Old Republic Insurance Company v. Spring Menders, Inc.
Filing
22
OPINION AND ORDER denying defendant's motion to dismiss. Signed by District Judge Mark S. Davis on 7/13/11 and filed on 7/14/11. (jcow, )
UNITED
STATES DISTRICT
EASTERN DISTRICT
COURT
OF VIRGINIA
Norfolk Division
OLD
as
REPUBLIC
subrogee
INSURANCE
of
COMPANY,
TIDEWATER FIBRE
CORPORATION,
Civil Action No.
Plaintiff,
2:Ilcv69
v.
SPRING MENDERS,
INC.
Defendant.
OPINION AND
This
matter
Incorporated's
dismiss
Old
"Plaintiff")
Rules
of
are
7(J).
the
Complaint
pursuant
unnecessary
DENIED.
process.
set
to
the
forth
Complaint,
and
Fed.
R.
matter
below,
the
oral
is
now
to
Republic"
("Old
facts
Court
and
or
of
ripe
Defendant's
for
the
legal
motion,
that
oral
contentions
not
E.D.
aid
Va.
decision
motion
Federal
the
finds
would
78 (b) ;
Menders,
motion
examining
the
P.
Spring
12(b)(6)
argument
Civ.
on
"Defendant")
Rule
After
because
presented
Therefore,
reasons
the
or
Company's
Procedure.
and
Court
Menders"
Insurance
adequately
decisional
the
Republic
briefs,
is
before
("Spring
Civil
associated
argument
is
ORDER
to
in
the
Loc.
R.
and,
dismiss
for
is
I. Facts and Procedural History1
A.
Plaintiff
of
is
Pennsylvania
insurance
with
Pennsylvania.
action,
an
its
Compl.
Plaintiff
insurance
Mack Truck.
Hi.
provided
Fibre
coverage
Id.
brought
According
springs
to
At
the
the
and/or
company
principal
At
all
to,
among
Truck
install
new
to
Spring
springs
the
Compl.
2009,
while
Spring
Menders'
on
Menders performed work on the truck.
alleges
that
this
work
involved the use of
included
Compl.
so
U
a
9.
"hot
2005
repairs.
to
repair
return
for
On June
premises,
H
called
for
7.
1 2.
Tidewater
agreed
in
this
Compl.
2009,
truck
in
company known
things,
Menders
Fibre.
was
a
4,
to be paid by Tidewater
truck
to
other
price
the
also
to
Menders
on
laws
relevant
to June
Spring
the
business
times
coverage
some point prior
Complaint,
of
under
("Tidewater Fibre").
applied
Mack
existing
place
insurance
as Tidewater Fibre Corporation
This
Facts
a
4,
Spring
The Complaint
work,"
a torch and/or welding equipment.
which
Id.
'The
facts recited here are drawn from Plaintiff's Complaint and
assumed
true
for
the
purpose
of
deciding
the
motion
currently before
the
Court.
They are not
to be considered
are
factual
findings
pending
motion
for
any
to
dismiss.
Consumeraf fairs. com,
evaluating
all
a
Rule
well-pled
light
most
facts
as
to
other
See
F.3d
12(b)(6)
favorable
sufficiency of
591
purpose
250,
motion
true
the
and
than
255
to
(4th
Cir.
construes
in
a
these
of
the
Ltd.
Chevrolet,
dismiss,
plaintiff
the complaint.").
consideration
Nemet
v.
2009)
("...in
court
accepts
facts
weighing
the
in
the
legal
While
fire
the
truck
originated
truck
to
a
amount
Fibre
still
and/or
severe
approximate
Tidewater
at
was
in
was
alleges
Id.
As
an
-
result
same
rights
as
a
that
in
Compl.
H
11.
of
premises,
thereby
resulting
the amount
a
Menders'
truck,
insurance
Compl.
that Old Republic,
obtained the
the
and
submitted
$149,750.00
salvage.
Spring
$151,000."
which Old Republic paid.
payment
near
fire,
of
on
f
exposing
damages
10.
claim
to
"a
the
in
the
In
response,
Old
Republic,
The total amount of this
of
the
this
payment,
subrogee
Tidewater
damages
of
minus
the
$1,500
Complaint
Tidewater Fibre,
Fibre
had or has
any third party responsible for the loss of the truck.
has
against
Compl.
U
12.
B.
