United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK UNITED STATES DISTRICT JUDGE
County Road Baldwyn Properties, LLC filed its Complaint 
on June 28, 2018, seeking damages under state law for
Manchester Anika, LLC's alleged fraudulent inducement,
fraudulent misrepresentation, and fraudulent concealment
premising jurisdiction on diversity of citizenship. Presently
before the Court is Manchester Anika's
Renewed Motion to Dismiss  Under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. The issues are fully
briefed and ripe for review.
and Procedural Background
October 4, 2017, Baldwyn Properties entered into a Purchase
and Sale Agreement [18-1] with Manchester Anika for the
property located at 469 County Road 2878 in Baldwyn,
Mississippi. This Agreement provided for a “Due
Diligence Period” during which Baldwyn Properties could
inspect the condition of the property. If Baldwyn Properties
was not satisfied with the condition of the property, Baldwyn
Properties had the right to terminate the Agreement prior to
the expiration of the Due Diligence Period. The Agreement
contained an “As Is” provision that stated the
PURCHASER ACKNOWLEDGES THE PURCHASER'S OPPORTUNITY TO
INSPECT THE PROPERTY, AND PURCHASER AGREES TO PURCHASE THE
PROPERTY ON AN ‘AS IS' BASIS. PURCHASER
ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN
AGREEMENT, THAT NEITHER SELLER NOR ITS AGENTS, CONTRACTORS OR
REPRESENTATIVES HAVE MADE ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTEES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR
WITH RESPECT TO (A) THE NATURE, QUALITY OR CONDITION OF THE
PROPERTY . . .
warehouse is located on the property. Baldwyn Properties
attempted to inspect the roof of this warehouse during the
Due Diligence Period, but Manchester Anika was not able to
find a ladder for access to the roof. Baldwyn Properties
decided not to return to the property to inspect the roof.
Baldwyn Properties allegedly made this decision because of a
printed representation that the roof was new and had an
Properties alleges that Manchester Anika represented that the
warehouse had “a new roof installed in 2015 with
extended warranty through 2027.” However, the record
reflects that the roof was only restored and was not new.
This alleged representation was presented on the
realtor's marketing materials for the property. The
marketing materials also stated “[the realtor] does not
guarantee, warranty or represent [the information's]
accuracy. It is the Purchaser's responsibility to
independently confirm the accuracy and completeness of the
information contained herein”.
expiration of the Due Diligence Period, but before closing,
Baldwyn Properties discovered leaks in the
roof. Because the Due Diligence Period expired
and the deposit was no longer recoverable, Baldwyn Properties
did not want to terminate the Agreement. Furthermore, Baldwyn
Properties alleges that it proceeded with the purchase due in
part to its belief that the roof was new and protected by
warranty and that the leaks would be minor and inexpensive to
closing, Baldwyn Properties contacted the company that
restored the roof to attempt to repair the leaks under its
warranty. The company attempted to repair the roof several
times, but the roof continues to leak. The leaks have caused
damage to the warehouse and there is a substantial risk of
further damage, loss of tenants, and the possibility of
having to replace the roof.
Properties asserts multiple claims of fraud under Mississippi
law against Manchester Anika: fraudulent misrepresentation,
fraudulent inducement, and fraudulent concealment. Manchester
Anika now requests dismissal of the claims under Federal Rule
of Civil Procedure Rule 12(b)(6) for failure to state a claim
upon which relief can be granted.
reviewing Manchester Anika's Motion to Dismiss , the
“court accepts ‘all well-pleaded facts as true,
viewing them in the light most favorable to the
plaintiff.'” Martin K. Eby Constr. Co. v.
Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004) (quoting Jones v. Greninger, 188 F.3d 322, 324
(5th Cir. 1999)). The purpose of a motion to dismiss under
Rule 12(b)(6) is to test the sufficiency of a plaintiff's
complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).
order to survive a 12(b)(6) motion, a complaint must plead
“enough facts to state a claim to relief that is
plausible on its face.” Id. A legally
sufficient complaint must establish more than a “sheer
possibility” that the plaintiff's claim is true.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009). It need not contain
detailed factual allegations, but it must go beyond labels,
legal conclusions, or formulaic recitations of the elements
of a cause of action. Twombly, 550 U.S. at 555, 127
substantive law applies in this diversity case. Cox v.
Wal-Mart Stores East, L.P., 755 F.3d 231, 233 (5th Cir.
2014); see also Wood v. RIH Acquisitions MS II, LLC,
556 F.3d 274, 275 (5th Cir. 2009).