United States District Court, D. Maryland
AUTO USA, INC. Plaintiff,
DHL EXPRESS USA, INC. Defendant.
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
29, 2016, plaintiff Auto USA, Inc. ("Auto USA")
filed suit against defendant DHL Express (USA), Inc.
("DHL") in the Circuit Court for Baltimore County,
arising out of a dispute with respect to the parties'
Commercial Shipping Agreement (the "Agreement"),
executed on or about November 2, 2015. ECF 2. Auto USA
appended numerous exhibits to the Complaint. See ECF
2-1 through ECF 2-9. DHL timely removed the case to this
Court on October 28, 2016, based on diversity jurisdiction.
See 28 U.S.C. §§ 1332, 1441, and 1446. ECF
the Agreement, DHL agreed "to handle Auto USA's
international commercial shipping business needs" for
three years. ECF 2, ¶ 5; see ECF 2-1
(Agreement). The Agreement also provides for an incentive to
plaintiff. ECF 2-1 at 4, ¶ G. However, plaintiff
maintains the incentive in the Agreement is not consistent
with the parties' negotiated terms for a 20% rebate. ECF
2, ¶¶ 8-12; ECF 2-1 at 4, ¶ G. DHL refuses to
honor the 20% rebate. ECF 2, ¶ 14.
Complaint contains seven counts, as follows: intentional
misrepresentation (Count I); negligent misrepresentation
(Count II); unfair or deceptive trade practices (Count III);
constructive fraud (Count IV); intentional misrepresentation
- concealment or non-disclosure (Count V); intentional
misrepresentation - false representation (Count VI); and
intentional misrepresentation - fraudulent inducement (Count
VII). See ECF 2 ¶¶ 16-64.
pending is DHL's Motion to Dismiss (ECF 5), pursuant to
Fed.R.Civ.P. 12(b)(6). The motion is supported by a
memorandum (ECF 5-1, collectively “Motion”) and
an exhibit. ECF 5-2. Auto USA has responded in opposition
(ECF 11, “Opposition”), and DHL has replied. ECF
Motion is fully briefed and no hearing is necessary to
resolve it. See Local Rule 105.6. For the reasons
that follow, I shall grant the Motion.
Standard of Review
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). Goines v.
Valley Cmty, Servs, Bd., 822 F.3d 159, 165-66 (4th Cir.
2016); McBurney v. Cuccinelli, 616 F.3d 393, 408
(4th Cir. 2010), aff'd sub nom. McBurney v.
Young, __U.S.__, 133 S.Ct. 1709 (2013); Edwards v.
City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A
Rule 12(b)(6) motion constitutes an assertion by a defendant
that, even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim
upon which relief can be granted.” Whether a complaint
states a claim for relief is assessed by reference to the
pleading requirements of Fed.R.Civ.P. 8(a)(2). It provides
that a complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” The purpose of the rule is to provide the
defendants with “fair notice” of the claims and
the “grounds” for entitlement to relief. Bell
Atl., Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft
v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision
in Twombly expounded the pleading standard for
‘all civil actions' . . . .” (citation
omitted)); see also Simmons v. United Mortg. & Loan
Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011). But, a
plaintiff need not include “detailed factual
allegations” in order to satisfy Rule 8(a)(2).
Twombly, 550 U.S. at 555. Moreover, federal pleading
rules “do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted.” Johnson v. City of Shelby,
__U.S.__, 135 S.Ct. 346, 346 (2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action,
“even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal
reviewing a Rule 12(b)(6) motion, a court “‘must
accept as true all of the factual allegations contained in
the complaint'” and must “‘draw all
reasonable inferences [from those facts] in favor of the
plaintiff.'” E.I. du Pont de Nemours & Co.
v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. Maryland Transit
Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v.
Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir.
2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th
Cir. 2011), cert. denied, 565 U.S. 943 (2011). But,
a court is not required to accept legal conclusions drawn
from the facts. See Papasan v. Allain, 478 U.S. 265,
286 (1986). “A court decides whether [the pleading]
standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, __U.S.__, 132 S.Ct. 1960 (2012).
general, courts do not “resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses” through a Rule 12(b)(6) motion. Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
The purpose of the rule is to ensure that defendants are
“given adequate notice of the nature of a claim”
made against them. Twombly, 550 U.S. at 555- 56
(2007). But, “in the relatively rare circumstances
where facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009);
see also U.S. ex rel. Oberg v. Penn. Higher Educ.
Assistance Agency, 745 F.3d 131, 148 (4th Cir. 2014).
However, because Rule 12(b)(6) “is intended [only] to
test the legal adequacy of the complaint, ”
Richmond, Fredericksburg & Potomac R.R. Co. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his
principle only applies . . . if all facts necessary to the
affirmative defense ‘clearly appear[ ] on the face of
the complaint.'” Goodman, 494 F.3d at 464
(quoting Forst, 4 F.3d at 250) (emphasis added in
limited exceptions, a court may consider documents beyond the
complaint without converting the motion to dismiss to one for
summary judgment. Goldfarb v. Mayor & City Council of
Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). A court
may properly consider documents that are “explicitly
incorporated into the complaint by reference and those
attached to the complaint as exhibits . . . .”
Goines, 822 F.3d at 166 (citations omitted); see
U.S. ex rel. Oberg, 745 F.3d at 136 (quoting Philips
v. Pitt Cty Memorial Hosp., 572 F.3d 176, 180 (4th Cir.
2009)); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d
195, 198 (4th Cir. 2014); Am. Chiropractic Ass'n v.
Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004), cert. denied, 543 U.S. 979 (2004);
Phillips v. LCI Int'l Inc., 190 F.3d 609, 618
(4th Cir. 1999). A court may also “consider a document
submitted by the movant that was not attached to or expressly
incorporated in a complaint, so long as the document was
integral to the complaint and there is no dispute about the
document's authenticity.” Goines, 822 F.3d
at 166 (citations omitted). To be “integral, ” a
document must be one “that by its ‘very
existence, and not the mere information it contains, gives
rise to the legal rights asserted.'” Chesapeake
Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794
F.Supp.2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis
“before treating the contents of an attached or
incorporated document as true, the district court should
consider the nature of the document and why the plaintiff
attached it.” Goines, 822 F.3d at 167 (citing
N. Ind. Gun & Outdoor Shows, Inc. v. City of S.
Bend, 163 F.3d 449, 455 (7th Cir. 1998)). “When
the plaintiff attaches or incorporates a document upon which
his claim is based, or when the complaint otherwise shows
that the plaintiff has adopted the contents of the document,
crediting the document over conflicting allegations in the
complaint is proper.” Goines, 822 F.3d at 167.
Conversely, “where the plaintiff ...