United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
21, 2019, Southern Furniture Leasing, Inc., on behalf of
itself and others similarly situated, filed suit against YRC,
Inc., YRC Worldwide Inc., Roadway Express, Inc. and Yellow
Transportation, Inc. First Amended Class Action
Complaint (Doc. #10). Plaintiff alleges that defendants
systematically overcharged customers for shipments, and bring
claims for breach of contract (Count 1), breach of the duty
of good faith and fair dealing (Count 2), unjust enrichment
(Count 3) and violation of the Florida Deceptive and Unfair
Trade Practices Act, Fla. Stat. § 501.201 (Count 4).
This matter is before the Court on Defendants' Motion
To Dismiss Amended Complaint (Doc. #12) filed July 2,
2019. For reasons stated below, the Court sustains
summarized, plaintiff's complaint alleges the following:
is a business that rents furniture to various individuals and
other businesses. Plaintiff entered into a contract with
defendants whereby defendants would ship its goods pursuant
to a standard bill of lading. This form agreement requires
customers to provide certain information, including the
weight of the shipment. The weight of the shipment primarily
drives the price that defendants charge for a given shipment.
The agreement provides that the weight will be subject to
correction and that the shipping charges will ultimately
reflect the actual weight of the goods that defendants ship.
Accordingly, for many years, defendants would reweigh
shipments and correct the weight in their billing system to
accurately reflect the actual weight of a given shipment.
Where the actual weight of a shipment was greater than
initially indicated (“positive reweighs”), the
price that the customer owed increased. Where the actual
weight of a shipment was less than initially indicated
(“negative reweighs”), the price decreased. By
2006, however, defendants instituted a practice whereby it
systematically and deliberately eliminated any negative
reweighs from registering in its customer billing system. As
a result, defendants overcharged their customers, who were
unaware of this practice.
brings claims for breach of contract (Count 1), breach of the
duty of good faith and fair dealing (Count 2), unjust
enrichment (Count 3) and violation of the Florida Deceptive
and Unfair Trade Practices Act (Count 4). Plaintiff seeks to
recover on its own behalf and on behalf of two putative
classes. The first putative class consists of “[a]ll
persons or entities who reside in the United States who, from
March 1, 2006 through the date of class certification,
entered into a standard contract with [defendants] and whose
charges were not credited for a negative reweigh.”
First Amended Class Action Complaint (Doc. #10)
¶ 18. The second putative class consists of “[a]ll
persons or entities who reside in Florida who, from March 1,
2006 through the date of class certification, entered into a
standard contract with [defendants] and whose charges were
not credited for a negative reweigh.” Id.
assert that the Court should dismiss plaintiff's claims
under Fed. R. Civ P. 12(b)(1) and 12(b)(6) because (1) the
Court does not have subject matter jurisdiction and (2)
plaintiff's amended complaint fails to state a claim upon
which relief can be granted.
defendants seek dismissal under Rule 12(b)(1) and 12(b)(6) in
the alternative, the Court must first decide the motion under
Rule 12(b)(1) because the latter challenge would be moot if
the Court lacks subject matter jurisdiction. See Creamer
v. Gildemeister, No. 15-4871-KHV, 2015 WL 6828186, at *2
(D. Kan. Nov. 6, 2015). Dismissal pursuant to Rule 12(b)(1)
is appropriate when the Court lacks subject matter
jurisdiction over a claim for relief. The party asserting
jurisdiction has the burden of establishing subject matter
jurisdiction. Id. (citing Port City Props. v.
Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir.
ruling on a motion to dismiss under Rule 12(b)(6), 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. at 679-80; Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). To determine 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. Plaintiff makes a facially plausible claim when
it pleads factual content from which the Court can reasonably
infer that defendants are liable for the misconduct alleged.
Id. at 678. However, plaintiff must show more than a
sheer possibility that defendants have acted unlawfully - it
is not enough to plead facts that are “merely
consistent with” defendants' liability.
Id. (quoting Twombly, 550 U.S. at 557).
Where the well-pleaded facts do not permit the Court to infer
more than the mere possibility of misconduct, the complaint
has alleged - but has not “shown” - that the
pleader is entitled to relief. Id. at 679. The
degree of specificity necessary to establish plausibility and
fair notice depends on context; what constitutes fair notice
under Fed.R.Civ.P. 8(a)(2) depends on the type of case.
Robbins v. Okla., 519 F.3d 1242, 1248 (10th Cir.
Court need not accept as true those allegations which state
only legal conclusions. See Iqbal, 556 U.S. at 678;
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Rather, plaintiff bears the burden of framing its
complaint 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. Twombly, 550 U.S. at 556. A pleading
that 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.
Subject Matter Jurisdiction
assert that the Court should dismiss plaintiff's claims
under Rule 12(b)(1) because the Court does not have subject
matter jurisdiction. Generally, a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction takes one of
two forms: a facial attack or a factual attack. Hall v.
United States, No. 12-1387-KHV, 2013 WL 4047578, at *1
(D. Kan. Aug. 9, 2013). In a facial attack, a party questions
the sufficiency of the complaint's allegations as to
subject matter jurisdiction. Id. (citing Holt v.
United States, 46 F.3d 1000, 1002 (10th Cir. 1995)). In
a factual attack, by contrast, a party may go beyond
allegations in the complaint and challenge the facts upon
which subject matter jurisdiction depends. Id.
(citing Holt, 46 F.3d at 1002).
defendants facially attack the complaint by asserting that
plaintiff's allegations fail to establish subject matter
jurisdiction. Defendants' Motion To Dismiss Amended
Complaint (Doc. #12) at 11-12. Specifically, defendants
assert that the Court lacks subject matter jurisdiction
because (1) plaintiff does not have Article III
standing and (2) plaintiff did not adequately plead
the required amount in controversy under the Class Action
Fairness Act (“CAFA”).