Frantz et al v. Ace Hardware Corporation et al
Filing
38
MEMORANDUM OPINION AND ORDER denying 15 Defendant Ace's Motion to Dismiss. Signed by District Judge Irene M. Keeley on 3/22/2016. (kd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL L. FRANTZ and
CRYSTAL L. FRANTZ,
Plaintiffs,
v.
//
CIVIL ACTION NO. 1:15CV181
(Judge Keeley)
ACE HARDWARE CORPORATION,
and A.D. NAYLOR & CO., INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
Pending before the Court is the motion to dismiss filed by the
defendant, Ace Hardware Corporation (Dkt. No. 15).
The questions
presented are (1) whether the Court may consider the extrinsic
evidence attached to Ace’s motion to dismiss; and (2) whether the
complaint filed by the plaintiffs, Michael and Crystal Frantz,
alleges
sufficient
facts
to
establish
an
between Ace and defendant A.D. Naylor & Co.
agency
relationship
For the following
reasons, the Court DENIES Ace’s motion to dismiss the complaint
(Dkt. No. 15).
I.
A.
BACKGROUND
Factual Background
As it must, the Court construes the following facts in the
light most favorable to the non-movants.
U.S. 265, 286 (1986).
Papasan v. Allain, 478
The plaintiffs, Michael and Crystal Frantz
FRANTZ v. ACE HARDWARE CORPORATION
1:15CV181
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
(“Mr. and Mrs. Frantz”), filed this lawsuit against the defendants,
Ace Hardware Corporation ("Ace") and A.D. Naylor & Co., Inc.
("Naylor")
(collectively,
“the
defendants”),
alleging
(1)
negligence; (2) breach of the implied warranties of merchantability
and fitness for a particular purpose; and (3) strict liability for
failure to warn (Dkt. No. 9-4).
Ace is an Illinois corporation that operates a retailer-owned
hardware cooperative of over 4,000 member stores across the United
States and Canada.
Id. at 1-2.
It is branded with the national
slogan, “The Helpful Place”; previously, its brand was “The Helpful
Hardware Place,” and “Ace is the place with the helpful hardware
folks.”
Id. at 2.
Naylor is a Maryland corporation and a member
of Ace’s retail cooperative.
Id.
As a member of the cooperative,
Naylor owns and operates Naylor’s Ace Hardware stores at three
branch locations in Maryland and West Virginia.
Id.
The Frantzes allege that, in exchange for the various services
received
through
requires
its
membership
members,
in
including
the
retail
Naylor,
to
cooperative,1
abide
standardized policies, procedures, and guidelines.
by
Ace
various
Id.
The
Frantzes further allege that Ace’s standardized policies include
1
Member stores receive, for instance, enhanced purchasing
power on behalf of the cooperative (Dkt. No. 9-4 at 2).
2
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1:15CV181
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
those pertaining to its “equipment leasing program, participated in
by many of its member[s],” including Naylor.
Id.
On August 13, 2013, Mr. Frantz called Naylor’s Ace Hardware
store in Oakland, Maryland, to inquire about suitable draincleaning equipment for his home septic system.
Id. at 4.
A Naylor
sales associate confirmed that the store had the equipment Mr.
Frantz needed.
Id.
Later that day, Mr. Frantz drove to the Naylor
store and, upon his arrival, referenced his earlier call and
reiterated the problem with his septic system.
Id.
A sales
associate then presented Mr. Frantz with “the most powerful Easy
Rooter available.”
Id.
An Easy Rooter is a machine intended for
clearing roots and other obstructions in the drain lines of septic
tanks and other plumbing-related facilities.
Id. at 4-5.
Mr. Frantz and Naylor entered into a verbal agreement for the
lease of the Easy Rooter.
Id. at 5.
At the time, Naylor did not
inquire about whether Mr. Frantz had any experience using the Easy
Rooter (he did not); nor did Naylor provide Mr. Frantz with any
written or verbal instructions, manuals, or warnings regarding the
proper use and operation of the Easy Rooter.
Id.
Upon returning to his home in Preston County, West Virginia,
Mr. Frantz plugged the Easy Rooter into an electrical outlet in his
garage and created slack by withdrawing several feet of the
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
machines’s 100-foot long metal cable.
Id.
He then knelt down to
insert the cable into his clogged septic tank drain pipe.
Id.
As
the head of the cable entered the pipe and made contact with the
water, Mr. Frantz received a severe shock.
Id.
Unbeknownst to
him, the outlet in his garage was not properly grounded, and the
Easy Rooter did not have a safety device to prevent a shock when
faulty wiring was present.
