Brotherhood Mutual Insurance Company as subrogee of Mound Evangelical Free Church et al v. ADT LLC of Delaware et al

Filing 29

ORDER granting 9 Motion to Dismiss(Written Opinion). Signed by Senior Judge David S. Doty on 10/22/2013. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-1870(DSD/JJK)
Brotherhood Mutual Insurance
Company a/s/o Mound Evangelical
Free Church and Mound Evangelical
Free Church,
Plaintiffs,
ORDER

v.
ADT LLC d/b/a ADT Security
Services and Tyco Fire
Suppression & Building Products,
Defendants.

This matter is before the court upon the motion to dismiss by
defendant ADT LLC of Delaware, d/b/a ADT Security Services (ADT).
Based on a review of the file, record and proceedings herein, and
for the following reasons, the motion is granted.

BACKGROUND
This property-damage dispute arises out of water damage to the
building

of

Evangelical).

plaintiff

Mound

Evangelical

Free

Church

(Mound

On July 6, 2012, a sprinkler head activated and

caused water to accumulate inside the church.

Compl. ¶ 5.

ADT

provided security and monitoring services for Mound Evangelical and
received notification of an alarm at the church.

Id. ¶¶ 3, 12.

As

a result of the sprinkler activation, Mound Evangelical sustained
over $50,000 in damage.

Id. ¶ 14.

Plaintiff Brotherhood Mutual

Insurance Company (Brotherhood) compensated Mound Evangelical for
the damage as provided for by its insurance contract with Mound
Evangelical.
On

June

Id. ¶¶ 2, 6.
20,

2013,

Brotherhood,

as

subrogee

of

Mound

Evangelical, filed a complaint in Minnesota court, alleging a
negligence claim against ADT.

ADT timely removed, and moves to

dismiss.
DISCUSSION
I.

Standard of Review
To survive a motion to dismiss for failure to state a claim,

“a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(citations and internal quotation marks omitted).
facial

plausibility

when

the

plaintiff

[has

“A claim has

pleaded]

factual

content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).

Although a complaint need not

contain detailed factual allegations, it must raise a right to
relief above the speculative level.

See Twombly, 550 U.S. at 555.

“[L]abels and conclusions or a formulaic recitation of the elements
of a cause of action” are not sufficient to state a claim.

Iqbal,

129 S. Ct. at 1949 (citation and internal quotation marks omitted).
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II.

Negligence
Brotherhood argues that ADT was negligent in its response to

the alarm notification. In its complaint, Brotherhood alleged that
ADT “failed to exercise ordinary care by not taking the proper
steps and by failing to notify the proper public authorities as
well as the church in a timely manner.”

Compl. ¶ 13.

ADT moved to

dismiss the complaint, arguing that under Minnesota law, once an
alarm company contracts to provide services, failure to provide
those services is not redressable by a tort claim.

See Vermes v.

Am. Dist. Tel. Co., 251 N.W.2d 101, 103 (Minn. 1977) (“[T]he
contract between Vermes and ADT formed the basis of their legal
relationship and placed boundaries on their legal obligations to
one another.”).
In response, Brotherhood submitted the affidavit of Mark
Peterson, a trustee for Mound Evangelical.

In his affidavit,

Peterson states that ADT notified him that it had reset the alarm
because

there

Peterson Aff.

was
¶¶

no

problem

2-3.

and

the

church

Brotherhood argues

was

that,

all
by

clear.

assuring

Peterson that there was no problem at Mound Evangelical, ADT
assumed an extracontractual duty, allowing the claim to sound in
tort rather than contract.
The facts contained in Peterson’s affidavit, however, are not
properly before the court.

The court does not consider matters

outside the pleadings on a motion to dismiss under Rule 12(b)(6).

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See Fed. R. Civ. P. 12(d).

The court, however, may consider

materials that are part of the public record or do not contradict
the complaint, as well as materials that are “necessarily embraced
by the pleadings.”

See Porous Media Corp. v. Pall Corp., 186 F.3d

1077, 1079 (8th Cir. 1999).

Here, the facts asserted in the

affidavit plainly contradict the allegations in the complaint that ADT failed to contact Mound Evangelical.

As a result, the

court declines to consider the affidavit.
In sum, Brotherhood’s negligence claim is premised on the
complaint’s allegation that ADT failed to notify the church or
authorities of the alarm.
fails under Minnesota law.

As already explained, such a tort claim
See Vermes, 251 N.W.2d at 103.

The

court, however “perceives an inference that it may reasonably draw
in favor of [Brotherhood] to justify only a dismissal without
prejudice.”

Powell Duffryn Terminals, Inc. v. CJR Processing,

Inc., 808 F. Supp. 652, 655 (N.D. Ill. 1992).

Brotherhood’s

allegation that ADT “failed to exercise ordinary care by not taking
the

proper

possibility
occurred.

steps,”
that

the

though
facts

vague,
may

sufficiently

demonstrate

that

reflects

a

negligence

Compl. ¶ 13; see, e.g., Powell Duffryn, 808 F. Supp. at

655-56; cf. Hollowell v. Hosto, 389 F. App'x 583, 584 (8th Cir.
2010) (per curiam) (modifying a dismissal to be with prejudice

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after observing that plaintiff “can prove no set of facts that
would

entitle

him

to

relief”

(emphasis

added)).

Therefore,

dismissal without prejudice is warranted.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

Defendant’s motion to dismiss [ECF No. 9] is granted

without prejudice;
2.

Brotherhood may file an amended complaint no later than

October 31, 2013; and
3.

ADT

shall

have

14

days

to

respond

to

the

amended

complaint.
Dated:

October 22, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court

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