Opinion
Case No. 5:00 CV 819.
July 24, 2000.
MEMORANDUM OF OPINION AND ORDER
Before the court is the motion to Dismiss, or in the Alternative, for Summary Judgment filed by defendant William J. Henderson, Postmaster General of the United States, on June 16, 2000 ("motion") (Doc. No. 4). The bases for the motion are: (1) plaintiff Lynnea St. John failed to exhaust her administrative remedies, and (2) the complaint, filed on March 28, 2000, was untimely.
Five weeks have elapsed since the motion was filed and St. John has neither filed a response memorandum nor requested an extension to file one. Hence, the motion to Dismiss is GRANTED as unopposed. Furthermore, having reviewed the record, the court finds that the defendant's position, i.e., that the complaint is untimely and that St. John has failed to exhaust her administrative remedies, has merit.
Accordingly, the motion to Dismiss, or in the Alternative, for Summary Judgment ( Doc. No. 4) is GRANTED.
IT IS SO ORDERED.
JUDGMENT ENTRY
For the reasons stated in the Memorandum of Opinion and Order filed contemporaneously with this Judgment Entry, and pursuant to Federal Rule of Civil Procedure 58, it is hereby ORDERED, ADJUDGED AND DECREED that the above-captioned case is hereby terminated and dismissed as final.
THOMAS v. PUBLISHERS CLEARINGHOUSE, (N.D.Ohio 2000)
DAN THOMAS, Plaintiff, v. PUBLISHERS CLEARINGHOUSE, et al., Defendants. Case No. 5:00 CV 1130. United States District court, N.D. Ohio, Eastern Division. July 24, 2000.
MEMORANDUM OF OPINION AND ORDER
DAN AARON POLSTER, United States District JUDGE
Before the court is the Defendants' motion to Dismiss Complaint ("motion") (Doc. No. 4). For the following reasons, the motion is GRANTED.
I.
According to plaintiff Dan Thomas, beginning in the fall of 1997, defendant Publishers Clearinghouse ("PCH") began sending him letters encouraging him to purchase magazine subscriptions "and in exchange, she could qualify to receive a 3.5 Milhon Dollar ($3,500,000) prize." Complaint ¶ 10. She spent over $700 in magazine subscriptions "based upon the promise and commitment of PCH." Id. ¶ 2. She thereafter received several communications informing him that she had won the $3.5 million prize, including a direct phone call advising him to have a party, at PCH's expense, when the check arrived. Id. ¶ 14. PCH then followed up with a letter from Treasurer Dan Doyle, attached to the complaint, informing him that she was a winner of the $3.5 million prize. Complaint ¶ 15; Exh. I. Although the letter clearly had "DRAFT" written over both pages, Thomas claims that she "relied on this communication and according to said communication, was to receive his money within two weeks." Id. ¶ 18. Thomas never received the prize money.Based on these allegations, Thomas filed the instant two-count complaint under diversity jurisdiction on May 3, 2000, alleging breach of contract and fraudulent breach of contract. The fraud claim merely states: "the breach of defendants was intentional, fraudulent, and in bad faith." Complaint ¶ 32. Thomas demands $20 million in damages plus attorneys fees and costs. Defendants filed the pending motion on June 29, 2000, contending that (1) Thomas failed to state a claim, (2) Thomas failed to plead fraud with particularity, (3) the court lacks personal jurisdiction over defendant Dan Doyle, and (4) there is insufficient service as to Doyle.
II.
In determining whether a complaint states a claim under Fed.R.Civ.P. 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff, and accept as true all factual allegations contained in the pleading. Weiner v. Klais Co., 108 F.3d 86, 88 (6th Cir. 1997). However, the court need not accept the plaintiff's legal conclusions or draw unwarranted factual inferences. See Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405-406 (6th Cir. 1998). Dismissal is proper only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998).
