United States District Court, E.D. North Carolina, Southern Division
C. Dever III United States District Judge.
April 11, 2019, B & B Crane Service, LLC ("B & B
Crane" or "plaintiff') filed a complaint in
Brunswick County Superior Court alleging breach of contract,
negligence, and declaratory judgment claims against Dragados
USA, Inc. ("Dragados") and "John Doe"
[D.E. 1-1]. On May 15, 2019, Dragados removed the action to
this court [D.E. 1]. On July 22, 2019, B & B Crane
amended its complaint, adding Thomas Michael Keyes
("Keyes"; collectively, "defendants") as
a defendant [D.E. 18]. On July 26, 2019, Dragados and Keyes
moved to dismiss B & B Crane's amended complaint for
failure to state a claim and for judgment on the pleadings
[D.E. 22] and filed a memorandum in support [D.E. 23]. On the
same date, Dragados and Keyes answered the amended complaint
[D.E. 24]. On August 15, 2019, B & B Crane responded in
opposition [D.E. 25]. On August 29, 2019, Dragados and Keyes
replied [D.E. 26]. As explained below, the court grants in
part and denies in part defendants' motion to dismiss.
B Crane is a North Carolina limited liability company. See
Am. Compl. [D.E. 18] ¶ 1. Dragados is a foreign business
entity that does business in North Carolina. See Id.
¶ 2. Don "Buck" Moore ("Moore"),
Matthew Levey ("Levey"), and Keyes were
Dragados's agents or managers. See Id. ¶
& B Crane alleges that "John Doe" was "the
employee and agent of Dragados who was designated by Keyes to
serve as the flag or signal person for the job task to be
performed by B & B [Crane] pursuant to its contract with
Dragados." Id. ¶ 5.
February 27, 2018, Dragados requested a quote from B & B
Crane for leasing a crane, a qualified operator, pile hammer
driver, leads, and other equipment for a construction project
on an interstate highway in Durham, North Carolina. See
Id. ¶ 6. Moore and Bryan Powell
("Powell"), who worked for B&B Crane, then
negotiated a second quote. See Id. ¶ 7.
Following negotiations, Moore provided information to B &
B Crane concerning Dragados's desired pile hammer
specifications and pile weights in order to enable B & B
Crane to ensure that the crane's lifting capacity would
meet industry safety standards. See Id. On June 4,
2018, B & B Crane sent Dragados a second quote for a 42S
Diesel Pile Hammer and submitted the weight and calculated
lift capacity of the crane to the North Carolina Department
of Transportation, as required by law. See
Id. ¶ 8. B & B Crane determined the
appropriate calculations and obtained the necessary permits
based on the information that Dragados provided about the
project. See Id. ¶ 9.
11, 2018, defendants provided the specific weights and
dimensions of the job-site requirements to B & B Crane so
that it could calculate whether defendants' project needs
were within the capacity of the crane that B & B Crane
would use. See Id. ¶ 10. On June 12, 2018,
Dragados requested the final quote. See Id. ¶
11. The final quote provided that B & B Crane would
provide a crane and operator and that Dragados would prove a
pile hammer and leads. See id. Thus, under the
final quote, B & B Crane would furnish a crane,
an operator, a truck and extendable trailer, and the
personnel needed to assemble, disassemble, and transport the
crane at the job-site. See Id. ¶ 12. Dragados
would furnish a signal person, a hammer, and leads. See
Id. B & B Crane alleges that Dragados agreed to
select as a signal person only someone "trained,
qualified, or certified in accordance with the applicable
safety practices [and customs] applicable to the operation of
a crane," including Occupational Safety and Health
Administration ("OSHA") regulations. Id.
a safety meeting before the project, Keyes warned the team
that there was a risk that the leads could become tangled
with the rigging during the project. See Id. ¶
15. B & B Crane alleges that OSHA regulations authorize
only the signal person to give signals to the crane operator
during the operation of a crane unless an emergency situation
arises. See Id. ¶ 16.
18 and 19, 2018, B & B Crane transported and assembled a
crane at the job-site to perform the project. See
Id. ¶ 18. B & B Crane alleges that Dragados
elected not to include any certified riggers and signal
persons, but instead to use its own personnel. See
Id. ¶ 19. Thus, although the crane operator
worked for B & B Crane, B & B Crane alleges that
Dragados's signal person was solely responsible for
monitoring the operation of the pile driving apparatus and to
observe the cables in case an emergency arose. See
Id. On June 18, 2018, Dragados personnel told B
& B Crane's crane operator not to do anything unless
instructed to do so by Dragados's appointed signal
person. See Id. ¶ 20.
B Crane alleges that, during the project, "John
Doe"-the person whom Dragados chose as a signal
person-negligently failed to maintain a visual line of sight
to ensure that the diesel pile hammer "was free and not
subject to improper operation" or "hung up within
the mechanism of the pile driving hammer apparatus."
Id. ¶ 21. Thus, during a lift, the cables
became tangled and B & B Crane's crane suffered
extensive damage. See Id. ¶¶ 21-22.
