Alley Sports Bar, LLC v. SimplexGrinnell, LP

• Decision Date: 07 November 2014
• Docket Number: No. 13–CV–6579 EAW.,13–CV–6579 EAW.
• Parties: ALLEY SPORTS BAR, LLC, Plaintiff, v. SIMPLEXGRINNELL, LP, Defendant.
• Court: U.S. District Court — Western District of New York

58 F.Supp.3d 280

ALLEY SPORTS BAR, LLC, Plaintiff

v.SIMPLEXGRINNELL, LP, Defendant.

No. 13–CV–6579 EAW.

United States District Court, W.D. New York.

Signed Nov. 7, 2014.

Timothy D. Boldt, Ernstrom & Dreste, LLP, Rochester, NY, for Plaintiff.

George G. Mackey, Paul A. Sanders, Hiscock & Barclay LLP, Rochester, NY, Kristi Burmesiter, Shook Hardy & Bacon, Kansas City, MO, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

I. INTRODUCTION

On September 17, 2013, Plaintiff Alley Sports Bar, LLC (“Plaintiff”) filed a complaint against Defendant SimplexGrinnell, LP (“Defendant”) in the Supreme Court of Wayne County, New York, alleging the following claims: (1) negligence; (2) gross negligence; (3) breach of fiduciary duty; (4) negligent misrepresentation; and (5) punitive damages. (Dkt. 1–1). Plaintiff claims that Defendant committed these various torts after Defendant's representative failed to properly drain Plaintiff's sprinkler system, causing a significant amount of damage to Plaintiff's bowling alley. (Id. ). On October 23, 2013, Defendant removed the case to this Court pursuant to 28 U.S.C. § 1446, on the basis of diversity jurisdiction. (Dkt. 1). Presently before the Court is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. 7).

Because Plaintiff has sufficiently pled that Defendant owed it a common law duty to perform its repairs to Plaintiff's sprinkler system in a reasonable manner and misrepresented that it had made such repairs, Defendant's motion to dismiss as to Plaintiff's second and fourth causes of action for negligence and gross negligence is denied. Defendant's motion to dismiss as to Plaintiff's remaining claims is granted.

II. BACKGROUND AND PROCEDURAL HISTORY

On February 5, 2013, the dry-pipe sprinkler system at Plaintiff's bowling alley was partially triggered. (Dkt. 1–1 at ¶ 5). The sprinkler system filled with water in anticipation of a fire, but did not discharge the water because there was no fire hazard. (Id. at ¶¶ 6–7). On February 5, 2013, Plaintiff called Defendant, a contractor licensed to maintain and repair sprinkler systems, to service the sprinkler system. (Id. at ¶ 8).

On February 6, 2013, “Ron,” Defendant's representative, reported to the bowling alley to conduct maintenance work on the sprinkler system. (Id. at ¶ 9). Ron returned to the bowling alley on February 7, 2013 to complete the work. (Id. at ¶ 10). Plaintiff claims that Defendant never provided Plaintiff with an estimate or proposed contract to complete the maintenance work. (Id. at ¶ 11). Ron advised Plaintiff that the sprinkler system was drained as requested, and stated that it took approximately 14 hours to complete the work. (Id. at ¶ 13). Plaintiff objected to this time estimate, and verbally negotiated with Ron to reach an agreed work total of eight hours. (Id. at ¶¶ 14–16). Ron presented a form to Plaintiff to sign that stated that Ron worked eight hours to service the sprinkler system. (Id. at ¶¶ 17–18). Plaintiff alleges that it did not realize, nor did Ron inform Plaintiff, that there was a reverse side to the form which included exculpatory language. (Id. at ¶¶ 19, 21, 26).

On February 19, 2013, the sprinkler system pipes burst and water leaked throughout the bowling alley, causing significant property damage. (Id. at ¶ 23). On that same day, Defendant sent a representative named “Mark” to inspect the damage. (Id. at ¶ 4). Plaintiff claims that Mark acknowledged that Defendant was liable for the damage and stated that he would submit a report to that effect. (Id. at ¶ 25). However, Defendant refused to pay for the damages, claiming that Plaintiff had signed a contract exculpating Defendant for Ron's negligent actions. (Id. at ¶ 26). Further, Defendant has since demanded that Plaintiff pay for the services rendered by Ron. (Id. at ¶ 2).

