Crete Carrier Corp. v. Sullivan & Sons, Inc.

Decision Date01 February 2022
Docket NumberCivil Action ELH-21-328
CourtU.S. District Court — District of Maryland
PartiesCRETE CARRIER CORP., Plaintiff, v. SULLIVAN & SONS, INC. d/b/a SULLIVAN'S GARAGE Defendant.



Civil Action No. ELH-21-328

United States District Court, D. Maryland

February 1, 2022


Ellen L. Hollander, United States District Judge

This case involves a dispute between a long-haul trucking company, plaintiff Crete Carrier Corp. (“Crete”), and a towing and recovery company, defendant Sullivan & Sons, Inc. d/b/a Sullivan's Garage (“Sullivan”). The dispute is rooted in a single-vehicle accident on Interstate 95 in Harford County, Maryland, involving a 53-foot tractor-trailer (the “Vehicle”) owned by Crete. At the time of the accident on the evening of August 28, 2020, the Vehicle had been carrying a load of cargo (the “Load”). As a result of the accident, the Vehicle could not be driven from the scene, and the Maryland State Police (“MSP”) asked Sullivan to recover the Vehicle.

Sullivan towed the Vehicle as well as the Load to its property, and thereafter sent an invoice (the “Invoice”) to Crete for its services. However, based on the purportedly excessive rate of the Invoice, Crete refused to pay Sullivan. In turn, Sullivan refused to release the Vehicle and the Load to Crete.

There is no dispute that the accident occurred; that Sullivan recovered and towed the Vehicle; and that Crete has refused to pay for the services. Crete has escalated a garden variety billing dispute by launching an eight-count complaint against Sullivan that includes claims for antitrust violations and a violation of the Racketeer Influenced and Corrupt Organizations Act


(“RICO”), 18 U.S.C. §§ 1961, et seq. See ECF 1 (the “Complaint”). In particular, in a suit filed on February 9, 2021, plaintiff alleged claims for replevin (Count I); injunctive relief (Count II); tortious interference with contract (Count III); tortious interference with economic and business relations (Count IV); conversion (Count V); violation of the Sherman Antitrust Act, 15 U.S.C. § 1 (Count VI); a RICO violation (Count VII); and violation of the Maryland Antitrust Act, Md. Code (2021 Repl. Vol.), § 11-204 of the Commercial Law Article (Count VIII). The Complaint is supported by two exhibits, which are docketed at ECF 1-2 and ECF 1-3.[1]

Sullivan answered the Complaint (ECF 6, the “Answer”), asserting numerous defenses.[2]See Id. ⁋⁋ 86-107. And, Sullivan also filed a separate “Counter-Complaint” (ECF 11, “Counterclaim”), asserting claims against Crete for quantum meruit (Count I); “Statutory/Regulatory Contract” (Count II); and “Contract” (Count III). ECF 11. Sullivan seeks compensatory damages in the amount of $500, 000, as well as attorneys' fees, interest, and costs. See ECF 11 at 4, 5, 6. The Counterclaim is supported by one exhibit. See ECF 11-1.

In this Memorandum Opinion, I construe the Counterclaim as a Motion to Amend the Answer to include the Counterclaim (“Motion to Amend”). I also consider Crete's motion to dismiss the Counterclaim (ECF 21), supported by a memorandum of law. ECF 21-1 (collectively, the “Motion to Dismiss”). Sullivan opposes the Motion to Dismiss. See ECF 27. Crete did not reply, and the time to so has expired. See Local Rule 105.2(a).

In addition, I address a motion for contempt (ECF 54, “Contempt Motion”) filed by Sullivan with respect to Crete's alleged failure to comply with the Court's Order of June 30, 2021


(ECF 46). That Order authorized Crete to remove the Vehicle and the Load from Sullivan's property. The Contempt Motion is supported by an exhibit. ECF 54-1. Crete opposes the Contempt Motion (ECF 62), and has submitted several exhibits. See ECF 62-1 through ECF 62-5. Sullivan did not reply and the time do so has expired. See Local Rule 105.2(a).

