Opinion
Civil Action No. 00-2510-KHV
April 11, 2001
MEMORANDUM AND ORDER
GRGE Inc. brings suit against Thomas Aircraft Sales, Inc.("Thomas Aircraft") for breach of contract for the sale of an airplane. Specifically, plaintiff claims that defendant breached its agreement to repair certain squawks or deficiencies, and to deliver the plane in an airworthy condition. See First Amended Complaint (Doc. #8) filed December 29, 2000. This matter comes before the Court on Defendant's Motion To Dismiss And For Attorney Fees (Doc. #4) filed December 11, 2000. For reasons stated below, defendant's motion is overruled.
Plaintiff alleges that CRW Corp. purchased the plane from Thomas Aircraft and assigned the plane to plaintiff. See First Amended Complaint (Doc. #8) ¶ 1, filed December 29, 2000.
Defendant first asserts that plaintiff has failed to allege jurisdiction. After defendant filed its motion, plaintiff filed its First Amended Complaint (Doc. #8), which alleges the requirements of diversity jurisdiction under 28 U.S.C. § 1332 (a)(2). Because defendant had not filed a responsive pleading, see Fed.R.Civ.P. 7(a); Glenn v. First Nat'l Bank in Grand Junction, 868 F.2d 368, 370 (10th Cir. 1989) (motion to dismiss not responsive pleading), plaintiff was entitled to amend its complaint once as a matter of course. See Fed.R.Civ.P. 15(a); Glenn, 868 F.2d at 370. Plaintiff has cured any deficiencies regarding allegations of subject matter jurisdiction, and defendant does not argue otherwise.
Defendant does not specify whether it challenges personal jurisdiction or subject matter jurisdiction. From the context of the motion and the complaint, it appears that defendant challenges subject matter jurisdiction.
Other than allegations regarding subject matter jurisdiction and venue, the Court discerns no material difference between the allegations of the original complaint and those of the amended complaint. In any event, the Court will consider the amended complaint in ruling on defendant's motion to dismiss.
It appears that defendant also challenges whether plaintiff has stated a claim on which relief may be granted under Rule 12(b)(6), Fed.R.Civ.P. In ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept as true all well pleaded facts in the complaint and view them in a light most favorable to plaintiff. Zinermon v. Burch, 494 U.S. 113, 118 (1990). The Court must make all reasonable inferences in favor of plaintiff, and liberally construe the pleadings. See Rule 8(a), Fed.R.Civ.P. 8(a); Lafoy v. HMO Colorado, 988 F.2d 97, 98 (10th Cir. 1993). The Court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that plaintiff can prove no set of facts in support of its theories of recovery that would entitle it to relief. See Jacobs, Visconsi Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991). Although plaintiff need not precisely state each element of its claims, plaintiff must plead minimal factual allegations on material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Defendant does not articulate the precise nature of the remainder of its motion.
Defendant argues that (1) plaintiff accepted the aircraft "as is"; (2) if the contract is ambiguous it should be interpreted against plaintiff because plaintiff drafted the agreement; and (3) a new contract came into existence when plaintiff signed an acceptance of the aircraft "as is." In making these arguments, defendant presents matters outside the pleadings. Specifically, defendant presents an affidavit by its president, Paul A. Thomas, which outlines how the contract was drafted and provides details concerning inspection of the aircraft and the closing of the transaction.
In deciding a motion to dismiss, the Court may not consider evidence outside the pleadings unless it converts the motion to a motion for summary judgment. See Prager v. LaFaver, 180 F.3d 1185, 1188-89 (10th Cir. 1999). The Court has broad discretion to convert a Rule 12(b)(6) motion into a motion for summary judgment in order to consider matters outside the pleadings. See id. The Court declines to do so, however, in this case. The parties have not asked the Court to convert the motion, and the Court has not notified the parties that it will apply a summary judgment standard. Moreover, defendant's motion does not contain the concise statement of material facts which is required by D. Kan. Rule 56.1. Therefore, in deciding the motion to dismiss, the Court will look no further than the pleadings.
Plaintiff asserts that the matter is not ripe for summary judgment because the parties have not conducted any discovery. The Court agrees.
Plaintiff alleges that under the airplane sales agreement, defendant agreed to (1) repair all squawks or service items which were identified on a list prepared in connection with the sale; (2) fix any squawks or deficiencies identified during the test flight which caused the aircraft to be less than airworthy or fail to meet manufacturer's specifications; and (3) deliver the plane in airworthy condition. See First Amended Complaint, ¶¶ 6-8. Plaintiff further alleges that defendant failed to repair all squawks or deficiencies identified on the list and in the test flight and that defendant failed to deliver the plane in airworthy condition. See id. ¶ 11. As a result, plaintiff contends that it has sustained damages including repair costs and lost revenues and profits. See id. ¶ 12. These allegations are sufficient to state a claim for breach of contract. See, e.g., 17B C.J.S. Contracts § 640 (1999) (to state breach of contract claim plaintiff must allege existence of valid and enforceable contract, that plaintiff had certain rights and defendant had certain obligations under contract, performance by plaintiff of any conditions required by it, violation or breach by defendant, and damages resulting to plaintiff from breach). Accordingly, the Court will overrule defendant's motion to dismiss.
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss And For Attorney Fees (Doc. #4) filed December 11, 2000 be and hereby is OVERRULED.