UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

AKB WIRELESS, INC.,

Plaintiff/Counter-Defendant,

v. Case No. 14-13424

WIRELESS TOYZ FRANCHISE, LLC, Sean F. Cox

United States District Court Judge

Defendant/Counter-Plaintiff/

Third-Party Plaintiff,

v.

ALAN BAHNAM,

Third-Party Defendant.

_________________________________/

OPINION & ORDER

This matter is currently before the Court on Wireless Toyz Franchisee, LLC’s Motion to

Dismiss AKB Wireless, Inc.’s Second Amended Complaint, which was brought pursuant to Fed.

R. Civ. P. 12(b)(6). The Court finds that the issues have been adequately presented in the

parties’ briefs and that oral argument would not significantly aid the decisional process. See

Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. The Court therefore

orders that the motion will be decided upon the briefs. For the reasons set forth below, the Court

shall grant the motion in part and deny it in part. The Court shall grant the motion to the extent

that it shall dismiss the Conversion Count (Count II) and the count that asserts an Action for

Accounting (Count IV). The Court shall deny the motion in all other respects. 

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BACKGROUND 

Alan Bahnam (“Bahnam”) is an individual who entered into a Franchise Agreement, and

other agreements, with Wireless Toyz Franchise, LLC (“Wireless Toyz”), so that he could open

a franchise retail store in Florida. He later formed AKB Wireless, Inc. (“AKB”) and assigned all

of the rights and obligations under the Franchise Agreement from Bahnam to AKB. 

This action was transferred to this Court on September 4, 2014, from the United States

District Court for the Middle District of Florida. The action is in federal court based upon

diversity jurisdiction.

AKB’s First Amended Complaint (D.E. No. 2) asserted the following claims against

Wireless Toyz: “Count I – Breach of Contract,” “Count II – Violation of Michigan Franchise

Investment Law,” and “Count III – Breach of the Covenant of Good Faith and Fair Dealing.”

Wireless Toyz then filed a two-count Counter-Complaint against AKB and a two-count

Third-Party Complaint against Bahnam. They contain the same two counts: 1) a declaratory

judgment claim; and 2) a breach of contract claim. 

AKB and Bahnam filed a Motion to Dismiss challenging Wireless Toyz’s claims. This

Court issued an Opinion & Order on April 13, 2015 denying that motion. (See D.E. No. 33). 

Notably, in connection with that motion, AKB and Bahnam had wanted this Court to evaluate all

of the various alleged breaches. This Court declined to take such an approach on a motion to

dismiss, explaining: 

. . . Wireless Toyz has sufficiently pleaded a breach of contract cause of action

against AKB and Bahnam. Whether Wireless Toyz can ultimately prevail on

such a claim, is not properly before this Court on a Motion to Dismiss brought

pursuant to Fed. R. Civ. P. 12(b)(6). As Wireless Toyz’s brief notes, AKB and

Bahnam’s motions make a litany of arguments as to why they believe Wireless

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Toyz will not be able to prevail on its claims. (See D.E. No. 27 at Pg ID 1016)

(“AKB’s disingenuous arguments do not actually constitute challenges to

Wireless Toyz’s well-pleaded allegations, but, rather, at best, merely comprise

affirmative defenses and factual and legal disputes for trial.”).

In Bahnam’s Reply Brief, he asserts that “even if this Court permits

W[ireless] to assert a breach of contract claim based on the intra-term noncompete, W[ireless] should not be permitted to bring any of its other breach of

contract claims.” (D.E. No. 32). In other words, even if the Court concludes that

Wireless has sufficiently pleaded a breach of contract claim against AKB and

Bahnam based upon the allegations that they violated the non-compete covenants,

they believe this Court should nevertheless go on to analyze their arguments as to

any additional alleged breaches.

The Court disagrees and concludes that this argument misunderstands the

nature of a Motion to Dismiss brought under Fed. R. Civ. P. 12(b)(6).

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal where

the complaint fails to state a claim upon which relief can be granted. Dismissal is

appropriate if the plaintiff fails to offer sufficient factual allegations that make the

asserted claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007).

“Nothing in Twombly, however, contemplates [such a] ‘dismemberment’

approach to assessing the sufficiency of a complaint. Rather, a district court must

consider a complaint in its entirety without isolating each allegation for

individualized review.” In re Pressure Sensitive Labelstock Antitrust Litig., 566

F.Supp.2d 363, 373 (M.D. Penn. 2008). As the Supreme Court observed in

Twombly, “the complaint warranted dismissal because it failed in toto to render

plaintiffs’ entitlement to relief plausible.” Twombly, 127 S.Ct. at 1973 n.14.

