3:08-cv-00144 | N.D. Fla. | Jan 22, 2009
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ARDAMAN & ASSOCIATES, INC.,
a Florida corporation,
Plaintiff,
v.
Case No. 3:08cv144/MCR
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, a foreign corporation;
FIDELITY & DEPOSIT COMPANY OF MARYLAND,
a foreign corporation;
FEDERAL INSURANCE COMPANY, a foreign corporation;
LIBERTY MUTUAL INSURANCE COMPANY,
a foreign corporation;
THE INSURANCE CORPORATION OF THE
STATE OF PENNSYLVANIA, a foreign corporation;
SKANSKA USA CIVIL SOUTHEAST, INC.,
f/k/a Tidewater Skanska, Inc., a foreign corporation;
FLATIRON CONSTRUCTORS, INC., a foreign corporation;
TIDEWATER SKANSKA/FLATIRON CONSTRUCTORS,
a joint venture; and
PB AMERICAS, INC.,
f/k/a Parsons Brinckerhoff, Quade & Douglas,
a foreign corporation;
Defendants.
_________________________________/
ORDER
This action alleging breach of a surety bond, breach of contract, and unjust
enrichment arises from a dispute involving services plaintiff Ardaman & Associates, Inc.
(“Ardaman”) performed on the Interstate 10 Escambia Bay Bridge design/build replacement
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project (“the project”) near Pensacola, Florida.1 Defendants Tidewater Skanska/Flatiron
Constructors (“TSF”); Skanska USA Civil Southeast, Inc. (“Skanska”); and Flatiron
Constructors, Inc. (“Flatiron”) (together, “TSFC”), along with Travelers Casualty and Surety
Company of America (“Travelers”); Fidelity & Deposit Company of Maryland (“Fidelity”);
Federal Insurance Company (“Federal”); Liberty Mutual Insurance Company (“Liberty”);
and The Insurance Corporation of the State of Pennsylvania (“ICSP”) (together, “the
sureties”), have moved to dismiss Counts I through X of the complaint pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Additionally, pursuant to Rules 12(e) and
12(g), TSFC moves for a more definite statement as to Counts XIII and XIV. In a separate
motion defendant PB Americas, Inc. (“PB”) moves to dismiss Count XI for failure to state
a claim or, alternatively, demands a more definite statement. In the alternative to either
motion, PB moves pursuant to Rule 12(f) to strike Ardaman's claim for attorneys' fees. For
the reasons given below, the court GRANTS in part and DENIES in part TSFC’s motion;
the court DENIES PB’s motion in its entirety.
Background
Hurricane Ivan struck Northwest Florida in August 2004, severely damaging the
Interstate 10 dual bridges that span Escambia Bay. According to the allegations of the
complaint and information contained in its attachments,2 the Florida Department of
Transportation (“FDOT”) hired TSFC as the design/build prime contractor to replace the
1
Alleging diversity jurisdiction, the defendants removed the instant action to this forum from the
Circuit Court in and for Escambia County Florida. Ardaman ha s no t m oved to rem and, and the court is
satisfied that diversity jurisdiction lies. By o rder dated July 23, 2008, this court stayed discovery in the case
until dispo sition of the p end ing m otions . In light of the insta nt ruling, the court w ill lift the sta y and, b y separate
orde r, enter an initial sc hed uling order.
2 In addressing the m otions to dismiss, the court m ay—an d does h ere to the extent it finds
necessary—consider the exhibits attac hed to the c om plaint. See Thaete r v. P alm Beach C ounty Sheriff's
Office, 449 F.3d 1342" date_filed="2006-05-26" court="11th Cir." case_name="Ronald Thaeter v. Palm Beach Co. Sheriff's Office">449 F.3d 1342, 1352 (11th Cir. 2006 ) (stating that on m otion to dism iss court m ust lim it its
consideration to the p leadings and attached exh ibits); Brooks v. Blue Cross & Blue Shield, Inc., 116 F.3d
1364, 1369 (11th Cir. 1997) (stating that “where the plaintiff refers to certain documents in the complaint and
those docum ents are central to the plaintiff's claim, then the Court may consider the documents part of the
pleading for purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to the motion
to dismiss will not require conversion of the motion into a motion for sum m ary judgm ent.”).See also
Fed.R.Civ.P. 10(c) (stating that “[a] co py of an y written instrum ent wh ich is an exhibit to a pleading is a part
thereof for all purposes.”).
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damaged structures with two new bridges. In April 2005 Travelers, Fidelity, Federal,
Liberty, and ICSP, as sureties, and TSFC, as principal, executed a design/build contract
bond. The bond was not filed in the public records. TSFC subcontracted with PB to
perform design services for the bridge construction project. In June 2005 PB sub-
subcontracted with Ardaman to perform geotechnical engineering and construction
inspection services for the project, including pile installation monitoring. Ardaman alleges
that through an oral agreement it made directly with TSFC during the course of the project
it also performed professional engineering services, including pile driving analyzer tests.
Ardaman asserts that acts and omissions by TSFC, TSFC’s subcontractors, PB, and/or
FDOT or its agents during construction of the bridges caused delays in pile installation.
According to Ardaman, these delays forced it to expend substantially more time, effort, and
money to perform its contractual obligations and substantially increased the volume of work
to be performed on the project. Ardaman asserts that the services it performed for both
PB under the written agreement and for TSFC under the oral agreement were timely and
fully completed but that it has not been paid for certain of these services.
In March 2008 Ardaman filed a fourteen-count complaint in state court.3 Counts I,
III, V, VII, and IX of the complaint are claims for breach of the surety bond against the
individual sureties and TSFC pursuant to § 337.18, Fla. Stat., which governs bonds issued
in connection with the construction of public transportation projects. Counts II, IV, VI, VIII,
and X are identified as claims against the individual sureties and TSFC for breach of
common law bond; these counts are pled on the alternative ground that because the surety
bond was not publicly recorded it is a common law bond. Ardaman also asserts claims in
the alternative for breach of contract and unjust enrichment against PB in Counts XI and
XII, and for breach of oral contract and unjust enrichment against TSFC in Counts XIII and
XIV. As relief, Ardaman seeks damages, as well as interest, costs, and—other than with
respect to Counts XII, XIII, and XIV—attorneys’ fees.
