United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
Power Chassis, Inc. (“American Power”) brings
suit against Gary Jones for breach of contract, fraud and
negligent misrepresentation. See Amended Complaint
(Doc. #7) filed January 8, 2014. This matter is before the
Court on Defendant Gary Jones Motion To Dismiss
(Doc. #87) filed December 21, 2015, defendant's
Second Motion To Dismiss (Doc. #122) filed February
13, 2017 and Plaintiff's Response And Motion To
Strike Defendant Gary Jones' Second Motion To
Dismiss (Doc. #125) filed February 16, 2017. For reasons
stated below, the Court overrules all three motions.
ruling on a motion to dismiss under Rule 12(b)(6), Fed. R.
Civ. P., the Court assumes as true all well-pleaded factual
allegations and determines whether they plausibly give rise
to an entitlement of relief. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). To survive a motion to dismiss, a
complaint must contain sufficient factual matter to state a
claim which is plausible - and not merely conceivable - on
its face. Id., 556 U.S. at 679-80; Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
determining whether a complaint states a plausible claim for
relief, the Court draws on its judicial experience and common
sense. Iqbal, 556 U.S. at 679. The Court need not
accept as true those allegations which state only legal
conclusions. See id.; Hall, 935 F.3d at
bears the burden of framing its claims with enough factual
matter to suggest that it is entitled to relief; it is not
enough to make threadbare recitals of a cause of action
accompanied by conclusory statements. See Twombly,
550 U.S. at 556. Plaintiff makes a facially plausible claim
by pleading factual content from which the Court can
reasonably infer that defendant is liable for the misconduct
alleged. Iqbal, 556 U.S. at 678. Plaintiff must show
more than a sheer possibility that defendant has acted
unlawfully - it is not enough to plead facts that are
“merely consistent with” defendant's
liability. Id. (quoting Twombly, 550 U.S.
at 557). A pleading which offers labels and conclusions, a
formulaic recitation of the elements of a cause of action or
naked assertions devoid of further factual enhancement will
not stand. Iqbal, 556 U.S. at 678. Similarly, where
the well-pleaded facts do not permit the Court to infer more
than the mere possibility of misconduct, the pleading has
alleged - but has not “shown” - that the pleader
is entitled to relief. See id. at 679. The degree of
specificity necessary to establish plausibility and fair
notice depends on context, because what constitutes fair
notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the
type of case. Robbins v. Okla., 519 F.3d 1242, 1248
(10th Cir. 2008) (citing Phillips v. Cty. of
Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).
alleges the following facts.
Power is a Kansas corporation located in Russell, Kansas.
First Amended Complaint (Doc. #7) filed January 8,
2014, ¶ 1.
is an individual who resides in the State of Washington.
Id. ¶ 2.
& Sons Chassis, Inc. is a Washington corporation.
Id. ¶ 3.
February 14 and 15, 2012, in his individual capacity and as
an authorized agent of Jones & Sons Chassis, Inc., Jones
traveled to Russell, Kansas and met with officers, directors
and employees of American Power. Id. ¶ 9.
During the meeting, American Power, Jones and Jones &
Sons Chassis, Inc. entered into an agreement which they later
reduced to writing in a document entitled “Project
Timeline and Budget.” Id. ¶ 10. Under the
agreement, Jones and Jones & Sons Chassis, Inc. agreed
that by November 12, 2012, they would design a power chassis
with all electrical systems, build a prototype and create all
parts and system drawings with respect to the power chassis
and electrical systems. Id. ¶ 12. The parties
agreed to the completion date of November 12, 2012 to insure
that the prototype chassis would be ready to show at the
Recreational Vehicle Industry Association convention in
Louisville, Kentucky. Id. ¶ 13. Jones and Jones
& Sons Chassis, Inc. knew that American Power planned to
put the power chassis into production in 2013 and produce 1,
000 units in the first year. Id. ¶ 5.
on the parties' agreement, between March 6, 2012 and
February 19, 2013, American Power paid $389, 133.09 to Jones
and Jones & Sons Chassis, Inc. Id. ¶ 15.
March 6, 2012 to April 22, 2013, Jones and Jones & Sons
Chassis, Inc. repeatedly refused to meet and confer with
American Power regarding the status and timeline of the
project, causing American Power to miss critical deadlines in
its production process. Id. ¶ 17.
November 12, 2012, Jones and Jones & Sons Chassis, Inc.
were nearly three months ...