425 Notre Dame, LLC v. Kolbe & Kolbe Mill Work Co.

• Decision Date: 16 December 2015
• Docket Number: CIVIL ACTION NO: 15-454
• Citation: 151 F.Supp.3d 715
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: 425 Notre Dame, LLC v. Kolbe & Kolbe Mill Work Co., Inc., et al.

151 F.Supp.3d 715

425 Notre Dame, LLC

v.Kolbe & Kolbe Mill Work Co., Inc., et al.

CIVIL ACTION NO: 15-454

United States District Court, E.D. Louisiana.

Signed December 16, 2015

Daniel J. Caruso, Allison Danielle Tassin, Denise C. Puente, Luke P. Larocca, Simon, Peragine, Smith & Redfearn, LLP, New Orleans, LA, for 425 Notre Dame, LLC.

Terrence L. Brennan, Joseph Lee McReynolds, Keith J. Bergeron, Deutsch, Kerrigan & Stiles, LLP, John Gleason Alsobrook, Lance Stephen Ostendorf, Ostendorf, Tate, Barnett & Wells, LLP, New Orleans, LA, for Kolbe & Kolbe Mill Work Co., Inc., et al.

SECTION: “J”(4)

ORDER AND REASONS

CARL J. BARBIER, UNITED STATES DISTRICT JUDGE

Before the Court are two 12(b)(6) Motions to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted (Rec. Doc. 36; Rec. Doc. 42) filed by Third-Party Defendant Landis Construction Co., L.L.C. (“Landis”), two alternative Motions to Stay Pending Arbitration (Rec. Doc. 39; Rec. Doc. 45) filed by Landis, and oppositions thereto filed by Defendants and Third-Party Plaintiffs Kolbe & Kolbe Millwork Co., Inc. (“Kolbe”) (Rec. Doc. 50; Rec. Doc. 53) and Grand Openings, Inc. (“Grand Openings”) (Rec. Doc. 54; Rec. Doc. 57) .

Also before the Court are a Rule 12(b)(6) Motion to Dismiss (Rec. Doc. 48) filed by Third-Party Defendants Southern Steel Fabricators, Inc. and Southern Steel Fabricators, L.L.C. (collectively “Southern Steel”), a Motion to Dismiss Grand Opening, Inc.'s Third Party Complaint (Rec. Doc. 49) filed by Third-Party Defendant McInerney & Associates, Inc. (“McInerney”), and oppositions thereto (Rec. Doc. 55; Rec. Doc. 56) filed by Grand Openings.

Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motions to dismiss filed by Landis, Southern Steel, and McInerney should be GRANTED . Landis' Motion to Stay Pending Arbitration should be DENIED as moot.

FACTS AND PROCEDURAL BACKGROUND

This litigation arises from a construction and renovation project in New Orleans, Louisiana. The owner, 425 Notre Dame, L.L.C. (“Notre Dame”), hired Landis as the general contractor on the project. (Rec. Doc. 36-1, at 1.) The contract between Notre Dame and Landis provided that the buildings were to contain an aluminum window system. Id. at 2. According to Landis, the architect on the project, Rozas Ward Architects, insisted on using windows manufactured by Kolbe. Id.

Landis then entered into a purchase agreement with Grand Openings, a distributor for Kolbe, which provided that Grand Openings would furnish the windows for the project. (Rec. Doc. 1, at 2.) In turn, Grand Openings and Kolbe signed a purchase order, in which Kolbe agreed to manufacture the windows. (See Rec. Doc. 36-1, at 2.) Landis also entered into a contract with Southern Steel, in which Southern Steel agreed to manufacture the window mullions and steel stiffners. (Rec. Doc. 48-1.) McInerney installed the mullions and stiffeners manufactured by Southern Steel, as well as the windows manufactured by Kolbe. (Rec. Doc. 49-1, at 2.)

The windows began leaking after their installation. Id. at 3. Notre Dame hired a consultant to perform water intrusion testing services, and the windows failed the test. Id. Kolbe removed a window unit and tested it at its facility in Wisconsin. Id. Kolbe then attempted to fix the leaking windows by injecting silicone into the corners of each window. Id. at 4. Its corrections were unsuccessful, and the windows continued to leak. Id. Grand Openings and Kolbe declined to manufacture and provide replacement windows. Id.

