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Permira Construction, LLC v. Kone Inc.

United States District Court, D. Maryland

May 9, 2019

PERMIRA CONSTRUCTION, LLC, Plaintiff,
v.
KONE INC., Defendant.

          MEMORANDUM OPINION

          A. David Copperthite, United States Magistrate Judge

         Defendant, 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.

         Factual Background

         On 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.

         Plaintiff 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.

         On 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.

         Procedural Background

         The 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.[1] 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.[2] 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.

         Discussion

         A. Standard of Review for Motion for Judgment on the Pleadings

         Federal 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.

         B. Defendant's Motion for Judgment on the Pleadings

         In the 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.

         In 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 10-11, ...


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