UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

METTLER-TOLEDO, INC., : 

: 

 Plaintiff, : 

: CASE NO.: 2:18-CV-00494 

vs. : JUDGE GEORGE C. SMITH 

: MAGISTRATE JUDGE VASCURA 

B&B ELECTRIC, INC., : 

: 

 Defendant. : 

OPINION AND ORDER 

 This matter is before the Court upon Defendant B&B Electric, Inc. (“B&B”)’s Motion for 

Judgment on the Pleadings to Dismiss Plaintiff’s First Amended Complaint. (Doc. 13). Plaintiff 

responded in opposition (Doc. 15), and Defendant replied in support. (Doc. 16). The motion is 

now ripe for disposition. For the following reasons, Defendant B&B’s Motion for Judgment on 

the Pleadings is GRANTED IN PART and DENIED IN PART. 

I. BACKGROUND 

On October 10, 2016, Plaintiff Mettler-Toledo, LLC (“MT”) entered into an equipmentsupply subcontract (the “Subcontract”) with Defendant B&B to provide goods and ancillary 

installment services for use in the Wisconsin Department of Transportation’s (“WiDOT”) I-90 

Sparta Safety & Weight Facility Project 1070-00-72 (the “Project”), in Monroe County, 

Wisconsin. (Doc. 11, Am. Compl. ¶ 5). According to the Subcontract, MT agreed to provide 

weigh-in-motion (“WIM”) equipment to B&B to install on the Project, which was for a highway 

weigh station facility. (Id. ¶¶ 5–6). 
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Plaintiff MT is a Delaware limited liability company with its principal place of business 

in Columbus, Ohio. (Id. at ¶ 1). Defendant B&B is a Wisconsin corporation having its principal 

place of business in Eau Claire, Wisconsin. (Id. at ¶ 2). Plaintiff alleges that it has performed all 

of its contractual obligations under the Subcontract to provide WIM equipment to the Project. 

(Id. at ¶ 7). However, Defendant denies that Plaintiff installed the WIM equipment so that it met 

the performance standards in the WiDOT specifications. (Doc. 12, Ans. Am. Compl. ¶ 7). 

Defendant also alleges that WiDOT officials and Chippewa Concrete notified Plaintiff of 

deficiencies in Plaintiff’s performance under the Subcontract on several occasions and of the 

need for Plaintiff to take remedial actions. (Id.). 

However, Plaintiff alleges that the Subcontract did not contain a “flowdown” provision 

that bound Plaintiff to any terms, conditions, or specifications of any contract agreement between 

Chippewa Concrete (the general contractor for the Project) and WiDOT (the owner of the 

Project). (Am. Compl. ¶ 9). Plaintiff also alleges that Defendant directed Plaintiff to modify the 

scope of Plaintiff’s deliverables under the Subcontract to accommodate evolving design changes 

and supply equipment different from that which was agreed upon under the Subcontract. (Id. at 

¶ 17). Plaintiff further alleges that it incurred substantial additional costs in its efforts to 

accomplish these changes to accommodate Defendant and mitigate damages. (Id. at ¶¶ 16–18). 

Finally, Plaintiff alleges Defendant has failed to pay Plaintiff for the equipment Plaintiff supplied 

to the Project. (Id. at ¶ 27). 

Plaintiff asserts a total of five claims against Defendant. Count I alleges that Defendant 

breached its contract with Plaintiff. (Id. at ¶¶ 32–35). Count II alleges that Defendant violated 

Ohio’s Prompt Pay Act by failing to pay Plaintiff for the equipment that Plaintiff supplied to the 

Project. (Id. ¶ 39). Count III alleges that Defendant engaged in tortious interference with 
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Plaintiff’s business relationship with WiDOT. (Id. at ¶¶ 44–45). Count IV seeks declaratory 

judgment by this Court on a number of claims, which will be discussed in greater detail below 

(Id. at ¶ 49). Finally, Count V seeks punitive damages because Defendant’s alleged tortious 

conduct under Count III demonstrated malice or aggravated and egregious fraud. (Id. at ¶¶ 51–

53). 

