United States District Court, D. Maryland
FEDERAL INSURANCE COMPANY, el al. Plaintiffs,
HIGH CONSTRUCTION COMPANY, LLC, et al, Defendants.
David Copperthite United States Magistrate Judge
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
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.
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.
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.
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). 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.
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
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).
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.
§ 3-2C-02 sets out the filing requirement for an expert
certificate and ...