MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, United States District Judge

Introduction

This matter comes before the Court on Defendant's Motion for Judgment on the Pleadings. Plaintiffs William Emmett Dennehy and Kellie Dennehy ("the Dennehys") sued Defendant Cousins Subs Systems, Inc. ("Cousins") for breach of contract, breach of the duty of good faith and fair dealing, and breach of an implied-in-fact contract based on Cousins's non-renewal of the Dennehys' Area Development Agreement ("the Agreement"). On November 18, 2002, the Court issued an order granting Cousins's Motion to Dismiss, save for the Dennehys' claim that Cousins breached (1) the contract's "assistance and advice" provision, and (2) the duty of good faith and fair dealing. Cousins has now moved for judgment on the pleadings, asserting that these remaining claims are barred by the Agreement's one-year limitation-of-actions provision. For the reasons below, the Court will grant Cousins's motion.

Background

In 1992, Cousins and the Dennehys entered into the Agreement, whereby the Dennehys became Cousins's exclusive developer of an area southwest of Minneapolis for a period of ten years. (Compl. ¶¶ 4, 5, 9.) In exchange for these development rights, the Dennehys paid Cousins $30,000 (Compl. ¶ 10.) Under the Agreement, Cousins was, among other things, required to provide "assistance and advice" to the Dennehys. (See Weber Decl. Ex. A ("the Agreement") at 10 ("FRANCHISOR shall furnish to AREA DEVELOPER assistance and advice with respect to AREA DEVELOPER's responsibilities under this Agreement.").) The Dennehys, in turn, were required to achieve certain sales quota targets regarding the number of Cousins sub shops that they were to have open and operating by certain, specified dates. (Compl. ¶ 7; Weber Decl. Ex. A. at 3-4.) The Dennehys consistently fell short of those targets. (Compl. ¶ 11, 12.)

The Agreement contains a one-year limitation-of-actions clause, which reads, in pertinent part:

Any and all claims arising out of or relating to this Agreement or the relationship of AREA DEVELOPER and FRANCHISOR in connection with the AREA DEVELOPER's performance of its duties hereunder shall be barred unless an action or proceeding is commenced within one year from the date AREA DEVELOPER knew or should have known of the facts giving rise to such claims.

(Weber Decl. Ex. A at 21.)

The Dennehys filed suit on June 20, 2002. (See Weber Decl. Ex. B (Complaint).)

Standard of Decision

Rule 12(c) of the Federal Rules of Civil Procedure provides, "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." A motion for judgment on the pleadings may only be granted if the moving party clearly establishes that no material issue of fact remains to be resolved and the moving party is entitled to judgment as a matter of law. Potthoff v. Morin, 245 F.3d 710, 715 (8th Cir. 2001). In determining whether material issues of fact exist, the court must accept all facts pled by the non-moving party as true and draw all reasonable inferences in favor of the non-moving party. Id.; Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).

Analysis

Under Wisconsin law, parties can, by contract, agree upon a limitations period. Tupper v. Bally Total Fitness Holding Corp., 186 F. Supp.2d 981, 989 (E.D.Wis. 2002). "[I]t is well established that, in the absence of a controlling statute to the contrary, a provision in a contract may validly limit, between the parties, the time for bringing an action on such contract to a period less than that prescribed in the general statute of limitations, provided that the shorter period itself shall be a reasonable period." Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, 608 (1947); see also Chilcote v. Blue Cross Blue Shield United of Wis., 841 F. Supp. 877, 879 (E.D.Wis. 1993) (noting that Wisconsin law follows this formulation of the rule). Thus, to prevail on its motion, Cousins must demonstrate that (1) the events underlying the Dennehys' remaining claims are outside the limitations period, and (2) the limitations period is reasonable.

Under the limitations period set forth in the Agreement, the Dennehys were required to file their lawsuit "within one (1) year from the date [the Dennehys] knew or should have known of the facts giving rise to such claims." (Weber Decl. Ex. A at 21.) To establish the proposition that the facts giving rise to their remaining claims are within the one-year limitations period, the Dennehys cite dicta from this Court's earlier opinion stating that the claims in the present lawsuit are "based on Cousins' non-renewal of the Dennehys' franchise agreement" and "stem from Cousins' non-renewal of the agreement." (Dennehy v. Cousins Subs Systems, Inc., 02-1772 RHK/AJB, slip op. at 1, 4 (D.Minn. 2002) (Kyle, J.) (granting, in part, defendant's motion to dismiss).) While the lawsuit and many of its attendant claims were indeed motivated by Cousins's decision not to renew the Agreement, the Court has largely dismissed the Dennehys' claims as they implicate their purported right to renew.

The only claims that now remain before the Court involve a fairly discrete set of facts. In denying Cousins' motion to dismiss the breach of contract claim regarding the assistance and advice provision, the Court found that four distinct factual allegations support that claim:

[T]he Complaint asserts that Cousins failed to provide assistance to the Dennehys by (1) putting its corporate-owned stores up for sale in the Twin Cities area (outside of the exclusive area specified by the Agreement) at half the price of a new shop, (2) discontinuing its advertising in the Dennehys' exclusive area, (3) closing its Minnesota regional office and withdrawing its full-time marketing representative, and (4) rejecting a qualified potential franchisee who intended to purchase five shops in the Dennehys' exclusive area. . . . Although the Agreement may not have specifically barred Cousins from any of these activities, there is nothing to indicate that they did not violate an independent contractual duty to advise and assist.

