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Alabama Teachers Credit Union v. Design Build Concepts Inc.

United States District Court, N.D. Alabama, Middle Division

October 18, 2017

DESIGN BUILD CONCEPTS, INC, et al., Defendants.



         Before 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 the motion.

         I. BACKGROUND

         This 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).

         On July 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).[1]

         ATCU 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.


         A Rule 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, the-defendant-unlawfully-harmed-me accusation.” 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.

         “To 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.


         DBC 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.

         A. Whether DBC dissolved in February 2010

         DBC 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).

         Though 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 ...

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