3
Among other exhibits attached to the complaint are copies of the written subcontract between PB
and Ardam an (E x. A); the bo nd e xec uted by TS FC and the sureties (Ex. B); and the Prelim inary Notice to
Co ntrac tor (Ex. C).
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Standards of Review
A federal court sitting in diversity generally applies federal procedural law and the
substantive law of the state in which it sits. Esfeld v. Costa Crociere, S.P.A., 289 F.3d
1300, 1306 (11th Cir. 2002) (applying Erie R.R. v. Tompkins, 304 U.S. 64" date_filed="1938-04-25" court="SCOTUS" case_name="Erie Railroad v. Tompkins">304 U.S. 64, 78, 58 S.Ct.
817, 82 L. Ed. 1188" date_filed="1938-04-25" court="SCOTUS" case_name="Erie Railroad v. Tompkins">82 L.Ed. 1188 (1938)). Accordingly, in its review of Ardaman’s complaint the court
applies federal procedural law and Florida substantive law.
Motion to Dismiss
In deciding a motion to dismiss for failure to state a claim under Fed.R.Civ.P.
12(b)(6), the court should construe the pleadings broadly, accept the material allegations
of the complaint as true, and draw all reasonable inferences in the plaintiff's favor. See
Sheuer v. Rhodes, 416 U.S. 232" date_filed="1974-04-17" court="SCOTUS" case_name="Scheuer v. Rhodes">416 U.S. 232, 236 (1974), abrogated on other grounds, Harlow v.
Fitzgerald, 457 U.S. 800" date_filed="1982-06-24" court="SCOTUS" case_name="Harlow v. Fitzgerald">457 U.S. 800, 815 (1982); Watts v. Florida Intern. University, 495 F.3d 1289" date_filed="2007-08-17" court="11th Cir." case_name="Watts v. Florida International University">495 F.3d 1289,
1295 (11th Cir. 2007). Federal Rule of Civil Procedure 8(a)(2) requires a pleading to
contain a "short and plain statement of the claim" that shows the pleader is entitled to
relief. Fed.R.Civ.P. 8(a)(2). To satisfy the pleading requirements of Rule 8, a complaint
must simply give the defendant fair notice of what the plaintiff's claims are and the grounds
upon which they rest. Swierkiewicz v. Sorema, N.A., 534 U.S. 506" date_filed="2002-02-26" court="SCOTUS" case_name="Swierkiewicz v. Sorema N. A.">534 U.S. 506, 512, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002); Conley v. Gibson, 355 U.S. 41" date_filed="1957-11-18" court="SCOTUS" case_name="Conley v. Gibson">355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957);
Erickson v. Pardus, ___ U.S. ____, 127 S. Ct. 2197" date_filed="2007-06-04" court="SCOTUS" case_name="Erickson v. Pardus">127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per
curiam). The court must determine only whether “the claimant is entitled to offer evidence
to support the claims,” not whether the plaintiff can ultimately prove the facts alleged.
Swierkiewicz, 534 U.S. 506" date_filed="2002-02-26" court="SCOTUS" case_name="Swierkiewicz v. Sorema N. A.">534 U.S. at 511 (quoting Scheuer, 416 U.S. 232" date_filed="1974-04-17" court="SCOTUS" case_name="Scheuer v. Rhodes">416 U.S. at 236); United States v. Baxter
Int'l, Inc., 345 F.3d 866" date_filed="2003-09-15" court="11th Cir." case_name="United States v. Baxter International, Incorporated">345 F.3d 866, 881 (11th Cir. 2003). “[A] formulaic recitation of the elements of
a cause of action will not do.” Bell Atlantic Corp. v. Twombly, ___ U.S. ____, 127 S.Ct.
1955, 1965, 167 L. Ed. 2d 929" date_filed="2007-05-21" court="SCOTUS" case_name="Bell Atlantic Corp. v. Twombly">167 L.Ed.2d 929 (2007). The allegations are sufficient, however, if they ”raise
a right to relief above the speculative level.” Id. In other words, the complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Id. at 1964-65. Thus,
under the Supreme Court’s “most recent formulation of the pleading specificity standard,”
Watts, 495 F.3d 1289" date_filed="2007-08-17" court="11th Cir." case_name="Watts v. Florida International University">495 F.3d at 1295, a complaint must present “‘enough factual matter (taken as true)
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to suggest’ the required element.” Id. (quoting Twombly, 127 S. Ct. 2197" date_filed="2007-06-04" court="SCOTUS" case_name="Erickson v. Pardus">127 S.Ct. at 1965)). Once a claim
has been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 127 S. Ct. 2197" date_filed="2007-06-04" court="SCOTUS" case_name="Erickson v. Pardus">127 S.Ct. at 1969. There is no “probability
requirement at the pleading stage”; rather, the standard “simply calls for enough fact to
raise a reasonable expectation that discovery will reveal evidence of” the necessary
element. Id. at 1965. It is sufficient if the complaint succeeds in “identifying facts that are
suggestive enough to render [the element] plausible.” Id.
Motion for More Definite Statement
The requirements of pleading under the Federal Rules are "liberal," and a litigant
need not "allege a 'specific fact' to cover every element or allege 'with precision' each
element of a claim." Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678" date_filed="2001-06-08" court="11th Cir." case_name="Jane Roe, II v. Aware Woman Center">253 F.3d 678, 683 (11th
Cir. 2001); see also Swierkiewicz, 534 U.S. 506" date_filed="2002-02-26" court="SCOTUS" case_name="Swierkiewicz v. Sorema N. A.">534 U.S. at 514. Nevertheless, “[i]f a pleading to which
a responsive pleading is permitted is so vague or ambiguous that a party cannot
reasonably be required to frame a responsive pleading, the party may move for a more
definite statement before interposing a responsive pleading.” Fed.R.Civ.P.12(e). Even so,
“‘[m]otions for more definite statement are disfavored in light of the liberal discovery
practices.’” New Lenox Industries, Inc. v. Fenton, 510 F. Supp. 2d 893" date_filed="2007-05-03" court="M.D. Fla." case_name="New Lenox Industries, Inc. v. Fenton">510 F.Supp.2d 893, 911 (M.D.Fla. 2007)
(quoting Bazal v. Belford Trucking Company, 442 F. Supp. 1089" date_filed="1977-12-05" court="S.D. Fla." case_name="Bazal v. Belford Trucking Co., Inc.">442 F.Supp. 1089 (S.D.Fla.1977). Indeed,
“a motion for more definite statement is not to be used as a substitute for discovery.” Eye
Care International, Inc. v. Underhill, 92 F. Supp. 2d 1310" date_filed="2000-03-31" court="M.D. Fla." case_name="Eye Care International, Inc. v. Underhill">92 F.Supp.2d 1310, 1316 (M.D.Fla. 2000) (citation
omitted).
Discussion
Counts I, III, V, VII, and IX: Statutory Claims Against the Sureties and TSFC
TSFC and the sureties move for dismissal of Counts I, III, V, VII, and IX on the
ground Ardaman failed to provide them with timely notice of its intent to proceed against
the bond, as provided in § 337.18(1)(c), Fla. Stat.4 The defendants submit that under this
4
This section provides:
(c) A claimant, exc ept a laborer, wh o is no t in privity with the contrac tor
shall, before com m encing or not later than 90 days after com m enc ing to
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subsection Ardaman was required to given them notice no later than ninety days after it
commenced work. Because the Preliminary Notice to Contractor filed by Ardaman states
that Ardaman commenced work February 21, 2005, the notice was due by May 22, 2005.
Ardaman did not, however, provide such notice until April 12, 2007, nearly two years later.
Ardaman responds that any failure to provide timely notice pursuant to § 337.18(1)(c)
should be excused for two reasons: (1) Ardaman was in privity of contract with TSFC and
thus was not required by § 337.18(1)(c) to provide notice; and (2) TSFC failed to file the
bond at issue in this case in the public records, as required by § 337.18(1)(b).5
The parties acknowledge that the authority interpreting § 337.18 is meager; indeed,
there appears to be none directly on point with the issues raised in this case. Ardaman
submits that Florida’s Construction Lien Law, Chapter 713 of the Florida Statutes, provides
guidance in applying § 337.18. Also, the parties apparently agree that the Florida statute
that deals with bonds for the construction or repair of public buildings, § 255.05, Fla. Stat.,
along with the authority interpreting that section, are instructive in interpreting § 337.18.
The court agrees with respect to § 255.05 and thus relies on such authority to the extent
it finds appropriate.6
furnish labor, materials, or supplies for the prosecution of the work, furnish
the contractor with a notice that he or she intends to look to the bond for
prote ction.
Section 3 37.1 8(1)(c), F la. Stat.
5
This section in part provides:
(b) Upon e xec ution o f the c ontra ct, and prior to beginning any work under
the contract, the contracto r shall rec ord in the public records of the cou nty
where the improvem ent is located the payment and performance bond
required under this section . A c laim ant sh all have a right of action against
the contra ctor a nd s urety for the am oun t due him or he r . . . .
Section 3 37.1 8(1)(b), Fla. Stat.
6
As TSFC and the sureties acknowledge, both § 337.18 and § 255.0 5 govern bonds issued in
connection with public works projects, and bo th statutes contain specific requirem ents for iss uin g and
recovering against a surety bond. Additionally, both were ena cted with the purp ose of pro tecting the interests
of contractors, sureties, subcontractors, and the pu blic. See Am erican H om e Assurance Co . v. P laza Ma terials
Corp., 908 So. 2d 3 60, 363 (Fla. 2005). Th e court is therefore persuaded that case law interpreting § 255.05
may be consulted when analyzing the similar, if less often examined, § 337.18. The court nevertheless notes
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The court first considers the issue of privity. The plain language of § 337.18(1)(c)
provides, in relevant part, that a “claimant . . . who is not in privity with the contractor shall
. . . furnish the contractor with a notice that he or she intends to look to the bond for
protection.” § 337.18(1)(c), Fla. Stat. (emphasis added). The court finds Ardaman’s
allegation that it entered into an oral agreement with TSFC is sufficient to show Ardaman
was in privity with TSFC as to the work Ardaman performed under the parties’ oral
agreement. Thus, because the statute only requires claimants who are not in privity with
the contractor to furnish notice, Ardaman need not allege in its complaint that it provided
timely notice to TSFC with respect to that work. Ardaman also suggests that because it
came into privity with TSFC during the course of the project it should be similarly excused
from filing notice as to any other work it performed, specifically the subcontract work it did
for PB. Ardaman submits that although there is no relevant case law discussing this issue,
§ 713.05 of Florida’s Construction Lien Law may properly be “superimposed” on § 337.18.
According to Ardaman, pursuant to § 713.05 a lienor who is not in privity with the owner
at the time work commences but thereafter comes into privity with the owner need not
provide notice as required by 713.06. See § 713.05, Fla. Stat. Applying the same
proposition to § 337.18, Ardaman argues, it should be found to have been in privity with
TSFC for all of the work it performed on the project, including the work it completed for the
subcontractor PB.
The court finds the language of the applicable bond statute to be quite plain and
unambiguous regarding who must file notice and thus it sees no need to resort to the lien
statute as an interpretive aid. Section 337.18(1)(c) clearly requires all claimants, other than
laborers, who are not in privity with the prime contractor to file notice. Ardaman is not a
laborer. And it was not in privity with TSFC for the contract work it performed for PB, as
there is no suggestion by the parties that TSFC assumed any obligation to pay for such
services. See Southern Steel Co. v. Hobbs Const. & Development, Inc., 543 So. 2d 843" date_filed="1989-05-16" court="Fla. Dist. Ct. App." case_name="Southern Steel Co. v. HOBBS CONST. & DEV., INC.">543 So.2d 843
that § 337.18 (f) expressly states that the provisions o f § 25 5.05 do not apply to bonds issues under § 337.18.
The court does no t apply the provisions of § 255 .05 to the bond in this case, howeve r. Rather, it considers
selected legal authority interpreting § 255.05 which, for the rea sons pre viously stated , provides guidance in
the analysis of § 3 37.1 8.
