United States District Court, N.D. Mississippi, Aberdeen Division
ORDER AND MEMORANDUM OPINION
SHARION AYCOCK UNITED STATES DISTRICT JUDGE.
Bonny Decorative Material Co., Ltd filed its Complaint  in
this Court on July 27, 2017. East Systems, Inc. and George K.
East responded by filing an Answer and Counterclaim  on
October 13, 2017. Now before the Court is Ningbo Bonny's
Partial Motion to Dismiss  several of the Defendants'
counterclaims. The issues are fully briefed and ripe for
and Procedural Background
claims in this case arise from a business relationship
between Ningbo Bonny and George East, of East Systems, Inc.
Ningbo Bonny purchased a large commercial printing machine in
Columbus, Mississippi. Ningbo Bonny shipped the machine to
its location in China and engaged East in discussions to make
various repairs and upgrades. East apparently had familiarity
with the machine through work with his former employer from
which Ningbo Bonny purchased the machine. At some point the
relationship deteriorated resulting in the filing of this
case. In response to the Complaint, the East Defendants filed
counterclaims for breach of contract, breach of the duty of
good faith and fair dealing, quantum meruit, an accounting,
tortious breach of contract, and malicious prosecution.
Plaintiff Ningbo Bonny now requests dismissal under Federal
Rule of Civil Procedure 12(b)(6) of some of the
Defendants' counterclaims, specifically those for
malicious prosecution, request for an accounting, tortious
breach of contract, and breach of the duty of good faith and
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint, or counterclaim, “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Phillips v. City of Dallas, 781
F.3d 772, 775-76 (5th Cir. 2015) (citing Gentilello v.
Rege, 627 F.3d 540, 543-44 (5th Cir. 2010)) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). “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.” Edionwe v.
Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (citing
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).
substantive law applies in this diversity case. See Cox
v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir.
2014) (citing Wood v. RIH Acquisitions MS II, LLC,
556 F.3d 274, 275 (5th Cir. 2009)).
their Response  to the instant motion, the Defendants
agree that their malicious prosecution claim has not yet
accrued and concede to its dismissal. As such, the
Defendants' malicious prosecution counterclaim is
dismissed without prejudice.
for an Accounting
their Counterclaim for an Accounting, the Defendants allege
ESI has repeatedly asked Ningbo if it was prepared to pay for
the services rendered by ESI on Ningbo's behalf and
Ningbo has failed or refused to provide such assurances. ESI
has performed valuable services for which payment should be
remitted and for which Ningbo stubbornly refuses or fails to
acknowledge. ESI requests that this Court order Ningbo to
provide an accounting of all changes in the design that it
requested during the period after the work was quoted and to
account for why it has not paid ESI for the same.
Bonny argues that this allegation does not constitute an
accounting claim because it is a demand for facts, not funds.
Ningbo Bonny cites to State ex rel. King v. Harvey
for the proposition that an accounting claim seeks “a
detailed statement of the debits and credits between parties
arising out of a contract or a fiduciary relation”; and
to Briggs & Stratton Corp. v. Smith to support
its argument that a litigant may not use an accounting claim
as “mere disguise for what really could be accomplished
through discovery.” State ex rel. King v.
Harvey, 214 So.2d 817, 819 (Miss. 1968); Briggs
& Stratton Corp. v. Smith, 854 So.2d 1045, 1048-49
Defendants have not offered any legal argument or
contradictory precedent in response. The Court finds that the
Counterclaim in this case mimics the false accounting claim
in Briggs. In that case the Mississippi Supreme
Court found that “An accounting has traditionally been
a tool used by a plaintiff against a defendant. In the case
sub judice, the plaintiff attempts to initiate an accounting
against himself. It is a mere disguise for what really could
be accomplished through discovery.” Briggs,
854 So.2d at 1049. The same is true in the instant case. The
Defendants are demanding that Ningbo Bonny account for the
sums owed to these same Defendants, and to explain why said
sums have not been paid. Under the relevant precedent, this
is not a true accounting claim, and is merely “a
disguise for what ...