NEW VIEW INC v. MCCRORY BUILDING COMPANY INC et al

Filing 39

AMENDED ORDER granting 18 Motion to Dismiss. Counts Four, Six, Eight and Nine are dismissed as to Defendant Travelers Casualty & Surety Company of America. Signed by JUDGE RICHARD SMOAK on 6/10/2011. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
NEW VIEW INC.,
Plaintiff,
vs.

CASE NO. 5:11-cv-174/RS-CJK

MCCRORY BUILDING CO. INC.
and TRAVELERS CASUALTY &
SURETY COMPANY OF AMERICA,
Defendants.
_________________________________________/
AMENDED ORDER
Before me are Defendant Travelers’ Motion to Dismiss (Doc. 18), and Plaintiff’s
Response in Opposition (Doc. 23). This Amended Order reflects changes in bold and
underlined.
Plaintiff is a subcontractor that preformed services for Defendant McCrory
Building on a construction project in Panama City Beach. Defendant Travelers provided
a payment bond on behalf of Defendant McCrory Building for this project (Doc. 10, p.
2). Plaintiff alleges that it is owed $236,405 by Defendant McCrory Building as a result
of this project and seeks to recover from both defendants.
To survive a motion to dismiss, a complaint must contain sufficient facts, which
accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct.
1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief

could be granted under any set of facts that could be proven consistent with the
allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct.
2229, 2232 (1984). In making this determination, the court must accept all factual
allegations in the complaint as true and in the light most favorable to Plaintiff.
Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).
Plaintiff’s Amended Complaint (Doc. 10) seeks recovery from Defendant
Travelers under five theories: conversion (Counts Four and Eight), unjust enrichment
(Count Six), breach of bond (Count Seven), and money had and received (Count Nine).
Defendant Travelers argues that Counts Four, Six, Eight, and Nine (“non-breach
claims”) are barred because they sound in tort and Plaintiffs have not alleged sufficient
facts to support those claims.1 The essence of the allegations contained in the Amended
Complaint is that Defendant Travelers has not paid Plaintiff what it believes it is owed
under the payment bond. Plaintiff does not allege any other set of facts which establishes
a relationship other than that between a surety and an unpaid subcontractor. Plaintiff’s
assertions for the tort claims are merely a recitation of elements, not facts. Even in the
light most favorable to Plaintiff, it is implausible that Defendant Travelers committed
separate acts outside of issuing a payment bond which would expose it to tort liability to
the subcontractor.

1

Defendant also asserts that as a matter of Alabama law, the tort causes of actions fail because a Plaintiff with a suit
under a payment bond is foreclosed from other causes of action. I do not reach this contention because Plaintiff has
not brought forth sufficient facts to support the tort causes of action. I also note that the payment bond incorporates
provisions of Florida law and is security for a Florida real estate project. It is likely governed by Florida and not
Alabama law.

The Motion to Dismiss (Doc. 18) is GRANTED. Counts Four, Six, Eight and
Nine are dismissed as to Defendant Travelers Casualty & Surety Company of America.

ORDERED on June 10, 2011.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE