United States District Court, E.D. Pennsylvania
OPINION DEFENDANTS' MOTION TO
DISMISS, ECF NO. 14 - GRANTED IN PART
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
ProTerra Solutions, LLC, Stanley Gibson, Deborah Gibson, and
Mark Lafon move to dismiss Plaintiff Agri-Marketing's
Second Amended Complaint in its entirety for improper venue
and, in the alternative, move to dismiss Counts III, IV, and
V of the Second Amended Complaint for failure to state a
claim. For the reasons set forth below, the Court denies
Defendants' motion to dismiss for improper venue, but
grants its motion to dismiss Counts III, IV, and V.
Second Amended Complaint alleges the following facts.
Agri-Marketing is a Pennsylvania corporation dedicated to
converting drywall to beneficial uses. Second Am. Compl.
¶¶ 5, 13, ECF No. 13. Defendant ProTerra Solutions
is a Florida limited liability company that advertised and
promoted itself as having the requisite resources to design,
furnish, and install integrated processing solutions for
recyclers. Id. ¶¶ 6, 16. Defendants
Stanley Gibson, Deborah Gibson, and Mark Lafon are
members/managers of Proterra. Id. ¶¶
December 2013, Agri-Marketing began discussions with ProTerra
to engage the latter in designing, manufacturing, delivering,
and installing an integrated processing solution to recycle
drywall materials (i.e., a “recycling system”).
Id. ¶ 17. ProTerra, by its agents and employees
Mr. Gibson and Mr. Lafon, represented to Agri-Marketing that
it had expertise in designing and fabricating equipment for
solutions in the environmental processing industries, and
specifically that it possessed the skill, staff, and
expertise necessary to design, manufacture, deliver, and
install a recycling system. Id. ¶ 19. In May
2014, Agri-Marketing signed an Agreement with ProTerra,
memorializing its acceptance of the latter's offer to
design, furnish, and install an integrated processing
solution (“the Recycling System”) for recovered
wallboard material at Agri-Marketing's facility in
Denver, Pennsylvania, in consideration of $886, 000. See
Id. ¶¶ 22-25. The Agreement includes a project
overview, an extensive list of items to be provided by
ProTerra, and payment terms, among other items. See
Id. ¶¶ 28-36.
January to April 2015, ProTerra performed work related to the
Recycling System, during which time Mr. Gibson frequently
visited the jobsite and Mr. Lafon directed numerous emails
and phone calls to Agri-Marketing in Pennsylvania and visited
the jobsite on one occasion. Id. ¶¶ 43-52.
In April 2015, ProTerra demanded a $100, 000 payment from
Agri-Marketing, purportedly in order to pay vendors for work
on the Recycling System. Id. ¶¶ 54-57.
Agri-Marketing provided the payment but alleges, upon
information and belief, that ProTerra did not use these funds
to pay vendors or for any purpose related to the Recycling
System. Id. ¶¶ 57-58.
about April 3, 2015, ProTerra assured Agri-Marketing that the
project would be complete on April 20, 2015, and that
ProTerra's crew would stay until its completion.
Id. ¶ 59. After ProTerra failed to complete the
project by that date, Mr. Gibson visited the jobsite on May
20, 2015, and promised to return around May 26, 2015.
Id. ¶¶ 65-67. Mr. Gibson never returned
and the project remains incomplete. Id. ¶ 68.
date, Agri-Marketing has paid to ProTerra $817, 000 for the
incomplete Recycling System. Id. ¶ 70.
Agri-Marketing has experienced a number of failures with the
Recycling System due to deficiencies in ProTerra's work
and has communicated these failures to ProTerra, but has not
received any response. Id. ¶¶ 71-102.
the filing of the Agri-Marketing's initial Complaint in
this matter, Ms. Gibson signed Articles of Dissolution for
ProTerra, which were filed with the Florida Secretary of
State in March 2017, stating that that the “occurrence
that resulted in the limited liability company's
dissolution” is “THIS COMPANY HAS BEEN INACTIVE
FOR OVER A YEAR AND A HALF.” Id. ¶ 109.
