United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
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.
Factual and Procedural Background
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).
2002, Terminix reinstated the warranty on the Residence.
(Doc. # 10-2). 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. (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).
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).
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.
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).
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).
Standard of Review
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.
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.
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.
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 ...