United States District Court, D. North Dakota
Mitch R. Kramer, Plaintiff,
CHS, Inc. d/b/a Northern Plains Cooperative, Defendant.
ORDER DENYING MOTION TO DISMISS
CHARLES S. MILLER, JR., MAGISTRATE JUDGE.
the court is a Motion to Dismiss filed by Defendant CHS,
Inc., d/b/a Northern Plains Cooperative (“CHS”).
(Doc. No. 3). CHS brings this motion pursuant to Fed.R.Civ.P.
12(b)(6), arguing the complaint in this matter fails to state
a claim upon which relief can be granted. Plaintiff Mitch
Kramer opposes the motion. (Doc. No. 10).
Kramer's state-court complaint
following is a summary of the allegations contained in
Kramer's complaint that he filed in state court. (Doc.
No. 1-2). As discussed later, the court must accept all
factual allegations as true for purposes of CHS's motion
is a farmer in south-central North Dakota, where CHS provides
agricultural products and services. Kramer alleges that, on
January 29, 2016, he asked CHS for a line of credit for $250,
000 pursuant to CHS's Premier Grower Program, which
provides loans to farmers to purchase agricultural supplies
from CHS. (Doc. No. 4-2). According to Kramer this
was consistent with parties' relationship in past years
when CHS had similarly extended credit to Kramer.
to Kramer, when he went to CHS to obtain the line of credit,
he signed “documentation” for the extension of
the line of credit consistent with what had been done in the
past and was given verbal assurances that his contract was
approved and the documentation he signed was sufficient to
establish an agreement on the part of CHS to extend the line
Kramer did not attach to his complaint, a copy of the
“documentation, ” he did: (1) identify CHS's
credit program by name, i.e., the Premier Grower
Program; (2) recite the amount of credit he claims he was
approved for, and (3) state that the agreement was
essentially the same as in prior years. Also, while Kramer
did not identify by name the person who he alleged approved
the “documentation, ” he did refer to the person
by his position, i.e., the credit manager who had
provided him the documentation, and also referred to the
person as the credit manager who had been terminated by CHS.
to Kramer, CHS allowed him to use approximately $120, 000 of
credit to finance his farming operations through
approximately the second week of May, 2016. Then, in early
June, 2016, Kramer alleges that he sought to purchase further
supplies, and, at that time, CHS informed Kramer it would no
longer finance his farming operations and that the credit
manager who had approved his line of credit had been
alleges he was not able to secure any other operating loan
for the remainder of the growing season. As a result of not
being able to finance necessary chemicals, applications,
fertilizer, and other supplies, Kramer alleges he had
drastically reduced crop yields in 2016 and suffered damages
in the amount of $605, 781.00.
only claim for relief that Kramer sets forth in his complaint
is one for breach of contract, express or implied. He has not
so far pled tort or fraud as a standalone claim for relief.
CHS's motion to dismiss and its tender of an
contends in its motion to dismiss that Kramer's complaint
fails to state a claim upon which relief can be granted
because it fails to allege there was a written agreement that
was signed by CHS that would be enforceable against it. In
making this argument, CHS points to North Dakota's
statute of frauds which, in relevant part, requires that, for
agreements promising to extend credit in the aggregate amount
of$25, 000 or greater, the agreement must be in writing and
signed by the party to be charged. CHS then submits with its
motion a two-page document bearing Kramer's signature at
the bottom of the first page. This two-page document is
entitled “PREMIER GROWER PROGRAM” - the same
program name referenced in Kramer's complaint. CHS
contends that this two-page document must have been the
“documentation” alluded to in the complaint, that
it is merely a “credit application, ” and that it
does not suffice to satisfy North Dakota's statute of
fraud because it was not executed by CHS.
it may be that the two-page document submitted by CHS is the
credit application, on its face it appears to also do double
duty as the contact for the extension of credit upon
acceptance by CHS in that it contains all of the terms that
one would expect in such an agreement, including the amount
of credit to be extended, the interest rate, terms of
repayment, etc. Further, it includes specific language of
contract, including, for example, the words on the first
page: “You ...