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(Fla. 3rd DCA 1989) (in § 255.05 case, indicating that to find privity between prime
contractor and materials supplier who had contracted with subcontractor required that
prime contractor assumed obligation to pay material supplier). Thus, absent any other
acceptable basis to excuse it, Ardaman was required to file a timely notice of intent to
proceed against the bond for the work it performed on the project under its written contract
with PB. Neither § 337.18(1)(c) nor any other relevant provision of this section to which
Ardaman has pointed contains language relieving claimants, other than laborers, who are
not in privity with the prime contractor of their obligation to provide notice. Accordingly, with
respect to the work it performed for PB, Ardaman’s allegations are not sufficient to show
it complied with or is excused from the notice requirements of § 337.18(1)(c).
The court next considers Ardaman’s contention that TSFC’s failure to record the
surety bond excuses it from complying with § 337.18's notice requirements. Both § 337.18
and § 255.05 mandate that bonds issued pursuant to them must be recorded in the public
records of the county in which the project is located. See § 337.18(1)(b); § 255.05(1)(a).
In this case, the design/build contract bond references the notice and time limitation
provisions set out in § 337.18(1)(c). Additionally, as previously noted, TSFC did not record
the bond in the public records as required by § 337.18(1)(b), and Ardaman did not file its
notice of intent within the ninety-day window prescribed by § 337.18(1)(c).
As the court understands it, Ardaman’s argument is that TSFC and the sureties
should be estopped from attempting to enforce the notice requirements of § 337.18(1)(c)
because the defendants themselves failed to comply with the requirement in § 337.18(1)(b)
that the bond be publicly recorded. The Florida Supreme Court addressed a comparable
issue in American Home Assurance Co. v. Plaza Materials Corp., 908 So. 2d 360" date_filed="2005-07-07" court="Fla." case_name="American Home Assur. v. PLAZA MATERIALS">908 So.2d 360 (Fla.
2005), in which it was presented with the following certified question:
IF A STATUTORY PAYMENT BOND DOES NOT CONTAIN REFERENCE
TO THE NOTICE AND TIME LIMITATION PROVISIONS OF SECTION
255.05(6), ARE THOSE NOTICE AND TIME LIMITATIONS
NEVERTHELESS ENFORCEABLE BY THE SURETY, OR IS THE
CLAIMANT ENTITLED TO RELY UPON THE NOTICE AND TIME
LIMITATIONS APPLICABLE UNDER THE COMMON LAW?
Id. at 361-62.
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The Florida Supreme Court held, in relevant part, that the surety could enforce the
notice and time limitation provisions identified in § 255.05(2)—even if the surety’s payment
bond failed to reference those provisions as required by § 255.05(6)—provided the bond’s
failure to contain the statutorily required information in fact caused the claimant's
noncompliance with the notice and time restrictions. Id. at 369. In its analysis, the court
cited with approval the Fifth District Court of Appeal’s decision in Florida Crushed Stone
Co. v. American Home Assurance Co., 815 So. 2d 715" date_filed="2002-04-25" court="Fla. Dist. Ct. App." case_name="Fla. Crushed Stone Co. v. AMER. HOME ASSUR. COMPANY">815 So.2d 715 (5th DCA 2002), observing that the
lower court’s approach was effective in giving meaning to two apparently conflicting
provisions of § 255.05. Plaza Materials, 908 So.2d at 367. In Florida Crushed Stone the
court held that the defendant surety was entitled to enforce § 255.05(2)'s notice and time
restrictions against the plaintiff even though the bond issued by the defendant did not, as
required by § 255.05(6), reference the restrictions. Florida Crushed Stone, 815 So.2d at
717. In reaching this conclusion the court reasoned that the defendant’s non-compliance
with § 255.05(6) must in fact have caused the plaintiff’s failure to comply with the notice
and time requirements of § 255.05(2) before the defendant should be precluded from
enforcing those requirements. Id.
In Plaza Materials the Florida Supreme Court also criticized Martin Paving v. United
Pacific Insurance Co., 646 So. 2d 268" date_filed="1994-12-02" court="Fla. Dist. Ct. App." case_name="Martin Paving Co. v. United Pacific Ins. Co.">646 So.2d 268 (5th DCA 1994), another Fifth District decision and
one on which Ardaman relies heavily here, for failing to give weight to conflicting provisions
in § 255.05. Plaza Materials also noted that “[i]ronically” Florida Crushed Stone reached
a different result than Martin Paving had on essentially the same facts. Plaza Materials,
908 So.2d at 367. In Martin Paving the court concluded that because § 255.05’s
requirement of recording the bond had not been complied with, the subcontractor should
not be required to follow the statute’s notice requirements. Plaza Materials did not,
however, mention the discussion in Florida Crushed Stone in which the three-member
panel explained its understanding of the holding in Martin Paving. In Florida Crushed
Stone the Fifth District Court of Appeal observed that the holding in Martin Paving
does not mean . . . that in all cases in which the bond fails to provide all
statutorily required information that the [notice and time] provisions [ ]
automatically become inapplicable. This statement was made in recognition
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of the fact that in Martin Paving the failure to record the bond prevented the
claimant from knowing about the bond in order to permit timely compliance.
In other words, it would be unfair to insist on the timely performance by the
claimant when such non-performance was caused by the failure of the bond
to be recorded. This interpretation gives proper weight to all provisions of the
statute and seems far more consistent with the intent of the legislature to
require both disclosure in the bond and timely performance by the claimant.
Florida Crushed Stone, 815 So.2d at 717 (emphasis added).
Ardaman relies on Martin Paving’s unelaborated statement that a subcontractor
should not be required to follow the notice requirements of § 255.05 if the contractor fails
to record the bond. As further explained in Florida Crushed Stone and held in both Florida
Crushed Stone and Plaza Materials, however, more is required before a surety may be
estopped from demanding that a claimant comply with the notice and time restrictions set
out in § 255.05. The claimant must also show that the surety’s failure to comply with the
statutory requirements in fact caused the claimant’s noncompliance. Plaza Materials, 908
So.2d at 369; Florida Crushed Stone, 815 So.2d at 717.
