Opinion
Civil Action No. 02-2017-CM
March 26, 2003
MEMORANDUM AND ORDER
Pending is defendant Broadwing Telecommunications, Inc.'s Motion to Dismiss (Doc. 6). As set forth below, defendant's motion is denied.
• Background
The court's jurisdiction is proper under 28 U.S.C. § 1332, because the parties have complete diversity and the amount in controversy is greater than $75,000. Plaintiff asserts causes of action stemming from defendant's alleged breach of a Royalty Agreement (hereinafter "the Agreement") between the parties. Defendant contends that all of plaintiff's claims must be dismissed because plaintiff failed to seek mediation of this dispute prior to bringing this lawsuit, violating a condition precedent set forth in the Agreement.
Paragraph 11 of the Agreement provides:
The parties agrees [sic] that if any controversy, dispute and/or questions of interpretation of this Agreement shall arise which cannot be amicably resolved by the parties, then prior to either party filing a suit or other adversary action in any court, the parties shall submit to non-binding mediation in Austin, Texas in a good faith effort to resolve any such disputes. Only after the parties have fully participated in the mediation may either party institute a suit or other adversary action against the other party hereto."
Plaintiff refutes defendant's allegation, stating that plaintiff requested pre-suit mediation in a November 7, 2001 letter (hereinafter "the November 7 letter") to which defendant never responded. Defendant states in its reply that the November 7 letter did not constitute a request for pre-suit mediation under the Agreement, because plaintiff did not mail the letter to the proper address. Specifically, defendant points out that plaintiff mailed the letter to defendant's principal place of business in Austin, Texas, as listed in the preamble of the Agreement, rather than to defendant's address set forth in Paragraph 17 of the Agreement. Paragraph 17 provides, in relevant part, that:
Any notices sent pursuant to this Agreement will be addressed as follows:
If to Company: Broadwing Telecommunications, Inc. Affinity Division 5799 Broadmoor, Suite 200 Mission, Kansas 66202 800-342-9287 Attention: Tracy Moore
Defendant also states that, after a diligent search of its office in Austin, Texas, it was unable to locate the November 7 letter.
II. Legal Standard
Initially, the court notes that it must convert a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment if "matters outside the pleading are presented to and not excluded by the court" and "all parties . . . [are] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(c). The court has examined the Agreement. Upon doing so, however, the court is not required to convert the motion into one for summary judgment under Rule 56. "If a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). The Agreement submitted by plaintiff is covered by this rule, because it is central to plaintiff's claim and neither party disputes its authenticity. Consequently, the court applies Rule 12(b)(6)'s standard to defendant's motion.
The court will dismiss a case for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
Further, the court must determine whether to give effect to the parties' choice of law clause set forth in Paragraph 17 of the Agreement. A district court exercising diversity jurisdiction applies the choice of law rules of the state in which it is sitting. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Kansas choice of law rules honor an effective choice of law made by contracting parties. Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1360 (10th Cir. 1990). Consequently, the court interprets the Agreement under the laws of the state of Texas.
• Analysis
Plaintiff contends that it substantially complied with the Agreement by mailing the November 7 letter to defendant's principal place of business. Under Texas law, a party may substantially comply with its obligation to notify another party under a contract when the party submits the notice to a corporate address different from that listed in the notice section. Ray v. Metro. Life Ins. Co., 858 F. Supp. 626, 628 (S.D.Tex. 1994). "An address that is correct in all respects, except that it is not the address in the notice section of the contract, can fully perform the function of the specified address, absent the special circumstance that a particular, separate address for distinct purposes is brought to the attention of the contracting party." Id; accord Burlington N. R.R. Co. v. Gen. Projection Sys., Inc., No. 05-97-00425-CV, 2000 WL 1100874, at *5 (Tex.App. 2000); Tex. Utilities Elec. Co. v. Aetna Cas. Surety Co., 786 S.W.2d 792 (Tex.App. 1990).
Defendant states plaintiff has not shown that defendant ever received the notice and argues that, on that basis, the above cases finding substantial compliance are inapplicable. However, the court finds that defendant has not met its burden to demonstrate that plaintiff can prove no set of facts indicating that plaintiff substantially complied with the pre-suit mediation provision of the contract. Additional information supporting plaintiff's claim could be adduced during the discovery process.
Accordingly, the court denies defendant's motion to dismiss.
IV. Order
IT IS THEREFORE ORDERED THAT defendant's motion to dismiss (Doc. 6) is denied.