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ALLIED METAL CO. v. EDGERTON METAL PRODS.

December 19, 1995

ALLIED METAL COMPANY, Plaintiff,
v.
EDGERTON METAL PRODUCTS, INC. and EDGERTON METALS CORP., Defendants.



The opinion of the court was delivered by: ALESIA

 Plaintiff, Allied Metal Company ("Allied"), brought this action against Edgerton Metal Products, Inc. ("EMP") alleging account stated, breach of contract, and unjust enrichment. Allied later added Edgerton Metals Corporation ("EMC") as an additional defendant. EMP has filed a motion to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(2) and (6) or, in the alternative, to transfer venue pursuant to 28 U.S.C. § 1404(a). EMC has filed a motion to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(5).

 I. FACTS

 Allied commenced this action against EMP on May 19, 1995, alleging account stated, breach of contract, and unjust enrichment. EMP answered the original complaint on July 5, 1995. On August 15, 1995, Allied filed an amended complaint, adding EMC as a defendant. Allied is an Illinois corporation; EMP and EMC are Ohio corporations.

 Prior to November, 1993, EMP manufactured metal die cast products. Allied is a supplier of smelted and refined aluminum and related products. EMP began ordering goods from Allied in 1985. On November 15, 1993, EMP sold its assets to EMC, which now operates from the same location as EMP did prior to the sale. Allied was unaware of the sale of assets.

 Allied received nine orders from someone at "Edgerton" between February 28, 1995 and April 26, 1995. Allied accepted, prepared, and shipped the goods, along with invoices, to "Edgerton Metal Products" at 218 E. Bement, Edgerton, Ohio, similar to its past practices. The goods were accepted in Ohio but payment has not been received by Allied.

 Allied then filed its complaint. Soon thereafter, Allied received notification that the goods had, in fact, been ordered by EMC, not EMP. After receiving leave from the court, Allied amended its complaint to include EMC as a defendant.

 II. DISCUSSION

 EMP and EMC have each filed motions to dismiss. The court considers each defendant's motion in turn, beginning with EMP.

 A. EMP

 EMP moves to dismiss Allied's complaint on the grounds that this court lacks personal jurisdiction over EMP and that Allied has failed to state a claim upon which relief can be granted. Rule 12(h) *fn1" provides for the waiver of certain Rule 12(b) defenses if they are not raised in the first responsive pleading. See O'Brien v. R.J. O'Brien & Associates, Inc., 998 F.2d 1394, 1399 (7th Cir. 1993). Lack of jurisdiction over the person is included among these defenses that will be waived. See Varone v. Varone, 392 F.2d 855, 857 (7th Cir.), cert. denied, 393 U.S. 872, 21 L. Ed. 2d 141, 89 S. Ct. 162 (1968). As stated previously, EMP filed an answer to the complaint on July 5, 1995. In this answer, EMP did not raise the defense of lack of personal jurisdiction over the person. Therefore, this defense is waived. *fn2" Accordingly, defendant EMP's motion to dismiss pursuant to FED. R. CIV. P. 12(b)(2) is denied.

 Next, EMP asserts that Allied has failed to state a claim upon which relief can be granted against EMP. This defense is not included among those that must be raised in a defendant's first responsive pleading. FED. R. CIV. P. 12(h)(2). In their Rule 12(b)(6) motion, EMP states that a predecessor corporation cannot be held liable for the debts of a successor corporation following a sale to the successor of the predecessor's assets. Therefore, EMP argues that since it sold its assets EMC well before EMC incurred the debts that are the subject of this action, EMP should not be held liable. The court recognizes EMP's argument, however this is not the proper time to raise it

 Under Federal Rule of Civil Procedure 8(a) and the principles of notice pleading, a plaintiff need only made a "short and plain statement of the claim" sufficient to give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. FED. R. CIV. P. 8(a). Plaintiff's claim may only be dismissed if it appears beyond doubt that he "can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957) (footnote omitted). The court also notes that Rule 12(b)(6) motions address the face of the complaint. Marks v. CDW Computer Centers, Inc., 901 F. Supp. 1302, 1308 (N.D. Ill. 1995).

 In this case, the plaintiff Allied has stated three simple claims: account stated, breach of contract, and unjust enrichment. The three claims for relief, while brief, are sufficient for purposes of notice pleading. Accordingly, defendant EMP's motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) is denied. Defendant EMP's argument that it should not be held liable because it is a predecessor corporation, meanwhile, goes entirely outside of the face of the complaint. Furthermore, that argument alone, does not show beyond doubt that plaintiff cannot prove any set of facts against EMP which would ...


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