Fed.R.Civ.P. 10(c) provides that "[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
Rule 10(c) is permissive, and a plaintiff is under no obligation to attach to his complaint documents upon which his action is based. . . . However, a defendant may introduce certain pertiment documents if the plaintiff fails to do so. . . . Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document upon which it relied. . . . Hence. . ."[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the] claim."Weiner, 108 F.3d at 89 (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993).
In order to establish a breach of contract claim, Thomas must first establish that there was a contract between the parties. Thomas alleges that PCH personnel informed him over the telephone that she won a $3.5 million prize, and then followed up with a letter confirming the same. Thomas argues:
Plaintiff received a letter, signed by Defendant Doyle on behalf of PCH, dated April 15, 1998, stating "You are the winner of the $3,500,000.00 SuperPrize in our Giveaway No. 525 because you returned SuperPrize Number 8574 6672 1718 by April 13, 1998, and it matched the winning number." This created a valid contract between the Plaintiff and the Defendants.Plaintiff's Response to Defendants "motion to Dismiss, at 5. However, the referenced letter, attached to the complaint, does not evidence a contract to pay Thomas $3.5 million at all. The word "DRAFT" is superimposed over both pages. Moreover, Thomas admitted to the court in an identical, earlier-filed action (Case No. 5:99 CV 1185), that she has no other written documents evidencing the alleged contract. The court concludes that this letter, which is Thomas' only written evidence of an alleged contract to pay him $3.5 million, is plainly insufficient to establish a contract between the parties.
In addition, PCH attached to its motion an authentic copy of the rest of the mailing sent to Thomas that was not attached to the complaint. Motion, Exh. B. Documents attached to a Rule 12(b)(6) motion to dismiss that are referred to in the complaint and central to the claim may be considered part of the pleadings for purposes of assessing the motion. See supra, at 2-3; Venture Assocs. Corp., 987 F.2d at 431. "Contracts must be construed as a whole: if reasonably possible, all parts and every word should be considered; no part should be eliminated or stricken by another part unless absolutely necessary." Workmon v. Publishers Clearing House, 118 F.3d 457, 459 (6th Cir. 1997). Because this document is referenced in the complaint and central to Thomas' contract claim, it must be considered along with the letter attached to the complaint in determining whether Thomas can state a claim.
Thomas did not dispute the authenticity of this exhibit in his response memorandum.
The prefatory page to the letter begins, "Here's a draft of the letter I'll write should you win our SuperPrize. . ." Motion, Exh. B. at 1 (emphasis added). The Official Rules, also attached, statein bold letters, "Our Prize Patrol will notify winners of prizes of $10,000.00 or more in person." Id. at 2 (emphasis added). Further, "[w]e'll contact winners of prizes under $10,000 by mail." Id. (emphasis added). Thomas apparently chose to ignore this conditional language, the words "DRAFT" superimposed over both pages of the letter, and the Official Rules in order to determine that the mailing constituted a contract. See also Workmon, 118 F.3d at 459. Rather than establishing a contract, the mailing only shows that there was not a contract between the parties.
The allegation that someone called Thomas and told him to have a party when the check arrived, if true, does not create a contract either. At most, Thomas might have a claim for detrimental reliance for the refreshments she bought. However, this court would have no subject matter jurisdiction over such a claim because diversity jurisdiction, under which this case was filed, requires that the amount in controversy be at least $75,000. See 28 U.S.C § 1332.
Because Thomas cannot state a claim for breach of contract, she cannot state a claim for a fraudulent breach of contract. Notwithstanding, a claim for fraudulent breach of contract does not arise merely because a plaintiff alleges that the breach was "intentional, fraudulent, and in bad faith." Complaint ¶ 32. The fraud must be stated with particularity, and must arise from a duty independent of the contractual duty. Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 151 (1996). Plaintiff has failed to allege either.
III.
For all these reasons, Defendants' motion to Dismiss Complaint (Doc. No. 4) is hereby GRANTED.
IT IS SO ORDERED.