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Latuska v. Bureau Veritas North America, Inc.

United States District Court, W.D. Pennsylvania

March 23, 2017

RICHARD F. LATUSKA and ANNETTE E. LATUSKA, Plaintiffs,
v.
BUREAU VERITAS NORTH AMERICA, INC., Defendant and Third-Party Plaintiff,
v.
HERITAGE HOMES, LLC, LEZZER TRUSS SYSTEMS, INC., and MiTEK USA, INC. f/k/a MiTEK INDUSTRIES, INC. Third-Party Defendants.

          MEMORANDUM OPINION

          KIM R. GIBSON UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         The 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 to dismiss.

         On July 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. ¶¶ 118-26).[1]

         On 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 Hoffer.

         On 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.[2] (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.)

         II. Standard of Review

         The 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)).

         The 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).

         Ultimately, 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).

         But 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. 1991).

         III. Analysis

         A. Crossclaims & ...


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