Plaintiff originally filed this action in the Franklin County Court of Common Pleas, but it 

was removed to this Court on May 18, 2018 (Doc. 1). Defendant timely filed its Answer to the 

Complaint on June 4, 2018 (Doc. 3). Plaintiff subsequently filed an Amended Complaint on 

October 17, 2018 (Doc. 11). Defendant timely filed an Answer to the Amended Complaint on 

October 29, 2019 (Doc. 12). On October 29, 2018, Defendant filed a Motion for Judgment on 

the Pleadings to Dismiss Plaintiff’s First Amended Complaint (Doc. 13). Plaintiff filed a 

Response in Opposition on November 19, 2018 (Doc. 15). On November 28, 2018, Defendant 

filed a Reply (Doc. 16). The Court now turns to Defendant’s Motion for Judgment on the 

Pleadings. 

II. STANDARD OF REVIEW 

Defendant brings this motion pursuant to Rule 12(c) of the Federal Rules of Civil 

Procedure. Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to 

delay trial—a party may move for judgment on the pleadings.” The standard of review for a 

motion for judgment on the pleadings under Rule 12(c) is the same as that used to address a 

motion to dismiss under Rule 12(b)(6). Id.; Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir. 2007). 

Rule 12(b)(6) permits dismissal of a lawsuit for “failure to state a claim upon which relief 

can be granted.” To meet this standard, a party must allege sufficient facts to state a claim that is 

“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading will 
4 

satisfy this plausibility standard if it contains “factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). In considering whether a complaint fails to state a claim upon which 

relief can be granted, the 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.” Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 

829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). 

However, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to 

threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” 

Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading 

must still contain facts sufficient to “provide a plausible basis for the claims in the complaint;” a 

recitation of facts intimating the “mere possibility of misconduct” will not suffice. Flex Homes, 

Inc. v. Ritz-Craft Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 

679. 

In sum, “[f]or purposes of a motion for judgment on the pleadings, all well-pleaded 

material allegations of the pleadings of the opposing party must be taken as true, and the motion 

may be granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan 

Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill 

Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). 

III. DISCUSSION 

A. Breach of Contract 

Defendant B&B contends that there is a “flowdown” provision in the Subcontract that 

contractually binds Plaintiff to resolve any dispute(s) with Defendant in Wisconsin and pursuant 
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to the dispute resolution procedures specified in the Prime contract for the Project. (Doc. 13, 

Mot. at 10). Although the Subcontract does not define the term “Prime contract,” Defendant 

explains that the Prime contract was the agreement between WiDOT and Chippewa Concrete for 

the construction of the Project. (Doc. 12, Ans. Am. Compl. ¶ 5). The relevant provision of the 

Subcontract that Defendant relies upon is: 

Subcontractor hereby agrees to furnish all materials, tools, and equipment, and to 

perform all work and labor necessary, including shop drawings when required, the 

testing of materials when required, and the securing of all field measurements 

necessary or required, for the completion of a portion or subdivision of the work 

to be performed on the following described project in accordance with the Prime 

contract between Contractor and the Owner and all plans, drawings, and 

specifications including general and special conditions and addenda. 

(Doc. 11-1, Subcontract at 1) (emphasis added). However, the Subcontract also contains a 

“Scope of Work” provision that states “See attached scope letter included (pages 1–18).” (Id.) 

The Scope Letter contains a “Contract” provision that states: “Provisions of the original 

purchaser (“Buyer”)’s purchase order, including Buyer’s terms and conditions of purchase, or 

other documents that add to or differ from these terms and conditions, including any documents 

presented to [MT]’s filed service representatives, are EXPRESSLY rejected.” (Id. at 14) 

(emphasis in original). The scope letter also contains a “Governing Law and Place of 

Jurisdiction” provision which states “[t]he legal relationship between Buyer and Company shall 

be governed by the laws of the State of Ohio and the United States of America. Exclusive place 

of jurisdiction shall be Franklin County, Ohio.” (Id. at 18). 

