United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Defendant Sherwin-Williams' Motion to
Dismiss Plaintiff's Second Amended Complaint [Doc. No.
36]. Plaintiff has responded in opposition [Doc. No. 39], and
Defendant Sherwin-Williams has replied [Doc. No. 41]. The
matter is fully briefed and at issue.
filed an Amended Complaint [Doc. No. 21] on May 25, 2016,
alleging causes of action for products liability, negligence
and breach of warranty. Defendant Sherwin-Williams moved to
dismiss [Doc. No. 23], asserting that the economic loss
doctrine barred tort recovery. The Court granted in part and
denied in part Sherwin-Williams' motion [Doc. No. 34].
The Court dismissed without prejudice Plaintiff's
products liability and negligence claims against
Sherwin-Williams, but left intact Plaintiff's breach of
warranty claim. The Court, however, granted Plaintiff
leave to amend its Amended Complaint.
the time set by the Court, Plaintiff filed a Second Amended
Complaint [Doc. No. 35]. Defendant Sherwin-Williams moves to
dismiss Plaintiff's Second Amended Complaint, alleging
that Plaintiff's additional factual allegations indicate
only de minimis damage to property other than the
coating, which is insufficient to overcome the economic loss
doctrine [Doc. No. 36].
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. The “plausibility
standard” announced in Twombly and
Iqbal is not a “heightened standard” of
pleading, but rather a “refined standard.”
Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (citing Kansas Penn Gaming,
LLC v. Collins, 656 F.3d 1210, 1214 (10th
Cir. 2011). Under the “refined standard, ”
plausibility refers “to the scope of the allegations in
the complaint: if they are so general that they encompass a
wide swath of conduct, much of it innocent, then the
plaintiffs ‘have not nudged their claims across the
line from conceivable to plausible.'”
Khalik, 671 F.3d at 1191; see also Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (quoting Twombly, 550 U.S. at 570).
the Tenth Circuit has noted that “[t]he nature and
specificity of the allegations required to state a plausible
claim will vary based on context.” Khalik, 671
F.3d at 1191 (quoting Kansas Penn Gaming, 656 F.3d
at 1215). “Thus, [it has] concluded the
Twombly/Iqbal standard is ‘a middle
ground between heightened fact pleading, which is expressly
rejected, and allowing complaints that are no more than
labels and conclusions or a formulaic recitation of the
elements of a cause of action, which the Court stated will
not do.'” Id. (quoting Robbins,
519 F.3d at 1247).
other words, Rule 8(a)(2) still lives. There is no indication
the Supreme Court intended a return to the more stringent
pre-Rule 8 pleading requirements.” Id. It
remains true that “[s]pecific facts are not necessary;
the statement need only ‘give the defendant fair notice
of what the … claim is and the grounds upon which it
rests.'” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (quoting Twombly, 550 U.S. at 555);
see also al-Kidd v. Ashcroft, 580 F.3d 949, 977
(9th Cir. 2009) (“Twombly and
Iqbal do not require that the complaint include all
facts necessary to carry the plaintiff's burden.”).
“[w]hile the 12(b)(6) standard does not require that
Plaintiff establish a prima facie case in [its] complaint,
the elements of each alleged cause of action help to
determine whether Plaintiff has set forth a plausible
claim.” Khalik, 671 F.3d at 1192 (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002).
“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of [the alleged]
facts is improbable, and ‘that a recovery is very
remote and unlikely.'” Sanchez v. Hartley,
810 F.3d 750, 756 (10th Cir. 2016) (citing
Twombly, 550 U.S. at 556).
not separately stated in enumerated counts, Plaintiffs Second
Amended Complaint purports to assert several causes of
action, including breach of contract, negligence,
manufacturer's products liability and breach of warranty,
against Defendant Sherwin-Williams. [Doc. No. 35].
Sherwin-Williams has moved to dismiss those claims with the
exception of Plaintiff's breach of warranty and breach of
contract claims. [Doc. Nos. 36, 41]. To summarize, the Second
Amended Complaint alleges:
■ Carollo Engineers developed construction plans for
the City of Norman's Water Treatment Plant Expansion
Project. The plans prepared by Carollo included the use of a
coating system sold by Sherwin-Williams.
■ Plaintiff entered into a subcontract with Wynn
Construction to coat and paint select portions of the
project. Plaintiff purchased the ...