United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE
an action to remedy a contractual dispute. The case is before
the Court on the Defendant Bonded Builders Home Warranty
Association of South Carolina Inc.'s motion to dismiss
pro se Plaintiff Ricky Bozeman's complaint. The
Plaintiff asserts four causes of action against the
Defendant: breach of contract (Count I) (Doc. 1, p. 5);
negligence (Count II) (Doc. 1, p. 6); breach of express
warranty claim (Count III) (Doc. 1, p. 6); and breach of
implied warranty of merchantability (Count IV) (Doc. 1, p.
8). The Defendant asks the Court to dismiss Counts II-IV of
the Plaintiff's complaint for failure to state a claim
for which relief can be granted, pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. (Doc. 5, pg. 1). For
the reasons stated below, the Court finds that the
Defendant's motion is due to be granted.
Plaintiff purchased his home in 2012 and entered a ten-year
Express Limited Major Structural Defect Warranty with Bonded
Builders Warranty Group, whom he alleges is the
Defendant's predecessor. (Doc. 1, ¶
In May 2018, the Plaintiff filed a claim with the Defendant
to repair the cracks in his home under the express terms of
the warranty. (Doc. 1, ¶ 13). The Defendant sent a third
party engineering firm to evaluate the home's damage.
(Doc. 1, ¶ 17). The Plaintiff claims that because the
engineering firm did not adhere to the proper protocol when
assessing the damage, his claim was denied. (Doc. 1, ¶
17). The Plaintiff also alleges that because his claim was
not addressed, his property is now uninhabitable and it will
cost him a large sum of money to repair the damage. (Doc. 1,
¶ 15). The Plaintiff asks the Court to make the
Defendant honor the warranty and perform the necessary
repairs. Additionally, he asks the Court to punish the
Defendant for breach of warranty and gross negligence. (Doc.
1, ¶ 19).
Standard of Review
8(a)(2) of the Federal Rules of Civil Procedure mandates that
a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A pleading does not have to include
“detailed factual allegations” in order to
survive. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). However, a complaint cannot simply have “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
defendant can move to dismiss a complaint when he believes it
is deficient. Rule 12(b)(6) allows defendants to request that
the court dismiss a case for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). In order to survive a motion to dismiss, a
plaintiff must “state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at
678, quoting Twombly, 550 U.S. at 570. A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
reviewing a motion to dismiss, the court “accept[s] the
allegations in the complaint as true and construe[s] them in
the light most favorable to the plaintiff.” Hunt v.
Aimco Properties, 814 F.3d 1213, 1221 (11th Cir. 2016).
Additionally, “a pro se complaint,
‘however inartfully pleaded,' must be held to
‘less stringent standards than formal pleadings drafted
by lawyers.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976). While the court may not be as strict
with complaints from pro se complainants, they are
still required “to conform to procedural rules.”
Albra v. Advan, Inc., 490 F.3d
826, 829 (11th Cir. 2007) quoting Loren v. Sasser,
309 F.3d 1296, 1304 (11th Cir. 2002). Additionally, the court
will not “serve as de facto counsel for a
party or…rewrite an otherwise deficient
pleading.” GJR Inv. Inc. v.
Cty. of Escambia, Fla., 132 F.3d
1359, 1369 (11th Cir. 1998) overruled on other grounds by
Randall v. Scott, 610 F.3d 701 (11th Cir.
Count Two - Negligence
Plaintiff alleges in Count II of his complaint that the
Defendant was negligent in performing its contractual
obligations. (Doc. 1, p. 6). He claims that the Defendant
owed him various duties under the warranty, and the Defendant
breached its duty by not performing under the contract. (Doc.
1, ¶¶ 26-30). Subsequently, the Plaintiff claims
the Defendant's conduct was the actual and proximate
cause of his damages. (Doc. 1, ¶ 31). The Defendant
argues that the Plaintiff did not plausibly allege a claim
under the theory of negligence. (Doc. 5, p.3). The Court is
persuaded by the Defendant's contention.
courts have recognized that the “line of distinction
between actions in tort and contract is thin and often
nebulous in many instances.” Hamner v.
Mut. of Omaha Ins. Co., 270 So.2d 87, 90
(Ala. Civ. App. 1972). While it is difficult to make the
distinction in some cases, a basic principle derived from the
courts is “if there is failure or refusal to perform a
promise the action is in contract; if there is a negligent
performance of a contractual duty or negligent breach of a
duty implied by law…the action may be either in
contract or tort.” Id. See also Vines v.
Crescent Transit Co., 85 So.2d 436, 440 (Ala. 1955)
(holding that negligent failure to perform a contract is a
breach of contract, but if performed negligently, the remedy
is in tort.) Stated plainly, if an individual fails to
perform a contractual obligation, the wronged party can find
relief through a breach of contract action, not tort law.
Alabama courts and federal courts applying Alabama law have
repeatedly held there is no cause of action in tort law for
failure to perform under a contract. See
e.g. U.S. Bank Nat'l
Ass'n v. Shepherd, 202 So.3d 302, 314 (Ala.
2015) (finding “the proper avenue for seeking redress
when contractual duties are breached is a breach-of-contract
claim, not a wantonness claim.”); Citizens Bank
& Tr. v. LPS Nat'l Flood LLC,
51 F.Supp.3d 1157, 1170 (N.D. Ala. 2014) (holding that
federal courts sitting in Alabama have consistently found
“that when the duty allegedly breached is the duty
created by the contract itself as opposed to the general duty
of care owed to everyone, the court must treat the claim as a
breach of contract and not as a tort.”)
the Plaintiff is not alleging that the Defendant acted
negligently in the performance of its duties. He is claiming
that the Defendant's failure to act is the basis for the
negligence claim. (Doc. 1, ¶ 30). As stated above,
Alabama courts and federal courts in Alabama have
consistently found that failure to act under a contractual
obligation is a breach of contract, not tort. The Plaintiff
has not alleged any ways in which the Defendant acted
negligently while performing its contractual duties, so there
is no cognizable claim under Count II. Therefore, the
Plaintiff's claim in Count II of his complaint is
Counts III & IV - Express Warranty Claim and Implied