The opinion of the court was delivered by: Edwin M. Kosik United States District Judge
This is before us on the Motion of the defense to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(without more specificity).
Plaintiff WJM Industries, Inc. commenced this action against the defendant based on a contract designated "Megaphase, L.L.C. Consultant Agreement", attached to the Complaint. The opening paragraph provides "William J. Major, Jr. (consultant) of WJM Interests, Inc. and MegaPhase LLC" desired to enter into an agreement for the performance of professional consulting services. The subsequent paragraphs outline the duties of the "Consultant." The agreement on behalf of the defendant is signed by its President and CEO. On behalf of the "Consultant", the agreement is signed by William J. Major, President and CEO. An attachment is signed by the President of MegaPhase and William J. Major, Jr. for WJM Interests, Inc./Consultant.
The Complaint, which was removed to the federal court, identifies the plaintiff as WJM Interests, Inc., and represents that the parties entered into the aforesaid agreement. The unsworn verification is signed by Major as President, WJM Interests, Inc. The attachment, under the heading "Description of Tasks" describes the manner in which "WJM Interests, Inc. shall support MegaPhase".
Discussion and Conclusion
The basis for the motion to dismiss is that (1) it is unclear and ambiguous whether the plaintiff, WJM Interests, Inc. is the correct party in interest and (2) the plaintiff has failed to plead a prima facie case for breach of contract.*fn1 The defense claims there is an inconsistency between the plaintiffs' signatures to the agreement and the attachment which makes it difficult to discern the proper party plaintiff or the real party in interest in this action.
Although the appelation "consultant" is an unnecessary aberrant to this agreement, and may provide some basis for confusion, if taken as a whole the agreement and attachment make it clear this was a corporate agreement. The agreement portion signed by Major as President and CEO alludes to the attachment for "Term" of the agreement, and for a description of the tasks to be performed by WJM Interests, Inc.
If there is hesitation as to the real party in interest, the latter can be easily discerned in discovery without the necessity of dismissing the complaint and requiring plaintiff to proceed anew. This should dispel any concerns about future litigation and the application of res adjudication.
The motion to dismiss is denied, and the defense is given thirty days from the date of this memorandum to file an answer.