Alberici Constructors, Inc. v. Oliver et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that third-party defendants motion to dismiss Groups third-party complaint [Doc. # 107] is denied. IT IS FURTHER ORDERED that third-party defendants motion for a more definite statement [Doc. #107] is gran ted. IT IS FURTHER ORDERED that third-party plaintiff Group Contractors, LLC, shall have until June 10, 2013, to file an amended third-party complaint. ( Response to Court due by 6/10/2013.) Signed by District Judge Carol E. Jackson on 5/8/2013. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ALBERICI CONSTRUCTORS, INC.,
CLONE JEFFERSON OLIVER, et al.,
Case No. 4:11-CV-744 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on the motion of third-party defendants Daniel
Andrepont and Cecchi Enterprises, LLC. to dismiss the claims of third-party plaintiff
Group Contractors, LLC. (“Group”) pursuant to Federal Rules of Civil Procedure 8(a)(2),
9(b), and 12(b)(6), or in the alternative, for a more definite statement pursuant to
Rule 12(e). Group opposes the motion.
Plaintiff Alberici Constructors, Inc. brings suit against its former Vice President
of Construction, Clone Jefferson Oliver (“Oliver”), and subcontractors. Plaintiff alleges
that defendants engaged in a fraudulent scheme to divert profits from plaintiff. Oliver
encouraged subcontractors to submit improperly inflated invoices, price quotes, and
change orders to plaintiff. Plaintiff would pay the price listed on the invoice and the
subcontractors would then pay part of the proceeds to a shell corporation created by
Oliver for the purpose of diverting and concealing proceeds.
Defendant/third-party plaintiff Group was a subcontractor for Alberici, and
allegedly submitted change orders and invoices for services outside the scope of the
subcontract. Third-party defendants provided engineering services in connection with
the Group subcontract. Alberici alleges that these engineering services were outside
the scope of the Group subcontract and improperly included in Group’s change orders.
Group impleaded third-party defendants, alleging that:
On information and belief, Clone Jefferson Oliver, acting with
apparent authority of Alberici, Daniel Andrepont and Cecchi Enterprises,
LLC. misled Group in the belief that Daniel Andrepont and Cecchi
Enterprises, LLC. were providing services to Alberici in connection with
the Arlington County Project.
On information and belief, in the main demand, plaintiff, Alberici,
has alleged those services were not rendered to the benefit of Alberici in
connection with the Arlington County Project. [Doc. # 107, p. 6].
These two sentences constitute the entirety of Group’s allegations against third-party
Group’s claims against third-party defendants sound in fraud, and are subject
to the heightened pleading standard of Fed.R.Civ.P. 9(b). However, Group’s factual
allegations against third-party defendants are devoid of detail, and do not explain the
basis of third-party defendants’ liability. These allegations do not meet the standard
set out by Rule 8(a)(2) of a “short and plain statement of the claim showing that the
pleader is entitled to relief...,” let alone the heightened standard of Rule 9.
This is a complicated case, involving numerous defendants, claims, and crossclaims. Clarity of pleadings is of the utmost importance in such a case. Rather than
dismissing Group’s claims outright, the Court will allow Group the opportunity to amend
its third-party complaint to comply with the Federal Rules of Civil Procedure.
IT IS HEREBY ORDERED that third-party defendants’ motion to dismiss
Group’s third-party complaint [Doc. # 107] is denied.
IT IS FURTHER ORDERED that third-party defendants’ motion for a more
definite statement [Doc. #107] is granted.
IT IS FURTHER ORDERED that third-party plaintiff Group Contractors, LLC,
shall have until June 10, 2013, to file an amended third-party complaint.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 8th day of May, 2013.
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