Brooks Jay Transportation, Inc. v. Fedex Ground Package System, Inc.

Brief in Opposition

W.D. Wis.March 3, 2017

UNTIED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN BROOKS JAY TRANSPORTATION, INC., Plaintiff, v. Case No.: 3:17-CV-00084 Removed from Circuit Court of Dane County, Case No. 2017CV000028 FEDEX GROUND PACKAGE SYSTEM, INC. Defendant. PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS Defendant FedEx Ground Package Systems, Inc. (“FedEx”) filed a (Partial) Motion to Dismiss Counts two through five of Plaintiff Brooks Jay Transportation, Inc.’s (“Brooks Jay”) Complaint. In so doing, FedEx ironically complains of Brooks Jay’s “over-pleading.” Yet, in its motion FedEx is demonstrating classic “over-litigation” as its motion is not well-founded. Motions to Dismiss are to be granted sparingly and with caution. Kingwood Oil Co. v. Bell, 204 F.2d 8, 15 (7th Cir. 1953). In testing the sufficiency of a complaint, federal courts review the complaint under the notice pleading standard meaning a complaint needs to provide only a short and plain statement of the claim meant to show that the plaintiff is entitled to relief and to provide the defendant with fair notice. Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Financial Servs., 536 F.3d 663, 667 (7th Cir. 2008). The plaintiff’s allegations must show that relief is plausible and not merely Case: 3:17-cv-00084-slc Document #: 8 Filed: 03/03/17 Page 1 of 6 2 speculative. Id. Claims based on state law are reviewed under the federal pleading standards and the Federal Rules of Civil Procedure. Id. at 672. FedEx bases its present Motion to Dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. However, under the notice theory of pleading it is immaterial whether a pleading states conclusions or facts as long as fair notice is given. Rogers v. Dwight, 145 F.Supp. 537, 538 (E. D. Wis. 1956)(citing 2 Moor’s Federal Practice § 8.13). A Motion to Dismiss pursuant to Rule 12(b)(6) is simply a test whether the allegations, liberally construed, are sufficient to make admissible enough evidence to support a verdict for the plaintiff, Wilson v. Illinois C.R. Co., 147 F.Supp. 513, 515 (N. D. Ill. 1957). In other words, if plaintiff could recover upon any state of facts which might be proved under the allegations as stated, the complaint states a claim upon which relief can be granted and the motion must be denied. Id. Under this standard, Brooks Jay’s claims are valid and in line with the notice pleading standards required by the Federal Rules of Civil Procedure. The facts alleged in Brooks Jay’s Complaint are more than enough to support its claims for breach of the covenant of good faith and fair dealing, specific performance, and civil theft under the liberal notice pleading standard. I. Count 2: Breach of Duty of Good Faith and Fair Dealing should not be dismissed The first strict evidence of “over-litigation” on behalf of FedEx is its defense to Brooks Jay’s claim for breach of good faith and fair dealing. Defendant seeks to dismiss Count 2 of the Complaint on the basis that it is “duplicative.” (M. Dismiss at 4). It is undisputed that Pennsylvania law (which governs the contract at issue in this case) does not recognize a separate claim for the breach of the duty of good faith and fair dealing from a breach of contract. However, it is also undisputed that Brooks Jay could recover damages under a breach of contract theory based upon Case: 3:17-cv-00084-slc Document #: 8 Filed: 03/03/17 Page 2 of 6 3 FedEx’s breach of its duty of good faith and fair dealing. Thus, Brooks Jay’s claim for breach of good faith and fair dealing should stand. The federal pleading requirements and rules are clear to this issue. Those rules specifically state that: a party may set out 2 or more statements of a claim… alternatively or hypothetically, either in a single count… or separate ones. If a party makes alternate statements, the pleading is sufficient if any of them is sufficient Fed. R. Civ. P. 8(d)(2). Additionally, no pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim upon which it is called to defend. Temperato v. Rainbolt, 163 F.Supp. 744, 746 (E.D. Ill 1957). Splitting one claim into two counts reasonably informs FedEx to the nature of Brooks Jay’s claim, based on a different theory of contract law and, therefore, FedEx’s Motion to Dismiss count two of Brooks Jay’s complaint should be denied. II. Count 3: Specific Performance is available as a claim as damages cannot be accurately computed or ascertained. That an injury can be compensated by damages is not sufficient to thwart a claim for specific performance, as those damages must also be calculable and not speculative and indeterminate. See Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 117 A.2d 697 (Pa. 1955). Specific Performance is an appropriate remedy where there is no method by which the amount of damages can be accurately computed or ascertained. Id. The particular loss that Brooks Jay may experience as a result of FedEx’s actions may be too speculative to award a compensable monetary Case: 3:17-cv-00084-slc Document #: 8 Filed: 03/03/17 Page 3 of 6 4 award. The method by which compensation for