Wireless asserted a single “Breach of Contract” count against both AKB

and Bahnam, that alleges that they breached the Franchise Agreement in more

than one way. As set forth above, Wireless Toyz has sufficiently pleaded a

breach of contract cause of action against AKB and Bahnam based upon the

alleged violations of the non-compete covenants. As such, Wireless Toyz has

sufficiently pleaded a breach of contract cause of action against both AKB and

Bahnam. Accordingly, AKB is not entitled to dismissal of Count II of Wireless

Toyz’s October 22, 2014 Counterclaim against it and Bahnam is not entitled to

dismissal of Count II of Wireless Toyz’s Third-Party Complaint against him. 

There is no need for the Court to further address AKB and Bahnam’s

arguments as to other alleged breaches because, even if they had merit, Wireless

Toyz has still sufficiently pleaded a breach of contract cause of action against

both AKB and Bahnam. It would not be appropriate for the Court – at the

pleading stage – to go on to evaluate the litany of arguments and defenses raised

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in AKB and Bahnam’s motions. Such arguments are more appropriate for the

summary judgment stage of the litigation.

(D.E. No. 33 at 11-12).

On May 26, 2015, the Court issued a Scheduling Order in this action (D.E. No. 38) that

provides that: 1) amendments to the complaint must be made by June 30, 2015; 2) discovery is to

be completed by January 4, 2016; and 3) motions must be filed by February 8, 2016.

AKB’s Second Amended Complaint

AKB filed a Second Amended Complaint (“SAC”) on June 30, 2015 (D.E. No. 39).

AKB’s SAC now contains the following counts against Wireless Toyz1

: 1) “Breach of Contract”

(Count I); 2) “Statutory and/or Common Law Conversion” (Count II); 3) “Breach of Fiduciary

Duties” (Count III); 4) “Action for Accounting” (Count IV). 

AKB’s SAC alleges that “AKB entered into a franchise agreement with Wireless Toyz on

or about July 3, 2017” and states that a “copy of the Franchise Agreement is attached hereto as

Exhibit ‘A.’” (SAC at 3 n.1). But Counsel apparently forgot to include the exhibit. 

Nevertheless, the Court has the July 3, 2007 Franchise Agreement because it was attached to

AKB’s First Amended Complaint. (See D.E. No. 2-1).

1. Breach of Contract Count

In Count I of its SAC, AKB alleges that it “entered into a valid and enforceable Franchise

1

Notably, the caption of that SAC lists Wireless Toyz as the only Defendant and in

docketing the motion the filer marked “No New Parties Added.” The first paragraph of the SAC,

however, states that it is “against Defendant, Wireless Toyz Franchisee, LLC and Joe Barbat.” 

(Id. at Pg ID 1484) (emphasis added). But Barbat is not listed in the section of the SAC titled,

“Parties, Jurisdiction and Venue.” (Id. at 2-3). As a result, the docket does not indicate that

Barbat is a party in this action. 

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Agreement with Wireless Toyz.” (SAC at ¶ 40). AKB alleges that “Wireless Toyz materially

breached” the Franchise Agreement in the following ways: 1) “constructively terminating the

Franchise Agreement by failing to transition to a single carrier business model;” 2) “actively

converting Wireless Toyz locations to single carrier retailers under independent brand names and

failing to promote the Wireless Toyz franchise system;” 3) “failing to provide the advertising,

training, support and guidance called for under the Franchise Agreement;” 4) “wrongfully

terminating the Franchise Agreement pursuant to its November 27, 2013 Notice of Termination;”

5) “failing to approve the substitute locations that AKB submitted to Wireless Toyz for

approval;” and 6) “refusing to provide AKB $120,000 in commissions that Wireless Toyz owes

to AKB under the Franchise Agreement.” (SAC at 11-12).

2. Statutory and/or Common Law Conversion Count

Count II of the SAC asserts a claim for conversion. AKB alleges that it “earned certain

commissions from carriers arising out of the sale of cellular services,” and that those

commissions “were provided by the carriers to Wireless Toyz, who in turn, deposited the

amounts into a Commission Trust Account (‘CTA’).” (SAC at ¶ 45). It alleges that such funds

“constitute money and/or property that belong to the individual franchisees including AKB.” 

