DANTZLER INC v. HUBERT MOORE LUMBER COMPANY INC et al

Filing 48

ORDER granting 37 Motion to Dismiss for Failure to State a Claim. Ordered by Judge Hugh Lawson on 9/24/2013. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

DANTZLER, INC.,
Plaintiff,
v.

Civil Action No. 7:13-CV-56 (HL)

HUBERT MOORE LUMBER COMPANY,
INC., WILBUR STANLEY MOORE,
individually and as guarantor, NORMA
MOORE GASKINS, individually and as
guarantor, JOAN MOORE DRAWDY,
individually and as guarantor, and
DUPONT PINE PRODUCTS, LLC,
Defendants.

ORDER
This case is before the Court on Counter-Defendant Dantzler, Inc.’s Motion
to Dismiss Counter-Plaintiff DuPont Pine’s Amended Counterclaims (Doc. 37).
For the reasons discussed below, the motion is granted.
I.

MOTION TO DISMISS STANDARD
Dantzler moves for dismissal of DuPont Pine’s counterclaims under

Federal Rule of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure
12(b)(6). A motion to dismiss pursuant to Rule 12(b)(1) encompasses both
challenges based on the Court’s lack of federal subject matter jurisdiction and
challenges based on lack of standing. Stalley v. Orlando Reg’l Healthcare Sys.,
Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“Because standing is jurisdictional, a

dismissal for lack of standing has the same effect as a dismissal for lack of
subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).”) In this case, Dantzler’s
challenge is based on lack of standing. A Rule 12(b)(1) standing challenge can
be either factual or facial. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th
Cir. 1990). “A facial attack on the complaint requires the court merely to look and
see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in his complaint are taken as true for the purposes of the
motion.” Stalley, 524 F.3d at 1232-33 (internal quotations and citation omitted). A
factual attack, however, “challenges the existence of subject matter jurisdiction
using material extrinsic from the pleadings, such as affidavits or testimony.” Id. at
1233 (citation omitted). Dantzler has not introduced any material extrinsic from
the pleadings, and therefore the Court finds that Dantzler has made a facial
challenge to standing. Because this is a facial attack, the Court must afford
DuPont Pine the benefit of “safeguards similar to those provided in opposing a
Rule 12(b)(6) motion - the court must consider the allegations of the complaint to
be true.” Lawrence, 919 F.2d at 1529 (citations omitted).
As noted above, Dantzler also moves to dismiss DuPont Pine’s
counterclaims pursuant to Rule 12(b)(6). To avoid dismissal under Rule 12(b)(6),
“a complaint must contain specific factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,

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129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible
where the plaintiff alleges factual content that “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
The plausibility standard “calls for enough fact to raise a reasonable expectation
that discovery will reveal evidence” of the defendant’s liability. Twombly, 550 U.S.
at 556, 127 S.Ct. at 1965.
On a motion to dismiss, “all-well pleaded facts are accepted as true, and
the reasonable inferences therefrom are construed in the light most favorable to
the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n. 1 (11th Cir.
1999). However, the same does not apply to legal conclusions contained in the
complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009)
(citation omitted). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678,
129 S.Ct. at 1949. In addition, the court does not “accept as true a legal
conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct.
at 1965.
II.

DISCUSSION
DuPont Pine has alleged two counterclaims against Dantzler. They are: (1)

a request for a declaratory judgment; and (2) a request for costs and attorney’s

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fees under Georgia law for bad faith and vexatious, wanton, and oppressive
litigation. Dantzler seeks dismissal of both counterclaims.
A.

Count One - Declaratory Judgment

In Count One of its counterclaims, DuPont Pine seeks a declaration from
the Court that (1) the October 23, 2012 Security Agreement was lawfully
terminated or cancelled prior to this case being filed; (2) any right of first refusal
did not survive the termination or cancellation; and (3) any right to notice of
shareholder meetings did not survive the termination. Dantzler argues that Count
One should be dismissed because DuPont Pine does not have standing to assert
the claim.
“[S]tanding is a threshold jurisdictional question which must be addressed
prior to and independent of the merits of a party’s claim.” Bochese v. Town of
Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (quoting Dillard v. Baldwin
County Comm’rs, 225 F.3d 1271, 1275 (11th Cir. 2000)). A claim cannot proceed
in federal court if the plaintiff does not have standing. Valley Forge Christian Coll.
v. Am. United for Separation of Church & State, 454 U.S. 464, 471, 102 S.Ct.
752, 757-58, 70 L.Ed.2d 700 (1982). To establish standing, a plaintiff must show:
(1) that he suffered an injury in fact; (2) the injury was causally connected to the
defendant’s action; and (3) the injury will be redressed by a judgment in the
plaintiff’s favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct.

