United States District Court, E.D. Missouri, Southern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
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.
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)
made an initial payment of $140, 000 for the services and has
made additional payments since. (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)
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.
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).
"[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
Sufficiency of Plaintiffs pleadings alleging fraud
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).
state a claim for fraud under Missouri law, a plaintiff must
(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)