Peoples Gas System v. Posen Construction, Inc.
Filing
23
OPINION AND ORDER granting 16 Motion to dismiss; denying as moot 16 Motion to strike; denying as moot 16 Motion for more definite statement. Counts III, IV, and V of the 8 Counterclaims are dismissed without prejudice with leave to file amended counterclaims within 21 days of this Opinion and Order. Signed by Judge John E. Steele on 11/14/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PEOPLES GAS SYSTEM, a division of
Tampa Electric Company, a Florida
corporation.,
Plaintiff.
vs.
Case No.
2:11-cv-231-FtM-29SPC
POSEN CONSTRUCTION, INC., a Michigan
corporation,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion to
Dismiss, to Strike, and for More Definite Statement (Doc. #16)
filed on July 5, 2011.
Plaintiff seeks to dismiss Counts II, IV,
and V of defendant’s Counterclaim1, and to strike or obtain a more
definite statement of the request for attorney’s fees.
Defendant
filed a Response (Doc. #20) in opposition on July 29, 2011.
I.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take them
in the light most favorable to plaintiff.
Erickson v. Pardus, 551
U.S. 89 (2007); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
1
Although labeled as a Cross-claim, both parties acknowledge
that it is a counterclaim.
2011).
“To survive dismissal, the complaint’s allegations must
plausibly suggest that the [plaintiff] has a right to relief,
raising that possibility above a speculative level; if they do not,
the plaintiff’s complaint should be dismissed.”
James River Ins.
Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 (11th Cir.
2008)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th
Cir. 2010).
Thus, the Court engages in a two-step approach: “When
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009). Dismissal is warranted under Fed. R. Civ. P. 12(b)(6)
if, assuming the truth of the factual allegations of plaintiff’s
complaint, there is a dispositive legal issue which precludes
relief.
Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v.
Crawford County, 960 F.2d 1002, 1009-10 (11th Cir. 1992).
Under Fed. R. Civ. P. 12(f), “the Court may order stricken
from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Motions to strike
are disfavored, and will be denied unless the allegations have no
possible relation to the controversy, may confuse the issues, or
may cause prejudice to one of the parties.
Reyher v. Trans World
Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995).
-2-
Under Fed. R. Civ. P. 12(e), “[a] party may move for a more
definite statement of a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.”
II.
Posen Construction, Inc. (Posen) is a heavy construction
contractor that was awarded a construction contract from Lee County
to widen Colonial Boulevard in Fort Myers, Florida.
Peoples Gas
System (PGS), a division of Tampa Electric Company, owns, operates,
maintains
and
controls
natural
gas
distribution
facilities
throughout Florida, including an 8" gas main on the northern side
of the Colonial Boulevard construction project.
On November 11,
2010, a Posen employee operating heavy machinery struck a natural
gas pipeline owned and operated by PGS, resulting in an ignition of
natural gas.
PGS filed suit against Posen, which has responded
with a counterclaim.
PGS seeks to dismiss Counts III, IV, and V of
the Counterclaim, strike the request for fees, and obtain a more
definite statement regarding fees pled as special damages under the
“Wrongful Acts Doctrine.”
A.
Tortious Interference with Business Relationship
In
Count
relationship
contract,
III,
with
that
Posen
Lee
PGS
alleges
County
knew
or
by
that
it
virtue
of
should
have
had
its
known
a
business
construction
about
that
relationship, and that PGS’s intentional relocation of its gas line
-3-
without providing notice to Posen “constituted an intentional and
unjustified interference” with the business relationship between
Posen and Lee County.
(Doc. #8, ¶¶ 56-60.)
PGS argues that Count
III must be dismissed because Posen fails to allege that PGS’s
relocation of the gas line was a direct interference or done with
intent to interfere.
PGS further argues that it had a personal
interest in relocating the gas line and is not a stranger to the
business relationship, therefore the relocation is not actionable
as an intentional interference.
The elements of tortious interference are “(1) the existence
of a business relationship . . . (2) knowledge of the relationship
on the part of the defendant; (3) an intentional and unjustified
interference with the relationship by the defendant; and (4) damage
to the plaintiff as a result of the breach of the relationship.”
Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla.
1985).
See also Alexis v. Ventura, 66 So. 3d 986, 987 (Fla. 3d DCA
2011). “Imbedded within these elements is the requirement that the
plaintiff establish that the defendant’s conduct caused or induced
the breach that resulted in the plaintiff's damages.”
Chicago
Title Ins. Co. v. Alday-Donalson Title Co. of Fla., Inc., 832 So.
2d 810, 814 (Fla. 2d DCA 2002)(citing St. Johns River Water Mgmt.
Dist. v. Fernberg Geological Servs., Inc., 784 So. 2d 500, 504
(Fla. 5th DCA 2001)). “A cause of action for tortious interference
requires a showing of both an intent to damage the business
-4-
relationship and a lack of justification to take the action which
caused the damage.”
Networkip, LLC v. Spread Enters., Inc., 922
So. 2d 355, 358 (Fla. 3d DCA 2006).
“Proof of the requisite intent
is necessary as ‘[t]here is no such thing as a cause of action for
interference
which
effected.’”
is
only
negligently
or
consequentially
Maxi-Taxi of Fla., Inc. v. Lee Cnty. Port Auth., 301
F. App’x 881, 885-86 (11th Cir. 2008)(quoting Ethyl Corp. v.
Balter,
386
So.
2d
for
the
Additionally,
1220,
1223–24
interference
(Fla.
to
be
3d
DCA
1980)).
unjustified,
the
interfering party must be a stranger to the business relationship.
