United States District Court, Eastern District of North Carolina, Southern Division
INNOVATIVE METALS COMPANY, INC., the United States of America, ex rel. Plaintiff,
SOUTHWEST SHEET METAL OF NC, LLC; BLUE ROCK STRUCTURES, INC.; WESTFIELD INSURANCE COMPANY; and CHRISTOPHER FREY, Defendants.
LOUISE W. FLANAGAN, United States District Judge
This matter is before the court on the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) by defendants Blue Rock Structures (“Blue Rock”) and Westfield Insurance Company (“Westfield”) (DE 34). Plaintiff responded in opposition, and the time for any reply has expired. In this posture, the issues raised are ripe for ruling. The court also addresses herein issues regarding proof of service on defendants Southwest Sheet M of NC, LLC (“Southwest”) and Christopher Frey (“Frey”).
Plaintiff commenced this Miller Act case on May 20, 2014, asserting the following claims:
1. Breach of contract against defendant Southwest;
2. In the alternative, quantum meruit / unjust enrichment against defendant Southwest and Blue Rock;
3. Enforcement of payment bond claim against Blue Rock and Westfield;
4. Unfair and deceptive trade practices against Southwest and Frey, jointly and severally;
5. Breach of joint check agreement against Blue Rock and Southwest, jointly and severally.
Plaintiff filed affidavits of service on all defendants on July 10, 2014. The clerk noticed on July 11, 2014, a deficiency regarding the affidavits, which deficiency was not corrected on the docket. On July 28, 2014, Blue Rock and Westfield filed an answer, counterclaim, and motion to dismiss the second and third claims in the original complaint.
Plaintiff filed a first amended complaint that same day, asserting again the same claims for relief, with additional exhibits attached. On September 8, 2014, Blue Rock and Westfield again filed an answer, counterclaim, and motion to dismiss the second and third claims in the amended complaint, which motion refers back to exhibits attached to their memorandum in support of their motion to dismiss the original complaint. By text order entered September 23, 2014, the court terminated the motion to dismiss the original complaint by defendants Blue Rock and Westfield.
Plaintiff has not filed proof of service of the amended complaint as to defendants Southwest and Frey, and no response to the amended complaint has been filed by these defendants. Upon the answer, counterclaims, and motion to dismiss by Blue Rock and Westfield, the court entered an initial order regarding planning and scheduling, on September 23, 2014. The court entered a case management order on October 8, 2014, adopting the schedule proposed by plaintiff and defendants Blue Rock and Westfield. Pursuant to the case management order, discovery shall conclude 150 days after the court’s ruling on the instant motion to dismiss, and plaintiff will have 45 days following the court’s order to join additional parties or to otherwise amend the pleadings.
In response to the motion to dismiss, plaintiff indicated its intention to voluntarily dismiss its second claim for quantum meruit/unjust enrichment. The court granted plaintiff’s motion dismiss that claim on November 25, 2014. Accordingly, the instant motion to dismiss only concerns plaintiff’s third ...