United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant DooleyMack
Constructors of South Carolina, LLC's partial motion to
dismiss Plaintiff Factor King, LLC's breach of contract
causes of action (ECF No. 6). For the reasons set forth
herein, DooleyMack's motion is granted without prejudice.
action arises out of a factoring arrangement between Factor
King, non-party Industrial Machine & Fabrication, Inc.,
and DooleyMack. Factor King alleges that it purchased
Industrial's accounts receivable, and that DooleyMack was
the account debtor on those accounts receivable. Thus, after
Factor King purchased Industrial's accounts receivable,
DooleyMack was obligated to make payments to Factor King,
rather than Industrial, for the services that Industrial
provided to DooleyMack. Factor King alleges that it has three
breach of contract causes of action against DooleyMack
arising out of three separate estoppel
agreements that DooleyMack has breached by failing to
make payments. DooleyMack disagrees, arguing that the
estoppel agreements cannot constitute valid contracts because
Factor King has not properly alleged that they were supported
by consideration and that they were offered and accepted.
filed its partial motion to dismiss on August 30, 2017, and
Factor King responded on September 12. DooleyMack did not
file a reply. Accordingly, this matter is ripe for
motion to dismiss pursuant Rule 12(b)(6) for failure to state
a claim upon which relief can be granted “challenges
the legal sufficiency of a complaint.” Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations
omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A
motion to dismiss under Rule 12(b)(6) . . . does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”). To be legally sufficient,
a pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
the Supreme Court articulated a “two-pronged
approach” to test the sufficiency of a complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First,
the complaint must “contain factual allegations in
addition to legal conclusions.” Robertson v. Sea
Pines Real Estate Cos., 679 F.3d 278, 288 (4th Cir.
2012). Under Rule 8's pleading standard, “a
formulaic recitation of the elements of a cause of action
will not do, ” id. (quoting Twombly,
550 U.S. at 555) (internal quotation marks omitted), and
“‘naked assertion[s]' devoid of
‘further factual enhancement'” will not
suffice, Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557). Second, the complaint
must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). “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.” Id. (citing
Twombly, 550 U.S. at 556). More specifically, the
complaint must demonstrate that the plaintiff's right to
relief is more than a mere possibility, but it need not rise
to the level of evincing a probability of success.
Id. Accordingly, “[d]etermining whether a
complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679.
ruling on a Rule 12(b)(6) motion to dismiss, the trial judge
must accept as true all of the facts alleged in the
plaintiff's complaint and construe all reasonable
inferences in favor of the plaintiff. E.g., E.I.
du Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011). The court must determine
whether the allegations give rise to a plausible right to
relief, Iqbal, 556 U.S. at 679; however, it should
“not accept ‘legal conclusions couched as facts
or unwarranted inferences, unreasonable conclusions, or
arguments, '” United States ex rel. Nathan v.
Takeda Pharm. N. Am., Inc., 707 F.3d 451, 455 (4th Cir.
2013) (quoting Wag More Dogs, LLC v. Cozart, 680
F.3d 359, 365 (4th Cir. 2012)); see also Iqbal, 556
U.S. at 678 (“[T]he tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”). Thus, although
the court must accept a plaintiff's well-pleaded factual
allegations as true for purposes of ruling on the motion, the
complaint must nevertheless satisfy the
“two-pronged” test articulated by the Supreme
Court. Iqbal, 556 U.S. at 679.
motion is based on two separate theories: lack of
consideration and lack of offer and acceptance. “The
necessary elements of a contract are an offer, acceptance,
and valuable consideration.” Roberts v.
Gaskins, 486 S.E.2d 771, 773 (S.C. Ct. App. 1997)
(citing Carolina Amusement Co. v. Conn. Nat'l Life
Ins. Co., 437 S.E.2d 122 (S.C. Ct. App. 1993)).
“‘Valuable consideration to support a contract
may consist of some right, interest, profit or benefit
accruing to one party, or some forbearance, detriment, loss
or responsibility given, suffered or undertaken by the
other.'” Plantation A.D., LLC v. Gerald
Builders of Conway, Inc., 687 S.E.2d 714, 718 (S.C. Ct.
App. 2009) (quoting Prestwick Golf Club, Inc. v.
Prestwick Ltd. P'ship, 503 S.E.2d 184, 186 (S.C. Ct.
King asserts that the estoppel agreements do contain
consideration because Factor King “promised to provide
financial accommodation keeping [DooleyMack's] contractor
and employees on the job (from which it benefited and had
value) and [Factor King] received the promise that
[DooleyMack] would not assert payment defenses against
it.” (Pl.'s Mem. Opp'n Def.'s Partial Mot.
Dismiss, ECF No. 9, at 3.) DooleyMack disagrees, stating that
Factor King did not allege that the estoppel agreements were
supported by consideration in its complaint, and that the
estoppel agreements “do not confer any benefit on
DooleyMack.” (Def.'s Partial Mot. Dismiss, ECF No.
6, at 5.)
Court agrees with DooleyMack that Factor King's complaint
is devoid of the allegations that form the basis of Factor
King's arguments regarding consideration. Specifically,
Factor King does not allege in its complaint that the
estoppel agreements are supported by consideration, nor does
it allege how those agreements benefited DooleyMack. Instead,
Factor King has argued those matters exclusively in its brief
opposing DooleyMack's motion to dismiss. Because those
matters are outside of the pleadings, and are also
unsupported by any other evidence in a form such that the
Court could convert this motion to a motion under Federal
Rule of Civil Procedure 12(d), the Court grants
DooleyMack's partial motion to dismiss without
prejudice.See Goode v. Central Va. Legal Aid
Soc'y, Inc.,807 F.3d 619, 624 (4th Cir. 2015)
(stating that the Fourth Circuit lacks ...