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Federal Insurance Co. v. High Construction Co., LLC

United States District Court, D. Maryland

May 8, 2018

FEDERAL INSURANCE COMPANY, el al. Plaintiffs,
v.
HIGH CONSTRUCTION COMPANY, LLC, et al, Defendants.

          MEMORANDUM OPINION

          A. David Copperthite United States Magistrate Judge

         Defendant. Galletta Engineering Corporation ("Galletta"), moves this Court to dismiss, or alternatively, to grant summary judgment in its favor for, the claims of Plaintiffs, Federal Insurance Company ("Federal"), t/i/u/ and t/t/u/o Alpha Technologies Services, Inc. ("Alpha."). and Alpha (collectively with Federal. "Plaintiffs"), for Plaintiffs" failure to file a certificate of qualified expert under § 3-2C-02(a)(2)(ii) of the Courts and Judicial Proceedings Article of the Maryland Code ("CJ") (the "Motion to Dismiss") (ECF No. 37). After considering the Motion to Dismiss and the response thereto (ECF No. 41), the Court finds that no hearing is necessary. See Loc.R. 105.6 (D.Md. 2016). For the reasons stated herein, the Court DENIES Galletta's Motion to Dismiss.

         Factual Background

         Alpha contracted with Comcast Cable Communications Management, LLC ("Comcast") for a building extension and upgrade. ECF No. 2 at 4. Alpha contracted with Galletta to provide engineering and design services for the extension and upgrade and to provide insurance protection for Alpha. Id. at 5. Alpha also contracted with High Construction Company LLC a/k/a High Construction Company ("High Construction"), a general contractor, to oversee the engineering design implementation, including making preparations for and supervising a concrete pour at the construction site on or about October 16, 2013, which Ron Kemper Masonry. LLC ("Ron Kemper Masonry") would perform. Id. at 6.

         On October 16, 2013. a grout mixture, rather than concrete, was poured into the cells of a concrete masonry unit block wall. Id. at 6-7. The grout mixture breached the wall and encased Comcast cables routed through the floor system. Id. at 7. As a result, remediation work was required and the extension and upgrade area was used to reroute Comcast's existing communications services, rather than to increase Comcast's communications bandwidth. Id. at 7-8. Alpha and other independent contractors paid by Alpha and its insurer. Federal, performed the remediation work and "incurred costs of no less than $625.071.44." Id. at 9.

         In this lawsuit. Plaintiffs seek reimbursement "for the money they paid to Comcast or otherwise expended as a result of the negligence of Galletta, High Construction, and/or Ron Kemper Masonry ((all three collectively, "Defendants")], as well as the failure by Galletta and High Construction to obtain insurance protection as contracted to protect Alpha from the losses incurred and claimed by Comcast." Id. at 3. Galletta has moved to dismiss Plaintiffs' complaint. citing Plaintiffs' failure to file a certificate of a qualified expert pursuant to CJ § 3-2C-02(a)(2)(ii) with this Court. See generally ECF No. 37.

         Procedural Background

         On December 30, 2016. Plaintiffs filed this lawsuit against Defendants, alleging that Defendants were negligent in a construction matter and asserting indemnity, contribution, and breach of contract claims (ECF No. 2).[1] On January 6, 2017. Galletta filed an answer (ECF No. 7), and about one week later, Ron Kcmper Masonry filed its answer (ECF No. 8). On November 16, 2017, the Court determined that Plaintiffs had "shown good cause . . . why the Complaint should not be dismissed without prejudice against High Construction for failure to comply with Fed.R.Civ.P. 4(m) and Local Rule 103.8(a)." ECF No. 23 at l.[2]

         On March 12, 2018, Galletta filed the Motion to Dismiss (ECF No. 37). After receiving an extension. Alpha opposed the Motion to Dismiss on April 6, 2018 (ECF No. 34). Accordingly, the Motion to Dismiss is fully briefed

         Standard of Review

         A motion to dismiss for failure to comply with a certificate requirement is governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Fraiser v. United States, PX 16-2505. 2017 WL 1632414, at *3 (D.Md. May 2, 2017). When ruling on a motion under Rule 12(b)(6). the court must "accept the well-pled allegations of the complaint as true." and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Lay v. Caesars Enter. Servs.. LLC, CCB-18-96, 2018 WL 1947050, at *3 (D.Md. Apr. 25, 2018) (quoting Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997)). "The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Alt. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         Discussion

         Galletta argues that Plaintiffs" complaint should be dismissed because Plaintiffs tailed to file a certificate of qualified expert, attesting that Galletta failed to meet the applicable standard of professional care within ninety days as required by CJ § 3-2C-02(a)(2)(ii). KCF No. 37 at 1. While Alpha concedes that Plaintiffs did not file a certificate within the statutory time and requests a modification-an extension-of the ninety-day period for filing a certificate in its response, ECF No. 41 at 2-3. the Court does not need to consider such timing because, based on the allegations in the complaint. CJ § 3-2C-02 does not apply in this case.

         CJ § 3-2C-02 sets out the filing requirement for an expert certificate and ...


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