United States District Court, W.D. Pennsylvania
GET-ER-DONE DRILLING, INC. A Pennsylvania Corporation, Plaintiff
US CROSSING UNLIMITED, LLC., A Delaware Limited Liability Company, And MICHAEL LIND, an adult individual. Defendants.
OPINION ON MOTION TO DISMISS CLAIMS AGAINST DEFENDANT
MICHAEL LIND, INDIVIDUALLY, FOR LEGAL INSUFFICIENCY ECF NO.
PUPO LENIHAN United States Magistrate Judge.
pending before the Court is Defendants' U.S.
Crossings Unlimited, LLC (“US
Crossings”) and Michael Lind (“Defendant
Lind”)'s motion to dismiss the amended complaint
filed by Plaintiff Get-Er-Done Drilling, Inc. as against
Defendant Michael Lind, individually (ECF No. 5). For the
reasons set forth below, the Court will grant the motion to
dismiss in part without prejudice to file a second amended
complaint within fourteen (14) days of the date of the filing
of this opinion, and otherwise deny the motion.
September 14, 2016, Plaintiff filed a Complaint against the
defendants. See ECF No. 1. On September 19, 2016,
this Court ordered Plaintiff to file, within fourteen (14)
days, an amended complaint that set forth sufficient factual
allegations to establish diversity of citizenship among the
parties or, if diversity was lacking, a notice of voluntary
dismissal. See ECF No. 2.
October 7, 2016, Plaintiff filed a twenty-one (21) count
Amended Complaint against the defendants, alleging breach of
contract, unjust enrichment, promissory estoppel, and
conversion claims against both defendants. See ECF
No. 3. The eleven (11) claims against Defendant Lind are set
forth in Counts VII (promissory estoppel-Rice Rental), IX
(unjust enrichment-Caldwell Job), X (promissory estoppel--
Caldwell Job), XI (breach of contract-Clarksburg Job), XII
(unjust enrichment- Clarksburg Job), XIII (promissory
estoppel- Clarksburg Job), XVII (conversion- Jewett
Conversion), XVIII (unjust enrichment- Jewett Conversion),
XIX (breach of contract-Moundsville Job), XX (unjust
enrichment- Moundsville Job), and XXI (conversion) of the
Amended Complaint. Id.
January 27, 2017, Defendants filed the pending motion to
dismiss the amended complaint against Defendant Lind,
individually (ECF No. 5), as well as a brief in support of
the motion to dismiss (ECF No. 6). On February 23, 2017,
Plaintiff filed an answer to the motion to dismiss (ECF No.
15) and a brief in support of its answer to the motion to
dismiss (ECF No.16). On February 24, 2017, Plaintiff filed an
Errata to its supporting brief; in the Errata it changed the
name of its supporting brief to “Brief in Opposition to
Motion to Dismiss Claims Against Michael Lind, Individually,
for Legal Insufficiency” (ECF No. 20). Thus, the motion
is ripe for disposition.
Standard of Review.
Rule of Civil Procedure 8(a)(2) requires 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). Dismissal of a complaint or portion of
a complaint is warranted under Federal Rule of Civil
Procedure 12(b)(6) when a claimant fails to sufficiently
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). To avoid dismissal under Rule 12(b)(6), the
complaint must provide “enough factual matter (taken as
true)” to suggest the required elements of the claim
presented. Phillips v. Cty. of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008).
assessing the merits of a claim subject to a motion to
dismiss, the court must accept all alleged facts as true and
draw all inferences gleaned therefrom in the light most
favorable to the nonmoving party, here Plaintiff Get-Er-Done
Drilling, Inc. Phillips, 515 F.3d at 228 (citing
Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653
(3d Cir. 2003)). A pleading party need not establish the
elements of a prima facie case at this stage; the
party must only “put forth allegations that
‘raise a reasonable expectation that discovery will
reveal evidence of the necessary element[s].'”
Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.
2009) (quoting Graff v. Subbiah Cardiology Associates,
Ltd., Civ. A. No. 08-207, 2008 WL 2312671 (W.D. Pa. June
Factual Allegations from Plaintiff's Complaint.
as true Plaintiff's factual allegations in its Amended
Complaint and all reasonable inferences therefrom, following
is a recitation of the factual allegations contained in
Plaintiff's Amended Complaint that are relevant to
Defendants' motion to dismiss the claims brought by
Plaintiff against Defendant Lind in his individual capacity.
action is brought pursuant to a breach of contract by the
Defendant. ECF No. 3, ¶ 1. During all times
mentioned in the Amended Complaint, Plaintiff was and is, a
Pennsylvania Corporation, created and existing by virtue of
the laws of Pennsylvania. Id., ¶ 3.
