United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge.
MATTER is before the Court upon Third Party Defendants'
Motion to Dismiss Amended Third-Party Complaint (Doc. No.
22), Third Party Plaintiffs' Response in Opposition to
Third Party Defendants' Motion to Dismiss Amended
Third-Party Complaint (Doc. No. 26), and Third Party
Defendants' Reply to Third Party Plaintiffs' Response
(Doc. No. 27).
action concerns alleged damage to an industrial facility at
1228 Isley Road in Gastonia, North Carolina (the
“Property”), which third party defendants Easco
Hand Tools, Inc. and Apex Tool Group, LLS (collectively the
“Tenants”) leased from the third-party plaintiff
HB Gastonia, LLC (“Landlord”) and used as a
factory for manufacturing hand tools. (Amend. 3d Party Compl.
(Doc. 20), ¶¶ 1, 4-6, 9). Landlord acquired the
Property in 2006, subject to a multi- year, written lease
with Easco. (Doc. 20, ¶¶ 1-5). In 2010, Apex
assumed Easco's obligations under the lease and occupied
the Property until the lease expired on November 30, 2013.
(Doc. 20, ¶ 6).
Paragraph 10(a) of the lease, Tenants agreed to defend and
indemnify Landlord against any claims for damages resulting
from their “use, misuse, occupancy, possession or
unoccupancy” of the Property, as follows:
Tenant shall at all times indemnify Landlord for, defend
Landlord against, and save Landlord harmless from, any
liability, loss cost, injury, damage, or other expense
whatsoever that may occur or be claimed by or with respect to
any person(s) or property on or about the Leased Premises and
resulting directly or indirectly from the use, misuse,
occupancy, possession or unoccupancy of the Leased Premises
(Amend. 3d Party Compl., Ex. 1, (Doc. 20-1), p. 13). Under
Paragraph 8 of the lease, Tenants also agreed to maintain the
Property; keep it in good order and repair; not permit any
waste to occur; and to make all repairs, replacements,
restorations, or renewals necessary to keep the Property in
the same condition as at the commencement of the Lease. (Doc.
20-1., pp. 9-10).
24, 2016, Plaintiff, Gastonia 1228 Investments, LLC
(“Plaintiff'), as successor in interest to the
lender on a loan for the Property, filed this suit against
Third Party Plaintiffs, asserting claims for alleged waste
and damage to the Property. Plaintiff seeks damages for: oil
staining and pooling on the warehouse floors; accumulations
of oil on the ceilings and rafters of buildings; damage to
the masonry, veneers, and siding of the buildings; and damage
to the buildings' HVAC, electrical, natural gas,
plumbing, and fire suppression systems. (Compl. (Doc. 1-1)
¶ 42; Doc. 20, ¶ 11).
denies Plaintiff's allegations, and, in the alternative,
has asserted third-party claims against Tenants. Landlord has
asserted claims against Tenants and American Home Assurance
Co., Tenants' insurance carrier, for (i) express
indemnity as provided under the Lease (Count I); (ii) damage
to the Property (Count II); and (iii) violation of OPHSCA
(Count III). The Tenant Parties filed a motion to dismiss
these claims and this matter is now ripe for disposition.
general rule, pleadings must entail “only ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to ‘give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). This standard
instructs that, when faced with a Rule 12(b)(6) motion to
dismiss, “the court should accept as true all
well-pleaded allegations and should view the complaint in a
light most favorable to the plaintiff.” Mylan Labs,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
Thus, a “complaint may proceed even if it strikes a
savvy judge that actual proof of [the facts alleged] is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). However, these broad requirements still
“demand more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint must state a claim that “raise[s] a right to
relief above the speculative level” and must contain
more than “naked assertion[s] . . . without some
further factual enhancement.” Twombly, 550
U.S. at 555-57.
Count I, II, and III Meet The Plausibility
Fourth Circuit has previously outlined how a district court
should weigh a motion to dismiss for failing to meet the Rule
8 pleading standard and the common mistake of conflating this