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Covey v. Colonial Pipeline Co.

United States District Court, N.D. Alabama, Southern Division

January 10, 2019

JOHN CHRISTOPHER COVEY, Plaintiff,
v.
COLONIAL PIPELINE COMPANY, et al., Defendants.

          MEMORANDUM OPINION [1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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

         I. Standard of Review

         Rule 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.

         To that 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         As for 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)).

         “The 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).

         II. Background [2]

         On or 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).

         Although 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.).

         Covey 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. (Id.).

         On 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).

         III. Analysis

         In its 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 ...


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