United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE
amended complaint, plaintiff Ramsey Hill Exploration, Inc.,
asserts breach of contract and unjust enrichment claims
arising out of its agreement to supply frac sand to defendant
JGS All American Construction, LLC, as well as tortious
interference with a contract and theft/conversion claims
against defendants Grant Gibbs and Rail Trusts Equipment,
Inc. Before the court are defendants Gibbs and Rail
Trusts' motions to dismiss under Federal Rules of Civil
Procedure 12(b)(6) and to strike under Rule 12(f). (Dkt.
##12, 13.) For the reasons that follow, the court will grant
in part and deny in part defendants' motions and direct
plaintiff to file a second amended complaint consistent with
2018, Ramsey Hill and JGS entered into a Sand Supply
Agreement, which is attached as Exhibit A to the amended
complaint. (Agreement (dkt. #8-3).) On or about August 13,
2018, Ramsey Hill delivered the first load of frac sand to
the designated delivery point and loaded it into rail cars as
required under the Agreement. However, the Agreement also
provides that only “[a]fter the invoice is paid, [does
Ramsey Hill] agree to release the sand in the loaded
railcars.” (Agreement (dkt. #8-3) ¶ 7(a).)
“Despite this express provision . . . Grant Gibbs
either individually or as a representative of . . . JGS, Rail
Trust[s] or another entity contacted Progressive Rail and
demanded that shipment be released . . . in direct violation
of the [Agreement].” (Am. Compl. (dkt. #8) ¶ 13.)
Plaintiff further claims that its invoice on the first load
remains unpaid, as does the invoice on a second load of frac
sand sent to the delivery point on October 9, 2018.
sorting through the motions before the court, both parties
share blame. Indeed, plaintiff's amended complaint and
defendants' motions to dismiss highlight two common flaws
in litigation: (1) sloppy pleading on the part of a plaintiff
who asserts claims against “defendants”
collectively without differentiating which claims actually
apply to the individual defendants; and (2) overzealous
motions to dismiss by defendants, who unreasonably demand
more detailed factual allegations in the face of adequate
notice pleading and reasonable supportive inferences.
comply with Rule 8, “a plaintiff has the obligation to
provide the factual ‘grounds' of [her] entitlement
to relief (more than ‘mere labels and
conclusions'), and a ‘formulaic recitation of a
cause of action's elements will not do, '”
Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599,
602 (7th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 547 (2007)), but a complaint need
only “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 566 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Keeping this standard in mind, the court will address
defendants' asserted grounds to dismiss in turn.
Tortious Interference Claim
first argue that plaintiff's allegations fail to state a
claim for tortious interference of a contract. Specifically,
defendants fault plaintiff for failing to allege: “(a)
that Progressive Rail ‘released' the shipment as a
result of Mr. Gibbs' purported demand, or (b) that
JGS's refusal to pay for the sand was caused by Mr.
Gibbs' purported demand on Progressive Rail.”
(Def.'s Mot. (dkt. #13) ¶ 24.) As for Rail
Trusts, defendants further argue that the complaint contains
no factual allegations “regarding Rail Trusts'
direct interaction with JGS that caused JGS to refuse to pay
for the two separate sand deliveries made by Ram[s]ey Hill
almost two months apart.” (Id. at ¶ 27.)
prove intentional interference with an existing or
prospective contract under Wisconsin law, a party must
demonstrate that: “(1) the plaintiff had a contract or
prospective contractual relationship with a third party; (2)
the defendant interfered with the relationship; (3) the
interference was intentional; (4) a causal connection exists
between the interference and the damages; and (5) the
defendant was not justified or privileged to
interfere.” Burbank Grease Servs., LLC v.
Sokolowski, 2006 WI 103, ¶ 44, 294 Wis.2d 274, 717
N.W.2d 781. Here, plaintiff's allegations that Gibbs
“contacted Progressive Rail and demanded that shipment
be released” raises a reasonable inference that
Progressive Rail, which the court will presume for pleading
purposes shipped plaintiff's sand to the delivery point,
then released the shipment. If so, then Gibbs'
interference caused the shipment to be released before
payment of the invoice in violation of that Agreement's
requirement, thus satisfying the causal connection
requirement for purposes of pleading.
noted, defendants separately argue a lack of specific
allegations disclosing defendant Rail Trusts' role in any
tortious interference, an argument that has more traction and
highlights the larger problem with plaintiff's pleading.
Plaintiff alleges that “Gibbs, either individually or
as a representative of Defendants JGS, Rail Trust[s] or
another entity, contacted Progressive Rail.” (Am.
Compl. (dkt. #8) ¶ 13.) If Gibbs was acting on his own
behalf, then plaintiff may only pursue a claim against Gibbs,
not Rail Trusts, and if he was acting as a representative of
JGS -- the party with whom plaintiff has entered into a
contract -- then as a matter of law, plaintiff
cannot assert a tortious interference claim at all.
See Joseph P. Caulfield & Assocs., Inc. v. Litho
Prods., Inc., 155 F.3d 883, 889 (7th Cir. 1998) (under
Wisconsin law, “a party cannot interfere tortiously
with its own contract” (citing Wausau Medical Ctr.
v. Asplund, 182 Wis.2d 274, 514 N.W.2d 34, 44 (1994))).
On the other hand, if Gibbs was acting as a representative of
Rail Trusts, then perhaps both Gibbs and Rail Trusts could be
liable for tortious interference with JGS's Agreement
with Ramsey Hill.
of the uncertainty on whose behalf Gibbs is alleged to have
acted as currently pleaded, the court will grant
defendants' motions to dismiss Count IV, while at the
same time granting leave to plaintiff for the purpose of
repleading its basis for asserting tortious interference
claims against defendants Gibbs, Rail Trusts or both on or
before Monday, July 15th.
final note: plaintiff's amended complaint only contains
factual allegations sufficient to state a tortious
interference claim with respect to the August 13, 2018,
shipment. If plaintiff intended for this claim to cover the
October 9, 2018, shipment as well, then it must also include
specific factual allegations tying defendants Gibbs, Rail
Trusts or both to JGS's alleged failure to pay that