Based
Plaintiff
action
a
these
filed a
against
Defendant
owed
on
of
duty
factual
Complaint
Tidewater
History
underpinnings,
in
Defendant.
negligence.
to
Procedural
this
In
Court
to
to
February
alleging
Count
According
Fibre
on
I,
the
perform
two
4,
causes
Plaintiff
Complaint,
the
work
in
2011,
accuses
Defendant
a
manner
so as to not cause a fire and damage to the truck.
Compl.
Defendant
resulted
damages
to
Defendant
Fibre
allegedly
and
Defendant
the
breached
truck.
breached
a
Defendant.
had
a
In
this
Count
contract
duty,
II,
that
Plaintiff
existed
Specifically,
contractual
which
obligation
Plaintiff
to
1 14.
alleges
between
in
that
Tidewater
asserts
properly
of
perform
that
the
work
on
that
the
Mack
caused
the
obligation.
In
Defendant
the
Count
the
to
Plaintiff's
the
the
Federal
memorandum
in
Defendant
of
work
breached
Complaint,
present
motion
Rules
support
of
of
in a
that
this
a
common
Plaintiff.
Thus,
negligence
action.
law
Defendant
on
to
Civil
manner
contractual
that
contends,
Plaintiff's negligence allegations
claims
is
to meet
to
that
failed to allege
no
owed
basis
Defendant
fail
Rule
Defendant
there
Additionally,
2011,
According
Defendant
has
28,
under
dismiss
Plaintiff
duty
February
Procedure.
motion,
I must be dismissed because
breach
the
1 19.
filed
of
and by performing
fire,
Compl.
response
12 (b) (6)
truck,
to
for
argues
a
that
the plausibility
standard established by Twombly.
With respect
must
be
to Count
dismissed
because
specific
contractual
Moreover,
according
facts
that
rise
II,
duty
to
above
Defendant contends that
Plaintiff
that
failed
Defendant
Defendant,
the
has
owed
Plaintiff
speculative
to
allege
to
has
level,
the claim
Plaintiff.
also
once
a
not
pled
again,
as
articulated by Twombly.
II.
Federal
defendant
state
P.
a
to
Rule
of
Civil
Procedure
12(b)(6)
permits
seek dismissal based on the plaintiff's
claim upon
12 (b) (6).
Standard of Review
A
which
court
relief
can
considering
be
a
granted."
motion
to
a
"failure
to
Fed.
R.
dismiss
Civ.
filed
pursuant
the
to
Rule
12(b)(6)
allegations
in
Giacomelli,
588
dismiss
failure
for
complaint
relief
that
Twombly,
is
550
plausible
186,
pleading stage.
Id.
possibility
Ashcroft
facial
that
v.
Iqbal,
the
court
defendant is liable
A
"does
12(b)(6)
not
a claim,
N.C.
a
v.
or the
and
consistent
Inc.
v.
2000).
courts
contests
the
the
the
of
pleads
complaint's
the
bound
Ltd.
truth
by
the
of
of
"legal
claim
be
a
the
unlawfully."
"A
claim has
factual
content
that
the
complaint
and
Id.
a
the merits
1992).
facts
fact
that
F.3d
facts
at
of
Republican Party of
all
213
the
v.
inference
allegations."
P'ship,
Corp.
facts,
(4th Cir.
any
Atl.
ask for more than
sufficiency of
952
to
(2009).
the
the
claim
acted
reasonable
truth
existence
Assocs.
not
plaintiff
the
has
1949
surrounding
F.2d 943,
the
Although
are
draw
1937,
if
requirement
it does
defendant
the
tests
"assume
with
J.D.
to
probability
to
a
Requiring
for the misconduct alleged."
980
should
complaint
Ct.
state
v.
motion
granted
Bell
applicability of defenses."
Martin,
court
S.
to
face."
However,
a
motion
resolve
a
556.
when
facts
A
be
of
Francis
2009).
should
(2007).
that
129
plausibility
allows
570
sufficiency
complaint.
claim
its
legal
Cir.
"enough
impose
at
{4th
a
on
544,
not
"sheer
state
plausible
does
a
192
allege
U.S.
the
plaintiff's
to
not
assess
the
F.3d
does
must
Accordingly,
alleged
can
E.
175,
be
180
is
drawn
the
proved,
Shore
alleged
conclusions
in
Mkts.,
(4th
Cir.
assumed,
from
the
facts"
and
"need
not
accept
unreasonable conclusions,
A motion
in
to
conjunction
Rule
8 (a) (2)
claim
showing
that
Civ.
P.
