United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on Plaintiff's Motion to
Dismiss Defendant's Amended Counterclaim for failure to
state a claim under Fed.R.Civ.P. 12(b)(6) and for judgment on
the pleadings under Fed.R.Civ.P. 12(c). (Doc. No. 24).
Defendant has responded, (Doc. No. 26), Plaintiff has
replied, (Doc. No. 27), and this Motion is now ripe for
review. For the reasons stated below, Plaintiff's Motion
(Doc. No. 24) is GRANTED.
case arises out of disputes related to the construction of a
sports-training facility. Plaintiff Sports Med Properties,
LLC (“Sports Med”) and Defendant Aqib Talib
(“Talib”) entered into a Project Management
Agreement (“Agreement”) on or about March 22,
2016. (Doc. No. 1- 2, p. 3). Under the Agreement, Sports Med
agreed to provide project management services for the
construction of Talib's athletic training complex and
Talib agreed to pay for those services. Id. The
Services included, but were not limited to, working with
Talib's representative to supervise contracts with design
and construction professionals; working with Talib's
representative on preparation of the initial project budget;
coordinating between Talib's representative and
architectural and engineering professionals to obtain
approval of plans and permits from local authorities;
maintaining the budget and schedule; overseeing and managing
the accounting process related to the project budget and
schedule; monitoring applications for payment from
construction and design professionals; and overseeing and
managing the accounting process related to the project budget
(“Services”). Id. In exchange for those
services, Talib agreed to pay a project management fee equal
to five percent of the total cost of the project and an
accounting service fee of $500.00 per month. Id. at
March 12, 2018, the Project Completion Date according to a
Letter of Substantial Completion issued by the project
architect, Talib had paid three installments pursuant to the
Agreement. Id. at 4. Sports Med alleges a fourth and
final installment is due to fulfill Talib's obligations
under the Agreement and is seeking to recover that amount.
Id. at 4-5. Sports Med alleges that it is entitled
to $94, 985.64 in unpaid fees, plus interest at a rate of
eighteen percent (18%) per year. Id. at 5. Talib
does not dispute that the parties entered into the Agreement.
(Doc. No. 20, p. 7). Rather, Talib disputes the scope of the
services required of the Sports Med by the Agreement. See
generally (Doc. No. 20).
(“Sports Med”) filed the instant action on
January 7, 2019. (Doc. No. 1, p. 2). In its Complaint, Sports
Med asserts a breach of contract claim based on the
Agreement. (Doc. No. 1-2). Talib filed a Counterclaim on
March 14, 2019. (Doc. No. 10). Talib also asserts an
affirmative defense based on his Counterclaim for breach of
contract. (Doc. No. 10, p. 3). In his Counterclaim Talib
alleges that Sports Med failed in its duties required by the
Agreement leading to defective and unusable features of the
athletic training facility. Id. at 4. On April 23,
2019, Sports Med filed a motion to dismiss Talib's
Counterclaim under Rule 12(b)(6) for failure to state a claim
and a motion under Rule 12(c) for judgment on the pleadings.
(Doc. No. 24). Talib filed an Amended Counterclaim,
reasserting the breach of contract claim and, in the
alternative, asserting that the Agreement is unenforceable
due to allegedly contradictory clauses causing the Agreement
to fail its essential purpose or, alternatively, be rendered
illusory, unconscionable and/or void for lack of
consideration. (Doc. No. 20, pp. 6-9). Sports Med
subsequently withdrew its initial motion under Rules 12(b)(6)
and 12(c) and refiled in response to the Amended
Counterclaim. (Doc. No. 24).
STANDARD OF REVIEW
12(b)(6) Standard of Review
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
“legal sufficiency of the complaint” but
“does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D.
Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir.
2000). A complaint attacked by a Rule 12(b)(6) motion to
dismiss will survive if it contains “enough facts to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Robinson v. American Honda Motor Co.,
Inc., 551 F.3d 218, 222 (4th Cir. 2009). “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.” Iqbal, 556 U.S. at 678.
all factual allegations contained in a complaint must be
accepted as true, “threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.; see also
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The Court
may ignore a party's legal conclusions set forth in its
pleading. McCrann v. Pinehurst, LLC, 737 S.E.2d 771,
777 ( N.C. Ct. App. 2013). “Legal inferences drawn from
the facts, unwarranted inferences, unreasonable conclusions,
or arguments are not part of the [court's]
consideration.” Dolgaleva v. Va. Beach City Pub.
Sch., 364 Fed.Appx. 820, 827 (4th Cir. 2010); see
also E. Shore Mkts., Inc. v. J.D. Assocs. LLP, 213 F.3d
175, 180 (4th Cir. 2000). In assessing the legal sufficiency
of a claim under Fed.R.Civ.P. 12(b)(6), a court may rely on a
document “integral to and explicitly relied on in the
complaint” so long as the non-moving party does not
challenge the document's authenticity. Phillips v.
LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999);
see also Goines v. Valley Community Services Bd.,
822 F.3d 159, 165 (4th Cir. 2016). “[I]n the event of
conflict between the bare allegations of the complaint and
any exhibit attached pursuant to Rule 10(c), Fed. R. Civ. P.,
the exhibit prevails.” Fayetteville Inv'rs v.
Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.
1991) (citing 2A Moore's Federal Practice, ¶ 10.06,
12(c) Standard of Review
12(c) motion is reviewed under a standard similar to that
which is used in Rule 12(b)(6) motions to dismiss, with the
“key difference being that on a 12(c) motion, the Court
is to consider the answer as well as the complaint.”
Id.(internal citations omitted). In resolving a
motion for judgment on the pleadings, a court must accept the
nonmovant's allegations as true and view the facts in the
light most favorable to the nonmoving party. Bradley v.
Ramsey, 329 F.Supp.2d 617, 622 (W.D. N.C. 2004)
(internal citations omitted). The Court, however, need not
“accept the legal conclusions drawn from the facts,
” nor “accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Giarranto
v.Johnson, 521 F.3d 298, 302 (4th Cir. 2008)