United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
A. BAKER UNITED STATES MAGISTRATE JUDGE
Wadley Crushed Stone Company, LLC, sues Defendants, Positive
Step, Inc. d/b/a 1st Quality Equipment Company
(“Positive Step”) and Thomas W. Curley
(“Curley”) for breach of contract and
misrepresentation. (Doc. 46). Before the court is
Defendants' Motion to Dismiss Plaintiff's Third
Amended Complaint (Doc. 49) and Plaintiff's Conditional
Motion for Leave to Amend Complaint (Doc. 53). The matters
have been fully briefed by the parties, and the court heard
argument on September 25, 2018. For the reasons that follow,
the court grants the motion to dismiss (Doc.
49) and grants the motion for leave to amend
matter was removed to this court pursuant to 28 U.S.C.
§§ 1332(a), 1441, and 1446. (Doc. 1). The
jurisdiction of the court is invoked based upon diversity of
citizenship and an amount in controversy in excess of $75,
000. Id. ¶ 6. The parties do not contest
personal jurisdiction or venue, and the court finds
sufficient information of record to support both.
See 28 U.S.C. § 1391.
Background and Statement of Facts
Wadley Crushed Stone (“Wadley”) is an Alabama
corporation doing business as a granite rock quarry. (Doc.
46, ¶¶ 1, 5). Defendant Positive Step is a Georgia
corporation that holds itself out as having experience in the
aggregate business, helping customers increase productivity,
reduce costs, and maintain high production through the
selection of the highest quality new and used equipment.
Id. ¶¶ 2, 7. Defendant Curley is a citizen
of Georgia and the owner of Positive Step. Id.
2012, Defendants contracted to provide Wadley a portable
granite plant to be located on Wadley's property in
Wadley, Alabama. Id. ¶ 9. Wadley advised
Defendants the plant needed to produce 500 tons-per-hour of
merchantable granite rock that consisted of 60% railroad
quality ballast capable of being loaded directly into
railcars at 2000 tons-per-hour. Id. ¶ 10.
of their contract with Wadley, Defendants specified the
equipment and hired engineering consultants to recommend the
layout for the granite quarry and the equipment needed to
meet specified production and loadout requirements.
Id. ¶ 13. The plant was completed and put into
operation in late 2012. Id. ¶ 14. Defendants
represented that the equipment sold to Wadley had a 20-year
useful life. Id. ¶ 15.
installation, the equipment specified in the contract was
found to be incapable of producing the represented production
and loadout capabilities. Id. ¶ 16. Over the
years, Defendants claimed quarry management and operators
were the cause of Wadley's problems, and not any
deficiency in the equipment or design by Positive Step.
Id. ¶ 18. In reliance upon representations by
Defendants that the plant could reach production and loadout
requirements, Wadley purchased additional equipment from
Defendants and delayed replacing the inadequate equipment
originally specified. Id. ¶ 19. Ultimately,
Wadley had to cease using the equipment and layout provided
by Positive Step and replace it with equipment that was
capable of handling the granite mined on its property.
Id. ¶ 20. As a result, Wadley suffered
financial damages due to loss of sales and additional
operating costs. Id. ¶ 21.
initially filed suit against the corporate Defendant on
November 15, 2017, in the Circuit Court for Randolph County,
Alabama. (Doc. 1-1). Positive Step removed the case to this
court, answered and counterclaimed. (Docs. 1, 7). Plaintiffs
filed a First Amended Complaint on December 27, 2017, which
Defendant answered January 11, 2018. (Docs. 10,
The court granted Plaintiff leave to file a second amended
complaint, which Plaintiff filed in May 2018, adding Thomas
Curley as a named Defendant. (Docs. 32, 33). In its Third
Amended Complaint filed June 12, 2018,  Wadley sues
Defendants for breach of contract due to their failure to
provide a portable granite plant that could produce 500
tons-per-hour (Count I) and their failure to design and
provide equipment for a rail ballast loadout system that
could load 2, 000 tons of granite per hour (Count II). (Doc.
46 at 5-7). Additionally, Wadley sues Defendants for
misrepresentation (Count III) as to the amount of granite per
hour that could be produced by the portable granite plant and
the amount of granite that could be loaded per hour into rail
cars. Id. at 7-8.
move to dismiss the Third Amended Complaint arguing Counts I
and II are due to be dismissed because they are barred by the
applicable four-year statute of limitations. (Doc. 49).
Defendants previously raised a statute of limitations defense
in their Answer and Affirmative Defenses. See Docs.
7, 13, 36. Additionally Defendant Curley contends Counts I
and II are due to be dismissed as to him because those Counts
fail to allege any facts indicating that Curley was a party
to the contract. Defendants move to dismiss Count III for
failing to plead the fraud claim with specificity as required
under the federal rules.
Rule of Civil Procedure 8 provides that a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The pleader must allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “[D]etailed factual allegations”
are not required, but mere “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action” are not enough.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a court “accept[s] the allegations in the
complaint as true and constru[es] them in the light most
favorable to the plaintiff.” Hill v. White,
321 F.3d 1334, 1335 (11th Cir. 2003). In considering a motion
to dismiss, the court is ordinarily limited to evaluation of
matters alleged in the operative complaint. In appropriate
cases, the court may also take into account additional
matters presented in support of the motion when those matters
are intrinsic to the claims and not reasonably in dispute. In
this case, the agreement between the parties was included
with the Motion to Dismiss and its terms and status as the
basis for the parties' contract is not disputed. It will
therefore be considered herein.