In the instant case this court relies on Plaza Materials’ clearly stated interpretation
of § 255.05 and applies it to the analogous question at issue here involving the time and
notice requirements of § 337.18. So doing, the court concludes that Ardaman’s allegation
that TSFC failed to record the surety bond in compliance with § 337.18(1)(b) by itself is
insufficient to withstand a motion to dismiss as the complaint does not include “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 127 S. Ct. 2197" date_filed="2007-06-04" court="SCOTUS" case_name="Erickson v. Pardus">127 S.Ct. at 1964-65.
Rather, in order to state a claim for relief Ardaman must also—but has failed to—allege
that its own failure to file a timely notice of intent as required by § 337.18(c) was caused
by TSFC’s failure to record the bond.
For the foregoing reasons, the motion to dismiss Counts I, III, V, VII, and IX of the
complaint is granted.7 Dismissal is without prejudice to Ardaman’s filing an amended
7
The court need only discuss briefly TSFC’s and the sureties’ additional argument that the bond
claim s rely on damages resulting from alleged work delays and therefore are barred as a matter of Florida
law.
The defendants a rgue that a claim ant m ay not recover delay dam ages against a surety unless the
bond specifically provides coverage for delay damages and that the bond at issue here does not provide such
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complaint that, insofar as it is possible, corrects the deficiencies identified above.8
Counts II, IV, VI, VIII, and X: Common Law Bond Claims Against the Sureties and TSFC
In Counts II, IV, VI, VIII, and X Ardaman seeks to recover under the theory that the
surety bond executed by Travelers, Fidelity, Federal, Liberty, ICSP, and TSFC is a
common law bond, not a statutory bond, because it was not filed in the public records, as
§ 337.18(1)(b) requires. The defendants move for dismissal on the ground the bond’s
classification is determined by the terms of § 337.18(1)(f), Fla. Stat., and is unaffected by
the failure to record the bond. In response, Ardaman acknowledges that § 337.18(1)(f)
states that bonds issued under § 337.18 are statutory bonds but argues that the
defendants ignore the further statement in subsection (1)(f) that the provisions of § 255.05
are not applicable to § 337.18. Ardaman also points out that § 255.05 includes an express
instruction that bonds issued pursuant to it shall not be converted to common law bonds
but that § 337.18 contains no similar instruction. According to Ardaman, a payment bond
that has not been recorded may properly be treated as a common law bond, citing in
support Apac-Florida, Inc. v. OneBeacon Insurance Co., Inc., 888 So. 2d 126" date_filed="2004-11-24" court="Fla. Dist. Ct. App." case_name="Apac-Florida, Inc. v. Onebeacon Insurance Co.">888 So.2d 126 (Fla. 3d DCA
2004).
The court concludes that the issue of whether the bond in this case should be
treated as a statutory bond or a common law bond may be settled by looking to the bond
coverage. W hile the defendants’ statement of the law ap pea rs correct, see D.I.C. Commercial Construction
Corp. v. Kn ight E rection & Fabrication, Inc., 547 So. 2d 977" date_filed="1989-08-02" court="Fla. Dist. Ct. App." case_name="DIC COM'L CONST. CORP. v. Knight Erec. & Fab.">547 So. 2d 977 (Fla. 4th DCA 1989), and American Home
Assurance Co. v. Larkin Gen. Hosp., Ltd., 593 So. 2d 195" date_filed="1992-01-02" court="Fla." case_name="American Home Assur. Co. v. Larkin Gen. Hosp., Ltd.">593 So. 2d 195, 198 (Fla. 1992), in the cou rt’s view the defenda nts
have m isconstru ed A rdam an’s claim s as see king delay dam age s.
Ardaman alleges de lays in pile ins tallation tha t are attributable to the defendants. The gist of
Ardam an’s com plaint, as the court reads it, is that Ardaman was dam aged by having to make additional
outlays of time, effort, and money in order to perform its contractual obligations, not that it was damaged by
the inc onvenience , loss o f opp ortun ity to perform other work, etc., that any delays m ay hav e oc cas ioned.
8
Ardaman seeks leave to file an amended com plaint in the event either motion to dismiss is granted.
The Federal Rules of Civil Procedure allow a party to a m end its plead ings “onc e as a m atter of cou rse . . .
before being served with a responsive pleading . . . .” Fed.R.C iv.P. 15(a)(1)(A). W ith th e exception of P B’s
answer to Count XII, no answer or other responsive pleading has yet been filed in this case, and Ardaman has
not pre viously am ended. A bsent undue delay, bad fa ith, d ilatory m otive, unfair prejudice, or futility of
am end m ent, Foman v. Da vis, 371 U.S. 178" date_filed="1962-12-03" court="SCOTUS" case_name="Foman v. Davis">371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (196 2), a plaintiff is entitled to
amend onc e as a m atter of cou rse. As none of these im ped iments exist as to Counts I, III, V, VII, and IX,
Ardam an s hou ld be p erm itted to am end these claim s.
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itself, which explicitly references § 337.18, and to the plain language of § 337.18(1)(f), Fla.
Stat., which expressly provides—without creating any exceptions—that “the bonds
provided for in this section are statutory bonds . . . .” § 337.18(1)(f), Fla. Stat. In the court’s
view, contrary to Ardaman’s contention, § 337.18(1)(f)’s additional statement that the
provisions of § 255.05 do not apply to § 337.18 adds nothing to this analysis and does not
alter the conclusion that the bond in this case is a statutory bond. Furthermore, the holding
of Apac-Florida appears, at the very least, to have been severely undermined by Plaza
Materials. In Apac-Florida, which was decided one year before Plaza Materials, the court
found that because the surety had failed to comply with the statute’s recording
requirement—a requirement the court found should be strictly construed—the claimants
could take advantage of the longer claims period available under common law without
having to show they were misled by the statutory violation; the court noted that the effect
of its ruling was to permit the bond to be treated as a common law bond. Apac-Florida,
888 So.2d at 127. In reaching its conclusions the court noted that “[r]espectable arguments
can be made on both sides of the question now before us,” and it cited as examples the
Second District Court of Appeal’s decision in American Home Assurance Co. v. Plaza
Materials Corp., 826 So. 2d 358" date_filed="2002-05-10" court="Fla. Dist. Ct. App." case_name="Amer. Home Assur. Co. v. Plaza Mater. Corp.">826 So.2d 358 (Fla. 2d DCA 2002), which was then on appeal to the
Florida Supreme Court, and the Fifth District’s decision in Florida Crushed Stone. The
Apac-Florida court cited with approval the Second District’s view that “the better rule is to
permit the longer claims period without requiring claimants to prove that they were misled
by the statutory violation.” Apac-Florida, 888 So.2d at 127 (citing American Home
Assurance Co., 826 So.2d at 361). The principle that claimants should not be required to
show they were misled by the statutory violation which Apac-Florida approved, however,
is the very same one rejected by the Florida Supreme Court in Plaza Materials. Thus it is
difficult to see how the Apac-Florida court’s ruling approving this principle, as well as its
conclusion that the effect of its ruling was to treat the § 255.05 bond at issue as a common
law bond, retains vitality.
