UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

AMERICAN POWER, LLC,

Plaintiff, Case No. 3:17-cv-347

vs.

DOUGLAS O. HARRIS, et al., District Judge Michael J. Newman

Magistrate Judge Sharon L. Ovington

Defendants.

DEXTRIX, LLC,

Plaintiff, Case No. 3:21-cv-21

vs.

ADIL BAGUIROV, et al., District Judge Michael J. Newman

Magistrate Judge Sharon L. Ovington

Defendants.

______________________________________________________________________________

ORDER DENYING WITHOUT PREJUDICE TO REFILE DEFENDANTS’ TWO 

MOTIONS TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT (CASE NO. 

3:17-CV-347, DOC. NO. 86; AND CASE NO. 3:21-CV-21, DOC. NO. 6)

______________________________________________________________________________

These consolidated cases are before the Court upon Defendants Fontaine Engineered 

Products, Inc.; Marmon Highway Technologies LLC; Kelly Dier; Henry Prochazka; and Berkley 

Buchanan’s joint motion to dismiss Plaintiff’s first amended complaint (Case No. 3:17-cv-347, 

Doc. No. 86), and the parties’ related memoranda (Doc. Nos. 88, 92). Also before the Court is 

Defendants Adil Baguirov, Islom Shakhbandarov, and American Power LLC’s joint motion to 

dismiss (Case No. 3:21-cv-21, Doc. No. 6), and the parties’ related memoranda (Doc. No. 10 and, 

in Case No. 3:17-cv-347, Doc. No. 87). Both pending motions seek dismissal under Fed. R. Civ. 

P. 12(b)(6) for failure to state a claim upon which relief can be granted.
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I.

Rule 12(b)(6), like all other Federal Rules of Civil Procedure “should be construed, 

administered, and employed by the court and the parties to secure the just, speedy, and inexpensive 

determination of every action and proceeding.” Fed. R. Civ. P. 1.

A motion to dismiss filed pursuant to Rule 12(b)(6) operates to test the sufficiency of the 

complaint and permits dismissal for “failure to state a claim upon which relief can be granted.” To 

survive a Rule 12(b)(6) motion, a plaintiff must satisfy the basic pleading requirements set forth in 

Rule 8(a). Under Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim 

showing that the pleader is entitled to relief.”

A complaint will not suffice if it offers only “labels and conclusions” or “a formulaic recitation 

of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Instead, “a complaint must contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678 

(quoting Twombly, 550 U.S. at 570). A plaintiff must plead “factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a 

complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line 

between possibility and plausibility of “entitlement to relief.” ’ ” Id. (quoting Twombly, 550 U.S. at 

557). In considering whether the facial plausibility standard is met, the court must view the complaint 

in the light most favorable to the plaintiff, accepting as true all allegations in the complaint and drawing 

all reasonable inferences in the plaintiff's favor. See, e.g., Kaminski v. Coulter, 865 F.3d 339, 344 (6th 

Cir. 2017).

II.

Having carefully and thoroughly considered the documents at issue along with the 

procedural posture of this case, the Court believes the efficient and appropriate way forward is to 
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permit discovery to occur and consider the parties’ arguments on summary judgment, not earlier 

at the motion-to-dismiss phase of the litigation. Proceeding in this manner will ensure the Court 

reviews these arguments only after appropriate discovery has been completed, and will thus serve 

to guarantee that the Court’s consideration of the parties’ arguments is not premature. Cf. 

Humphreys v. Bank of Am., 557 F.App’x 416, 422 (6th Cir. 2014); Grose v. Caruso, 284 F.App’x 

279, 284 (6th Cir. 2008) (Gibbons, J., concurring); Nuchols v. Berrong, 141 F.App’x 451, 453 (6th 

Cir. 2005); LRL Prop. v. Portage Metro Housing Auth., 55 F.3d 1097, 1113 (6th Cir. 1995) (Jones, 

J., dissenting).

III.

Accordingly, the two pending motions to dismiss are BOTH DENIED WITHOUT 

PREJUDICE. The Court anticipates reviewing Defendants’ arguments on summary judgment 

following the completion of discovery.

IT IS SO ORDERED.

July 14, 2021 s/Michael J. Newman

Hon. Michael J. Newman

United States District Judge