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Dando v. Bimbo Food Bakeries Distribution, LLC

United States District Court, D. New Jersey

April 10, 2017

ROBERT DANDO, Plaintiff,
v.
BIMBO FOOD BAKERIES DISTRIBUTION, LLC, et al., Defendants.

          TERANCE J. BENNETT, ESQ. COUNSEL FOR PLAINTIFF

          MORGAN, LEWIS & BOCKIUS LLP BY: MICHAEL J. PUMA, ESQ. COURTNEY WIRTH GRIFFIN, ESQ. COUNSEL FOR DEFENDANTS

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This is primarily a diversity contract suit arising out a Distribution Agreement between Plaintiff and Defendants. Defendants move to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), Counts 1 through 4 of the five-count Amended Complaint.[1] For the reasons stated herein, the motion will be granted in part, and denied in part.

         I.

         Plaintiff's theory of his case is a classic bait and switch story. Plaintiff asserts that Defendants, exercising their rights under the Distribution Agreement, acted in bad faith when they refused to approve Plaintiff's proposed sale of his exclusive distribution rights on the basis that the proposed sale price was too high and then, when Plaintiff proposed a lower price, Defendants exercised their right to buy back the rights, only to promptly turn around and sell those rights to Plaintiff's proposed buyer at the original, higher price.

         In support of this theory, the Amended Complaint alleges the following facts. The Distribution Agreement between Plaintiff and Defendants grants Plaintiff “the exclusive rights to deliver and sell Defendants' products in a geographic territory in Gloucester County, New Jersey.” (Amend. Compl. ¶ 10) Further, “[i]n 2014, Plaintiff negotiated with a third party to sell his rights under the contract, and [pursuant to the terms of the agreement] presented Defendants with notice of intent to sell at a price of $289, 900.00” (Amend. Compl. ¶ 12) In this regard, the Distribution Agreement provides, “[t]he Distribution Rights are owned by the [Plaintiff] and may be sold . . . provided that any such sale . . . shall be subject to: (a) the prior written approval of [Defendants], which approval will not be unreasonably withheld.” (Distribution Agreement § 6.1)

         Defendants allegedly did not approve the notice of sale, “informing Plaintiff that the price was too high to be acceptable to Defendants but that Defendants would approve the sale at a lower price.” (Amend. Compl. ¶ 13) “Plaintiff subsequently presented Defendants with a notice of intent to sell at the price of $210, 000.00, to the same buyer” (Amend. Compl. ¶ 14), at which point Defendants allegedly exercised their right under the contract to buy Plaintiff's delivery rights themselves at the price of $210, 000.00. (Id. ¶ 16) In this regard, the Distribution Agreement provides, “[t]he Distribution Rights are owned by the [Plaintiff] and may be sold . . . provided that any such sale . . . shall be subject to: . . . (b) a right of first refusal on the part of [Defendants] at the same terms and conditions offered to [Plaintiff] by a bona fide purchaser.” (Distribution Agreement § 6.1)

         Then, allegedly, “Defendants promptly sold [for the original price of $289, 900.00] these delivery territory rights just obtained from Plaintiff, to the very third party to whom Plaintiff had previously contracted to sell, ” resulting in a $79, 000.00 profit to Defendants, and a $79, 000.00 loss to Plaintiff. (Amend. Compl. ¶¶ 18, 28, 36-38)

         The Amended Complaint asserts the following counts: (1) breach of the covenant of good faith and fair dealing; (2) tortious interference with prospective economic advantage; (3) unjust enrichment; (4) fraud; and (5) breach of contract based on Defendant's alleged separate failure to pay Plaintiff all commissions due under the agreement.[2]

         II.

         When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, “the Federal Rules of Civil Procedure . . . do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation omitted).

         A district court, in weighing a motion to dismiss, asks “‘not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'” Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009)(“Our decision in Twombly expounded the pleading standard for ‘all civil actions' . . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(“Iqbal ...


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