 2013. After seeking
and receiving leave of the Court, NBT filed a Sur-reply (D.E. # 119) on May 28, 2013. For the
reasons given herein, the Court DENIES WITHOUT PREJUDICE Peak’s Motion to Dismiss.

1

BACKGROUND
For purposes of the instant Motion, the Court accepts the following as true.1 NBT is
engaged in the business of factoring for motor carriers. (First Am. Compl. ¶ 17, D.E. # 64.)
NBT purchases its clients’ accounts receivables (owed by shippers or consigners using the
clients’ carrier services) at a discount and takes a security interest in its clients’ assets (including
present and after-acquired accounts receivables) securing the purchase price. (Id.) NBT remits a
portion of the purchase price, known as the “advance rate,” at the time of purchase, reserving a
portion of the purchase price as further security. (Id. ¶¶ 18-19.) NBT releases the reserved funds
to its clients once the shipper pays the account. (Id. ¶ 19.)
Defendant Pacer Transportation Solutions Inc. (“Pacer”) brokered loads of shoes
Defendant Zappos.com Inc. (“Zappos”) purchased from various suppliers. (Id. ¶ 26.) Pacer
contracted with Defendant Summitt Trucking, LLC (“Summitt”) to carry some of these loads.
(Id. ¶ 25.) Peak would then, in turn, broker some of these Summitt loads to other carriers. (Id. ¶
24.)
On August 15, 2011, NBT and Third-party Defendant Andy Transport, Inc. (“Andy
Transport”) entered into a factoring agreement. (Id. ¶ 20.) In October 2011, Peak began
brokering shipments of Zappos’ shoes to Andy Transport. (Id. ¶ 21.) These loads included
shipments of shoes Zappos purchased from Defendant Deckers Outdoor, Inc. (“Deckers”) (Id. ¶
22.) Pursuant to their factoring agreement, Andy Transport sold the receivables generated by
these brokered shipments to NBT. (Id. ¶ 23.) NBT promptly notified Peak of NBT’s purchase
of the Andy Transport receivables and of Peak’s obligation to pay NBT. (Id.)
1

On a motion to dismiss under Rule 12(b)(6), the Court will take the well-pleaded factual
allegations in the complaint as true and construe them in the light most favorable to the plaintiff.
Saylor v. Parker Seal Co, 975 F.2d 252, 254 (6th Cir. 1992).
2

On November 23, 2011, and January 5, 2012, Andy Transport hauled two separate loads
of Zappos’ shoes shipped from Deckers’ Caramillo, California facility. (Id. ¶¶ 29, 37.) Peak
brokered both loads to Andy Transport. (Id.) However, unnamed persons absconded with both
loads before they reached their destination. (Id.)
On January 17, 2012, after NBT made numerous inquiries to Peak regarding payment on
open Andy Transport receivables, Peak informed NBT of the thefts and that it had two insurance
claims for lost cargo pending. (Id. ¶ 39.) Peak further informed NBT it was holding payment on
Andy Transport receivables due to the pending claims. (Id.)
NBT commenced this diversity action by filing a Complaint (D.E. # 1) in this Court on
April 4, 2012, alleging causes of action against Peak, Summitt, Pacer, and Zappos for failure to
pay a sworn account, fraudulent misrepresentation, negligent misrepresentation, unjust
enrichment, and replevin. Peak filed a Third-party Complaint (D.E. # 37) on May 25, 2012,
asserting causes of action against Andy seeking a declaratory judgment that Andy be required to
indemnify Peak for NBT’s suit and alleging causes of action against Andy under theories of
fraudulent representation, negligence, and breach of contract. NBT then filed a First Amended
Complaint (D.E. # 64) on October 18, 2012, adding a cause of action for failure to pay a sworn
account against a new defendant, Deckers. Pacer, Peak, Summit, and Zappos filed Answers to
the First Amended Complaint (D.E.s # 67, 69, 68, and 70 respectively) on November 8, 2012.
Andy filed an Answer (D.E. # 71) to Peak’s Third-party Complaint on November 12, 2012.
On December 21, 2012, Deckers filed a Motion to Dismiss (D.E. # 79), arguing NBT
failed to state a claim against it upon which the Court could grant relief. The Court denied
Deckers’ Motion to Dismiss in an Order (D.E. # 101) dated April 8, 2013. Fourteen days later,
on April 22, 2013, Peak filed the present Motion to Dismiss, asking this Court to dismiss NBT

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and Andy’s claims against Deckers, Pacer, and Zappos. Peak argues that a contract between it
and Andy (“the Broker-Carrier Agreement”) bar Andy (and by extension NBT) from recovering
as against Deckers, Pacer, and Zappos. NBT argues that Peak does not have standing to assert
affirmative defenses on behalf of Deckers, Pacer, and Zappos; that Peak’s motion is untimely
under the Federal Rules of Civil Procedure; and that Peak’s motion is without merit substantively
because a contract between Peak and NBT cannot alter contractual rights between NBT and
Deckers, Pacer, and Zappos.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a
claim “for failure to state a claim upon which relief can be granted.”2 When considering a Rule
12(b)(6) motion, the Court must treat all of the well-pleaded allegations of the complaint as true
and construe all of the allegations in the light most favorable to the non-moving party.3
However, the Court will not accept legal conclusions or unwarranted factual inferences as true.4
“To avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential
allegations with respect to all material elements of the claim.”5 Ordinarily, a reviewing court
may not consider matters outside the pleadings on a motion to dismiss under Rule 12(b)(6).6
However, a court may consider ‘exhibits attached [to the complaint], public
records, items appearing in the record of the case and exhibits attached to a
defendant’s motion to dismiss so long as they are referred to in the complaint and

2

Fed. R. Civ. P. 12(b)(6).

