United States District Court, M.D. Alabama, Northern Division
AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC., d/b/a ABC SUPPLY CO. INC., Plaintiff,
PRECISION ROOFING AND CONSULTING, LLC d/b/a PRECISION ROOFING, INC., and MICHAEL S. DUNN, Defendants.
MEMORANDUM OPINION AND ORDER
HAROLD ALBRITTON, SENIOR UNITED STATES DISTRICT JUDGE
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.,
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
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.
STANDARDS FOR MOTION TO DISMISS
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).
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.
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