It also displayed no warning of the
possibility of such a shock due to faulty grounding.
Id. at 6.
As Mrs. Frantz observed her husband being shocked, she rushed
to his side, intending to pull him away from the Easy Rooter.
at 5.
Id.
As she attempted to do so, she too received an electrical
shock, causing her arm to go numb.
Id. at 6.
Mr. Frantz was transported via helicopter to Ruby Memorial
Hospital in Morgantown, West Virginia, where he remained from
August 30, 2013, to September 1, 2013.
Id.
As a result of the
electrical shock, he suffered severe, permanent, and debilitating
injuries, including neurological trauma, burns, scarring, and
disfigurement.
He continues to suffer from seizures, dizziness,
and severe headaches.
Id.
Mrs. Frantz also suffered injuries,
including burns, severe emotional distress, and loss of consortium.
Id. at 7.
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1:15CV181
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
B.
Procedural Background
On August 7, 2015, the Frantzes filed suit in the Circuit
Court of Preston County, West Virginia (Dkt. No. 9-4).
With the
consent of Ace, Naylor removed the case to this Court on October
15, 2015 (Dkt. No. 1), alleging original jurisdiction under 28
U.S.C. § 1332(a) based on diversity of citizenship.
Id. at 6.
The
Frantzes are citizens of West Virginia and reside in Preston
County, West Virginia (Dkt. No. 9-4 at 1).
Ace is an Illinois
corporation with its principal place of business in Illinois (Dkt.
No. 1 at 3).
Naylor is a Maryland corporation with its principal
place of business in Maryland.
Id.
The Frantzes’ complaint
includes claims for compensatory damages, punitive damages, and
attorneys’ fees in excess of the jurisdictional threshold of
$75,000.00.
Id. at 6.
Following removal, on December 11, 2015, Ace moved to dismiss
the Frantzes’ complaint for failure to state a claim upon which
relief can be granted (Dkt. No. 15).
The Frantzes predicate their
claims against Ace on the allegation that Naylor is the agent of
Ace in the operation of its hardware business and equipment leasing
program.
Ace argues that no such agency relationship exists and
that the claims against it therefore must be dismissed (Dkt. No. 16
at 9-10).
The Frantzes contend that they have alleged a plausible
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1:15CV181
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
agency relationship between Ace and Naylor and, as such, dismissal
on the ground asserted by Ace is inappropriate in the absence of
any discovery (Dkt. No. 23 at 10).
The motion is fully briefed and
ripe for disposition.
II.
LEGAL STANDARD
In reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual allegations contained in
the complaint.’”
Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)).
While
a
complaint
does
not
need
detailed
factual
allegations, however, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than mere labels
and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.
544, 555 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S.
Indeed, courts “are not bound to accept as true
a legal conclusion couched as a factual allegation.”
Papasan v.
Allain, 478 U.S. at 286.
In considering whether the facts alleged are sufficient, “a
complaint must contain ‘enough facts to state a claim to relief
that is plausible on its face.’”
(quoting
Twombly,
550
U.S.
at
Anderson, 508 F.3d at 188
547).
“A
claim
has
facial
plausibility when the plaintiff pleads factual content that allows
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). This requires “more than a sheer possibility that
a defendant has acted unlawfully.”
Id.
III. ANALYSIS
A.
Extrinsic Evidence
Attached
to
Ace’s
motion
to
dismiss
is
a
confidential
membership agreement (“Membership Agreement”) between Naylor and
Ace
(Dkt.
No.
17),
which
Ace
contends
defines
the
legal
relationship between the Naylor and it (Dkt. No. 16 at 5-6).
Specifically,
Ace
claims
in
its
motion
that
the
Membership
Agreement clearly establishes that "no agency, partnership, or
similar relationship exists" between Ace and Naylor, and, thus, Ace
has no liability for the Frantzes' claims, which, to the extent
they relate to Ace, are predicated upon the existence of such an
agency relationship (Dkt. No. 16 at 9).
The Membership Agreement
was not attached to the Frantzes' complaint; nor was it attached to
Naylor’s answer.
Thus, as a threshold matter, the Court must
determine whether it may consider the Membership Agreement when
analyzing Ace's motion to dismiss.
Federal Rule of Civil Procedure 12(d) states:
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FRANTZ v. ACE HARDWARE CORPORATION
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
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.
All parties must be
given a reasonable opportunity to present all the
material that is pertinent to the motion.
Accordingly, when courts choose to consider evidence outside the
pleadings on motions to dismiss pursuant to Rule 12(b)(6), these
motions are generally converted to motions for summary judgment.
