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American Builders & Contractors Supply Co. Inc. v. Precision Roofing and Consulting, LLC

United States District Court, M.D. Alabama, Northern Division

August 9, 2017

AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC., d/b/a ABC SUPPLY CO. INC., Plaintiff,
v.
PRECISION ROOFING AND CONSULTING, LLC d/b/a PRECISION ROOFING, INC., and MICHAEL S. DUNN, Defendants.

          MEMORANDUM OPINION AND ORDER

          W. HAROLD ALBRITTON, SENIOR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This cause is before the court on a Motion to Dismiss Defendant Precision Roofing and Consulting, LLC's Counterclaim Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Doc. #25), filed by the Plaintiff, American Builders & Contractors Supply Co., Inc. (“ABC”).

         ABC filed a Complaint bringing claims against the Defendant arising out of a construction contract with the Defendants for installation of a roof at ABC's Montgomery, Alabama facility. Defendant Precision Roofing and Consulting, LLC counterclaimed, bringing counterclaims against ABC for breach of express warranty (Count I), breach of implied warranties (Count II), unjust enrichment (Count III), and breach of the contract for roof installation at the Montgomery, Alabama facility (Count IV). ABC has moved to dismiss all four counterclaims.

         For reasons to be discussed, the Motion to Dismiss is due to be granted as to counterclaim count IV and the remaining counterclaim counts are due to be stayed.

         II. STANDARDS FOR MOTION TO DISMISS

         A Rule 12(b)(1) motion challenges the district court's subject matter jurisdiction and takes one of two forms: a “facial attack" or a “factual attack." A “facial attack" on the complaint requires the court to assess whether the plaintiff has alleged a sufficient basis for subject matter jurisdiction, while a “factual attack" challenges the existence of subject matter jurisdiction based on matters outside the pleadings. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). The burden of proof on a Rule 12(b)(1) motion is on the party averring jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942).

         In the context of a Rule 12(b)(6) motion, the court accepts the factual allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and construes the pleading in the pleaders' favor, Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by a two-prong approach: one, the court is not bound to accept conclusory statements of the elements of a cause of action and, two, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a pleading need not contain “detailed factual allegations, " but instead must contain “only enough facts to state a claim to relief that is plausible on its face." Id. at 570. The factual allegations “must be enough to raise a right to relief above the speculative level." Id. at 555.

         III. FACTS

         The allegations relevant to the counterclaim counts brought by Precision Roofing and Consulting, LLC (“Precision”) are as follows:

Precision is a company engaged in the business of installing and maintaining commercial and industrial roofs. Precision alleges in its counterclaim that ABC distributed and sold roofing material called thermoplastic polyolefin (“TPO”), which Precision ordered from ABC and installed as roofs at hundreds of locations throughout its territory. Precision alleges that ABC warranted that the products would be free of defects for at least 15 years. Beginning in 2011, Precision began to receive reports from customers about defects in roofs installed using ABC's roofing material. Precision alleges that the roofing material was not designed or manufactured consistent with the heat and humidity present in the southeastern United States. Precision began to set-off funds due to ABC. Beginning in October of 2016, ABC withheld payment to Precision of funds due for installation of a roof at a facility in Montgomery, Alabama.
On February 17, 2017, ABC filed the Complaint in the instant case bringing claims against Precision arising from the roof installation at the Montgomery, Alabama facility.
On March 28, 2017, Precision filed a Complaint in the Superior Court of Gwinnett County, Georgia. In that Complaint, Precision brought claims against ABC, Carlisle Construction Materials, LLC; Carlisle Companies, Inc.; Carlisle Syntec, Inc. and Versico, LLC. Counts I through IV were brought against the Carlisle Defendants. Counts V through VII were brought against all Defendants, and Count VIII is brought only against ABC. The claims against ABC in the Georgia case are for breach of express warranty, breach of implied warranty under Georgia law, unjust enrichment, and breach of contract.
On April 17, 2017, Precision counterclaimed in this case, bringing counterclaim counts against ABC for breach of express warranty, breach of implied warranties under Alabama and Georgia law, unjust enrichment, and breach of the contract.

         IV. ...


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