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Vexol S.A. De C.V. v. Berry Plastics Corp.

United States District Court, S.D. Indiana, Evansville Division

August 29, 2016




         This matter is before the Court on a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendant Berry Plastics Corporation (“Berry Plastics”). (Filing No. 30.) On September 3, 2015, the Plaintiffs, Vexol S.A. de C.V. (“Vexol”) and Sergio Torreblanca Lopez (“Mr. Torreblanca”) (collectively, “Plaintiffs”), filed an Amended Complaint alleging that Berry Plastics violated various Indiana and Mexican laws. Plaintiffs allege that subsidiary companies owned by Berry Plastics, which are located in Mexico, provided them poor quality products. After Plaintiffs' complained about the quality defects, the subsidiary companies made fraudulent claims in a Mexican Mercantile Court, instituted a criminal complaint in the Federal district Court of Mexico, and made threats attempting to drive Plaintiffs out of business. Berry Plastics moves to dismiss the Amended Complaint on the bases that Plaintiffs fail to plead any viable claims under both Mexican and Indiana law. For the reasons stated below, Berry Plastics Motion to Dismiss is granted.

         I. BACKGROUND

         Although the factual allegations are contested, as required for the purposes of this motion, the Court accepts as true all well-pleaded facts alleged in the Amended Complaint, and draws all possible inferences in the Plaintiff's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.”).

         Berry Plastics is a Delaware corporation whose corporate executive office is located in Indiana and it conducts business within the state. (Filing No. 29 at 1.) On December 3, 2009, Berry Plastics acquired one hundred percent (100%) of the common stock of Pliant Corporation. In acquiring the stock of Plaint Corporation, Berry Plastics also acquired an additional subsidiary, Pliant Film Products of Mexico, Inc. (“Pliant”), which conducts business in the Republic of Mexico. Pliant is in the business of manufacturing, importing, exporting, and distributing plastic film and packaging materials in Mexico and Berry Plastics operates Pliant as a Specialty Films Division.

         Vexol is a Mexican entity that conducts business in the Republic of Mexico and Mr. Torreblanca, a citizen of Mexico, is an officer of the company. The Plaintiffs are also in the plastic business. Vexol has provided plastic film to its customers for over fifteen years. Id. at 3. In 2009, Plaintiffs entered into a series of purchase orders with Pliant, whereby Pliant would provide and deliver large shrink wrap orders to Vexol. Id. As orders were placed and delivered, Vexol's customers complained that the shrink wrap was not performing adequately and Vexol's customers began returning the product. Vexol informed Pliant that the shrink wrap provided was defective and that Vexol was incurring losses due to the low quality of the Pliant's product leading to customer dissatisfaction. Id. Vexol returned the products to Pliant and demanded an adjustment to the balanced owed. Id.

         Instead of working out a business solution and recognizing the defective products, Pliant embarked on a series of acts to disparage the Plaintiffs. Specifically, Plaint caused Aspen Industrial S.A. de C.V. (“Aspen”), a separate Mexican entity, to bring a claim against Vexol in a Mexican Mercantile Court. Id. at 3-4. In that case, Aspen alleged that Vexol had executed a “pagare”, the Mexican equivalent of a promissory note, which was assigned to Aspen. Id. In the pagare, Aspen claimed that Vexol had agreed to pay Pliant $5, 000, 000.00 in Mexican pesos. Id. Aspen attempted to have the Mexican Mercantile Court recognize the pagare note and hold Vexol responsible for it. Id.

         On April 10 2013, the Mexican Mercantile Court ruled that the pagare did not meet the requirements of Article 170 of the General Law of Titles of Credit and Credit Operations and issued a ruling in favor of Vexol, which Plaintiffs contend was largely due to forged signatures on the pagare. Id. at 4-5. Aspen filed an appeal contesting the order of the Mexican Mercantile Court and on July 12 2013, the Mexican Mercantile Court's order was confirmed by an “appellate” court panel in Mexico, and that court issued a mandate.

         Undaunted, on April 2, 2014, Pliant initiated a criminal complaint against Plaintiffs based on the fabricated pagare and for unpaid invoices. Id. at 6-7. Pliant is using the criminal proceeding to disparage Plaintiffs and to steal Plaintiffs' shrink wrap customers. Id. at 7. Additionally, Pliant's criminal complaint has caused Plaintiffs to be in constant fear of being arrested and Pliant's fraud allegations have disrupted Plaintiffs' ability to conduct business. Id. Pliant's lawyers have called and threatened Plaintiffs with arrest unless they pay Pliant, even though the criminal proceeding has yet to be decided. Id.

         In response, Plaintiffs filed this action alleging that Berry Plastics, the parent company of Pliant, ordered its officers and agents to engage in the disparaging conduct. Notably, however, Pliant is not named as a party. In their Amended Complaint, Plaintiffs' bring claims against Berry Plastics under Indiana law for commercial disparagement and defamation, tortious interference with actual and prospective contracts and business relations. Plaintiffs also bring claims against Berry Plastics under Mexican law for civil responsibility and illicit acts, fraud and willful misrepresentation (“dolus”), and/or moral damages. Berry Plastics denies the allegations and has moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6).


         Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal if the complaint fails to sets forth a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits.” Gibson v. City of Chi., 910 F.2d 1510, 1520, (7th Cir. 1990). Accordingly, when analyzing a Rule 12(b)(6) motion to dismiss, a court construes the complaint in the light most favorable to the plaintiff, accepts all factual allegations as true, and draws all reasonable inferences in favor of the plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

         Federal Rule of Civil Procedure 8 requires that a complaint set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). At a minimum, the complaint must give the defendant fair notice of what the claim is and the grounds upon which it rests; and the factual allegations must raise a right to relief above the speculative level. See Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009) (explaining that, consistent with the notice pleading standard, the purpose of the statement required by Rule 8 is to provide the defendant with fair notice of what the claim is and the grounds upon which it rests), Tamayo, 526 F.3d at 1081, 1083.

         While a complaint need not include detailed factual allegations, a plaintiff has the obligation to provide the factual grounds supporting his entitlement to relief; and neither bare legal conclusions nor a formulaic recitation of the elements of a cause of action will suffice in meeting this obligation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although this does not require heightened fact pleading of specifics, it does require the complaint to contain enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570; Tamayo, 526 F.3d at 1083 (“(a) plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests, and, through his allegations, show that it is plausible rather than merely speculative, that he is entitled to relief”); Bissessur, 581 F.3d at 603 (“(a) 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.”).


         A. Indiana Law Claims

         In their Amended Complaint, Plaintiffs make claims under Indiana tort law, alleging commercial disparagement, defamation, and tortious interference with actual and prospective contracts. (Filing No. 29 at 8-10.) Berry Plastics argues persuasively that Plaintiffs' ...

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