Kokosing Construction Company, Inc. v. Go Green America Recycling, LLC et al
Filing
23
MEMORANDUM OPINION AND ORDER DENYING CENTER POINT TERMINAL J&W, LLC'S MOTION TO DISMISS, DISMISSING PLAINTIFF'S SUBPARAGRAPH (A) AND (B) IN ITS PRAYER FOR RELIEF IN THE AMENDED COMPLAINT AND EXTENDING THE DEADLINE FOR THE FILING OF A MOTION FOR A MORE DEFINITE STATEMNT: Denying 15 Motion to Dismiss; Motion For a More Definite Statement due by 3/26/2014. Signed by Senior Judge Frederick P. Stamp, Jr on 3/12/14. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KOKOSING CONSTRUCTION COMPANY, INC.,
an Ohio corporation,
Plaintiff,
v.
Civil Action No. 5:13CV129
(STAMP)
CENTER POINT TERMINAL COMPANY, LLC,
a Delaware limited liability company,
CENTER POINT TERMINAL J&W, LLC,
a Delaware limited liability company,
and WEIRTON AREA PORT AUTHORITY, INC.,
a West Virginia corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING CENTER POINT TERMINAL
J&W, LLC’S MOTION TO DISMISS,
DISMISSING PLAINTIFF’S SUBPARAGRAPH (A) AND (B)
IN ITS PRAYER FOR RELIEF IN THE AMENDED COMPLAINT
AND EXTENDING THE DEADLINE FOR THE FILING
OF A MOTION FOR A MORE DEFINITE STATEMENT
I.
Procedural History
This civil action was filed in this Court by the plaintiff,
Kokosing Construction Company, Inc. (“Kokosing”).
The plaintiff’s
complaint arises from a contract with the Weirton Area Port
Authority, Inc. (“WAPA”).
The amended complaint alleges that WAPA
failed to pay the plaintiff for work completed on a piece of
property
in
Weirton,
West
Virginia
(“the
Weirton
property”).
Further, the amended complaint asserts that the plaintiff has a
mechanic’s lien on the property that it can exercise against Center
Point Terminal J&W, LLC (“J&W”).
The plaintiff thus asserts three
claims in its amended complaint: (1) enforcement of a mechanic’s
lien, (2) breach of contract by WAPA, and (3) unjust enrichment of
WAPA.
Thus, the only count that relates to J&W is Count One,
enforcement of a mechanic’s lien.
Originally, the plaintiff had brought this action against two
defendants, Go Green America Recycling, LLC (“Go Green”) and Center
Point Terminal, LLC (“Center Point”).
Go Green and Center Point
were the owners of the Weirton property at the time the work was
completed by the plaintiff.
However, the plaintiff then filed an
amended complaint against three defendants, Center Point, J&W, and
WAPA. Thus, Go Green was dismissed from the case. Thereafter, the
parties filed a joint stipulation dismissing Center Point as a
party and also stipulating that: (1) the current owner of the
Weirton property is J&W and (2) Center Point was not a necessary
party.
Thus, the two remaining defendants in this action are J&W
and WAPA.
Subsequently, J&W filed the instant motion to dismiss.
The motion is now fully briefed and ripe for review.1
II.
Facts
In its motion to dismiss, J&W argues that the plaintiff’s
amended complaint fails to meet the requirements of Iqbal and
1
The Court notes that the plaintiff filed a supplemental
submission of exhibits in opposition to the motion to dismiss on
March 11, 2014. As that filing was untimely, this Court will not
consider it.
2
Twombly.2
First, J&W contends that the plaintiff has failed to
allege that there was a contract between the plaintiff and J&W, the
owner of the Weirton property; or between WAPA, the holder of the
contract, and J&W.
Based on West Virginia law, J&W asserts that
the plaintiff had to show that the mechanic’s lien was based on a
contract between the contractor and the owner of the Weirton
property; and because the plaintiff has not done so, this claim
must fail. Next, J&W argues that the plaintiff has failed to plead
any
facts
to
establish
that
an
alleged
mechanic’s
lien
was
perfected, let alone that it was perfected within the 100 days
after the completion of the work which is required by West Virginia
statute.
Third, J&W contends that because the plaintiff identifies WAPA
as a “prime contractor,” by implication, the plaintiff identified
itself as a subcontractor of WAPA. Because it was a subcontractor,
the plaintiff was required under West Virginia law to provide
notice of the alleged lien to the owner of the Weirton property,
J&W.
