United States District Court, M.D. Pennsylvania
SIMPLY SNACKIN, INC. and JASON ISANBERG, Plaintiffs,
S-L DISTRIBUTORS and SNYDER'S-LANCE, Defendant.
H. RAMBO, UNITED STATES DISTRICT JUDGE.
diversity action, Plaintiff asserts claims for breach of
contract, tortious interference with contractual relations,
and civil conspiracy. Presently before the court is
Defendants' motion to dismiss the amended complaint for
failure to state a claim. (Doc. 52.) For the reasons set
forth below, the court will grant Defendants' motion in
part and deny it in part.
purposes of disposition of the instant motion to dismiss, the
court has carefully reviewed the amended complaint and will,
as required when deciding a motion to dismiss, accept as true
all well-pleaded factual allegations and view them in the
light most favorable to Plaintiff.
about February 22, 2015, Plaintiff, Simply Snackin,
(“Simply Snackin”), a New York corporation,
entered into a Distributor Agreement (the
“Agreement”) with S-L Distribution Company, Inc.
(“S-L”), a corporation with offices located in
both New York and Pennsylvania. (Doc. 49, ¶¶ 3, 6,
10.) Under the Agreement, Simply Snackin was granted: a) the
exclusive right to sell Snyder's of Hanover or Lance
chips and other snack products (collectively,
“Products”) to specified supermarkets and retail
outlets in Westchester County, New York (the
“Territory”), and b) the non-exclusive right to
sell Products to other current or potential customers in the
Territory. (Id. at ¶ 10; Doc. 52-3, Arts. 3(A),
3(B).) Three of the stores in Simply Snackin's Territory
were owned and operated by Stop & Shop, specifically Stop
& Shop supermarkets designated as 501, 502, and 591.
(Doc. 49, ¶ 11.) Under the Agreement, Plaintiff was
required to periodically visit the stores in its distribution
route, restock Products as needed, and credit the stores for
any expired or damaged inventory either not stocked or
removed from the shelves. (Id. at ¶ 10; Doc.
52-3 at Arts. 5(A), 5(C).)
event that Simply Snackin breached the Agreement by failing
to service customers within the Territory, the Agreement
If Distributor fails to maintain satisfactory services or
fails to meet the requirements of its customers within the
Territory, to any segment or part of the Territory, to any
Authorized Outlet or to any other store or retail outlet
within the Territory, and such failure is not remedied within
five (5) days after receipt of written notice thereof from
S-L, in addition to any other lawful remedies S-L may have
under this Agreement or otherwise, S-L may deem the
Territory, the segment or part, the Authorized Outlet or the
other store or retail outlet within the Territory to be
abandoned and may make other arrangements for the sale of
(Doc. 52-3 at Art. 13A.)
15(B)(2) of the Agreement also provides:
In the event of any other breach of this Agreement or the
terms hereof by Distributor, S-L shall provide Distributor
with five (5) business days written notice of the breach
within which time Distributor must cure the breach to
S-L's reasonable satisfaction. If Distributor fails to
cure such breach within said five (5) day period, this
Agreement and Distributor's rights with respect to the
Territory may be immediately terminated by S-L without
(Id. at Art. 15(B)(2)).
duly performed its obligations for almost a year without
incident or complaint. (Doc. 49, ¶ 12.) On or about
February 20, 2016, Jason Isanberg (“Isanberg”),
the president and sole owner of Simply Snackin, was servicing
Stop & Shop store 501. (Id. at ¶ 15.) While
Isanberg was still in the store, a complaint was made that
uncredited Products were discovered among cardboard boxes
bound for destruction. (Id. at ¶ 17.) The
grocery manager, after consulting the store manager, told
Isanberg “not to worry about it.” (Id.
at ¶ 18.) Plaintiff left the Product in question, which
was allegedly in saleable condition, and left the store.
(Id.) The complainant also reported the incident,
along with prior similar incidents, to Stop & Shop's
security arm. (Id.) Stop & Shop subsequently
communicated this to Snyder's-Lance
(“Snyder's”) and barred Plaintiff from
servicing the store. (Id. at ¶ 20.)
February 23, 2016, Simply Snackin was
“admonished” and barred from servicing store 501.
(Id. at ¶¶ 19, 20.) This was communicated
to Simply Snackin via email by John Walsh
(“Walsh”), allegedly the zone manager of
Snyder's for Westchester County and other areas in New
York state. (Id. at ¶¶ 14, 20.) Subsequent
calls and emails from Simply Snackin to Walsh were
unreturned. (Id. at ¶ 20.) Ultimately, Simply
Snackin was “summarily barred” in writing by
Walsh and one Andy Semenza from store 501 and the two other
Stop & Shop stores. (Id.) Simply Snackin
nevertheless continued to service its distribution route and
contacted Stop & Shop store management, who did not
object to Simply Snackin continuing to service its stores.
February 29, 2016, Simply Snackin was barred from the
warehouse and not permitted to buy any Products.
(Id.) Additionally, Simply Snackin's handheld
computer was deactivated on the same day. (Id.)
Plaintiff alleges that Defendants did not provide any
assistance in resolving the situation with Stop & Shop
despite its obligation to do so under Article 21 of the
Agreement. (Id. at ¶ 26.) Article 21 states:
Distributor shall receive, and promptly investigate and
handle, all complaints received from its customers or
prospective customers and in so doing shall seek to protect
the goodwill of the Products. All complaints received by
Distributor which cannot be readily remedied by Distributor
shall be promptly reported in writing, to S-L and thereafter
S-L and Distributor will seek to work jointly together to
reasonably remedy any such complaint. In the event that
Distributor is unable to receive such complaints, or in the
event that Distributor's customers contact S-L directly
regarding complaints, then S-L will communicate said
complaint to Distributor, so that Distributor may address the
complaint as promptly as possible.
(Doc. 52-3 at Art. 21).