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Bengal Converting Services, Inc v. Dual Printing

March 12, 2012


The opinion of the court was delivered by: Gene E.K. Pratter, J.,



Plaintiff Bengal Converting Services, Inc. ("Bengal") brings this diversity action against Dual Printing, Inc. seeking damages, interest, and attorney's fees for breach of contract, fraud, conversion, and various other causes of action, stemming from Dual Printing's failure to pay moneys due for paper goods supplied by Bengal in violation of their purported agreement.

Dual Printing filed a motion to dismiss Counts II and III of Bengal's Complaint (Docket No. 7).*fn1 For the reasons set forth below, the Court will grant Dual Printing's Motion to Dismiss Counts II and III.


Bengal, a fabricator of paper rolls, alleges that Dual Printing owes it $222,968.88, interest, and attorney's fees for paper goods it supplied to Dual Printing. Bengal alleges it began selling its paper rolls to Dual Printing in July 2010. Compl. ¶ 7. On all sales between July 2010 and April 2011, Dual Printing made all payments for deliveries it accepted. Id. at 9.

On 16 dates between April 21, 2011 and August 3, 2011 Bengal asserts that it sold and shipped paper rolls to Dual Printing, and Dual Printing accepted and retained the goods. Id. at 10-12. Although Bengal had not received payment from Dual Printing on the deliveries made after April 21, 2011, Dual Printing allegedly promised to pay the balance due to Bengal on numerous occasions, and on the basis of these promises, Bengal continued to ship goods to Dual Printing pursuant to their agreement. Id. at 16-17. However, Bengal asserts that the overdue invoices were not paid as promised. Id. at 18.

Bengal contends that it included a sales invoice of the particular goods sold and delivered with each shipment of paper goods to Dual Printing. Id. at 8. Likewise, each sale it made to Dual Printing was subject to Bengal's Terms and Conditions of Sale (Exhibit A), which provides that the buyer -- in this case, Dual Printing -- agrees to pay Bengal for all goods supplied upon receipt of invoices, to pay Bengal a finance charge on all unpaid balances due under the contract in an amount equal to 1.5% per month (18% per year), and to pay all fees and expenses including attorney fees incurred by Bengal in the collection of any amounts due from Dual Printing. Id. at 8, 13-15.

On October 11, 2011, Bengal filed a six count Complaint (Doc. No. 1) against Dual Printing for breach of contract, fraud, conversion, unjust enrichment, action on book account, and action on account stated. In response, Dual Printing filed the present motion to dismiss.


A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Although Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (quoting Conley, 355 U.S. at 47), the plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citations omitted). The question is, briefly stated, has the claimant presented a "plausible" claim for relief? Specifically, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." Id. at 1965 (citations omitted). The question is not whether the claimant will ultimately prevail but whether the complaint is "sufficient to cross the federal court's threshold." Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011) (citations omitted); see also Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323 (2011). Nonetheless, to survive a motion to dismiss, a civil complaint must allege "factual content [that] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (confirming that Twombly applies to all civil cases).

The Court "must only consider those facts alleged in the complaint and accept all of those allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Twombly, 127 S. Ct. at 1965 (stating that courts must assume that "all the allegations in the complaint are true (even if doubtful in fact)"). Although the Court must accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party, Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989), the Court need not accept as true "unsupported conclusions and unwarranted inferences," Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citing City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998)), or the plaintiff's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d. 902, 906 (3d Cir. 1997).

"In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Fed. R. Civ. P. 9(b). Pleading "particularity" does not require the plaintiff to "plead the date, place or time of the fraud, so long as they use an alternative means of injecting precision and some measure of substantiation into their allegations of fraud." Rolo v. City Invest. Co. Liquidating Trust, 155 F.3d 644, 658 (3d Cir. 1998), abrogation on other grounds recognized, Forbes v. Eagleson, 228 F.3d 471 (3d Cir. 2000). While the purpose of Rule 9(b) is to provide notice of the precise misconduct, courts "should apply the rule with some flexibility and should not require plaintiffs to plead issues that may have been concealed by defendants." Id. The Third Circuit has cautioned against focusing exclusively on Rule 9(b)'s particularity language because such a focus is "too narrow an approach [that] fails to take account of the general simplicity ...

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