Mozingo v. Orkin Inc
| Decision Date | 08 March 2011 |
| Docket Number | No.4:10-CV-71,4:10-CV-71 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | JOSEPH C. MOZINGO and wife, CLAIR M. MOZINGO Plaintiffs v. ORKIN, INC, and ORKIN LLC, Defendants. |
This matter is before the court on Defendants Orkin, Inc.'s, and Orkin LLC's ("Orkin") Motion to Dismiss for Failure to State a Claim for Relief [DE-5] pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs Joseph C. Mozingo and wife, Clair M. Mozingo ("Mozingos") have filed a Response in Opposition [DE-8], and Orkin has filed its Reply [DE-11]. This matter is now ripe for disposition.
This action arises out of a complaint filed, on April 30, 2010, by the Mozingos against Orkin in Pitt County Superior Court, in Greenville, North Carolina. Orkin was properly served with the complaint on May 10, 2010. Subsequently, on June 8, 2010, Orkin filed its Notice of Removal1 [DE-1] in this court and attached thereto the Mozingos' state court complaint [DE-1], Ex. 1 and their first set of interrogatories and request for production of documents [DE-1], Ex. 1.
In the complaint filed in Pitt County Superior Court, the Mozingos allege four claims for relief against Orkin: (1) breach of contract; (2) breach of express warranty; (3) negligence; and (4) unfair and deceptive trade practices. The Mozingos demand a jury trial and seek damages2 in excess of $10,000 as to each count, treble damages, attorney's fees and costs. On June 15, 2010, Orkin filed their Motion to Dismiss [DE-5] for Failure to State a Claim for Relief pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
This case centers on a December 2, 1970 retail installment contract ("Orkin Contract") entered into by Orkin and J. Lloyd Allen and wife, Mildred Allen for termite pretreatment and lifetime control of termites for a residence ("House") located on 4485 NC 121, Farmville, NC 27828. [DE-1], Ex. 1, Compl. ¶6. On July 31, 1991, Mildred Allen conveyed the House and assigned the Orkin Contract to the Mozingos.3 [DE-1], Ex. 1, Compl. ¶¶ 7-8.
Pursuant to the Orkin Contract, the House was pretreated in 1970. [DE-1], Ex. 1, Compl. 9. The pretreatment required drilling holes in the ground underneath and around the House and the House's garage base to insert chlorodane, a chemical used to prevent termite infestation. Id. As an obligation under the Orkin Contract, Orkin's representatives would conduct yearly inspections of the House for termites. [DE-1], Ex. 1, Compl. ¶ 11. The inspections would consist of entering the crawl space under the House to inspect for termites and marking thecomers of the House to illustrate that the inspection had been completed. [DE-1], Ex. 1, Compl. ¶15.
The Orkin Contract also provides several guaranties, one of which is central in this case. The "Special Total Protection Lifetime Subterranean Termite Guaranty" in the Orkin Contract provides that:
Subject to the general terms and conditions, Orkin will issue a special total protection lifetime subterranean termite guaranty and, at no extra cost, make such repairs to the structure and contents to remedy any new damage caused by subterranean termites, provided that it is established that said new damage was caused by subterranean termite after the date of initial treatment and that at the time of discovery of the new damage, the damaged areas are infested with live subterranean termites. Orkin will be responsible for such repairs only when made with Orkin approval and under Orkin supervision and control. The purchaser further understands that Orkin's liability for such repairs shall in no event exceed $100,000.00 aggregate loss and is limited to structural and contents damage.
[DE-5], Ex. 1, Orkin Contract (emphasis added). Moreover, the "General Terms and Conditions" provision ("contractual statute of limitations clause") of the Orkin Contract specifies that:
Any claim for breach of any Guaranty shall be made forthwith in writing to said ORKIN EXTERMINATING COMPANY, Inc., 2170 Piedmont Road, Atlanta, Georgia, 30324. No Suit shall lie hereunder unless the provisions of Paragraph 5 have been complied with and unless brought within one (1) year after the making of said written demand.
