United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge
lawsuit sounding under the court's diversity
jurisdiction, plaintiff Brooks Jay Transportation, Inc.,
(“Brooks”) alleges that defendant FedEx Ground
Package System, Inc., breached their written operating
agreement by transferring a client account within Brooks'
service area to another ground transportation provider. In
addition to asserting this seemingly straight-forward breach
of contract claim, plaintiff pleads a related claim for
breach of FedEx's duty of good faith and fair dealing
implied in that contract, as well as various other claims
based on an alleged oral contract and civil theft claim.
Before the court is defendant's motion to dismiss these
other claims under Federal Rule of Civil Procedure 12(b)(6).
(Dkt. #14.) Because the court agrees with defendant FedEx
that plaintiff Brooks has failed to state claims other than
its straightforward breach of contract claim, the court will
grant the motion to dismiss.
is in the business of providing ground transportation for the
pick-up and delivery of packages and cargo in Wisconsin. In
2015, Brooks and defendant FedEx executed a Pick-Up and
Delivery Contractor Operating Agreement (the “Operating
Agreement”) in which Brooks agreed to retrieve and
deliver packages to customers designated by FedEx.
Brooks' deployments are coordinated out of its
FedEx's station in Madison, Wisconsin, FedEx. In turn,
addendum 4 to the Operating Agreement identifies Brooks'
primary delivery service areas.
is a FedEx customer. Generally, servicing EcoLab requires
four daily tractor-trailer pickups by FedEx Monday through
Friday, in addition to occasional pickups on Saturdays.
EcoLab was previously located in South Beloit, Illinois,
during which time, its needs were serviced out of FedEx's
Rockford, Illinois, station. As a result, Brooks did not
provide any pick-up or delivery services to EcoLab.
around September and October 2015, however, Brooks' owner
James McMahon had conversations with FedEx employees James
Wambach, senior manager of the Madison station, and John
Torok, linehaul supervisor, about EcoLab's possible move
to Wisconsin and Brooks then taking over service of that
account. Consistent with those conversations, EcoLab did in
fact move its lab in October 2015, across the state line to
Beloit, Wisconsin, which is within Brooks' service area.
Moreover, from the time of the move until the end of November
or early December 2015, Brooks provided all of FedEx pickup
service needs at EcoLab's new location.
November or early December, however, Wambach informed McMahon
that it would be more profitable for FedEx Ground to take
EcoLab pickups to FedEx's Rockford station. Plaintiff
further alleges Wambach then gave McMahon just two days to
try to sell the EcoLab service route to another FedEx
contractor that takes pickups to the Rockford station.
Shortly thereafter, FedEx gave the EcoLab pick-up service to
another contractor, without compensating Brooks.
asserts the following causes of action: (1) breach of the
operating agreement, specifically, Section 5.1, which
plaintiff represents provides that “Brooks Jay will be
responsible for daily pick-up and delivery of packages in
Brooks Jay's service area” (Am. Compl. (dkt. #13)
¶ 43); (2) breach of duty of good faith and fair
dealing, which also concerns removal of a customer account in
breach of the operating agreement; (3) breach of oral
contract, based on Wambach and Torok's alleged
representations that Brooks would service the EcoLab account
from its new Wisconsin location; (4) breach of duty of good
faith and fair dealing implied in that oral contract; (5)
specific performance; and (6) civil theft under Wis.Stat.
§§ 943.20 and 895.446, based on FedEx's alleged
taking of a customer account in which plaintiff contends it
has a proprietary interest.
than count I -- the breach of the written contract claim --
defendant seeks dismissal of all claims on the basis that
plaintiff has failed to state a claim under Federal Rule of
Civil Procedure 12(b)(6). A motion to dismiss under Rule
12(b)(6) is designed to test the complaint's legal
sufficiency. See Fed. R. Civ. P. 12(b)(6). Dismissal
is only warranted if no recourse could be granted under any
set of facts consistent with the allegations. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
response to defendant's motion to dismiss, plaintiff
curiously cites cases discussing the notice pleading
requirement that date back to the 1950s. (Pl.'s Opp'n
(dkt. #15) 2-3 (citing, as an example, Temperato v.
Rainbolt, 163 F.Supp. 744, 746 (E.D. Ill. 1957 (for the
proposition that “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”).) Even putting aside more recent cases
requiring pleadings to be plausible like Iqbal and
Twombly, plaintiff's discussion of the
appropriate standard of review appears to concern itself with
the pleading requirements under Rule 8(a), while
defendant's motion challenges the legal basis for
plaintiff's various claims under Rule 12(b)(6). The court
will address each claim under that standard.
Motion to Dismiss Breach of Good Faith and Fair Dealing
defendant seeks dismissal of plaintiff's two, breach of
duty of good faith and fair dealing claims -- one sounding in
the parties' Operating Agreement; the other in their
alleged oral contract. Because of a forum selection provision
in the Operating Agreement, the parties agree that
Pennsylvania law governs. (Def.'s Mot. (dkt. #14) 3;
Pl.'s Opp'n (dkt. #15) 2.) Citing cases in support,
therefore, defendant seeks dismissal of these claims because
“Pennsylvania law does not recognize a claim for breach
of the implied covenant of good faith and fair dealing that
is distinct from a claim for breach of contract.”
(Def.'s Mot. (dkt. #14) 3.) On all of this, there appears
no dispute between the parties. Indeed, plaintiff not only
agrees that Pennsylvania law governs but concedes that it is
“undisputed that Pennsylvania law . . . does not
recognize a separate claim for the breach of the duty of good
faith and fair dealing from a breach of contract.”
(Pl.'s Opp'n (dkt. #14) 2-3.)
for reasons that are entirely unclear, plaintiff contends
that “Brooks Jay could recover damages under a breach
of contract theory based upon FedEx's breach of duty of
good faith and fair dealing, ” and therefore concludes
that the claim “should stand.” (Pl.'s
Opp'n (dkt. #14) 3.) The latter clause is a non-sequitur.
Since the parties agree with clear caselaw cited by defendant
that no breach of duty of good faith and fair dealing claim
stands independent of ...