United States District Court, D. Maryland
David Copperthite, United States Magistrate Judge
KONE Inc., moves for judgment on the pleadings, pursuant to
Federal Rule of Civil Procedure 12(c), on all claims brought
by Plaintiff, Permira Construction, LLC, with the exception
of the breach of contract claim (the "Motion for
Judgment on the Pleadings") (ECF No. 11). After
considering the Motion and the responses thereto (ECF Nos.
20, 21), the Court finds that no hearing is necessary.
See Loc.R. 105.6 (D.Md. 2018). For the reasons
stated herein, the Court GRANTS Defendant's Motion for
Judgment on the Pleadings.
April 13, 2016, Plaintiff and Defendant entered into a
written contract in which Defendant agreed to supply and
install two elevators in a building owned by 602 Howard
Properties, LLC and located at 602 North Howard Street in
Baltimore, Maryland for $288, 000. ECF No. 1-1 at 2, ¶
6; ECF No. 1-3 at 15. According to Plaintiff, pursuant to the
contract, the estimated time for completion of
Defendant's services was no more than 38 weeks, or by the
first week of January 2017. ECF No. 1-1 at 2, ¶ 7.
However, Defendant's services were not complete until
November 13, 2017, ten months after the estimated completion
date. Id. ¶ 8.
attributes the delay between January 2017 and March 2017 to
Defendant's lack of communication and failure to: (1)
adhere to revised schedules it proposed; (2) have workers on
site on scheduled work days; and (3) comply with Change Order
requests and install requested items. Id. at 2-4,
¶¶ 10-24. On April 10, 2017, Defendant ceased work
on the project due to alleged improper nonpayment by
Plaintiff. Id. at 4, ¶ 25. On May 25, 2017,
Plaintiff arranged for payment of outstanding balances, and
payments were made on June 6 and June 19, 2017. Id.
at 5, ¶¶ 28-30. On July 7, 2017, Plaintiff executed
a Change Order for Defendant to perform overtime hours to
expedite the work. Id. ¶ 31. On August 30,
2017, Defendant stated that work would resume between
September 13th and 15th so long as payment was received by
September, H, 2017, and that work would be completed by the
week of September 20, 2017. Id. ¶34. Plaintiff
then "resolved all outstanding balances" with a
final payment on September 5, 2017. Id. ¶ 35.
September 21, 2017, Defendant informed Plaintiff that
completion would be delayed and, on September 22, 2017,
Plaintiff informed Defendant that one of the two elevators
was inoperable. Id. at 6, ¶¶ 36-37. On
October 4, 2017, Plaintiff advised Defendant that
Defendant's workers had stated that "substantial
work remained" on the project, that a final inspection
had still not been scheduled, and that Plaintiff was
suffering damages due to the delay in completion.
Id. ¶ 38. After the elevators allegedly failed
inspection on or about the first week of October, Defendant
completed its work at the building on November 13, 2017.
Id. ¶¶ 39-40. Thereafter, Plaintiff
entered into a settlement agreement with 602 Howard
Properties, LLC, the owner of the building, in which
Plaintiff agreed to forfeit $475, 047.10 "that would
otherwise be due and owing to Plaintiff but for
Defendant's actions. Id. ¶ 41.
original Complaint was filed in the Circuit Court for Anne
Arundel County on August 27, 2018. ECF No. 1-1. On November
14, 2018, Defendant filed its Answer in that
court. ECF No. 1-5. Subsequently, on December 7,
2018, Defendant removed the case to this Court. ECF No. 1. On
March 18, 2019, Defendant filed the Motion for Judgment on
the Pleadings. ECF No. II. Plaintiff filed an opposition on April
1, 2019, ECF No. 20, and Defendant replied on April 15, 2019,
ECF No. 21. This matter is now fully briefed, and the Court
has reviewed Defendant's Motion for Judgment on the
Pleadings, as well as the responses thereto. For the
following reasons, Defendant's Motion for Judgment on the
Pleadings is GRANTED.
Standard of Review for Motion for Judgment on the
Rule of Civil Procedure 12(c) "provides that after the
pleadings are closed, a defendant may present a defense of
failure to state a claim upon which relief may be granted by
a judgment on the pleadings." Nat'l
Cas. Co. v. Lockheed Martin Corp., 415 F.Supp.2d
596, 600 (D.Md. 2006). "The standard of review for Rule
12(c) motions is the same as that under Rule 12(b)(6)."
Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th
Cir. 2014) (citing Butler v. United States, 702 F.3d
749, 751 (4th Cir. 2012)). The purpose of a Rule 12(b)(6)
motion and a Rule 12(c) motion is to test the sufficiency of
a complaint not to "resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses." King v. Rubenstein, 825 F.3d 206,
214 (4th Cir.2016)(quoting Edwards v. City of
Goldsboro, 178F.3d231, 243 (4thCir. 1999)). 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 Atl. 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." Id. An
inference of a mere possibility of misconduct is not
sufficient to support a plausible claim. Id. at 679.
As stated in Twombly, "[f]actual 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 assertions' devoid of 'further factual
enhancement.'" Iqbal, 556 U.S. at 678
(internal citations omitted). Although when considering a
motion for judgment on the pleadings 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.
Defendant's Motion for Judgment on the Pleadings
Complaint, Plaintiff asserts six causes of action against
Defendant: (I) breach of contract; (II) gross negligence;
(III) negligence; (IV) negligent misrepresentation; (V)
deceit; and (VI) implied indemnification and contribution.
ECF No. 1-1 at 6-12, ¶¶ 42-77. Defendant now moves
to dismiss Counts II-VI.
Count II, Plaintiff alleges that Defendant "owed
Plaintiff an independent duty of care to conduct [its] work
in a reasonable manner" and was grossly negligent when
it failed to complete the services it agreed to perform.
Id. at 7, ¶¶ 49-50. Similarly, in Count
III, Plaintiff alleges that Defendant owed Plaintiff an
independent duty of care and "breached [its] duty by
failing to complete the [s]ervices in a reasonable time and
quality." Id. at 8, ¶¶ 53-54. In
Count IV, Plaintiff alleges that Defendant negligently made
false statements regarding the completion date when it had no
reasonable basis for the statements and that Plaintiff
detrimentally relied upon those statements. Id. at
9-10, ¶¶ 57-63. In Count V, Plaintiff alleges that
Defendant held itself out as qualified and capable to
complete its services and made repeated affirmations about
the prompt completion of the work knowing that such
statements were false, and that Plaintiff relied upon these
statements when contracting with Defendant. Id. at