On February 12, 2015, Notre Dame filed suit against Kolbe and Grand Openings, alleging that Defendants are liable for damages for negligence, for breach of the warranty against redhibitory defects, for breach of the warranty of fitness for ordinary use, and under the Louisiana Products Liability Act (“LPLA”). Id. at 5. On August 17, 2015, Kolbe filed a cross-claim against Grand Openings and a third-party complaint against Landis. (Rec. Doc. 22.) On that same day, Grand Openings filed third-party complaints against Landis, Southern Steel, and McInerney. (Rec. Doc. 24.)

Grand Openings alleged that Southern Steel was liable to it jointly and in solido for any defects in the stiffners and mullions. Grand Openings also alleged that McInerney was liable jointly and in solido for the negligence of its employees in failing to properly install the windows, mullions, and stiffners. Grand Openings and Kolbe both alleged that Landis was required to defend, indemnify, and hold harmless the Third-Party Plaintiffs for the negligence of Landis employees and as a seller or manufacturer under the LPLA.

Landis filed the instant motions on October 13 and October 15. Southern Steel filed its motion on October 19, and McInerney filed its motion on November 17. Kolbe opposed Landis's motions on November 20 (Rec. Doc. 50; Rec. Doc. 53) , and Grand Openings filed its opposition on December 8 (Rec. Doc. 54; Rec. Doc. 55; Rec. Doc. 56; Rec. Doc. 57) . The Court set the motions for oral argument on December 16, 2015.

PARTIES' ARGUMENTS

The motions to dismiss filed by Landis, Southern Steel, and McInerney share the same legal basis. First, the Third-Party Defendants argue that the Louisiana comparative fault scheme applies to the claims asserted against them by the Third-Party Plaintiffs. Under this scheme, Defendants cannot be held liable for the acts, omissions, fault, breaches, or otherwise of any other person. They argue that Notre Dame's claims sound in contract, negligence, and products liability, and the comparative fault doctrine applies to these claims. Because Kolbe and Grand Openings will only be liable for their own negligence, the Third-Party Defendants are not jointly and solidarily liable to the third-party plaintiffs. Without solidary liability, the third-party defendants argue that they cannot be liable for contribution or indemnity. Alternatively, Landis and Southern Steel requested that the actions against it be stayed pending arbitration. The contract signed by Notre Dame and Landis contained a clause that required any disputes between the parties to be decided by arbitration.

In its opposition, Kolbe focuses on its contract claims, arguing that Landis is solidarily liable with it to Notre Dame. Kolbe claims that Landis is liable in redhibition as the co-manufacturer of a defective thing. As such, Landis is deemed to be a seller in bad faith. Kolbe alleges that Landis is a co-manufacturer because it modified Kolbe's windows “by vertically-mulling or fastening together, in the field...three sets of Kolbe windows side-by-side into a final window assembly product that consisted of nine total windows assembled in a rectangular grid configuration....” (Rec. Doc. 50, at 4.) The window assemblies were then installed into the project. Thus, Kolbe contends that it and Landis are solidarily liable, enabling Kolbe to bring a third-party claim against Landis.

Grand Openings filed separate oppositions to the motions filed by Landis, Southern Steel, and McInerney. However, its legal arguments in each motion are the same. In its opposition to Landis' motion, Grand Openings first echoes Kolbe's assertion that Landis was a co-manufacturer of the windows, making it solidarily liable with Kolbe in redhibition. In its oppositions to Southern Steel and McInerney's motions, Grand Openings again claims that these Third-Party Defendants were manufacturers of the windows, and thus they are liable in redhibition. Grand Openings further argues that comparative fault does not apply in contract claims, including redhibition. Finally, Grand Openings argues generally that it, as a mere seller, has no role in the manufacturing of the defective windows. In addition, Grand Openings seems to assert that the Third-Party Defendants were manufacturers under the LPLA, but it does not elaborate on this argument.

LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint (including a third-party 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). The complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Dura Pharm., Inc. v. Broudo , 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). The allegations “must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).

“Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege any set of facts in support of his claim which would entitle him to relief.” Taylor v. Books A Million, Inc. , 296 F.3d 376, 378 (5th Cir.2002) (citing McConathy v. Dr. Pepper/Seven Up Corp. , 131 F.3d 558, 561 (5th Cir.1998) ). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff (or third-party plaintiff) must plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc. , 565 F.3d 228, 232–33 (5th Cir.2009) ; Baker v. Putnal , 75 F.3d 190, 196 (5th Cir.1996). The court is not, however, bound to accept as true legal conclusions couched as factual allegations. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

DISCUSSION

Rule 14 of the Federal Rules of Civil Procedure provides that a “defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.” Fed. R. Civ. P. 14(a)(1). A third-party demand cannot be used to assert that the third-party defendant is also liable to the...