Faddis Concrete, Inc. v. Brawner Builders, Inc., Civil Action No. ELH-15-3975

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen L. Hollander United States District Judge
PartiesFADDIS CONCRETE, INC., Plaintiff, v. BRAWNER BUILDERS, INC., Defendant.
Docket NumberCivil Action No. ELH-15-3975
Decision Date15 September 2017


Civil Action No. ELH-15-3975


September 15, 2017


Faddis Concrete, Inc. ("Faddis"), a supplier of materials, filed suit against Brawner Builders, Inc. ("Brawner"), a general contractor for the Maryland State Highway Administration ("SHA"). ECF 1.1 The Complaint contains four counts: Breach of Contract (Count I); Breach of Contractual Duties (Count II); Brawner's Interference with Statutory Rights (Count III); and Unjust Enrichment and Imposition of Constructive Trust (erroneously labeled as Count XI, but construed as Count IV).2 Id.

Now pending is Brawner's Motion for Judgment on the Pleadings (ECF 67, "Motion"), which is supported by a copy of the "Purchase Order" between Brawner and Faddis, dated January 24, 2013, and executed by Brawner and Faddis on February 7, 2013. ECF 67-1.3 In the Purchase Order, which I shall designate for convenience as the "Subcontract," Faddis is referred to as the Seller and Brawner is identified as the Buyer. Faddis opposes the Motion (ECF 71,

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"Opposition"), supported by several exhibits. ECF 71-1. Brawner has replied. ECF 73 ("Reply").

Also pending is plaintiff's motion for leave to file a surreply. ECF 74 ("Motion for Surreply"). Brawner opposes the Motion for Surreply (ECF 75) and Faddis has replied. ECF 77.

No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion for Surreply. And, I shall grant the Motion in part and deny it in part.

I. Factual Background4

SHA awarded Brawner a prime contract with respect to the extension of a noise barrier on a portion of southbound I-95 in Maryland (the "Project"). ECF 1, ¶ 5. In connection with the Project, Brawner entered into the Subcontract with Faddis in February 2013 for the purchase of "Noise Wall Panels" and other materials. ECF 67-1 at 1; ECF 1, ¶ 6. Faddis, a SHA-approved supplier of materials (ECF 1, ¶ 6), began fabricating the concrete panels at its plant in Downington, PA. Id. ¶ 7.

On May 2, 2014, during the course of Faddis's performance of the Subcontract, David Coyne, a representative of SHA, sent a letter to Brawner stating that SHA believed Faddis's concrete panels contained "'aggregate from an unapproved source'" and warned that the requisite panel strength could not be verified. Id. ¶ 8.

Faddis asserts that the statements in SHA's letter were false. Id. ¶ 9. As a result of SHA's accusations, SHA halted Faddis's work on the Project. Id. ¶ 10. Moreover, athough SHA

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was informed by both plaintiff and defendant of its error, SHA suspended Faddis's Downington, PA plant from production of any materials for all SHA projects. Id. ¶ 15. Faddis alleges that this suspension made work on the Project more expensive (id. ¶ 16), idled its Downington plant, and rendered the plant unprofitable. Id. ¶ 17. Indeed, Faddis contends that SHA caused "a total disruption" of Faddis's "operation" at that plant. Id. ¶ 18.

Moreover, Faddis complains that during this period SHA notified the Virginia Department of Transportation ("VDOT") and the Pennsylvania Department of Transportation ("PDOT")—entities with which Faddis does business (id. ¶ 20)—of plaintiff's suspension "for quality reasons," and warned them of the alleged quality problems. Id. ¶ 19. As a result, VDOT suspended Faddis's Virginia plant, halted work on projects in Virginia, and barred Faddis from bidding on Virginia contracts. Id. ¶¶ 21, 22. SHA subsequently admitted its error. Id. ¶ 23. Although SHA notified VDOT and PDOT of its error (id. ¶ 26), Faddis suffered damages from the disparagement and loss of business, for which it has not been compensated. Id. ¶ 27-29.

During or shortly after these events, on June 23, 2014, Faddis asked Brawner to "pass through" its claims for damages against SHA. Id. ¶¶ 37-39. As plaintiff explains it, in order for Faddis, as subcontractor, to recover from SHA, the contract owner, the claim had to be initiated by Brawner, the prime contractor, because only Brawner has contractual privity with both sides. Id. ¶¶ 31-36. Moreover, Faddis avers that Brawner was "obligated to pass through all of Faddis' claims . . . ." Id. ¶ 33.

Faddis also gave notice of its claims to SHA directly. Id. ¶ 41; id. at 22. However, SHA informed Faddis that it could only bring a claim against SHA through the prime contractor, Brawner. Id. ¶ 42. But, Brawner refused to submit Faddis's claim to SHA. Id. ¶ 43.

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Faddis also alleges that Brawner owes plaintiff $132,026.94, constituting the unpaid balance under the Subcontract, plus $36,353.00 for unpaid trucking charges. Id. ¶¶ 45-46, 50.

In its Opposition and an accompanying exhibit, Faddis notes that after the Complaint was filed, Brawner sent a letter to SHA on Faddis's behalf. ECF 71 at 15.

Additional facts are included in the Discussion.

II. Motion for Surreply

Local Rule 105.2(a) provides that a party is not permitted to file a surreply without permission of the court. The filing of a surreply "is within the Court's discretion, see Local Rule 105.2(a), but they are generally disfavored." EEOC v. Freeman, 961 F. Supp. 2d 783, 801 (D. Md. 2013), aff'd in part, 778 F.3d 463 (4th Cir. 2015); see also, e.g., Chubb & Son v. C & C Complete Servs., LLC, 919 F. Supp. 2d 666, 679 (D. Md. 2013). A surreply may be permitted when the party seeking to file the surreply "would be unable to contest matters presented to the court for the first time" in the opposing party's reply. Clear Channel Outdoor, Inc. v. Mayor & City Council of Baltimore, 22 F. Supp. 3d 519, 529 (D. Md. 2014) (quotations and citations omitted). However, a surreply is not permitted where the reply is responsive to an issue raised in the opposition. See Khoury v. Meserve, 268 F. Supp. 2d 600, 605-06 (D. Md. 2003). In that posture, there was a full opportunity to present the movant's arguments. Id. at 606.

In its Reply, Brawner has raised several new arguments. ECF 73. Therefore, to the extent Faddis's surreply is responsive to these new arguments, I shall grant the Motion for Surreply and will consider the corresponding parts of Faddis's attached surreply (ECF 74-1).

III. Motion for Judgment: Standard of Review

Defendant has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Under Rule 12(h)(2)(B), a defendant may assert "failure to state a claim upon which relief can be

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granted" in a Rule 12(c) motion. A Rule 12(c) motion "for judgment on the pleadings" may be filed "[a]fter the pleadings are closed," so long as it is "early enough not to delay trial." Fed. R. Civ. P. 12(c). Such a motion is "assessed under the same standard that applies to a Rule 12(b)(6) motion." Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see also McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010).

A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd 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 that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted."

Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). That 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 Fed. R. Civ. P. 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) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ." (citation omitted)); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include "detailed factual allegations" in order to

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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, ___ U.S. ___, 135 S. Ct. 346, 346 (2014) (per curiam).

Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action," it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely." Twombly, 550 U.S. at 556 (internal quotations omitted).

In reviewing a Rule 12(b)(6) motion, a court "must accept as true all of the factual allegations contained in the complaint" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015)...

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