United States District Court, D. New Jersey
E. RICHARDSON RICHARDSON EMPLOYMENT AND CIVIL RIGHTS LAW,
STEVEN J. RICHARDSON LAW OFFICES OF STEVEN J. RICHARDSON, PC,
On behalf of Plaintiff.
L. TURCHI SALMON RICCHEZZA SINGER & TURCHI TOWER COMMONS,
PHILIP D. PRIORE MCCORMICK & PRIORE, PC, On behalf of
Defendant Graber Supply, LLC
L. HILLMAN, U.S.D.J.
matter concerns claims by Plaintiff regarding the allegedly
faulty construction of a pole barn on her residential
property in Monroeville, New Jersey. Defendant, Graber
Supply, LLC, has filed a partial motion to dismiss, seeking
the dismissal of Plaintiff's claims that it violated New
Jersey's Home Improvement Practices Act, N.J.A.C.
13:45A-16.1 et seq. For the reasons expressed below,
Defendant's motion will be denied.
to her complaint, in late 2014, Plaintiff, Gail Caron,
contracted with Defendant Graber Supply, LLC
(“Graber”) to construct a 100' x 70'
building, commonly referred to as a pole barn, on her
residential property. Construction began on February 4, 2015.
On February 18, 2015, a member of Graber's crew hit and
cracked a truss with a forklift. Plaintiff claims that Graber
made no offer to repair the damage in any manner and the
damaged truss will cause the roof to leak. Plaintiff also
claims that Graber did not follow the engineering drawings,
which also compromised the integrity of the building. As a
result, Plaintiff claims that the pole barn did not pass
inspection by the municipal building inspector.
alleged failures, among others regarding Graber's
business practices, serve as the basis for her complaint,
which alleges that Graber violated New Jersey's Consumer
Fraud Act, N.J.S.A. 56:8-1 et seq., through violations of the
Home Improvement Practices Act, N.J.A.C. 13:45A-16.1 et seq.,
and committed common law fraud, negligence, and breach of
contract.Graber has moved to dismiss, or for summary
judgment if the Court considers documents outside the
pleadings, Plaintiff's Home Improvement Practices Act
claims. Graber argues that the pole barn cannot be considered
a home improvement under the Act, and therefore
Plaintiff's claims for violations of the Act fail as a
matter of law. Plaintiff has opposed Graber's motion,
arguing that Graber is a licensed home improvement contractor
who is covered by the Act, and that the pole barn constitutes
an improvement to her residential property that falls under
Subject Matter Jurisdiction
removed this action from New Jersey state court to this Court
pursuant to 28 U.S.C. § 1441. This Court has
jurisdiction over this matter pursuant to 28 U.S.C. §
1332 because there is complete diversity of citizenship
between the parties and the amount in controversy exceeds
$75, 000. The citizenship of the parties is as follows:
Plaintiff is a citizen of New Jersey; Graber is a citizen of
Pennsylvania; Defendant Triple D Truss, LCC is a citizen of
Pennsylvania; Defendant L&S Truss, LLC is a citizen of
Pennsylvania; and Defendant Premier Structures, LLC is a
citizen of Pennsylvania. (See Amended Notice of Removal,
Docket No. 35 at 2-3.)
Standard for Motion to Dismiss/Summary Judgment
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 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 Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984)
(quotation and citation omitted).
judgment is appropriate where the Court is satisfied that the
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory
answers, demonstrate that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986); Fed.R.Civ.P. 56(a).