Qwest Corporation v. Gonzales Boring & Tunneling Co., Inc. et al

Filing 43

ORDER denying 33 Third Party Defendant Utiliquest's Motion to Dismiss for Failure to State a Claim; Third-Party Gonzalez is to file an Amended Complaint within 21 days of this Order; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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QWEST CORPORATION, dba
CENTURYLINK QC, a Colorado
corporation,

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ORDER

Plaintiff,

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CASE NO. 3:18-cv-05396-RBL

v.
GONZALEZ BORING & TUNNELING
CO., INC., an Oregon Corporation; and
SCARSELLA BROS., INC., a
Washington Corporation,
Defendant.

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THIS MATTER is before the Court on Third-Party Defendant Utiliquest, LLC’s Motion
to Dismiss for Failure to State a Claim. Dkt. #38. Plaintiff CenturyLink QC sued Gonzalez
Boring & Tunneling Co., Inc. for damaging its underground telephone conduits and fiber-optic
cables during an excavation project that was carried out May 19, 2015. As part of its Answer to
CenturyLink’s Complaint, Gonzalez filed a Third-Party Complaint against UtiliQuest, alleging
that Gonzalez “provided boring and/or related activities in reliance on location and related
markings for utilities, pipelines, substructures” and other obstructions by Scarsella’s agents. Dkt.

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ORDER - 1

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#13, at 8. It then goes on to allege that “to the extent that” UtiliQuest provided such locations and

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markings Gonzalez relied on them and requests contribution under RCW 4.22.040.” Id.

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UtiliQuest argues that the contribution claim in the Third-Party Complaint must be

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dismissed because it fails to plausibly allege that UtiliQuest actually provided any locating or

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marking services for the project. UtiliQuest provides several declarations to the effect that in fact

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Locating, Inc., provided locating and marking services and not UtiliQuest. UtiliQuest also argues

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that any claim against it is legally deficient because, under RCW 19.122.030, a locate request

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remains valid for only 45 days after the initial request. After that, an excavator is required to

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provide additional notice to the locator service. UtiliQuest asserts that, because the utilities were

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located and marked on March 9 but excavation did not commence until May 19, the 45 day limit

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had expired and Gonzalez could not have relied on UtiliQuest’s locates or marks.

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Gonzalez “does not dispute that Locating, Inc., marked CenturyLink’s facilities” and asks

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for leave to amend its Third-Party Complaint to substitute Locating, Inc., for UtiliQuest as the

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proper third-party defendant. Dkt. #36, at 5. However, Gonzalez also contends that its Third-

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Party Complaint gives “more than adequate notice” to comply with Rule 8(a). In addition,

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Gonzalez argues that its compliance with RCW 19.122.030 is not dispositive of whether either

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UtiliQuest or Locating, Inc., are liable for contribution under RCW 4.22.040.

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Dismissal under Fed. R. Civ. P. 12(b)(6) may be based on either the lack of a cognizable

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legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri

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v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff’s complaint must allege

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facts to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. Although the court must accept as true the Complaint’s well-pled facts,

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conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper

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12(b)(6) motion to dismiss. Vazquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007);

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Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation

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to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action will not do. Factual allegations

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must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (citations and footnotes omitted). This requires a plaintiff to plead

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“more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at

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678 (citing id.).
On a 12(b)(6) motion, “a district court should grant leave to amend even if no request to

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amend the pleading was made, unless it determines that the pleading could not possibly be cured

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by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242,

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247 (9th Cir. 1990). However, where the facts are not in dispute, and the sole issue is whether

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there is liability as a matter of substantive law, the court may deny leave to amend. Albrecht v.

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Lund, 845 F.2d 193, 195–96 (9th Cir. 1988).

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Here, Gonzalez concedes that it named the wrong third-party defendant and would like to

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supplement Locating, Inc., for UtiliQuest. Such an amendment is permissible under Rule

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15(a)(2). However, UtiliQuest is correct that, aside from naming the wrong defendant,

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Gonzalez’s Third-Party Complaint also does not meet the plausibility standard in other respects.

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Namely, Gonzalez’s indeterminate phrasing that UtiliQuest is liable “to the extent that” it

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provided locating and marking services is overly speculative. See Twombly, 550 U.S. at 555. The

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allegations in a complaint need not include every possible detail, but they do need to assert with

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certainty that the defendant did in fact do something that could result in liability. Gonzalez

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should also address this shortcoming in its amended complaint.
UtiliQuest’s argument that amendment would be futile because Gonzalez did not comply

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with the timing requirements of RCW 19.122.030 is unpersuasive. As Gonzalez points out, it

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was sued for negligence, not violation of RCW 19.122.030. Dkt. #1, at 3-4. Consequently,

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whether or not Gonzalez complied with RCW 19.122.030 may be relevant to an argument

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concerning breach but is not the only method of proving it. See RCW 5.40.050 (breach of a duty

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imposed by statute, ordinance, or administrative rule shall be considered evidence of negligence

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and not negligence per se); Damasco v. United States, No. C17-641 RSM, 2018 WL 4237752, at

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*6 (W.D. Wash. Sept. 6, 2018). If Locating, Inc., negligently provided locates or marks that

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Gonzalez then relied on, Locating, Inc., could still be liable for contribution under

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RCW 4.22.040 even if Gonzalez also negligently waited too long after the locates and marks

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were initially placed. UtiliQuest’s insistence that RCW 5.40.050 must impose a separate duty on

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Locating, Inc., for it to be liable is somewhat baffling. Whether or not Locating, Inc., owed a

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duty under the law of negligence is a separate question that is unrelated to RCW 19.122.030 and

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RCW 5.40.050, and if Locating, Inc., affirmatively provided locating and marking services for

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the project, UtiliQuest has provided no reason why it could not owe a duty.

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ORDER - 4

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For these reasons, UtiliQuest’s Motion to Dismiss without Leave to Amend [Dkt. #33] is
DENIED. Gonzalez shall file an amended complaint within 21 days of this ORDER.

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IT IS SO ORDERED.

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Dated this 7th day of March, 2019.

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A

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Ronald B. Leighton
United States District Judge

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