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Dayton Superior Corporation v. Marjam Supply Co.

February 22, 2011


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Dayton Superior Corporation ("Plaintiff" or "Dayton") commenced this diversity action seeking damages based upon an alleged failure by defendant Marjam Supply Co., Inc. ("Defendant" or "Marjam") to pay certain outstanding invoices. Plaintiff asserts claims for breach of contact and unjust enrichment. Marjam's Second Amended Answer and Counterclaims (docket no. 76) answered the allegations in the Complaint, asserted several affirmative defenses, and interposed counterclaims against Dayton and Barker Steel LLC ("Barker"), whom Marjam characterizes as an "additional defendant on counterclaims."

Two motions are presently before the Court. First, Dayton moves to: (1) dismiss Marjam's First, Third, and Fourth Counterclaims pursuant to Rule 12(b)(6), and (2) strike Marjam's first and second Affirmative Defenses pursuant to Rule 12(f). Second, Barker moves to dismiss Marajm's Second, Third, and Fourth Counterclaims pursuant to Rule 12(b)(6). For the reasons set forth below, the motions are GRANTED in part and DENIED in part.


The following facts are drawn from the allegations contained in the Complaint and Second Amended Answer and Counterclaims (hereinafter referred to as "Answer").

The Parties

Dayton, a public corporation organized under Delaware law, is "the leading North American manufacturer and provider of specialized products for the non-residential concrete construction market." (Answer ¶¶ 19-21.) Marjam, a corporation organized under New York law, is "the largest building materials distributor and supplier in the Northeastern United States." (Id. ¶¶ 17-18.) Marjam operates fifteen "super-centers" in eight states that "sell[ ], distribute[ ] and suppl[y] a large range of construction materials and related products to builders, contractors, architects, engineers, governments and to the public at large." (Id. ¶ 18.) Barker, a limited liability company organized under Massachusetts law, "promotes itself as the Northeast United States' oldest and largest reinforcing steel fabricator," which serves the needs of the construction industry in New York, New Jersey, and New England. (Id. ¶¶ 23-24.) Like Marjam, Barker is "a building materials distributor and supplier in the Northeastern United States, which sells, distributes and supplies a large range of construction materials and related products . . . to builders, contractors, architects, engineers, governments and to the public at large." (Id. ¶ 23.)

Between 2003 and 2007, both Marjam and Barker acted as distributors of Dayton's products and purchased certain construction and building materials from Dayton for resale to their respective customers. (Id. ¶¶ 22, 26.) Throughout that period, Barker was "a direct competitor of Marjam." (Id. ¶ 27.)

The Product

Beginning in approximately August 2003, Dayton manufactured and sold a product known as "Levelayer I" under the brand name "DS Construction Chemicals" (the "Product"). (Id. ¶ 30.) The Product is a "premium, self-leveling floor underlayment" used "to produce a smooth, cement sub-floor for subsequent applications [of floor coverings] by the end-user." (Id. ¶ 31.) Dayton sold the Product to "numerous distributors and customers" located in the Northeast, including Marjam, Barker and Spa Steel Products Co., Inc. ("Spa"). (Id. ¶ 32.) According to Marjam, both Barker and Spa are its direct competitors.

The Complaint

Dayton alleges that between January 25, 2006 and May 14, 2007, Marjam ordered goods from Dayton "at the agreed upon price and reasonable value of $79,850.16." (Compl. ¶ 6.) Dayton asserts that the goods were delivered to and accepted by Marjam, but that Marjam failed to pay the balance due and owing to Dayton.

Dayton's Alleged Pricing Practices

Marjam alleges that between 2003 and 2007, it purchased "large quantities" of the Product from Dayton for a total price of approximately $832,846.38. (Answer ¶¶ 33-34.) During that time, Marjam paid an average price for the Product of between $13.07 and $14.19 per bag. (Id. ¶¶ 35-39.) Marjam alleges that during the same time period, Dayton sold the Product, "and/or commodities of like grade and quality" to Barker and Spa for an average sales price that was "substantially less" (or "more than $3.00 less per bag") than the price Dayton charged Marjam for the Product. (Id. ¶¶ 40, 41.) Marjam further alleges that Dayton granted Barker and Spa "rebates, discounts, allowances and/or advertising service charges" in connection with their purchases of the Product that "were not disclosed or offered to Marjam." (Id. ¶ 42.) Marjam asserts that Dayton's pricing practices "were part of an illegal tying arrangement, pursuant to which Dayton agreed to afford to its favored distributors, including Barker, lower pricing on the Offending Product in exchange for Barker's agreement to purchase certain other products . . . sold by Dayton."*fn1 (Id. ¶ 45.)

