United States District Court, S.D. California
AMERIPOD, LLC, a New Jersey limited liability company, Plaintiff,
DAVISREED CONSTRUCTION INC., a California corporation, and DOES 1 through 10, Defendant.
ORDER DENYING PLAINTIFF'S MOTION TO DISMISS [Doc.
Marilyn L. Huff, United States District Judge
April 13, 2017, Plaintiff AmeriPOD, LLC
(“Plaintiff”) filed a complaint against Defendant
davisREED Construction, Inc. (“Defendant”),
alleging breach of contract and various related causes of
action. (Doc. No. 1.) On May 22, 2017, Defendant filed an
answer, asserting twelve counterclaims. (Doc. No. 10.) On
June 12, 2017, Plaintiff filed a motion to dismiss ten of
Defendant's counterclaims pursuant to Fed.R.Civ.P.
12(b)(6). (Doc. No. 12.) On June 26, 2017, Defendant filed an
opposition to Plaintiff's motion. (Doc. No. 14.) On July
30, 2017, Plaintiff filed a reply. (Doc. No. 16.) The Court
submitted the motion to dismiss, pursuant to Local Rule
7.1(d)(1), on June 29, 2017. (Doc. No. 15.)
following facts are taken from Defendant's answer and
counterclaims. (Doc. No. 10.) At the motion to dismiss stage,
the Court accepts as true all facts alleged, and draws all
reasonable inferences in favor of the claimant. See
Retail Prop. Trust v. United Bhd. of Carpenters & Joiners
of Am., 768 F.3d 938, 945 (9th Cir. 2014).
is a construction contractor who was engaged to build the
Argyle Hotel in Los Angeles, California (“the
Project”). (Doc. No. 10 at ln. 16:15-18.) Defendant
subsequently engaged Plaintiff as a subcontractor to provide
prefabricated modular bathroom units (“pods”) for
the Project. (Id. at ln. 16:19-17:3.) During the
installation of the pods, Defendant discovered that some of
the shower floors were faulty and leaked. (Id. at
ln. 17:13-18.) Defendant's investigation revealed the
pods were damaged during transport by Plaintiff.
(Id. at ln. 18:4-5.) Defendant notified Plaintiff of
the defects but Plaintiff failed to resolve the issues or
remediate the harm caused by the leaky pods. (Id. at
ln. 17:13-24.) Defendant alleges that Plaintiff subsequently
abandoned the Project and, on February 22, 2017, Defendant
issued a 48-Hour Notice, informing Plaintiff that it was
taking steps to supplement the workforce to address
Plaintiff's abandonment. (Id. at ln. 18:6-15.)
Plaintiff failed to timely respond to the 48-Hour Notice and,
as a result, Defendant terminated Plaintiff from the Project
for cause. (Id. at ln. 18:16-19.) Defendant alleges
that Plaintiff's actions resulted in damage to various
aspects of the Project beyond the pods, including structural
elements. (Id. at ln. 18: 23-27.)
answer, Defendant asserts twelve counterclaims. (Doc. No. 10
at 19-27.) Plaintiff moves to dismiss ten of these
counterclaims pursuant to Federal Rule of Civil Procedure
12(b)(6). (Doc. No. 12.) Plaintiff argues these claims
inappropriately attempt to reframe Defendant's breach of
contract claim and fail to allege sufficient facts. The Court
disagrees. Defendant is entitled to plead alternative
theories of liability and has alleged sufficient facts to
state its various causes of action. As such, the Court denies
the motion to dismiss.
MOTION TO DISMISS STANDARD
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the pleadings and
allows a court to dismiss a complaint if the claimant has
failed to state a claim upon which relief can be granted.
See Conservation Force v. Salazar, 646 F.3d 1240,
1241 (9th Cir. 2011). Federal Rule of Civil Procedure 8(a)(2)
only requires that pleadings contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” The pleading need only “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
complaint will survive a motion to dismiss if it contains
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “A pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Id. (quoting
Twombly, 550 U.S. at 555). “Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557). Accordingly, dismissal
for failure to state a claim is proper where the claim
“lacks a cognizable legal theory or sufficient facts to
support a cognizable legal theory.” Mendiondo v.
Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.
reviewing a Rule 12(b)(6) motion to dismiss, a district court
must accept as true all facts alleged in the complaint, and
draw all reasonable inferences in favor of the claimant.
See Retail Prop. Trust, 768 F.3d at 945. But a court
need not accept “legal conclusions” as true.
Iqbal, 556 U.S. at 678. Further, it is improper for
a court to assume the plaintiff “can prove facts which
it has not alleged or that the defendants have violated the .
. . laws in ways that have not been alleged.”
Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). A court
may consider documents incorporated into the complaint by
reference and items that are proper subjects of judicial
notice. See Coto Settlement v. Eisenberg, 593 F.3d
1031, 1038 (9th Cir. 2010).
A. Promissory Estoppel
argues that Defendant's counterclaim for promissory
estoppel should be dismissed because there is a valid
contract defining the parties' rights as to the subject.
(Doc. No. 12-1 at 9.) Defendant opposes the motion, arguing
that the promissory estoppel claim is properly plead as an
alternative theory of liability given that the parties
dispute various terms of the contract. (Doc. No. 14 at 4.)
pleadings stage, a claimant is free to plead inconsistent
theories of liability. Fed.R.Civ.P. 8(d)(3). These
inconsistent theories may be premised on contradictory
statements of fact so long as the pleader has a legitimate
doubt about the underlying facts. Fed.R.Civ.P. 8(e)(2)
(pleadings are subject to Rule 11 obligations); 5 Wright and
Miller, Federal Practice and Procedure § 1285
(3d ed. 2017) (“A party therefore should not set forth
inconsistent . . . statements in the pleadings unless, after
a reasonable inquiry, the pleader legitimately is in doubt
about the factual background or legal theories supporting the
promissory estoppel claim was properly plead. To prove its
claim of promissory estoppel, Defendant must show (1)
Plaintiff made a clear and unambiguous promise, (2) Defendant
relied on the promise, (3) the reliance was reasonable and
foreseeable, and (4) Defendant was injured by its reliance.
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d
777, 792 (9th Cir. 2012). Defendant has alleged sufficient
facts to establish each element at the pleadings stage.
(See Doc. No. 10 at 19-20.) Defendant alleges that
Plaintiff promised to deliver prefabricated bathroom pods
meeting or exceeding certain requirements, (id.