( Id. at ¶ 46). It claims that “Wireless Toyz has received approximately $120,000 in carrier

commissions belonging to AKB that it has refused to distribute” and that “[o]n December 24,

2013, AKB notified Wireless Toyz in writing that it was wrongfully retaining” those funds and

demanded the funds be provided to it but they were not provided to it. (Id. at ¶ 50-51). Through

these acts, AKB alleges that Wireless Toyz “exercised domain [sic] over AKB’s property in a

manner that was inconsistent [with] it right and/or entitlement to said property.” (Id. at ¶ 52) . 

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Count II cites a Michigan statute governing conversion, Mich. Comp. Laws § 600.2919a, and

AKB alleges that it is entitled to treble damages under that statute. (SAC at ¶ ¶ 55-56).

3. Breach of Fiduciary Duties Count

Count III of AKB’s Second Amended Complaint, titled “Breach of Fiduciary Duties,” 

alleges that:

59. At all relevant times, Defendants, Wireless Toyz, Joe Barbat (and other

potential officers) had control over the CTA.

60. In managing and maintaining the CTA for the benefit of AKB and all

franchisees, Defendant assumes common law fiduciary duties of good

faith and loyalty towards AKB and its other franchisees with respect to the

administration of the CTA.

61. Defendants Wireless Toyz, Joe Barbat (and other potential officers)

violated their fiduciary duties of good faith and loyalty towards AKB with

respect to the CTA by failing and refusing to deliver to AKB the

commissions that were owed to it and by misappropriating those funds for

their own personal and/or corporate use.

62. As a proximate result of the Defendants’ violations of their fiduciary

duties, AKB has been deprived of commissions that are owed and

therefore suffered significant financial harm.

(SAC at 15-16).

4. Action for Accounting Count

Count IV is titled “Action for Accounting” and it alleges that per the terms the parties

written Franchise Agreement, “Wireless Toyz receives commission payments from AKB’s

cellular providers, which AKB earns as a result of its sales of the cellular providers’ goods and

services.” (SAC at ¶ 64). AKB alleges:

65. Per the terms and conditions of the parties’ franchisee agreement,

Wireless Toyz obligated itself to pay AKB commission it received as a result of

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AKB’s effort in marketing and promoting and selling their wireless carrier’s

products and services. 

66. On information and belief, Wireless Toyz has refused to honor its

contractual obligations to pay AKB the commission paid to Wireless Toyz, which

were earned by AKB through substantial efforts in marketing, promoting, and

selling their wireless carrier’s goods and services. 

67. At all relevant times, Wireless Toyz purported to and received AKB’s

commission revenue in its CTA that it held, controlled and administered for the

benefit of AKB and other franchisees. 

68. Wireless Toyz failed and has refused to properly track and account for

those revenues belonging AKB. 

69. Upon information and belief, Wireless Toyz (according to its patterns

and practices) has transferred and/or swept out of its CTA the commissions

belonging to AKB. 

70. Under the terms of the franchise agreement, Michigan Franchise

Protection Act, and common law, Wireless Toyz owed AKB a duty to use skill

and good judgment in managing the CTA and to provide full and complete

information concerning deposit, withdrawals, and accrued interest. 

71. Wireless Toyz has failed and refused to provide information, including

financial information with regards to the AKB’s fund deposited into and/or

transferred out of the CTA. 

72. In order to ascertain what amounts are due and owing to AKB and/or

whether any amounts due and/or owing to AKB have been wrongfully

misappropriated a full and complete reconciliation and/or accounting of Wireless

Toyz CTA is necessary. 

(SAC at ¶¶ 65-72).

Wireless Toyz’s Motion To Dismiss

On July 15, 2015, Wireless Toyz filed a Motion to Dismiss AKB’s Second Amended

Complaint, brought pursuant to Fed. R. Civ. P. 12(b)(6). (D.E. No. 40). 

Standard of Decision

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Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case where the

complaint fails to state a claim upon which relief can be granted. When reviewing a motion to

dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to

the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the

plaintiff.” DirectTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Dismissal is appropriate

if the plaintiff failed to offer sufficient factual allegations that make the asserted claim plausible

on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In practice, a complaint

must contain either direct or inferential allegations respecting all the material elements to sustain

a recovery under some viable legal theory. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716,

726 (6th Cir. 1996).

