United States District Court, E.D. Oklahoma
THREE RP LIMITED PARTNERSHIP, an Oklahoma Limited Partnership, Plaintiff,
DICK'S SPORTING GOODS, INC., a Delaware corporation, Defendant.
OPINION AND ORDER
H. Payne United States District Judge.
the Court are Defendant's Motion to Dismiss (Doc. No. 7),
Plaintiff's Motion for Summary Judgment (Doc. No. 12),
Defendant's Objections to the Affidavit of James W. Dill
(Doc. No. 16), and Defendant's Motion (In the
Alternative) for Relief Pursuant to Rule 56(d) of the Federal
Rules of Civil Procedure (Doc. No. 17). After consideration
of the briefs, and for the reasons stated below,
Defendant's Motion to Dismiss is
GRANTED, Plaintiff's Motion for Summary
Judgment is DENIED, and Defendant's
Objections and Motion for Rule 56(d) Relief are
to the Petition (Doc. No. 2-1), on September 15, 2014,
Defendant Dick's Sporting Goods, Inc. (“DSG”)
entered into a written lease agreement (“Lease”)
with landlord Vector Securities Corporation
(“Vector”) for approximately 40, 000 square feet
of space in a shopping center known as the Three Rivers Plaza
(the “Shopping Center') in Muskogee, Oklahoma.
(Doc. No. 2-1, ¶ 3; Doc. No. 7-2 (Lease)). On March 2,
2015, Vector assigned all rights, title, and interest in and
to the Lease to Plaintiff Three RP Limited Partnership
(“Plaintiff”). (Doc. No. 2-1, ¶ 3). Section
1.6 of the Lease sets forth an “Initial Co-Tenancy
Requirement, ” which requires that certain key stores
be open at the Shopping Center, and that a certain portion of
the remaining Shopping Center space be occupied by certain
types of retailers. (See Id. ¶¶ 5-13).
Plaintiff alleges that, once the Initial Co-Tenancy
Requirement is met, Dick's is obligated to commence
paying “full rent” under the Lease. (Id.
1.6(a) of the Lease provides in relevant part:
The “Initial Co-Tenancy
Requirement” shall mean that: (i)(A) TJ Maxx
and (B) one additional retailer satisfying prong (i) of the
definition of Required Tenant (set forth below) and operating
at least ten thousand (10, 000) square feet of LFA in the
Shopping Center (the “Additional Inducement
Tenant”), shall each be open or will
simultaneously open with Tenant, fully staffed, stocked and
operated as a retail business in substantially all of their
respective premises; and (ii) at least seventy percent (70%)
of the remaining LFA of the Shopping Center, excluding the
LFA of the Demised Premises and any out-parcels, shall be
open or will simultaneously be open with Tenant, fully
staffed, stocked and operated by an Occupant in substantially
all of its premises for the operation of a retail business by
a Required Tenant.
(Doc. No. 7-2, at 8). “LFA” is defined in Section
1.2(d) of the Lease as:
the number of gross square feet of leasable floor area
(whether occupied or unoccupied) of the Shopping Center
Buildings intended for the exclusive use by any tenant,
subtenant, assignee, licensee, concessionaire or other
occupant of the Shopping Center (‘Occupant')
thereof, including mezzanines or other levels if used for
retail sales . . . .
(Doc. No. 7-2, at 3).
stated above, Section 1.6(a) sets forth two tests to
determine whether the Initial Co-Tenancy Requirement is met.
The parties agree that the requirements of Section 1.6(a)(i)
are satisfied by the tenancies of TJ Maxx, with 21, 858
square feet of leased space, and ULTA Salon and Cosmetics
(“ULTA”), with 10, 061 square feet of leased
space. (Id. ¶¶ 7, 10). The parties'
dispute centers on the proper construction of Section
1.6(a)(ii), in particular, the meaning of the phrase
“at least seventy percent (70%) of the remaining LFA of
the Shopping Center.” Plaintiff alleges
“remaining LFA” describes the total leasable
floor area of 111, 050 square feet, from which the 40, 000
square feet leased to DSG is then deducted. (Doc. No. 2-1,
¶¶ 8, 10). By contrast, DSG asserts
“remaining LFA” refers to the total leasable
floor area remaining after deducting the space
leased to the two Inducement Tenants described in Section
1.6(a)(i), from which the space leased to DSG is then
deducted. (Id. ¶¶ 9, 12).
filed this action against DSG in the District Court of
Muskogee County, Oklahoma, seeking a declaratory judgment
that Plaintiff's construction of the Initial Co-Tenancy
Requirement is correct. (See Doc. No. 2-1). DSG then
removed the case to this Court based on diversity
jurisdiction. (Doc. No. 2). DSG has now moved to dismiss the
Petition pursuant to Federal Rule of Civil Procedure
12(b)(6). (Doc. No. 7). Plaintiff filed a Response in
opposition (Doc. No. 11), and DSG filed a Reply (Doc. No.
14). Plaintiff has also filed a Motion for Summary Judgment
(Doc. Nos. 12, 13). DSG filed a Response in opposition to
Plaintiff's Motion for Summary Judgment (Doc. No. 15),
and Plaintiff filed a Reply (Doc. No. 20). With respect to
the Motion for Summary Judgment, DSG has filed Objections to
the Affidavit of James W. Dill filed by Plaintiff (Doc. No.
16) and a Motion for Relief pursuant to Rule 56(d) of the
Federal Rules of Civil Procedure (Doc. No. 17). Plaintiff
filed Responses to DSG's Objections and Motion for Rule
56(d) Relief (Doc. Nos. 19, 22). The pending motions are
fully briefed and ripe for review.
DSG's Motion to Dismiss
considering a Rule 12(b)(6) motion, the court must accept all
well-pleaded allegations of the complaint as true, and must
construe them in the light most favorable to the plaintiff.
See Anderson v. Merrill Lynch Pierce Fenner & Smith,
Inc., 521 F.3d 1278, 1284 (10th Cir. 2008). To withstand
a motion to dismiss, a complaint must contain enough
allegations of fact “to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The plaintiff bears
the burden to frame “a complaint with enough factual
matter (taken as true) to suggest” that he or she is
entitled to relief. Twombly, 550 U.S. at 556.
“A pleading that offers ‘labels and
conclusions' or a formulaic recitation of the elements of
a cause of action will not do.'” ...