The plaintiff has not alleged that it did, thus, the
defendant asserts that this claim fails.
Finally, the defendant
asserts that because there was no privity of contract between the
plaintiff and J&W, the plaintiff cannot assert a mechanic’s lien
against J&W (if this Court were to find that there was a valid
2
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007).
3
mechanic’s lien).
Thus, a personal judgment against J&W cannot be
sought.
In its response, the plaintiff first argues that it has not
pleaded that it was a subcontractor and thus, the only notice that
was required was the recording of a notice of lien.
Thus, the lien
was perfected because the plaintiff was a contractor. Further, the
plaintiff asserts that it did not provide services or materials
subject to the supervision or direction of another entity.
The
plaintiff contends that it has shown it was a contractor by
providing
the
purchase
order
which
identified
Kokosing
as
a
contractor (attached to the complaint), an allegation in the
complaint that it delivered labor and materials and performed work,
and the notices of lien identified the parcels at issue.
Finally,
the plaintiff acknowledges that “prime contractor” should have been
placed in quotation marks in the amended complaint because WAPA was
not a licensed contractor but was acting as a contracting agent for
the port development project.
Thus, the plaintiff was understood
and retained as the prime contractor.
Next, as to the 100-day pleading requirement, the plaintiff
asserts that the purchase order shows that the project ran through
the end of December 2012 and the plaintiff recorded its notices of
lien on March 15, 2013, less than 100 days after the contract
expired.
Third, the plaintiff asserts that West Virginia uses a
substantial compliance standard to determine whether a mechanic’s
4
lien has been effectively preserved. Thus, that standard should be
applied
in
determining
complaint.
the
sufficiency
of
the
plaintiff’s
Finally, the plaintiff states that subparagraphs (a)
and (b) of its prayer for relief in the amended complaint should be
disregarded.
The plaintiff stipulates in its response that its
mechanic’s lien action proceeds against the real property that was
improved and not J&W individually.
The plaintiff attached two
exhibits to its response: (1) an affidavit by the Kokosing project
manager for the Weirton project and (2) a WAPA proclamation
describing the project.
In its reply, J&W argues that this Court may not consider the
new evidence that the plaintiff included in its response. In
support, J&W contends that in its amended complaint, the plaintiff
failed to allege that a contract existed between the plaintiff and
either of the landowners at the time, Go Green or Center Point.
Thus, because the plaintiff has only made the assertion that it was
a
general
contractor
acting
as
a
known
agent
for
disclosed
principals in its response, its amended complaint must fail.
Further, J&W asserts that even if this Court were to consider the
evidence provided by the plaintiff in its response, the plaintiff
has still failed to show that either Go Green or Center Point were
disclosed principals.
J&W also argues that the plaintiff has
failed to show that it filed the required statutory notice to the
landowner because it has pled in its amended complaint that it was
5
a subcontractor for WAPA by: (1) stating that WAPA was the “prime
contractor” and (2) pled a contract between WAPA and the plaintiff
but not against J&W or any other landowner.
J&W then contends that the plaintiff has failed to plead
sufficiently that it complied with the 100-day recording period.
J&W asserts that although the plaintiff provided the purchase order
with a date of September 20, 2012 and a copy of the recorded notice
of the mechanic’s lien of March 2013, the plaintiff still failed to
provide J&W with the date when the construction at the Weirton
property was actually completed.
III.
Applicable Law
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to raise the defense of “failure to state a claim upon
which
relief
can
be
granted”
as
a
motion
in
response
to
a
plaintiff’s complaint before filing a responsive pleading.
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept the factual allegations
contained in the complaint as true.
Advanced Health-Care Servs.,
Inc. v. Radford Cmty. Hosp., 910 F.2d 139, 143 (4th Cir. 1990).
Dismissal is appropriate only if “‘it appears to be a certainty
that the plaintiff would be entitled to no relief under any state
of facts which could be proven in support of its claim.’”
Id. at
143-44 (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.
6
1969)); see also Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d
324, 325 (4th Cir. 1989).
A motion to dismiss for failure to state a claim under Rule
12(b)(6) should be granted only in very limited circumstances, as
the pleading requirements of Federal Rule of Civil Procedure
8(a)(2) only mandate “a short and plain statement of a claim
showing that the pleader is entitled to relief.”
