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Austin Powder Company v. No. 1 Contracting Corporation and Dickinson

March 24, 2011


The opinion of the court was delivered by: Hon. John E. Jones III



Pending before the Court is an Amended Motion to Dismiss ("Motion") filed by Defendant Dickinson Development Partnership ("Defendant Dickinson"). (Doc.8). For the reasons that follow, we will grant the Motion.


The plaintiff, Austin Powder Company ("Plaintiff"), initiated the instant action by filing a complaint in the United States District Court for the Middle District of Pennsylvania on April 19, 2007. (Doc. 1). Defendant Dickinson filed an initial Motion to Dismiss on June 29, 2007 (Doc. 6) and filed the instant Amended Motion to Dismiss on July 2, 2007. (Doc. 8). The motion has been fully briefed by the parties and is therefore ripe for disposition.


In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached to or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hamption Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ---U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). 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, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than "a sheer possibility." Iqbal, 120 S.Ct. at 1949. "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).

Under the two-pronged approach articulated in Twombly and later formalized in Iqbal, a district court must first identify all factual allegations that 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 for purposes of resolving a 12(b)(6) motion to dismiss. Iqbal, 129 S.Ct. at 1950. Next, the district court must identify "the 'nub' of the . . . complaint--the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231(citing Twombly, 127 S. Ct. 1964-65, 1969 n.8). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.


Plaintiff's complaint consists of two counts. Count I is a breach of contract claim against Defendant No. 1 Contracting Corporation ("Defendant No. 1 Contracting") and Count II is an unjust enrichment claim against Defendant Dickinson. The pending motion seeks to exclude only Count II.

Defendant Dickinson is a Pennsylvania limited partnership that owned The Shoppes at Montage in Lakawanna County, Pennsylvania. (Doc. 1 ¶¶ 3, 11). Plaintiff is an Ohio corporation hired by Defendant No. 1 Contracting to perform blasting services at various projects located in Pennsylvania including The Shoppes at Montage. (Id. ¶¶ 1,6, 11). Although not specifically stated in the complaint, the circumstances suggest that Defendant Dickinson hired Defendant No. 1 Contracting as the general contractor for the project, and Defendant No. 1 Contracting hired Plaintiff as a subcontractor for the limited purpose of performing blasting services. (See id. ¶¶ 8, 12).Plaintiff concedes that it does not have a direct contractual relationship with Defendant Dickinson. (Doc. 10 at 6).

Plaintiff performed the blasting services between January 5, 2005 and August 11, 2008. (Doc. 1 ¶ 6). Plaintiff alleges that Defendant No. 1 Contracting owes Plaintiff an outstanding balance of $331,643.35 of which $247,963.21 is attributable to the services performed for The Shoppes at Montage. (Id. ¶¶ 8,18). Plaintiff further alleges that Defendant Dickinson withheld payments to Defendant No. 1 Contracting for Plaintiff's services and subsequently sold the property to another company. (Id. ¶¶ 12, 13). Plaintiff contends that by performing blasting services, Plaintiff conferred a benefit upon Defendant ...

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