United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
E. Ott Chief United States Magistrate Judge
April 6, 2018, Plaintiffs Daniel Carr, Christiana Carr and
Patricia A. Cooper filed a complaint in the Circuit Court of
Jefferson County, Alabama, against Defendants Haralson
Termite & Pest Control, Inc. (“Haralson”) and
Joel Mike Clark. (Doc. 1-20). The complaint contains claims
for (1) fraudulent misrepresentation/suppression, including
promissory fraud, (2) negligence, recklessness and negligence
per se, (3) negligent hiring, training, supervision and
retention, and (4) breach of contract. (Id.
¶¶ 50-81). The complaint also purports to state a
claim for “equitable relief pursuant to the ‘made
whole' doctrine.” (Id. ¶ 82-90).
August 27, 2018, Defendants properly removed the complaint to
this court based on diversity
jurisdiction. (Doc. 1). Upon examination of the removal
documents, the court determined Defendants had filed in state
court a partial motion to dismiss contained within their
answer and it had not been decided. (Doc. 1-21). That motion
is now before the court, is fully briefed, (docs. 6, 7, 11),
and is ripe for decision. For the reasons that follow, the
motion is due to be granted, but the court will allow
Plaintiffs the opportunity to amend their fraud claim.
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 is an affirmative defense, and the
burden of proving an affirmative defense is on the defendant.
Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275,
1292 (11th Cir. 2005). A plaintiff is not required to
anticipate and negate an affirmative defense in the
complaint. La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004). A Rule 12(b)(6) motion to
dismiss on statute of limitations grounds may be granted,
however, if it is apparent from the face of the complaint
that the claim is time-barred. Id. at 845-46.
Nonetheless, a motion to dismiss on statute of limitations
grounds should not be granted where resolution depends either
on facts not yet in evidence or on construing factual
ambiguities in the complaint in defendants' favor.
Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1252
(11th Cir. 2003).
STATEMENT OF FACTS
about June 3, 2012, Haralson issued a pre-sale inspection
report on a property located in Trussville, Alabama. (Doc.
1-20 ¶ 10). The report stated that there were signs of
previous subterranean termites, but did not disclose the full
existence of the prior infestation or presence of termites.
(Id.). The report also did not disclose the presence
of wood decaying fungi, wood rot and the presence of wood to
ground contacts conducive to termite infestation.
13, 2012, Haralson performed a “defined zone
treatment” on the property, but the treatment was
deficient. (Id. ¶ 11). Additionally, Haralson
issued a “Wood Destroying Organism Control Service
Agreement” on the property (“termite
bond”). (Id.). Defendants represented the home
was free from any evidence of previous or active infestations
of wood destroying organisms including subterranean termites
and fungus and that the “defined treatment zone”
was performed in accordance with the regulations and the
label. (Id. ¶ 26). Both the treatment and
termite bond fell below standards because of the failure to
note the termite and wood decaying fungi problems.
December 19, 2012, Plaintiffs purchased the property, in
reliance on the pre-sale inspection report performed by
Defendants. (Id. ¶¶ 10, 12). At the
closing, Plaintiffs called Haralson and Clark, who told
Plaintiffs the home did not have any visible termite damage
or activity. (Id. ¶ 12). Plaintiffs discovered
the damage “shortly after moving into the home.”
(Id. ¶ 18). Although Defendants had a duty to
inspect the home on at least an annual basis for new signs of
subterranean termite infestation, Defendants failed to
inspect and identify deficiencies before the expiration of
the termite bond. (Id. ¶ 38).
allege a “consistent and repeated pattern and
practice of the Defendants to fail to make complete, proper
and adequate inspections and to fail to apply immunizations
from termites by following proper service protocol for
termite prevention. . . .” (Id. ¶ 43).
They further allege concealment of “facts in connection
with [Haralson's] inspections and treatments from
Plaintiffs and other similarly situated customers in the face
of a duty to do so based on Defendants' special knowledge
and the ongoing nature of the processional services at
issue.” (Id.). Plaintiffs contend
“Defendants have created a scheme/system which has
encouraged and led to widespread negligence, recklessness,
wantonness, fraud and deception in the rendition of
structural pest control services.” (Id. ¶
46). “Until less than two (2) years ago, ”
Plaintiffs state they were “unaware of the
Defendants' patterns and practices of wrongdoing, and the
schemes mentioned above.” (Id. ¶¶
argue Plaintiffs' fraud and negligence claims are due to
be dismissed pursuant to the statute of limitations. (Doc. 6
at 4-9). Additionally, Defendants argue Plaintiffs have
failed to state a claim sufficient to invoke equity
jurisdiction. (Id. at 9-10). As such, Defendants
contend all claims except Plaintiffs' claim for breach of
contract are due to be dismissed. (Id.). Plaintiffs
argue the statute of limitations should be tolled on their
negligence and fraud claims, and that any decision regarding
the “made whole” equitable claim is not ripe.
(Doc. 7 at 3-9). The court first addresses Plaintiffs'
negligence and fraud claims and then moves to their claim for
Dismissal of negligence and fraud claims under the applicable