 The Sixth Circuit has stated that when resolving a contract claim in a diversity action, the 

court must apply the substantive law of the forum state “in accordance with the controlling 

decisions of its highest court.” McClusky v. Century Bank, 598 Fed. Appx. 383, 386 (6th Cir. 

2015) (quoting Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013)) 
6 

(internal quotation marks omitted). Under Ohio contract law, the court’s role is to give effect to 

the intent of the parties, which is presumed to be reflected in the language of the contract. Id. 

(citing Eastham v. Chesapeake Appalachia, L.L.C., 754 F.3d 356, 361 (6th Cir. 2014)). 

Accordingly, a court will not construct a contract or give it a meaning other than that which the 

plain language of the contract provides. Id. at 386–87 (citation omitted). 

 Looking to the plain language of the Subcontract, there is language that suggests the 

parties intended to incorporate, at least to some extent, both the contract between Defendant, 

Chippewa Concrete, and WiDOT and pages 1–18 of the Scope Letter provided by Plaintiff in 

some capacity. (Doc. 11 Exhibit 1). At this stage of the proceedings, the Court does not attempt 

to interpret any apparent conflicts in the language of these provisions or ambiguous language in 

the Subcontract. However, the parties are advised that, based upon the pleadings alone, there are 

apparent ambiguities and conflicts within the language of the agreement that pose a challenge to 

giving meaning to the parties’ intent when they entered into the Subcontract. For now, Plaintiff 

has pleaded sufficient facts to present a plausible claim that Plaintiff’s disclaimer of any terms 

and conditions or other documents that differ from those contained in pages 1–18 of the Scope 

Letter is enforceable. 

Additionally, the plain language of the Subcontract states: 

Monthly progress payments [less retainage] shall be made to Subcontractor within 

ten (10) days after B&B Electric’s receipt of payment from Prime Contractor 

(Chippewa Concrete), so long as Subcontractor is not in default or breach of this 

Agreement and is not subject to other reasons for withholding. Payments 

otherwise due Subcontractor may be offset and/or withheld by B&B Electric to 

the extent necessary to pay for its direct costs due to Subcontractor’s defective 

work not remedied but only after Mettler-Toledo receives written notice of the 

defect and is given reasonable opportunity to cure the defective work. 

(Id.). Plaintiff alleges that it was not timely paid for equipment supplied to Defendant “without 

legal excuse and justification . . . in violation of the Subcontract.” (Am. Compl. ¶ 27). Plaintiff 
7 

also alleges that Defendant has received payment for equipment supplied by Plaintiff to the 

Project. (Id. at ¶ 30). Although Defendant may dispute these allegations, Plaintiff has 

nonetheless pleaded sufficient facts that, if proven true, present a plausible claim for breach of 

contract. 

Finally, Defendant contends that there is a conflict between Wisconsin and Ohio law 

which renders the choice of law provision in the Plaintiff’s Scope Letter void. (Doc. 13, Mot. at 

9). Defendant argues that Wisconsin Statute § 779.135(2) controls in this case. (Id.). Wisconsin 

Statute § 779.135(2) states, “[p]rovisions [in a contract for the improvement of land in this state] 

making the contract subject to the laws of another state or requiring that any litigation, arbitration 

or other dispute resolution process on the contract occur in another state [are void].” However, 

Wisconsin Statute § 779.01(1)(a) defines “improve” or “improvement” as “any building, 

structure, erection, fixture, demolition, alteration, excavation, filling, grading, tiling, planting, 

clearing, landscaping, repairing, or remodeling which is built, erected, made or done on or to 

land for its benefit.” 

As this court has previously stated, “[a] federal court exercising diversity jurisdiction is 

required to apply the choice of law rules of the state in which it sits.” Mecanique C.N.C., Inc. v. 