On September 17, 2013, Plaintiff served a complaint filed in the Supreme Court of Wayne County, New York, on Defendant. (Dkt. 1 at ¶ 1). On October 23, 2013, Plaintiff removed the action to this Court on the basis of diversity jurisdiction. (Id. at ¶¶ 4–7). The following day, Defendant filed a motion to dismiss for failure to state a claim. (Dkt. 7, 8).

III. DISCUSSION

A. Standard of Review

“ ‘In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.’ ” Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991) ). A court should consider the motion “accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor.” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotations and citation omitted). To withstand dismissal, a plaintiff must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “ ‘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.’ ” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir.2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff' obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration in original) (internal quotations and citations omitted). Thus, “at a bare minimum, the operative standard requires the plaintiff [to] provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.” Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.2008) (alteration in original) (internal quotations and citations omitted).

B. Contractual vs. Tort Duty

As an initial matter, the parties spent a significant portion of their papers and time at oral argument debating whether the parties had entered into a contract and whether a contractual relationship existed between the parties.¹

With the papers before the Court, there is no contractual relationship to consider. Plaintiff does not allege that a contract existed. In fact, Plaintiff specifically alleges that no contract existed between the parties, and proceeds to state five causes of action based on tort law. (Dkt. 1–1 at ¶ 29); see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007) (“In general, our review is limited to the facts asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.”). Although Plaintiff has attached the document that Defendant alleges is a contract to its complaint, Plaintiff asserts that this document is merely a “form document,” that Plaintiff did not agree to the terms on the reverse side of the “form document,” and that the parties “did not, at any relevant time, enter into a binding contract....” (Dkt. 1–1 at ¶¶ 20–21, 27–29).

Admittedly, in its opposition papers, Plaintiff requests the opportunity to plead a breach of contract action in the alternative, or to stay the present action to permit Plaintiff to file a cross-motion to file an amended complaint. (Dkt. 11 at 20–21). However, Plaintiff' request has not been properly made.² Accordingly, the Court only considers the sufficiency of the complaint as to Plaintiff' allegations of tort claims, independent of any contractual relationship.

C. Negligence/Gross Negligence (Fourth/Second Causes of Action)

Plaintiff alleges that Defendant owed it “a duty to perform its work in a workmanlike and skilled manner.” (Dkt. 1–1 at ¶ 56). According to Plaintiff, Defendant “through its acts and omissions, breached its duty to perform its work in a workmanlike and skilled manner ... [this] constitutes negligence.” (Id. at ¶¶ 57–58). Under its gross negligence claim, Plaintiff alleges that Defendant “performed its work recklessly and with disregard for the consequences of its acts and omissions ... [and] Defendant's reckless acts and omissions in the performance of work on the premises constitutes gross negligence.” (Id. at ¶¶ 45–46).

1. Negligence

Defendant argues that there is no common law duty for it to properly drain Plaintiff's sprinkler system. (Dkt. 8 at 3). Rather, Defendant asserts, Plaintiff is improperly attempting to avoid a limited liability clause in a contract between Plaintiff and Defendant by pleading a cause of action in tort. (Id. at 1–3).³

Plaintiff retorts that this case is not one where a system is purchased or installed and then fails to work properly; rather, this is a case where a specialist advised that he performed work “with full knowledge” that he had not fully drained the system. (Dkt. 11 at 17 (citing Banco Multiple Santa Cruz v. Moreno, 888 F.Supp.2d 356, 374 (E.D.N.Y.2012) (“[A]n act may be negligent if it is done without the competence which a reasonable man in the position of the actor would recognize as necessary to prevent it from creating an unreasonable risk of harm to another....”))).

In order to sufficiently plead a cause of action under a negligence theory, a plaintiff must allege: (1) “that the defendant had a duty of care to act reasonably to protect against foreseeable risks”; (2) “that the defendant breached that duty of care”; and (3) “that plaintiff's injuries were the proximate cause of the breach.” Levine v. Sears Roebuck and Co., Inc., 200 F.Supp.2d 180, 186 (S.D.N.Y.2002).

New York law places a duty on “persons who undertake to make repairs.” Id. at 187. “A...