8(a)(2),
what
the...claim
Bell Atl.
U.S.
41,
a
(even
if
327
dismiss
a
U.S.
at
Fair
"even
the
in
Id.
if
Id^_
and
the
is
does
which
it
by
speculative
Gibson,
setting
level
Id^ at
555
(internal
355
forth
face"
complaint
of
R.
rests...."
the
not
the
fair notice of
in
disbelief
556
defendant
of
Fed.
relief,"
"plausible on its
allegations
12(b)(6)
to
read
8(a)(2).
statement
provided
the
be
Procedure
plain
upon
must
(quoting Conley v.
to be
"
12 (b) (6)
entitled
555
inferences,
Id.
Civil
grounds
above
fact)
at
is
notice
relief
judge's
(1989)).
unlikely.'"
(1974)) .
550
"Rule
on
short
the
doubtful
allegations."
319,
and
all
unwarranted
Rule
of
"...give
is
to
that
omitted).
based
"a
pleader
to
to
Rule
for the complaint
right
assumption
as
(1957)).
enough facts
"raise
only
the
so
Corp. ,
47
pursuant
Federal
requires
true
or arguments."
dismiss
with
as
on
are
and
the
true
citations
countenance...dismissals
a
(quoting Neitzke
complaint's
v.
Williams,
factual
490
U.S.
A complaint may therefore survive a motion to
it
appears
(quoting
'that
Scheuer
a
v.
recovery
Rhodes,
is
very
416
remote
U.S.
232,
and
236
III.
Discussion
A.
1.
In
Defendant's
dismiss,
claim
for
argues
cause
in
two principal
should
Plaintiff
Defendant
alleges
has
support
arguments
be
a
breached
contract
between
Defendant
state
to
level
of
facts
speculative
Atl.
Corp.
v.
Court will address
This
case
diversity
have
been
Constr.
motion
First,
facts
Plaintiff
law
duty,
388
F.
Equip.
to
level
550
brought
28
U.S.C.
to
Defendant
supporting
does
but
a
not allege
rather,
of
U.S.
Am.,
544,
only
the
1332.
by
the
state
Inc.
Tobacco
v.
{4th
CLM
claim
as
555-56
Court
"When a
court]
368
its
insured.
fails
to
from
the
required by
(2007).
The
in turn.
[a
362,
Complaint
plausible,
before
ยง
Plaintiff's
raise
[]
sits."
App'x.
N.
the
and
Plaintiff's
these contentions
applied
court
that
Twombly,
jurisdiction,
district
N.V. ,
its
to why Plaintiff's
allege
Defendant
necessary
to
was
jurisdiction under
would
common
contends
sufficient
Bell
as
dismissed.
failed
a
of
that Defendant breached a duty owed to Plaintiff by dint
Second,
the
law duty
memorandum
negligence
that
common
of action for negligence because
that
of
it makes
Negligence
case
appl[ies]
court
Tech.,
on
diversity
involves
the
law
[]
that
in
the
state
where
Inc.
v.
Taiga
Int'l
(citing
Volvo
Cir.
2010)
Equip.
Co.,
Inc.,
386
F.3d
581,
599-600
(4th
Cir.
2004)).
that Virginia law applies,
The
single
Supreme
act
Court
Since
neither
party
disputes
the Court will apply it here.
of
or occurrence
Virginia
can,
has
in certain
recognized
that
circumstances,
ttta
support
causes of action both for breach of contract and for breach of a
duty
arising
both
for
the
traditional
Inc.,
in
loss
tort
281
Cloney,
tort,
Va.
278
Supreme
Court
that,
in
as
damages.'"
Va.
turning
permitting
suffered
483,
"avoid
thus
491
a
v.
266-67
(2009)).
every
breach
of
Virginia has
order
to
recover
of
All
(quoting
260,
of
plaintiff
result
Kaltman
(2011)
a
the
Am.
Dunn
into
tort,
'the
the
Constr.
Co.,
Baptist
Convention
result,
the
violation
of
parties
278
Va.
Court
a
solely
at
v.
Wade,
must
common
by
267
virtue
of
the
Co.
v.
order
to
tort,"
contract.'"
234,
duty
241
Plaintiff
upon
which
or
not one existing
242
if
rule
tortiously
Foreign Mission Bd.
Va.
the
the
(quoting
determine
law
a
duty
negligently breached must be a common law duty,
between
in
and
Control,
Constr.
