IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
September 18, 2009
PIASA COMMERCIAL INTERIORS, INC., PLAINTIFF,
J.P. MURRAY COMPANY, INC. D/B/A MURRAY COMPANY ET AL., DEFENDANT.
The opinion of the court was delivered by: Herndon, Chief Judge
On October 7, 2008, Plaintiff Piasa Commercial Interiors, Inc., filed its Second Amended Complaint (Doc. 83) amending Count III of its Complaint to add a claim of conversion.*fn1 Plaintiff's amended Count III alleges a claim of conversion against J.P. Murray Company ("Murray") and Fidelity and Deposit Company of Maryland ("Fidelity"), alleging that Defendants had converted the funds owed to Plaintiff under the terms of the subcontract for work that it had performed.
Specifically, in Count III, Plaintiff alleges that it entered into a subcontract agreement with Defendant Murray to perform the drywall frame and board, spray-on fireproofing, acoustical and E.I.F.S. work that Defendant Murray was obligated to perform for the Richland Memorial Hospital. Plaintiff alleges that sometime prior to June 21, 2007 Defendant Murray was paid by the hospital for work performed by Piasa who had billed Murray under Pay Applications 8 and 9 in the sums of $25,982.10 and $11,755.80. Plaintiff alleges that Defendant Fidelity knew that Murray had been paid those amounts by the Hospital and refused to pay Plaintiff (Doc. 83 ¶ 37). Plaintiff alleges that under these circumstances, a constructive trust was imposed on the money Murray received for Plaintiff's work, requiring that the money not be used for any other purposes (Id.). Plaintiff further alleges that Murray was required to pay those sums to Plaintiff under the terms of the subcontract and the incorporated project manual and AIA201, 1997 edition.*fn2 Plaintiff also alleges that Defendant Fidelity acted jointly with Defendant Murray in refusing to pay the owed sums, thereby converting them. Plaintiff alleges that it had an absolute and unconditional right to immediate possession of the sums after Plaintiff demanded payment (Id. at ¶ 39).
Defendants have filed a motion to dismiss Count III of Plaintiff's Second Amended Complaint (Doc. 84). Specifically, Defendants moved to dismiss Count III because, they argue, that Plaintiff can not state a claim of conversion as a subcontractor. Plaintiff has filed a response to Defendants' motion (Doc. 93 & 94).
Based on the following, the Court DENIES Defendants' motion to dismiss (Doc. 84).
A. Motion to Dismiss Standard
Defendants bring their motion to dismiss pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) for failure to state a claim. When ruling on a motion to dismiss for failure to state a claim under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), the Court must look to the complaint to determine whether it satisfies the threshold pleading requirements under FEDERAL RULE OF CIVIL PROCEDURE 8. Rule 8 states that a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P.8(a)(2). In a recent opinion issued on May 21, 2007, the Supreme Court held that Rule 8 requires that a complaint allege "enough facts to state a claim to relief that is plausible on its face" to survive a Rule 12(b)(6) motion. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d. 929 (2007). In other words, the Supreme Court explained it was "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'" by providing "more than labels and conclusions," because "a formulaic recitation of the elements of a cause of action will not do...." Id. at 555, 127 S.Ct. at 1964-65 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). The Seventh Circuit has read the Bell Atlantic decision to impose "two easy-to-clear hurdles":
First, the complaint must describe the claim in sufficient detail to give the defendant 'fair notice of what the...claim is and the grounds upon Defendants refused to pay. At this stage, Plaintiff has alleged all the elements for a claim of conversion. Therefore, the Court DENIES Defendant's motion to dismiss Count III (Doc. 84).
Accordingly, the Court DENIES Defendant's Motion to Dismiss Count III of Plaintiff's Second Amended Complaint.
IT IS SO ORDERED.