Mobro, Inc. v. VVV Corp.
| Decision Date | 26 June 2012 |
| Docket Number | No. 12-CV-25-JSS,12-CV-25-JSS |
| Parties | MOBRO, INC., d/b/a SERVICEMASTER 380, Plaintiff, v. VVV CORPORATION, d/b/a SERVICEMASTER RESTORATION COMPANY, and CLARK COMPANIES, INC., d/b/a SERVICEMASTER DISTRIBUTOR OPERATIONS, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
IV. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
V. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
VI. ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The matter before the court is Defendant Clark Companies, Inc.'s "Motion to Dismiss" ("Motion") (docket no. 11).
On January 27, 2012, Plaintiff Mobro, Inc., d/b/a ServiceMaster 380, ("Mobro") filed a Petition at Law and Jury Demand (docket no. 3) ("Complaint") against Defendants VVV Corporation, d/b/a ServiceMaster Restoration Co., (" VVV") and Clark Companies, Inc., d/b/a ServiceMaster Distributor Operations, ("Clark Co.") in the Iowa District Court for Linn County, case no. LACV74789. On February 21, 2012, Defendants removed the case to this court on the basis of diversity jurisdiction.
On February 28, 2012, VVV filed an Answer and Affirmative Defenses (docket no. 8). On March 9, 2012, Clark Co. filed the Motion. On March 26, 2012, Mobro filed a Resistance (docket no. 16). On April 2, 2012, Clark Co. filed a Reply (docket no. 17). Clark Co. requests oral argument on the Motion. The court finds that oral argument is unnecessary. The Motion is fully submitted and ready for decision.
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal on the basis of "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord B & B Hardware, Inc. v. Hargis Indus., Inc., 569 F.3d 383, 387 (8th Cir. 2009).A claim satisfies the plausibility standard "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Art., 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Bell At I., 550 U.S. at 556).
Although a plaintiff need not provide "detailed" facts in support of his or her allegations, the "short and plain statement" requirement of FEDERAL RULE OF CIVIL PROCEDURE 8(a)(2) "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 677-78 (citing Bell Art., 550 U.S. at 555); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Bell Art., 550 U.S. at 555). "Where the allegations show on the face of the complaint [that] there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008) (citing Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997)).
In determining whether a plaintiff has stated a claim sufficient to survive a Rule 12(b)(6) motion to dismiss, "the court may consider the pleadings themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record." Illig v. Union Electric Co., 652 F.3d 971, 976 (8th Cir. 2011).
Accepting all factual allegations in the Complaint as true and drawing all reasonable inferences in favor of Mobro, the facts are as follows.
ServiceMaster Clean, a nonparty in this action, is the nationwide franchisor of the ServiceMaster Clean brand and is located in Memphis, Tennessee. Mobro is an Iowacorporation and franchisee of ServiceMaster Clean. It provides remediation services to businesses that have been damaged by water, fire, or other similar events. Mobro is also the ServiceMaster Regional Account Manager ("RAM") for the Iowa region located west of the Mississippi River and east of Des Moines ("the RAM Territory"). VVV is an Illinois corporation and ServiceMaster Clean franchisee that provides similar remediation services nationwide to businesses affected by disaster. Clark Co. is a Minnesota corporation that serves as a Coordinator for franchisor ServiceMaster Clean.
As a ServiceMaster Clean franchisee, Mobro entered into a ServiceMaster Franchise Agreement with franchisor ServiceMaster Clean. By the terms of the Franchise Agreement, Mobro obtained a nonexclusive right to operate its ServiceMaster franchise in Linn County. ServiceMaster Clean had the right to transfer or assign any part of the Franchise Agreement to another person or legal entity. ServiceMaster Clean exercised this right and assigned all of its rights to Mobro's monthly franchise fees to Clark Co. This contract, the Partial Assignment of Rights, provided that Mobro was obligated to pay Clark Co. the franchise fees, and that Clark Co. was entitled to collect the fees from Mobro. Clark Co. was also entitled to collect royalty fees and commissions from all ServiceMaster Clean franchisees in its Coordinator Contract Territory (including Mobro) pursuant to a similar Partial Assignment by ServiceMaster Clean.
Mobro's claims arise out of communications between the parties concerning disaster remediation work following the Cedar Rapids, Iowa flood of 2008. In anticipation of the June flood, Mobro's general manager, Chad Reichert, and president, Craig Mettille, surveyed the area that was likely to be affected by the flood. Reichert and Mettille decided that Mobro would not be able to provide services to all of those that would be affected by the flood. Realizing that VVV was better equipped to handle this large-scale disaster, Reichert contacted Ron Veldman, a shareholder of VVV. During a later conversation,Reichert spoke with Veldman and Steven Vandenberg, president of VVV, and the three agreed that VVV would pay Mobro a five-percent commission on gross revenues collected on flood remediation work that Mobro referred to VVV. In addition, VVV agreed to pay Mobro a five-percent commission on gross revenues for all flood remediation work that VVV or its subcontractors performed in Mobro's RAM Territory as a result of any walk-up customers that VVV obtained. VVV began work in the Waterloo/Cedar Rapids area on or about June 10, 2008, and Mobro supported VVV's efforts by soliciting contracts and providing leads for contracts to VVV.
On or about June 16, 2008, United Fire Group contacted Mobro to perform flood remediation services to its damaged building. Mobro contacted VVV to provide VVV with a lead on the job, but VVV informed Mobro that ServiceMaster by Avenue of the Saints, another ServiceMaster Clean franchisee, had already contacted VVV with a lead on the United Fire Group job. Mobro became concerned with ServiceMaster by Avenue of the Saints' involvement in the flood remediation process. In particular, Mobro was concerned that customers would be confused if two different local ServiceMaster Clean franchisees were competing for the same business, and that ServiceMaster by Avenue of the Saints was ill-equipped to be involved in large-scale disaster remediation work. To voice its concerns, Mobro's representatives contacted Ed Clark, the chief executive officer and majority shareholder of Clark Co. In the first conversation with Ed Clark, Reichert and Mettille voiced their concerns about ServiceMaster by Avenue of the Saints.
In a subsequent conversation with Ed Clark, Reichert and Mettille reiterated their concerns that ServiceMaster by Avenue of the Saints would continue to be a problem, and they requested that Ed Clark resolve the matter. On or about June 20, 2008, Reichert, Mettille and Ed Clark discussed the issues that had arisen due to ServiceMaster by Avenue of the Saints' persistence in soliciting business in Mobro's RAM Territory. Ed Clark stated that, because Mobro was the RAM, the matter of soliciting ServiceMaster Cleancustomers was "[Mobro's] show." Complaint at ¶ 48. Ed Clark also said that he could not control...
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