Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Subtractus, Inc. v. Best Graphics, Inc.

United States District Court, E.D. Wisconsin

October 9, 2019

SUBTRACTUS, INC., d/b/a AMPERSAND, Plaintiff,
v.
BEST GRAPHICS, INC., Defendant.

          DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Subtractus, Inc., d/b/a Ampersand (“Ampersand”) purchased a used Heidelberg ST-400 Saddle Stitcher-a machine design to bind and staple paper products-from Best Graphics, Inc. Ampersand alleges that the machine is non-functional and useless, with value only as scrap metal. Ampersand sues Best Graphics for false advertising under Wis.Stat. § 100.18 and breach of the implied duty of good faith and fair dealing. Best Graphics moves to dismiss Ampersand's amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that it fails to state a claim upon which relief can be granted. For the reasons that follow, the defendant's motion to dismiss is granted in part and denied in part.

         BACKGROUND

         In September 2018, Ampersand's president, Damian McDonald, inquired into purchasing a used Heidelberg ST-400 Saddle Stitcher (the “Machine”) from Best Graphics by emailing Best Graphics' Service Manager, Gary Martin, and Best Graphics' Sales Representative, A.J. Brahm. (Am. Compl. ¶ 6, Docket # 13.) The Machine is designed to bind and staple paper products, such as books, pamphlets, and magazines. (Id. ¶ 7.) McDonald viewed the Machine on Best Graphics' website, which listed the machine as low-usage, specifically stating “Approx. Book Count: 75, 000, 000 - Single Shift Operation.” (Id. ¶ 8.) On September 28, 2018, Martin explained to McDonald that McDonald could not inspect the Machine because it was dismantled, but a video of it running a job pre-tear down was available on Best Graphics' website. (Id. ¶ 9.) After viewing the video, McDonald was concerned about the Machine's performance and emailed Brahm on October 9, 2018 stating as follows: “The machine is running quite slow for an ST400, are there any mechanically/electronically limiting issues that you're aware of that I need to plan for?” (Id. ¶ 10.) That same day, Brahm responded to McDonald stating: “No issues governing the machine's speed; frankly, they are a union shop - which might have something to do with it - and also the fact that they frequently run very small size formats (which we know from their Osako demo days, purchase order), so perhaps they ran slower to ensure all pockets were ‘firing' without misfeeds.” (Id. ¶ 11.)

         On October 12, 2018, McDonald emailed Brahm expressing several concerns:

         (Image Omitted)

(Id. ¶ 12.) Brahm called McDonald and said that he would “circle back” with his team and Raff Printing, Inc. (the Machine's previous owner) to make sure there was a clear understanding on the Machine's functionality by speaking with the operator to determine which components were operational and which components were not working. (Id. ¶¶ 13, 23.) Brahm's statement reassured McDonald regarding his concerns outlined in the October 12 email. (Id. ¶ 13.)

         On October 15, 2018, Brahm emailed McDonald forwarding a formal ST-400 machine quotation and making several observations regarding the Machine, as outlined below:

         (Image Omitted)

(Id. ¶ 14.) Ampersand alleges that it relied on Best Graphics' representations about the condition of the machine and on October 17, 2018, the parties entered into a Purchase Agreement under which Best Graphics sold the Machine to Ampersand for a total unit and shipping cost of $60, 500.00. (Id. ¶¶ 15-16.)

         The Machine arrived at Ampersand's facility on November 15, 2018. (Id. ¶ 17.) Immediately upon inspection, McDonald notified Best Graphics that the Machine's main stitching unit was damaged. (Id. ¶ 18.) Brahm assured McDonald that the damage was cosmetic and told McDonald to continue the Machine's installation. (Id. ¶ 19.) When the Machine was fully installed and powered, McDonald noticed several undisclosed problems with the Machine's functionality. (Id. ¶ 20.) McDonald further discovered the main stitching assembly bearings were broken and required replacement. (Id. ¶ 21.) McDonald contacted the Machine's manufacturer for a repair quote and learned from the manufacturer that it had previously attempted to repair the exact Machine when it was at Raff Printing, but discovered the Machine was not salvageable because it required over $343, 076.00 in total repairs. (Id. ¶¶ 22-23.) The manufacturer declined to repair the Machine because its condition was so flawed that it could not get the Machine to minimum operational standards. (Id. ¶ 26.) Ampersand alleges that in its current condition, the Machine does not operate as designed and is useless to Ampersand-its only value is scrap metal. (Id. ¶¶ 27- 28.) Ampersand alleges that it has expended a total of $93, 118.54 related to the Machine. (Id. ¶ 29.)

         APPLICABLE RULE

         Best Graphics moves to dismiss for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Supreme Court has interpreted this language to require that the plaintiff plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Ashcroft v. Iqbal, the Supreme Court elaborated further on the pleadings standard, explaining that 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, ” though this “standard is not akin to a ‘probability requirement.'” 556 U.S. 662, 678 (2009). The allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citation omitted). Rule 12(b)(6) does not permit the court to consider matters outside the complaint without converting the motion into a motion for summary judgment, Fed.R.Civ.P. 12(d). However, the court may consider matters outside the pleadings without converting the motion into a motion for summary judgment if the matters were referred to in the complaint and are central to the plaintiff's claim. Verfuerth v. Orion Energy Sys., Inc., 65 F.Supp.3d 640, 649 (E.D. Wis. 2014). The Seventh Circuit posited that this exception should “perhaps . . . be limited to cases in which the suit is on a contract or the plaintiff, if he has not attached, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.