West Range Reclamation, Llc v. Scott's Company, Llc, The

MOTION to Dismiss for Failure to State a Claim

D. Colo.January 31, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO WEST RANGE RECLAMATION, LLC, Plaintiff, v. THE SCOTTS COMPANY LLC, Defendant. : : : : : : CASE NO: 1:16-cv-02161-RM-KMT Judge Raymond P. Moore Magistrate Judge Kathleen M. Tafoya MOTION OF DEFENDANT THE SCOTTS COMPANY LLC TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT ___________________________________________ Pursuant to Fed. R. Civ. 12(b)(6), Defendant The Scotts Company LLC ("Scotts") moves to dismiss both claims alleged in the Second Amended Complaint for Breach of Contract or in the Alternative for Promissory Estoppel [Doc. No. 36] ("Complaint") filed by Plaintiff West Range Reclamation, LLC ("West Range"). First, West Range is prohibited as a matter of law from seeking to enforce a contract that has been rejected by the United States Bankruptcy Court for the District of Colorado. King v. Baer, 482 F.2d 552, 557 (10th Cir. 1973); Sullivan v. T.C. Mathew, No. 14 C 6877, 2015 U.S. Dist. LEXIS 40033, *12 (N.D. Ill. Mar. 30, 2015) ("because rejection is treated as a breach," a trustee or debtor "who rejects an executory contract can no longer enforce its provisions." (emphasis added)). Moreover, West Range is precluded from pursuing its claims under the doctrine of judicial estoppel. Eastman v. Union Pac. R.R., 493 F.3d 1151, 1157 (10th Cir. 2007). West Range's decision to reject the contract at issue precludes it from bringing its breach of contract claim and related promissory estoppel claim. Id. Second, even if West Range's claims are not barred by its rejection of the contract (which they are), West Range's breach of contract claim should be dismissed because it fails to Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 1 of 18 2 state a claim under the terms of the contract,1 and its promissory estoppel claim is incompatible with its breach of contract claim (Wheat Ridge Urban Renewal Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737, 741 (Colo. 2007) ("Recovery on a theory of promissory estoppel is incompatible with the existence of an enforceable contract.")). Accordingly, as shown in the accompanying Memorandum in Support, West Range's claims should be dismissed with prejudice. Respectfully submitted, /s/ Erin E. Rhinehart Erin E. Rhinehart (Ohio No. 0078298) Stephen A. Weigand (Ohio No. 0083573) FARUKI IRELAND COX RHINEHART & DUSING P.L.L. 201 East Fifth Street Suite 1420 Cincinnati, OH 45202 Telephone: (513) 632-0300 Telecopier: (513) 632-0319 Email: erhinehart@ficlaw.com sweigand@ficlaw.com Attorneys for Defendant The Scotts Company LLC 1 The parties specified in the contract at issue that Ohio law governs. Contract, § 16 (attached as Exhibit 1). The parties' agreed-upon choice of law should be applied. Bio Med Techs. Corp. v. Sorin CRM USA, Inc., No. 14-cv- 0154, 2015 U.S. Dist. LEXIS 108001, *4 (D. Colo. Aug. 17, 2015) (applying agreed-upon choice of law). Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 2 of 18 TABLE OF CONTENTS I. DISMISSAL IS APPROPRIATE ........................................................................................... 2 II. WEST RANGE'S CLAIMS ARE BARRED BY THE BANKRUPTCY COURT'S REJECTION OF THE CONTRACT AT ISSUE ........................................................................... 2 A. West Range Rejected the Contract ..................................................................................... 3 B. West Range is Barred from Enforcing the Provisions of the Contract ............................... 4 III. WEST RANGE'S COMPLAINT SHOULD BE DISMISSED FOR ITS SEPARATE AND INDEPENDENT FAILURES TO PLEAD ITS CLAIMS SUFFICIENTLY ....................... 8 A. West Range's Breach of Contract Claim Must Be Dismissed ............................................ 8 B. West Range's Promissory Estoppel Claim Must Be Dismissed ......................................... 9 IV. CONCLUSION ................................................................................................................. 