In any event, based on the Florida Supreme Court’s reasoning in Plaza Materials,
this court is persuaded that the § 337.18 bond in this case is not converted into a common
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law bond simply because the defendants failed to record it. In Plaza Materials, the court
explicitly rejected as “impermissible” the “possible result” of treating the § 255.05 bond as
a common law bond because it “entirely negate[d]” subsection (4), which provides that all
bonds under § 255.05 “shall be construed and deemed statutory bonds furnished pursuant
to this section and such bonds shall not under any circumstances be converted into
common law bonds.” Plaza Materials, 908 So.2d at 367; § 255.05(4).9 Here, § 337.18(1)(f)
explicitly provides that the “bonds provided for in the section are statutory bonds.”
§ 337.18(1)(f), Fla. Stat. While the language of § 337.18(1)(f) is notably less specific and
emphatic than the language of § 255.05(4), the court perceives no significant difference
in the import of the meaning of the two provisions: the bonds under each statute are to be
treated as statutory bonds. This court should reach a conclusion consistent with the
Florida Supreme Court’s holding in Plaza Materials, which gives equal weight to competing
provisions in § 255.05. Accordingly, this court finds that the failure to record the bond at
issue in this case in compliance with § 337.18(1)(b) does not render the bond a common
law bond because such a finding would “write [the first sentence of § 337.18(1)(f)] out of
existence.” Plaza Materials, 908 So. 2d 360" date_filed="2005-07-07" court="Fla." case_name="American Home Assur. v. PLAZA MATERIALS">908 So. 2d at 367. The surety bond executed by Travelers,
Fidelity, Federal, Liberty, ICSP, and TSFC in this case therefore must be considered a
statutory bond only.
For these reasons, the court concludes that Ardaman’s common law bond claims
fail “to state a claim to relief that is plausible on its face.” Twombly, 127 S. Ct. 2197" date_filed="2007-06-04" court="SCOTUS" case_name="Erickson v. Pardus">127 S.Ct. at 1964-65.
The motion to dismiss Counts II, IV, VI, VIII, and X of the complaint therefore is granted.
As amendment would be futile, dismissal is with prejudice. Foman, 371 U.S. 178" date_filed="1962-12-03" court="SCOTUS" case_name="Foman v. Davis">371 U.S. at 182.
Count XI: Breach of Contract Claim Against PB
Ardaman alleges in Count XI that PB breached the terms of their written agreement
by failing to pay Ardaman for services rendered. PB moves for dismissal of this count on
9
This court recognizes that the Plaza Materials court expressly declined to address whether
application of § 337.18 would impact the case before it. The court also notes the comm ent in Pla za M ate rials
that § 337.18 presented an “additional conflict in connection with public projects [that] appears to need
legislative attention along with the conflict we address toda y.” Pla za M ate rials, 908 So.2 d at 363, n.1.
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the grounds Ardaman failed to plead the essential elements of a breach of contract claim
and also failed to plead that all conditions precedent in the agreement have been
satisfied.10 Alternatively, PB moves for a more definite statement on the ground the
allegations of the complaint are insufficient to allow it to frame a response. Ardaman
responds that the allegations of Count XI adequately recite the required elements of a
breach of contract claim under notice pleading; that it is not required to plead the
occurrence of conditions precedent with specificity under the federal rules; and that a more
definite statement is not needed.
The elements of an action for breach of contract under Florida law are: (1) the
existence of a contract; (2) a breach of the contract; and (3) damages resulting from the
breach. Beck v. Lazard Freres & Co., LLC, 175 F.3d 913" date_filed="1999-05-13" court="11th Cir." case_name="Beck v. Lazard Freres & Co., LLC">175 F.3d 913 (11th 1999) (citation omitted);
Rollins, Inc. v. Butland, 951 So. 2d 860" date_filed="2006-12-15" court="Fla. Dist. Ct. App." case_name="Rollins, Inc. v. Butland">951 So.2d 860, 876 (Fla. 2d DCA 2006) (citation omitted). In this
case, the court agrees with Ardaman that the allegations of its complaint are sufficient to
withstand a motion to dismiss. Paragraph 15 of the complaint, which is incorporated into
Count XI by Paragraph 117, alleges that Ardaman and PB entered into the agreement
attached to the complaint. These allegations are sufficient to satisfy the first element of
a breach of contract claim. The second element, requiring an allegation of breach, is also
satisfied. Ardaman outlines in Paragraphs 17-19 (and incorporates those allegations by
reference into Count XI by Paragraph 117) the delays and problems that led to the alleged
material breach of failing to pay Ardaman for its services, which is asserted in Paragraph
119. Although, as PB contends, Ardaman does not identify the specific section(s) of the
agreement it asserts PB breached, notice pleading under Rule 8(a) does not require such
specificity. See In re Southeast Banking Corp., 69 F.3d 1539" date_filed="1995-11-30" court="11th Cir." case_name="Brandt v. Bassett">69 F.3d 1539, 1551 (11th Cir. 1995) (“For
better or for worse, the Federal Rules of Civil Procedure do not permit district courts to
impose upon plaintiffs the burden to plead with the greatest specificity they can.”). Rather,
10
The co nditions pre ced ent to which PB refers are found in the agreement at Articles Eleventh and
Tw elfth (setting forth procedures to be followed by Ardaman to assert claim s for additional comp ensation);
Article Sixth (requiring receipt of payment by PB from TSF C before PB is obliged to pay Ardam an); and Article
Seventh (stating that Ardaman’s entitlement to fees for additional services is limited to fees PB receives from
TSFC for those services). Doc. 1, Exh. A.
