United States District Court, W.D. Pennsylvania
RICHARD F. LATUSKA and ANNETTE E. LATUSKA, Plaintiffs,
BUREAU VERITAS NORTH AMERICA, INC., Defendant and Third-Party Plaintiff,
HERITAGE HOMES, LLC, LEZZER TRUSS SYSTEMS, INC., and MiTEK USA, INC. f/k/a MiTEK INDUSTRIES, INC. Third-Party Defendants.
GIBSON UNITED STATES DISTRICT JUDGE
case arises from a home construction gone awry. Pending
before the Court is third-party defendant MiTek USA, Inc.
f/k/a MiTek Industries, Inc.'s (“MiTek”)
motion to dismiss (ECF No. 59) the third-party complaint of
Bureau Veritas North America, Inc. (“Bureau
Veritas”) (ECF No. 35). For the reasons that follow,
MiTek's motion to dismiss is DENIED.
Court previously recited the principal facts of this case in
Latuska v. Sethuraman, No. 15-cv-208, 2016 WL
4082738, at *1-2 (W.D. Pa. July 29, 2016) (ECF No. 66). Thus,
the Court will include here only the facts alleged in Bureau
Veritas's third-party complaint that are relevant to
MiTek's motion to dismiss. The Court accepts these facts
as true for the sole purpose of deciding MiTek's motion
13, 2015, plaintiffs Richard F. Latuska and Annette E.
Latuska sued Bureau Veritas, along with two other
defendants-Venkat Sethuraman and Naheed Shahid-in the Court
of Common Pleas for Clearfield County, Pennsylvania. (ECF No.
1-2 at 4.) That case was removed to this Court on August 13,
2015. (ECF No. 1.) The Latuskas' claims arise from issues
with the construction of their home in Sandy Township,
Pennsylvania. (ECF No. 1-2.) Bureau Veritas was the
third-party building-code administrator for Sandy Township at
the time the Latuskas' home was built. (See ECF
No. 35 ¶ 14.) Bureau Veritas conducted a plan review for
the home's construction, issued a construction permit,
conducted inspections of the property, and ultimately issued
a certificate of occupancy for the property pursuant to the
Pennsylvania Construction Code Act, 35 Pa. Cons. Stat. §
7210.101 et seq., and the Uniform Construction Code,
34 Pa. Cons. Stat. § 401.1 et seq.
(Id.) The Latuskas asserted three claims against
Bureau Veritas: (1) intentional misrepresentation (ECF No.
1-2 ¶¶ 81-97); (2) negligence (id.
¶¶ 98-117); and (3) violation of Pennsylvania's
Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”) (id. ¶¶
September 14, 2015, Bureau Veritas's two codefendants,
Sethuraman and Shahid, filed a third-party complaint against
Heritage Homes, LLC (“Heritage”), and Mike
Hoffer. (ECF No. 11). By stipulation dated December 14, 2016,
Sethuraman, Shahid, and Hoffer were dismissed with prejudice.
(ECF No. 13.) This made Bureau Veritas the sole defendant in
this case and disposed of Sethuraman and Shahid's
third-party complaint as well as any other claims against
April 7, 2016, Bureau Veritas also filed a third-party
complaint; it sued Heritage, Lezzer Truss Systems, Inc.
(“Lezzer”), and M i Te k, asserting claims for
negligence and contribution. (ECF No. 35.) MiTek filed an answer on
June 8, 2016, asserting what it labeled crossclaims for
contribution and indemnification against (1) Bureau Veritas;
(2) Sethuraman and Shahid (who have since been dismissed);
(3) Heritage; (4) Lezzer; and (5) Hoffer (who has also been
dismissed). On July 19, 2016, MiTek filed the motion to
dismiss Bureau Veritas's third-party complaint pending
before the Court. (ECF No. 59.)
Standard of Review
Federal Rules of Civil Procedure require that a complaint
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) allows a party to seek
dismissal of a complaint for failure to state a claim upon
which relief can be granted. In determining the sufficiency
of a complaint challenged under Rule 12(b)(6), a district
court must conduct a two-part analysis. First, the court
should separate the factual and legal elements of the claims.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009). Second, the court must determine whether the factual
matters alleged are sufficient to establish that the
plaintiff has a “plausible claim for relief.”
Id. at 211 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009)). The complaint, however, need not
include “detailed factual allegations.”
Phillips, 515 F.3d at 231 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
court must also accept as true all factual allegations in the
complaint and draw all inferences from the facts alleged in
the light most favorable to the nonmoving party. See
Id. at 228 (citing Worldcom, Inc. v. Graphnet,
Inc., 343 F.3d 651, 653 (3d Cir. 2003)). But
“legal conclusions” and “[t]hreadbare
recitals of the elements of a cause of action . . . do not
suffice.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). Rather, the complaint
must present sufficient “factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Sheridan v.
NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir .2010)
(quoting Iqbal, 556 U.S. at 678).
whether a plaintiff has stated a “plausible claim for
relief” is a context-specific inquiry that requires the
district court to “draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679
(citation omitted). The record to consider in making this
determination includes the complaint and any “document
integral or explicitly relied on in the complaint.”
U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383,
388 (3d Cir. 2002) (emphasis and citation omitted). If a
claim is vulnerable to dismissal under Rule 12(b)(6), the
district court must permit a curative amendment regardless of
whether a plaintiff seeks leave to amend, unless amendment
would be inequitable or futile. Phillips, 515 F.3d
at 236 (citation omitted).
although MiTek's motion to dismiss is styled as one
brought under Federal Rule of Civil Procedure 12(b)(6),
motions asserting Rule 12(b) defenses “must be made
before pleading if a responsive pleading is allowed.”
Fed.R.Civ.P. 12(b). Here, MiTek filed its motion to dismiss
under Rule 12(b)(6) after it filed its answer. By doing so
MiTek effectively filed a motion for judgment on the
pleadings pursuant to Rule 12(c)-and not a motion to dismiss
under Rule 12(b)(6). See Dukes v. Lancer Ins. Co.,
390 F. App'x 159, 163 n.4 (3d Cir. 2010). Thus, the Court
will construe MiTek's motion to dismiss as a motion for
judgment on the pleadings under Rule 12(c). The standard for
evaluating a Rule 12(c) motion is identical to the standard
for evaluating a Rule 12(b)(6) motion. Turbe v.
Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir.
Crossclaims & ...