10 Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 3 of 18 ii TABLE OF AUTHORITIES CASES Allen v. Clements, 930 F. Supp. 2d 1252 (D. Colo. 2013)…………..………………………..….3 Americana Inv. Co. v. Nat'l Contracting & Fixturing, LLC, 10th Dist. Franklin No. 15AP-1010, 2016-Ohio-7067………………………………………………………………………………...…9 Ashcroft v. Iqbal, 556 U.S. 662 (2009)………………………………………………….…….1, 2 Bell Atl. v. Twombly, 550 U.S. 544 (2007)……………………………………………………....2 Bradford v. Wiggins, 516 F.3d 1189 (10th Cir. 2008)……………………………………...5, 6, 7 Chang v. Vail Resorts, Inc., No. 15-cv-01731, 2016 U.S. Dist. LEXIS 19166 (D. Colo. Feb. 12, 2016)………………………………………………………………………………………………3 Eastman v. Union Pac. R.R., 493 F.3d 1151 (10th Cir. 2007)…………………………………6, 8 In re Hooker Inv., Inc., 131 B.R. 922 (S.D.N.Y. 1991) ……….………………………………….5 In re Tabernash Meadows, LLC, 2005 Bankr. LEXIS 210 (Bankr. Colo. Feb. 15, 2005)……………………………………………………………………………………………1, 5 In re Wagstaff Minn., Inc., No. 11-2450, 2012 U.S. Dist. LEXIS 372 (D. Minn. Jan. 3, 2012)………………………………………………………………………………………………4 In re White Motor Corp., 44 B.R. 563 (N.D. Ohio 1984)……….………………………………...5 Keating v. America's Wholesale Lender, No. 1:11-cv-593, 2011 U.S. Dist. LEXIS 65532 (N.D. Ohio June 21, 2011)…………………………………………………………………………….…9 Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012)……………………………………..2 King v. Baer, 482 F.2d 552 (10th Cir. 1973) …………………………………………....1, 4, 5, 6 Lawrence v. Commonwealth of Ky. Transp. Cabinet, No. 3:13CV-971, 2014 U.S. Dist. LEXIS 9490 (W.D. Ky. Jan. 27, 2014)…………………………………………………………………...4 Leighton v. Denver, No. 14-cv-02812, 2015 U.S. Dist. LEXIS 125955 (D. Colo. Sept. 21, 2015)……………………………………………………………………………………….…9, 10 Pace v. Swerdlow, 519 F.3d 1067 (10th Cir. 2008)………..………………………………….….3 Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 4 of 18 iii Papago Parago Partners, LLC v. Three-Five Sys. Inc., No. CV 06-2448, 2007 U.S. Dist. LEXIS 48041 (D. Ariz. July 2, 2007)….…………………………………………………………………4 Pernick v. Computershare Tr. Co., 136 F. Supp. 3d 1247 (D. Colo. 2015)………………………3 Pohl v. US Bank, No. 14-cv-02292, 2016 U.S. Dist. LEXIS 40285 (D. Colo. Mar. 28, 2016)………………………………………………………………………………………3, 6, 7, 8 Sullivan v. T.C. Mathew, No. 14 C 6877, 2015 U.S. Dist. LEXIS 40033 (N.D. Ill. Mar. 30, 2015)……………………………………………………………………………………………5, 6 Wheat Ridge Urban Renewal Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737 (Colo. 2007)……………………………………………………………………………………….….9, 10 STATUTES 11 U.S.C. §365……………………………………...……………………………….…1, 2, 7, 8, 9 RULES Fed. R. Civ. P. 12(b)(6)………………………………………………………………………...1, 2 Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 5 of 18 MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANT THE SCOTTS COMPANY LLC TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT Section 365 of the Bankruptcy Code does not provide debtors, like West Range, with a "heads I win, tails you lose" opportunity. 11 U.S.C. §365. Three months before filing this lawsuit, Plaintiff West Range Reclamation, LLC ("West Range"), a Chapter 11 debtor, moved the United States Bankruptcy Court for the District of Colorado ("Bankruptcy Court") to reject the very contract at issue here. Shortly thereafter, the Bankruptcy Court granted West Range's Motion to Reject. Therefore, as a matter of law, West Range has been found to have breached materially the contract, and West Range is precluded from enforcing the contract's provisions or seeking to recover under the inconsistent theory of promissory estoppel. King v. Baer, 482 F.2d 552, 557 (10th Cir. 1973); In re Tabernash Meadows, LLC, No. 03-24392, 2005 Bankr. LEXIS 210, *30-31, 42 (Bankr. Colo. Feb. 15, 2005). For this reason alone, West Range's Second Amended Complaint for Breach of Contract or in the Alternative Promissory Estoppel [Doc. No. 36] ("Complaint") must be dismissed with prejudice. Similarly, West Range is barred from pursuing its claims under the doctrine of judicial estoppel, as West Range has taken directly inconsistent positions in the Bankruptcy Court and this action. In addition, even if West Range were permitted to file its Complaint following rejection of the Contract under Section 365 of the Bankruptcy Code (which it is not), West Range fails to meet the requisite pleading standards. Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, under the terms of the Contract, West Range was not entitled to payment where additional goods were never delivered, nor can West Range obtain payment for goods when it admits that it was informed that Scotts did not want additional goods. Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 6 of 18 2 Second, West Range's promissory estoppel claim is fatally defective because it relates to the same subject matter as the Contract claim, and is incompatible with West Range's previously seeking and obtaining judicial relief relating to the Contract in the Bankruptcy Court. Accordingly, the Court should dismiss West Range's Complaint with prejudice, as leave to amend (again) would be futile. I. DISMISSAL IS APPROPRIATE To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege more than mere "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Instead, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678-79. Accord: Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) ("[T]he Twombly/Iqbal standard is 'a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do."). As shown below, West Range fails to state a claim for relief. II. WEST RANGE'S CLAIMS ARE BARRED BY THE BANKRUPTCY COURT'S REJECTION OF THE CONTRACT AT ISSUE West Range is judicially estopped from maintaining its claims in this action. West Range requested, and obtained, relief from the Bankruptcy Court under 11 U.S.C. §365 by Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 7 of 18 3 rejecting the contract at issue. The Bankruptcy Code and common law prohibit debtors, like West Range, to double-dip in their recovery by obtaining relief from a contract through rejection, while maintaining the right to pursue claims for breach of the same contract. A. West Range Rejected the Contract West Range is the Debtor in the Chapter 11 bankruptcy proceeding in the United States Bankruptcy Court for the District of Colorado (Case No. 15-13676) ("Bankruptcy Proceeding"). On June 7, 2016, West Range filed in the Bankruptcy Proceeding its Motion to Reject Executory Contract with the Scott's [sic] Company, LLC [Doc. No. 458] ("Motion to Reject") (attached as Exhibit 2).2 In its Motion to Reject, West Range sought an order rejecting the "executory contract" between West Range and Scotts, which West Range identified as the February 9, 2015 purchase order numbered 4500643428 ("Contract") (Motion to Reject, ¶¶ 1, 5), the same contract at issue here. Complaint, ¶ 9 (referring to same contract, "purchase order number 4500643428").3 In its Motion to Reject, West Range represented to the Bankruptcy Court that it "wishes to reject this Contract because it has determined that its terms are not financially beneficial to the estate or its creditors." Motion to Reject, ¶ 6. On June 27, 2016, the Bankruptcy Court granted West Range's Motion to Reject. Order Granting Debtor's Motion to 2 Judicial notice of the filings and orders from the Bankruptcy Proceeding is proper. Allen v. Clements, 930 F. Supp. 2d 1252, 1259 (D. Colo. 2013) (citing Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir. 2008)) ("[A] court may properly consider facts subject to judicial notice, state court pleadings, and matters of public record without converting a motion to dismiss into a motion for summary judgment."); Pohl v. US Bank, No. 14-cv-02292, 2016 U.S. Dist. LEXIS 40285, *13 n.2 (D. Colo. Mar. 28, 2016) ("The Court takes judicial notice of filings in plaintiffs' bankruptcy proceeding"). 3 A copy of the Contract is attached as Exhibit 1. Chang v. Vail Resorts, Inc., No. 15-cv-01731, 2016 U.S. Dist. LEXIS 19166, *7 (D. Colo. Feb. 12, 2016) ("[T]he court may consider the documents referred to in the complaint that are central to the claims without converting the motion to dismiss into one for summary judgment."); Pernick v. Computershare Tr. Co., 136 F. Supp. 3d 1247, 1251 n.2 (D. Colo. 2015). Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 8 of 18 4 Reject Executory Contract with the Scott's [sic] Company ("Rejection Order") [Doc. No. 482] (attached as Exhibit 3). On August 26, 2016, less than three months after West Range's representation to the Bankruptcy Court that the Contract was "burdensome and unprofitable," and after entry of the Bankruptcy Court's Rejection Order, West Range filed this action based on the same Contract. West Range's inconsistent positions, seeking recovery of more than $75,000 on an "unprofitable" Contract, bar West Range's claims as a matter of law pursuant to the Bankruptcy Court's Rejection Order and the doctrine of judicial estoppel. B. West Range is Barred from Enforcing the Provisions of the Contract While rejection of an executory contract frees the debtor from the obligation to perform under a contract, "[a] debtor cannot assume the beneficial aspects of a contract while rejecting the burdensome parts – the contract must be accepted or rejected as a whole." In re Wagstaff Minn., Inc., No. 11-2450, 2012 U.S. Dist. LEXIS 372, *8-9 (D. Minn. Jan. 3, 2012) (emphasis added). Accord: Lawrence v. Commonwealth of Ky. Transp. Cabinet, No. 3:13CV- 971, 2014 U.S. Dist. LEXIS 9490, *9 (W.D. Ky. Jan. 27, 2014). Rejection of a contract constitutes a material, pre-petition breach by the debtor (here, West Range). Papago Parago Partners, LLC v. Three-Five Sys. Inc., No. CV 06-2448, 2007 U.S. Dist. LEXIS 48041, *11 (D. Ariz. July 2, 2007). As the Tenth Circuit Court of Appeals has long held, rejection of an executory contract provides only the non-debtor (here, Scotts) with a claim for breach: "Rejection of the executory contract constitutes a breach of contract as a matter of law which entitles the other party to the contract to assert a claim for such breach for determination by the court." King, 482 Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 9 of 18 5 F.2d at 557 (emphasis added). Put differently, "because rejection is treated as a breach," a trustee or debtor "who rejects an executory contract can no longer enforce its provisions." Sullivan v. T.C. Mathew, No. 14 C 6877, 2015 U.S. Dist. LEXIS 40033, *12, 28 (N.D. Ill. Mar. 30, 2015) (emphasis added) ("Because the Trustee is plainly seeking to enforce the terms [of the] partnership agreement that he has rejected, the Court cannot award him the relief he seeks. His complaint must therefore be dismissed."). A debtor is prohibited from "doing an about-face and claiming that . . . the nondebtor party was the breaching one when the debtor, by rejecting the contract, already has been deemed to have been the breaching party." In re Hooker Inv., Inc., 131 B.R. 922, 928 (S.D.N.Y. 1991) (citing In re White Motor Corp., 44 B.R. 563, 570 (N.D. Ohio 1984)). Accord: In re Tabernash Meadows, LLC, 2005 Bankr. LEXIS 210, at *42 (criticizing debtor's inconsistent and "unscrupulous behavior" where the debtor sought to enforce part of an agreement while also intending to reject it). Likewise, a party is judicially estopped from asserting claims that are inconsistent with an earlier position, including a position that a party took as a debtor in bankruptcy. "The doctrine of judicial estoppel is based upon protecting the integrity of the judicial system by 'prohibiting parties from deliberately changing positions according to the exigencies of the moment.'" Bradford v. Wiggins, 516 F.3d 1189, 1194 (10th Cir. 2008): "Though there is no precise formula, in order to determine whether to apply judicial estoppel, courts typically inquire as to whether: 1) a party's later position is clearly inconsistent with its earlier position; 2) a party has persuaded a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create 'the perception that either the first or second court was misled'; and Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 10 of 18 6 3) the party seeking to assert the inconsistent position would derive an unfair advantage if not estopped." Id. Where debtors fail to inform a bankruptcy court of contingent or unliquidated claims, this Court has found that the debtors are prohibited under the doctrine