The opinion of the court was delivered by: Julie A. Robinson United States District Judge
Plaintiff 613 Agro Holdings, LLC alleges breach of contract and fraud claims under Kansas law against the following Defendants: Lola M. Renick; Michael R. Renick; Judy M. Renick; Mark A. Renick; Cheri M. Renick; Gary S. Renick; Dosha Renick; Janice K. Renick; Bruce G. Renick; Julie A. Walker; Duane W. Walker; XPO, LLC; and Best Farms, Inc. All Defendants answered the Complaint and then filed the following motions: (1) Motion to Dismiss for Failure to State a Claim (Doc. 30); and (2) Motion for Change of Venue, and in the Alternative, for Trial to be Held in the Wichita Division (Doc. 28). Plaintiff has filed a Motion to Strike the Reply in Response to the Motion to Dismiss (Doc. 45). These motions are fully briefed, and the Court is prepared to rule. As described more fully below, the Court grants in part and denies in part Defendants' motion to dismiss and denies the motion to strike as moot. The motion to dismiss is granted with respect to the contract claim in Count III, and denied on the fraud claim in Count IV and the contract remedy claims in Counts V and VI. The Court further denies the motion to change venue, but grants the alternative motion for trial to be held in the Wichita Division.
All Defendants have answered the Complaint.*fn1 The defense of failure to state a claim upon which relief can be granted "must be made before pleading if a responsive pleading is allowed."*fn2 Otherwise, the defense must be raised as a motion for judgment on the pleadings under Rule 12(c), which is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6).*fn3 The Court construes Defendants' motion as a motion for judgment on the pleadings.
Under Fed. R. Civ. P. 8(a)(2), a complaint must contain "a short and
plain statement of the claim showing that the pleader is entitled to
relief," in order to give the defendant adequate notice of what the
plaintiff's claim is and the grounds of that claim.*fn4
In so doing, a complaint must present factual allegations,
assumed to be true, that "raise a right to relief above the
speculative level" and must contain "enough facts to state a claim to
relief that is plausible on its face."*fn5 The
plausibility standard does not require a showing of probability that
"a defendant has acted unlawfully,"*fn6 but it
requires more than "a sheer possibility."*fn7 Thus, "a
formulaic recitation of the elements of a cause of action," standing
alone, is insufficient to survive a motion to
The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but] we 'are not bound to accept as true a legal conclusion couched as a factual allegation.'"*fn9 Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.*fn10 Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."*fn11 "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."*fn12
If the Court on a Rule 12(c) motion looks to matters outside the
complaint, it generally must convert the motion to a Rule 56 motion
for summary judgment.*fn13 However, the Court may
consider documents which are referred to in the complaint.*fn14
Plaintiff filed three exhibits in support of the Complaint
that are central to the claims in this case and referred to in
the Complaint: (1) the auction brochure; (2) the Purchase Agreement; and
(3) the warranty deeds. The following facts are alleged in the
Complaint (Doc. 1) or contained in the exhibits attached to the
Complaint (Doc. 3). The factual allegations are taken in the light
most favorable to Plaintiff.
On or about October 26, 2010, the sellers of approximately 6682 acres of real estate located in Southwest Kansas held an auction sale through their agent, Schrader Real Estate & Auction Company. In the written brochure for the auction sale, delivered to Plaintiff before the auction sale and provided as an inducement for Plaintiff to participate in the auction sale, "The Don Renick Family" promised to convey certain mineral rights along with the real estate. The brochure contains a grid that lists the percentage of mineral rights owned by The Don Renick Family for each of the 27 tracts included in the sale. The individually-named Defendants were known in the community and in the place where the sale took place as "The Don Renick Family"; and the auction brochure identified the seller as "The Don Renick Family." The brochure includes a section titled "Auction Terms & Conditions," with the following disclaimer: "All information contained in this brochure and all related materials are subject to the terms and conditions outlined in the purchase agreement."*fn15
Plaintiff relied upon the representations in the brochure and successfully bid $8,900,000 for most of the real estate and mineral rights advertised in the brochure. The parties executed a Purchase Agreement that same day. The Purchase Agreement identifies the "Seller" as Best Farms, Inc., Lola Margaret Renick, Mark A. Renick, and Cheri M. Renick. The Purchase Agreement provides that the "Seller accepts [the $8,900,000] bid" for the real estate designated in the auction brochure as Tract(s) 1--21 and 27, containing 5892 acres, "together with all . . . appurtenances pertaining thereto."
Paragraph 12 of the Purchase Agreement is an integration clause: "This contract contains the entire agreement of the parties and no representations, warranties or agreements have been made by either of the parties except as set forth in this Contract." The Purchase Agreement expressly incorporates two exhibits: an Auction Tract Map (Exhibit A), and Auction Announcements (Exhibit B). Exhibit B to the Purchase Agreement lists the owners of the real estate as Best Farms, Inc., Lola Margaret Renick, Mark A. Renick, and Cheri M. Renick. Exhibit B does not include the auction brochure. The Auction Announcements state, among other things, that (1) final bids "are subject to the Sellers' acceptance or rejection," (2) "Seller has represented in the brochure mineral ownership interest to best of their knowledge. However, no mineral search has been done and Seller warrants only they are selling 100% of their ownership in the mineral rights in real estate being sold," (3) "[t]he majority of the real estate is held as corporation," and (4) "[a]ll real estate is sold 'AS IS' without any warranty."*fn16
The real estate sale closed on December 2, 2010. Members of the Don Renick Family knowingly failed to convey to Plaintiff the mineral rights set forth in the auction brochure. In early 2012, the Don Renick Family formed XPO, LLC, and transferred to XPO all of their mineral rights in the real estate sold to Plaintiff. In February 2012, XPO leased to Paramount Land, Inc., the mineral rights in the real estate sold to Plaintiff, receiving bonus payments for the leases, as well as future royalty payments. In April 2012, Plaintiff learned that the Don Renick Family did not convey to Plaintiff the mineral rights promised in the auction documents.
Plaintiff brings claims for relief under the following counts in the Complaint: (I) Breach of Corporation General Warranty Deed/Breach of Covenant of Seisin against Best Farms, Inc.; (II) Breach of the Purchase Agreement against Best Farms, Inc. Lola M. Renick, Mark A. Renick, and Cheri M. Renick; (III) Breach of the Auction Sale Agreement against the Don Renick Family; (IV) Fraud against the Don Renick Family; (V) Reformation of the Purchase Agreement against the Don Renick Family; and (VI) Specific Performance of the Purchase Agreement against the Don Renick Family. Defendants ...