United States District Court, E.D. Virginia, Norfolk Division
CLIFFORD A. BROWN, III, Plaintiff,
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.
REBECCA BEACH SMITH, CHIEF JUDGE
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.
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.
Motion to Dismiss
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).
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
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).
Review of Magistrate Judge's R&R
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).
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 ...