Barry-Wehmiller Design Group, Inc. v. Storcon Systems, Inc.
Filing
37
MEMORANDUM re 3rd pty dft's MOTION to Dismiss Party 23 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 12/1/14. (ma)
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
BARRY-WEHMILLER DESIGN
GROUP, INC.
Plaintiff
vs.
STORCON SYSTEMS, INC., et al.,
Defendant / Third Party
Plaintiff
vs.
IMPERIAL INDUSTRIES, INC. and
JENICKE & JOHANSON, INC.
Third Party Defendants
:
:
:
: CIVIL NO. 1:14-CV-1074
:
:
:
:
:
:
:
:
:
:
:
MEMORANDUM
I.
Introduction
We are considering a motion to dismiss filed by Third-Party Defendant
Jenicke & Johanson, Inc. (hereinafter J&J). (Doc. 23). This matter relates to a dispute
concerning the structural failure of a silo system. Following the silo’s failure, Plaintiff
Barry-Wehmiller Design Group filed breach of warranty claims against Storcon Systems,
Inc. (Doc. 1). In turn, Storcon filed a third-party complaint against J&J, alleging negligent
misrepresentation. (Doc. 7). On September 9, 2014, J&J filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below,
we will dismiss Storcon’s negligent misrepresentation claim without prejudice.
II.
Background
Plaintiff Barry-Wehmiller Design Group was hired by Church & White Co., a
non-party to this action, to act as construction manager and consultant in the fabrication
of a 300 ton silo system. (Doc. 33 at 3). Plaintiff Barry-Wehmiller, in turn, entered into a
contract with Storcon Systems, Inc. to design, manufacture and deliver the silo system.
(Id.). Church & White employed J&J to determine the design specifications and load
calculations for the silo and its component parts. (Id.). J&J determined that the silo
needed to be designed and manufactured to withstand a density of 125 pounds per cubic
foot (pcf) and informed Storcon of its calculations. (Doc. 33 at 4). The silo was
constructed in July 2013, and five days after construction was completed, the silo
suffered a structural failure. (Doc. 33 at 5).
Barry-Wehmiller filed a complaint against Storcon, alleging that the failure
resulted from Storcon’s negligent design. (Doc. 1). Storcon filed a third-party complaint
against J&J, alleging that J&J did not exercise reasonable care in the calculation of the
design specifications and load calculations. (Doc. 7). J&J filed a motion to dismiss,
asserting that Storcon’s claim should be dismissed with prejudice. (Doc. 23). J&J makes
two arguments in support of its position: (1) the complaint is facially deficient because it
fails to plead any facts; and (2) Storcon fails to state a facially plausible claim because
Storcon did not, in fact, rely on the design specifications and load calculations supplied
by J&J. (Doc. 33). In a two sentence response, Storcon seems to agree that the
complaint is facially deficient. Storcon states that it does not oppose the dismissal of J&J
2
as a party, but posits that the dismissal should be without prejudice.1 Therefore, the only
question for us to resolve is whether J&J should be dismissed with or without prejudice.
III.
Discussion
A. Legal Standards
Ordinarily, facially deficient claims must be dismissed without prejudice and
with leave to amend the complaint. See FED. R. CIV. P. 15 (“The Court should freely give
leave when justice so requires . . . .”). This is true even if the plaintiff has not requested
leave to amend. See Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238, 256 n.14
(3d Cir. 2010). A court may deny leave to amend, however, and dismiss the complaint
with prejudice if, inter alia, the amendment would be futile. Phillips v. Cnty. of Allegheny,
515 F.3d 224, 236 (3d Cir. 2008). “‘Futility’ means that the complaint, as amended,
would fail to state a claim upon which relief could be granted. In assessing ‘futility,’ the
district court applies the same standard of legal sufficiency as applies under Rule
12(b)(6).” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
To state a legally sufficient claim for negligent misrepresentation, the
plaintiff must show the following: (1) the defendant, in the course of business, supplied
false information for the guidance of others in their business transactions; (2) the
1. Storcon also asserts that if the other third-party defendant, Imperial Industries Inc., intends to
claim that J&J contributed to the silo’s failure, Imperial should be required to make the claim
before J&J is dismissed as a party. (Doc. 34 at 1). Storcon provides neither legal argument nor
legal precedent in support of this position, and our research finds nothing that dictates Imperial
should be required to reveal its litigation strategy before a co-party is dismissed. Accordingly, J&J
will be dismissed from this action irrespective of whether Imperial will argue that J&J contributed to
the silo’s failure.
