The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Muscatine Mall Associates, LLC, ("Muscatine"), owner of Muscatine Mall, filed suit against defendant Menard, Inc. ("Menard"), a retail home improvement store, involving this court's diversity jurisdiction, 28 U.S.C. §1332, seeking damages for an alleged breach of a lease agreement ("Lease"). Plaintiff demands damages in the amount of $419,173.58, plus continuing common area maintenance ("CAM") charges, interest and late fees allegedly owed under the terms of the Lease. Defendant has moved to dismiss, arguing that it did not breach the Lease based on a plain and unambiguous reading of the Lease. For the reasons stated below, defendant's motion to dismiss is denied.
Plaintiff Muscatine is a Delaware limited liability company with its principal place of business in Chicago, and defendant Menard is a Wisconsin corporation with its principal place of business in Eau Claire. Plaintiff is the owner of Muscatine Mall, located in Muscatine, Iowa. Defendant is a retail store that specializes in selling home improvement products and lumber with stores throughout the midwestern United States. In September 1997, defendant entered into a lease agreement with the then-owner of Muscatine Mall, Tristate Joint Venture, to operate one of its stores in Muscatine Mall. The Lease includes the following relevant terms: Section 1.1(D).
"Premises" means Tenant's portion of Landlord's Building shown on Schedule "A" having the following Area:
Interior Floor Area: 72,000 square feet Exterior Floor Area: 130,000 square feet * ** * * * Section 5.1. Rentals Payable ("Rental Clause").
Tenant covenants and agrees to pay to Landlord as rental ("Rental") for the Premises, the following:
(a) the Annual Basic Rental specified in clause G of Section 1.1; plus
(b) all additional sums, charges or amounts of whatever nature to be paid by Tenant to Landlord in accordance with the provisions of this Lease, whether or not such sums, charges or amounts are referred to as additional rental (collectively referred to as "Additional Rental");
provided, however, that the Annual Basic Rental shall be adjusted proportionately for any Rental Year of more or less than twelve (12) calendar months.
Tenant shall not be required to pay Rental for the Exterior Floor Area.
Section 10.4. Tenant to Share Expense of Common Areas ("CAM Clause").*fn1
Tenant will pay Landlord, as Additional Rental, a share of Landlord's Operating Costs which shall be an amount equal to Fifty Cents ($0.50) (the "Base Amount") per square foot of the Premises, per annum, for the first Rental Year. For all other Rental Years, the Base Amount shall annually increase or decrease in the same proportion as Landlord's Operating costs shall have increased or decreased as compared to the prior year.Failure of Landlord to provide ...