MTB Servs., Inc. v. Tuckman-Barbee Constr. Co.

Decision Date26 March 2013
Docket NumberCivil Action No. RDB-12-02109
PartiesMTB SERVICES, INC., t/a, a/k/a, f/k/a MY-T-BRITE, INC. Plaintiff, v. TUCKMAN-BARBEE CONSTRUCTION CO., INC., et al., Defendants
CourtU.S. District Court — District of Maryland
MEMORANDUM OPINION

Plaintiff MTB Services, Inc. ("Plaintiff" or "MTB") has brought this negligence and breach of contract action against Defendants Tuckman-Barbee Construction Co., Inc. ("Tuckman-Barbee"), Brand Energy Solutions, LLC ("Brand Energy") and Church Restoration Group, LLC ("CRG") (collectively "Defendants") alleging damage to equipment leased by Plaintiff to Defendant CRG in connection with a construction project involving the restoration of the Naval Academy Chapel in Annapolis, Maryland. Plaintiff initially filed a Complaint in the Circuit Court of Maryland for Anne Arundel County. Subsequently, Defendant Tuckman-Barbee, with the consent of both co-Defendants Brand Energy and CRG, removed this action to this Court on the basis of diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441 and 1446.1 The Complaint alleges claims of negligence/respondeatsuperior against Defendants Tuckman-Barbee and Brand Energy (Counts I & II) as well as claims of breach of contract and negligence/respondeat superior/vicarious liability against Defendant CRG (Count III & Count VI). Additionally, Defendant Tuckman-Barbee has filed cross-claims against its co-Defendants Brand Energy and CRG (ECF Nos. 22 & 23).

Although several motions are presently pending,2 the present decision will only address Defendant CRG's Motion to Dismiss or in the Alternative to Transfer Venue to the United States District Court for the Western District of Pennsylvania (ECF No. 10), Defendant CRG's Motion to Strike Tuckman-Barbee's Surreply (ECF No. 29), and Defendant Tuckman-Barbee's Motion for Leave, Nunc Pro Tunc, to File a Surreply (ECF No. 30). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendant Church Restoration Group, LLC's Motion to Dismiss or in the Alternative to Transfer Venue to the United States District Court for the Western District of Pennsylvania (ECF No. 10) is DENIED. Additionally, Defendant Church Restoration Group, LLC's Motion to Strike Tuckman-Barbee's Surreply (ECF No. 29) is GRANTED and Defendant Tuckman-Barbee Construction Co., Inc.'s Motion for Leave, Nunc Pro Tunc, to File Surreply (ECF No. 30) is DENIED. Accordingly, the Clerk of the Court shall strike Defendant Tuckman-Barbee Construction Co., Inc.'s Surreply (ECF No. 24) from the record.

BACKGROUND

At some time prior to January 12, 2009, the Public Works Department of the United States Naval Academy entered into a contract with Defendant Tuckman-Barbee Construction Co., Inc. ("Tuckman-Barbee") for repairs to the Chapel Interior at the United States Naval Academy in Annapolis ("the Project"). AIA Doc. A401-1997, Standard Form Agreement between Contractor and Subcontractor, ECF No. 28-2. On January 12, 2009, Defendant Tuckman-Barbee, as the general contractor on the Project, entered into a subcontract agreement with co-Defendant Church Restoration Group, LLC ("CRG") for the repairs of the chapel interior. Id. This agreement provides inter alia that "[e]xcept to the extent of a conflict with a specific term or condition contained in the Subcontract Documents, the General Conditions governing this Subcontract shall be the edition of AIA Document A201 . . ." Id. ¶ 1.2. According to the AIA Document A201, Defendants Tuckman-Barbee and CRG agreed that the governing law shall be "the law of the place where the Project is located." AIA Doc. A201-1997, General Conditions of the Contract for Constr., ECF No. 28-3.

CRG in turn entered into sub-subcontract agreements relating to the Project. On January 20, 2009, CRG and co-Defendant Brand Energy Services LLC ("Brand Energy") entered into a subcontract for the erection of temporary scaffolding. CRG-Brand Energy Standard Form of Subcontract Agreement, ECF No. 10-4. CRG also entered into a similar contract with Plaintiff MTB Services, Inc. ("Plaintiff" or "MTB"), doing business as Easy Reach Lifts, on May 27, 2009 for the rental of lifts for the Project. CRG-Easy Reach Standard Form of Subcontract Agreement, ECF No. 10-2. These agreements contain aprovision whereby the parties agree that in the event of a dispute, the "Subcontract . . . shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania, and . . . exclusive jurisdiction and venue of all claims or controversies shall lie in Allegheny County." Id. ¶ 28. Moreover, these agreements include a continuing work agreement provision stating:

Continuing Agreement Covering Future Work. This agreement shall be deemed a continuing agreement between the parties governing any and all future work assignments. In the event that the Contractor orally or in writing authorizes the Subcontractor to perform any other work on this or any other jobsite or project for this or any other owner the terms and provision of this agreement, except for price and scope of work, shall govern unless and except as modified in writing by both parties. The terms and provisions hereing shall automatically apply and constitute the terms and provisons of the contract between the parties whether or not the parties make any reference to this agreement in future work assignments.

