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Carter Concrete Structures, Inc. v. Whiting-Turner Contracting Co.

United States District Court, D. Maryland

March 4, 2016




I. Background

Plaintiff Carter Concrete Structures, Incorporated (“Carter”), filed suit against Defendant Whiting-Turner Contracting Company, essentially alleging Whiting-Turner did not pay all that Carter was due under a subcontract for Carter to provide concrete fabrication and related work as part of Whiting-Turner’s general contract to renovate the Alexander Memorial Coliseum on the campus of Georgia Institute of Technology in Atlanta, Georgia. (Compl., ECF No. 1.) The original complaint was superseded by an amended complaint (ECF No. 11), which omitted some of the original counts. Whiting-Turner’s motion to dismiss the original complaint (ECF No. 4) is, therefore, moot. Now pending before the Court is Whiting-Turner’s motion to dismiss the amended complaint for failure to state a claim for relief or, in the alternative, for summary judgment. (ECF No. 13.) The motion has been briefed (ECF Nos. 18 & 21) and requires no hearing, Local Rule 105.6 (D. Md. 2014). The motion will be granted in part and denied in part.

II. Standard of Dismissal for Failure to State a Claim

A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ . . . Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

III. Standard for Summary Judgment

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting and opposing affidavits are to be made on personal knowledge, contain such facts as would be admissible in evidence, and show affirmatively the competence of the affiant to testify to the matters stated in the affidavit. Fed.R.Civ.P. 56(c)(4).

IV. Allegations of the Complaint

According to the amended complaint (hereinafter referred to as the “complaint”), the project involving the Alexander Memorial Coliseum (“AMC”) “was a high-profile, state-of-the-art construction project.” (Am. Compl. ¶ 5.) The AMC’s interior was demolished and replaced with a new, updated, and modernized facility, while the original dome, considered historically significant, was retained. (Id.) The new facility, which is a basketball arena, is now known as the Alexander Memorial Coliseum Replacement Facility (“AMC-R”) or the McCamish Pavilion. (Id. ¶¶ 5, 6.)

Whiting-Turner entered into a design-build contract with the Board of Regents of the University System of Georgia (“Owner”) for the project. (Id. ¶ 6.) Timing was critical as the new facility had to be completed and operational before Georgia Tech’s 2012-13 basketball season began, and this was successfully done. (Id. ¶¶ 7, 8.) The work of constructing the concrete foundation and structural frame was subcontracted by Whiting-Turner to Carter. (Am. Compl. Ex. A, Subcontract, ECF No. 11-2.)

Under the subcontract, Carter agreed “to commence, pursue diligently and complete the work in such sequence and order and according to such schedules as Contractor shall establish from time to time during the course of the work, and shall perform the work so as not to delay any other trades or contractors, time being of the essence of this Subcontract.” (Id. art. 4(a).) The subcontract also provided,

To the fullest extent permitted by applicable law, Contractor shall have the right at any time to delay or suspend the work or any part thereof without incurring liability therefore [sic]. An extension of time shall be the sole and exclusive remedy of Subcontractor for any delays or suspensions suffered by Subcontractor, but only to the extent that a time extension is obtained from the Owner, and Subcontractor shall have no right to seek or recover from Contractor any damages or losses, whether direct or indirect, arising from or related to any delay or acceleration to overcome delay, and/or any impact or effect of such delays on the work.

(Id. art. 4(b).)

The subcontract required Carter to give Whiting-Turner notice of “any dispute, controversy, or claim for additional compensation or time extensions, except for payment for extra or additional work expressly directed by Contractor in accordance with Section 6(a) of this Subcontract, . . . no later than seven (7) days following the occurrence on which such claim is based . . . .” (Id. art. 6(d).) As a subcontractor, Carter also agreed it “shall not cause any unnecessary interference with or delay to the Contractor or to other subcontractors on said Project . . . .” (Id. art 9(b).) The subcontract included both a choice-of-law clause and a forum-selection clause:

This Subcontract shall be governed by the laws of the State of Maryland, without regard to principles of conflict of laws. Any action or suit arising hereunder shall be brought in the jurisdiction where Contractor’s principal office is located without regard to principles of conflict of laws or forum non conveniens.

(Id. art. 9(r).) Finally, the subcontract provided, “All other legal or equitable claims by Subcontractor, including claims against Owner of quantum meruit or unjust enrichment, are hereby waived and released.” (Id. art. 9(v).)

The core of Carter’s complaint is the following:

13. To the dismay and surprise of Carter, Whiting-Turner forced Carter to perform its concrete work in a radically different manner, method, and sequence from what was anticipated, including, but not limited to the following snapshot of ...

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