In adjudicating a motion to dismiss under Fed.R.Civ.P. 12(b) (6), the Court generally

does not consider matters outside the pleadings. Nevertheless, Fed.R.Civ.P. 10(c) provides that a

“copy of a written instrument that is an exhibit to a pleading is part of the pleading for all

purposes.” Fed.R.Civ.P. 10(c). In this case, the exhibits to the parties’ pleadings include the July

3, 2007 Franchise Agreement. This Court may consider that document in deciding the pending

Motion to Dismiss. Id.; see also Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508

F.3d 327, 335-336 (6th Cir. 2007).

ANALYSIS

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Wireless Toyz’s Motion to Dismiss challenges all four of the claims asserted against it in

AKB’s SAC.

I. Breach of Contract 

Count I of AKB’s SAC asserts a claim for breach of contract. Count I alleges that “AKB

entered into a valid and enforceable Franchise Agreement with Wireless Toyz.” (SAC at ¶ 40). 

Wireless Toyz agrees that the parties have a valid written Franchise Agreement. 

In order to establish a breach of contract claim under Michigan law, the plaintiff must

establish the existence of a valid contract, the terms of the contract, the specific actions that

breached those terms, and the damages that the breach caused to the plaintiff. Brigolin v. Blue

Cross Blue Shield of Michigan, 516 F. App’x 532, 536 (6th Cir. 2013) (citing In re Brown, 342

F.3d 620, 628 (6th Cir. 2003)).

Wireless Toyz’s position is that AKB cannot establish any of the claimed breaches in

light of the express provisions in the Franchise Agreement. 

In the SAC, AKB alleges that “Wireless Toyz materially breached” the Franchise

Agreement in the following ways: 1) “constructively terminating the Franchise Agreement by

failing to transition to a single carrier business model;” 2) “actively converting Wireless Toyz

locations to single carrier retailers under independent brand names and failing to promote the

Wireless Toyz franchise system;” 3) “failing to provide the advertising, training, support and

guidance called for under the Franchise Agreement;” 4) “wrongfully terminating the Franchise

Agreement pursuant to its November 27, 2013 Notice of Termination;” 5) “failing to approve the

substitute locations that AKB submitted to Wireless Toyz for approval;” and 6) “refusing to

provide AKB $120,000 in commissions that Wireless Toyz owes to AKB under the Franchise

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Agreement.” (SAC at 11-12).

In ruling on the pending Motion to Dismiss, the Court does not need to rule on each of

the various ways that AKB alleges that Wireless Toyz breached the parties’ contract. That is

because if any one of those alleges breaches is viable, then the Breach of Contract Count should

not be dismissed for failure to state a claim and the claim remains in the action.

AKB alleges that Wireless Toyz breached the franchise agreement by, among other

things, “refusing to provide AKB $120,000 in commissions that Wireless Toyz owed to AKB

under the Franchise Agreement.” (SAC at ¶ 41). Wireless Toyz’s brief argues that disputes

regarding commissions owed are going to governed by the provisions in the Franchise

Agreement. (See Wireless Toyz’s Br. at Pg ID 1528). That is true. But whether or not AKB is

actually owed any commissions, even in light of the various contractual provisions, is a factual

issue that will require the Court to look at matters outside of the pleadings. 

In sum, this is a motion brought under Fed. R. Civ. P. 12(b)(6), brought prior to the close

of discovery. Wireless Toyz’s challenges to AKB’s breach of contract count are more

appropriately raised at the summary judgment stage of this litigation. This is especially so given

that this Court already declined to analyze a motion to dismiss on a breach-by-alleged-breach

basis earlier in this very same case.

II. Conversion

Wireless Toyz’s motion asserts that AKB’s conversion count fails as a matter of law

because, pursuant to the Franchise Agreement, Wireless Toyz lawfully exercised dominion and

control over commission payments received from wireless carriers. Indeed, as Wireless Toyz

notes, AKB asserts that Wireless Toyz breached the parties’ written contract by not paying AKB

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$120,000 in commissions that it is owed under the contract.

In challenging this claim for statutory conversion, Wireless Toyz directs the Court cases

that address statutory conversion claims that are based upon the alleged conversion of money:

The common law tort of “conversion is defined as ‘any distinct act of domain

wrongfully exerted over another’s personal property in denial of or inconsistent

with the rights therein.’” Head v. Phillips Camper Sales & Rental, Inc., 234 Mich.

App. 94, 111; 593 N.W.2d 595 (1999) (Ex. I) . . . “To support an action for

conversion of money, the defendant must have had an obligation to return the

specific money entrusted to his care.” Id. (emphasis added). That is, “[t]he

defendant must have obtained the money without the owner’s consent to the

creation of the debtor and creditor relationship.” Id. at 112 (emphasis added).

