Acme Roofing and Sheet Metal Company Inc ITS Joint Venture v. Air Team USA Inc et al
MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 7/8/13. (SAC )
2013 Jul-08 PM 04:15
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ACME ROOFING AND SHEET
METAL COMPANY, INC./ITS JOINT
AIR TEAM USA, INC., BENNETT
LUMBER CO., LLC, GRACE
CONSTRUCTION, LLC, and REROOF
) Civil Action No: 12-CV-1056-KOB
This matter comes before the court on the Defendant/Cross Claim Defendant Reroof
America Management Services’ Motion to Dismiss Grace Construction, LLC’s Amended Cross
Claim, filed on February 25, 2013. (Doc. 56). Grace Construction, LLC filed its response on
March 19, 2013. (Doc. 58). Reroof replied to the response on March 27, 2013. (Doc. 59). For the
following reasons, the motion is due to be GRANTED.
STATEMENT OF FACTS
On or about September 24, 2008, the plaintiff, Acme Roofing and Sheet Metal Company,
entered into a contract with the United States Army Corp of Engineers to provide temporary
roofing to structures damaged during Hurricane Ike. (Doc. 1, ¶ 9). To fulfill this contract, Acme
entered into another contract with Grace, along with other sub-contractors, in which Grace would
provide the temporary roofing repair. (Id. at ¶ 10-11). An audit done by the US Department of
Labor revealed deficiencies in the work allegedly done by Grace. (Id. at ¶ 13). After spending
time and money resolving these issues on Grace’s behalf, Acme attempted to pay Grace the
outstanding balance for the work done, minus the expenses and fees incurred during the audit,
totaling $115,692.64. (Id. at ¶ 14-15). Acme was made aware that Defendants Air Team USA,
Bennett Lumber Company, and KDV Roofing have possible claims on the money owed to Grace.
Acme also discovered that Air Team and KDV have dissolved, thus prompting Acme to file the
instant interpleader action, offering the funds to the court for determination of the relevant
parties’ interests. (Id. at ¶ 17-20). Defendant Reroof was subsequently substituted for KDV as the
real party in interest, because of an assignment of accounts receivable executed on September 22,
2008, between KDV and Reroof. (Docs. 16, 19).
Reroof filed an answer to the interpleader complaint on June 21, 2012 (doc. 17) and
asserted a cross claim against Grace. Grace and KDV had executed a sub-contract agreement for
KDV to provide the materials and labor necessary for the temporary roofing work. Reroof alleges
that KDV performed fully and is due $215,994.97 under the contract. (Doc. 17, ¶ 4). Reroof’s
cross claim alleges Grace breached this subcontract by refusing to pay the balance due to KDV,
thus damaging Reroof as the assignee of KDV’s accounts receivable and rights of payment. (Id.
at ¶ 7-8).
Grace answered Reroof’s cross claim and asserted a cross claim against Reroof on
December 20, 2012. (Doc. 42). However, Grace filed an amended answer and cross claim against
Reroof on February 13, 2013. (Doc. 54). Grace asserts that Reroof intentionally interfered with
the contract and business relationship between Grace and Acme as well as the business
relationship between Grace and KDV. Grace contends that Reroof communicated with Acme,
beginning in March 2010, claiming it, as assignee of KDV’s account, was entitled to the money
due from Acme to Grace. Grace argues that Reroof interfered wrongfully in both relationships,
with knowledge of a waiver of lien executed by KDV in favor of Grace. Grace claims this
interference caused the money due to it from Acme to be delayed and ultimately interpled in this
action rather than to be paid in a timely manner. Reroof’s Motion to Dismiss the amended cross
claim is the subject of this current opinion.
A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint.
Generally, the Federal Rules of Civil Procedure require only that the complaint provide “‘a short
and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957)
(quoting Fed. R. Civ. P. 8(a)). A plaintiff must provide the grounds of his entitlement, but Rule
8 generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, “demand[ ] more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal 556 U.S. 662,
678 (2009). Pleadings that contain nothing more than “a formulaic recitation of the elements of
a cause of action” do not meet Rule 8 standards nor do pleadings suffice that are based merely
upon “labels or conclusions” or “naked assertions” without supporting factual allegations.
Twombly, 550 U.S. at 555, 557.
The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678 (quoting and explaining its decision in Twombly, 550 U.S. at 570)
(emphasis added). To be plausible on its face, the claim must contain enough facts that “allow[ ]
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Although “[t]he plausibility standard is not akin to a
‘probability requirement,’” the complaint must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent
with a defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
The Supreme Court has recently identified “two working principles” for the district court
to use in applying the facial plausibility standard. The first principle is that, in evaluating
motions to dismiss, the court must assume the veracity of well-pleaded factual allegations;
however, the court does not have to accept as true legal conclusions even when “couched as 
factual allegation[s]” or “threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements.” Iqbal, 556 U.S. at 678.
The second principle is that “only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. Thus,
under prong one, the court determines the factual allegations that are well-pleaded and assumes
their veracity, and then proceeds, under prong two, to determine the claim’s plausibility given the
well-pleaded facts. That task is “context-specific” and, to survive the motion, the allegations
must permit the court based on its “judicial experience and common sense. . . to infer more than
the mere possibility of misconduct.” Id. If the court determines that well-pleaded facts, accepted
as true, do not state a claim that is plausible, the claim must be dismissed. Id.
