Smith et al v. Family Dollar Stores Inc et al

Filing 35

MEMORANDUM OPINION, as set out, re dft MetroGroup Development II, LLC's Motion to Dismiss 28 . An order in accordance will be entered contemporaneously with this Memorandum Opinion. Signed by Judge Sharon Lovelace Blackburn on 4/27/15. (CTS, )

FILED
2015 Apr-28 AM 07:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MARK SMITH, LEE COLEMAN, ERIC
WHEELER, and WILLIE DANNER,

)
)
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Plaintiffs,
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)
v.
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FAMILY DOLLAR STORES, INC.,
)
METROGROUP DEVELOPMENT, and
)
FORESITE GROUP, INC.,
)
)
Defendants.

CASE NO. 7:14-cv-161-SLB

MEMORANDUM OPINION
This case is presently pending before the court on defendant MetroGroup
Development II, LLC’s Motion to Dismiss. (Doc. 28.)1 Upon consideration of the record,
the submissions of the parties, the arguments of counsel, and the relevant law, the court is
of the opinion that defendant’s Motion to Dismiss, (Doc. 28), is due to be denied.
MOTION TO DISMISS STANDARD
Defendant MetroGroup Development II, LLC has moved to dismiss plaintiffs’
Complaint for failure to state a claim upon which relief may be granted. (Doc. 28 at 1.) The
purpose of such motions, authorized by Rule 12(b)(6) of the Federal Rules of Civil
Procedure, is to test the facial sufficiency of the plaintiff’s statement of his claims for relief.
Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1367 (11th Cir. 1997).

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Reference to a document number, [“Doc. ___”], refers to the number assigned to
each document as it is filed in the court’s record.

Rule 12(b)(6) must be read together with Rule 8(a)(2), which “requires that a pleading
contain a short and plain statement of the claim showing that the pleader is entitled to relief
in order to give the defendant fair notice of what the claim is and the grounds upon which
it rests.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (internal
citations and quotation marks omitted).
To survive a 12(b)(6) motion, Rule 8 “does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). The “plaintiff’s obligation to provide the grounds of his entitle[ment]
to relief requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations and quotation
marks omitted). Accordingly, “[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).” Id. (citations and footnote omitted). The plaintiff need not
prove his case but must plead “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570 (emphasis added).
Additionally, “[w]hen considering a motion to dismiss, all facts set forth in the
plaintiff’s complaint ‘are to be accepted as true and the court limits its consideration to the
pleadings and exhibits attached thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228,
1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty., Ga., 999 F.2d 1508, 1510 (11th Cir.

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1993)). Further, all “reasonable inferences” are drawn in favor of the plaintiff. St. George
v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002). However, while the court must
accept all factual allegations as true, it is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Iqbal, 556 U.S. at 678 (citation omitted).
FACTUAL BACKGROUND
As set forth in the court’s Memorandum Opinion addressing plaintiffs’ Motion to
Remand, the facts of this case are as follows:
Plaintiffs filed this action against defendants Family Dollar Stores, Inc.,
(“Family Dollar”), MetroGroup Development (“MetroGroup”), and Foresite
Group, Inc. (“Foresite”) (collectively “defendants”) in the Circuit Court for
Sumter County, Alabama. In February 2012, defendants began construction
of a Family Dollar store in Sumter County. (Doc. 1-1, ¶ 11.) During
construction defendants developed and implemented a moat as a drainage
system for the store. (Id. ¶ 17.) The construction of the store created various
noises and vibrations that affected plaintiffs’ property. (Id. ¶¶ 13-15.) The
moat/drainage system also caused continuous water drainage onto property
owned by Smith and lawfully occupied by Coleman, property owned by
Wheeler, and property lawfully occupied by Danner. (Id. ¶¶ 1-4, 18-21.)
The plaintiffs filed suit against defendants on December 23, 2013. The
Complaint sets forth claims for trespass, nuisance, negligence/wantonness,
and combined and concurring negligence/wantonness. (Id. ¶¶ 31-55.) As a
result of these actions, plaintiffs seek compensatory damages for interference
with the use and enjoyment of plaintiffs’ property, “personal injury, mental
and emotional anguish, suffering and distress, anxiety, and for such future
damages as are appropriate;” punitive damages; exemplary/enhanced
damages; and additional further relief. (Id. at 14.)
Foresite removed this action on January 29, 2014, alleging diversity
jurisdiction under 28 U.S.C. § 1332. (Doc. 1.)
(Doc. 14 at 1-2.)

