W & W Steel, LLC v. BSC Steel, Inc.
2013 U.S. Dist. LEXIS 66172
| D. Kan. | 2013Background
- BWJV served as general contractor for the Irwin Army Community Hospital project at Fort Riley; W & W Steel performed the steel erection and subcontracted part of its work to Materials Management, Inc. (MMI); MMI contracted with BSC Steel, LLC for steel erection; Liberty Mutual issued a payment bond tied to the BSC-W & W subcontract; the case has multiple counterclaims and third-party claims arising from payment and performance on the project; motions to dismiss were filed by MMI and by W & W and Liberty Mutual, with the court previously denying some motions and reserving on certain counts; the amended pleadings enumerate eleven counts (I–XI) governing alter ego, contract, misrepresentation, quasi-contract, promissory estoppel, payment bonds, and construction acts; the court applies Twombly and related standards to assess plausibility of the claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Alter ego viability (Count I) | BSC alleges MMI is the alter ego of W & W based on control and unity of operation. | MMI and W & W contend BSC failed to plead the traditional alter-ego factors. | Adequate factual allegations plausibly support alter ego; proceed on Count I. |
| Third-party beneficiary claim (Count II) | W & W was intended as a third-party beneficiary under the MMI-BSC subcontract and thus bound by terms. | Third-party beneficiaries cannot be liable or bound to a contract they did not sign; BSC cannot sue W & W on this theory. | Count II dismissed. |
| Negligent misrepresentation (Count IV) | BSC alleges W & W and MMI provided false information about the relationship and the project; Missouri law applies. | MMI contends no actionable misrepresentation by MMI has been pled; arguments lack particularity. | Pleadings allege elements under Missouri law; not dismissed. |
| Quantum meruit/unjust enrichment (Count V) | BSC seeks payment for steel erection work conferred on W & W, implying a promise to pay. | W & W argues lack of allegation that W & W failed to pay others or that BSC expected payment from W & W. | Claim sufficiently alleged; may require later summary judgment evaluation. |
| Promissory estoppel (Count VI) | Alternative theory to recover where contract may be unenforceable or disputed; election of remedies issues reserved. | Oral promises are too vague to form a valid contract for estoppel. | Promissory estoppel adequately stated; deny in part. |
Key Cases Cited
- Dean Operations, Inc. v. One Seventy Assocs., 257 Kan. 676 (1995) (alter ego factors and piercing corporate veil guidance in Kansas)
- Peter’s Clothiers, Inc. v. National Guardian Secs. Corp., 994 F. Supp. 1343 (D. Kan. 1998) (third-party beneficiaries and contract defenses against obligations)
- Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112 (Mo. 2010) (negligent misrepresentation elements in Missouri law)
- Haz-Mat Response, Inc. v. Certified Waste Services, Ltd., 259 Kan. 166 (1996) (quasi-contract/improper enrichment framework)
- State v. Moler, 269 Kan. 362 (2000) (ejusdem generis canon in statutory construction)