3
defendant failed to exercise reasonable care or competence in obtaining or
communicating the information; (3) the plaintiff justifiably relied upon the information; and
(4) such reliance caused pecuniary loss. RESTATEMENT (SECOND) OF TORTS § 552 (1977);
Bilt-Rite Contractors, Inc. v. Architectural Studio, 866 A.2d 270, 277, 287 (Pa. 2005)
(adopting § 552).
B. Futility of Amendment
In its brief, J&J argues that Storcon does not state a facially plausible claim
because it did not rely on J&J’s specifications. We construe J&J to argue that, even if
Storcon amended its complaint, Storcon would fail to state a claim because the facts
show no justifiable reliance by Storcon, and thus amendment would be futile. To
establish no justifiable reliance, J&J asks us to examine a report it produced after the silo
failed which shows that Storcon did not use the 125 pcf design specifications supplied by
J&J.2 (Doc. 23-2 at 38, Exh. G). J&J asserts that we can examine the report because
Plaintiff Barry-Wehmiller based its complaint on the report. (Doc. 33 at 6 n.8). We
disagree.
It is true that the court, when considering a 12(b)(6) motion, may examine
undisputedly authentic documents if the complaint is based on those documents. Mayer
2. J&J includes several other exhibits with its motion to dismiss. These exhibits show the
following: J&J provided specifications that dictated the silo must be designed and fabricated to
withstand 125 pcf; after Storcon received those specifications, Storcon’s own proposal only
provided for a silo that could withstand 90 pcf; and J&J advised Storcon that the 90 pcf design
was insufficient. (Doc. 23-2). While we agree with J&J that we may examine these remaining
exhibits while considering the motion to dismiss, none of the remaining exhibits establish that
Storcon did not rely on J&J’s specifications when actually constructing the silo.
4
v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). This rule only applies, however, to
documents that are the basis of the complaint the defendant seeks to dismiss. See
Pension Benefit Guar. Corp. v. White Consol. Indust., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993) (holding that while considering a motion to dismiss a plaintiff’s complaint, the court
can examine a document upon which that plaintiff based its claims). Stated differently, in
order for us to permissibly view the report, it must be Storcon’s complaint that is based on
the report, not Plaintiff Barry-Wehmiller’s complaint. Because Storcon’s claim against
J&J is not based on the report, we cannot view the report while considering the motion to
dismiss.3 Without consideration of J&J’s report, we are unable to find that Storcon did not
rely on J&J’s specifications when actually manufacturing the silo, and thus we are unable
to conclude that an amended complaint would be futile. Accordingly, we will dismiss
Storcon’s negligent misrepresentation claim without prejudice.
IV.
Conclusion
For the reasons stated above, we will dismiss Storcon’s negligent
misrepresentation claim against J&J without prejudice. We will give Storcon twenty days
from the date of the accompanying order to file an amended negligent misrepresentation
claim against J&J. If no amendment has been filed within twenty days, J&J may file a
renewed motion to dismiss the claim with prejudice. If an amended complaint is filed,
3. The report does not fit into any other category of documents that are permissibly viewed. See
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (stating the court may also consider exhibits
attached to the complaint and matters of public record). The report is not attached to Storcon’s
third-party complaint. Further, it is not attached to Plaintiff Barry-Wehmiller’s complaint, and thus
it is not a matter of public record.
5
J&J may file a motion for summary judgment, which will allow us to consider all record
evidence. See FED. R. CIV. P. 56(c) (stating “a party may file a motion for summary
judgment at any time”). We will issue an appropriate order.
/s/William W. Caldwell
William W. Caldwell
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?