United States District Court, D. Maryland
L. Hollander United States District Judge.
Restoration, LLC (“CVR”), plaintiff, filed suit
against defendant, Diversified Shafts Solutions, Inc.
(“DSS”), on June 14, 2016. ECF 1. CVR alleges
breach of contract, unjust enrichment, and breach of
fiduciary duty arising out of two written agreements that
plaintiff alleges the parties executed in August 2009.
Id. ¶¶ 26-41. Plaintiff seeks to recover,
among other things, $338, 310 and requests an accounting.
Id. ¶¶ 41-46.
asserted counterclaims against CVR, alleging, inter
alia, breach of contract and requesting an accounting.
ECF 8 ¶¶ 59-65, 76-81. Count 1 of the counterclaim
seeks attorneys' fees. In an “Amended Answer,
Defenses, and Counterclaim” filed on September 23, 2016
(ECF 15, “Amended Counterclaim”), DSS also seeks
attorneys' fees. Id. ¶¶ 55-58 (Count
moved to dismiss Count 1 of the Amended Counterclaim (ECF
21), in which DSS seeks attorneys' fees. CVR also filed a
memorandum of law in support of its motion to dismiss. ECF
21-1 (collectively, the “Motion”). DSS opposes
the Motion. ECF 24 (“Opposition”). CVR has not
replied, and the time for doing so has passed. See
Local Rule 105.2(a).
hearing is required to resolve the Motion. See Local
Rule 105.6. For the reasons that follow, I shall grant the
incorporate the factual and procedural history set forth in
my Memorandum of November 10, 2016. ECF 27. I repeat and
amplify the facts to the extent relevant and necessary.
a Maryland limited liability company that “develops,
manufactures, markets and distributes axles and their related
components for all-terrain vehicles . . . .” ECF 1
¶¶ 1, 3. DSS is a Georgia corporation that
oversees the manufacture, marketing, and distribution of
axles for all-terrain vehicles, and their related components.
ECF 1 ¶¶ 2, 4; ECF 15 ¶¶ 2, 4.
alleges (ECF 1 ¶¶ 6, 13) that on August 31, 2009,
CVR and DSS entered into two agreements: “Limited
Partnership Agreement for sales of ATV Axles”
(see ECF 1-2) and “Partnership Agreement for
Monster Axles.” See ECF 1-3 (collectively, the
“Agreements”). According to plaintiff,
“[t]he Agreements are substantively identical, and
provide that CVR and DSS are forming a partnership for the
manufacture and sale of ATV axles.” ECF 1 ¶ 14.
Plaintiff avers that the gross profit from the
“venture” was to be split “equally
between” CVR and DSS. Id. ¶ 15. However,
plaintiff asserts that “DSS has continually and
systemically breached the Agreements” by not remitting
its share. Id. ¶ 19.
September 6, 2016, CVR, as counter-defendant, filed a motion
to dismiss counts 1, 5, and 7 of DSS's counterclaim. ECF
11 at 1 (“First Motion to Dismiss”). In its
memorandum in support of the First Motion to Dismiss, CVR
asserted that DSS failed to sufficiently state claims in its
counterclaim for attorneys' fees (Count 1); fraud (Count
5); and punitive damages (Count 7). ECF 11-1 at 5-10.
on September 23, 2016, DSS responded in opposition to the
First Motion to Dismiss (ECF 16) and submitted its Amended
Counterclaim. ECF. DSS stated, in its opposition to the First
Motion to Dismiss: “Upon further review, DSS agrees
with Plaintiffs analysis of DSS' fraud and punitive
damages claims. In an effort to focus this lawsuit on the
remaining claims, DSS narrowed the scope of issues before the
Court.” ECF 16 at 5. Accordingly, DSS did not assert
claims for fraud or punitive damages in its Amended
Counterclaim. See ECF 15.
DSS argued that Count 1, which seeks attorneys' fees,
should not be dismissed. ECF 16 at 3-4. Thus, DSS reasserted
Count 1 in its Amended Counterclaim, with revisions.
See ECF 15 at ¶¶ 55-58; ECF 15-1 at 10-11
(redline). In light of the Amended Counterclaim, by Order of
September 28, 2016, I denied the First Motion to Dismiss as
moot. ECF 19.
on October 7, 2016, CVR filed the Motion, arguing that DSS
has failed to state a claim for attorneys' fees in the
Amended Counterclaim. ECF 21. As noted, DSS filed its