3

Saylor, 975 F.2d at 254.

4

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).

5

Wittsock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).

6

Rondingo, LLC v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011).
4

are central to the claims contained therein,’ without converting the motion to one
for summary judgment.”7
Under Federal Rule of Civil Procedure Rule 8(a)(2), a complaint need only contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”8 Although
this standard does not require “detailed factual allegations,” it does require more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.”9 In order to survive
a motion to dismiss, the plaintiff must allege facts, if accepted as true, sufficient “to raise a right
to relief above the speculative level” and to “state a claim to relief that is plausible on its face.”10
“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.”11
ANALYSIS
Peak moves the Court to dismiss NBT and Andy’s claims against Deckers, Pacer, and
Zappos. Before proceeding to the merits of the parties’ arguments, however, the Court
determines this Motion is untimely.12

7

Rondingo, L.L.C. v. Tw.p of Richmond, 641 F.3d 673, 680 (6th Cir. 2011) (quoting
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008)) (alteration in
original).
8

Fed. R. Civ. P. 8(a)(2).

9

Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). See also Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012) (quoting Twombly,
550 U.S. at 555).
10

Twombly, 550 U.S. at 570.

11

Iqbal, 556 U.S. at 678.

12

Although NBT raises a standing issue in its Response, the Court may decline to decide
a standing issue when deciding on non-merits grounds. See Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 584-85 (1999).
5

Peak moves the Court pursuant to Rule 12(b)(6) for failure to state a claim. However,
Rule 12(b) unequivocally states “[a] motion asserting any of these defenses must be made before
pleading if a responsive pleading is allowed.”13 An answer is a pleading.14 To move for
dismissal under Rule 12(b)(6), the movant must request judgment either in a pre-answer motion
or in the answer itself.15 Peak filed an Answer more than five months before filing the instant
motion to dismiss.16 By the plain language of Rule 12(b), Peak cannot file a motion to dismiss
pursuant to Rule 12(b)(6) at this late date.
Ordinarily, when presented with a motion to dismiss asserting a failure to state a claim
after filing an answer properly preserving such a defense, the Court will construe the motion to
dismiss as one for judgment on the pleadings under Rule 12(c).17 However, the Court cannot do
so here. Rule 12(c) allows a party to move for judgment on the pleadings “after the pleadings
are closed[.]”18 The pleadings are not closed until every defendant has filed an answer.19 As
Deckers has not yet filed an answer in this matter, the Court does not consider the pleadings
closed, and a motion for judgment on the pleadings would be premature.

13

Fed. R. Civ. P. 12(b).

14

Fed. R. Civ. P. 7(a)(2).

15

Huisjack v. Medco Health Solutions, Inc. 496 F. Supp. 2d 859, 861 (S.D. Ohio 2007).

16

See Answer to Amended Compl., D.E. # 69.

17

Huisjack, 496 F. Supp. 2d at 861. See also Fed. R. Civ. P. 8(e) (“Pleadings must be
construed so as to do justice.”)
18

Fed. R. Civ. P. 12(c).

19

Nationwide Children’s Hosp., Inc. v. D.W. Dickey & Son, Inc. Emps. Health & Welfare
Plan, No. 2:08-cv-1140, 2009 WL 5247486, at *1 (S.D. Ohio Dec. 31, 2009) (citing Doe v.
United States, 419 F.3d 1058, 1061 (9th Cir. 2005)).
6

Therefore, the Court is left on the one hand to consider a motion to dismiss untimely filed
after Peak has filed an answer, and on the other to consider a motion for judgment on the
pleadings filed before the close of pleadings. Either way the Court chooses to construe Peak’s
Motion, it is procedurally deficient. That being the case, the Court finds it appropriate to DENY
Peak’s Motion to Dismiss WITHOUT PREJUDICE as to the substantive issues.
CONCLUSION
Because Peak filed this Motion to Dismiss after Peak filed an Answer to the operative
Complaint, the Court determines the Motion to Dismiss is untimely. Because Decker’s has not
yet filed an answer, the pleadings remain open, and the Court may not construe Peak’s Motion to
Dismiss as a Motion for Judgment on the Pleadings. Therefore, the Court DENIES Peak’s
Motion to Dismiss WITHOUT PREJUDICE as untimely.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: June 17, 2013.

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