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Brown v. Bimbo Foods Bakeries Distribution, LLC

United States District Court, E.D. Virginia, Norfolk Division

November 18, 2016

CLIFFORD A. BROWN, III, Plaintiff,
v.
BIMBO FOODS BAKERIES DISTRIBUTION, LLC, f/k/a BIMBO FOODS BAKERIES DISTRIBUTION, INC., a/k/a BIMBO BAKERIES USA and BIMBO FOOD BAKERIES, SUCCESSOR IN INTEREST TO GEORGE WESTON BAKERIES DISTRIBUTION, INC., Defendants.

          MEMORANDUM ORDER

          REBECCA BEACH SMITH, CHIEF JUDGE

         This matter is before the court on the Defendant's Motion to Dismiss Count I of the Complaint for Failure to State a Claim ("Motion"), filed on August 23, 2016. ECF No. 15. On the same day, the Defendant also filed an accompanying Memorandum in Support. ECF No. 16. On September 9, 2016, the Plaintiff filed an Opposition to Defendant's Motion to Dismiss Count I of the Complaint. ECF No. 21. On September 12, 2016, the Defendant filed a Rebuttal to Plaintiff Clifford A. Brown, Ill's Opposition to Defendant's Motion to Dismiss Count I of the Complaint. ECF No. 24.

         On September 16, 2016, this court referred the Motion to United States Magistrate Judge Douglas E. Miller, pursuant to the provisions of 29 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct necessary hearings, and to submit to the undersigned district judge proposed findings of fact and recommendations of law for the disposition of the Motion. ECF No. 26. The Magistrate Judge filed a Report and Recommendation ("R&R") on October 4, 2016. ECF No. 29. The Magistrate Judge recommended denying the Defendant's Motion. Id. at 2. On October 18, 2016, the Defendant filed its Objections to Magistrate Judge's Report and Recommendation Denying Defendant's Motion to Dismiss. ECF No. 31.

         I. LEGAL STANDARDS

         A. Motion to Dismiss

         Pursuant to Rule 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss tests only the sufficiency of a complaint; it does not resolve contests regarding the facts of the case, the merits of a claim, or the applicability of any defense. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility means that a "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). It is, therefore, not enough for a plaintiff to allege facts demonstrating a "sheer possibility" or "mere[] consist[ency]" with unlawful conduct. Id. (citing Twombly, 550 U.S. at 557).

         The Supreme Court, in Twombly and Iqbal, offered guidance to courts evaluating a motion to dismiss:

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 679. That is, the court accepts facts alleged in the complaint as true and views those facts in the light most favorable to the plaintiff. See, e.g., Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005). After doing so, the court should not grant the defendant's Motion if the plaintiff "demonstrate[s] more than 'a sheer possibility'" that the defendant has violated his rights, by "articulat[ing] facts, when accepted as true, that 'show' that the plaintiff has stated a claim entitling him to relief." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 677-78).

         B. Review of Magistrate Judge's R&R

         Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the R&R to which the Plaintiff has specifically objected. Fed.R.Civ.P. 72(b). Objections must be "specific and particularized." United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007) . The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).

         II. ANALYSIS

         A. First Objection

         The Defendant first objects to the Magistrate Judge's conclusion that the Plaintiff's claim for specific performance should not be denied on the basis that it was framed as a separate count in the pleadings. Obj. at 5-6. However, the Defendant cites no case where a court applying Pennsylvania law has dismissed a claim for specific performance on the grounds that no such claim exists, because specific performance is a remedy, not a cause of action. See id. The Defendant argues that specific performance is "an equitable remedy for breach of contract, not a distinct cause of action." Id. However, the R&R is still correct to conclude that Pennsylvania "courts do not dismiss actions for specific performance simply because they have been pled as stand-alone claims." R&R at 10. Recently, a state court went so far as to sever a claim for specific performance from a claim for damages. Oliver v. Ball, 136 A.3d 162, 164 (Pa. Super. Ct. 2016). The claim for specific performance went to trial, while the claim for damages did not. Id. In another context, a state court acknowledged the existence of "an action for specific performance, " and outlined the elements of such a claim. Boyd & Mahoney v. Chevron U.S.A., 614 A.2d 1191, 1194 (Pa. Super. Ct. 1992). A party must show the existence of a valid agreement, that the agreement has been violated, and that there is not an adequate remedy at law. Id. In considering a claim for specific performance, a federal court applying Pennsylvania law considered a pleading that "alleges a claim for specific performance." TruePosition, Inc. v. LM Ericsson Telephone Co., 977 F.Supp.2d 462, 472 (E.D. Pa. 2013). Though the court ultimately found that the allegation "fails to state a claim for specific performance, " it did so only because it held that there was no agreement ...


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