Durr Environmental, Inc., 304 F.Supp.2d 971, 975 (S.D. Ohio 2004) (Marbley, J.). Ohio’s 

choice of law rules require the Court to first determine whether a choice of law analysis is 

necessary. Id. (citing Akro-Plastics v. Drake Indus., 115 Ohio App.3d 221, 685 N.E.2d 246, 248 

(Ohio Ct. App. 1996)). If the two states would use the same rule of law or would otherwise 

reach the same conclusion, there is no conflict of law and therefore no need to make a choice of 

law determination. Id. 
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 Plaintiff argues that the Subcontract was for the sale of equipment to Defendant for 

installation on the Project. (See Docs. 11, Am. Compl. ¶ 6; 15, Resp. at 7). Plaintiff alleges that 

the predominant purpose for the equipment-supply Subcontract was therefore a contract for the 

sale of goods. (Doc. 11, Am. Compl. ¶ 13). Making every reasonable inference in favor of 

Plaintiff, these allegations, if proven true, would render Wisconsin Statute § 779.135(2) 

inapplicable to the case at hand. Under Wisconsin Statute 779.01(1)(a), “improve” or 

“improvement” to land does not include supplying goods or equipment to a project for the 

improvement of land. Therefore, Plaintiff has pleaded sufficient facts that, if proven true, 

present a plausible claim that the choice of law provision in the Scope Letter attached to the 

Subcontract is not governed by Wisconsin Statute § 779.135(2) and is therefore enforceable. 

 Plaintiff also contends that the Subcontract is governed by Article 2 of the Uniform 

Commercial Code because it is a contract predominately for the sale of goods (Id. at ¶ 13). As 

both Ohio and Wisconsin have adopted Article 2, there is no conflict of law on this issue. 

Therefore, Plaintiff has pleaded sufficient facts that, if proven true, present a plausible claim for 

breach of contract. Defendant’s Motion for Judgment on the Pleadings is DENIED as to Count I 

of Plaintiff’s First Amended Complaint. 

B. Violation of the Ohio Prompt Pay Act 

Plaintiff alleges that Defendant has failed to pay Plaintiff for equipment that Plaintiff 

supplied to the Project within the time required by the Ohio Prompt Pay Act. (Id. at ¶¶ 27, 39). 

The Ohio Prompt Pay Act states: 

If a subcontractor or material supplier submits an application or request for 

payment or an invoice for materials to a contractor in sufficient time to allow the 

contractor to include the application, request, or invoice in the contractor’s own 

pay request submitted to an owner, the contractor, within ten calendar days after 

receipt of payment from the owner for improvements to property, shall pay to the 

. . . [s]ubcontractor, an amount that is equal to the percentage of completion of the 
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subcontractor’s contract allowed by the owner for the amount of labor or work 

performed . . . [and] [m]aterial supplier, an amount that is equal to all or that 

portion of the invoice for materials which represents the materials furnished by 

the material supplier. 

O.R.C. § 4113.61(A)(1)(a) and (b). Plaintiff alleges that both Defendant and Chippewa Concrete 

have acknowledged that Plaintiff served as a supplier to a subcontractor for the Project. (Doc. 

11, Am. Compl. ¶ 14). Plaintiff also alleges that Defendant and Chippewa Concrete have been 

paid by WiDOT for equipment supplied to them by Plaintiff. (Id. at ¶ 30). Therefore, Plaintiff 

has pleaded sufficient facts that, if proven true, present a plausible claim that Defendant failed to 

pay Plaintiff for materials supplied to Defendant within the time required under the Ohio Prompt 

Pay Act. 

 The Court notes that whether the Ohio Prompt Pay Act applies to this suit depends upon 

whether Ohio or Wisconsin law is found to govern the Subcontract. At this stage in the 

proceedings, Plaintiff has pleaded sufficient facts that, if proven true, present a plausible claim 

that Plaintiff’s choice of law provision is enforceable (as discussed above), which would make 

the Ohio Prompt Pay Act applicable to the Subcontract. Accordingly, Defendant’s Motion for 

Judgment on the Pleadings is DENIED as to Count II of Plaintiff’s First Amended Complaint. 

