United States District Court, S.D. Indiana, Evansville Division
VEXOL S.A. DE C.V., and SERGIO TORREBLANCA LOPEZ, Plaintiffs,
BERRY PLASTICS CORPORATION, Defendant.
ENTRY ON DEFENDANT'S MOTION TO DISMISS
WALTON PRATT, JUDGE
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.
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.”).
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.
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.
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.
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.
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.
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).
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).
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
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
Indiana Law Claims
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' ...