Hartford Casualty Insurance Company v. A.O. Smith Corp. et al
Filing
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ORDER Granting Defendants' 53 , 54 Motions to Dismiss. The Court grants KMP leave to amend. KMP shall file a First Amended Third Party Complaint within fifteen (15) days of the filing of this Order. Signed by Judge Barry Ted Moskowitz on 8/2/2016. (rlu)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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KMP PLUMBING,
Case No.: 14cv2756 BTM (MDD)
Third Party Plaintiff,
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v.
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PLATT/WHITELAW
ARCHITECTS, INC. and DECK
ENGINEERING CONSULTANTS,
INC.,
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ORDER GRANTING
DEFENDANTS’ MOTIONS TO
DISMISS
Third Party Defendants.
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Third Party Plaintiff KMP Plumbing (“KMP”) filed a Third Party Complaint on
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October 22, 2015, against Third Party Defendants Platt/Whitelaw Architects, Inc.
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(“Platt”), and Deck Engineering Consultants, Inc. (“DEC”). (ECF No. 50.) Platt
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and DEC each moved separately to dismiss. (ECF Nos. 53, 54.) For the reasons
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discussed below, Defendants’ motions are GRANTED.
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I. BACKGROUND
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The issues in this case arise out of damage to a property in San Diego
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allegedly caused by a hot water heater. (Compl. ¶ 11, ECF No. 1.) The original
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complaint was brought by Hartford Casualty Insurance Company against A.O.
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14cv2756 BTM (MDD)
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Smith Corporation. (Compl. p. 1.) Following initial discovery, the Court granted
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the parties’ joint motion for leave to file a Third Party Complaint for indemnity and
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contribution against KMP. (ECF Nos. 25, 28.) KMP in turn requested, and was
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granted, leave to file a Third Party Complaint against Platt and DEC. (ECF Nos.
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45, 49.) Defendants filed separate motions to dismiss. (ECF Nos. 53, 54.)
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II. DISCUSSION
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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should
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be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or
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sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police
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Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss,
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the allegations of material fact in plaintiff’s complaint are taken as true and
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construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc.
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v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
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Although detailed factual allegations are not required, factual allegations
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“must be enough to raise a right to relief above the speculative level.” Bell
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Atlantic v. Twombly, 550 U.S. 544, 555 (2007). “A plaintiff’s obligation to prove
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the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
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conclusions, and a formulaic recitation of the elements of a cause of action will
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not do.” Id. “[W]here the well-pleaded facts do not permit the court to infer more
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than the mere possibility of misconduct, the complaint has alleged—but it has not
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show[n] that the pleader is entitled to relief.” Ashcroft v. Iqbal, 565 U.S. 662, 679
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(2009) (internal quotation marks omitted). Only a complaint that states a
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plausible claim for relief will survive a motion to dismiss. Id.
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While Defendants filed separate motions to dismiss, the motions each
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make the same arguments: that California law requires KMP to file a certificate of
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merit, and that KMP failed to plead facts sufficient to state a claim. Each
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argument is discussed in turn.
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14cv2756 BTM (MDD)
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A.
Certificate of Merit
California Civil Procedure Code § 411.35 requires that a plaintiff’s counsel
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alleging negligence on the part of an architect, engineer, or surveyor include a
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certificate of merit attesting that the attorney has consulted with and received an
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opinion of at least one professional, and subsequently determined from the
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opinion that the case is meritorious. See Cal. Civ. Proc. Code § 411.35(b)(1).
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Because KMP did not include a certificate of merit with the TPC, Defendants
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argue that such a deficiency requires dismissal.1 KMP argues that the
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requirement is procedural and therefore not applicable in cases filed in federal
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court pursuant to diversity jurisdiction.
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Defendants cite two cases from the Northern District of California for the
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proposition that the certificate requirement is procedural and therefore, under the
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Erie doctrine, does not apply to diversity cases. See Apex Directional Drilling,
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LLC v. SHN Consulting Eng’rs & Geologists, Inc., 119 F. Supp. 3d 1117 (N.D.
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Cal. 2015); Rafael Town Ctr. Investors v. Weitz Co., No. C 06-6633 SI, 2007 WL
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1577886 (N.D. Cal. May 31, 2007). The Court finds these decisions persuasive.
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Accordingly, for the reasons outlined by Judge Seeborg in Apex Drilling,
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119 F. Supp. 3d at 1129-30, the merit certificate requirement is a rule of
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procedure that does not apply in this diversity case.
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B.
Factual Allegations
KMP’s Third Party Complaint (“TPC”) contains an “Introductory Allegations”
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section that merely recites the procedural history of this case. (See TPC, ECF
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No. 50, ¶¶ 1-9.) In this section, KMP states that, “Hartford’s purported damages
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were not caused by KMP’s conduct but, instead, were caused, in whole or in
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part, by Platt and DEC’s conduct and actions.” (TPC ¶ 9.) In KMP’s first cause of
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KMP subsequently filed a merit certificate with its opposition to Defendants’ motions. Platt noted in its reply that
the issue was moot, but DEC maintained that the merit certificate posed a substantive requirement necessary to
state a claim.
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action for implied indemnity, KMP again states that, “the damages, if any, . . .
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were directly and proximately caused, in whole or in part, by Platt and DEC.”
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(TPC ¶ 11.) The remainder of the TPC reads the same. (See, e.g., TPC ¶¶ 13,
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17.)
KMP has failed to allege facts sufficient to “raise a right to relief above the
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speculative level.” Twombly, 550 U.S. at 555. KMP has only stated through
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conclusory allegations that Platt and DEC’s actions are responsible for Hartford’s
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purported damages. Importantly, the TPC never states how Platt and DEC
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contributed to Hartford’s damages. Therefore, dismissal is proper.2
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III. CONCLUSION
For the reasons discussed above, Defendants’ motions to dismiss (ECF
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Nos. 53, 54) are GRANTED. The Court grants KMP leave to amend. KMP shall
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file a First Amended Third Party Complaint within fifteen (15) days of the filing of
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this Order.
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IT IS SO ORDERED.
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Dated: August 2, 2016
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Although the TPC states insufficient facts, KMP’s opposition to Defendants’ motions contains facts adequate to
remedy the TPC’s insufficiencies.
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14cv2756 BTM (MDD)
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