United States District Court, E.D. North Carolina, Western Division
W. EARL BRITT, Senior District Judge.
This matter comes before the court on defendant Bimbo Foods Bakeries Distribution, LLC, f/k/a Bimbo Foods Bakeries Distribution, Inc., f/k/a George Weston Bakeries Distribution, Inc.'s ("defendant") motion to dismiss. (DE # 13.) Plaintiff Richard Ramsey ("plaintiff") filed a response, (DE # 15), to which defendant replied, (DE # 16). This matter is ripe for disposition.
In 2008, plaintiff, as an "independent operator, " purchased for $130, 000 a distribution route which granted him exclusive rights to purchase bakery products from defendant and sell those products to grocery store chains and other customers within a designated territory. (Compl., DE # 5-1, ¶¶ 5-7.) At the same time, he entered into a Distribution Agreement ("Agreement") with defendant and was "to be paid on a percentage of sales or a margin on the sale of product." (Case No. 5:14-CV-26-BR, Compl., DE # 1-1, ¶ 8 & Ex. 1.)
In June 2013, defendant informed plaintiff and other local independent operators that it was reducing the margins to be paid to them. (Id. ¶ 10.) Plaintiff and most of the other independent operators "united in an effort to fight the Defendant's effort to unilaterally reduce margins." (Id. ¶ 12.) On 6 December 2013, defendant issued to plaintiff a "Notice of Breach of Distribution Agreement, " stating that plaintiff had "fail[ed] to provide proper and satisfactory service" to a Harris Teeter store on his route. (Id. ¶ 25 & Ex. 5.) After plaintiff failed to cure the breach, defendant issued to plaintiff a "Notice of Termination of Distribution Agreement." (Id. ¶ 25 & Ex. 6.) Plaintiff subsequently filed suit challenging the termination of the agreement and seeking a preliminary injunction to enjoin defendant from interfering with the operation of his distribution route. Ramsey v. Bimbo Food Bakeries Distrib., Inc., No. 5:14-CV-26-BR (E.D. N.C. 2014). This court denied plaintiff's motion for a preliminary injunction. (Id., DE # 29.)
The Agreement permitted plaintiff to sell his route "during the first 90 days following the termination of the... agreement." (Compl., DE # 5-1, ¶ 11.) Plaintiff elected not to do so in light of his motion for a preliminary injunction which was pending at that time. (Id.) Defendant proceeded to operate plaintiff's route on his behalf for a period of more than nine months. (Id. ¶¶ 13, 15.) Based on approximate historical earnings of $8, 000 per month in the operation of his route, plaintiff estimates he would have earned $72, 000 during those nine months. (Id. ¶¶ 12, 15.) Instead of turning over to plaintiff any profits garnered from the operation of his route, defendant "charged the Plaintiff $43, 343.00...." (Id. ¶ 16.) Defendant subsequently sold the rights to plaintiff's route "without any approval whatsoever from the Plaintiff" for $111, 745. (Id. ¶ 19 & Ex. 3.)
On 2 December 2014, plaintiff filed this action in state court asserting claims for breach of contract, fraud, breach of fiduciary duty, negligence, and unfair and deceptive trade practices. (Compl., DE # 5-1, ¶¶ 33-50.) On 7 January 2015, defendant removed the case to this court. (DE # 5.) Now, pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant moves to dismiss plaintiff's complaint in its entirety.
II. LEGAL STANDARD
Rule 12(b)(6) permits a court to dismiss an action for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A 12(b)(6) motion should only be granted if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, a complaint that proffers only "a formulaic recitation of the elements of a cause of action" with no "further factual enhancement" is insufficient. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007). To survive dismissal, a party must come forward with "enough facts to state a claim to relief that is plausible on its face." Id. at 548. The plausibility standard is met "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The court must accept as true all well-pleaded allegations and must draw all reasonable factual inferences in favor of the plaintiff. See Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005); Myan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Additionally, the court may consider exhibits that plaintiff attached to his complaint. See United States ex rel. Constructors, Inc. v. Gulf Ins. Co., 313 F.Supp.2d 593, 596 (E.D. Va. 2004). If allegations in the complaint are inconsistent with an exhibit, the exhibit controls. Id. (citing Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991)).
A. Consolidation of cases
As noted previously, plaintiff has a related suit against defendant pending in this court in which he asserts claims arising out of the alleged wrongful termination of the distribution agreement. Ramsey, No. 5:14-CV-26-BR. Defendant urges the court to dismiss the present suit for being entirely duplicative of the prior case, or, in the alternative, to stay this case or consolidate it with the first case. (DE # 14, at 7-10, 17.) Plaintiff also requests that the court consolidate this case with his prior case. (DE # 15, at 28-29.)
As the Fourth Circuit Court of Appeals has recognized, the abstention doctrine that the Supreme Court articulated in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976), "permits dismissal of duplicative federal action when [w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation' clearly favors abstention." Chase Brexton Health Servs., Inc. v. Maryland, 411 F.3d 457, 463 (4th Cir. 2005) (quoting Colorado River) (alteration in original) (emphasis omitted). However, dismissal of a duplicative suit is not required, as a court may permissibly consolidate the two actions. See Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 452 F.Supp.2d 621, 626 n.2 (D. Md. 2006) (citing Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000)).
The court concludes that dismissal of the instant case on the ground that it duplicates the prior case is unwarranted. Any risk posed by duplicative litigation is cured by consolidation of this case with the prior case, No. 5:14-CV-26-BR. See First Fin. Sav. Bank, Inc. v. Am. Bankers Ins. Co. of Fl., 699 F.Supp. 1164, 1166 (E.D. N.C. 1988) ("[A]ny potential risk of duplicative proceedings can be eliminated if the court consolidates [the two] actions.") (citing I.A. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1552 n.13 (11th Cir. 1986); Walton v. Eaton Corp., 563 F.2d 66 (3d Cir. ...