United States District Court, D. Maryland
Element Fleet Corporation f/k/a PHH Vehicle Management Services, LLC
Forklift Exchange, Inc
Catherine C. Blake United States District Judge.
dispute arises out of a contract between Element Fleet
Corporation ("Element") and Forklift Exchange, Inc
("Forklift") for the consignment of two pieces of
equipment. Currently pending before the court is
Forklift's motion to dismiss the complaint. For the
reasons outlined below, the court will deny Forklift's
motion. The issues have been briefed and no oral argument is
necessary. See Local Rule 105.6 (D. Md. 2018).
December 18, 2012, Element and Forklift entered into a
Consignment Agreement (the "Agreement") in
Maryland. (Compl. ¶¶ 5-6, ECF No. 1). In 2016, in
accordance with the Agreement, Element delivered two lifts-a
Yale Lift Model PI 100-48 (the "PI 100 Model Lift")
and a Yale Lift Model P500-48 (the "P500 Model
Lift")-to Forklift. (Id. ¶ 10). These
lifts were given to Forklift for a consignment period.
(Id. ¶ 7). During this period, Forklift agreed
to market the lifts to potential customers. (Id., ).
If a buyer was found, Forklift was entitled to purchase the
lifts from Element for a "predetermined set price
established by [Element] prior to [Forklift]
selling" the lifts to the buyer. (Id. ¶
8). Element alleges that Forklift agreed to purchase prices
of $150, 000.00 for the PI 100 Model Lift, and $125, 000.00
for the P500 Model Lift. (Id. ¶ 11). But
Element alleges that Forklift has neither paid the agreed
upon purchase price, nor returned the lifts to Element,
despite repeated requests from Element to do so.
(Id. ¶¶ 12-14).
27, 2018, Element initiated this suit against Forklift,
alleging: (1) breach of contract (Count I); and (2)
conversion (Count II). (Id. ¶¶ 16-29).
Element seeks monetary damages. (Id. ¶¶
ruling on a motion under Rule 12(b)(6), the court must
"accept the well-pled allegations of the complaint as
true," and "construe the facts and reasonable
inferences derived therefrom in the light most favorable to
the plaintiff." Ibarra v. United States, 120
F.3d 472, 474 (4th Cir. 1997). "Even though the
requirements for pleading a proper complaint are
substantially aimed at assuring that the defendant be given
adequate notice of the nature of a claim being made against
him, they also provide criteria for defining issues for trial
and for early disposition of inappropriate complaints."
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009). "The mere recital of elements of a cause of
action, supported only by conclusory statements, is not
sufficient to survive a motion made pursuant to Rule
12(b)(6)." Walters v. McMahen, 684 F.3d 435,
439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). To survive a motion to dismiss, the
factual allegations of a complaint "must be enough to
raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact)." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). "To satisfy this standard, a plaintiff need
not 'forecast' evidence sufficient to prove the
elements of the claim. However, the complaint must allege
sufficient facts to establish those elements."
Walters, 684 F.3d at 439 (citation omitted).
"Thus, while a plaintiff does not need to demonstrate in
a complaint that the right to relief is 'probable,'
the complaint must advance the plaintiffs claim 'across
the line from conceivable to plausible.'"
Id. (quoting Twombly, 550 U.S. at 570).
general, a court may not consider extrinsic evidence when
resolving a Rule 12(b)(6) motion. See Chesapeake Bay
Found., Inc. v. Severstal Sparrows Point, LLC, 794
F.Supp.2d 602, 611 (D. Md. 2011). But there are several
exceptions to this rule. A court may consider documents
attached to the complaint. See Fed. R. Civ. P.
10(c). A court may also consider documents attached to the
motion to dismiss if the documents are "integral to and
explicitly relied on in the complaint and [if] the plaintiffs
do not challenge [the documents'] authenticity."