Plaintiff's CEO is Perry Rowan (“Mr. Rowan”).
Id., ¶ 121. U.S. Crossings is a Limited
Liability Company created and organized in the state of
Delaware with a primary place of business at 20436 U.S. Route
19, #620-244, Cranberry Township, PA, 16066, without any
members or shareholders who are residents of Pennsylvania.
Id., ¶ 4. Defendant Lind is an adult individual
whose residence is believed to be in Wheeling, West Virginia.
Id., ¶ 5. Defendant Lind is the Chief Executive
Officer of U.S. Crossings Unlimited. Id.
parties entered into a series of verbal contracts regarding
Plaintiff providing services in the form of horizontal
drilling at various locations and U.S. Crossings utilizing a
number of Plaintiff's pieces of equipment in exchange for
50% of the contract price for any such project or job.
Id., ¶¶ 6-7. The parties agreed the
Defendant would guarantee return of all equipment as it was
received. Id., ¶ 8. The defendants (meaning
Defendant Lind personally) took numerous pieces of heavy
equipment without permission from Plaintiff and used the
equipment for their own benefit. Id., ¶¶
9, 122-126, 132-142.
contract of material was formed between the parties by
Defendant Lind, acting as the agent of, and on behalf of,
U.S. Crossings, contacting Plaintiff at its place of
business, or otherwise taking control of Plaintiff's
property from Plaintiff's Greene County, Pennsylvania
office location. Id., ¶ 10. When named
personally, it is alleged that Defendant Lind personally
participated in such tortious actions in committing them even
if on behalf of U.S. Crossings. Id., ¶ 11.
relationship of the parties began with a verbal contract made
on or about November 5, 2014, for a 26” bore for a
length of 510 feet near Glen Burnie, Maryland at a cost of
$40, 000 (“the Maryland Job”). Id.,
¶¶ 13-14. Plaintiff satisfactorily completed the
bore in November, 2014, and invoiced U.S. Crossings on
January 16, 2015, with the $40, 000 payment due by February
15, 2015. Id., ¶¶ 15-16 and Exhibit A. On
or about January 30, 2015, U.S. Crossings paid Plaintiff $10,
000. Id., ¶ 17. U.S. Crossings paid Plaintiff
another $20, 000 towards this invoice on or about February,
2016. Id., ¶ 18. The remaining $10, 000 owed to
Plaintiff for the Maryland Job has not been paid.
Id., ¶ 19.
early summer 2015, the parties verbally contracted for
additional bores that were to be a part of the Whipkey to
Tetco pipeline for Rice Poseidon Midstream, LLC in Richhill
Township, Greene County, Pennsylvania (“the Rice
Job”), at a cost of $140.00 per foot on an 8”
line and $208.00 per foot on a 12” line. Id.,
¶ 22. Plaintiff satisfactorily completed five 8”
bores of varying lengths, for which the Plaintiff had to
twice mobilize and demobilize his workforce under the verbal
Rice Job agreement, at a cost of $16, 000 per mobilization
and demobilization. Id., ¶¶ 23-25.
to these five bores for the Rice Job, Plaintiff submitted
five invoices to U.S. Crossings: (1) a bill for $44, 800.00,
submitted on May 13, 2015, which was due on June 12, 2015;
(2) a bill for $72, 800.00, submitted on May 20, 2015, which
was due on June 19, 2015; (3) a bill for $119, 150.00,
submitted on August 15, 2015, which was due on September 14,
2015; (4) a bill for $119, 150.00, submitted on September 5,
2015, which was due on October 5, 2015; and (5) a bill for
$79, 800.00, submitted on September 24, 2015, which was due
on November 23, 2015. Id., ¶ 26. On or about
July 6, 2015, U.S. Crossings made a payment to Plaintiff in
the amount of $40, 720.00 for the bill submitted on May 13,
2015. Id., ¶ 27. On or about July 28, 2015,
U.S. Crossings made a payment to Plaintiff in the amount of
$65, 000.00 for the bill submitted on May 20, 2015.
Id., ¶ 28. On or about September 26, 2015, U.S.
Crossings made a payment to Plaintiff in the amount of $77,
491.00 for the bill submitted on August 15, 2015.
Id., ¶ 29.
satisfactorily completed all work on the Rice Job.
Id., ¶33. U.S. Crossings is believed to have
received compensation from the project owner as a result of
Plaintiff's work on the Rice Job. Id., ¶
34. The defendants promised to justly compensate Plaintiff
for work it performed on their behalf for the Rice Job.
Id., ¶ 37.
