UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TC POWER LTD.,

Plaintiff,

Case No. 09-13330

vs. Hon. Lawrence P. Zatkoff

GUARDIAN INDUSTRIES CORP., and

GUARDIAN ZOUJAJ INTERNATIONAL

FLOAT GLASS CO., LLC,

Defendants. 

_____________________________/

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse, 

in the City of Port Huron, State of Michigan, on May 19, 2010

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF

 UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on Defendant Guardian Industries Corp.’s motion to dismiss

[dkt 7]. The parties have fully briefed the motion. The Court finds that the facts and legal

arguments are adequately presented in the parties’ papers such that the decision process would not

be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. LR 7.1(e)(2), it is hereby

ORDERED that the motion be resolved on the briefs submitted. For the reasons set forth below,

Defendant Guardian Industries Corp.’s motion to dismiss [dkt 7] is DENIED. 

II. BACKGROUND

This case involves a contractual dispute relating to TC Power Ltd.’s (“Plaintiff”) obligation

to properly refurbish and install an industrial gas turbine in the United Arab Emirates for Defendant
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Guardian Industries Corp. (“Guardian”) and Defendant Guardian Zoujaj International Float Glass

Co., LLC, d/b/a Guardian RAK (“GRAK”) (collectively, “Defendants”). Guardian is a Delaware

corporation headquartered in Auburn Hills, Michigan. GRAK is a limited liability company located

in Ras Al-Khaimah, United Arab Emirates. 

In February 2008, Plaintiff entered into a contract with Guardian and GRAK for the

refurbishing and installation of an industrial gas turbine in the United Arab Emirates. Guardian was

intimately involved with the oversight and administration of the contract. The contract was carried

out through eight purchase orders issued by Defendants to Plaintiff. Plaintiff alleges that Defendants

breached the contract because Defendants failed to correct a defect in the turbine that should have

been repaired before Plaintiff’s work began. Plaintiff claims that this caused it to incur substantial

delays and increased costs. As a result, Plaintiff seeks damages under the contract, as well as

damages for delay and productivity losses. 

In its motion to dismiss, Guardian contends that Plaintiff has failed to state claims upon

which relief can be granted under Fed. R. Civ. P. 12(b)(6) as to Guardian because it is not a party

to the contract. In support of its motion, Guardian has attached the eight purchase orders issued to

Plaintiff, which purportedly indicate that they were issued only by GRAK. Plaintiff maintains that

the purchase orders may not be considered by the Court because Plaintiff did not attach them to or

reference them in its amended complaint, and that even were the Court to consider the purchase

orders, they are insufficient to render Plaintiff’s claims implausible.

III. STANDARD OF REVIEW

A motion brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which

relief may be granted tests the legal sufficiency of Plaintiff’s claims. The Court must accept as true
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all factual allegations in the pleadings, and any ambiguities must be resolved in Plaintiff’s favor.

See Jackson v. Richards Med. Co., 961 F.2d 575, 577–78 (6th Cir. 1992). While this standard is

decidedly liberal, it requires more than the bare assertion of legal conclusions. See Advocacy Org.

for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 319 (6th Cir. 1999). Thus, a

plaintiff must make “a showing, rather than a blanket assertion of entitlement to relief” and

“[f]actual allegations must be enough to raise a right to relief above the speculative level” so that

the claim is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

See also Ashcroft v. Iqbal, __ U.S. ___, 129 S. Ct. 1937, 1953 (2009). 

In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), this Court may only

consider “the facts alleged in the pleadings, documents attached as exhibits or incorporated by

reference in the pleadings, and matters of which the [Court] may take judicial notice.” 2 James Wm.

Moore et al., Moore’s Federal Practice ¶ 12.34[2] (3d ed. 2000). If, in deciding the motion, the

Court considers matters outside the pleadings, the motion will be treated as one for summary

judgment pursuant to Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(b).

IV. ANALYSIS

Guardian contends that Plaintiff’s claims against it fail to state claims upon which relief can

be granted because the purchase orders issued to Plaintiff state “Guardian Zoujaj International Float

Glass Co, LLC (Guardian RAK)” at the top of the forms, but do not include mention of Guardian

Industries Corp. According to Guardian, this is conclusive evidence that Guardian is not a party to

the contract with Plaintiff. Contrary to Plaintiff’s assertion, Guardian maintains that it is also

undisputed that Guardian is not a party to the contract. Guardian goes on to argue that GRAK is a

separate corporate entity, and that Plaintiff’s amended complaint fails to allege facts sufficient to
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Finding as such, the Court need not consider Guardian’s arguments that Plaintiff has

failed to allege facts sufficient to pierce the corporate veil or find Guardian liable as an agent of

GRAK.

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pierce the corporate veil. Furthermore, Guardian argues that as an agent of GRAK, Guardian cannot

be made a party to the contract by its “oversight and administration” of the contract because an agent

does not become a party to his principal’s contracts merely by acting on behalf of the principal. 

Accepting as true all factual allegations in Plaintiff’s pleadings, and resolving all ambiguities

in Plaintiff’s favor, the Court finds that Guardian has failed to demonstrate that Plaintiff’s claims

should be dismissed under Fed. R. Civ. P. 12(b)(6). The parties dispute whether the Court may

consider the purchase orders attached to Guardian’s motion, but the Court need not address this

issue; even were the Court to consider the purchase orders as requested by Guardian, the Court finds

that they would not render Plaintiff’s claims against Guardian implausible. 

Plaintiff has specifically alleged in its amended complaint that Guardian is a party to the

contract, that Plaintiff contracted directly with Guardian, and that Guardian was intimately involved

in the oversight and administration of the contract. Guardian’s only evidence to the contrary

consists of the purchase orders submitted to Plaintiff, but Guardian offers no legal authority

supporting its position that the captions at the top of the purchase orders are conclusive evidence that

Guardian is not a party to the contract. At most, the purchase orders would render Plaintiff’s

allegation ambiguous, especially in light of the fact that Guardian’s logo also appears at the top of

the purchase orders next to GRAK’s name. Since Plaintiff’s factual allegations must be accepted

as true, and all ambiguities must be resolved in Plaintiff’s favor, the Court finds that Guardian has

failed to show that Plaintiff’s allegation that Guardian is a party to the contract is implausible.1
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V. CONCLUSION

Accordingly, for the above reasons, IT IS HEREBY ORDERED that Defendant Guardian’s

motion to dismiss [dkt 7] is DENIED.

IT IS SO ORDERED. 

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: May 19, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on May 19, 2010.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290