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Cape Dogwood Redevelopment Corp. v. Global Bowling, LLC

United States District Court, E.D. Missouri, Southern Division

September 10, 2019

CAPE DOGWOOD REDEVELOPMENT CORP., Plaintiff,
v.
GLOBAL BOWLING, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants Brent Dyer and Michael Conejo's and Defendant Global Bowling, LLC's separate Motions to Dismiss or, in the Alternative, for a More Definite Statement. (ECF Nos. 8 & 9, respectively) After careful consideration, the Court grants the motions, in part, and denies the motions, in part, as explained herein.

         BACKGROUND[1]

         Plaintiff Cape Dogwood Redevelopment Corporation is remodeling a building located in Cape Girardeau to open and operate a social entertainment establishment, which will include bowling as well as other games and entertainment. (ECF No. 2, at ¶¶ 7-8) Defendant Global Bowling, LLC contacted Plaintiff and offered to sell and install certain bowling equipment, including, but not limited to, balls pins, shoes, lanes, and pinsetters. (Id. at ¶ 11) Defendant Brent Dyer (managing partner, owner, and agent of Global Bowling) "traveled to Cape Girardeau, Missouri and visited Plaintiffs representative at Plaintiffs representative's home." (Id. at ¶ 12) At that meeting, Dyer offered to provide and install bowling equipment and other material, including furniture, imaging, and lighting. (Id. at ¶ 13)

         Plaintiff made an initial payment of $140, 000 for the services and has made additional payments since.[2] (Id. at ¶¶ 16-18) Despite receiving multiple payments from Plaintiff, Global Bowling has allegedly "failed and refused to deliver and install the materials promised." (Id. at ¶ 19) Representatives for Global Bowling traveled to Cape Girardeau on multiple occasions and "assured Plaintiff that materials would be delivered and installed shortly." (Id. at ¶ 21) On one such occasion, Dyer and Defendant Michael Conejo represented the materials would be delivered. (Id. at ¶ 22) Relying on these representations, Plaintiff made additional payments. (Id. at ¶ 23) "Despite these additional payments and other payments, the vast majority of materials have still not been delivered and installed." (Id. at ¶ 24) Eventually, Plaintiff purchased materials from separate vendors at a higher price. (Id. at ¶ 26)

         Plaintiff filed a three-count petition in state court against Global Bowling, Dyer, and Conejo (referred to collectively as "Defendants"): fraud (Count I), breach of contract (Count II), and unjust enrichment (Count III). Dyer and Conejo (referred to as "Individual Defendants") removed the case to federal court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. Individual Defendants and Global Bowling filed separate Motions to Dismiss or, in the Alternative, for a More Definite Statement. (ECF Nos. 8 & 9, respectively) Both motions are fully briefed.

         LEGAL STANDARD

         A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level. . . ." Id. at 555. Courts must liberally construe the complaint in the light most favorable to the plaintiff and accept the factual allegations as true. See Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as true all factual allegations in the complaint); Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (explaining that courts should liberally construe the complaint in the light most favorable to the plaintiff).

         However, "[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). When considering a motion to dismiss, a court can "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. Legal conclusions must be supported by factual allegations to survive a motion to dismiss. Id.

         DISCUSSION

         I. Sufficiency of Plaintiffs pleadings alleging fraud

         Defendants first argue Plaintiffs fraud claim (Count I) should be dismissed because it fails to meet the higher pleading standard as required by Federal Rule of Civil Procedure 9(b).

         To state a claim for fraud under Missouri law, a plaintiff must allege:

(1) a false, material representation; (2) the speaker's knowledge of the falsity or his ignorance of the truth; (3) the speaker's intent that the hearer act upon the representation in a manner reasonably contemplated; (4) the hearer's ignorance of the representation; (5) the hearer's reliance on the truth of the representation; (6) the ...

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