Id. ¶ 31. On August 25, 2009, Plaintiff MTB leased construction equipment to CRG, specifically a ReachMaster Falcon FS 95" Lift ("the Lift"), for use on the Project. Pl.'s Compl. ¶ 5, ECF No. 2. Although, the rental agreement is silent as to choice of forum and choice of law, it includes an integration clause whereby CRG and MTB agree that "[t]his Agreement constitutes the entire Agreement between the Customer and the Company. The Customer acknowledges that the Company has made no representation, or oral or written, other than those included in this Agreement." Easy Reach Rental Agreement ¶ 22, ECF No. 17-2.

In the Complaint, Plaintiff alleges that on September 22, 2009, as the Defendants were using the Lift, "it tipped over as it was being transported up scaffolding and into the Naval Academy Chapel," and that it was damaged as a result. Pl.'s Compl. ¶ 6. Plaintiff further alleges that it sustained $216,077.01 in damages. Id. ¶ 7. Accordingly, Plaintiff firstbrought a negligence and breach of contract action against Defendant CRG in the District Court of Johnson County, Kansas, Case No. 10-CV-02929. Docket MTB Services, Inc. v. Church Restoration Group, LLC, Case No. 10-CV-02247-RDR-KGS (D. Kan.), ECF No. 10-5. On April 28, 2010, CRG removed that action to the United States District Court for the District of Kansas on the basis of diversity jurisdiction and filed a Motion to Dismiss for Lack of Jurisdiction and Improper Venue or in the Alternative to Transfer Venue to the United States District Court for the Western District of Pennsylvania.3 Id. On May 26, 2010, Plaintiff MTB filed a Notice of Dismissal Without Prejudice. Id.

Two years later, on May 29, 2012, Plaintiff filed a similar negligence and breach of contract action involving the same allegations against Defendants Tuckman-Barbee, Brand Energy and CRG in the Circuit Court of Maryland for Anne Arundel County, Case No. 12170098. Notice of Removal ¶ 1, ECF No. 1. This action was then removed to this Court, on July 16, 2012, by Defendant Tuckman-Barbee with the consent of both Brand Energy and CRG on the basis of diversity jurisdiction4 pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. Id. However, Defendant CRG later filed a statement indicating that its consent to removal to this Court did not include consent "to the jurisdiction of this Court" nor did it constitute a waiver of "its right to seek further removal to another federal or state court." Consent to Removal of CRG, ECF No. 7. Accordingly, and in light of the forum selection clause in its Subcontract Agreement with Plaintiff MTB, Defendant CRG filed a Motion toDismiss or in the Alternative to Transfer Venue to the United States District Court for the Western District of Pennsylvania (ECF No. 10).

STANDARD OF REVIEW

Defendant Church Restoration Group, LLC ("CRG") seeks to dismiss Plaintiff's action under Rule 12(b)(3) of the Federal Rules of Civil Procedure in light of the forum selection clause in the Subcontract Agreement between it and Plaintiff MTB. The United States Court of Appeals for the Fourth Circuit has held that "a motion to dismiss based on a forum-selection clause should be properly treated under Rule 12(b)(3) as a motion to dismiss on the basis of improper venue." Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006); see also TECH USA, Inc. v. Evans, 592 F. Supp. 2d 852, 855 (D. Md. 2009). This Court has previously noted that under Rule 12(b)(3), "a court is free to look at matters outside of the pleadings, however, the court still must draw all reasonable inferences in the light most favorable to the plaintiff." Costar Realty Information, Inc. v. Field, 612 F. Supp. 2d 660, 672 (D. Md. 2009) (citation omitted). Additionally, where no evidentiary hearing is held with respect to the motion, the plaintiff must only make "a prima facie showing of proper venue in order to survive a motion to dismiss." Aggaro v. MOL Ship Management Co., 675 F.3d 355, 366 (4th Cir. 2012).

Alternatively, Defendant CRG seeks to transfer this action to the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1404(a) which provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). The movant bears the burden of showing that atransfer is in the interest of justice. See Stratagene v. Parsons Behle & Latimer, 315 F. Supp. 2d 765, 771 (D. Md. 2004). A...

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