United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Critical Solutions International's
motion to dismiss (Doc. 40). For the reasons stated, the
Court GRANTS the motion (Doc. 40) and
DISMISSES all claims.
issue before the Court is whether Defendant Critical
Solutions International (CSI) owes Plaintiff Phalanx Group
International (Phalanx) commission for Phalanx's
facilitation of military equipment sales. Phalanx seeks
compensation for CSI's sale of seven “Husky”
mine-detection vehicles, as well as for additional,
unspecified sales by CSI. See Doc. 37, Second Am.
Compl., ¶ 42. This Court thoroughly described the
history underlying this breach-of-contract case when it
granted CSI's previous motion to dismiss (Doc. 29).
See Doc. 36, Mem. Op. & Order, 1-4. Thus, the
Court hereby incorporates the “Background”
section of its previous order (Doc. 36). Nonetheless, to
provide additional context, the Court briefly summarizes its
most recent ruling before turning to the present claims.
This Court Previously Dismissed Phalanx's
Breach-of-Contract Claims and Granted Phalanx Leave
to File a Second Amended Complaint.
granting CSI's previous motion to dismiss (Doc. 29), this
Court found that Phalanx's first amended complaint failed
to sufficiently allege the existence of a contract covering
the sale of the seven Huskys. Doc. 36, Mem. Op. & Order,
10. The Court concluded that the December 17 Sales
Representation Agreement (December 17 SRA)-the only official
agreement between the parties submitted by Phalanx-covered
only direct commercial sales (DCS). See Doc. 36,
Mem. Op. & Order, 9-10 (summarizing the difference
between direct commercial sales and foreign military sales).
The sale of the seven Husky vehicles, however, was a foreign
military sale (FMS). Id. at 9. Since neither party
offered an official contractual amendment to the December 17
SRA specifying a commission rate for the sale of the seven
FMS Huskys, the Court found the allegations of a governing
contract insufficient. Id. at 11. Further, although
Phalanx suggested that subsequent agreements addressed the
seven-Husky sale, the Court did not consider this argument,
because Phalanx failed to raise it in its first amended
complaint. Id. at 11-12.
although Phalanx sufficiently alleged the existence of a
contract regarding additional Husky sales, the Court
concluded that Phalanx did not adequately allege a breach of
this contract. Id. at 12-14. Specifically, the Court
reasoned that Phalanx's allegations, based only
“upon information and belief, ” were “too
sparse” to provide a ripe dispute over the sale of
additional Huskys. Id. at 14 (internal quotation
marks omitted). Further, the Court expressed its confidence
that, if there were additional Husky sales, Phalanx
“[would] be able to amend its complaint to more
thoroughly reflect that . . . .” Id. Based on
Phalanx's bare allegations, the Court dismissed
Phalanx's claim for commission on additional sales.
Id. Nonetheless, the Court permitted Phalanx to file
a second amended complaint, instructing Phalanx to
“specifically and separately articulate the basis for
its claims . . . .” Id. at 16.
CSI Now Seeks Dismissal of All Claims in Phalanx's Second
March 19, 2019, Phalanx filed its second amended complaint.
See Doc. 37, Second Am. Compl. In its second amended
complaint, Phalanx once again asserts breach-of-contract
claims. Id. ¶ 1. Specifically, Phalanx seeks
commission for its facilitation of the purchase agreement
between the Kingdom of Saudi Arabia (KSA) and CSI of seven
Husky vehicles. See Id. ¶ 42. Moreover, Phalanx
seeks the payment of commission for other, additional Husky
sales made by CSI. See Id. ¶ 43. Phalanx
acknowledges that the December 17 SRA governs the
parties' dispute. Id. ¶¶ 31, 39.
response, CSI filed a motion to dismiss (Doc. 40), seeking
dismissal of all claims. Doc. 41, Mem. of Law in Supp. of
Mot. to Dismiss, 10. In its motion, CSI reiterates this
Court's previous finding that the December 17 SRA
provides commission only for DCS-not the seven-Husky FMS.
See Id. at 5; Doc. 36, Mem. Op. & Order, 10-12.
Moreover, CSI points out that an amendment to the December 17
SRA (Amendment 1) “explicitly excludes commissions on
the seven Husky FMS sale . . . .” Doc. 41, Mem. of Law
in Supp. of Mot. to Dismiss, 5. Accordingly, CSI contends
that Phalanx has failed to state a breach-of-contract claim
pertaining to the seven-Husky FMS. Id. at 8. And
with respect to additional Husky sales, CSI suggests that
Phalanx failed to plead new facts in its second amended
complaint that would support its breach-of-contract
filed its motion as a motion to dismiss or, in the
alternative, a motion for summary judgment. Doc. 40, Mot. to
Dismiss Second Am. Compl., 1. Accordingly, the Court must
determine first which standard to apply.
whether Rule 12(b)(6) or Rule 56 is the proper procedural
vehicle for resolving an issue is driven by whether a court
deems it appropriate to consider materials outside the
pleadings and otherwise not appropriate for a 12(b)(6)
analysis. See generally, St. Paul Ins. Co. of Bellaire,
Tex. v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th
that no discovery evidence has been presented in this case,
and that the Court does not consider any evidence outside the
pleadings in reaching its decision, the Court finds it
inappropriate to proceed under a summary-judgment posture.
Thus, the Court analyzes CSI's motion as a motion to
Federal Rule of Civil Procedure Rule 8(a)(2), a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes the Court to
dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Id. 12(b)(6). To
survive a 12(b)(6) motion, “enough facts to state a
claim to relief that is plausible on its face” must be
pled. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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. At this stage, a court
“must accept all well-pleaded facts alleged in the
complaint as true and must construe the allegations in the
light that is most favorable to the plaintiff.”
J&J Sports Prods., Inc. v. Live Oak Cnty. Post No.
6119 Veterans of Foreign Wars, 2009 WL 483157, at *3