Attaching a document to a motion to dismiss, however, does not
automatically convert it to a motion for summary judgment. Rather,
the motion may become one for summary judgment if and when the
Court chooses to consider those extrinsic documents.
See, e.g.,
Finley Lines Joint Protective Bd. Unit 200, Bhd. Ry. Carmen v.
Norfolk S. Corp., 109 F.3d 993, 995-96 (4th Cir. 1997).
The Fourth Circuit has adopted an exception to the general
rule that extrinsic documents should not be examined at the Rule
12(b)(6) dismissal stage.
See Am. Chiropractic Ass'n v. Trigon
Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting
Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999)).
Under the so-called Trigon exception, a court may consider a
document that the defendant attaches to its motion to dismiss if
the document "was integral to and explicitly relied on in the
complaint and if the plaintiffs do not challenge its authenticity."
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
Id.
Therefore, if a court finds that an extrinsic document was
"integral to and relied on in forming the complaint" (and the
opposing party does not dispute its authenticity), such evidence
may be considered without conversion to a motion for summary
judgment. See id. at 234-35.
The Court must assess whether, as Ace argues, the Membership
Agreement attached to its motion to dismiss meets the Trigon
exception for the consideration of evidence outside the pleadings.
The Frantzes acknowledge the Trigon exception, but argue that
"[p]laintiffs were unaware that the Membership Agreement even
existed at the time the Complaint was filed." (Dkt. No. 23 at 7).
Because they "lacked actual notice" of the Membership Agreement,
the Frantzes argue that it was not "integral to and explicitly
relied on in the complaint" and should thus be excluded from
consideration at this stage.
Id.
Ace maintains that the Membership Agreement satisfies the
Trigon exception and therefore should be considered by the Court
(Dkt. No. 26 at 4).
Citing the Frantzes' allegations that Naylor
is a member of Ace's retail cooperative of member hardware stores,
that Naylor was the agent of Ace in the operation of its hardware
store, including its equipment leasing program, and that Naylor is
required to abide by various standardized policies and procedures
9
FRANTZ v. ACE HARDWARE CORPORATION
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
of
Ace,
Ace
contends
that
the
allegations
contained
in
the
complaint establish that the Frantzes "have a great deal of
knowledge as it relates to business relations . . . of a national
company and its member," and that "this knowledge of anticipated
obligations . . . between a national company and its member was
integral to and explicitly relied on" in the Frantzes' complaint
(Dkt. No. 26 at 4-5).
Neither the Frantzes nor Ace challenge the authenticity of the
Membership Agreement (Dkt. No. 26 at 5).
Hence, the relevant
questions are whether the Membership Agreement is integral to the
Frantzes' complaint, and whether they relied on it in forming their
allegations. The Fourth Circuit has not explicitly decided whether
actual notice to the plaintiff is required to meet the Trigon
exception
however,
for
consideration
commented
on
the
of
extrinsic
function
of
evidence.
actual
notice
It
to
has,
the
plaintiff in the context of the exception:
“The rationale underlying this exception is that the
primary problem raised by looking to documents outside
the complaint-lack of notice to the plaintiff-is
dissipated "[w]here plaintiff has actual notice . . . and
has relied upon these documents in framing the
complaint."
Trigon, 367 F.3d at 234 (quoting In re Burlington Coat Factory
Securities Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997)).
10
This
FRANTZ v. ACE HARDWARE CORPORATION
1:15CV181
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
rationale supports the Frantzes' contention that without "actual
notice" of the Membership Agreement, they did not (and could not
have) "relied upon" it in "framing the complaint."
federal courts agree.
Id.
Other
See, e.g., Cortec Industries, Inc. v. Sum
Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (holding that "where
plaintiff has actual notice of all the information in the movant's
papers
and
has
relied
upon
these
documents
in
framing
the
complaint," the reviewing court can considering the documents on a
motion to dismiss).
The complaint itself supports the Frantzes' contention that
they did not rely upon the Membership Agreement to frame the
complaint.
Notably, their basic negligence, breach of implied
warranties, and strict liability claims do not rely on the contents
of the Membership Agreement.
The complaint does not quote or
describe the contents of the Membership Agreement.
In fact, it
does not explicitly reference the Membership Agreement or, for that
matter, any other written agreement between Ace and Naylor.
Cf.
Blankenship v. Manchin, 471 F.3d 523, 526 (4th Cir. 2006) (finding
a newspaper article attached to the defendant's motion to dismiss
"integral to" the complaint and "explicitly relied on" by the
plaintiff where he quoted from the article in his complaint);
Zimmeck v. Marshall Univ. Bd. of Governors, No. 3:13-14743, 2014 WL
11
FRANTZ v. ACE HARDWARE CORPORATION
1:15CV181
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
108668, at *5 (S.D.W. Va. Jan. 10, 2014) (finding a university
policy "integral to" the complaint and "explicitly relied on" by
the plaintiff where it was "clear" that she had repeatedly referred
to the policy in her amended complaint).
