United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's motion to amend
complaint (Doc. 32), and Defendant's objection thereto
(Doc. 34). For reasons explained below, the Court finds that
Plaintiff's motion to amend should be denied.
seeks to amend its complaint to add a claim for
“negligent design.” The claim alleges that
Plaintiff was damaged as a direct and proximate cause of the
16. Codega was negligent in the design, testing and
resolution process for the two vessels made the basis of this
action … such that the work fell below the level of
reasonable care, skill and diligence as other similar
situated naval architects/boat designers in the same general
line of practice ordinarily have exercised in like situations
and was negligent in failing to advise Silver Ships of his
concerns about the design criteria for each vessel before
Silver Ships began construction.
(Doc. 32-1, p. 5). The claim simply restates Plaintiff's
“Architectural Mal-practice” claim which this
Court previously dismissed with prejudice. (Docs. 18, 27).
The fact that the claim was dismissed “with
prejudice” in and of itself would militate against any
determination by this Court that the claim was revivable.
See Citibank, N.A. v. Data Lease Fin. Corp., 904
F.2d 1498, 1505 (11th Cir. 1990) (“A dismissal with
prejudice has the effect of a final adjudication on the
merits favorable to defendant and bars future suits brought
by plaintiff upon the same cause of action.”);
Plumberman, Inc. v. Urban Sys. Dev. Corp., 605 F.2d
161, 162 (5th Cir. 1979 (“a dismissal with prejudice at
any stage of a judicial proceeding, normally constitutes a
final judgment on the merits which bars a later suit on the
same cause of action.” citation omitted).
this Court were inclined to reconsider the dismissal with
prejudice, the Court finds that the proposed amendment
is futile. As Defendant points out, the alleged tort arises out
of a contract. The factual allegations of the complaint
offered to support Plaintiff's negligence claim assert
that Plaintiff breached his duty off care as follows:
5. Codega negligently designed the South Hampton vessel such
that it did not meet the purchaser's stability
requirements in that it was not stable at rest. Because of
the negligent design, there was no way to “fix”
the problem by redistributing the weight of the vessel in a
manner that would bring in into conformity with the
purchaser's design criteria ands/or usage criteria.
Codega acknowledged after the fact that he had had concerns
about whether the vessel could be designed to meet the
8. Codega negligently designed the Corps' vessel such
that it did not meet the purchaser's maneuvering and
floatation stability requirements. Codega's own
calculations after the fact bear this out.
Because of the negligent design, there was no way
redistribute the weight of the vessel in a manner that would
bring in into conformity with the Corps' design criteria
ands/or usage criteria.
(Doc. 32-1, pp. 2-3). Plaintiff's allegation is that
Defendant did not design the two vessels in a manner that
would allow the purchaser's design criteria and usage
criteria to be met. The duty Defendant allegedly breached
under the negligence claim is the same duty the complaint
alleges Defendant breached under the contract. The complaint
alleges that Defendant contracted with Plaintiff “to
adequately and properly design two vessels that would be in
full compliance with each customer's specifications and
intended usage requirements.” (Doc. 32-1, ¶ 3).
general rule in Alabama is that the mere failure to perform a
contractual obligation will not sustain an action sounding in
tort. See, e.g., Barber v. Business Prods. Ctr.,
Inc., 677 So.2d 223, 228 (Ala. 1996) (providing that
"a mere failure to perform a contractual obligation is
not a tort"), overruled on other grounds by
White Sands Group, LLC v. PRS II, LLC, 32
So.3d 5 (Ala. 2009); Sims v. Etowah Cnty. Bd. Of
Ed., 337 So.2d 1310, 1313 (Ala. 1976), overruled on
other grounds by Ex parte Hale Cnty. Bd. Of
Educ., 14 So.3d 844 (Ala. 2009).
are recognized exceptions to the rule that failure to perform
under a contract will not give rise to an action in tort.
While “an ordinary breach of contract will not give
rise to a tort, ” “[i]t is possible for a tort to
arise in Alabama out of a breach of a duty implied by or
arising out of a contract.” Brown-Marx Assocs.,
Ltd. v. Emigrant Sav. Bank, 703 F.2d 1361, 1371 (11th
Cir. 1983) (citation omitted). In Brown-Marx the
Court found there was no actionable tort because the claim
alleged a violation of an obligation “plainly set out
in the contract itself.” Id. “The
Brown- Marx panel distinguished between claims for
breach of an obligation expressly set forth in the contract
(which are not actionable in tort under Alabama law) and
claims for breach of a duty implied by or arising out of the
contract (which may be actionable in tort).” Hardy
v. Jim Walter Homes, Inc., 2008 WL 906455, at *14 (S.D.
Ala. April 1, 2008) (citing Brown-Marx, 703 F.2d at
1371). Here, the proposed amended complaint alleges Defendant
was negligent for breaching the duty to do precisely what he
allegedly contracted to do - “to adequately and
properly design two vessels that would be in full compliance
with each customer's specifications and intended usage
requirements.” Plaintiff's allegations confirm that
the alleged tort arose out of the agreed terms of the
contract. Accordingly, the Court finds that Plaintiff cannot
maintain the proposed negligent design claim and that the
proposed amendment would be futile.
motion to amend complaint ...