(Wireless Toyz’s Br. at Pg ID 1532) (emphasis in original). Wireless Toyz’s motion asserts that

the parties expressly agreed, in their written contract, that wireless carriers would remit

commission payments to Wireless Toyz and that Wireless Toyz would possess and administer

those commission payments as provided in the contract. Thus, Wireless Toyz argues that it was

contractually authorized to receive the commission payments at issue and it therefore did not

come into possession of those payments without the putative owner’s consent. 

In response, AKB directs the Court to Aroma Wines & Equip., Inc. v. Columbian Dist.

Servs., Inc., 2013 WL 6670573 (Mich. App. 2015). Notably, however, that case has nothing to

do with the alleged conversion of money. Rather, it involves the alleged conversion of personal

property – crates of wine. AKB’s response brief does not discuss any of the cases cited by

Wireless Toyz that involve conversion claims that are based upon the alleged conversion of

money.

And, as a case cited by Wireless Toyz in its Reply shows, this Court has previously ruled

that a party failed to plead a statutory conversion claim when that claim was based upon funds

held pursuant to a contract and where the conversion claim was not based on some duty

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independent of the contract:

“Conversion is only applicable in cases involving money that is the

property of one party but held by another party (e.g., bank accounts, trusts, etc.)

which is then wrongfully taken.” Sudden Serv. Inc. v. Brockman Forklifts, Inc.,

657 F.Supp.2d 811, 816 (E.D. Mich.2008). “To support an action for conversion

of money, the defendant must have an obligation to return the specific money

entrusted by plaintiff to his care.” Llewellyn–Jones v. Metro Property Group,

LLC, 22 F.Supp.3d 760, 788 (E.D.Mich.2014) (quoting El Camino Res., Ltd. v.

Huntington Nat’l Bank, 722 F.Supp.2d 875, 915 (W.D. Mich.2010)). “A

conversion claim ‘cannot be brought where the property right alleged to have

been converted arises entirely from the [plaintiff's] contractual rights.’ ” Id.

(quoting James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC,

941 F.Supp.2d 807, 827 (E.D.Ky. 2013)).

Plaintiffs have not alleged that Defendants were holding Plaintiffs’

property pursuant to some duty independent of their alleged contractual duty.

Rather, Plaintiffs claim that they paid Defendants $169,000 pursuant to the

parties’ contract, but that Defendants failed to perform their contractual duties.

Plaintiffs have failed to allege that Defendants had an independent duty to return

Plaintiffs’ funds. In fact, had Defendants performed their alleged contractual

duties, they would have had no obligation to return Plaintiffs’ funds. Thus, the

Court finds that Plaintiffs have not pleaded a statutory conversion claim

against Defendants.

Law Offices of Christopher J. Trainor v. Pittman, 2015 WL 3948885 at *4 (E.D. Mich. 2015)

(emphasis added). 

The Ledger case cited by Wireless Toyz in its opening brief also supports dismissal of

AKB’s conversion claim:

In making his case for conversion, plaintiff argues as if to suggest that any

time one party is found to have owed another some money following a protracted

dispute, the first has converted the amount owed. Such a scenario, however, is far

too broad to be encompassed by the tort of conversion. An action for conversion

of money cannot be maintained unless there is an obligation on the part of the

defendant to “return” specific monies “entrusted” to his care. Head v. Phillips

Camper Sales & Rental, Inc, 234 Mich.App 94, 111; 593 NW2d 595 (1999).

Here, plaintiff’s position at trial was simply that he had a contractual right to

more money than that paid to him by defendant. Thus, even if plaintiff succeeded

in proving that defendant was obliged to pay him certain sums in contract

damages, plaintiff never suggested, let alone proved, that defendant had any

obligation to “return” to plaintiff monies that plaintiff had “entrusted” to

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defendant’s care. This was a contract case, not a tort case, and the trial court

properly recognized that distinction.

Leger v. Image Data Svs., 2002 WL 1463555 (Mich. App. 2002).

Accordingly, the Court shall dismiss AKB’s conversion claim. To the extent that AKB is

owed commissions under the contract, that claim sounds in contract, not tort.

III. Breach of Fiduciary Duty Claim

In Count III, AKB asserts a breach of fiduciary duty claim against Wireless Toyz. 