Fed. R. Civ. P.
8(a)(2). Still, to survive a motion to dismiss, the complaint must
demonstrate the grounds to entitlement to relief with “more than
labels and conclusions . . . factual allegations must be enough to
raise a right to relief above the speculative level.”
Bell
Atlantic v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 663-666 (2009).
IV.
Discussion
In order to satisfy the pleading requirements of Federal Rule
of Civil Procedure 8, the plaintiff must simply present a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). As explained above,
this does not mandate that the plaintiff prove its claim at the
point of pleading, but only that it present sufficient facts to
convince the Court that its claim is “plausible.”
U.S. at 555 (2007).
7
Twombly, 550
A.
Plaintiff as Subcontractor versus Contractor and Contract
Requirement
J&W
contends
that
Kokosing
has
pleaded
that
it
was
a
subcontractor and that WAPA was the overall contractor on the
Weirton property project.
J&W asserts that this is clear by the
plaintiff’s use of the term “prime contractor” in describing WAPA
in the amended complaint.
Further, J&W argues that this Court
cannot consider the plaintiff’s attachments to its response to
J&W’s motion to dismiss because this Court must only consider what
was pleaded in the amended complaint.
Finally, J&W argues that
Kokosing has not pled that there was a contract between the owners
of the property at the time of the Weirton property project and
Kokosing which is required by statute.
“[A] court is not to consider matters outside the pleadings or
resolve factual disputes when ruling on a motion to dismiss.”
Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007) (citing
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.
1999)). However, the plaintiff may offer outside information if it
is merely seeking to substantiate the plausibility of its claims.
James River Mgmt. Co., Inc. v. Kehoe, CIV.A. 3:09CV387, 2009 WL
3874167, *9 (E.D. Va. Nov. 18, 2009).
Based on the following,
however, this Court finds that it can find that Kokosing was not a
subcontractor without considering the attachments to Kokosing’s
response to the motion to dismiss.
8
The West Virginia Code provides two different procedures for
proper notice of a mechanic’s lien depending on whether the person
providing notice is a contractor or a sub-contractor.
As such,
§§ 38-2-1 and 38-2-2 of the West Virginia Code provide definitions
of the two as follows:
[A contractor is] [e]very person, firm or corporation who
erects, builds, constructs, alters, removes or repairs
any building or other structure, or other improvement
appurtenant to any such building or other structure, or
who alters or improves the real property whereon the same
stands, or to which it may have been removed, or who
provides services for any of the foregoing, under and by
virtue of a contract with the owner for such erection,
building, construction, alteration, removal or repair,
either for an agreed lump sum or upon any other basis of
settlement and payment.
[A subcontractor is] [e]very person, firm or corporation
who, under and by virtue of a contract with such general
contractor as is mentioned in section one of this
article, or with a subcontractor for a part of such work,
either for an agreed contract price or by day or by
piece, or other basis of payment, shall furnish any part
of the materials, machinery or other necessary supplies
or equipment, or shall perform any labor, do any work or
provide any services necessary to the completion of any
general contract.
The purchase order submitted by Kokosing in its amended
complaint lists Kokosing as a contractor and lists three other
entities as subcontractors.
ECF No. 8-1.
Further, Kokosing
indicates in paragraph 1 of the amended complaint that it is a
licensed
contractor.
However,
later
in
the
amended
complaint
Kokosing also states that WAPA acted as the “prime contractor” for
the construction that took place on the Weirton property.
9
Based on West Virginia case law, however, it appears that the
term “prime contractor” is not used interchangeably with “general
contractor.”
The
West
Virginia
Supreme
Court
has
routinely
described different entities as a “prime contractor,” a “general
contractor,” or a “subcontractor.”
March-Westin
Co.,
655
S.E.2d
Preussag Int’l Steel Corp. v.
494,
500
(2007)
(distinguishing
different entities with the terms “prime contractor,” “general
contractor,” “subcontractor,” and “materialman”); Farley v. Zapata
Coal Corp., 281 S.E.2d 238 (1981) (describing one entity as a prime
contractor and a different entity as the general contractor).
Thus,
it
is
unclear
that
Kokosing’s
use
of
the
term
“prime
contractor” would automatically put it in the category of a
subcontractor.
To the contrary, as shown above, it appears that
the term “prime contractor” does not itself preclude a finding that
Kokosing could have still been a “general contractor” rather than
a subcontractor.