servicing EcoLab is calculated is dependent on the number of pickups made, which varies by week. Dkt. 1-1 at ¶ 18. Brooks Jay has a proprietary interest in the customer accounts which include pick-ups and deliveries within its Primary Service Area. Dkt. 1-1 at ¶ 29. One such Primary Service Area is identified by a unique number - 104475. Id. at ¶15. That unique identification number gives Brooks Jay the proprietary interest to the customer accounts in three unique areas identified by their unique ZIP codes. Id. at ¶16. EcoLab falls within the Primary Service Area, 104475, meaning that Brooks Jay has a proprietary interest in the account. Id. ¶¶ 23, 30. In its argument to support dismissal of the specific performance claim, FedEx focuses on Pennsylvania law which clearly references what is necessary to obtain a judgment for specific performance, not what is needed to plead it. As this case progresses, it may be possible to find other adequate remedies to compensate Brooks Jay for FedEx’s breach of the contract. However, it is too early to determine this at the pleadings stage. Furthermore, the liberal pleading rules under the Federal Rules of Civil Procedure allow a plaintiff to seek both specific performance and damages in the same complaint. Medcom Holding Co. v. Baxter Travenol Lab., 984 F.2d 223, 229 (7th Cir. 1993). While a plaintiff cannot recover both damages and specific performance as a final remedy, the plaintiff is not required to choose one over the other at the pleadings stage. Id. Thus, the mere mention that FedEx failed to compensate Brooks Jay is not a sufficient reason to dismiss Brooks Jay’s claim for specific performance. Finally, FedEx focuses its argument on the omission of the word “unique” from Brooks Jay’s complaint to support its specific performance claim. Yet, given the liberal federal pleading Case: 3:17-cv-00084-slc Document #: 8 Filed: 03/03/17 Page 4 of 6 5 standards, the facts as pleaded by Brooks Jay are sufficient, as demonstrated above, to give FedEx fair notice of Brooks Jay’s specific performance claim. III. Counts 4 and 5: Conversion: Civil Theft under Wis. Stat. § 943.20 and § 895.446 should not be dismissed Lastly, FedEx seeks to dismiss Brooks Jay’s claim for civil theft. As rightly pointed out by FedEx, section 895.446 of the Wisconsin Statutes specifically allows for a civil right of action for damages resulting from criminal theft under section 943.20 of the Wisconsin Statutes. Wis. Stat. § 895.446(1); (Dkt. 4 at 5-6). Brooks Jay concedes that it could have pled this claim by pleading it as one count instead of two. Yet, again, under the notice pleading standards, Brooks Jay’s intentions with this claim are quite clear - to bring a claim for civil theft against FedEx. Brooks Jay cited both the relevant statutes in bringing these counts, which is enough to give FedEx fair notice of the claims it is called upon to defend. To the substance of the claims, first, Brooks Jay certainly did not intend, and does not believe it did in fact, plead for theft by fraud under sections 895.446 and 943.20(1)(d) of the Wisconsin Statutes. Thus, to the extent such a claim may be found within the complaint, Brooks Jay agrees to dismiss any such claim, without prejudice (in the event discovery produces any evidence to support such a claim). However, to the claims for civil theft by conversion, Brooks Jay has pleaded that claim with sufficiency to give FedEx notice. Moreover, the claim applies to the contract which FedEx must admit is “movable property,” which is specifically defined as “documents which represent or embody intangible rights.” Wis. Stat. § 943.20(2)(ag). The proprietary right to service EcoLab is an intangible right which is represented by a written contract. Case: 3:17-cv-00084-slc Document #: 8 Filed: 03/03/17 Page 5 of 6 6 The statute clearly states that a theft is committed when one intentionally takes and carries away, uses, transfers, conceals or retains possession of a movable property of another without the other’s consent and with the intent to deprive the owner permanently of possession of such property. Wis. Stat. § 943.20(1)(a) (emphasis added). There is no doubt that FedEx has transferred and used the movable property belonging to Brooks Jay to deny it of the rights embodied therein. The transfer and use are potentially two separate offenses. See State v. Seymour, 183 Wis. 2d 683, 699, 515 N.W.2d 874 (1994) (section 943.20(1)(a) should be read as five disjunctive acts, each which describes a different form of theft or property deprivation). CONCLUSION For the foregoing reasons, FedEx’s Motion to Dismiss should be DENIED, in whole, and Brooks Jay’s claims for breach of good faith and fair dealing, specific performance, and civil theft should stand. Dated this 3rd day of March, 2017. KRAMER, ELKINS & WATT, LLC Attorneys for Plaintiff Brooks Jay Transportation, Inc. /s/ Leslie Elkins_______________________ Leslie Elkins State Bar No.: 1086052 Jessica M. Kramer State Bar No. 1050370 17 Applegate Court, Suite 203 Madison, WI 53713 Office: 608.709.7115 Fax: 608.260.7777 elkins@kewlaw.com kramer@kewlaw.com Case: 3:17-cv-00084-slc Document #: 8 Filed: 03/03/17 Page 6 of 6