C. Tortious Interference with Business Relationship 

Plaintiff alleges that Defendant engaged in tortious interference with Plaintiff’s business 

relationship with WiDOT. (Id. at ¶¶ 42–46). According to Plaintiff, Defendant knew of 

Plaintiff’s prospective business relationship with WiDOT to provide WIM equipment for other 

prospective projects. (Id. at ¶¶ 42–43). Plaintiff alleges that Defendant encouraged WiDOT to 

abandon its prospective business relationships with Plaintiff by making “false, defamatory and 

malicious accusations and actions regarding MT’s performance on the Project.” (Id. at ¶ 44). 

Plaintiff further alleges that Defendant has interfered in Plaintiff’s prospective business 
10 

relationship with WiDOT “to improperly coerce MT into providing goods and services which it 

is not required to provide under the threat of losing its prospective business relationship with 

WiDOT.” (Id. ¶ 45). 

 Ohio law recognizes a cause of action for tortious interference with a business 

relationship. Super Sulky, Inc. v. U.S. Trotting Ass’n, 174 F.3d 733, 741 (6th Cir. 1999) (citing A 

& B-Abell Elevator Co., Inc. v. Columbus/Central Ohio Bldg. & Constr. Trades Council, 73 

Ohio St.3d 1, 651 N.E.2d 1283, 1294 (1995)). Tortious interference with a business relationship 

occurs when “a person, without a privilege to do so, induces or otherwise purposely causes a 

third person not to enter into or continue a business relation with another, or not to perform a 

contract with another.” Id. (internal quotation marks omitted). 

Under Ohio law, the Plaintiff bears the burden of proving “lack of privilege” or 

“improper interference.” Id. at 742 (citing Kenty v. Transamerica Premium Ins. Co., 72 Ohio 

St.3d 415, 650 N.E.2d 863, 866 (1995)). In determining whether alleged conduct was privileged, 

the court must take into account the following seven factors: 

(1) the nature of the actor’s conduct, (2) the actor’s motive, (3) the interests of the 

party with whom the actor has interfered, (4) the interests sought to be advanced 

by the actor, (5) the social interests of protecting the freedom of contracting and 

the interference with such, (6) the proximity or remoteness of the actor’s conduct 

to the interference, and (7) the relations between the parties. 

Id. at 742 (citing Kand Medical v. Freund Medical Products, 963 F.2d 125, 128 (6th Cir. 1992)). 

In the case at hand, Plaintiff alleges that Defendant’s conduct consisted of “a malicious, false and 

defamatory campaign against MT, and with WiDOT . . . to improperly coerce MT into providing 

goods and services which it was not required to provide [to the Project] under the threat of losing 

its prospective business relationship with WiDOT.” (Doc. 11, Am. Compl. ¶ 45). Plaintiff also 

alleges that Chippewa Concrete threatened to pass down the liquidated damages threatened by 
11 

WiDOT to Defendant, who in turn threatened to pass those liquidated damages on to Plaintiff. 

(Id. at ¶ 19). Additionally, Plaintiff alleges that Defendant interfered with Plaintiff’s business 

relationship with WiDOT via “false, defamatory and malicious accusations and actions regarding 

MT’s performance on the Project.” (Id. at ¶ 44). Finally, given the nature of both Defendant and 

Plaintiff’s work as subcontractors on the Project, it is logical to presume both parties currently 

have or seek to have additional business relations with WiDOT for other projects. Comparing 

these facts to the factors for determining privilege, Plaintiff has pleaded sufficient facts that, if 

proven true, plausibly demonstrate that Defendant attempted to interfere with Plaintiff’s business 

relationship with WiDOT without privilege to do so. 

However, Plaintiff’s business relationships with WiDOT still appear to be intact despite 

Defendant’s alleged conduct. Plaintiff alleges that “if” WiDOT refuses to do further business 

with Plaintiff that Plaintiff will suffer damages “as a direct and proximate result of B&B’s 

intentional interference with MT’s prospective business relationship with WiDOT.” (Id. at ¶ 47). 

