United States District Court, E.D. Missouri, Eastern Division
ELKHART METAL FABRICATING, INC., and BULL MOOSE TUBE COMPANY, Plaintiffs,
JOHN K. MARTIN, ELKHART Metal Distributing, INC. and STEURY PROPERTY, L.L.C., Defendants.
MEMORANDUM AND ORDER
JEAN C. HAMILTON, District Judge.
This matter is before the Court on the Partial Motion to Dismiss ("Motion") filed on April 28, 2014 by Defendants John K. Martin ("Martin"), Elkhart Metal Distributing, Inc. ("EMD"), and Steury Property, L.L.C. ("Steury") (collectively "Defendants"). (ECF No. 13). The Motion has been fully briefed and is ready for disposition.
According to the Petition filed by Plaintiffs Elkhart Metal Fabricating, Inc. ("EMF") and Bull Moose Tube Company ("Bull Moose") (collectively "Plaintiffs"), Martin and Bull Moose began near the end of 2012 to discuss the possibility that Bull Moose would purchase the assets of EMD. (Petition, ECF No. 4, ¶ 11). Ultimately, EMF, a wholly-owned subsidiary of Bull Moose, entered into an agreement to do so. (Petition ¶ 12). The agreement allegedly went wrong in a number of ways. Particularly relevant to this Motion are several representations EMD made during contract negotiations with EMF regarding the state of EMD's business affairs, many of which EMF later discovered to be false. (Petition ¶¶ 14, 20). These representations have been memorialized in writing in the Asset Purchase Agreement ("APA"), which also set forth the obligations incurred by each party upon entering into it. ( See Petition ¶ 14).
Plaintiffs initiated this action on February 11, 2014 by filing an eleven-count Petition in the Circuit Court for St. Louis County, Missouri. (Notice of Removal, ECF No. 1, ¶ 1). Relevant to this Motion are: Count I, which is a claim for breach of the Asset Purchase Agreement; Count II, which is a claim for fraudulent misrepresentation; and Count III, which is a claim for negligent misrepresentation. (Petition ¶¶ 26-47). In their Motion, Defendants seek dismissal of Counts II and III.
MOTION TO DISMISS STANDARD
In ruling on a motion to dismiss, the Court must view the allegations in the complaint in the light most favorable to Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Additionally, the Court "must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted). A motion to dismiss must be granted if the complaint does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007) (abrogating the "no set of facts" standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Stated differently, to survive a motion to dismiss, the complaint's factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 1965 (citations omitted).
I. Dismissal of Counts II & III Based on Economic Loss Doctrine
Defendants contend first that both the claim for fraudulent misrepresentation and the claim for negligent misrepresentation merely allege violations of duties imposed upon the Defendants under the APA. (Memo in Support of Partial Motion to Dismiss, "Support Memo, " ECF No. 14, at 3-5). According to Defendants, this means that that both counts are barred by the economic loss doctrine, which prevents actions sounding in contract from being recast as tort claims. Id. at 3-4. Plaintiffs counter that the misrepresentations were made in an effort by the Defendants to induce Plaintiffs to enter into a contractual agreement and that it is therefore acceptable to use the misrepresentations as a basis for separate tort claims. (Response Memo, ECF No. 17, at 2-3).
Missouri's iteration of the economic loss doctrine "prohibit[s] a plaintiff from seeking to recover in tort for economic losses that are contractual in nature." Autry Morlan Chevrolet Cadillac, Inc. v. RJF Agencies, Inc., 332 S.W.3d 184, 192 (Mo.Ct.App. 2010). To determine whether the doctrine applies, Missouri courts must therefore determine both whether the loss is purely economic and whether the action brought is contractual or tortious in nature. The former is not at issue here, but the parties do contest the nature of the action. Missouri courts decide whether an action is tortious or contractual by "ascertain[ing] the source of the duty claimed to be violated." State ex rel. William Ranni Assocs., Inc. v. Hartenbach, 742 S.W.2d 134, 140 (Mo. 1987) ( en banc ). "[I]f the act done independent of the contract would result in a tort, it will continue to do so." Khulusi v. Southwestern Bell Yellow Pages, Inc., 916 S.W.2d 227, 230. But if an act breaches a duty that exists only under the contract, the only avenue for recovery is a breach of contract action. Id.
Defendants' contention that Plaintiffs' fraudulent and negligent misrepresentations claims run afoul of the economic loss doctrine must fail. In Missouri, "fraudulent inducement to contract [is] the breach of a precontractual tort duty." White v. Bowman, 304 S.W.3d 141, 147 (Mo.Ct.App. 2009). Since negligent misrepresentation is substantially similar, it is reasonable to conclude that Missouri courts would also consider negligent misrepresentation to be a breach of a precontractual duty.
Plaintiffs claim that Defendants made false representations for the purpose of inducing Plaintiffs to contract with them. (Petition ¶ 14; Response Memo at 3). For instance, Defendants allegedly made the representation "[t]hat the financial statements delivered by EMD and Martin fully and accurately presented the properties, financial condition and results of operations of [EMD] as of the respective dates and for the periods covered by such Financial Statements, all in accordance with and pursuant to GAAP, consistently applied.'" (Petition ¶ 14(A) (quoting Asset Purchase Agreement ("APA"), ECF No. 4-1)). Defendants also allegedly represented "[t]hat the books of account, accounting records, minute books, and stock record books... of [EMD] [were] complete, accurate and correct and have been maintained in accordance with reasonable business practices.'" (Petition ¶ 14(B) (quoting APA)). According to Plaintiffs, these statements were false. (Petition ¶ 20).
Even though these alleged misrepresentations were memorialized in the APA, none imposed any future obligation on Defendants. Rather, the statements are representations of existing fact. The duty not to fraudulently or negligently make factual misrepresentations to induce another person to form a contract is a duty that exists independently of any contractual obligations ultimately ...