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DISCUSSION
Plaintiffs assert in their Complaint that MetroGroup, along with the other defendants,
began construction of the Family Dollar store, made the decision to build a moat around the
store, implemented the moat as a drainage system, and caused and allowed water to drain
from the Family Dollar property onto plaintiffs’ properties with knowledge of the effect on
plaintiffs’ properties. (Doc. 1-1 ¶¶ 11, 16-17, 21-22.) To survive defendant’s Motion to
Dismiss, plaintiffs’ 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
Twombly, 550 U.S. at 570).
In it Motion to Dismiss, defendant argues that plaintiffs’ claims asserted against it
should be dismissed because “MetroGroup Development II, LLC has never owned,
developed, or constructed improvements on the real property that is the subject of this
action.” (Doc. 28 ¶ 4.) While defendant entered into contracts to purchase and develop 700
4th Avenue, York, Alabama, the real property at issue in this case, it “assigned those
contracts to another entity before purchasing or developing the property and before any
improvements to the property were ever made.” (Id. ¶ 5.) Defendant further asserts that the
“ownership of the property and building permits were not in the name of Metro Group
Development II, LLC, and were a matter of public record before construction began.” (Doc.
34 ¶ 3.)

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First, if defendant believes that plaintiffs sued the wrong party, defendant must
produce evidence of the assignment. Defendant has not attached any contract or other
document showing an assignment of its contract rights to purchase and develop 700 4th
Avenue in York, Alabama to another entity. Therefore, because “[s]tatements by counsel in
briefs are not evidence,” the court has no evidence of the alleged assignment. Travaglio v.
American Exp. Co., 735 F.3d 1266, 1270 (11th Cir. 2013) (quoting Skyline Corp. v.
N.L.R.B., 613 F.2d 1328 (5th Cir. 1980)) (internal quotations omitted).
Even if defendant had produced evidence of the assignment, defendant has not
provided any evidence or stated any facts explaining its relationship with the unnamed entity
to whom defendant assigned its contracts. Depending on the relationship between defendant
and the assignee entity, and whether defendant retained any control over the purchase and
development of the property, defendant may ultimately be liable to plaintiffs for any damage
caused by the assignee through, for example, vicarious liability or an alter ego theory. See
Lifestar Response of Ala., Inc. v. Admiral Ins. Co., 17 So. 3d 200 (Ala. 2009) (“The test for
determining whether a person is an agent or employee of another, rather than an independent
contractor, is whether that other person has reserved the right of control over the means and
method by which the person's work will be performed, whether or not the right of control
is actually exercised. Alabama Power Co. v. Beam, 472 So. 2d 619 (Ala.1985). Vicarious
liability arises from the right of supervision and control over the manner of the alleged
agent's performance. Kennedy v. Western Sizzlin Corp., 857 So. 2d 71 (Ala.2003).

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Generally, one is liable for the actions of an agent but is not liable for the actions of an
independent contractor. Gonzalez, LLC v. DiVincenti, 844 So. 2d 1196 (Ala.2002).”); M.B.
Barge Co., Inc. v. Kudzu Marine, Inc., No. 12-0686-WS-N, 2014 WL 4979139, at *3 (S.D.
Ala. Oct. 6, 2014) (Under Alabama law, “liability under an alter ego theory requires: [(1)]
‘complete control’ by the defendant over the subservient corporation; (2) ‘misuse’ of that
control; and (3) harm or loss proximately caused by the misused control.”) (quoting Messick
v. Moring, 514 So. 2d 892, 894-95 (Ala. 1987)).
Further, even if defendant had produced evidence of the assignment and its
relationship with the assignee, this evidence would properly be the subject of a Rule 56
motion, not a Rule 12(b)(6) motion. See Chaparro v. Carnival Corp., 693 F.3d 1333, 133637 (11th Cir. 2012) (“At the pleading stage of litigation, we ask only if plaintiffs have
adequately stated a claim for which relief can be granted. Carnival’s argument . . . is more
appropriate after discovery at the summary judgment stage or at trial.”).
CONCLUSION
Based on the foregoing, the court finds that defendant MetroGroup Development II,
LLC’s Motion to Dismiss, (Doc. 28), is due to be denied. An order in accordance will be
entered contemporaneously with this Memorandum Opinion.
DONE this 27th day of April, 2015.
SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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