Wireless Toyz challenges this count in a single paragraph, wherein it asserts:

“[T]he Sixth Circuit has explicitly held, as a matter of law, that relationships

between franchisees and franchisors do not give rise to fiduciary or confidential

relationships between the parties.” Ace Hardware Corp. v. Oxford Village

Hardware, Inc., 2009 WL 236704, *6 n.8 (E.D. Mich. Feb. 2, 2009) (emphasis

added) (Rosen, J.) (Ex. K) (citing O’Neal v. Burger Chef Systems, Inc., 860 F.2d

1341, 1349-1350 (6th Cir. 1988); McGuirk Oil Co. v. Amoco Oil Co., 889 F.2d

734, 737-738 (6th Cir. 1989)). Nothing more needs to be said as to AKB’s breach

of fiduciary duty claim. Count III of AKB’s SAC should therefore be dismissed

as

a matter of law pursuant to Fed. R. Civ. P. 12(b)(6).

(Wireless Toyz’s Br. at Pg ID 1534) (emphasis in original).

The footnote cited by Wireless Toyz in Ace was dicta, in a non-binding district court

decision, because the breach of fiduciary duty counterclaim in that case had not been challenged. 

Moreover, in its response to the motion, AKB notes the district court in Ace “merely held

that the traditional franchisor-franchisee relationship itself does not create a fiduciary duty on the

part of the franchisor.” (AKB’s Br. at 22). AKB stresses that it does not contend that Wireless

Toyz has a fiduciary duty simply by virtue of being AKB’s franchisor. Rather, it alleges that the

fiduciary duty arose by virtue of the arrangement under which Wireless Toyz would obtain

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commissions from third-party carriers and hold them in a trust accounts for franchisee’s like

AKB. (Id.).

None of the cases cited by Wireless Toyz involve such arrangements. Wireless Toyz has

not established that Count III should be dismissed.

IV. Action for Accounting Count

Finally, Wireless Toyz seeks dismissal of Count IV of the SAC, titled “Action for

Accounting.”

Under Michigan law, an action for accounting is equitable in nature, but whether a

plaintiff has stated a cause of action for an accounting must be determined from the facts pled in

the plaintiff’s complaint.” Boyd v. Nelson Credit Ctrs, Inc., 132 Mich. App. 774, 779 (1984).

To establish a claim for an accounting, there generally must be “mutual demands, a series

of transactions on one side, and payments on the other. Where all the items are on one side,

there can be no accounting.” Id.

“An action for accounting is proper,” however, “although the accounts are not mutual, if

there are circumstances of great complication or difficulty in the way of adequate relief at law.”

McDerment v. Biltmore Properties, Inc., 2005 WL 3556147 at * 10 (6th Cir. 2005) (citing

Basinger v. Provident Life & Accident Ins. Co., 67 Mich. App. 1, 9 (1976)); see also Digital

2000, Inc. v. Bear Commc’ns, Inc., 130 F. App’x 12, 23 (6th Cir. 2005) (noting that under

Michigan law, an equitable accounting action is permissible where the accounts at issue “were

greatly complicated.”).

“An accounting is unnecessary where discovery is sufficient to determine the amounts at

issue.” Boyd, 132 Mich. App. at 779; see also Digital 2000, Inc., supra, at 23 (noting that “[i]n

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light of the broad discovery available to litigants, accounting actions are of dubious utility” and

ruling that an accounting action is not the proper mechanism to recover the money allegedly

owed where the accounts at issue were not greatly complicated and the plaintiff could have

determined the amount owed through discovery.).

Here, AKB’s SAC contains no allegations of a series of mutual demands. Nor do the

allegations in the SAC support an inference that the transactions at issue are so complex that

ordinary discovery procedures would be inadequate to allow AKB to determine the amounts

allegedly owed to it. The Court therefore concludes that AKB has failed to state a cause of

action for an accounting under Michigan law. Boyd, 132 Mich. App. at 779-80; McDerment,

supra; Thomas v. City of Detroit, 2007 WL 674593 at * 12 (E.D. Mich. 2007). The Court shall

dismiss Count IV of AKB’s SAC.

CONCLUSION & ORDER

For the reasons set forth above, IT IS ORDERED that Wireless Toyz Franchisee, LLC’s

Motion to Dismiss AKB Wireless, Inc.’s Second Amended Complaint is GRANTED IN PART

AND DENIED IN PART. The motion is GRANTED to the extent that Court DISMISSES

Count II and Count IV. The motion is DENIED in all other respects.

IT IS SO ORDERED. 

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: December 15, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of record on

December 15, 2015, by electronic and/or ordinary mail.

S/Jennifer McCoy 

Case Manager

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