Grace’s cross claim against Reroof alleges two counts, one of intentional interference
with contractual relations between Grace and Acme, and a second count of intentional
interference with business relations between Grace and Acme and Grace and KDV. Alabama law
recognized that these torts are essentially the same and disposed of the distinction between the
two causes of action. Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590, 597
(Ala. 1986) (overruled on other grounds by White Sands Group, L.L.C. v. PRS II, LLC, 32 So.3d
5 (Ala. 2009); see also Moore Oil Co., Inc. v. D & D Oil Co., 747 F. Supp. 2d 1280, 1289 (N.D.
Ala. 2010). Therefore, the court will treat Grace’s cross claim as one count of intentional
interference with the contractual or business relationship between Grace and Acme, and a
separate count of intentional interference with the contractual or business relationship between
Grace and KDV.
The elements required to prove these claims are: “(1) a protectable business relationship
or contract; (2) of which the defendant knew; (3) to which the defendant was a ‘stranger,’ i.e., a
third-party; (4) the defendant’s intentional interference with the contract or business relationship;
and (5) resulting damage to the plaintiff.” Moore Oil, 747 F. Supp. 2d at 1289 (citing White
Sands Group, L.L.C. v. PRS II, LLC, 32 So. 3d 5, 12-15 (Ala. 2009)).
A. Intentional Interference in the Relationship Between Grace and KDV
Grace asserts that Reroof intentionally interfered with the business relationship between
Grace and KDV. Specifically, Grace argues that Reroof claims an interest, as KDV’s assignee,
in a lien that has been waived through a waiver of lien executed by KDV. Grace’s pleading is
sufficient to establish a relationship between itself and KDV of which Reroof had knowledge.
However, to survive a motion to dismiss on an intentional interference claim, Grace must
sufficiently plead Reroof’s status as a ‘stranger’ to the relationship. While the cross claim may
name Reroof as a ‘stranger,’ the court takes judicial notice of its own previous orders in this case.
“A district court may take judicial notice of certain facts without converting a motion to dismiss
into a motion for summary judgment.” Universal Express, Inc. v. U.S. S.E.C., 177 Fed. Appx. 52,
53 (11th Cir. 2006) (citing Bryant v. Avado Brands, Inc., 187 F. 3d 1271, 1278 (11th Cir. 1999)).
Public records, including court orders, are permissible subjects for judicial notice. Id.
On June 21, 2012, KDV filed a Motion to Substitute Party, claiming that Reroof is the
real party in interest because of an assignment of KDV’s accounts receivable and rights of
payment to Reroof on September 22, 2008. (Doc. 16, ¶ 3). This court granted that motion,
substituting Reroof for KDV as the proper Interpleader Defendant, stating that, “[b]ased on
emails the court received, the Interpleader Plaintiff and the other Interpleader Defendant of
record do not oppose this motion.” (Doc. 19). If Grace believed Reroof to be an interfering
stranger in this matter, it should have objected to KDV’s motion to substitute Reroof as the real
party in interest. Having passed this opportunity, the court must remain consistent with its
previous orders and consider Reroof as an involved and interested party in the relationship. In
essence, Reroof is a party to this case as a substitute for KDV; i.e., Reroof stand in the shoes of
KDV. Because Reroof is not a ‘stranger’ to the relationship between Grace and KDV, instead
holding an assignment of KDV’s accounts receivable, including the account due from Grace to
KDV, Grace cannot succeed in this claim.1
B. Intentional Interference in the relationship between Grace and Acme
The facts as pled by Grace in the Amended Cross Claim establish the existence of a
The question of whether the waiver of the lien (doc. 54, ex. B) in favor of Grace Construction affects
Reroof’s right to payment still exists. However, the existence and validity of the waiver does not change Reroof’s
status as a party in interest.
contract and protectable business relationship between Grace and Acme. Grace asserts that by
claiming an interest in the funds due from Acme to Grace, Reroof has delayed the payment due
from Acme, causing the funds to be interpled. Again, Grace’s claim fails to adequately establish
Reroof’s status as a stranger to the relationship.
As the previous records in this case establish, Acme included KDV as a defendant in its
original complaint. Acme has recognized that KDV was a subcontractor of Grace’s that had a
potential claim on money owed under the contract between Grace and Acme. Neither Acme nor
Grace claimed at any point in this litigation that KDV was a stranger to their relationship. Grace
allowed KDV to substitute Reroof as the assignee of the account and real party in interest
without any objection or reservation. Grace cannot now alter its position on Reroof’s interest and
claim that Reroof is a stranger to the relationship. This court will not take a position that is
inconsistent with its prior orders in the very same case.
For the reasons as stated above, Reroof’s Motion to Dismiss Grace’s Amended Cross
Claim (doc. 56) is due to be GRANTED.
A separate order will be entered in accordance with this Memorandum Opinion.
DONE and ORDERED this 8th day of July, 2012.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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