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ANHEUSER-BUSCH, INC. v. G.T. BRITTS DISTRIBUTING

April 6, 1999

ANHEUSER-BUSCH, INC., PLAINTIFF,
v.
G.T. BRITTS DISTRIBUTING, INC. AND RICHARD WORDON, DEFENDANTS.



The opinion of the court was delivered by: McAVOY, Chief Judge.

MEMORANDUM — DECISION & ORDER

Plaintiff Anheuser-Busch, Inc. ("plaintiff") commenced an action against Defendants G.T. Britts Distributing, Inc. ("Britts") and Richard Wordon (the "defendants") arising out of an alleged breach of a distribution agreement. Defendants asserted counterclaims for breach of contract and violation of the antitrust laws. Presently before the Court is plaintiff's motion pursuant to FED.R.CIV.P. 12(b)(6) seeking dismissal of the counterclaims.

I. BACKGROUND

In November 1982, plaintiff entered into an distribution agreement with Britts. In July 1996, Defendant Richard Wordon acquired Britts and became its sole shareholder. In July 1987, plaintiff entered into an amended wholesaler distribution agreement (the "agreement") with Britts wherein Britts was designated as the exclusive authorized wholesaler representative for plaintiff in the Athens, New York region. In January 1997, Defendant Wordon entered into an "Unlimited Guaranty Contract" with plaintiff whereby he personally guaranteed "payment to [plaintiff] of all indebtedness of Debtor [Britts] to [plaintiff] now existing or hereafter created."

Britts was required to pay plaintiff for its beer products in accordance with approved terms. Under the approved credit terms, Britts was to pay for plaintiff's products within ten days of shipment and typically made payments via electronic fund transfer. On many occasions, plaintiff allowed Britts an additional ten to twenty days within which to tender payment. At numerous times in 1997 and 1998, Anheuser-Busch unsuccessfully attempted to electronically acquire funds from Britts' bank account for payment for products (which they apparently were authorized to do), even after the additional twenty day grace period. The attempted electronic payments failed because of insufficient funds.

Thus, on December 15, 1997, plaintiff wrote Britts stating that there had been an unacceptable number of returned payments and warned that plaintiff expected timely payment. Plaintiff again wrote Britts on May 27, 1998 stating that seventeen more payments had "bounced" and again warning that "[t]his situation is not acceptable."

On June 24, 1998, plaintiff again wrote to Britts stating that:

  [P]ursuant to Paragraph 6(a) of the [agreement], this
  letter constitutes written notice of termination of
  G.T. Britts as an authorized Anheuser-Busch
  wholesaler based on G.T. Britt's failure to pay for
  Anheuser-Busch products in accordance with approved
  terms and insolvency. As you know, G.T. Britts has
  failed to pay for Anheuser-Busch products ordered and
  accepted, despite repeated warnings and extensions of
  payment due dates. Over sixty separate electronic
  funds transfers that G.T. Britts has attempted to
  make as payments for Anheuser-Busch products have
  been rejected by your bank due to insufficient funds
  in G.T. Britts's account. Many of these payments
  "bounced" despite the fact that Anheuser-Busch has
  already extended you additional time to pay for the
  beer.
  The termination of the . . . agreement . . . is
  effective immediately. . . . . In accordance with . . .
  [the] Agreement, Anheuser-Busch is prepared to
  purchase and G.T. Britts is required to sell G.T.
  Britts's current inventory of Anheuser-Busch products
  at G.T. Britts's laid-in cost.*fn1
  On that same day, June 24, 1998, plaintiff commenced the instant lawsuit against defendants asserting causes of action for money due and owing, breach of the agreement, and breach of the Unlimited Guaranty Contract. In their answer, defendants asserted two counterclaims alleging breach of the agreement and violations of the antitrust laws. Plaintiff now moves pursuant to FED.R.CIV.P. 12(b)(6) seeking dismissal of the counterclaims in their entirety.

II. DISCUSSION

A. Rule 12(b)(6) Standard

"A [counterclaim] may not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the [counter-claimant] can prove no set of facts in support of his claim which would entitle him to relief. In reviewing a Rule 12(b)(6) motion, this Court must accept the factual allegations of the [counterclaim] as true and must draw all reasonable inferences in favor of the [counter-claimant]. The review of such a motion is limited, and the issue is not whether a [counter-claimant] will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (1996) (internal quotations and citations omitted). "In order to survive dismissal, a [counter-claimant] must assert a cognizable claim and ...


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