Although B & B Crane offered to use a substitute crane,
Dragados rejected that offer. See Id. ¶ 23. The
crane was out of service until it was repaired several months
later. See Id. ¶24. The total cost of the
repairs and down time was $235, 804.88. See id.; Ex.
C [D.E. 18-3].
B Crane alleges that the "terms of the work
document" that Keyes signed on June 18, 2018, states
that in the event of damage to the crane, "the Lessee
shall notify Lessor in writing within 48 hours of its
occurrence, specifying the extent and nature of the accident
or damage. The cost of any repair necessary to restore the
equipment to said condition shall by paid by Lessee."
Am. Compl. ¶ 17; see Ex. B [D.E. 18-2] 2. B & B
Crane invoiced Dragados for the cost of the repairs to its
crane, but Dragados has refused to pay those costs. See Am.
Compl. ¶¶ 24-25. B & B Crane now alleges that
defendants are liable for breach of contract and negligence
and seeks damages and declaratory relief. See Id.
motion to dismiss under Rule 12(b)(6) tests the
complaint's legal and factual sufficiency. See
Ashcroft v. Iqbal. 556 U.S. 662, 677-80 (2009); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 554- 63 (2007);
Coleman v. Md. Court of Appeals, 626 F.3d 187, 190
(4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Nemet
Chevrolet Ltd. v. Consumeraffairs.com. Inc., 59l F.3d
250, 255 (4th Cir. 2009): Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)
motion, a pleading "must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Iqbal, SS6 U.S. at 678
(quotation omitted); see Twombly, 550 U.S. at 570;
Giarratano, 521 F.3d at 302. In considering the
motion, the court must construe the facts and reasonable
inferences "in the light most favorable to the
[nonmoving party]." Massey v. Ojaniit, 759 F.3d
343, 352 (4th Cir. 2014) (quotation omitted); see
Clatterbuck v. City of Charlottesville, 708 F.3d
549, 557 (4th Cir. 2013), abrogated on other
grounds by Reed v. Town of Gilbert, 135 S.Ct.
2218 (2015). A court need not accept as true a
complaint's legal conclusions, "unwarranted
inferences, unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see
Iqbal, 556 U.S. at 678-79. Rather, plaintiffs'
allegations must "nudge their claims,"
Twombly, 550 U.S. at 570, beyond the realm of
"mere possibility" into "plausibility."
Iqbal, 556 U.S. at 678-79.
may move for judgment on the pleadings at any time
"[a]fter the pleadings are closed-but early enough not
to delay trial." Fed.R.Civ.P. 12(c). A court should
grant the motion if "the moving party has clearly
established that no material issue of fact remains to be
resolved and the party is entitled to judgment as a matter of
law." Park Univ. Enters, v. Am. Cas. Co. of
Reading, 442 F.3d 1239, 1244 (10th Cir. 2006) (quotation
omitted), abrogated on other grounds by
Magnus. Inc. v. Diamond State Ins. Co., 545
Fed.Appx. 750 (10th Cir. 2013) (unpublished); see
Mayfield v. Nat'l Ass'n for Stock Car Auto
Racing. Inc., 674 F.3d 369, 375 (4th Cir. 2012);
Burbach Broad. Co. of Del. v. Elkins Redio
Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). A court may
consider the pleadings and any materials referenced in or
attached to the pleadings, which are incorporated by
reference. See Fed.R.Civ.P. 10(c); Fayetteville
Inv'rs v. Commercial Builders. Inc., 936
F.2d 1462, 1465 (4th Cir. 1991). A court also may consider
"matters of which a court may take judicial
notice." Tellabs. Inc. v. Makor Issues & Rights.
Ltd., 551 U.S. 308, 322 (2007). The same standard
applies under Rule 12(c) and Rule 12(b)(6). See
Mayfield, 674 F.3d at 375; Burbach Broad. Co.,
278 F.3d at 405-46.
jurisdiction is based on diversity of citizenship, and the
court applies state substantive law and federal procedural
rules. See Erie R.R. v. Tompkins,304 U.S. 64, 78-80
(1938); Dixon v. Edwards,290 F.3d 699, 710 (4th
Cir. 2002). The parties agree that North Carolina law
applies. Accordingly, this court must predict how the Supreme
Court of North Carolina would rule on any disputed state law
issues. See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt
Beverage Co. of S.C.,433 F.3d 365, 369 (4th Cir. 2005).
In doing so, the court must look first to opinions of the
Supreme Court of North Carolina. See id.; Stable
v. CTS Corp.,817 F.3d 96, 100 (4th Cir. 2016). If there
are no governing opinions from that court, this court may
consider the opinions of the North Carolina Court of Appeals,
treatises, and "the practices of other states."
Twin City Fire Ins. Co., 433 F.3d at 369 (quotation
omitted). In predicting how the highest court of a
state would address an issue, this court must "follow
the decision of an intermediate state appellate court unless
there [are] persuasive data that the highest court would
decide differently." Toloczko, 728 F.3d at 398
(quotation omitted); see Hicks v. Feiock, 485 U.S.
624, 630 & n.3 (1988). Moreover, in predicting how the
highest court of a state would address an issue, this court
"should not create or expand a ...