Plaintiff does not allege that it has actually incurred a loss of its business relationship with 

WiDOT as a result of Defendant’s alleged conduct. Accordingly, Plaintiff has not pleaded 

sufficient facts to demonstrate that Defendant’s conduct actually interfered with Plaintiff’s 

business relationship with WiDOT. Plaintiff has therefore failed to plead sufficient facts to 

present a plausible claim that Defendant’s alleged conduct satisfied all parts of the test for 

tortious interference with a business relationship. As a result, Defendant’s Motion for Judgment 

on the Pleadings is GRANTED in regards to Count III of Plaintiff’s First Amended Complaint. 

D. Declaratory Relief 

 Plaintiff alleges it is entitled to declaratory judgment on a number of claims. First, 

Plaintiff alleges that the UCC governs the Subcontract because the predominant purpose of the 
12 

Subcontract was for the sale of goods. (Id. at ¶ 49(a)). As previously discussed, Plaintiff agreed 

to provide Defendant with WIM equipment for installation on the Project. (Id. at ¶ 6). 

Accordingly, Plaintiff has pleaded sufficient facts that, if proven true, present a plausible claim 

that the Subcontract was for the sale of goods and therefore governed by Article 2 of the UCC. 

(Id. at ¶¶ 13, 15). 

Second, Plaintiff alleges that it has fully performed its contractual obligations under the 

Subcontract, (Id. at ¶ 7), and Defendant has failed to pay Plaintiff for equipment that was 

supplied to the Project despite the fact Defendant allegedly received payment from WiDOT for 

that equipment. (Id. at ¶¶ 27, 30). Plaintiff alleges that based upon these facts, it is entitled to 

complete payment under the terms of the Subcontract. (Id. at ¶ 49(b)). Furthermore, Plaintiff 

alleges that it is not liable for any liquidated damages levied by WiDOT against Chippewa 

Concrete and passed down to Defendant pursuant to a provision of the Subcontract disclaiming 

Plaintiff’s liability for “claims of [B&B’s] customers or contractors for such damages.” (Id. at 

¶¶ 22, 49(c)). Accordingly, Plaintiff has pleaded sufficient facts to present plausible claims that 

it has performed in full and that it is not liable for liquidated damages. 

Next, Plaintiff alleges that it is not liable for any alleged breach of a warranty of 

merchantability or fitness for a particular purpose that relates to the equipment Plaintiff supplied 

to the Project. (Id. at ¶ 49(d)). In support of that allegation, Plaintiff cites a provision of the 

Subcontract where Plaintiff argues it disclaimed all express or implied warranties of 

merchantability or fitness for a particular purpose. (Id. at ¶ 12). Plaintiff further alleges that the 

Subcontract is a fully-integrated agreement that contains and fully expresses all of the 

agreements and understandings between the parties. (Id. at ¶ 49(e)). Plaintiff alleges that “[t]he 

fully-integrated equipment-supply Subcontract provided all of the terms, conditions, and 
13 

specifications regarding the scope of MT’s equipment-supply undertaking.” (Id. at ¶ 8). 

Questions of fact remain as to whether the parties intended for both the Prime Contract between 

Chippewa Concrete and WiDOT and the Scope Letter provided by Plaintiff to be integrated into 

the Subcontract. However, at this stage in the proceedings, Plaintiff has pleaded sufficient facts 

to present a plausible claim that the Subcontract was a fully-integrated agreement in which 

Plaintiff waived any express or implied warranties of merchantability or fitness for a particular 

purpose. 

