United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-2612

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Dingxi Longhai Dairy, Ltd., *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Becwood Technology Group L.L.C., *

* [PUBLISHED]

Defendant - Appellee. *

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Submitted: February 14, 2011

Filed: February 17, 2011

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Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Dingxi Longhai Dairy (“Dingxi”) agreed to ship 612 metric tons of Inulin, a

dietary fiber extract, to Becwood Technology Group (“Becwood”), a Minnesota

distributor. The contract called for four shipments from the port of Tianjin-Xingang,

China, to Londonderry, New Hampshire. Becwood received the first two shipments,

paid for one, and refused to pay for the second because of mold on the exterior of the

packaging. Dingxi recalled the third and fourth shipments before they reached their

destination and sued Becwood for breach of contract and fraudulent

misrepresentation. The district court granted Becwood’s Rule 12(b)(6) motion and

dismissed Dingxi’s claims relating to shipments three and four. Nearly two years
later, the district court entered a final order granting Dingxi summary judgment on

its breach-of-contract claim for shipment two. Dingxi Longhai Dairy, Ltd. v.

Becwood Tech. Grp., L.L.C., 718 F. Supp. 2d 1019, 1024 (D. Minn. 2010). Dingxi

now appeals the earlier order dismissing its breach-of-contract claims for shipments

three and four. We reverse. 1

It is undisputed that the contract was governed by the United Nations

Convention on Contracts for the International Sale of Goods (“CISG”), the

“international analogue” to Article 2 of the Uniform Commercial Code (UCC). 

Chicago Prime Packers, Inc. v. Northam Food Trading Co., 408 F.3d 894, 898 (7th

Cir. 2005). In applying the Convention, we look to the language of its provisions and

the “general principles on which it is based.” CISG Art. 7(2). “Caselaw interpreting

analogous provisions of Article 2 . . . may also inform a court where the language of

the relevant CISG provisionstracks that of the UCC.” Delchi Carrier SpA v. Rotorex

Corp., 71 F.3d 1024, 1028 (2d Cir. 1995). With regard to pleading requirements, “the

Convention’s structure confirms what common sense (and the common law) dictate

as the universal elements of [a breach-of-contract] action: formation, performance,

breach and damages.” Magellan Int’l Corp. v. Salzgitter Handel GmbH, 76 F. Supp.

2d 919, 924 (N.D. Ill. 1999). 

For its breach-of-contract claim, Dingxi’s complaint alleged that it timely

delivered all fourshipments “F.O.B. to Tianjin-Xingang Port, China,” asspecified in

the signed purchase order; that Becwood failed to pay for the last three shipments;

and that Dingxi was therefore entitled to recover $1,415,086 “together with interest,

disbursement, costs, expenses and reasonable attorneys’ fees.” Under the UCC, this

would plainly be a § 2-709 “Action for the Price” of the goods by the seller. Under

Dingxi did not appeal dismissal of its misrepresentation claims. Accordingly,

1

that portion of the partial dismissal order is affirmed.

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the CISG, it was a claim by the seller for breach of contract subject to the remedy

provisions in Articles 61-65 and 74-77. See CISG Art. 61(1). 

Becwood moved to dismiss the claim regarding shipments three and four on

the ground that a seller who recalls goods before they reach the buyer may not

“recover as damages, even if you assume that there’s a breach from the buyer, the

very contract price of those goods that the seller retained.” The district court agreed. 

It dismissed the claim on the ground that damages following contract avoidance are

governed by CIGS Art. 76, and therefore “Dingxi has failed to assert cognizable

damages on shipments 3 and 4.” 

2

Article 73(2) of the CISG provides: 2

If one party’s failure to perform any of his obligations in respect of any

instalment gives the other party good grounds to conclude that a

fundamental breach of contract will occur with respect to future

installments, he may declare the contract avoided for the future,

provided that he does so within a reasonable time.

Thus, “avoidance” of a contract under Article 73(2) is analogous to “cancellation”

under the UCC. See §§ 2-106(4); 2-612(3). Article 76(1) provides as to remedies:

If the contract is avoided and there is a current price for the goods, the

party claiming damages may, if he has not made a purchase or resale

under article 75, recover the difference between the price fixed by the

contract and the current price at the time of avoidance as well as any

further damages recoverable under article 74.

Article 74 providesthat damagesfor breach of contract “consist of a sum equal to the

loss, including loss of profit.” Compare the seller’s remedies provided in UCC §§ 2-

703, 2-706, 2-708(1), and 2-708(2), which are “essentially cumulative in nature.” 

R.E. Davis Chem. Corp. v. Diasonics, Inc., 826 F.2d 678, 681-685 (7th Cir. 1987). 

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We can agree that it is highly unlikely -- though not inconceivable -- that an

aggrieved seller in this situation would recover the full contract price for shipments

three and four. But Becwood’s Rule 12(b)(6) motion to dismiss the breach-ofcontract claim was nonetheless ill-conceived: 

The sufficiency of a pleading is tested by the Rule 8(a)(2)

statement of the claim for relief and the demand for judgment is not

considered part of the claim for that purpose, as numerous cases have

held. Thus, the selection of an improper remedy in the Rule 8(a)(3)

demand for relief will not be fatal to a party’s pleading if the statement

of the claim indicates the pleader may be entitled to relief of some other

type.

5 Wright & Miller Federal Practice and Procedure: Civil 3d § 1255 at 508-09 (3d ed.

2004); see Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002); Laird v.

Integrated Resources, Inc., 897 F.2d 826, 841-42 (5th Cir. 1990); Schoonover v.

Schoonover, 172 F.2d 526, 530 (10th Cir. 1949). The amount of damages to be

recovered is based upon the proof, not the pleadings. See Fed. R. Civ. P. 54(c). 

Under the Federal Rules of Civil Procedure, “a court may dismiss a complaint

only if it is clear that no relief could be granted under any set of facts that could be

proved consistent with the allegations.” Swierkiewicz v. Sorema N.A., 534 U.S. 506,

514 (2002) (emphasis added; quotation omitted). Here, Dingxi’s complaint stated

a breach-of-contract claim -- performance of its contractual duty to deliver and the

buyer’s refusal to pay. A fact outside the pleading became part of the Rule 12 record,

apparently without objection -- that Dingxi recalled shipments three and four before

they reached the buyer. That fact will likely preclude recovery of the full contract

price. But if Dingxi provesthat Becwood breached the contract asto shipmentsthree

and four, it is almost certain to be entitled to some monetary relief. Accordingly, the

district court erred in granting Becwood’s Rule 12(b)(6) motion to dismiss.

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The order dismissing Dingxi’s breach-of-contract claims relating to shipments

three and four is reversed. The case is remanded for further proceedings not

inconsistent with this opinion, which may include the matter raised in Dingxi’s

motion to this court for leave to ask the district court to modify its order granting

summary 

judgment on shipment two. As the case is now remanded, that motion is denied as

moot. See In re Modern Textile, Inc., 900 F.2d 1184, 1193 (8th Cir. 1990).

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