United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Piano Gallery Madison, LLC, (PGM) operated Billings Piano
Gallery in Madison, Wisconsin, until 2014. Then PGM's
managing member, Grant Billings, moved to Florida and sold
the business to defendant Create Music, LLC (CM). PGM filed
suit against CM, CM's managing member, Benjamin Garber,
and one of the business's employees, Debra Galla. It
alleges that they failed to perform as they were required to
by the asset purchase agreement executed by the parties.
Defendants answered, and CM asserted counterclaims against
PGM and Billings. Dkt. 17.
and Billings (whom the court will refer to collectively as
PGM) move to dismiss several of CM's counterclaims under
Federal Rule of Civil Procedure 12(b)(6). Dkt. 22. The court
will grant PGM's motion and dismiss all of CM's
counterclaims except the seven breach-of-contract claims
against PGM alone.
court draws the following facts from defendants'
pleading, Dkt. 17, and accepts them as true for the purpose
of deciding PGM's motion. Zahn v. N. Am. Power &
Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court
recounted PGM's allegations in its February 6, 2018 order
on defendants' motion to dismiss, Dkt. 16, and it will
not repeat them here. But it will summarize those of CM's
material allegations that differ from PGM's version of
answering PGM's amended complaint, CM denies that it
breached the terms of the asset purchase agreement, and it
alleges that PGM failed to perform all of the conditions
precedent to require CM's performance under the
alleges that PGM breached eight provisions of the agreement.
First, section 1.2 of the agreement defines “purchased
assets, ” that is, those assets that PGM agreed to sell
to CM. Dkt. 5-1, at 2. PGM allegedly retained several of
section 1.2(f) defines the purchased assets to include the
“limited right and license to use and do business
under” PGM's service marks, and provides,
In the event that [PGM] determine that one or more of
[CM's] uses of the marks is inconsistent with [PGM's]
quality standards, or that the quality of any of the good or
services with which the marks are used is not consistent with
maintaining the goodwill inherent in the marks, [PGM] shall
so notify [CM], and [CM] shall cease all such disapproved use
of the marks.
Id. at 3. PGM allegedly revoked CM's use of the
marks not because of a quality issue but because of a
monetary dispute between the parties.
section 1.3(b) provides that the gross profits from the next
sale of a Steinway D Concert Piano would be
“immediately paid over to” PGM from CM's
gross revenue of the sale. Id. at 4. The agreement
specifies that the gross profit amount was to be determined
by PGM and was “estimated to equal approximately $59,
972.” Id. CM alleges that PGM set the gross
profit amount “based on an outdated price list, ”
resulting in an “overcharge” of $2, 171. Dkt. 17,
under section 2.1(e), CM was to assume “the fees and/or
contract associated with hosting and maintaining the business
website (www.billingspiano.com).” Dkt. 5-1, at 6. But
PGM had already paid for a “multi-year agreement for
hosting the website, ” and Garber “was not
permitted to” assume control of the website. Dkt. 17,
¶ 93(d). Later, Billings took down the website.
under section 2.2(f), PGM retained “any liabilities of
[PGM] not explicitly included in section 2.1.” Dkt.
5-1, at 6. CM alleges that it paid $1, 155.59 in property
taxes on PGM's behalf and that PGM is liable for that
amount, as property taxes are not explicitly included in
under section 4.2(c), PGM represented that “copies of
the financial statements of [PGM] provided to [CM] present
fairly, in all material respects, the financial position
of” PGM. Id. at 9. CM alleges that other
financial statements “suggest different numbers”