United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS AMENDED COUNTER-COMPLAINT
AND ALLOWING LEAVE TO AMEND CERTAIN CLAIMS.
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT is the  Motion to Dismiss filed by Plaintiff
Winn-Dixie Montgomery Leasing, LLC, regarding the 
Amended Counter-Complaint filed by Defendant First Real
Estate, Inc. The Court has considered the parties'
submissions and the relevant law, and is of the opinion that
the Motion should be granted in part and denied in part. The
Court will grant the Motion with respect to First Real
Estate's claims for breach of contract and abuse of
process, but will allow First Real Estate leave to amend its
Counterclaim with respect to those claims. The Court will
otherwise deny the Motion. The Court will also deny each
party's request for an award of fees, expenses, and
action arises out of a lease agreement between a landlord,
First Real Estate, and its commercial tenant, Winn-Dixie. The
parties agree that they are successors-in-interest to the
original parties to the Lease at issue. In its  Amended
Complaint, Winn-Dixie claims that First Real Estate defaulted
on the Lease "by failing to make certain repairs to the
Premises." (See Am. Compl. 2 (¶3), ECF No. 10). As
a result, Winn-Dixie is suing First Real Estate for a
declaratory judgment, specific performance, breach of
contract, and breach of the covenant of good faith and fair
Real Estate contends that it has repaired and maintained the
Premises "in good condition ... in compliance with the
Lease . . . ." (Counterclaim 17-18 (¶8), ECF No.
12). In its Counterclaim, it, too, seeks a declaratory
judgment. It further alleges that Winn-Dixie is liable to it
for breach of contract, breach of the duty of good faith and
fair dealing, and abuse of process under Mississippi state
law, and seeks injunctive relief.
has moved to dismiss the Counterclaim in its entirety for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). First Real Estate has opposed the Motion,
Winn-Dixie has replied. Both parties have requested that the
Court tax fees, expenses, and costs, against the other party.
ruling on a 12(b)(6) motion, the Court accepts "as true
the well-pleaded factual allegations in the complaint and
construe[s] the complaint in the light most favorable to the
plaintiff." Hermann Holdings Ltd. v. Lucent Techs.
Inc., 302 F.3d 552, 557 (5th Cir. 2002). To survive
dismissal under Rule 12(b)(6), "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) (citation and
quotation marks omitted). "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Id. "While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations." Id. at 679.
Breach of Contract
claim requires that First Real Estate show "(1) the
existence of a valid and binding contract; (2) breach of the
contract by the defendant; and (3) money damages suffered
by" it. See Guinn v. Wilkerson, 963 So.2d 555,
558 (Miss. Ct. App. 2006). Winn-Dixie argues that the
Counterclaim fails on the second element because First Real
Estate does not "state that Winn-Dixie breached any of
its obligations under the Lease . . . ." (See Winn-Dixie
Mem. 8, ECF No. 16). The Court has reviewed the Counterclaim
and reaches the same conclusion. See, e.g., McCann v.
Wal-Mart Stores, Inc., No. 2:11-CV-12, 2012 WL 777306,
at *4 (N.D. Miss. Mar. 7, 2012) ("A party cannot make a
valid claim for breach of contract without alleging what the
actual breach is.").
Real Estate argues that the "Breach of Contract"
heading makes clear that it is suing for breach of contract.
But, regardless of the heading, First Real Estate was still
required to plead facts from which the Court could reasonable
infer that Winn-Dixie is liable for a breach of contract.
First Real Estate did not do so. See Ashcroft, 556
U.S. at 678-79; see also Bosarge v. Miss. Bureau of
Narcotics, 796 F.3d 435, 439 (5th Cir. 2015).
apparent attempt to cure these pleading deficiencies, First
Real Estate has submitted an affidavit to supplement its
breach of contract allegations. However, "it would be
improper for the Court to consider an affidavit attached to a
response to a motion to dismiss." See MGT Gaming,
Inc. v. WMS Gaming, Inc., 978 F.Supp.2d 647, 657 n.6
(S.D.Miss. 2013). Likewise, the Court has not considered
counsel's allegations in First Real Estate's
Opposition Memorandum that were not actually
pled. Nevertheless, mindful that leave to amend
"is to be freely given[, ]" Fed.R.Civ.P. 15(a), the
Court will allow First Real Estate the opportunity to amend
its Counterclaim to state a breach of contract claim.
Breach of the Duty of Good Faith and Fair Dealing and
Mississippi law, every contract carries with it an implied
covenant of good faith and fair dealing in their performance,
which covenant holds that neither party will do anything
which injures the right of the other to receive the benefits
of the agreement." Austin Firefighters Relief &
Ret. Fund v. Brown,760 F.Supp.2d 662, 676 (S.D.Miss.
2010) (citation and quotation marks omitted). "The duty
of good faith and fair dealing 'arises from the existence
of a contract between parties."' Id.
(citation omitted). "Thus, it is said that generally, as
a matter of law, when a party acts in accordance with the
express terms of a ...