United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
the court is Cross-claim Defendant Design Build Concepts,
Inc.'s Motion to Dismiss. (Doc. 57). DBC, a dissolved
Georgia corporation, seeks to have all Plaintiff Alabama
Teachers Credit Union's claims and Defendant Design Build
Concepts/IBT, LLC's cross-claims against DBC dismissed
pursuant to Fed.R.Civ.P. 12(b)(6). DBC argues the claims and
cross-claims are untimely under Georgia law because the
claimants filed them after the applicable statute of
limitations had run. The court agrees with DBC and will GRANT
case involves claims arising from the construction of an
office building in Gadsden, Alabama. Around April 17, 2003,
Plaintiff ATCU and Defendant DBC (a Georgia corporation)
entered into an agreement for DBC to design and construct an
office for ATCU in Gadsden, Alabama. (Docs. 40 at 3; 43 at
20). The project was substantially completed on approximately
March 6, 2006. (Doc. 40 at 3). Sometime after moving into the
building, ATCU discovered moisture intrusion, roof leaks, and
other problems with the building. (Doc. 40 at 4).
31, 2007, IBT purchased certain DBC assets and assumed
certain liabilities. (Docs. 40 at 3; 43 at 21). On or about
August 3, 2007, IBT representatives Jim Givan and Mylle
Mangum represented to ATCU that IBT would continue providing
all services and support in connection with the project.
(Doc. 40 at 4). ATCU requested that DBC and/or IBT evaluate
the leaks and make the proper repairs. (Doc. 40 at 4).
Despite assuring ATCU that it would address the defects,
neither DBC nor IBT ever made those repairs. (Doc. 40 at 4).
ATCU deferred hiring another party to complete the repairs
because the Defendants represented that they would repair the
leaks. (Doc. 40 at 11). DBC dissolved as a Georgia
corporation in February 2010. (Doc. 40 at 4).
alleges DBC and IBT are liable to it for breach of contract;
negligence; fraudulent misrepresentation; breach of warranty;
negligent hiring, training, and supervision; professional
negligence; and negligent performance of warranty obligation.
IBT filed cross-claims against DBC for indemnity and
contribution based on an indemnity provision within those two
companies' asset purchase agreement. DBC then filed a
motion to dismiss all claims, arguing immunity from suit
under the relevant statute of limitations because ATCU and
IBT filed their claims and cross-claims more than five years
after DBC dissolved.
STANDARD OF REVIEW
12(b)(6) motion to dismiss attacks the legal sufficiency of
the complaint. Generally, the Federal Rules of Civil
Procedure require only that the complaint provide
“‘a short and plain statement of the claim'
that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide
the grounds of his entitlement, but Rule 8 generally does not
require “detailed factual allegations.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley, 355 U.S. at 47). It does, however,
“demand[ ] more than an unadorned,
Ashcroft v. Iqbal 556 U.S. 662, 678 (2009).
Pleadings that contain nothing more than “a formulaic
recitation of the elements of a cause of action” do not
meet Rule 8 standards nor do pleadings suffice that are based
merely upon “labels or conclusions” or
“naked assertions” without supporting factual
allegations. Twombly, 550 U.S. at 555, 557.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting and explaining its
decision in Twombly, 550 U.S. at 570). To be
plausible on its face, the claim must contain enough facts
that “allow[ ] the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Although
“[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id.
“Where a complaint pleads facts that are merely
consistent with a defendant's liability, it ‘stops
short of the line between possibility and plausibility of
entitlement to relief.'” Id.
argues that Georgia Code Section 14-2-1407 bars ATCU's
and IBT's claims against it because the parties filed
their claims more than five years after DBC dissolved. DBC,
incorporated in Georgia, correctly asserts that Georgia law
governs whether DBC may be sued after dissolution. A federal
court sitting in diversity determines and applies the choice
of law rule that the forum state applies to a particular
issue. See Grupo Televisa, S.A. v. Telemundo Commc'ns
Grp., Inc., 485 F.3d 1233, 1240 (11th Cir. 2007). And
Alabama courts apply “the law of the state of
incorporation” to determine “whether a remedy
exist[s] against a corporation that ha[s] been
dissolved.” Am. Nonwovens, Inc. v. Non Wovens
Eng'g, S.R.L., 648 So.2d 565, 568 (Ala. 1994). DBC
also correctly states that Georgia law requires claims
against a dissolved Georgia corporation to be brought within
five years after dissolving and publishing notice of its
intent to do so. Ga. Code. Ann. § 14-2-1407(d). As
explained below, the court agrees that DBC properly dissolved
in February 2010 and thus finds the claims filed in 2016
against IBT are untimely under the Georgia statute.
Whether DBC dissolved in February 2010
points to evidence in the record to establish that it
properly dissolved in February 2010. To dissolve a Georgia
corporation, the Georgia Code requires a party to file a
notice of intent to dissolve with the Secretary of State,
along with an “undertaking” certifying that the
party has requested publication of a notice of intent to
voluntarily dissolve in a newspaper of general circulation.
See Ga. Code. Ann. §§ 14-2-1403, 1403.1.
IBT attached DBC's Certificate of Notice of Intent to
Dissolve to its cross-claims against DBC (doc. 43-11 at 5),
as well as a copy of DBC's Certificate of Dissolution,
issued by the Georgia Secretary of State (doc. 43-11 at 6).
DBC attached to its reply brief in support of its motion to
dismiss a copy of the newspaper publication of its intent to
voluntarily dissolve that satisfies the requirements of
Section 14-2-1407(b). (Doc. 70-1 at 2-3).
these documents are in the record, IBT argues the court may
not consider them without converting DBC's motion to
dismiss into one for summary judgment. The court disagrees.
While the court generally may not consider matters outside
the pleadings on a motion to dismiss, the court may consider
documents central to plaintiff's claim, documents
incorporated into the complaint by reference, as well as
matters of which the court may take judicial notice. See
Allen v. USAA Cas. Ins. Co., 790 F.3d 1274, 1278 (2015);
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007); Wright & Miller, Federal
Practice and Procedure § 1357 (3d ed.). District
courts may take judicial notice of matters that are
accessible to the general public and “are not subject
to reasonable dispute because they are capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Bryant v. Avado