United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE
hired defendant to inspect an airplane before plaintiff
purchased it. Plaintiff alleges that defendant failed to
disclose that the engines were not in compliance with FAA
regulations prior to plaintiff's purchase of the aircraft
and that it failed to discover and/or disclose other
deficiencies as well. Plaintiff brings claims against
defendant for breach of contract, negligence, and negligent
misrepresentation, as well as violations of consumer
protection statutes under Missouri and Illinois law.
moves to dismiss plaintiff's tort claims as barred by
Missouri's economic loss doctrine and the claims brought
under the Missouri Merchandising Practices Act and the
Illinois Consumer Fraud and Deceptive Trade Practices Act. To
decide a motion to dismiss under Fed.R.Civ.P. 12(b)(6), I
must assume all the facts alleged in the complaint are true
and liberally construe the complaint in the light most
favorable to the plaintiff. Foster v. Deutsche Bank Nat.
Trust Co., 2012 WL 5285887, at *2 (E.D. Mo. Oct. 25,
2012) (citing Eckert v. Titan Tire Corp., 514 F.3d
801, 806 (8th Cir. 2008)). The allegations must be sufficient
“to raise a right to relief above the speculative
level, ” however, and the 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, 550
U.S. 544, 555, 570 (2007). Thus, a dismissal under Rule
12(b)(6) should be granted “only in the unusual case in
which a plaintiff includes allegations that show, on the face
of the complaint, that there is some insuperable bar to
relief.” Strand v. Diversified Collection Serv.,
Inc., 380 F.3d 316, 317 (8th Cir.2004); Baily
Int'l, Inc. v. Harcros Chemicals, Inc., No.
4:14-CV-1708 JAR, 2015 WL 1781672, at *1 (E.D. Mo. Apr. 15,
argues that Missouri's economic loss doctrine precludes
plaintiff's tort claims. Missouri's economic loss
doctrine precludes tort liability in those cases in which the
plaintiff seeks recovery solely for economic losses.
Dannix Painting, LLC v. Sherwin-Williams Co., 732
F.3d 902, 905-06 (8th Cir. 2013); Rockport Pharmacy,
Inc.v. Digital Simplistics, Inc., 53 F.3d 195, 197 (8th
Cir. 1995). The economic loss doctrine, however, does not
apply and preclude tort liability in an action based on the
negligent rendition of services by a professional.
Id. at 199 (citing Business Men's Assurance
Co. of America v. Graham, 891 S.W.2d 438, 454
(Mo.Ct.App. 1994)). This exception is applied to negligence
claims involving defendants who have been held to a
professional, rather than an ordinary, standard of care and
who have provided professional services to the plaintiff.
Rockport, 53 F.3d at 453. A second exception applies
where the negligent act or omission which breaches the
contract may serve as a basis for an action in tort.
Union Elec. Co. v. Chicago Bridge & Iron Co.,
2015 WL 1262941, at *6 (E.D. Mo. Mar. 19, 2015). “If
the duty arises solely from the contract, the action is
contractual. The action may be in tort, however, if the party
sues for breach of a duty recognized by the law as arising
from the relationship or status the parties have created by
their agreement.” Id. (quoting Liberty
Mut. Fire Ins. Co. v. Centimark Corp., 2008 WL 5423440,
at *2 (E.D. Mo. Dec. 29, 2008)).
plaintiff argues that defendant's inspection services are
professional services and that its tort claims are not
precluded by the economic loss doctrine. Plaintiff points to
the fact that defendant was hired to determine, among other
things, whether the airplane met the FAA's requirements
to be considered airworthy. Additionally, plaintiff alleges
that defendant owed it a duty to exercise care in the
performance of the inspection and to carefully, accurately,
and properly perform its pre-purchase inspection and a duty
of care to review the aircraft records and log books to
ensure that it complied with FFA regulations. Given these
allegations, it would be premature at this stage of the
proceedings to conclude that plaintiff's allegations
arise solely in contract and dismiss plaintiff's tort
claims as barred by the economic loss doctrine. Accordingly,
defendant's motion to dismiss plaintiff's negligence
and negligent misrepresentation claims will be denied.
See Baily Int'l, Inc. v. Harcros Chemicals,
Inc., No. 4:14-CV-1708 JAR, 2015 WL 1781672, at *1-2
(E.D. Mo. Apr. 15, 2015); Liberty Mutual Fire Ins. Co.
v. Centimark Corp., 4:08-CV-230 DJS, 2008 WL
5423440, at *2 (E.D. Mo. Dec. 29, 2008); City of Kennett
v. Wartsila North America, Inc., 4:05-CV-114 HEA, 2005
WL 3274334, at *2 (E.D. Mo. Dec. 2, 2005).
argument that plaintiff has not properly pled its MMPA claim
will be denied as plaintiff has adequately alleged the
necessary elements for such a claim. Plaintiff alleged that
it “purchased the Aircraft for primarily personal,
family or household purposes.” (Doc. # 1 at 15).
claim under the Illinois Consumer Fraud and Deceptive Trade
Practices Act must be dismissed as the act does not apply
“to fraudulent transactions which take place outside
Illinois.” Avery v. State Farm Mut. Auto. Ins.
Co., 835 N.E.2d 801, 853 (Ill. 2005). Given
plaintiff's allegation that “a substantial part of
the events or omissions giving rise to the claims
occurred” in Missouri, plaintiffs claim under Illinois
law must be dismissed. This is especially true in light of
the Illinois state court's prior opinion that Illinois
lacked personal jurisdiction over defendant in this dispute
because the airplane was located in Missouri and defendant
performed its evaluation of the airplane in Missouri. [Doc. #
IT IS HEREBY ORDERED that the motion to
dismiss  is granted only as follows: Count IV of
the complaint is dismissed. In all ...