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2130, 2136, 119 L.Ed.2d 351 (1992). The Court agrees with Dantzler that
DuPont Pine does not have standing because it cannot show an injury arising out
of the Security Agreement.
Under Florida law, only parties to a contract and third-party beneficiaries of
a contract have standing to sue under the contract.1 Sun Commodities, Inc. v.
C.H. Robinson Worldwide, Inc., No. 11-62738-CIV, 2012 WL 602616, at *2 (S.D.
Fla. Feb. 23, 2012) (“Under Florida law, a plaintiff who is neither a party to nor a
third-party beneficiary of a contract may not sue for breach of that contract, even
if the plaintiff receives some incidental or consequential benefit from the
contract.”) DuPont Pine was neither a party to the Security Agreement nor a
third-party beneficiary. “Since [DuPont Pine] is not a party to the contract, . . . it
cannot have a sufficient stake or cognizable interest which would be affected by
the outcome.” Serefex Corp. v. Hickman Holdings, LP, 695 F.Supp. 1331, 1344
(M.D. Fla. 2010). Therefore, DuPont Pine cannot raise any challenge relating to
the Security Agreement. See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981
(11th Cir. 2005) (holding that a plaintiff lacked standing to challenge contract
where he was not a party to nor an intended beneficiary of the contract); Sun
Commodities, Inc., 2012 WL 602616, at *2-3 (non-party to contract did not have
standing to seek a declaratory judgment as to the enforceability of the contract);
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The Security Agreement is governed by Florida law.

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Trilogy Props. LLC v. SB Hotel Assocs. LLC, No. 09-21406-CIV, 2010 WL
7411912, at * 4 (S.D. Fla. Dec. 23, 2010) (plaintiffs’ claim for declaratory relief
failed because they were not third-party beneficiaries to the contract).
Because DuPont Pine does not have standing with respect to the Security
Agreement, Dantzler’s Motion to Dismiss as to Count One is granted. But before
moving on to Count Two, the Court feels compelled to make one observation.
Dantzler’s entire argument as to why Count One should be dismissed was based
on standing, or DuPont Pine’s lack thereof. DuPont Pine presents absolutely no
argument in opposition to Dantzler’s standing argument. In fact, as far as the
Court can tell, the word “standing” does not appear even once in DuPont Pine’s
response brief. DuPont Pine’s failure to address Dantzler’s standing argument in
effect makes Dantzler’s motion on this point unopposed.
B.

Count Two - Costs and Attorney’s Fees for Bad Faith and
Vexatious, Wanton, and Oppressive Litigation

Count Two of DuPont Pine’s counterclaims is a request for statutory
attorney’s fees and expenses of litigation pursuant to O.C.G.A. § 13-6-11. That
statute authorizes the recovery of attorney’s fees on the basis of bad faith or
where the opposing party has been “stubbornly litigious, or has caused the
[claimant] unnecessary trouble and expense. . . .” O.C.G.A. § 13-6-11. “When a
defendant asserts a claim for relief independent of a claim for litigation expenses
incurred in defending against a plaintiff’s case-in-chief, defendant may recover

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litigation expenses incurred in prosecuting such an independent claim in
accordance with O.C.G.A. § 13-6-11.” Gardner v. Kinney, 230 Ga. App. 771, 772,
498 S.E.2d 312, 313 (1998). However, for a § 13-6-11 claim to survive, the
claimant must also have a viable substantive claim for relief. A claim for fees
under § 13-6-11 cannot stand on its own. It must have a substantive claim for
relief to which it can attach. “A prerequisite to any award of attorney fees under
O.C.G.A. § 13-6-11 is the award of damages or other relief on the underlying
claim.” United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147(2), 475 S.E.2d
601 (1996). Having granted Dantzler’s motion to dismiss DuPont Pine’s
substantive counterclaim, the Court must also dismiss DuPont Pine’s claim for
attorney’s fees under O.C.G.A. § 13-6-11.
III.

CONCLUSION
Counter-Defendant Dantzler Inc.’s Motion to Dismiss Counter-Plaintiff

DuPont Pine’s Amended Counterclaims (Doc. 37) is granted.
SO ORDERED, this the 24th day of September, 2013.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
mbh

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