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B & B Crane Service, LLC v. Dragados USA, Inc.

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

October 18, 2019

B & B CRANE SERVICE, LLC, Plaintiff,
v.
DRAGADOS USA, INC., et al., Defendants.

          ORDER

          James C. Dever III United States District Judge.

         On 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.

         I.

         B & 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. ¶ 3.[1] B & 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.

         On 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.

         On June 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. ¶ 13.

         During 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.

         On June 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 & 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 & 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. ¶¶ 26-37.

         II.

         A 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.

         A party 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.

         Subject-matter 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).[2] 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 ...


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