Rather, the complaint
simply states that, as a member of Ace's retail cooperative,
"Naylor[] was the agent of the Defendant Ace Hardware in the
operation
of
its
hardware
business"
and
that
"upon
further
information and belief, Naylor[] is required to abide by and follow
various standardized policies, procedures, and guidelines of Ace
Hardware." (Dkt. No. 9-4 at 4-5).
Such allegations about the
nature of the relationship between Ace and Naylor are not obviously
or apparently based on the contents of the Membership Agreement.
Furthermore, although Ace argues that the Frantzes were "aware
that an explicit agreement existed" between Ace and Naylor (Dkt.
No. 26 at 5), it also claims that the Frantzes' complaint was
"drafted with the anticipation that an explicit agreement" existed
between Ace and Naylor, perhaps conceding that the Frantzes did not
explicitly rely on the Membership Agreement in forming their
complaint.
Id. (emphasis added).
Based on these considerations, the Court cannot conclude that
the Membership Agreement is integral to the Frantzes' complaint, or
that
the
Frantzes
relied
on
the
12
Agreement
in
forming
their
FRANTZ v. ACE HARDWARE CORPORATION
1:15CV181
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
complaint.
The Membership Agreement therefore fails to meets the
Trigon exception, and the Court will not consider it in its
analysis of Ace's motion to dismiss.
B.
Alleged Agency Relationship
As mentioned, the Frantzes' claims against Ace are predicated
upon
the
existence
of
an
agency
relationship
between
the
defendants, such that liability for the actions of the agent,
Naylor, may be applied vicariously to the principal, Ace.
In its
motion, Ace challenges the adequacy of the alleged facts supporting
the necessary agency relationship between it and Naylor. It argues
that the Frantzes’ complaint contains “mere naked assertions”
regarding the existence of such a relationship (Dkt. No. 16 at 910).
Under
West
Virginia
law,
an
agent
is
defined
"in
the
restricted and proper sense" as "a representative of his principal
in business or contractual relations with third persons." Syl. Pt.
2, in part, State ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E. 276
(1923).
Specifically, an agency relationship exists where one
party (the principal) grants express or implied authority to
another party (the agent) to represent the principal in dealings
with third persons, creating a fiduciary relationship between the
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FRANTZ v. ACE HARDWARE CORPORATION
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
parties.
State ex rel. Clark v. Blue Cross Blue Shield of W. Va.,
Inc., 203 W. Va. 690, 714, 510 S.E.2d 764, 788 (1998).
An "essential element[] of an agency relationship is the
existence of some degree of control by the principal over the
conduct and activities of the agent."
Syl. Pt. 5, Paxton v.
Crabtree, 184 W. Va. 237, 400 S.E.2d 245 (1990).
"Proof of an
express contract of agency is not essential" to the establishment
of the relationship.
General Elec. Credit Corp. v. Fields, 148 W.
Va. 176, 181, 133 S.E.2d 780, 783 (1963).
Rather, agency "may be
inferred from facts and circumstances," and the "underlying conduct
of the parties can be reviewed" to determine whether an agency
relationship exists.
Harper v. Jackson Hewitt, Inc., 227 W. Va.
142, 155-56, 706 S.E.2d 63, 76-77 (2010) (citing Restatement
(Third)
of
Agency
§
1.02
("[T]he
existence
of
an
agency
relationship is determined on the actual practices of the parties,
and not merely by reference to a written agreement.").
Whether or
not an agency relationship exists depends upon the facts of each
case.
Harper, 227 W. Va. at 155, 706 S.E.2d at 75.
West Virginia law also recognizes the principle of apparent
authority, or "apparent agency."
Apparent agency involves a case
in which there may be no agency in fact, but where
14
FRANTZ v. ACE HARDWARE CORPORATION
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
one who by his acts or conduct has permitted another to
act apparently or ostensibly as his agent, to the injury
of a third person who has dealt with the apparent or
ostensible agent in good faith and in the exercise of
reasonable prudence, is estopped to deny the agency
relationship.
Syl. Pt. 1, General Elec. Credit Corp. v. Fields, 148 W. Va. 176,
133 S.E.2d 780 (1963).
See also Syl. Pt. 8, Brewer v. Appalachian
Constructors, Inc., 138 W. Va. 437, 76 S.E.2d 916 (1953) ("[W]here
the principal or employer holds out or represents a person to be
his agent or employee, and a third party or parties rely thereon .
