United States District Court, N.D. Texas, Dallas Division
UNITED STATES FOR THE USE AND BENEFIT OF, PBT AND JBJ ALLIANCE, and JBJ RESTORATION LLC Plaintiffs,
FRANKENMUTH MUTUAL INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE.
the Court is Defendant Frankenmuth Mutual Insurance
Company's (Frankenmuth) Rule 12(b)(6) Motion to Dismiss
Plaintiffs PBT and JBJ Alliance, and JBJ Restoration,
LLC's Amended Complaint (Doc. 5). Doc. 9, Def.'s Mot.
to Dismiss. For the reasons stated, the Court GRANTS
in part and DENIES in part
Frankenmuth's Motion to Dismiss (Doc. 9).
a Miller Act case arising out of a government contract to
install temporary roofs on homes damaged in Florida by
Hurricane Irma. On or about September 18, 2017, Plaintiff PBT
and JBJ Alliance (Alliance) and Plaintiff JBJ Restoration,
LLC (JBJ) entered into a Subcontract with TMV, LLC d/b/a
Triune (Triune), a subcontractor to Enfield Enterprises, Inc.
(Enfield), the prime contractor, to provide labor and
materials to install temporary roofing for FEMA-related work
in Florida. Doc. 5, Am. Compl., ¶ 7; see
Doc. 9-1, Def.'s Mot. to Dismiss, Ex. A, Subcontract
Agreement. Pursuant to the Miller Act, Enfield, as principal,
and Frankenmuth, as surety, executed a payment bond dated
September 15, 2017, binding themselves to the United States,
for the initial penal sum of $5, 000, 000. Doc. 5, Am.
Compl., ¶ 9; see Doc. 1-1, Compl., Ex. A,
Payment Bond, 4-6.
allege that from September 18 through October 21, 2017,
Plaintiffs' crews worked in accordance with the
Subcontract entered into with Triune and performed labor for
a total cost of $177, 815.20. Doc. 5, Am. Compl., ¶ 15.
Plaintiffs allege that the sum of $159, 815.20 is due, owing,
and unpaid under the Subcontract. Id. ¶ 17.
Plaintiffs provided notice and claim for payment under 40
U.S.C. § 3133(b)(2) to Frankenmuth, but Frankenmuth has
failed to pay the amount due pursuant to the payment bond.
Id. ¶ 18.
on October 18, 2018, Alliance brought suit under the Miller
Act, 40 U.S.C. § 3133, against Frankenmuth seeking
payment for the unpaid work provided according to the terms
of the Subcontract with Triune as well as for attorneys'
fees. See generally Doc. 1, Compl. Two months later,
on December 18, 2018, and prior to serving the Original
Complaint on Frankenmuth, Alliance filed an Amended
Complaint, adding JBJ as a plaintiff and adding a claim for
relief under quantum meruit. See generally Doc. 5,
Am. Compl. The Amended Complaint was then served on
Frankenmuth on December 20, 2018. See Doc. 6, Proof
January 25, 2019, Frankenmuth filed this Rule 12(b)(6) Motion
to Dismiss seeking a complete dismissal of Plaintiffs'
Amended Complaint arguing in part that their claims are
barred by the applicable statute of limitations and because
Alliance failed to diligently prosecute its claims. Doc. 9,
Def.'s Mot. to Dismiss, 1-2. Plaintiffs filed their
Response (Doc. 10) and Frankenmuth its Reply (Doc. 12).
Having been fully briefed, the Court addresses the
sufficiency of Plaintiffs' claims.
Rule 8(a)(2) of the Federal Rules of Civil Procedure, 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). Rule 12(b)(6) authorizes
a court to dismiss a plaintiff's complaint for
“failure to state a claim upon which relief can be
granted.” Id. 12(b)(6). In considering a Rule
12(b)(6) motion to dismiss, “[t]he court accepts all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
“The court's review [under 12(b)(6)] is limited to
the complaint, any documents attached to the complaint, and
any documents attached to the motion to dismiss that are
central to the claim and referenced by the
complaint.” Ironshore Europe DAC v. Schiff Hardin,
L.L.P., 912 F.3d 759, 763 (5th Cir. 2019)
(emphasis added) (quoting Lone Star Fund V (U.S.), L.P.
v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)
survive a motion to dismiss, a plaintiff must plead
“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). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“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.” Id. “The
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. When well-pleaded facts fail to achieve this
plausibility standard, “the complaint has alleged-but
it has not shown-that the pleader is entitled to
relief.” Id. at 679 (cleaned up).
Motion to Dismiss, Frankenmuth presents four contested
arguments for why Plaintiffs' claims should be dismissed:
(1) Alliance's claims are barred by the Miller Act's
one-year statute of limitations because it failed to
diligently pursue service of process; (2) JBJ's claims
are also barred by statute of limitations because it did not
bring suit until December 18, 2018, when it joined the
Amended Complaint; (3) JBJ's claims, in addition to being
untimely, fail because it was not a party to the Subcontract
and therefore cannot maintain a Miller Act Claim; and (4)
Plaintiffs cannot recover on a quantum meruit claim because
the Miller Act is the exclusive remedy
available. Doc. 9, Def.'s Mot. to Dismiss, 4-8.
The Court now addresses each argument in turn.
Alliance's Claims Are Not Barred by the One-Year
Statute of Limitations Because Frankenmuth Was
Served Within the Time Provided by the Federal Rules of Civil
Procedure and the Two-Month Delay Is Sufficiently
Frankenmuth concedes that Alliance's Original Complaint
was filed within the Miller Act's one-year statute of
limitations, Frankenmuth argues that Alliance's claims
should still be time-barred because ...