[DE-5], Ex. 1, Orkin Contract ¶ 4 (emphasis added).
On or about November 16, 2005 and in March 2007, the Mozingos contend that they observed insects in their house and requested that Orkin immediately inspect the House. [DE-1], Ex. 1, Compl. ¶¶ 17, 20. On both occasions, the Mozingos allege, after inspecting the House, that Orkin concluded that the insects observed were not termites. [DE-1], Ex. 1, Compl. ¶¶ 18, 21. In March 2008, the Mozingos allege that they found their entryway into their kitchencovered with flying insects and requested that Orkin inspect the House. [DE-1], Ex. 1, Compl. ¶24. On this occasion, after sending the insects for testing, the Mozingos claim that Orkin's lab concluded the insects to be termites. [DE-1], Ex. 1, Compl. ¶ 23. The Mozingos further allege that an onsite review by Orkin's branch manager found infested areas of termites in the garage and the kitchen areas of the House. [DE-1], Ex. 1, Compl. ¶ 24.
On or about May 1, 2008, the Mozingos contend that they knew that the annual inspections were conducted improperly when they noticed that Orkin did not mark the corners of the House each year or otherwise note that the inspections had been completed. [DE-1], Ex. 1, Compl. ¶16. Moreover, the Mozingos found a termite-infested piece of wood lying free underneath the House. Id. In addition, the Mozingos allege, in a Termite Service Report dated March 27, 2008, that Orkin's representative stated that it appears that Orkin did not drill holes when the House was pretreated in 1970. [DE-1], Ex. 1, Compl. ¶10.
In two letters, dated April 4, 2008, and September 23, 2008, the Mozingos allege that Orkin's branch manager accepted liability on behalf of Orkin for the visible termite damage in the kitchen cabinets and behind the refrigerator. [DE-1], Ex. 1, Compl. ¶25. The Mozingos claim that the structure and contents of the House, which includes the kitchen walls, kitchen floors, and the floor joints underneath the House, sustained termite damage. Id. The Mozingos also contend that they have removed small portions of exterior vinyl siding under the carport and found termite damage. Id.
On or about November 20, 2008, the Mozingos contend that they submitted a claim to Orkin for all damages to the House as a result of termite infestation. [DE-1], Ex. 1, Compl. ¶28.
The Mozingos claim that Orkin "refused and continue to refuse to complete the repairs or to pay for the structural and contents damage to the House." Id.
When a court considers a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in a complaint will be construed in the nonmoving party's favor and treated as true. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, a court is not bound "to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944 (1986).
Moreover, the complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). To survive a motion to dismiss, the factual allegations contained in the complaint "must be enough to raise a right to relief above the speculative level" and have "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
The issue in reviewing the sufficiency of the pleadings in a complaint is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims made. Revene v. Charles County Comm 'rs, 882 F.2d 870, 872 (4th Cir. 1989) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). Dismissal, however, is appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense. See Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996); See generally, 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004) ().
Because a number of documents were attached to Orkin's Motion to Dismiss [DE-5] and the Mozingos' Response in Opposition [DE-8], it is necessary to determine which exhibits are properly before the court and whether a conversion of Orkin's instant motion to motion for summary judgment is appropriate in this matter.
In examining a motion to dismiss for failure to state a claim, the purpose of a 12(b)(6) motion is to test the sufficiency of the complaint, not to decide the merits of the action. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991); Food Lion, Inc. v. Capital Cities/ABC, Inc., 887 F.Supp. 811,813 (M.D.N.C. 1995). Under the plain language of Rule 12(d), a court may choose to exclude from its consideration of the motion to dismiss any matters presented outside of the pleadings. Fed.R.Civ.P. 12(d); Federal Practice and Procedure § 1366 ().
The court may "consider a...
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