. . the person making the representation is estopped to deny the
agency.").
Ace argues that the claims against it, all of which are based
on an alleged agency relationship between Ace and Naylor, must fail
because the Frantzes have alleged only "naked assertions" about the
degree of control Ace exercised over Naylor (Dkt. No. 16 at 9-10).
The Court disagrees.
The facts pleaded in the complaint are sufficient to indicate
the existence of an agency relationship in this case.
In relevant
part, the Frantzes allege the following:
3. Ace Hardware is, and was at all times relevant
hereto, engaged in the business of operating a retail
cooperative of over 4,000 member hardware stores . . .
. Ace Hardware does business . . . directly and through
the members of its cooperative.
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DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
5. Defendant Naylor's is a member of the Defendant Ace
Hardware's retail cooperative, and, upon information and
belief, is the recipient of various services provided by
its retail cooperative head, Ace Hardware . . . and,
upon further information and belief, Naylor's is
required to abide by and follow various standardized
policies, procedures, and guidelines of Ace Hardware,
including those pertaining to the Ace Hardware's
equipment leasing program, participated in by many of
its member stores, including Ace's member hardware
store, Naylor's.
6. Naylor's owns and operates Naylor's Ace Hardware
stores . . . where it sells and leases various hardware
products, including but not limited to: mechanical and
electrical equipment, including a product known as an
"Easy Rooter" . . . .
9. When the Easy Rooter is used in an equipment leasing
program, such as employed by the defendant Ace Hardware,
and implemented through its member stores, such as
Defendant Naylor's . . . .
(Dkt. No. 9-4 at 2-3)(emphasis added).
Throughout their complaint, the Frantzes repeatedly allege
that the defendants operate a joint, or "combined," equipment
leasing program, which is "employed by" Ace and "implemented
through" Ace's member stores, including Naylor (Dkt. No. 9-4 at
2-3, 7).
They also allege that Ace is responsible for providing
Naylor with proper instructional, operational, and safety materials
and information regarding the equipment in the leasing program
(Dkt. No. 9-4 at 7).
These factual allegations constitute more
16
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
than "naked assertions" or mere bare recitations of the elements of
agency; rather, they sufficiently allege that Ace exercised the
requisite control over the conduct of Naylor to establish an agency
relationship.
Additionally, although the precise nature of the relationship
between Ace and Naylor may not be entirely clear to the Frantzes at
this early stage of litigation, "sorting out [that] relationship,
as necessary for this litigation, is a factual matter that may be
resolved by summary judgment following discovery, not by Rule
12(b)(6)."
Pinnacle Mining Co., LLC v. Bluestone Coal Corp., No.
5:08-CV-00931, 2009 WL 1543867, at *2 (S.D.W. Va. May 29, 2009).
Accordingly,
the
Frantzes
are
entitled
to
conduct
discovery
regarding the control, if any, Ace exercised over the conduct and
activities of Naylor.
The Frantzes' complaint provides "enough facts to state a
claim to relief that is plausible on its face" even without the
allegations
regarding
Ace's
Twombly, 550 U.S. at 547.
of
agency,
factual
control
over
Naylor's
conduct.
Although control is a necessary element
allegations
explicitly
demonstrating
such
control are not necessary for the Frantzes' agency claim to survive
Ace's motion to dismiss.
See Perry v. Tri-State Chrysler Jeep,
LLC, No. 3:08-0104, 2008 WL 1780938, at *3 (S.D.W. Va. Apr. 16,
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FRANTZ v. ACE HARDWARE CORPORATION
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MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT ACE’S MOTION TO DISMISS [DKT. NO. 15]
2008).
A claim of agency relationship between Ace and Naylor is
"simply not the kind of claim, implausible on its own, which
requires the support of factual pleading." Id.
of
Ace's
retail
cooperative
of
hardware
Naylor is a member
stores.
Naylor
is
authorized to use the name of Ace in its own business ("Naylor's
Ace Hardware").
Naylor purchases merchandise through the Ace
retail cooperative and then sells it to consumers in its "Naylor
Ace
Hardware"
stores.
One
thus
can
infer
a
contractual
relationship between Ace and Naylor, and "it is not implausible
that
the
applicable
relationship."
See id.
contract
describes
a
principal-agent
Accordingly, the Frantzes have alleged
sufficient facts regarding the existence of an agency relationship
to survive Ace's motion to dismiss.
IV.
CONCLUSION
For the reasons discussed, the Court DENIES Ace’s motion to
dismiss the complaint (Dkt. No. 15).
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
DATED:
March 22, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
18
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