City of Murray, Kentucky v. Robertson, Incorporated Bridge & Grading Division et al
Filing
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MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell. Robertson's Motion for Leave to Amend Complaint (DN 29 ) is granted. GRW's Motion to Dismiss (DN 23 ) is denied with leave to refile. Clerk to file Amended Third Party Complaint. cc: Counsel(JAC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:17-cv-8-TBR
CITY OF MURRAY, KENTUCKY,
PLAINTIFF
v.
ROBERTSON INC. BRIDGE
AND GRADING DIVISION, et. al.,
DEFENDANTS & THIRD PARTY PLAINTIFFS
v.
GRW ENGINEERS, INC., et. al.,
THIRD PARTY DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on two motions. First, Third Party Plaintiffs Robertson,
Inc. Bridge & Grading Division and Federal Insurance Company, (“Robertson”), have filed a
Motion for Leave to Amend Complaint. [DN 29.] Third Party Defendant GRW Engineers, Inc.
(“GRW”) has responded, [DN 30], and Robertson has replied. [DN 32.] Second, GRW has filed
a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [DN 23.] Robertson
has responded, [DN 27], and GRW has replied. [DN 28.] These matters are fully briefed and ripe
for adjudication. For the following reasons, Robertson’s Motion is GRANTED and GRW’s
Motion is DENIED WITH LEAVE TO REFILE.
I. BACKGROUND
This case arises from a construction project undertaken by Robertson, for which it
entered into a contract with the City of Murray, the Plaintiff in this case. [DN 1, at 3.] The City
of Murray claims that Robertson performed this contract in a defective manner with respect to
the construction of a concrete wet well, which was part of the project. [Id.] The City of Murray
filed suit thereafter. Subsequent to the commencement of this lawsuit, Robertson filed a Third
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Party Complaint against Third Party Defendant GRW. [DN 19.] The Third Party Complaint
alleges a breach of contract claim, a negligence claim, and an indemnity claim. Robertson now
wishes to amend its Third Party Complaint in order to add a claim of negligent
misrepresentation. [DN 29, at 3.] GRW has filed a Motion to Dismiss all of Robertson’s claims
against it. [DN 23.]
II. ANALYSIS
A. Robertson’s Motion for Leave to Amend Complaint
i. Legal Standard
Federal Rule of Civil Procedure 15(a)(1) permits a party to “amend its pleading once as a
matter of course within 21 days after serving it, or if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.” However, where that time has passed,
Rule 15(a)(2) provides that, “[i]n all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.” While the Federal Rules encourage a liberal construction of Rule 15, it may
be appropriate to deny leave to amend a complaint “where there is undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Miller v. Champion Enters., Inc., 346 F.3d 660, 690
(6th Cir. 2003).
ii. Discussion
The proposed amended complaint tendered to the Court with Robertson’s instant Motion
incorporates by reference its original Third Party Complaint against GRW, and merely adds one
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additional claim: negligent misrepresentation. [DN 29, at 3.] Specifically, Robertson alleges that
both Robertson and GRW “were engaged in a business relationship in which both parties had a
pecuniary interest,” that there was “false information” supplied by GRW to Robertson, upon
which Robertson relied, regarding GRW’s alleged failure to identify deviations from the contract
by Robertson with respect to its construction project. [Id.] Moreover, Robertson alleges that
GRW’s failure to “exercise reasonable care and competence when it did not issue a proper report
to” Robertson caused Robertson pecuniary loss. [Id.]
At the outset, it is important to note that this would be Robertson’s first amended
complaint. No issues have been brought to the Court’s attention regarding any alleged bad faith
or dilatory motive on Robertson’s part, nor does GRW claim in its Response to the instant
Motion that undue prejudice would result if the Court grants Robertson leave to file its proposed
amended complaint. Rather, GRW’s principal assertion is that of futility. [DN 30, at 5.] To that
end, GRW uses its previously-filed Motion to Dismiss for failure to state a claim upon which
relief can be granted, [DN 23], as support for its contention that all claims by Robertson against
it should be dismissed with prejudice. In GRW’s view, the terms of the contract Robertson had
with the City of Murray, coupled with the terms of GRW’s contract with the city, absolve GRW
of any duty with respect to Robertson’s alleged defective work on the concrete wet well.
Because all of Robertson’s claims remain pending, along with the fact that the Court
finds no bad faith and no potential undue prejudice to GRW by allowing Robertson to amend its
complaint at this stage in the litigation, the Court will grant the Motion. Rule 15, by its very
terms, demands that leave to amend be freely given “when justice so requires.” Here, the Court is
persuaded that permitting Robertson to file its proposed amended complaint is appropriate under
the circumstances.
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B. GRW’s Motion to Dismiss
i. Legal Standard
“A motion under Rule 12(b)(6) tests the sufficiency of the plaintiff’s claim for relief.”
Armengau v. Cline, 7 F. App’x 336, 343 (6th Cir. 2001). It requires the Court “to construe the
complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual
allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in
support of the claims that would entitle relief.” Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.
1998). However, “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56.” Fed. R. Civ. P. 12(d). In such a case, “[a]ll parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.” Id.
ii. Discussion
GRW’s principal piece of evidence presented in support of its Motion to Dismiss is the
contract between GRW and the City of Murray, and that contract is attached to GRW’s Motion
as Exhibit 1. Setting aside the merits of GRW’s contentions that this contract absolves it of any
liability, Robertson does not explicitly reference the contract between GRW and the City of
Murray in its Third Party Complaint. A thorough examination of that document reveals that there
are only two contracts expressly referenced in the Third Party Complaint: the subcontract
between Robertson and Dale Bearden Construction Company, Inc., and the contract between
Robertson and the City of Murray. This contract between Robertson and the City of Murray is
referred to in the Third Party Complaint as “the Contract,” and while Robertson alleges that
GRW breached its contractual duties, it is with respect to those duties “contained in the
Contract.” [DN 19, at 6.] Further, in Counts V and VI of the Third Party Complaint, which allege
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negligence and a claim for indemnity, respectively, all references to contractual issues are with
respect to “the Contract.” [Id. at 7-8.] And though Robertson does refer to itself as “a third party
beneficiary,” it again uses the previously-designated term: “the Contract.” [Id. at 6.]
Although GRW contends that “Robertson references the City’s contract with GRW in its
Third-Party Complaint,” [DN 23-1, at 1], the Court finds no explicit discussion of that contract.
Rather, Robertson discusses at length its contract with the City of Murray and GRW’s supposed
duties under that contract, but does not actually reach the issue of GRW’s contract with the City
of Murray. This means that, if the Court were to consider GRW’s Motion at this time, it would
necessarily be converted into a motion for summary judgment, as it introduces matters outside
the pleadings. See Fed. R. Civ. P. 12(d). However, in light of the Court granting Robertson’s
Motion for Leave to Amend Complaint, the Court will deny GRW’s Motion at this time, with
leave to refile it at a later date, either as a motion to dismiss under Rule 12(b)(6), or as a motion
for summary judgment.
III. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED THAT Robertson’s Motion for
Leave to Amend Complaint, [DN 29], is GRANTED. GRW’s Motion to Dismiss, [DN 23], is
DENIED WITH LEAVE TO REFILE. The clerk is directed to file the Amended Third Party
Complaint, [DN 29-1], as of the date of entry of this Order.
IT IS SO ORDERED.
cc: Counsel of Record
October 2, 2017
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