"consistently adhered to
in
recover
breach
Pest
However,
contract
to
it
(1991)).
has
Dunn
of
As
alleged
could
S.
build
a
the
its
negligence claim.
The
Court
violation of
over
to
repairs,
concludes
such a duty.
Defendant
a
so
bailment
that
that
Plaintiff
has
When Tidewater Fibre
Defendant
relationship
8
was
could
the
turned its truck
make
created,
alleged
the
requisite
with
Defendant
being
the bailee.
Warehouse Co.,
See
Penney Co.
"dealt with the
Corp.
v.
Vineyard,
bailor/bailee
off
his
created
was
239
with
a
Hartford
263,
who
267
a
car
to
a
89-91
Volvo
for
&
routine
Indemn.
(implying
that
entrusted
(imputing
v.
a
a
a party dropped
Peach,
bailment
to
Truck
maintenance
Co.
a
White
(1990)
situation where
mechanic
is
mechanic");
87,
Accident
(1952)
when
a
Va.
relationship
tractor
performed);
260,
bailee
(4th Cir.
Jones Transfer &
facts of another case and stating that that case
a
680
P.P.
{discussing the
of
F.2d 678,
v.
1969)
liability
408
J.C.
to
193
be
Va.
situation
mechanic).
Such
is
a
relationship creates a duty in the bailee.
When a bailment
is
for
the mutual
benefit
of
the
bailor and bailee,
the bailee must use ordinary care
for the protection,
preservation,
and return of the
bailed
property.
care,
he
damage
is
to
If
the
liable
the
bailee
to
the
property
fails
to
use
ordinary
for
any
loss
from
the
bailee's
bailor
resulting
or
failure.
Volvo White
Truck
and
distinct
the
parties
from
and
and a negligence
In
Inc.
a
v.
airplane
Corp.,
case
any
23 9
theory.
similar
may
See
to
possession,
192
the
Va.
the
Airport,
231,
airplane
sue
id.
in the possession of
repaired.
at
contractual
Plaintiff
Alexandria
Va.
232
was
91.
This
duty
that
may
both
under
at
a
is
separate
exist
between
contract
theory
91-93.
present
Inc.,
one,
the
Revenue
While
destroyed
Aero
plaintiff
the defendants
(1951) .
duty
by
so
in
that
the
fire.
left
it
Club,
its
could be
defendants'
Id.
The
plaintiff
brought
an
airplane,
alleging
two
first basis,
action
to
separate
the plaintiff
recover
bases
for
alleged that
the
value
recovery.
of
As
the parties
the
to
the
"had entered
into a contract whereby the plaintiff had delivered the plane
to
the
in
defendants,
to be
good condition"
breached the
plaintiff
33.
the
their
contract
respect
fire
care
neglected
the
vto
bailee
the
the
actions
Revenue
can
in
the
and
of
that
Revenue
the
plaintiff
were
that
they
fire
to
at
the
232-
contended
negligent
failed
precautions
the
Supreme
Aero
case,
Club,
the
in
and
to prevent
or
the
spread
Court
Inc.
Supreme
is
of
Virginia
not
Court
was
immediately
did
not
take
that the plaintiff brought both contract and
against
Aero
the
Club,
maintain
an
defendants.
Inc.
chattel
See Yoemans
v.
is
as
action
contract and a theory of
when
the
Id.
had
233.
issue
fact
defendants
as agreed."
plane,
occurrence
present
the
"the
defendants
or
the plaintiff
return the plane
basis,
adequate measures
the
bailor
bailment.
second
of
in
reads
breach of
fire
failed to
"that
decide
negligence
a
the
control
Id^ at
issue with the
that
to
in
relevant
the
out
Although
Court
and had
of
take
thereof....'"
to
a result
indicated
and
breaking
asked
and as
in good repair and condition,
With
that
repaired and returned to
10
45
a
result,
supporting
under
negligence
destroyed
Mori son,
As
during
Va.
both
the
a
this
premise
theory
of
on the part
of
the
the
of
the
Cir.
period
409,
410
(Loudon
Cnty.
1998)
his
(citations
bailee
Plaintiff
any
in
has
either
pled
contractual
actionable
omitted)
a
tort
common
duty
2.
facts
sufficient
speculative
After
also
to
to
the
examining
factual
level
of
Plaintiff
has
pled
In
Tidewater
Fibre
the
in
premises,
its
vehicle,
Defendant
which
involved
equipment.
Compl.
and/or
the
fire,
near
and
$151,000."
