Lee Construction Company of the Carolinas, Inc. v. Zurich American Insurance Company et al

Filing 47

ORDER granting in part and denying in part 24 Motion to Dismiss, granting in part as to Plaintiff's eighth through twelfth claims and denying without prejudice in part. Signed by Senior Judge Graham Mullen on 6/14/11. (gpb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:10-cv-00539
LEE CONSTRUCTION COMPANY
OF THE CAROLINAS, INC..,
Plaintiff,
vs.
ZURICH AMERICAN INS. COMPANY,
ZURICH SERVICES CORPORATION,
and JAMES A. SCOTT & SON, INC.,
Defendants.

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ORDER

THIS MATTER is before the Court on Defendants’ Zurich Americans Insurance Company
and Zurich Services Corporation (collectively, “Zurich”) Motion to Dismiss the sixth through
thirteenth claims of the Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
(Doc. No. 24).
Plaintiff consents to dismiss its eighth and twelfth claims, (Doc. No. 31), and it is so accepted
by the Court. Therefore, Zurich’s Motion to Dismiss is GRANTED IN PART.
Turning to the other issues in the Defendants’ Motion, the Court believes that the
determination of the legal sufficiency of remaining Complaint should be deferred until the next
dispositive stage of litigation. See Flue-Cured Tobacco Co-op. Stabilization Corp. v. U.S. EPA, 857
F. Supp. 1137, 1145 (M.D.N.C. 1994) (“This claim can be adjudicated more accurately after the
parties have developed the factual record.”); Initial Scheduling Order, 3:07-MC-47 (Doc. No. 2) at
3(c)(2) (“[T]he Court may elect to defer ruling on issues raised in Rule 12 and similar motions until
the close of discovery.”). Therefore, Defendants’s Motion to Dismiss is DENIED without prejudice
with respect the sixth, seventh, ninth, tenth, eleventh and thirteenth claims against Zurich.

In sum, Defendant’s Motion (Doc. No. 24) is GRANTED in part and DENIED without
prejudice in part. The Court will revisit the merits of the Defendants’ allegations at the conclusion
of discovery on a Rule 56 motion for summary judgment.
IT IS SO ORDERED.
Signed: June 14, 2011