United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
John Christopher Covey (“Covey” or
“Plaintiff) initiated this action on July 20, 2018,
against Defendants Colonial Pipeline Company (“Colonial
Pipeline”) and L.E. Bell Construction Company, Inc.
(“L.E. Bell, ” and together with the Colonial
Pipeline, the “Defendants”). (Doc. 1). On August
17, 2018, Colonial Pipeline moved to dismiss the complaint
under Fed.R.Civ.P. 12(b)(6). (Doc. 8). Covey responded in
opposition, alternatively moving for leave to amend his
complaint. (Doc. 15). Colonial Pipeline has filed a reply
brief. (Doc. 23). The motion is fully briefed and ripe for
review. For the reasons stated more fully below, Covey's
motion for leave to amend is GRANTED IN
PART, and Colonial Pipeline's motion to dismiss
is DENIED AS MOOT
Standard of Review
12(b)(6), Fed. R. Civ. P., permits dismissal when a complaint
fails to state a claim upon which relief can be granted.
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations and internal quotation marks omitted). A complaint
states a facially plausible claim for relief “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citation
omitted). The complaint must establish “more than a
sheer possibility that a defendant has acted
unlawfully.” Id.; accord Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007) (“Factual
allegations must be enough to raise a right to relief above
the speculative level.”). Ultimately, this inquiry is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
end, under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain “a short and plain statement of
the claim showing the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). Mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action” are insufficient. Iqbal, 556 U.S. at
678. (citations and internal quotation marks omitted).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (citing
Bell Atl. Corp., 550 U.S. at 557).
the motion to amend, the court will “freely
grant” a motion to amend “when justice so
requires.” Fed.R.Civ.P. 15(a)(2). The court's
discretion in deciding whether to grant or deny a motion to
amend, however, is not unlimited. Grayson v. K Mart
Corp., 79 F.3d 1086, 1110 (11th Cir. 1996) (citing
Espey v. Wainwright, 734 F.2d 748 (11th Cir. 1984);
Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594
(5th Cir. 1981)). A district court should allow a plaintiff
to amend unless there is a “substantial countervailing
reason.” Id. Such “substantial
countervailing reasons” include: undue delay, bad faith
or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party, and the futility of the amendment.
Id. (citing Nolin v. Douglas Cnty., 903
F.2d 1546, 1550 (11th Cir. 1990)).
futility threshold is akin to that for a motion to dismiss;
thus, if the amended complaint could not survive Rule
12(b)(6) scrutiny, then the amendment is futile and leave to
amend is properly denied.” B.D. Stephenson Trucking
LLC v. Riverbrooke Capital Partners, LLC, No.
06-0343-WS-M, 2006 WL 2772673, at *6 (S.D. Ala. Sept. 26,
2006) (citing Burger King Corp. v. Weaver, 169 F.3d
1310, 1320 (11th Cir. 1999)); see also Fla. Power &
Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520
(11th Cir. 1996).
about October 31, 2016, Covey was working for Superior Land
Design, a third-party inspection firm hired by Colonial
Pipeline. (Doc. 15-1 at ¶ 2). Covey, a citizen of Texas,
had originally been hired as a certified welding inspector,
but learned upon arrival in Alabama that Colonial Pipeline
wanted him to observe a pipeline excavation at two different
sites and report to Nikky Cobb (“Cobb”), the lead
Colonial Pipeline supervisor. (Doc. 1 at ¶ 1; doc. 15-1
at ¶ 3). On October 31, 2016, Covey observed excavations
at both sites: CR 91 (the “first dig”) and River
Road (the “second dig”). (Id.). Colonial
Pipeline also employed L.E. Bell as a contractor to perform
work on the pipeline. (Doc. 1 at ¶ 7).
Covey had asked Colonial Pipeline, Cobb, and other inspectors
for copies of Colonial Pipeline's procedures for weeks
prior to the job, he only received a copy of the procedures
for excavating and operations from another Superior Land
Design employee on the night of October 30, 2016. (Doc. 15-1
at ¶ 4). Colonial Pipeline also failed to provide line
charts for either location; Covey had requested these from
Cobb, but Cobb said he did not have line charts for any pipes
east of the Mississippi River. (Id. at ¶ 4).
Instead, Cobb told Covey that Colonial Pipeline's project
manager had the line charts and Cobb was communicating with
him via text message. (Id.).
recommended two measures to Colonial Pipeline. First, he
recommended that Colonial Pipeline use the hydrovac procedure
to locate the pipelines. (Id. at ¶ 6). Cobb
informed Covey that Colonial Pipeline did not want to use the
procedure. (Id.). Second, Covey recommended that
Colonial Pipeline employ a “butter bar, ” a plate
placed over the teeth of an excavator bucket to prevent
accidental penetration into the pipe. (Id. at ¶
7). Cobb responded that the butter bar was not required.
October 31, 2016, Cobb directed LE Bell and Covey as to the
manner and method of work on the first dig. (Id. at
¶ 8). Cobb left for lunch prior to work beginning on the
second dig, but called Covey and informed him that it was
okay for the second dig to commence without him.
(Id.). During the second dig, a track hoe operated
by an L.E. Bell employee or agent struck an attachment to the
gas line, igniting gasoline and causing an explosion that
seriously injured Covey. (Doc. 1 at ¶¶ 5, 13; doc.
15-1 at ¶ 10).
motion to dismiss, Colonial Pipeline contends Covey's
complaint is a recitation of legal conclusions, devoid of
facts. (Doc. 8 at 1-2). It reads Covey's complaint as
asserting three claims against it: a negligence/wantonness
claim, a premises liability claim, and a breach of contract
claim based on Covey's status as a third-party
beneficiary. (Id. at 2). In addition to its argument
all three claims are due to be dismissed for lack of factual
support, (id. at 5-7), Colonial Pipeline argues