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Deangelo Brothers, Inc. v. Platte River Insurance Co.

June 29, 2010


The opinion of the court was delivered by: A. Richard Caputo United States District Judge



Presently before this Court are four motions: (1) Plaintiff DeAngelo Brothers, Inc.'s ("DBI") Motion for Summary Judgment (Doc. 38); (2) Third-Party Defendants Utility Line Clearance, Inc. and Trang Nguyen's (hereinafter "the Utility Defendants") Motion to Dismiss or, in the alternative, for Summary Judgment (Doc. 44); (3) DBI's Motion to Dismiss Cross-claim of Third Party Defendant (Doc. 58); and (4) DBI's Motion to Stay Discovery Pending Disposition of DBI's Motion to Dismiss V-Tech's Cross-Claim (Doc. 72). For the reasons discussed below, these motions will be granted in part and denied in part.

This Court has jurisdiction over the original action pursuant to 28 U.S.C. § 1332, and has jurisdiction over the remaining claims pursuant to 28 U.S.C. §§ 1332 and 1367.*fn1


I. Factual Background

The facts relevant to the present motions, as alleged in DBI's Complaint, Platte's Third-Party Complaint, and V-Tech Services, Inc.'s ("V-Tech") Cross-claim, are as follows:

In April of 2006, V-Tech contracted with the Pennsylvania Department of Transportation ("PennDOT") to provide vegetation management services for a period of three years. (Compl. ¶ 5, Doc. 1.) V-Tech then subcontracted with DBI to complete this work. (Compl. ¶ 1.) Platte issued a performance and payment bond to V-Tech with respect to the aforementioned vegetation management contract. (Compl. ¶ 6.) The bond defines a potential claimant as "one having a direct contract with [V-Tech] for labor, material or both used in performance of the contract [with PennDOT]." (Compl. ¶ 8.) The bond continues that a claimant "who has not been paid in full before the expiration of ninety (90) days after the date on which the last of such claimant's work or labor was done or performed, or materials were furnished by such claimant, may sue on this Bond for such sums as may be justly due claimant." (Compl. ¶ 8.) On February 3, 2009, Platte entered into a General Indemnity Agreement ("GIA") with V-Tech, V-Tech's owner Tranh H. Nguyen, Utility Line Clearance, Inc. ("Utility"), and Utility's owner Trang Nguyen.*fn2 (Third-Party Compl. ¶ 18, Doc. 30.) The GIA required indemnification, when requested, "for and from any and all liability therefore, sustained or incurred by [Platte] by reason of executing or procuring the execution of any said Bond(s) . . . which maybe already or hereafter are executed." (Third-Party Compl. ¶ 19; GIA at 1, Doc. 30, Ex. 3.)

DBI provided services to V-Tech under the subcontract agreement during 2006, 2007, and 2008. (Compl. ¶ 9.) V-Tech, however, did not pay DBI for "certain invoices from 2006 or any invoices for 2008," totaling $455,283.21. (Compl. ¶¶ 10, 15.) Platte and V-Tech assert that DBI failed to properly perform its duties under the subcontract agreement. (Platte's Answer ¶¶ 50-51, Doc. 21; Cross-claim ¶¶ 52-59, Doc. 48.) V-Tech also asserts that DBI falsely and with malice began a smear campaign against V-Tech by writing and speaking to PennDOT officials alleging that V-Tech was performing PennDOT's contract inadequately. (Cross-claim ¶¶ 67-68.)

II. Procedural Background

DBI filed the present action against Platte on June 24, 2009, seeking to recover through the bond agreement the sums not paid by V-Tech. (Doc. 1.) On January 5, 2010, Platte filed a Third-Party Complaint against V-Tech, Utility, and the Nguyens, seeking indemnification pursuant to the GIA. (Doc. 30.) On March 23, 2010, V-Tech filed an answer to the Third-Party Complaint, as well as a cross-claim against DBI, alleging that DBI breached its contract with V-Tech by performing inadequate services and that DBI did so fraudulently and with the intent to harm V-Tech's reputation. (Doc. 48.) Each of the present motions, with the exception of DBI's motion to stay, have been briefed. Therefore, each of the four motions are ripe for disposition.


I. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

II. Motion for Summary Judgment

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c)(2).

A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c)(2). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for ...

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