MWCB Rock Rd., LLC v. C&W Facility Servs.
| Decision Date | 19 January 2022 |
| Docket Number | 21-1022-SAC-GEB |
| Court | U.S. District Court — District of Kansas |
| Parties | MWCB ROCK ROAD, LLC, Plaintiff, v. C&W FACILITY SERVICES, INC., Defendant/Third-Party Plaintiff, v. NETAPP, INC., and CROSSLAND CONSTRUCTION, INC., Third-Party Defendants. |
The case comes before the court on NetApp, Inc's (“NetApp's”) motion to dismiss or for judgment on the pleadings, (ECF# 58), and on Crossland Construction, Inc.'s (“Crossland's”) motion to dismiss (ECF# 64). The plaintiff MWCB Rock Road LLC, (“MWCB”) brought this action against C&W Facility Services, Inc. (“C&W”) to recover the damage done to its building at 3718 N. Rock Road Wichita, Kansas (“3718”) by C&W employees who stripped “wiring from equipment and from the electrical service to the building and from electrical panels in the data enter and labs located at the building.” ECF# 9, ¶ 10. MWCB alleges C&W employees then sold the stripped material as scrap and kept the proceeds. Id. at ¶ 11. MWCB also alleges it did not authorize or ratify these actions of C&W's employees. Id. at ¶ 12.
As background, the plaintiff MWCB alleges it purchased 3718 from NetApp with NetApp remaining as a tenant but reducing the size of its tenancy in anticipation of the move to its new location. Id. at ¶ 5. According to C&W, it was engaged by NetApp to perform services pursuant to a Master Business Process Outsourcing Agreement which was later amended and pursuant to related Statements of Work (collectively termed “NetApp Agreement”) at different NetApp locations, including 3718. ECF# 13, ¶ 6, #52, ¶ 9.
MWCB's second amended complaint sets forth two common-law tort claims against C&W. ECF# 9. Count one asserts negligent supervision in that C&W's employees were at 3718 under C&W's supervision and acted within the scope of their employment in stripping the wiring. Count two asserts conversion in that C&W's employees exercised dominion and control over MWCB's property to its exclusion by taking the misappropriated wiring and items. MWCB alleges C&W is liable for its employees' conversion.
In its first amended third-party complaint, C&W alleges the following. Its staff worked at 3718 under NetApp's direction, presence, and supervision through written work orders and verbal instructions. ECF# 52, ¶ 12. During the operation of the NetApp agreement, NetApp sold 3718 to MWCB, and MWCB engaged Crossland as its contractor for work to be done at 3718. Id. at ¶ 15. Around January 2020, NetApp verbally instructed C&W employees to assist the transition of 3718 from NetApp to MWCB and to perform work “at the direction of Crossland as NetApp vacated a portion of the facility.” Id. at ¶ 16. At ¶ 19, C&W alleges:
On information and belief, beginning in February or March 2020, and at the verbal direction of NetApp and Crossland, C&W Services' staff did certain work as instructed by NetApp and Crossland to help Crossland dismantle and remove electrical equipment, conduits, and/or wire from labs located at the facility. Among the work performed in accordance with the verbal direction of NetApp and Crossland, Crossland personnel directed C&W Services' staff to assist Crossland in clearing materials from Labs A and C at 3718 Rock Road. Crossland personnel also authorized the removal of that material from 3718 Rock Road for recycling.
C&W asserts in count one implied indemnity against NetApp and in count two implied indemnity against Crossland. Both counts assert, if MWCB's allegation that the wiring and electrical equipment were removed without its consent is true, then NetApp and Crossland “tortiously directed C&W's Services' staff to remove materials and perform unauthorized work at the facility.” Id. at ¶¶ 26 and 34. If it is found liable on MWCB's claim of damages, C&W asserts it is entitled first to implied contractual indemnity from NetApp and Crossland because their “tortious acts, omissions, and/or negligence in directing C&W” caused MWCB's damages. Id. at ¶¶ 28 and 36. C&W alternatively asserts that if found liable then it's entitled to comparative implied indemnity with damages apportioned by the comparative fault of MWCB, C&W, NetApp, Crossland, and any others. Id. at ¶¶ 29 and 37.