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“the alleged facts need not be spelled out with exactitude, nor must recovery appear
imminent.” Quality Foods de Centro America, S.A. v. Latin American Agribusiness
Development Corp., S.A., 711 F.2d 989" date_filed="1983-08-08" court="11th Cir." case_name="Quality Foods De Centro America, S.A. And Duroparts De El Salvador, S.A. v. Latin American Agribusiness Development Corporation, S.A.">711 F.2d 989, 995 (11th Cir. 1983). Finally, in Paragraph 120
Ardaman alleges that it suffered damages as a result of the breach, which satisfies the
third element of a breach of contract claim. In short, the court concludes that Count XI is
sufficiently pleaded because it puts the defendants on fair notice of Ardaman’s claim by
identifying the contract between the parties, the facts involved in the alleged breach of that
contract, and the damages allegedly sustained by Ardaman.11
Nor will the court dismiss Count XI based on Ardaman’s failure to plead specifically
that it satisfied four conditions precedent contained in the agreement, which PB asserts
raise issues of Florida law the court should now address. Federal Rule of Civil Procedure
9(c), Conditions Precedent, provides that
In pleading conditions precedent, it suffices to allege generally that all
conditions precedent have occurred or been performed. But when denying
that a condition precedent has occurred or been performed, a party must do
so with particularity.
Fed.R.Civ.P. 9(c).
As Rule 9(c) makes clear, conditions precedent need only be alleged generally.
Fed.R.Civ.P. 9(c). If the defendant disagrees with the plaintiff’s general allegations, it may
deny “with particularity” in a responsive pleading that the preconditions have been fulfilled.
See Jackson v. Seaboard Cost Line R.R., 678 F.2d 992" date_filed="1982-06-17" court="11th Cir." case_name="29 Fair Empl.Prac.Cas. 442 v. Seaboard Coast Line Railroad Company">678 F.2d 992, 1010 (11th Cir. 1982).12 The
plaintiff then bears the burden of “proving that the conditions, which the defendant has
specifically joined in issue, have been satisfied.” Id. at 1010 (emphasis added). In this
11
Th e co urt no tes that the discovery proc ess will afford the defenda nts the oppo rtunity to explore
further the fac tua l basis of A rdam an’s claim s and to narrow issues concerning the contract’s specific terms.
12
Florida law is similar. Florida Rule of Civil Procedure 1.120(c) provides that "[i]n pleading the
performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions
precedent have been perform ed or have oc curred. A den ial of performance or occurrence shall be made
specifically and with particularity." Additiona lly, a plain tiff's giving a deq uate notice und er R ule 1.1 20(c ) shifts
to the defendant "the burden of denying the allegations of co m plianc e with s pec ificity." Florida Medical Center.
v. Dep't of Health & Rehab. Services, 511 So. 2d 677" date_filed="1987-08-07" court="Fla. Dist. Ct. App." case_name="Florida Medical Center v. DEPT. OF HRS">511 So.2d 677 , 678-79 (Fla. 1st DC A 1987 ) (citation om itted).
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case, Ardaman has generally alleged satisfaction of all conditions precedent by stating, as
to each count, that “[a]ll conditions precedent to maintaining this cause of action have
either been satisfied, or have been waived . . . .” This allegation, as a matter of pleading
under Rule 9(c), is sufficient. Although PB has responded in its motion (which, the court
notes, is not a responsive pleading) that Ardaman has failed to satisfy all conditions
precedent and that such conditions involve issues of law the court may now resolve, the
court concludes that PB’s arguments are premature because they implicate issues of proof
rather than pleading. For example, Ardaman replies that it disputes the validity and
enforceability of the “pay when paid” conditions set out in Articles Sixth and Seventh. This
dispute, and presumably others involving the conditions precedent in the instant case,
involves issues of fact that are properly addressed at summary judgment, when Ardaman
must come forward with proof that the condition was satisfied or excused. See id.
For the reasons stated above, the court concludes that as drafted Ardaman’s
allegations of breach of the agreement with PB contains “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 127 S. Ct. 2197" date_filed="2007-06-04" court="SCOTUS" case_name="Erickson v. Pardus">127 S.Ct. at 1964-65. Accordingly, the court
denies PB’s motion to dismiss Count XI and its alternative motion for a more definite
statement.
The court addresses one final matter raised by PB, which is its alternative motion
to strike Ardaman’s request for attorney’s fees pursuant to Fed.R.Civ.P 12(f) on the ground
Ardaman’s complaint fails to identify the provision in the parties’ agreement that entitles
the plaintiff to fees. Ardaman responds that it has adequately alleged its entitlement to
attorneys’ fees. According to Ardaman, the complaint references the agreement between
PB and Ardaman and that agreement incorporates by reference the Design Subcontract
between PB and TSFC, which contains a clause that entitles the prevailing party to recover
attorneys’ fees. Ardaman acknowledges that the PB/TSFC contract is not attached to the
complaint.
Florida law allows the recovery of attorneys’ fees as damages or costs to the
prevailing party when provided for by statute or contract. See Italiano v. Jones Chemicals,
Inc., 908 F. Supp. 904" date_filed="1995-11-15" court="M.D. Fla." case_name="Italiano v. Jones Chemicals, Inc.">908 F.Supp. 904, 907 (M.D.Fla.1995); Mediplex Const. of Florida, Inc. v. Schaub, 856
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So.2d 13, 15 (Fla. 4th DCA 2003) (citation omitted). Notwithstanding Ardaman’s
contentions regarding the incorporation of the PB/TSFC contract into Ardaman’s
agreement with PB, nothing in the latter contract—which is the only contract now before
the court—specifically references attorneys’ fees. Nevertheless, the court concludes that
under Rule 8's liberal notice pleading standard the allegations of Ardaman’s complaint are
sufficient to withstand a motion to strike, if barely. Ardaman has provided enough factual
information to give PB fair notice of its claim that, if Ardaman is the prevailing party, it is
entitled to attorneys’ fees as provided under the terms of the agreement between the
parties. Accordingly, Ardaman should be given the opportunity to support its claim.