No hearing is necessary to resolve these matters. See Local Rule 105.6. As noted, I shall construe the Counterclaim as a Motion to Amend the Answer, so as to include the Counterclaim, and, for the reasons that follow, I shall grant it. Moreover, I shall deny the Motion to Dismiss and the Contempt Motion.

I. Factual Background[3]

On August 28, 2020, “an employee and/or agent” of Crete was operating a tractor-trailer owned by Crete, transporting cargo from C.G. Sports in Linden, New Jersey to Variety Wholesale in Henderson, North Carolina. ECF 11, ⁋ 5. While traveling through Maryland, the Vehicle was involved in a single-vehicle accident on Interstate 95 (“I 95”) in Harford County. Id. ⁋ 7. This portion of I 95 is known as the John F. Kennedy Memorial Highway (“Highway”). See John F. KennedyMemorialHighway, Maryland Transp. Auth., (last visited Jan. 20, 2022) (stating that the John F. Kennedy Memorial Highway is “a 50-mile section of I-95 from the northern Baltimore City line to Delaware”).[4] The MSP was “called to the scene to investigate and assist with clearing the scene.” ECF 11, ⁋ 8.


According to Sullivan, the MSP “maintains a list of towing companies [that] are authorized by MSP to perform towing and recovery services at MSP's request, ” for the purposes of “clearing motor vehicle accidents from state highways . . . .” ECF 11, ⁋ 9. Specifically, after the MSP determines that clearing an accident will require towing services, the “MSP selects a towing company from its pre-approved list to perform the necessary . . . services.” Id. When the MSP engages a towing company to perform such services, the resulting tow is referred to as a “‘nonconsensual tow[ ].'” Id.

Sullivan alleges that “it is, and at all times pertinent was, one of the approved Permit Holding towing companies on the MSP list and authorized to perform nonconsensual towing and recovery services at the request and direction of the MSP.” Id. ⁋ 10. “Following the Accident, MSP engaged Sullivan to perform the towing and recovery services related to the Vehicle and the Load.” Id. ⁋ 11.

However, Sullivan also alleges that the “‘nonconsensual tow' at issue became a ‘consensual tow' during the recovery process.'” Id. ⁋ 9 (emphasis omitted). Sullivan asserts: “Crete, through its agent, had conversations with Sullivan during the Recovery process.” Id. ⁋ 12. Through these conversations, Sullivan came to believe that Crete had “give[n] ‘permission'” to Sullivan “to finish the Recovery and store vehicles [sic], cargo and various debris at Sullivan's Garage.” Id. Thus, in Sullivan's view, it “had a verbal contract” with Crete to perform the services in issue. Id. And, “at the request of MSP, and at the request of Crete, ” Sullivan “performed the towing and recovery services following the Accident, ” which “included removing the Vehicles [sic], its cargo, cleanup of debris from the roadway and transportation to Sullivan's tow yard.” Id. ⁋ 13 (underlining in original).


Sullivan subsequently issued Invoice No. 520803422 to Crete in the amount of $211, 455 for the services rendered following the accident. ECF 11, ⁋ 14; see ECF 11-1 (the Invoice).[5]However, Crete refused to pay for the towing and cleanup services that Sullivan provided. ECF 11, ⁋ 15.

II. Motion to Dismiss the Counterclaim: Standard of Review

Crete has challenged certain claims in the Counterclaim by way of a Motion to Dismiss under Rule 12(b)(6). As discussed, infra, Rule 12(b)(6)is also pertinent to the analysis applicable to the Motion to Amend the Answer.

A Rule 12(b)(6) motion tests the legal sufficiency of a complaint or, in this case, a proposed counterclaim. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Services Bd, 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), affd sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant (or a counterdefendant) that, even if the facts alleged by a plaintiff (or counterplaintiff) are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” See Venkatraman v. REI Sys, Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); Ibarra v. United States, 120 F.3d 472, 473 (4th Cir. 1997).

Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). See Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d


321, 325-26 (4th Cir. 2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). The rule provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions'. . . .”); see also Fauconier v. Clarke, 996 F.3d 265, 276 (4th Cir. 2020); Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam). But, mere “‘naked assertions' of wrongdoing” are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)...

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