Thus, the purchase order provided by Kokosing,
listing it as a contractor while three other entities were listed
as subcontractors, provides sufficient facts to support Kokosing’s
contention
that
it
is
in
fact
a
contractor
rather
than
a
subcontractor.
Finally,
J&W
asserts
that
Kokosing
has
failed
to
plead
sufficient facts based on the statute’s requirement that the
plaintiff must have performed the work “under and by virtue of a
contract with the owner . . . .”
10
W. Va. Code § 38-2-1.
However,
this Court finds that Kokosing has successfully pled sufficient
facts at least as to a relationship between the owners of the
property and WAPA, and as to a contract between Kokosing and WAPA.
Clearly, Kokosing has pled that a contract existed between it
and WAPA which is not disputed by the parties.
ECF No. 8 ¶ 10.
However, Kokosing has not specifically pled that a contract existed
between WAPA and the previous owners of the Weirton property.
At
the very least, however, Kokosing has pled that it was working for
WAPA as a general contractor and that WAPA was either a prime
contractor or a contracting agent. Given that WAPA could have been
acting upon the direction of the previous owners as a contracting
agent, the facts pled by Kokosing are sufficient.
This is a close
call, however, and as such, this Court will allow the defendant
more time to file a motion for a more definite statement if J&W
finds that such a motion is necessary.
B.
Timeliness of Perfection and the Plaintiff’s Duty of Notice
Based
on
this
Court’s
finding
above,
that
Kokosing
has
sufficiently pleaded that it was a general contractor rather than
a subcontractor, Kokosing would be subject to the perfection
standards of a general contractor.
For the purpose of perfecting
and preserving his lien, a general contractor must “within one
hundred days after the completion of his work provided for in such
contract, cause to be recorded, in the office of the clerk of the
11
county court of the county wherein such property is situate, a
notice of such lien.”
W. Va. Code § 38-2-8.
J&W argues that the plaintiff has not sufficiently pled that
it recorded the lien within 100 days because Kokosing did not state
in its amended complaint the project completion date.
Kokosing
contends that it has done so by providing the purchase order which
states that the project time frame was “June 1, 2012 thru December
31, 2012.” Thus, Kokosing asserts that by recording its notices of
a mechanic’s lien on March 14, 2013, which were also attached to
the amended complaint, it was within the 100-day time frame and has
sufficiently pleaded as such.
Based on the attachments to the amended complaint, Kokosing
has sufficiently pled that it recorded its mechanic’s lien within
the 100 days after completion of its work on the Weirton property.
The purchase order attached to the amended complaint states that
the project was slated to end by December 31, 2012.
Further, the
notices of mechanic’s lien attached to the amended complaint are
dated March 14, 2013 and were filed in Brooke County, West Virginia
where
the
Weirton
property
is
located
(as
plaintiff’s amended complaint at paragraph 7).
indicated
in
the
Thus, given the
dates provided by Kokosing, Kokosing has sufficiently pled facts to
support its assertion that it perfected its mechanic’s liens within
100 days of completion of the project.
12
C.
The Plaintiff’s Stipulation
J&W contends that the plaintiff may not seek a personal
judgment against it but can only seek enforcement of the mechanic’s
lien based on the allegations made in the plaintiff’s amended
complaint.
The plaintiff stipulates in its response that its
mechanic’s lien proceeds against the Weirton property and not
against J&W pursuant to West Virginia Code § 38-2-1.
J&W does not
object to this stipulation nor does it mention the plaintiff’s
suggested stipulation in its reply.
Accordingly, this Court finds
that the stipulation may be granted and that sections VI(a) and
VI(b) of the amended complaint are dismissed.
V.
ECF No. 8, pg. 4.
Conclusion
For the reasons set forth above, the defendant Center Point
Terminal J&W, LLC’s motion to dismiss the amended complaint is
DISMISSED.
Further, as stipulated by the plaintiff, subparagraphs
(a) and (b) of the prayer for relief in the plaintiff’s amended
complaint are DISMISSED (ECF No. 8, pg. 4, ¶¶ VI(a) and (b)).
Finally, the time to file a motion for a more definite statement is
extended.
Thus, a party may, if it deems it necessary, file a
motion for a more definite statement on or before March 26, 2014.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
13
DATED:
March 12, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
14
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?