Twombly, 127 S. Ct. 2197" date_filed="2007-06-04" court="SCOTUS" case_name="Erickson v. Pardus">127 S.Ct. at 1969; Swierkiewicz, 534 U.S. 506" date_filed="2002-02-26" court="SCOTUS" case_name="Swierkiewicz v. Sorema N. A.">534 U.S. at 511. The motion to strike is
therefore denied.
Counts XIII and XIV: Breach of Contract and Unjust Enrichment Claims Against TSFC
In Count XIII Ardaman brings a breach of contract claim against TSFC, which moves
for a more definite statement of this claim because, it asserts, Ardaman’s allegations are
so vague and ambiguous it cannot reasonably prepare a response. Ardaman responds
that the allegations satisfy the pleading requirements and that a more definite statement
is unnecessary.
To state a claim for breach of an oral contract, a plaintiff must allege the mutual
formation of an oral contract, the obligation thereby assumed, and breach. See Perry v.
Cosgrove, 464 So. 2d 664" date_filed="1985-03-06" court="Fla. Dist. Ct. App." case_name="Perry v. Cosgrove">464 So.2d 664, 667 (Fla. 2d DCA 1985), citing Industrial Medicine Pub. Co. v.
Colonial Press of Miami, Inc., 181 So. 2d 19" date_filed="1965-12-07" court="Fla. Dist. Ct. App." case_name="Industrial Medicine Pub. Co. v. Colonial Press of Miami, Inc.">181 So.2d 19, 20 (Fla. 3d DCA 1966). The allegations in
Count XIII of Ardaman’s complaint are adequate to satisfy these requirements. Paragraph
20, which is incorporated into Count XIII by Paragraph 132, alleges that Ardaman and
TSFC entered into an oral agreement; Paragraph 20 also alleges that pursuant to the oral
agreement Ardaman agreed to perform professional engineering services that included pile
driving analyzer tests; and Paragraph 134 alleges that TSFC breached the oral agreement
by failing to pay Ardaman for professional engineering services rendered pursuant to the
agreement. These allegations, while sparse, are not so vague or ambiguous that TSFC
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cannot reasonably be required to frame a responsive pleading. Fed.R.Civ.P. 12(e).
Additionally, as Ardaman suggests, if TSFC desires further information to clarify and
narrow the issues, it should be able to obtain such information in discovery.
TSFC also moves for a more definite statement of Ardaman’s unjust enrichment
claim in Count XIV, which Ardaman opposes. There are three elements of a claim for
unjust enrichment: “(1) a benefit conferred upon a defendant by the plaintiff, (2) the
defendant's appreciation of the benefit, and (3) the defendant's acceptance and retention
of the benefit under circumstances that make it inequitable for him to retain it without
paying the value thereof.” Rollins, Inc. v. Butland, 951 So. 2d 860" date_filed="2006-12-15" court="Fla. Dist. Ct. App." case_name="Rollins, Inc. v. Butland">951 So.2d 860, 876 (2nd DCA 2006
(citing Swindell v. Crowson, 712 So. 2d 1162" date_filed="1998-06-12" court="Fla. Dist. Ct. App." case_name="Swindell v. Crowson">712 So.2d 1162, 1163 (Fla. 2d DCA 1998)). Ardaman alleges
in Paragraphs 139-44 of the complaint that it conferred a benefit on TSFC, at TSFC’s
request and with its knowledge, in the form of professional engineering services rendered
on the bridge construction project; that TSFC accepted the benefit but has failed to pay
Ardaman; and that it would be inequitable to permit TSFC to retain the benefit and value
of Ardaman’s services without paying for them. The court finds these allegations sufficient
to apprise TSFC of Ardaman’s unjust enrichment claim against it and thus that a more
definite statement is not required. Fed.R.Civ.P. 12(e).
Conclusion
For the foregoing reasons, the court DENIES PB’s motion in its entirety. The court
GRANTS TSFC’s motion to dismiss, to the extent Counts II, IV, VI, VIII, and X of the
complaint are dismissed with prejudice, and Counts I, III, V, VII, and IX are dismissed
without prejudice to Ardaman’s filing an amended complaint within fourteen (14) days of
the date of this order. As provided in Rule 15(a)(3), defendants shall respond within ten
(10) days after service of the amended complaint. The court DENIES TSFC’s motion
insofar as it requests a more definite statement of Counts XIII and XIV. TSFC and the
sureties’ request for attorneys’ fees pursuant to Section 338.18(1)(d) as the prevailing
parties is denied, given the dismissal without prejudice of Counts I, III, V, VII, and IX. The
parties shall bear their own fees and costs.
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Accordingly, it is ORDERED:
1. Defendant PB Americas, Inc.’s “Motion to Dismiss Count XI and Alternative
Motion for a More Definite Statement . . . [and] Alternative Motion to Strike Claim for
Attorneys’ Fees . . . (doc. 16) is DENIED.
2. Defendants Travelers, Fidelity, Federal, Liberty, ICSP, and TSFC’s motion
to dismiss Counts I through X of the complaint and for more definite statement (doc. 8) is
GRANTED in part and DENIED in part:
a. The motion is GRANTED to the extent Counts II, IV, VI, VIII, and X of the
complaint are dismissed with prejudice, and Counts I, III, V, VII, and IX are dismissed
without prejudice to Ardaman’s filing an amended complaint within fourteen (14) days of
the date of this order.
b. The motion is DENIED to the extent TSFC seeks a more definite statement
as to Counts XIII and XIV.
3. The parties shall bear their own fees and costs.
4. The stay imposed by order dated July 23, 2008, is LIFTED. The clerk shall
refer this matter to the undersigned for entry of an initial scheduling order.
DONE and ORDERED this 22nd day of January, 2009.
s/ M. Casey Rodgers
M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE
Case No. 3:08cv144/MCR