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United States for Use and Benefit of, PBT and JBJ Alliance v. Frankenmuth Mutual Insurance Co.

United States District Court, N.D. Texas, Dallas Division

May 3, 2019

UNITED STATES FOR THE USE AND BENEFIT OF, PBT AND JBJ ALLIANCE, and JBJ RESTORATION LLC Plaintiffs,
v.
FRANKENMUTH MUTUAL INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE.

         Before 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).

         I. BACKGROUND[1]

         This is 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.[2] 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.

         Plaintiffs 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.

         Thus, 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 of Service.

         On 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.

         II. LEGAL STANDARD

         Under 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) (citation omitted)).

         To 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).

         III. ANALYSIS

         In its 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.[3] Doc. 9, Def.'s Mot. to Dismiss, 4-8. The Court now addresses each argument in turn.

         A. 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 Explained.

         Although 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 ...


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