United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on North Cross Roofing &
Waterproofing, Inc.'s Motion to Dismiss Counts II and III
of the First Amended Complaint Under Fed.R.Civ.P. 12(b)(6),
filed by Defendant, North Cross Roofing & Waterproofing,
Inc., on August 2, 2017 (DE #20). For the reasons stated
below, the Motion (DE #20) is GRANTED and
Counts II and III of the First Amended Complaint are
DISMISSED WITH PREJUDICE. Count I remains
Korellis Roofing, Inc. (“Korellis”), filed its
first amended complaint against Defendant, North Cross
Roofing & Waterproofing, Inc. (“Northcross”),
on July 19, 2017 (DE #16). Plaintiff asserts claims for
breach of contract (Count I), conversion (Count II), and
treble damages (Count III).
instant motion to dismiss, Northcross moves to dismiss the
counts for conversion and treble damages, arguing Korellis
has failed to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Specifically, Northcross contends that
the claim for conversion fails because Korellis cannot
establish that Northcross retained any of its property, that
the crux of the complaint is a breached contract, and that
the related claim for treble damages pursuant to the Indiana
criminal conversion statute therefore also fails. (DE #21.)
In response, Korellis argues that it has properly stated a
claim for conversion because it has alleged that Northcross
accepted a specific sum on behalf of Korellis, and then
wrongfully refused to give that sum to Korellis. (DE #24.)
This motion is fully briefed and ready for adjudication.
Rule of Civil Procedure 12(b)(6) allows a complaint to be
dismissed if it fails to “state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Allegations other than fraud and mistake are governed by the
pleading standard outlined in Federal Rule of Civil Procedure
8(a), which requires a “short and plain
statement” that the pleader is entitled to relief.
Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011).
order to survive a Rule 12(b)(6) motion, the complaint
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face'.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009)(quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded
facts must be accepted as true, and all reasonable inferences
from those facts must be resolved in the plaintiff's
favor. Pugh v. Tribune Co., 521 F.3d 686, 692 (7th
Cir. 2008). However, pleadings consisting of no more than
mere conclusions are not entitled to the assumption of truth.
Iqbal, 556 U.S. at 678-79. This includes legal
conclusions couched as factual allegations, as well as
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. at 678 (citing Twombly, 550 U.S. at
was a contractor for a construction project at Ruler Foods in
Merrillville, Indiana. (First Am. Compl. ¶ 7.)
Northcross contracted with the owner, David S. Israel and/or
Learsi & Co. (“Israel”), for the Ruler Foods
Project. (Id. ¶¶ 8, 9.)
Ruler Foods Project included replacement of the entire roof.
(Id. ¶ 10.) Northcross could not complete the
roofing work. (Id. ¶ 11.) So, Northcross
retained a portion of the roofing work, but sought a
subcontractor for approximately half of the roof.
(Id. ¶ 12.)
contacted Korellis regarding Korellis serving as a
subcontractor to complete a portion of the roofing work for
the Ruler Foods store. (Id. ¶ 13.) Korellis
submitted a Proposal to Northcross for a Partial TPO Roof
Replacement. (Id. ¶ 14.) Per the Proposal,
Korellis offered to provide the labor, materials, equipment
and supervision necessary to complete a partial roof
replacement at Ruler Foods in exchange for payment of $84,
530 to be paid within thirty days of the invoice.
(Id. ¶ 15.) Northcross accepted Korellis'
proposal. (Id. ¶ 16.)
alleges that it completed its work and all of its
obligations, issued an invoice demanding payment, but that
Northcross refused to pay Korellis. (Id.
¶¶ 17, 34-35.) Korellis also claims that Israel,
the owner of the property, paid Korellis for the Ruler Foods
construction project for the roofing work performed by both
Korellis and Northcross. (Id. ¶ 18.) The first
amended complaint alleges that “David S. Israel and/or
Learsi & Co. specifically entrusted the Defendant with
$85, 590.09 that was to be paid to and belonged to the
Plaintiff.” (Id. ¶ 19.) In other words,
the first amended complaint alleges that Northcross took
possession of and asserted control over the funds belonging
to Korellis, and that Northcross refused to transfer the
funds to Korellis. (Id. ¶¶ 19, 22-23.)
contends that Northcross breached the parties' contract,
is guilty of conversion, and claims it is entitled to treble