Plaintiff Southeastern Pennsylvania Transportation Authority sued defendant AECOM USA, Inc. for "failing to perform its duties" as the architect and engineer for SEPTA's Market Street elevated reconstruction project. AECOM then filed a third party complaint against Gannett Fleming, Inc., Chilton Engineering, Inc., UCI Architects, Inc. and Ang Associates, Inc. The third party defendants also filed crossclaims against each other. Presently under consideration are UCI's motion to dismiss AECOM's third party complaint against it and UCI's motions to dismiss the crossclaims against it.*fn1
In early 1996, SEPTA set out to renovate the west end of the nearly one hundred year old Market Street elevated rail line. On January 3, 1996, SEPTA retained AECOM to provide architectural and engineering services for the project. AECOM's obligations to SEPTA were set forth with great specificity in the contract.
The project was divided into three phases. Phase A-1 was designated "Engineering and Alternative Analysis Phase;" phase A-2 was designated "Final Engineering/Design;" and phase B was designated "Construction Support Services." Compl. ¶ 52(c). Each phase required AECOM to provide specific services. AECOM hired, inter alia, four subcontractors to assist with the project. Gannett Fleming was hired to "provide design and other professional engineering services to AECOM in furtherance of AECOM's work for the project." Third Party Compl. ¶ 20. Chilton was hired "to perform a field survey and additional professional survey services for the [p]roject." Id. at ¶ 34. Ang was hired "to perform all electrical, mechanical and plumbing engineering design and related services necessary on the Stations Phase of the . . . project." Id. at ¶ 63. Finally, UCI was hired "to provide all technical design services for the architectural discipline of the [p]roject." Id. at ¶ 48. Such services included providing AECOM with "drawings, designs, details, specifications, related documents [and] responses to requests for information." Id. at 51. All four subcontractors agreed to indemnify AECOM for any loss arising out of the subcontractor's "performance of the contract." Id. at ¶ 30 (Gannett Fleming indemnity clause); ¶ 45 (Chilton indemnity clause); ¶ 60 (UCI indemnity clause); ¶ 76 (Ang indemnity clause). There is no allegation, however, that the subcontractors agreed to indemnify each other.
SEPTA alleges that AECOM's "design deficiencies and omissions," delayed the project substantially and resulted in significantly increased costs. The alleged design deficiencies attributable to AECOM included: "survey errors, defects related to guideway deck width, incorrect structural steel camber, errors in the rail profile, relocation of the third rail, design errors in fixation of fasteners, plinth redesign and errors in design of reinforcing steel." Compl ¶ 1.
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1955, 173 L.Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949). The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11 (quoting Iqbal, 129 S.Ct. at 1950). The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id. (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949.
The Court of Appeals and several district courts have noted that the pleading standards set forth in Twombley and Iqbal apply with equal force to crossclaims, counterclaims and third party complaints. See Travelers Indem. Co. v. Dammann & Co., Inc., 594 F.3d 238, 256 n.13 (3d Cir. 2010) (applying the Iqbal pleading standard to crossclaims); Rocheux Intern. of N.J., Inc. v. U.S. Merch. Fin. Gr., Inc., -F. Supp. 2d-, 2010 WL 3833733, at *6 (D.N.J. Sep. 29, 2010) (noting that Iqbal and Twombley apply to counterclaims); Simon Prop. Gr., Inc. v. Palombaro, 682 F. Supp. 2d 508, 511 (W.D. Pa. 2010) (same); Miami Valley Fair Housing Ctr. v. Steiner & Assocs., Inc., No. 08-00150, 2010 WL 2631110, at *7 (May 13, 2010) (applying Twombley and Iqbal to third party complaint); Colon v. Blades, -F.R.D.-, 2010 WL 1731666, at *2 (D.P.R. Apr. 29, 2010) (same); Mottley v. Maxim Crane Works, L.P., No. 06-78, 2010 WL 1284433, at *2 (D.V.I. Mar 26, 2010) (Bartle, C.J.) (same); Source One Global Partners, LLC v. KGK Synergize, Inc., No. 08-7403, 2009 WL 2192791, at *2 (N.D. Ill. July 21, 2009) (same).
I. UCI's Motion To Dismiss AECOM's Third Party Complaint Will Be Denied
UCI has moved to dismiss AECOM's third party complaint for failure to state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(6). UCI argues that neither AECOM's third party complaint nor SEPTA's complaint "make[s] any allegations that the architectural design services performed in the [project] were performed negligently." See UCI's Br. at 7 (Doc. No. 20). AECOM disagrees for two reasons. First, it argues that its third party complaint, when read in combination with SEPTA's complaint, alleges sufficient facts to satisfy the requirements of Twombley and Iqbal. Second, it argues that it should not be required to plead more facts in the third party complaint because in order to do so it would be required to admit liability to SEPTA. See AECOM's Br. at 10 (Doc. No. 27).
The third party complaint alleges that "UCI provided architectural services to AECOM [including] drawings, designs, details, specifications, and related documents . . . ." Third Party Compl. ¶¶ 50-51 (hereinafter "architectural services").*fn2 Therefore, if the third party complaint alleges sufficient facts to set forth a plausible claim that the architectural services were legally deficient,*fn3 the third party complaint must not be dismissed.
The third party complaint itself does not allege any facts that allow me to conclude that UCI provided architectural services in such a way as to render it liable to AECOM. Instead, it simply asserts that "[i]f SEPTA can establish that AECOM is liable to it based on information provided to AECOM by UCI, then UCI is liable to AECOM for negligent misrepresentation." See Third Party Compl. ¶ 56. Likewise, "[i]f SEPTA can establish that AECOM is liable to it based on information provided to AECOM by UCI or on delay caused by UCI, then UCI breached the subcontract with AECOM." Id. at ¶ 57. Finally, with respect to AECOM's negligence claim, "[i]f SEPTA can establish that AECOM is liable to it based on information provided to AECOM by UCI, then UCI is liable to AECOM for negligence." Id. at ¶ 58. In addition to the allegations contained in the third party complaint, ...