Complaint
properly
%
facts
truck,
resulting
Compl.
alleges
and/or
H
the
truck
10.
that
safely
use
to
a
As
to
"Spring
in
perform
operate and maintain its premises."
11
its
by
of
Twombly.
are
scant,
has
Compl.
a
Hfl
alleged
6-8.
other
the
broke
truck
to
approximate
cause
of
this
negligently
work,
and/or
f 15.
to
While on
work"
fire
to
that
locale
"hot
a
Compl.
motion
and/or
torch
Menders
level
Court
withstand
the
the
plead
negligence
Subsequently,
damages
the
Defendant's
exposing
to
the
performed
of
thereby
in
is
Complaint,
of
to
from
Plaintiff
allegedly
9.
from
that
failed
required
the
repair and/or replace damaged springs.
the
as
allegations
case,
has
claim
plausible,
present
brought
and distinct
Defendant,
Plaintiff
negligence
sufficient
the
sue
sufficiency
allegations
although
by
may
Consequently,
separate
owed
that
its
that
bailor
claim.
nudge
the
aggrieved
contract.").
law duty,
claims
concludes
dismiss.
or
allegedly
in a negligence
Defendant
("An
on
welding
out
a
"at
severe
amount
damage,
failed
to
the
of
the
to
safely
While
that
the
the
fire
Plaintiff
facially
As
Court
resulted
has
pled
plausible
noted
above,
plaintiff
pleads
the
reasonable
not
it
or
that
other
negligence.
of
a
Iqbal,
fire
welding
like
Plaintiff's
principal
should
Plaintiff
not
Fibre
be
cannot
and
the
as
in
declines
for
Court
point
the
to
the
does
in
vicinity
from
draw
the
of
a
Defendant's
dismiss
Count
I
motion
claim,
dismissed.
recover
specific
duty
plaintiff's
Complaint."
contends
to
dismiss
Defendant
for
breach
which
prevent
that
Mem.
contract
contract
imposes
damage
of
Supp.
Plaintiff
12
also
Defendant
of
a
with
breach of
First,
provision of
defendant
to
Contract
to why Plaintiff's
affirmative
Defendant
The
the
to
liable
this
resulted
Court
Breach of
Defendant's
reasons
cited any
is
a
demise.
when
court
194 9.
at
out
equipment
negligence
also
at
the
is
Complaint.
B.
Much
infer,
the
plausibility
allows
Ct.
broke
point
Defendant,
ultimate
defendant
S.
of
truck's
that
129
part
this
negligence
facial
the
that
the
at
that
the
to
Consequently,
Plaintiff's
has
that
unreasonable
proceedings,
for
content
inference
on
indicating
claim
factual
conclude
negligence
facts
"[a]
alleged."
torch
from
cannot
explanation
misconduct
find
certainly
upon
the
Mot.
has
type
respect
asserts
claim
argues
that
between
it
failed
"has
Tidewater
defendant
complained
Dismiss
two
contract
because
the
to
3-4.
to
of
an
in
Second,
state
a
plausible
claim
Complaint
fails
for
breach
of
contract
and,
therefore,
the
concludes
that
to pass muster under Twombly.
1. breach allegations
As
to Defendant's
Plaintiff
has
allegedly
first
sufficiently
breached
by
Fibre
and
"Tidewater
argument,
pled
Defendant.
Spring
the
the
Court
terms
According
Menders
of
to
had
a
the
contract
Complaint,
entered
into
an
agreement whereby Spring Menders agreed to repair springs and/or
install
new springs
on
the aforesaid Mack
price to be paid by Tidewater Fibre."
that
agreement,
premises.
Spring
Compl.
Menders
a
and
said contractual
is
to
be
that
to
dismiss,
of
imposes
it
however,
from
has
the
subsequent
Defendant
because
contract
1
the
to
fire
Compl.
7.
Pursuant to
truck
inside
its
perform
represented a breach
HH
18-20.
its
of
In Defendant's
that
Plaintiff's
Complaint
contends
that
Plaintiff's
Complaint
between
a duty
completely
failed to cite
properly
alleges
Plaintiff
upon Defendant
being
took
obligation
Defendant
dismissed
provision
the
Compl.
in return for a
Plaintiff alleges this created in Spring
obligations.
insufficient.
must
8.
"contractual
aforesaid work"
motion
1
Menders
truck
fails
Tidewater
to a single
13
by
plead
Fibre
to prevent
consumed
contention.
to
a
a
and Defendant
truck
fire.
specific
entrusted
Defendant,
authority supporting
its
Under Virginia
'in
an
upon
action
the
failure
it
on
situation
was
the
or
when
to
escape
destroyed
without
of
In
by
the
fault,
a
the
failure
upon.
because
his
out
delivery
liability
was
bailee's
makes
latter's
agreed
redeliver
relies
without
the
bailor
the
the
as
may
upon
the
shows
and
bailor
bailment
recovery
or
bailee
the
of
care,
he
demand
the
lost
of
due
bailee
failure
where
contract
right
case
to
his
contractu,
exercise
facie
return
that
his
to
article
ex
ordinary
predicating
prima
law,
to
this
showing
property
but
this
is
an affirmative defense which he must prove.'
Canty
v.
Wyatt
(quoting
has
Storage
Revenue
pled
Aero
such
allegations
Corp.,
Club,
the
precise,
elements
of
Complaint,
truck
to
the
to
Tidewater
this
contract
has
will
for
a
the
at
the
a
pled
to
be
Tidewater
Menders
to
14
elements
prima
to
of
a
into
%
delivered
8.
the
H
the
10.
7.
the
However,
return
an
Tidewater
Compl.
assert
in
facie
Plaintiff's
entered
Compl.
to
that
certainly be
repair
U
failed
point
Plaintiff's
the
Fibre
Compl.
opportunity
requisite
Plaintiff
paid.
condition.
later
could
Menders
to
(1967)
alleged contract
agreed
price
premises.
234) .
According
Spring
a proper
have
action
pled
and
Spring
in
the
sufficiently
Menders
Menders
fire,
of
and Defendant
agreement,
Fibre
Menders
Plaintiff
return
that
alleged
Fibre
at
163-64
Although
contract.
Spring
Spring
to
Spring
in
to
has
161,
Va.
elements.
Fibre
bailment
wherein
Pursuant
vehicle
a
Tidewater
agreement
Fibre's
Plaintiff
Va.
192
specifics
existed between Tidewater
more
Inc.,
essential
regarding
208
due
truck
While
defenses
to
proceedings,
bailment
contract
and
thus
plead a
the
Complaint
specific
need
contractual
not
be
also
contends
dismissed because
it
claims
line
of
across
contract
the
fails
claim.
that
a
that
right
to
under a breach of
a
pleads
content
inference
that
alleged.
is
the
facts,
inference
as
that
allows
the
Plaintiff
pled,
liable
the
to dismiss
the
Defendant's
Rules
that
of
with
reasons
motion
Civil
to
dismiss
a
must
be
inch Plaintiff's
to
plausible
contract
a
breach
Complaint,
theory.
to
is
the
has
the
its
Count
reasonable
the
misconduct
factual
II
to
of
allegations
contract
draw
contractual
misconduct
plaintiff
the
a breach of
Court
the
when
mentioned
for
pled
of
As
draw
liable
a
claim.
reasonable
obligation and
alleged.
As
a
result,
Plaintiff's Complaint.
Conclusion
above,
under
Rule
common
15
negligence
law
the
Court
12(b)(6)
Specifically,
Plaintiff's
violation of
to
sufficiently pled a plausible
discussed
Procedure.
respect
alleged the
to
Complaint
Plaintiff's
court
breached
IV.
For
the
elements
allow
for
failure
that
plausibility
defendant
essential
Court declines
has
facial
that Defendant
therefore
the
has
Here,
supporting
The
Plaintiff
Complaint
facts
analyzing
concludes
above,
Plaintiff's
speculative
Court
relief
a
sufficiency
to allege
from
After
for
duty.
2. factual
Defendant
dismissed
duty
the
of
Court
claim,
and
the
DENIES
Federal
concludes
Plaintiff
stated
has
sufficient
facts
which
Similarly,
elevate
Plaintiff
its
has
negligence
also
claim
alleged
that
to
plausibility.
Defendant
had
a
binding contract with Tidewater Fibre,
and Defendant's actions
resulted
that
in
subsequent
a
plausible
fact-finding
breach
may
of
certainly
contract.
challenge
While
Plaintiff's
allegations, Plaintiff has alleged sufficient facts to withstand
a motion to dismiss.
The Clerk is DIRECTED to send a copy of this Order to all
counsel of record.
IT
IS
SO ORDERED.
/s/
Mark S. Davis
UNITED STATES DISTRICT JUDGE
Norfolk,
July J3
Virginia
, 2011
16
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