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Goldsmith Associates, Inc. v. DEL Frisco's of Philadelphia

October 1, 2009


The opinion of the court was delivered by: DuBOIS, J.



The dispute in this case concerns work performed in the construction of Del Frisco's

Double Eagle Steakhouse, located at 111 S. 15th Street in Philadelphia, Pennsylvania. The plaintiff, Goldsmith Associates, Inc. ("Goldsmith"), asserts in the Amended Complaint that it performed $1,835,110.87 of electrical work on the project as part of a subcontract with Lorient, LLC, the general contractor hired by defendants Del Frisco's of Philadelphia and/or Del Frisco's Restaurant Group, LLC (collectively, "Del Frisco's")*fn2 , and that it is still owed $1,100,231.57.

(Am. Comp. ¶¶ 35 - 41.) It seeks to recover that amount from Del Frisco's; Del Frisco's parent company, Lone Star Steakhouse and Saloon, Inc. ("Lonestar"); and the owners of the building with whom Del Frisco's is allegedly leasing its restaurant space, Chest-Pac Associates, L.P. ("Chest-Pac") and Grasso Holding Acquisitions, Inc. ("Grasso"). (Am. Comp. ¶¶ 6, 8, 9, 11, 24, 25, 27, 28.).

In the Amended Complaint, Goldsmith asserts the following claims against Lonestar and Del Frisco's: unjust enrichment (Count I), quantum meruit (Count II) and relief under the Contractor and Subcontractor Payment Act ("CASPA"), 73 Pa. Con. Stat. Ann. § 501 et seq. (Count V). It asserts the same claims against Chest-Pac and Grasso in Counts III, IV and V, respectively.

Presently before the Court is a Motion to Dismiss Counts III, IV and V of the Plaintiff's Amended Complaint for Failure to State a Claim filed by defendants Chest-Pac and Grasso and a Motion to Dismiss Counts I, II and V of the First Amended Complaint Pursuant to Rule 12(b)(6) filed by defendants Del-Frisco's and Lonestar. For the reasons stated below, the Court grants both motions without prejudice to the plaintiff's right to file a second amended complaint consistent with this Memorandum, if warranted by the facts.


Some time during or after the year 2000, Grasso negotiated a lease with Del-Frisco's to occupy the bottom floors of the historic Packard building in Philadelphia. (Am. Comp. ¶¶ 16-24.). Under the lease, Del-Frisco's agreed to renovate its lease-space for use as a restaurant in return for reduced rent during the renovation period. (Am. Comp. ¶¶ 31, 33.). Chest-Pac and Grasso reserved the right to review and approve the designs for the renovation. (Am. Comp. ¶ 32.). Once the lease expired, the renovation improvements were to become the sole property of Chest-Pac and Grasso. (Am. Comp. ¶34.).

After the lease had been negotiated, Del-Frisco's contracted with Lorient to serve as the general contractor for the renovations. (Am. Comp. ¶ 35.). Lorient then subcontracted with Goldsmith to provide electrical work, which was performed around the period between June 28, 2008 and March 1, 2009. (Am. Comp. ¶¶ 36, 37.). For this work, Goldsmith submitted invoices in the amount of $1,835,110.87, but was allegedly paid only $734,879.30 despite repeated demands for payment to the defendants. (Am. Comp. ¶¶ 40, 41, 42.).


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff . . . ." Phillips v. County of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

"To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . .'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are 'merely consistent with a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

In Twombly, the Supreme Court utilized a "two-pronged approach" which it later formalized in Iqbal. Iqbal, 129 S.Ct. at 1950. Under this approach, a district court first identifies those factual allegations which constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S.Ct. at 1950. The court then assesses "the 'nub' of the plaintiff['s] ...

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