PGS is not a stranger to a business relationship if PGS has any
beneficial
or
relationship.
economic
interest
in,
or
control
over,
that
Palm Beach Cnty. Health Care Dist. v. Prof’l Med.
Educ., Inc., 13 So. 3d 1090, 1094 (Fla 4th DCA 2009).
There
are
no
factual
allegations
that
the
intentional
relocation of the pipeline without the required notice was done
with an intent to interfere with Posen’s contract.
The intent as
pled was to move the pipeline; the result of the relocation coupled
with the lack of notice was an interference with the contract.
This is insufficient to state a cause of action for intentional
interference.
Additionally, PGS’s involvement was necessary to
Posen’s contract with Lee County because road work could not
continue without relocation of the gas pipeline. PGS was therefore
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not a stranger to the business relationship. The motion to dismiss
will be granted as to Count III.
B.
Strict Liability - Ultrahazardous Activity
In Count IV, Posen alleges a claim for strict liability
against PGS. Posen alleges that owning, operating, and maintaining
natural gas distribution facilities is an abnormally dangerous
activity which poses a high risk of serious harm “given the
combustible, volatile, and inflammatory nature of natural gas, and
the high risk of explosion and/or fire from natural gas leaks,
among other reasons.”
(Doc. #8, ¶64.)
PGS argues that no Florida
court has found distribution of natural gas to be an abnormally
dangerous activity, and other jurisdictions have “overwhelmingly”
found distribution not to be an abnormally dangerous activity.
(Doc. #16, pp. 9-10.)
Posen agrees, but distinguishes those cases
by arguing that it is the relocation of the gas line that was the
ultra dangerous activity, and not the mere distribution of natural
gas.
Florida courts have adopted the doctrine of strict liability
for ultrahazardous or abnormally dangerous activity as established
by Rylands v. Fletcher, [1868] L.R. 3 (H.L.) 330, 1868 WL 9885 and
reformulated by the Restatement of Torts §§ 519, 520 (1938), and
Restatement (Second) of Torts.
Great Lakes Dredging & Dock Co. v.
Sea Gull Operating Corp., 460
1984)(citing cases).
So. 2d 510, 512 (Fla. 3d DCA
Under such a claim liability is imposed on a
-6-
party “although he has exercised the utmost care to prevent the
harm to the plaintiff that has ensued.”
Torts § 519 cmt. d (1977).
Restatement (Second) of
“The defendant’s enterprise, in other
words, is required to pay its way by compensating for the harm it
causes, because of its special, abnormal and dangerous character.”
Id.
To determine if an activity is abnormally dangerous, the
following factors are considered:
(a) existence of a high degree of risk of some harm to
the person, land or chattels of others;
(b) likelihood that the harm that results from it will be
great;
(c) inability to eliminate the risk by the exercise of
reasonable care;
(d) extent to which the activity is not a matter of
common usage;
(e) inappropriateness of the activity to the place where
it is carried on; and
(f) extent to which its value to the community is
outweighed by its dangerous attributes.
Restatement (Second) of Torts § 520 (1977).
The activity must
create a danger of physical harm to others and be an abnormal one.
Id. at cmt. f. “The essential question is whether the risk created
is so unusual, either because of its magnitude or because of the
circumstances surrounding it, as to justify the imposition of
strict liability for the harm that results from it, even though it
is carried on with all reasonable care.”
Id.
Posen’s argument that it is the relocation of the line, not
just distribution of natural gas, which was ultrahazardous activity
is not the way Count IV is pled.
-7-
Count IV alleges that it is
owning,
operating,
and
maintaining
natural
gas
distribution
facilities which is the abnormally dangerous activity.
Posen may
be able to state a claim for strict liability which is plausible,
but it has not done so on the theory it now asserts.
The motion to
dismiss will be granted as to Count IV.
C.
Slander
Count V alleges that PGS published or caused to be published
several
false
statements
regarding
the
facts
surrounding
the
incident. Posen alleges that PGS published false statements to the
media regarding
the
incident
in
the
Complaint
and
copies
of
newspaper articles containing the statements are attached to the
Counterclaim.
(Doc. #8, ¶¶ 68-70.)
PGS argues that Posen’s claim
must fail because Posen is a limited public figure and therefore
must plead actual malice in order to state a claim.
Posen argues
to the contrary.
Under the principles summarized in Mile Marker, Inc. v.
Petersen Publ’g, LLC, 811 So. 2d 841 (Fla. 4th DCA 2002), the Court
finds that Posen is a limited public figure.
Both the business
relationship between Posen and Lee County (a public contract to
perform work on a county highway), and the incident giving rise to
the lawsuit (an explosion during the public construction project),
are public matters which constitute a “public controversy”.
Posen
played a sufficiently central role in the instant controversy to be
considered a public figure for purposes of the controversy.
-8-
As
such, there must be allegations of actual malice, which are missing
in Count V.
The motion to dismiss Count V as a libel action is
granted.
Accordingly, it is now
ORDERED:
1. Plaintiff’s Motion to Dismiss (Doc. #16) is GRANTED to the
extent that Counts III, IV, and V of Defendant’s Counterclaims are
dismissed without prejudice.
Because it may be possible to state
such claims, the Court will grant leave to amend the counterclaim.
The Motion to strike attorney fees and for more definite statement
are DENIED as moot.
2. Plaintiff may file amended counterclaims within TWENTY-ONE
(21) DAYS of the date of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2011.
Copies:
Counsel of record
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14th
day of
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