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Winn-Dixie Montgomery Leasing, LLC v. First Real Estate, Inc.

United States District Court, S.D. Mississippi, Southern Division

June 5, 2017




         BEFORE THE COURT is the [15] Motion to Dismiss filed by Plaintiff Winn-Dixie Montgomery Leasing, LLC, regarding the [12] 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 costs.


         This 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 [10] 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 dealing.

         First 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.

         Winn-Dixie 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, [1] and Winn-Dixie has replied. Both parties have requested that the Court tax fees, expenses, and costs, against the other party.


         In 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.

         I. Breach of Contract

         This 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.").

         First 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).

         In an 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.[2] 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.

         II. Breach of the Duty of Good Faith and Fair Dealing and Injunctive Relief

         "[U]nder 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 ...

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