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LLC v. HB Gastonia, LLC

United States District Court, W.D. North Carolina, Charlotte Division

March 14, 2017

GASTONIA 1228 INVESTMENTS, LLC Plaintiff,
v.
HB GASTONIA, LLC, VICTOR P. BALESTRA, NATHAN S. WARD, RICHARD SCHLANDER, JAMES W. HARPEL, SHAUN L. MCGRUDER, Defendants and Third Party Plaintiffs
v.
EASCO HAND TOOLS, INC., APEX TOOL GROUP, LLC, AMERICAN HOME ASSURANCE COMPANY, Third Party Defendants

          ORDER

          Graham C. Mullen United States District Judge.

         THIS 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).

         I. Background

         This 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).

         In 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 by Tenant.

(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).

         On May 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).

         Landlord 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.

         II. Legal Standard

         As a 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, the-defendant-unlawfully-harmed-me accusation.” 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.

         III. Discussion

         a. Count I, II, and III Meet The Plausibility Requirement

         The 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 ...


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