(Id. at 7-8.) In refusing to dismiss the Dennehys' claim for breach of the duty of good faith and fair dealing, the Court identified the same four facts, but also added a fifth, the only allegation in the Complaint to directly implicate Cousins's refusal to renew the Agreement:

Assuming for the stake of this motion that Cousins rejected a qualified potential franchisee, undercut sales, withdrew a local representative, ceased advertising, and misled the Dennehys as to the nature of their renewal status, such facts could lead a jury to find that conduct to constitute such unreasonable behavior as to deprive the Dennehys of the benefit of the bargain. (See Compl. ¶¶ 1-18.) Such facts, if proved, would not face an insuperable bar to relief under Wisconsin law.

(Id. at 9 (emphasis added).)

Each of these allegations, save for the last, is time-barred. The Dennehys commenced this action in June of 2002. Therefore, for the Dennehys' claim to be timely, they must demonstrate that they did not know, or could not have known, the facts giving rise to their claim until June of 2001. The Complaint, however, alleges that Cousins put its corporate-owned shops up for sale in 1993 (Compl. ¶ 13), discontinued advertising in 1993 (Compl. ¶ 14), withdrew its marketing representative in 1996 (Compl. ¶ 15), and denied approval of a prospective franchise in 1998 (Compl. ¶ 16). All of these occurred well before June of 2001 and are therefore outside the Agreement's limitations clause.

Only one of the remaining factual allegations is not clearly barred by the limitations clause. Paragraph 17 of the Complaint reads:

Sometime in 1999 or 2000, Emmett Dennehy asked a Cousins' representative if the Agreement would be renewed after it expired in the year 2002. This Cousins' representative indicated to Mr. Dennehy that the Agreement would be renewed, and that all the Dennehys would need to do would be to sign a new Agreement and continue their efforts to develop new Shops in their Exclusive Area.

(Compl. ¶ 17.) While the relevant assurance was alleged to have occurred in "1999 or 2000," it would not have been clear to the Dennehys that this assurance was, in fact, false, until Cousins informed them in August of 2001 that it would not renew the Agreement. Thus, according to the Complaint, the Dennehys did not "kn[ow] or should have known of the facts giving rise to [their] claims" until August of 2001.

This allegation, however, standing alone, is insufficient to state a claim for breach of either the "assistance and advice" provision or the duty of good faith and fair dealing. The assistance and advice clause provides: "FRANCHISOR shall furnish to AREA DEVELOPER assistance and advice with respect to AREA DEVELOPER's responsibilities under this Agreement." (Weber Decl. Ex. A at 10.) While many of the time-barred allegations could be read so as to be inconsistent with an obligation to provide assistance and advice, this allegation is simply not susceptible to that reading, and the Court in its earlier opinion excluded it from the list of actionable bases for this reason. (See Dennehy, 02-1772 RHK/AJB, slip op. at 7.)

Likewise, the allegation that Cousins assured the Dennehys that the Agreement would be renewed, when in fact it was not, is insufficient by itself to state a claim for a breach in the duty of good faith and fair dealing. Under Wisconsin law, a party seeking to show a breach in the duty of good faith and fair dealing must show that the party accused of bad faith has "actually denied the benefit of the bargain originally intended by the parties." Zenith Ins. Co. v. Employers Ins. of Wausau, 141 F.3d 300, 308 (7th Cir. 1998) (citing Foseid v. State Bank of Cross Plains, 541 N.W.2d 203, 212-13 (Wis.Ct.App. 1995)).

While the multiplicity of wrongs alleged by the Dennehys may have been sufficient, in the aggregate, to survive a motion to dismiss, the allegation that Cousins misled the Dennehys about the nature of their renewal status does not, by itself, state a claim for a breach of the duty of good faith. Without the time-barred allegations, the Complaint contains no indicia of conduct so arbitrary or unreasonable as to "strip nearly all the flesh from the bones" of the agreement. In re Chayka's Estate, 176 N.W.2d 561, 564 (Wis. 1970). Rather, the Dennehys appear to have received exactly what they bargained for: a ten-year term as area developers. Any representations regarding the renewal of the Agreement dealt not with that agreement but with a prospective, future one. Because the Court has already held that Cousins' representations did not amount to an implied-in-fact contract, and because the duty of good faith and fair dealing "is not a basis for creating rights not expressly included in the contract," Cousins Subs Systems, Inc. v. McKinney, 59 F. Supp.2d 816, 821 (E.D.Wis. 1999), the Court concludes that the remaining allegation is insufficient to state a claim for the breach of the duty of good faith.

Finally, the limitation of actions provision in the Agreement is reasonable. Under Wisconsin law, public policy permits parties to bind themselves by contract to a shorter period of limitation than that provided for by statute. State Dept. of Public Welfare v. Le Mere, 120 N.W.2d 695 (Wis. 1963). While the Dennehys argue that the provision is unreasonable because it does not bind both parties equally, Wisconsin law does not require that every provision in a contract be binding on each of the parties to it. Cf. Levin v. Perkins, 107 N.W.2d 492, 495 (Wis. 1961) (stating that the liabilities or benefits accruing to each side in a bilateral contract need not be equal so long as sufficient consideration supports the contract as a whole). Moreover, the Dennehys have provided no explanation as to why they could not have brought suit within the relevant time period. See Chilcote, 841 F. Supp. 877 (E.D.Wis. 1993). Accordingly, the Court concludes that the one-year limitations period is reasonable and Cousins is entitled to judgment on the pleadings.

Conclusion

Based on the foregoing, and all of the files, records and proceedings herein, IT IS ORDERED that Defendant's Motion for Judgment on the Pleadings (Doc. No. 25) is GRANTED. The Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.