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Sellew v. The Terminix International Co., LP

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

June 4, 2018

BOBBY SELLEW, Plaintiff,



         This case is before the court on Defendants' Motion for Partial Dismissal. (Doc. # 14). In this Motion, Defendants request that the court dismiss all claims based on Terminix's services at Plaintiff's residence prior to 2003, and they request that the court dismiss certain time-barred claims. The parties have fully briefed the Motion for Partial Dismissal (Docs. # 14, 16, 17), and it is ripe for decision. After careful review, and for the reasons explained below, Defendants' Motion is due to be denied.

         I. Factual and Procedural Background

         In 1995, Terminix agreed to provide preconstruction termite treatment for a residence located at 9609 Kourtney Way, Warrior, Alabama 35180 (hereinafter the “Residence”). (Doc. # 10 at ¶¶ 1, 14). Terminix used Dursban TC at the Residence. (Id. at ¶ 23). Dursban TC's label required the user to perform a “final grade treatment” around a house at the end of construction. (Id. at ¶ 24). Plaintiff alleges that no treatment records exist for a final grade treatment in 1995 at the Residence. (Id.). Instead, Terminix's records show that it performed a one-trip treatment, at which it applied 250 gallons of Dursban TC. (Id. at ¶ 27).

         In 2002, Terminix reinstated the warranty on the Residence. (Doc. # 10-2).[1] Plaintiff alleges that Terminix “misrepresented to the prior owner of the [Residence] that they reissued the 1995 warranty and that no additional treatment was necessary.” (Doc. # 10 at ¶ 38). The 2002 contract stated that Terminix bore no responsibility for present or future termite damage to the Residence. (Docs. # 10 at ¶¶ 39-40; 10-2 at 1). Terminix agreed to perform further necessary termite treatments free of charge. (Doc. # 10-2 at 1). Yet, according to Plaintiff, Terminix failed to perform additional treatments in areas of the Residence that were susceptible to termite infestation. (Doc. # 10 at ¶¶ 42-44). Plaintiff purchased the Residence in 2003, and Terminix transferred the 2002 warranty contract to Plaintiff.[2] (Id. at ¶ 50). Terminix failed to inspect Plaintiff's residence for termites in 2005, 2006, 2012, and 2014. (Id.). Moreover, its employees only inspected the Residence's exterior in 2004, 2010, and 2016. (Id. at ¶ 55).

         In March 2013, Plaintiff contacted Terminix and informed them of live termites she discovered in the Residence. (Id. at ¶ 64). In April 2013, a Terminix employee performed a spot treatment that used six gallons of termiticide. (Id. at ¶ 64). According to the Amended Complaint, “Defendants represented to Plaintiff that the faultiness of a properly applied termite barrier treatment caused the infestation and damage with knowledge that they had never properly treated the [Residence] and that the chemical applied in 1995 had worn-off.” (Id. at ¶ 70). Terminix inspected the Residence two more times between 2013 and 2016 and reported no signs of termite activity. (Id. at ¶ 71).

         In March 2016, Plaintiff discovered more live termites and termite damage in the Residence. (Id.). She reported the termite infestation to Terminix. (Id.). A Terminix employee inspected her home and confirmed the infestation, but performed no additional treatment and no further inspection of the Residence. (Id. at ¶ 72). In December 2016, a Terminix employee performed a three-minute inspection of the Residence and reported no signs of termite activity, despite the fact that damaged portions of the Residence were exposed and visible. (Id. at ¶ 73). Moreover, live termites continued to infest the Residence in December 2016. (Id.).

         In January 2017, Plaintiff filed a consumer complaint with the Alabama Department of Agriculture and Industries (“ADAI”). (Id. at ¶ 74). In February 2017, an ADAI inspector examined the Residence and found termite damage in the front wall of the house and the front and left sides of its basement. (Doc. # 10-4 at 1). The inspector observed “remedial drilling” in the brick veneer on the Residence's front wall, but no other evidence of post-construction treatment. (Id.). In March 2017, ADAI directed Terminix to re-evaluate the Residence. (Id. at 2). Thereafter, Terminix applied an additional 182.5 gallons of termiticide at the Residence. (Doc. # 10 at ¶ 76). In October 2017, Plaintiff filed her initial state-court Complaint against Defendants. (See Doc. # 1-1 at 3).

         In her Amended Complaint, Plaintiff raises claims of fraudulent misrepresentation and suppression, negligence, recklessness, negligence per se, negligent hiring, training, and supervision, breach of contract, and unjust enrichment. (See Doc. # 10 at ¶¶ 103-33). Plaintiff also requests equitable relief under the made whole doctrine. (Id. at ¶¶ 134-41). She alleges that it was impossible for her to discover Defendants' wrongdoing more than two years before the initiation of this lawsuit because: (1) she trusted Defendants as experts in termite protection; (2) Defendants never informed her of a termite infestation problem; (3) Defendants promised to protect the Residence from termite infestation; and (4) she lacked reason to suspect the lack of pretreatment until 2016. (Id. at ¶¶ 9-10).

         II. Standard of Review

         The Federal Rules of Civil Procedure require that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, the complaint must include enough facts “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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 and conclusions” or “naked assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

         To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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. A plausible claim for relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.

         In considering a motion to dismiss, a court should “1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 Fed.Appx. 136, 138 (11th Cir. 2011) (quoting Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense . . . to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that all of the well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 570.

         A statute of limitations defense is an affirmative defense, and a plaintiff is not obligated to negate a timeliness defense in his or her complaint. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004), abrogated in part on other grounds by Twombly, 550 U.S. 544. “A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is ...

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