of judicial estoppel from pursuing those claims. Pohl, 2016 U.S. Dist. LEXIS 40285, at *11-18. Accord: Eastman v. Union Pac. R.R., 493 F.3d 1151, 1157 (10th Cir. 2007) (affirming the application of judicial estoppel, stating that "a debtor in bankruptcy who denies owning a legal claim cannot realize on the previously concealed claim after the bankruptcy ends"). In Pohl, the debtors asserted multiple claims against their lender. Id. at *10. Although the debtors mentioned to the bankruptcy court their belief that their lender acted fraudulently, the debtors never fully disclosed the scope of their claims in the bankruptcy proceeding. Id. at *15. Instead, the debtors stated in the bankruptcy proceeding that they had no contingent or unliquidated claims. Id. at *13. The Court found that all three factors for judicial estoppel were met, as the (1) the debtors had made inconsistent statements; (2) debtors obtained a discharge in bankruptcy; and (3) debtors would "gain an unfair advantage" if they were not estopped from pursuing their claims, "because they would be able to pursue those claims without the risk that the majority of their award would go to their creditors." Id. at *14-16. Here, West Range is precluded as a matter of law from bringing this lawsuit against Scotts. As shown above, West Range rejected the Contract. Motion to Reject; Rejection Order. The Bankruptcy Court's Order granting West Range's Motion to Reject constitutes a material pre-petition breach of the Contract by West Range, and prevents West Range from seeking to enforce any of the provisions of the Contract. King, 482 F.2d at 557; Sullivan, 2015 U.S. Dist. LEXIS 40033, at *12. Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 11 of 18 7 Likewise, as in Pohl, the doctrine of judicial estoppel provides a separate and independent basis on which this Court should bar West Range's claims. First, West Range represented to the Bankruptcy Court that the Contract was "burdensome and unprofitable." Yet, West Range now seeks to recover in excess of $75,000 under that same "unprofitable" Contract. West Range's rejection of the Contract is "clearly inconsistent" with this lawsuit, where it now seeks to enforce the provisions of the rejected Contract. Further, it is "clearly inconsistent" to argue that a valid contract exists (a necessary prerequisite to its Motion to Reject) for purposes of rejection, but does not exist for purposes of its promissory estoppel claim. It is illogical to argue that Scotts is liable under a theory of promissory estoppel when West Range argued and admitted to the Bankruptcy Court that a valid and express contract existed, as the Bankruptcy Court acknowledged by granting the Motion to Reject. Thus, the first factor is satisfied. Second, West Range persuaded the Bankruptcy Court to accept its position on rejection of the Contract. West Range obtained the benefit of the Bankruptcy Court's rejection of the Contract and relief from performance under 11 U.S.C. §365. Rejection Order. If this Court permits West Range's claims to proceed here, then it is adopting "an inconsistent position in a later proceeding [that] would create 'the perception that either the first or second court was misled,'" which is prohibited by the Tenth Circuit. Bradford, 516 F.3d at 1194. Thus, the second factor is satisfied. Third, West Range would obtain an unfair advantage if it is permitted to pursue its claims here. In its Bankruptcy Proceeding, West Range failed to identify or otherwise specifically retain its now-asserted promissory estoppel claim and it expressly rejected the Contract. West Range seeks to profit for itself on the same Contract that it deemed "unprofitable" for other creditors in the Bankruptcy Proceeding. Motion to Reject. Thus, the Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 12 of 18 8 third factor is satisfied, and West Range is judicially estopped from pursuing its claims here. Pohl, at *11-18; Eastman, 493 F.3d at 1157. Accordingly, West Range is precluded, as a matter of law, from bringing this action against Scotts, and the Complaint must be