September 2015, following the portion of the Rice job in
which Plaintiff directly provided work, U.S. Crossings and
Plaintiff verbally agreed that U.S. Crossings could rent a
312 Caterpillar Hoe and additional equipment for four (4)
months for a share of the profits (“the Rice
Rental”). Id., ¶ 40. Plaintiff charged
the reasonable rate of $5000.00 per month with the total
equipment rental fee being $20, 000. Id.,
¶¶ 43-44. By verbal agreement, Plaintiff also
provided labor to U.S. Crossings during this time for
clearing a bore path on the Rice Job for Clearpath Utilities
to complete a bore, at the reasonable rate of $10, 000.
Id., ¶ 41. The labor was a crew of 2-3
employees, for between 80-100 hours per week, for a total of
320 to 420 hours for one month, for which Plaintiff charged
U.S. Crossings a flat rate of $15, 000.00. Id.,
¶ 42. Plaintiff submitted a bill to U.S. Crossings for
all charges related to the Rice Rental on September 24, 2015,
with a due date of October 24, 2015, but Plaintiff has not
received any payment related to the Rice Rental.
Id., ¶ 45.
July 2015 to September 2015, the parties verbally contracted
for Plaintiff to do a 759 feet long bore at a width of
20” near Caldwell, Ohio (the “Caldwell
Job”). Id., ¶ 54. Defendants promised
compensation to Plaintiff for its work. Id., ¶
72. All work was completed by Plaintiff in a satisfactory and
workmanlike manner. Id., ¶¶ 64, 72. During
this time, U.S. Crossings was working under a general
contractor, Sunland Construction, Inc., in the construction
of a pipeline for Antero Resources. Id., ¶ 55.
On or about September 8, 2015, Plaintiff submitted an invoice
to U.S. Crossings for the Caldwell Job in the amount of $144,
375.00. Id., ¶ 56. Defendants promised
Plaintiff compensation for the work, but Plaintiff has not
received any payment from the defendants for the Caldwell
Job. Id., ¶¶ 60, 65, 72-73. Plaintiff
completed the work on the Caldwell job in a satisfactory and
workmanlike manner. Id., ¶¶ 64, 71.
to the Caldwell Job, U.S. Crossings also utilized
Plaintiff's equipment in order to complete its portion of
the work. Id., ¶ 57. During the time U.S.
Crossings was using Plaintiff's equipment on the Caldwell
Job, it destroyed a mud and water pump on Plaintiff's
drill. Id. During this same time period, U.S.
Crossings and its employees acting under Defendant Lind's
direction, also damaged a plunger and anchor base on
Plaintiff's drilling equipment. Id., ¶ 58.
The cost to repair the drill and replace the pump was $21,
023.04. Id., ¶ 59. Defendants promised
Plaintiff compensation for the use of its equipment, but no
payment has been received by Plaintiff for the damaged
equipment. Id., ¶¶ 60, 66, 74.
September of 2015, U.S. Crossings asked Plaintiff to provide
equipment for it to do a 16” bore outside of
Clarksburg, West Virginia for a length of fifty feet.
Id., ¶ 77. Plaintiff agreed to provide the
equipment for the bore for a 50% share of the job; according
to Defendant, the payment for this job was to be $225, 000.
Id., ¶¶ 78-79. Defendants promised
compensation to Plaintiff for the use of the equipment.
Id., ¶ 94. On November 5, 2015, Plaintiff
submitted an invoice to U.S. Crossings for $112, 500.00, its
50% share. Id., ¶80. During this time, U.S.
Crossings and its employees, acting under Defendant
Lind's direction, damaged Plaintiff's AT60
All-Terrain drill, had it serviced by Ditchwitch, and had the
$1577.95 cost of repair billed to Plaintiff. Id.,
¶ 81. As a result of the damage caused by or at the
direction of Defendant Lind, Plaintiff had to pay the $1,
577.95 repair bill out of pocket. Id., ¶ 82.
The Defendants have not compensated Plaintiff for the use of
its equipment on the Clarksburg Job or for damaging
Plaintiff's equipment. Id., ¶¶ 87, 88,
September 2015, Defendant Lind, on behalf of U.S. Crossings,
verbally contracted with Plaintiff to do three bores near
Jewett, Ohio (the “Jewett Job”). Id.,
¶ 99. Defendants promised Plaintiff compensation for the
work. Id., ¶ 108. On October 31, 2015,
Plaintiff submitted an invoice for the work done on the
Jewett Job to U.S. Crossings in the amount of $98, 750.00.
Id., ¶ 102. Payment was due on November 30,
2015, but no payment has been received. Id.,
¶¶ 103, 109, 110, 116, ...