United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RONNIE L. WHITE, District Judge.
This matter is before the court on Defendant G&S Glass & Supply, Inc.'s Motion to Dismiss (ECF No. 13) and Plaintiff Winco Window Company, Inc.'s Motion for Preliminary Injunction (ECF No. 19). These motions are fully briefed and ready for disposition.
On July 27, 2012, W.G. Yates & Sons Construction ("Yates"), as agent for Auburn University, entered into a subcontract with G & S Glass & Supply, Inc. ("G&S") relating to construction of a the Auburn South Donahue Residence Hall at Auburn University in Auburn, Alabama (the "Project"). (Verified Complaint ("Complaint" or "Compl."), ECF No. 1, ¶ 10). On or about July 12, 2012, Winco Window Company, Inc. ("Winco"), who manufactures and sells windows, received an Auburn University Purchase Order to provide aluminum windows and storefront panning related to the Project. (Compl., ¶ 11). On or around July 16, 2012, Winco returned the Auburn University Purchase Order and indicated on the Purchase Order and through an accompanying letter that Winco did not accept the Purchase Order and attached Winco's Terms and Conditions of Sale. (Compl., ¶13). Winco's Terms and Conditions also included an arbitration provision. (Compl., ¶13). Winco did not receive a written response to its July 16, 2012 letter and no party signed or acknowledged Winco's Terms and Conditions of Sale. (Compl., ¶14). Nevertheless, Winco provided the windows for the Project. (Compl., ¶15).
On or about December 23, 2013, G&S filed a Demand for Arbitration with the American Arbitration Association ("AAA") against Yates and its surety, Fidelity & Deposit of Maryland, arising of the subcontract between G&S and Yates (hereinafter "the Arbitration"). (Compl., ¶19). G&S sought $129, 335.32 in damages from Yates. (Compl., ¶20).
On or about January 13, 2014, Yates filed an Answering Statement and Counterclaim Request in the Arbitration seeking $250, 000 in its counterclaim against G & S. (Compl., ¶21). On or about May 5, 2014, G&S filed an Amendment to Demand for Arbitration with the AAA seeking to join Winco to the Arbitration pursuant to the Terms and Conditions of the Auburn University Purchase Order. (Compl., ¶23). Winco objected to its joinder in the Arbitration, but a specially appointed Arbitrator determined "it is clear, at a minimum, Winco agreed to arbitrate all disputes and claims." (Compl., ¶24; ECF No. 1-4). On or about November 12, 2014, Yates, in its own capacity, asserted a crossclaim against Winco in the Arbitration. (Compl., ¶¶25, 26). The location of the Arbitration has not yet been determined. (Compl., ¶28).
In the Complaint, Winco alleges claims for Preliminary Injunction (Count I), Application to Permanently Stay Arbitration (Count II), and Declaratory Judgment (Count III). Winco claims that it never agreed to any of the terms or conditions of the Auburn University Purchase Order, particularly not the arbitration term. (Compl., ¶12). Winco argues that it never entered into a contract with G&S relating to the Project. (Compl., ¶16). Likewise, Winco states that it never entered into a contract with Yates and that Yates was expressly acting as Auburn University's limited agent. (Compl., ¶17). The Auburn University Purchase Order stated, "Contractor [Yates] is a limited agent of Auburn University pursuant to the Agency Appointment and Procurement Agreement for this project." (Compl., ¶17). Winco argues that any contract Winco entered into relating to the Project was with Auburn University but the terms of any such contract did not include the Terms and Conditions of the Auburn University Purchase Order. (Compl., ¶18).
I. MOTION TO DISMISS
A. Standard of Review
In ruling on a motion to dismiss, the Court must view the allegations in the Complaint liberally in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir. 2005)). 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). To survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; Huang v. Gateway Hotel Holdings, 520 F.Supp.2d 1137, 1140 (E.D. Mo. 2007).
1. Allegations in the Complaint
As an initial matter, Winco argues that its allegation in the Complaint that there was no agreement under which it agreed to arbitrate the claims with G&S and Yates must be taken as true because it was "factually supported." (ECF No. 18 at 5). Winco argues that because it has alleged that "there was no such agreement to arbitrate, Winco has stated a facially plausible claim' that this Court has the authority to decide arbitrability because there can be no clear and unmistakable evidence' Winco intended otherwise." (ECF No. 18 at 5-6). G&S, however, notes that the Court is not limited to reviewing the facts in the Complaint, but may also "consider those materials that are necessarily embraced by the pleadings." Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). G&S contends that if ...