dismissed with prejudice. III. WEST RANGE'S COMPLAINT SHOULD BE DISMISSED FOR ITS SEPARATE AND INDEPENDENT FAILURES TO PLEAD ITS CLAIMS SUFFICIENTLY A. West Range's Breach of Contract Claim Must Be Dismissed While West Range's contract claim is barred by the rejection of the Contract under 11 U.S.C. §365, the contract claim fails for the separate and independent reason that West Range fails to state a claim. As shown from the face of the Contract, Scotts is permitted to refuse delivery of additional goods and Scotts' obligation to pay requires delivery of the goods. West Range alleges that it delivered some goods – which West Range defines as "Delivered Goods" – for which West Range received payment in full of $90,000. Complaint, ¶¶14, 17. Therefore, the thrust of West Range's breach of contract claim is that Scotts should pay for goods that were never delivered, and for which West Range admits that Scotts informed West Range that it did not want. Id. Indeed, the Contract provides Scotts (i.e., the "Buyer") with authority to modify or change the amount of goods to be delivered under the Contract. Section 3 of the Contract specifies that Scotts may "make changes in the work to be performed or the items to be furnished hereunder." Section 5 provides that, "[i]f delivery is not timely made . . . [Scotts] may refuse to accept the Goods." Put differently, West Range bears the risk of loss until delivery of the goods, and Scotts has no payment obligation until its receipt of the goods. Contract, §§ 10, 11. West Range's Complaint, which concedes that the goods for which West Range seeks payment were never delivered, shows, as a matter of law, that Scotts has no payment obligation. Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 13 of 18 9 Further, Scotts informed West Range that it did not want any additional goods. Complaint, ¶23. Therefore, West Range cannot seek to recover from Scotts for those additional goods. Contract, § 3. West Range fails to allege (nor can it) that it delivered any additional goods beyond the Delivered Goods for which it was paid in full. Thus, Scotts incurred no payment obligation to West Range for any additional goods. Contract, § 5, 10, 11. West Range's breach of contract claim must be dismissed with prejudice. B. West Range's Promissory Estoppel Claim Must Be Dismissed Even if West Range were permitted to bring this lawsuit under Section 365 of the Bankruptcy Code, West Range's claim for promissory estoppel fails because it is incompatible with the undisputed existence of a valid and express Contract. "Recovery on a theory of promissory estoppel is incompatible with the existence of an enforceable contract." Wheat Ridge Urban Renewal Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737, 741 (Colo. 2007). Where a promissory estoppel claim "relates to the subject matter governed by an enforceable contract," this Court has dismissed the promissory estoppel claim. Leighton v. Denver, No. 14- cv-02812, 2015 U.S. Dist. LEXIS 125955, *23 (D. Colo. Sept. 21, 2015) ("Promissory estoppel is not available where, as here, an enforceable contract governs the same subject matter.").4 Here, West Range's promissory estoppel claim relates to the same subject matter as the Contract. Indeed, West Range's sole alleged promise for its estoppel claim is the same as its Contract-related allegation: 4 Similar to Colorado law, Ohio law -- which governs the parties' Contract -- also bars a claim for promissory estoppel where the parties' claims are governed by a valid contract. Keating v. America's Wholesale Lender, No. 1:11-cv-593, 2011 U.S. Dist. LEXIS 65532, *10-11 (N.D. Ohio June 21, 2011) (dismissing promissory estoppel claim, holding, "Ohio law bars a promissory estoppel claim when there is an express contract between the parties."); Americana Inv. Co. v. Nat'l Contracting & Fixturing, LLC, 10th Dist. Franklin No. 15AP-1010, 2016-Ohio-7067, ¶ 13 ("the existence of an enforceable express contract between the parties bars recovery under a promissory estoppel claim. A party cannot use promissory estoppel to override an express contract."). Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 14 of 18 10 Promissory Estoppel Allegation: "Defendant made a promise to purchase Goods that were specifically manufactured by Plaintiff for the Defendant" (Complaint, ¶ 38). Contract Allegation: "Paragraph 15 of the Contract provides . . . Plaintiff shall be entitled to payment for goods 'specifically manufactured'5 for Defendant" (Complaint, ¶ 18). Not only is West Range's promissory estoppel claim identical to its Contract claim, but West Range affirmatively sought and obtained the Rejection Order, which presupposed a valid and express Contract that would be either rejected or assumed. West Range cannot now pursue a claim that requires the absence of a contract. Wheat Ridge, 176 P.3d at 741; Leighton, 2015 U.S. Dist. LEXIS 125955, at *23. Moreover, the parties do not dispute the existence of a valid and express Contract. Accordingly, West Range's claim for promissory estoppel should be dismissed with prejudice. IV. CONCLUSION For the foregoing reasons, this Court should grant Scotts' Motion and dismiss, with prejudice, West Range's Complaint. 5 West Range's reference to paragraph 15 of the Contract misquotes the Contract language in a material way. Paragraph 15 applies to "Goods specially manufactured" – not goods "specifically manufactured," as alleged in the Complaint (¶¶18, 38). There is no allegation that the goods were "specially" manufactured – nor can there be. Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 15 of 18 11 Respectfully submitted, /s/ Erin E. Rhinehart Erin E. Rhinehart (Ohio No. 0078298) Stephen A. Weigand (Ohio No. 0083573) FARUKI IRELAND COX RHINEHART & DUSING P.L.L. 201 East Fifth Street Suite 1420 Cincinnati, OH 45202 Telephone: (513) 632-0300 Telecopier: (513) 632-0319 Email: erhinehart@ficlaw.com sweigand@ficlaw.com Attorneys for Defendant The Scotts Company LLC Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 16 of 18 12 CERTIFICATION OF CONFERENCE AMONG COUNSEL Counsel for Scotts contacted West Range's counsel on January 31, 2017 to discuss the arguments raised in this Motion, as required by the Practice Standards of the Honorable Raymond P. Moore, specifically Section M of the Motions and Objections Practice. The parties agree that the issues identified in this Motion are incapable of being cured by amendment, as the issues raised relate to questions of law. Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 17 of 18 13 CERTIFICATE OF SERVICE I certify that on January 31, 2017, I electronically filed the foregoing Motion of Defendant The Scotts Company LLC to Dismiss Plaintiff's Second Amended Complaint with the Clerk of Courts using the CM/ECF system, which will send notification of such filing to CM/ECF participants: Craig K. Schuenemann BRYAN CAVE LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203-4541 Jenny M.F. Fujii KUTNER BRINEN, P.C. 1660 Lincoln St., Suite 1850 Denver, CO 80264 Attorneys for Plaintiff West Range Reclamation, LLC /s/ Stephen A. Weigand Stephen A. Weigand Case 1:16-cv-02161-RM-KMT Document 40 Filed 01/31/17 USDC Colorado Page 18 of 18 EXHIBIT 1 Case 1:16-cv-02161-RM-KMT Document 40-1 Filed 01/31/17 USDC Colorado Page 1 of 4 Case 1:16-cv-02161-RM-KMT Document 40-1 Filed 01/31/17 USDC Colorado Page 2 of 4 Case 1:16-cv-02161-RM-KMT Document 40-1 Filed 01/31/17 USDC Colorado Page 3 of 4 Case 1:16-cv-02161-RM-KMT Document 40-1 Filed 01/31/17 USDC Colorado Page 4 of 4 EXHIBIT 2 Case 1:16-cv-02161-RM-KMT Document 40-2 Filed 01/31/17 USDC Colorado Page 1 of 3 Case:15-13676-MER Doc#:458 Filed:06/07/16 Entered:06/07/16 17:47:39 Page1 of 2 Case 1:16-cv-02161-RM-KMT Document 40-2 Filed 01/31/17 USDC Colorado Page 2 of 3 Case:15-13676-MER Doc#:458 Filed:06/07/16 Entered:06/07/16 17:47:39 Page2 of 2 Case 1:16-cv-02161-RM-KMT Document 40-2 Filed 01/31/17 USDC Colorado Page 3 of 3 EXHIBIT 3 Case 1:16-cv-02161-RM-KMT Document 40-3 Filed 01/31/17 USDC Colorado Page 1 of 2 27th June Case:15-13676-MER Doc#:482 Filed:06/27/16 Entered:06/27/16 16:19:09 Page1 of 1 Case 1:16-cv-02161-RM-KMT Document 40-3 Filed 01/31/17 USDC Colorado Page 2 of 2