United States District Court, D. New Jersey
FIREMAN'S FUND INSURANCE COMPANY, a/s/o S.L. MANAGEMENT GROUP LLC and 6 AIRPORT ROAD, LLC, Plaintiff,
360 STEEL ERECTORS, INC., MONMOUTH EQUIPMENT SALES CO. INC., BLUESCOPE BUILDINGS NORTH AMERICA, INC., and VARCO PRUDEN BUILDINGS, a division of BlueScope Buildings North America, Inc., Defendants.
WILLIAM J. MARTINI, U.S.D.J.
Fireman's Fund Insurance Company brings this action
against 360 Steel Erectors, Inc. (“360 Steel”),
Monmouth Equipment Sales Company, Inc.
(“Monmouth”), BlueScope Buildings North America,
Inc. (“BlueScope”) and an unincorporated division
of BlueScope, Varco Pruden Buildings (“VP”)
(collectively “Defendants”), alleging negligence
and breach of contract claims, in connection with
Defendants' purported faulty construction of an airport
hangar. This matter comes before the Court on Defendant
BlueScope's motion to dismiss under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), or, in the
alternative, motion to sever Plaintiff's Count III and
transfer venue pursuant to 28 U.S.C. § 1404(a). There
was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set
forth below, BlueScope's motions to dismiss and transfer
is an insurance company incorporated in Illinois and is the
subrogee of S.L. Management Group, LLC (“SL”) and
6 Airport Road, LLC (“the insureds”). Second Am.
Compl. (“2AC”) ¶ 1, ECF No. 59. 360 Steel
and Monmouth are construction businesses incorporated in New
Jersey. Id. ¶¶ 2-3. BlueScope is a
Missouri corporation that produces unassembled,
pre-engineered building components. Id. ¶ 4;
see also Mem. of Law in Supp. of Def.
BlueScope's Mot. to Dismiss (“Def.'s
Mem.”) 1, ECF No. 67-1. VP is an unincorporated
subdivision of BlueScope that furnished building components
to SL. See Def.'s Mem. at 1.
matter arises out of the collapse of an airport hangar in
Morristown, New Jersey. In December 2013, Plaintiff's
insureds contracted with Monmouth to construct an airport
hangar at 6 Airport Road. 2AC ¶ 9. Monmouth, in turn,
subcontracted with 360 Steel to perform the steel erection of
the hangar. Id. ¶ 10. The insureds purchased
pre-engineered metal components from BlueScope and VR for the
construction of the hangar. See Def.'s Mem. at
1. On January 16, 2015, the hangar's steel framework
collapsed during construction, causing substantial damage,
including severe injuries to one construction worker.
Id. ¶ 12; see Def. Monmouth's Mem.
of Law in Opp'n to Def. BlueScope's Mot. to Dismiss
(“Monmouth's Mem.”) 2, ECF No. 76. Plaintiff
paid its insureds $1, 379, 511.95 in claims, representing the
insureds' damages caused by the collapse. 2AC ¶ 15.
Second Amended Complaint (the “Complaint”)
asserts three causes of action:
(1) Count I: negligence against 360 Steel for its
participation in the faulty construction of the hangar,
id. ¶¶ 17-20;
(2) Count II: negligence against Monmouth for its
participation in the faulty construction of the hangar,
id. ¶¶ 21-23;
(3) Count III: breach of contract against BlueScope
for failing to pay its share of costs incurred by the
transportation and storage of evidence, which it agreed to
pay by executing the cost-sharing agreement, id.
now moves to dismiss Count III or, in the alternative, sever
Count III and transfer venue to the Western District of
Missouri (“WDM”). BlueScope advances three
arguments in support of its motion. First, it argues that the
Court lacks subject matter jurisdiction because the Complaint
fails to demonstrate that Plaintiff has standing to sue for
breach of contract. Specifically, the Complaint does not
establish that Plaintiff is a party to the cost-sharing
agreement and it, therefore, lacks standing to enforce it.
See Def.'s Mem. at 12-15. Second, BlueScope
argues that the Complaint fails to allege that it breached a
contract with Plaintiff or the insureds. See id. at
15-17. Finally, BlueScope alternatively argues that the Court
should sever Count III and transfer to WDM pursuant to the
forum-selection clause in the purchase order, which the
insureds agreed to upon purchasing the components for the
hangar. See id. at 17-24.
opposes, arguing that its Complaint sufficiently pleads that
there is a valid contract between BlueScope and the other
parties for the sharing of costs associated with preserving
evidence of the collapse. In the event that the Court finds
that Plaintiff was not a party to the cost-sharing agreement,
Plaintiff argues that it was a beneficiary to that agreement.
See Pl.'s Mem. of Law in Opp'n to Def.
BlueScope's Mot. (“Pl.'s Opp'n”) 7-
10, ECF No. 73. Plaintiff also opposes transfer, arguing that
the forum-selection clause in the purchase order does not
apply here because the cost-sharing agreement is a wholly
separate contract that does not contain that same clause.
See id. 10-13.
reply, BlueScope reiterates that Plaintiff is not a party to
the cost-sharing agreement and further argues that the
Complaint does not allege that Plaintiff is an intended
third-party beneficiary to that agreement. See Def.
BlueScope's Reply in Supp. of Mot. to Dismiss
(“Def.'s Reply”) 1-5, ECF No. 83. BlueScope
also argues that the forum-selection clause applies because
the cost-sharing agreement “relates to” the sale
of its components to the insureds. See id. at 8-13.
Rule of Civil Procedure 12(b)(1) provides for the dismissal
of a complaint for lack of subject matter jurisdiction. There
are two types of challenges to subject-matter jurisdiction:
(1) facial attacks, which challenge the allegations of the
complaint on their face; and (2) factual attacks, which
challenge the existence of subject-matter jurisdiction, quite
apart from any pleadings. Mortensen v. First Fed. Sav.
& Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
In reviewing a facial attack, the court must consider the
allegations of the complaint in the light most ...