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Atlantic City Associates LLC v. Carter & Burgess Consultants

September 14, 2007


The opinion of the court was delivered by: Hillman, District Judge


Before the Court are Atlantic City Associates LLC's ("ACA") motions to dismiss Avon Brothers, Inc.'s ("Avon") direct claims against ACA.


This case involves a construction project for mixed retail and commercial use property located in Atlantic City, New Jersey referred to as "The Walk" in Atlantic City (the "Project"). ACA is the lessee of the property. Carter & Burgess provided the architectural, engineering and other design services and Keating Building Corporation ("Keating") acted as the general contractor. Liberty Mutual Insurance Company ("Liberty") issued payment and performance bonds for the Project.

Keating hired several subcontractors to work on the Project, including Avon. Avon entered into a subcontract agreement with Keating on or about October 31, 2002, for carpentry, drywall and acoustical ceiling work. Disputes arose over delays and other problems with the Project. Avon asserts that in September 2003, representatives from ACA and from Avon met. Prior to the meeting, Avon had stopped performing change order work because Avon's change orders were not being reviewed and approved. Avon states that ACA indicated at the meeting that ACA planned to take on a more active role and inquired whether Avon would stay with the Project if Keating were removed. Avon also states that ACA guaranteed that the past due bills would be paid, and based on those guarantees, resumed change order work on the Project. Avon relies on letters from ACA to Keating requesting "... assignment of all work related to the renovation phase of Building 400...inclusive [of] all Change Orders written to date" and from ACA to Avon stating that all of Keating's subcontracts for Building 430 had been assigned to ACA.

The Project continued to experience problems and eventually resulted in litigation. Three cases were filed in federal court and consolidated. In addition, a related case is pending in state court.*fn1 ACA's third amended complaint named C&B, Keating, and Liberty as defendants. Keating filed a third party complaint, as amended, against several of the subcontractors, including Avon. Avon filed an answer and asserted a direct claim against ACA. ACA filed a motion to dismiss Avon's direct claim.


A. Standard for Motions to Dismiss

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (citation omitted).

A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1969 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)). A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). The defendant bears the burden of showing that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

Finally, a court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999). A court may consider, however, "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

B. Motion to Dismiss Avon's Direct Claim Against ACA

There are two motions to dismiss Avon's direct claim against ACA presently before the Court. The first motion to dismiss relates to Avon's direct claim against ACA filed in response to the original third party complaint. The second motion to dismiss relates to Avon's direct claim against ACA filed in response to the amended third party complaint. ACA argues in its second motion to dismiss that Avon's direct claim in response to the amended third party complaint is duplicative of its first direct claim and should be dismissed.

Generally, when an amended complaint is filed, the previous complaint is wiped out and the operative complaint is the most recently filed version. See Snyder v. Pascack Valley Hospital, 303 F.3d 271, 276 (3d Cir. 2002) (stating, "[a]n amended complaint supercedes the original version in providing the blueprint for the future course of a lawsuit."). Here, when the amended third-party complaint was filed, it superceded the original third party complaint. Likewise, when Avon responded to the amended third party complaint, the second direct claim superceded the original. Thus, ACA's first motion to dismiss Avon's original direct claim is moot and therefore dismissed. See Walthour v. Tennis, No. 06-0086, 2007 WL 517812, at *3 (M.D.Pa. Feb. 12, 2007)(finding second amended complaint superceded original complaint and denied motions to ...

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