A Quest Corporation

Marjam alleges that as a result of Dayton's "predatory pricing" practices, Marjam "effectively was precluded from selling the Product" to the "'concrete contractor specialists'" and "'flooring specialists'" segments of the relevant market. (Id. ¶ 46.) Marjam provides "[b]y way of example only," an account of its relationship with A Quest Corp. ("A Quest"), "one of the major flooring specialist contractors located in the metropolitan New York geographic market." (Id. ¶ 52.) Marjam estimates that A Quest has "historically" purchased between 80% and 95% of its plywood and flooring tile requirements from Marjam. During the relevant time period, however, Marjam "was unable to sell" the Product to A Quest "because of Dayton's discriminatory pricing." (Id. ¶ 53.)

In July 2004, for example, Dayton sold 900 bags of the Product to Spa, which Spa then resold to A Quest for use on a particular project. (Id. ¶ 54.) According to Marjam, at that time Dayton sold the Product to Spa for a price that was $4.00 less per bag than Dayton charged Marjam. (Id. ¶¶ 56.57.) Because of this price differential, and despite the "established vendor/vendee relationship between Marjam and A Quest," Marjam could not sell the Product to A Quest for that particular project. (Id. ¶¶ 55, 58.)

Marjam further alleges that during the relevant time period, similar differentials between the prices Dayton charged Barker and Marjam also allowed Barker to sell "substantial quantities" of the Product to A Quest. (Id. ¶ 59.) Marjam asserts that it could not "offer to A Quest an alternate product of like grade and quality to the Offending Product, because A Quest will only specify the Offending Product on its jobs." (Id. ¶ 60.)

The Alternate Products

In 2007, upon discovering Dayton's alleged pricing practices, Marjam began purchasing "products of like grade and quality to the Offending Product from other manufacturers" (the "Alternate Products") for prices that were "substantially [ ] less" than what Marjam paid Dayton for the Product. (Id. ¶ 61.) As a result, Marjam began selling the Alternate Products to a number of concrete specialists who had previously declined to buy the Product from Marjam and had purchased the Product, instead, from Barker and Spa. (Id. ¶¶ 62, 63.) After Marjam stopped purchasing the Product from Dayton and began buying the Alternate Products, Marjam's re-sales (and resulting profits) increased approximately 180%. (Id. ¶¶ 64, 65.)

Allegations Regarding Donald Van Gerve

Marjam alleges that Donald Van Gerve ("Van Gerve") was employed at all relevant times as Dayton's Area Sales Director for the Northeast Region. (Id. ¶ 81.) In that capacity, Van Gerve controlled "pricing for the products which Dayton offered to its distributors," including the Product, during the relevant time period. (Id. ¶ 82.) Van Gerve also maintained a separate engineering firm known as "Donald Van Gerve, PE" or "DVG, PE." (Id. ¶ 83.)

Marjam asserts that Barker and Spa paid "substantial sums of money" to Van Gerve "ostensibly for engineering work" performed by Van Gerve "extraneous to his employment with Dayton." (Id. ¶¶ 84-85.) In reality, according to Marjam, those payments were made to Van Gerve "in exchange for favorable pricing for its products, including the Offending Product, from Dayton." (Id. ¶ 85.) Marjam contends alternatively that to the extent any engineering services were rendered by Van Gerve, "the amount paid to Van Gerve greatly exceeded the value of the services rendered." (Id. ¶ 86.) According to Marjam, these payments were made "with the intent to influence Van Gerve's and hence Dayton's pricing of and for its products, including the Offending Product." (Id. ¶ 87.)

The Affirmative Defenses

Marjam has asserted four affirmative defenses, the first two of which are the subject of the present motion to strike by Dayton. First, Marjam asserts the defense of failure to state a claim for relief. (Id. ¶ 7.) Second, Marjam asserts an unclean hands defense, arguing that Dayton is barred from any recovery against Marjam due to its "past, present, continuing, systematic and pervasive violations of the Robinson-Patman Act, 15 U.S.C. § 13, et seq., and acts of unfair competition." (Id. ¶ 8.)

The Counterclaims

Marjam also interposes four counterclaims. The First Counterclaim alleges that Dayton engaged in price discrimination in violation of 15 U.S.C. §§ 13(a) and 13a. The Second Counterclaim asserts that Barker's "knowing inducement and/or receipt of discriminatory pricing and unfair business conduct" violates 15 U.S.C. §§ 13(f). (Id. ¶ 78.) The Third Counterclaim contains an allegation of commercial bribery in violation of 15 U.S.C. § 13(c). Finally, the Fourth Counterclaim alleges that Dayton and Barker engaged in conduct that constitutes the New York common law "tort of unfair competition." (Id. ¶ 92.) Marjam seeks an award of trebled compensatory damages and attorneys' fees with respect to the first three counterclaims. With regard to the Fourth Counterclaim, Marjam seeks compensatory and punitive damages. (See id., WHEREFORE clause.)


I. Legal Standard for the Motions to Dismiss Pursuant To Rule 12(b)(6)

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).

First, in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 555 (internal citations, alteration and quotation marks omitted).

More recently, in Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937 (2009), the Supreme Court provided further guidance, setting forth a two-pronged approach for courts deciding a motion to dismiss. First, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S. Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual assumptions." Id. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555).

Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at ...

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