Am. Chiropractic Ass'n, Inc. v. Trigon Healthcare
Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting
Phillips v. LCI Int'l Inc., 190 F.3d 609, 618
(4th Cir. 1999)); see Blankenship v. Manchin, 471
F.3d 523, 526 n.l (4th Cir. 2006). A court may also consider
documents referred to and relied upon in the complaint, even
if those documents are not attached to the complaint as
exhibits. New Beckley Min. Corp. v. Int'l Union,
United Mine Workers, 18 F.3d 1161, 1164 (4th Cir. 1994)
(citing Cortec Indus., Inc. v. Sum Holding, L.P.,
949 F.2d 42, 47-48 (2d Cir. 1991)). And, if any of these
properly considered extra-pleading materials conflict with
the allegations in the complaint, the extra-pleading
materials prevail. Fayetteville Investors v. Commercial
Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991);
Fare Deals Ltd. v. World Choice Travel.Com, Inc.,
180 F.Supp.2d 678, 683 (D. Md. 2001).
argues that the court should dismiss Element's complaint
under the doctrine of forum non conveniens, and,
alternatively, that the court should dismiss the complaint
because Element fails to state a claim for either breach of
contract or conversion. The court considers these arguments
argues that the court should dismiss the complaint under the
doctrine of forum non conveniens because the
Agreement contains a forum selection clause that elects the
state court of "Cook County, Illinois" as the sole
venue for resolution of disputes arising out of the
Agreement. (Mem. P. & A. Supp. Def.'s Mot. Dismiss
["Def.'s Mot"] at 3-6, ECF No. 7-1; Def.'s
Mot. Ex A ["Purchase Order"], ECF No.
7-2). To assess the merits of Forklift's
argument, the court must first determine what contract
governs the parties' relationship, and whether that
contract contains a forum selection clause.
attached a Purchase Order to its motion, which it argues
constitutes the agreement between the parties. (Purchase
Order). And Forklift argues that "Terms and Conditions
of Sale," which are available on Forklift's website
and include a forum selection clause for Cook County,
Illinois, are incorporated into the Purchase Order.
(Def.'s Mot. at 4). But Element disputes both the
authenticity and the relevance of the Purchase Order.
Specifically, Element argues that the Purchase Order is not
the Agreement between the parties that forms the basis for
this suit. Instead, the Purchase Order is two separate
documents that Forklift has strung together that are
"unauthenticated, undated and unexecuted" and
"make absolutely no sense in the context of this
case." (PL's Resp. Opp'n Def.'s Mot
["PL's Resp."] at 3-4, ECF No. 8). Element
argues that the Agreement between the parties was a
consignment agreement-Element retained legal title over the
two lifts until Forklift found a buyer and purchased the
lifts from Element. Element contends, therefore, that the
Purchase Order, which presupposes that Forklift is the seller
rather than the buyer of the lifts, does not reflect the
consignment arrangement. Because this dispute arises at the
motion to dismiss stage, and Element disputes the
authenticity of the Purchase Order, the court will' not
consider it in resolving Forklift's motion. See
American Chiropractic, 367 F.3d at 234; see also
Kerr v. Marshall University Board of Governors, 824 F.3d
62, 68 n.l (4th Cir. 2016) (citing American
Chiropractic, 367 F.3d at 234)).
also attaches an email exchange to its motion, which it
argues indicates Element's "assent in writing"
to the terms and conditions of Forklift's Purchase Order.
(Def.'s Reply Ex A ["Flaska Aff."] at 2, ECF
No. 9-1; Def.'s Mot. Ex B ["Email Exchange"],
ECF No. 7-3). In this email exchange, an Element
representative writes that Element would accept $225, 000.00
for the two lifts-$150, 000.00 for the PI 100 Model Lift and
$75, 000.00 for the P500 Model Lift. (Email Exchange at 1).
This conflicts with the allegation in Element's complaint
that Forklift agreed to pay 3275, 000.00 for the two lifts.
(Compl. ¶ 11). Element asks the court to strike the
emails as impermissible settlement discussions under Federal
Rule of Evidence 408. (PI. 's Resp. at 5). Upon review,
it is not clear whether the emails contain settlement
discussions, or instead contain price discussions as
contemplated under the parties' Agreement.
to resolve Forklift's motion, the court need only decide
whether Element's complaint states plausible claims for
relief. Whether the emails evidence settlement discussions or
price negotiations, they do not alter Element's
underlying allegation that a contractual obligation existed,
and that Forklift breached that obligation. At most, the
emails would inform the court's assessment of damages if
Element establishes its claim of breach of contract.
Accordingly, the court's analysis focuses on
Element's complaint and the Agreement that Element
attached to its responsive briefing, (Pl.'s Resp. Ex 1
["Agreement"], ECF No. 8-1), which forms the legal
basis for Element's pleadings. New Beckley Min. Corp.
v. Int'l Union, United Mine Workers,18 F.3d 1161,
1164 (4th Cir. 1994) (concluding that, in resolving a motion
to dismiss, a court may consider documents referred to and
relied, upon in the complaint, even if ...