Agri-Marketing alleges that “[b]ased upon
Defendant's communications and interactions with
[Agri-Marketing] . . . it is believed that Defendants are
intentionally seeking to dissolve business entities, shift
assets, and otherwise evade their obligations to, and
judgments entered in favor of, [Agri-Marketing] as against
[ProTerra].” Id. ¶ 110. Further,
“[a]s a result of the dissolution of [ProTerra],
Defendants have extended their fraudulent conduct to the
improper dissolution, winding up, and shifting of assets from
[ProTerra] . . . and are continuing to perpetuate a fraud
against [Agri-Marketing] in persisting in this course of
conduct.” Id. ¶ 112.
on these allegations, in Counts I and II of the Second
Amended Complaint, Agri-Marketing asserts claims of breach of
contract and breach of warranty against ProTerra only. In
Counts III and IV, it asserts claims of fraud and fraudulent
transfer against all Defendants, namely, ProTerra, Mr.
Gibson, Ms. Gibson, and Mr. Lafon. Finally, in Count V,
Agri-Marketing asserts an unjust enrichment claim against the
individual Defendants only.
filed its initial Complaint in this matter in February 2017.
ECF No. 1. After Defendants filed a motion to dismiss,
Agri-Marketing filed an Amended Complaint. ECF No. 7.
Defendants again filed a motion to dismiss and Agri-Marketing
moved to file a Second Amended Complaint. See ECF
Nos. 9, 11. The Court granted the motion, permitting
Agri-Marketing to file its Second Amended Complaint, but
ordered that no further amendments would be permitted, absent
good cause. ECF No. 12. Defendants now move to dismiss the
Second Amended Complaint in its entirety due to improper
venue. In the alternative, they move to dismiss the claims
asserted in Counts III through V for failure to state a claim
and (with respect to certain claims and Defendants) lack of
Standards of Review
Rule 12(b)(1) Motion to Dismiss - Lack of Personal
survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff bears the burden of establishing
the court's jurisdiction over the moving
defendants.” Miller Yacht Sales, Inc. v.
Smith, 384 F.3d 93, 97 (3d Cir. 2004) (citation
omitted). If the court does not hold an evidentiary hearing,
“the plaintiff need only establish a prima facie case
of personal jurisdiction and the plaintiff is entitled to
have its allegations taken as true and all factual disputes
drawn in its favor.” Id. (citation omitted).
Rule 12(b)(6) Motion to Dismiss - Failure to State a
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)). In rendering a decision on a motion to dismiss, this
Court must “accept all factual allegations as true,
construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to
relief.” See Phillips v. Cnty. of Allegheny,
515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002))
(internal quotation marks omitted).
Venue is not improper in this Court.
initially move to dismiss the Second Amended Complaint in its
entirety for improper venue, pursuant to paragraph 13 of the
Terms and Conditions of Sale provided on the final page of
the Agreement between Agri-Marketing and ProTerra. That
paragraph is titled “General” and provides in
pertinent part as follows:
In the event Company places this agreement in the hands of an
attorney for collection of the purchase price or other sums
owing to Company from Purchaser, Purchaser agrees to pay
Company's reasonable costs and expenses of collection,
including attorney's fees, whether or not any suit or
action is filed and any additional costs, expenses and
attorneys' fees incurred at trial or on appeal. Purchaser
consents to personal jurisdiction in Florida and venue in
Hillsborough County Circuit Court. Statements about the
product(s) may have been made to Purchaser by representatives
of Company. Such statements do not constitute warranties and
shall not be relied on by Purchaser and are not part of this
agreement. The entire agreement is embodied in this writing.
THIS WRITING CONSTITUTES THE FINAL EXPRESSION OF THE PARTIES
AGREEMENT AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE
TERMS OF THE AGREEMENT.
Am. Compl. Ex. B, ECF Nos. 7-2 and 7-3.
particular, Defendants rely on the second sentence quoted
above, which provides that “Purchaser [Agri-Marketing]
consents to personal jurisdiction in Florida and venue in
Hillsborough County Circuit Court.” Defendants contend
that this is a “forum selection clause” that
renders venue improper anywhere other than the Hillsborough
County Circuit Court. Agri-Marketing responds that this
clause is limited by the preceding sentence, such that the
clause applies only to collection actions filed by the
Company (ProTerra) against the Purchaser (Agri-Marketing).
Defendants reply that the paragraph (which, they point out,
is titled “GENERAL”) does not merely contain
terms for ...