NETAPP'S MOTION TO DISMISS or JUDGMENT ON THE PLEADINGS (ECF# 58).
A Rule 12(b)(6) motion to dismiss for failure to state a claim “must be made before pleading if a responsive pleading is allowed.” Fed.R.Civ.P. 12(b). NetApp has filed its answer to the C&W's first amended third party complaint. ECF# 57. A party waives its right to file a Rule 12(b) motion by filing an answer. Santa Fe Alliance for Public Health and Safety v. City of Santa Fe, New Mexico, 993 F.3d 802, 809 n.3 (10th Cir. 2021), petition for cert. filed, (Oct. 29, 2021). And a Rule 12(c) is premature when the pleadings are not closed because other defendants have filed Rule 12(b) motions and have not filed their answers. Id. Therefore, NetApp's Rule 12(c) motion is premature and will be denied without prejudice. NetApp may refile its motion after Crossland has answered or has been dismissed. See Gorenc v. Klaassen, No. 18-2403-DDC-JPO, 2019 WL 2523566, at *2 (D. Kan. Jun. 19, 2019).
CROSSLAND'S MOTION TO DISMISS (ECF# 64)
“A pleading is required to contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Fed.R.Civ.P. 8(a)(2)). All well-pleaded factual allegations in the complaint are accepted as true and viewed in the light most favoring the plaintiff. Farmer v. Kansas State University, 918 F.3d 1094, 1102 (10th Cir. 2019). But, when the complaint alleges legal conclusions, those allegations are not subject to the same rule of being accepted as true. Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017).
“A complaint cannot survive a motion to dismiss unless it ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Doe v. School District No. 1, Denver, Colorado, 970 F.3d 1300, 1309 (10th Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To be plausible on its face, the complaint's “factual allegations [must] allow the court to ‘draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “In determining the plausibility of a claim, we look to the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard [does not] require a plaintiff to ‘set forth a prima facie case for each element.'” George v. Urban Settlement Services, 833 F.3d 1242, 1247 (10th Cir. 2016) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1192-93 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Allegations “upon information and belief” may be made “so long as the complaint sets forth the factual basis of the belief.” Moore v. Kobach, 359 F.Supp.3d 1029, 1040 (D. Kan. 2019) (quoiting Jackson-Cobb v. Sprint United Management, 173 F.Supp.3d 1139, 1149 (D. Colo. 2016)). Thus, such allegations trigger the question whether they “are supported by specific facts asserted by the Complaint.” Id.
Kansas law on indemnity has been summarized in these terms:
Kansas recognizes three types of indemnity claims: (1) express contractual indemnity; (2) implied contractual indemnity; and (3) comparative implied indemnity. Express contractual indemnity arises where there is a contract of indemnity, such as a hold harmless agreement. Implied contractual indemnity arises when one is compelled to pay what another party ought to pay; generally, when a party without fault is made to pay for a tortious act of another and seeks indemnity from the party at fault. Although this theory has frequent viability in the context of respondeat superior, it is not limited to this context. See, e.g., Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, 666 P.2d 192 (1983). Comparative implied indemnity is an equitable remedy available to a tortfeasor among other tortfeasors, who by settling with the plaintiff or paying a judgment, pays the other tortfeasors' share of liability. Schaefer v. Horizon Building Corp., 26 Kan.App.2d 401, 985 P.2d 723 (1999).
“'It is well settled in Kansas that an indemnity claim does not arise until the indemnitee becomes obligated to pay, whether by judgment or settlement.'” Med James, Inc. v. Barnes, 31 Kan.App.2d 89, 99-100, 61 P.3d 86, 94 (quoting St. Francis Regional Medical v. Critical Care, Inc., 997 F.Supp. 1413, 1433 (D.Kan.1997)), rev. denied, 275 Kan. 965 (2003). A claim for implied contractual indemnity “usually arises when one personally, without fault, is made to pay for a tortious act of another.” Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, 642, 666 P.2d 192 (1983). The Kansas Court of Appeals has held:
...
To continue reading
Request your trial