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Veteran Constructors, Inc. v. Beeler Barney and Associates Masonry Contractors, Inc.

United States District Court, E.D. North Carolina, Northern Division

August 22, 2014

VETERAN CONSTRUCTORS, INC., Plaintiff,
v.
BEELER BARNEY AND ASSOCIATES MASONRY CONTRACTORS, INC., and LEXON INSURANCE COMPANY, Defendants. UNITED STATES OF AMERICA, for the use and benefit of BEELER BARNEY AND ASSOCIATES MASONRY CONTRACTORS, INC., Third-Party Plaintiff,
v.
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Third-Party Defendant.

ORDER

JAMES C. FOX, Senior District Judge.

This matter is before the court on Travelers's motion for judgment on the pleadings [DE-13]. The motion is DENIED.

PROCEDURAL AND FACTUAL BACKGROUND

Beeler Barney and Associates ("Beeler Barney") initiated this Miller Act action against Travelers on November 11, 2013. The case was subsequently consolidated with a related suit between Veteran Constructor's and Beeler Barney. However, the only pending motion at present is Travelers's motion for judgment on the pleadings, which requests dismissal of all claims Beeler Barney asserts against it.

Veteran Constructors was awarded a Government contract to construct facilities for the United States Coast Guard in Elizabeth City, North Carolina. Veteran hired Beeler Barney as a subcontractor to complete the masonry work on the project. After Beeler Barney had worked at the site for some time, a dispute arose between Beeler Barney and Veteran regarding the workmanship and whether Veteran paid Beeler Barney the amounts due under the subcontract. When negotiations with Veteran broke down, Beeler Barney initiated this Miller Act suit against Veteran's surety, Travelers Casualty and Surety Company.

Before Beeler Barney initiated this suit against Travelers, Veteran brought suit against Beeler Barney in the Middle District of North Carolina, seeking damages against Beeler Barney and its surety Lexon Insurance for breach of the subcontract. As noted above, that action was transferred to this court and consolidated with the Beeler Barney/Travelers case.

The issue presented by Travelers's motion is whether this action is timely under the Miller Act's one-year statute of limitations. 40 U.S.C. § 3133(b)(4). The statute of limitations begins to run when the subcontractor completes the work. Id. Before the Veteran case was transferred to this district, Beeler Barney filed an answer to Veteran's complaint. Therein, Beeler Barney stated that "its personnel left the site on September 7, 2012, and removed its equipment from the site, but [Beeler Barney] affirmatively states that the work was completed including all final punch list work." Beeler Barney Answer [DE-13-2] ¶ 21. September 7, 2012 is more than one year from the date that Beeler Barney commenced this action against Travelers. However, in its complaint in this case, Beeler Barney pleads that "one year has not elapsed since Veteran has supplemented [Beeler Barney's] workforce and caused to be charged to Beeler Barney's account labor, material, or both on the project...." Compl. [DE-1] ¶ 12.

DISCUSSION

Travelers moves to dismiss the complaint under Federal Rule of Civil Procedure 12(c). Rule 12(c) states, "after the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). With the exception that the court may consider the defendant's answer as well as the complaint, Rule 12(c) motion are typically analyzed under the same standard as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002); Mendenhall v. Hanesbrands, Inc., 856 F.Supp.2d 717, 723 (M.D. N.C. 2012). Thus, the court assumes that the complaint's well-pleaded factual allegations are true and draws all reasonable inferences in the plaintiff's favor. Burbach, 278 F.3d at 405-06. However, the court need not accept the complaint's legal conclusions, unwarranted inferences drawn from the facts or unreasonable conclusions or arguments. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 231 F.3d 175, 180 (4th Cir. 2000).

Ordinarily, resolution of defenses such as the statute of limitations is not appropriate when ruling on a Rule 12(b)(6) motion to dismiss, which only tests the legal sufficiency of the complaint itself. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, if the facts sufficient to rule on the defense are alleged in the complaint, a court may reach the defense at the Rule 12(b)(6) stage. Id. But the Fourth Circuit has cautioned that the court may only do so "in the relatively rare circumstance" where "all facts necessary to the affirmative defense clearly appear[ ] on the face of the complaint. '" Id. (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir.1993)).

In addition to the pleadings, the court may consider a limited set of extrinsic materials when ruling on an affirmative defense at the 12(b)(6) stage without converting the motion into one for summary judgment under Rule 12(d). See Burt v. Maasberg, No. ELH-12-0464, 2013 WL 1314160, at *10 (D. Md. Mar. 13, 2013) (quoting Goodman rule that affirmative defenses may only be addressed on a Rule 12(b)(6) motion if the defense "clearly appear[s] on the face of the complaint" and adding phrase "or in other documents that are proper subjects of consideration under Rule 12(b)(6)"). The court may consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice" when deciding a Rule 12(b)(6) motion. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

The Miller Act allows a sub-contractor to bring suit against a general contractor's surety if the general contractor fails to pay the sub-contractor in full. 40 U.S.C. § 3133(b). However, the civil action must be commenced within one year from "the day on which the last of the labor was performed or material was supplied by the person bringing the action." § 3133(b)(4). Here, Beeler Barney pleads in its complaint against Travelers that

[o]ne year has not elapsed since Veteran has supplemented [Beeler Barney's] workforce and caused to be charged to [Beeler Barney's] account labor, material, or both on the project or Veteran caused by words, acts, and conduct [Beeler Barney] to believe that Veteran would pay [Beeler Barney] any amounts actually owing

[Beeler Barney]. Therefore, [Beeler Barney's] action is timely. Beeler Barney Compl. [DE-1] ¶ 12. Although this allegation is by no means a model of clarity, nothing on the face of this statement or anywhere else in Beeler Barney's complaint indicates that the action was filed more than one year since Beeler Barney completed the work on the project. Thus, the facts necessary to ...


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