Additionally, Plaintiff alleges that the Subcontract excludes any “flow-down” provisions 

from any agreements between Chippewa Concrete and WiDOT. (Id. at ¶ 49(f)). Plaintiff alleges 

that the Subcontract “expressly excluded the application of any terms, conditions, specifications, 

or “flow-down” provisions, from any other contract or agreement.” (Id. at ¶ 10). Plaintiff 

further alleges that the Subcontract contains the exhaustive list of remedies available to 

Defendant for any alleged breaches of the Subcontract by Plaintiff or other causes of action 

identified by Defendant. (Id. at ¶ 49(g)). In support, Plaintiff alleges that Section 10 of the 

Scope Letter incorporated in the Subcontract contains a provision that sets forth the only 

remedies available to Defendant if Plaintiff breached a warranty under the Subcontract. (Id. at 

¶ 24). Plaintiff has pleaded sufficient facts to present a plausible claim that the Subcontract 

excluded any “flow-down” provisions from any other agreements. Furthermore, Plaintiff has 

pleaded sufficient facts to present a plausible claim that the Subcontract contains the exhaustive 

list of remedies available to the Defendant for Plaintiff’s alleged breach of any of the warranties 

made explicit in the Scope Letter. (Id.). However, Plaintiff has not pleaded sufficient facts to 

present a plausible claim that the Subcontract contains the exhaustive list of remedies available 
14 

to Defendant in the event Plaintiff breached the Subcontract in a manner that did not implicate 

any warranties made or disclaimed by Plaintiff. 

Finally, Plaintiff alleges that it is entitled to recover the costs and value of the additional 

work Plaintiff performed on the Project at Defendant and Chippewa Concrete’s direction. (Id. at 

¶ 49(h)). Plaintiff alleges that Defendant insisted that Plaintiff “modify the scope of its 

contractual deliverables to accommodate the evolving design changes, and supply equipment 

different from that which was agreed upon in the Subcontract.” (Id. at ¶ 17). Plaintiff further 

alleges that it “endeavored to accomplish those design changes and in the process has incurred 

substantial additional costs.” (Id. at ¶ 18). Accordingly, Plaintiff has also pleaded sufficient 

facts that, if proven true, present a plausible claim that Plaintiff is entitled to recover the costs 

and value of additional work Plaintiff allegedly performed on the Project. 

 Therefore, although there are questions of fact as to the terms of the Subcontract and 

Plaintiff’s potential liability under the Subcontract, Plaintiff has pleaded sufficient facts that, if 

proven true, would entitle Plaintiff to declaratory relief with one exception. Plaintiff has not 

pleaded sufficient facts to present a plausible claim that the Subcontract contains the exhaustive 

list of remedies available to Defendant in the event Plaintiff’s conduct breaches the Subcontract 

and/or gives rise to another cause of action outside the scope of the warranties that Plaintiff made 

and allegedly disclaimed in the Subcontract. Accordingly, Defendant’s Motion for Judgment on 

the Pleadings is GRANTED in part and DENIED in part as to Count IV of Plaintiff’s First 

Amended Complaint. 

E. Punitive Damages 

 Plaintiff alleges that it is entitled to punitive damages because Defendant’s allegedly 

tortious conduct under Count III of the Amended Complaint demonstrated “malice or aggravated 
15 

and egregious fraud.” (Id. at ¶¶ 51–52). In Ohio, punitive damages may be awarded in tort cases 

involving fraud, malice, or insult. Leichtamer v. American Motors Corp., 424 N.E.2d 568, 579 

(Ohio 1981). However, as previously discussed, the Court has determined that Plaintiff has 

failed to plead sufficient facts to present a plausible claim that Defendant engaged in tortious 

interference with a business relationship. Accordingly, Plaintiff has also failed to plead 

sufficient facts to present a plausible claim that Plaintiff is entitled to punitive damages for 

Defendant’s alleged conduct. Defendant’s Motion for Judgement on the Pleadings is therefore 

GRANTED as to Count V of Plaintiff’s First Amended Complaint. 

IV. DISPOSITION 

 Based on the foregoing, Defendant’s Motion for Judgment on the Pleadings is DENIED

as to Counts I and II of Plaintiff’s First Amended Complaint, GRANTED as to Counts III and 

V, and GRANTED in part and DENIED in part as to Count IV. 

IT IS SO ORDERED.

 

 s/ George C. Smith__________________ 

 GEORGE C. SMITH, JUDGE 

 UNITED STATES DISTRICT COURT