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Get-Er-Done Drilling, Inc. v. US Crossing Unlimited, LLC

United States District Court, W.D. Pennsylvania

July 10, 2017

GET-ER-DONE DRILLING, INC. A Pennsylvania Corporation, Plaintiff
v.
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. 5

          LISA PUPO LENIHAN United States Magistrate Judge.

         Currently pending before the Court is Defendants' U.S. Crossings[1] 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.

         I. Background.

         On 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.

         On 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.

         On 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.

         II. Standard of Review.

         Federal 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).

         In 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 4, 2008)).

         III. Factual Allegations from Plaintiff's Complaint.

         Accepting 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.

         This action is brought pursuant to a breach of contract by the Defendant[2]. 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.[3] Id.

         The 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.

         Each 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.

         The 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.

         In 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.

         Related 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.

         Plaintiff 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.

         In 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.

         From 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.

         Related 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.

         In 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, 95.

         In 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., ΒΆΒΆ 103, 109, 110, 116, ...


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