United States District Court, N.D. Oklahoma
DELLA SHAW, SHERLYNE TURNER, BERTHA JOHNSON and MARTHA RAND, Plaintiffs,
CHEROKEE MEADOWS, LP, CARLAND GROUP, LLC, RED BUD CONTRACTORS, LLC, CARLAND PROPERTIES, LLC, and BLACKLEDGE & ASSOCIATES, Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
matter comes before the court on the Motion to Dismiss
Contingent Crossclaim [Doc. No. 30] of defendant Blackledge
& Associates. For the reasons below, the motion is
Background and Allegations of the Contingent
case arises from alleged violations of the Fair Housing Act
(“FHA”), Americans with Disabilities Act
(“ADA”), Rehabilitation Act, and Uniform Federal
Accessibility Standards at the Cherokee Meadows Apartments.
Cherokee Meadows Apartments is a forty-eight (48) unit
multi-family, affordable housing project (the
“Project”) for persons aged sixty-two or older
developed in 2016 by Carland Group LLC. Plaintiffs are
tenants of Cherokee Meadows Apartments who allege that the
Project includes artificial barriers-including curbs,
unpowered garage doors, walking paths, toilets, and
showers-that exclude persons with disabilities and do not
comply with federal statutes. Plaintiffs further allege that
defendants refuse to grant reasonable modification requests.
Based on these general allegations, the Complaint asserts the
following claims against defendants: (1) failure to design
and construct the Project in a readily accessible and usable
manner in violation of the Fair Housing Act, 42 U.S.C. §
3604(f)(3)(C); (2) discrimination in violation of the Fair
Housing Act, 42 U.S.C. § 3604(f); (3) violation of
section 504 of the Rehabilitation Act, 29 U.S.C. § 794;
(4) violation of the Americans with Disabilities Act, 42
U.S.C. § 12132; and (5) breach of contract.
Carland Group LLC and Cherokee Meadows, LP filed a Contingent
Crossclaim against defendant Blackledge & Associates.
[Doc. No. 18, pp. 16-18]. The Contingent Crossclaim alleges
the following facts. On February 24, 2015, Cherokee Meadows
LP entered into a written contract with Blackledge for
Blackledge to provide architectural services in connection
with the Project. [Id. ¶ 5]. As architect,
Blackledge exercised control over design of the Project.
[Id.]. Plaintiffs allege that certain aspects of the
Project, as designed and constructed, violate federal
statutes. [Id. ¶ 6]. Blackledge specified
and/or approved the design features that form the basis of
plaintiffs' claims. [Id. ¶ 7]. Thus,
“in the event it is determined that Plaintiffs'
suit allegations are correct, in whole or in part, the
Carland Group and Cherokee are entitled to judgment over and
against Blackledge to the extent of any damages awarded in
favor of Plaintiffs.” [Id.]. Carland Group and
Cherokee Meadows, LP further seek from Blackledge attorneys
fees and costs incurred in defending this lawsuit.
Motion to Dismiss Standard
considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
a court must determine whether the plaintiff has stated a
claim upon which relief can be granted. A complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The plausibility
requirement “does not impose a probability requirement
at the pleading stage; it simply calls for enough fact to
raise a reasonable expectation that discovery will reveal
evidence” of the conduct necessary to make out the
claim. Id. at 556. “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
court “must determine whether the complaint
sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the
legal theory proposed.” Lane v. Simon, 495
F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir.
seeks dismissal of the Crossclaim on the basis of federal
preemption, arguing that the FHA, ADA, and Rehabilitation Act
preempt Carland Group and Cherokee Meadows' state law
indemnity claim. [Doc. No. 30]. In response, Carland Group
and Cherokee Meadows assert that the crossclaim is not solely
for indemnity, and, instead, is premised on multiple theories
of recovery including: (1) breach of contract; (2) express or
implied indemnity arising from the parties' contractual
relationship; (3) negligence; and (4) contribution. [Doc. No.
40, pp. 3-4, 7-8]. Accordingly, the court will first consider
the nature of Carland Group and Cherokee Meadows'
Nature of Crossclaim
previously stated, the Crossclaim alleges, “in the
event it is determined that Plaintiffs' suit allegations
are correct, in whole or in part, then Carland Group and
Cherokee are entitled to judgment over and against Blackledge
to the extent of any damages awarded in favor of
Plaintiffs.” [Doc. No. 18, ¶ 7]. Accordingly, if
judgment is entered against Carland Group and Cherokee
Meadows, these defendants seek judgment “in the
same amount over and against” Blackledge, as
well as all attorneys' fees and costs. [Id., p.
18 (emphasis added)].
Oklahoma law, “[i]ndemnity is available where
‘one party has a primary liability or duty that
requires that party to bear the whole of the burden as
between certain parties.'” Caterpillar Inc. v.
Trinity Indus., Inc., 134 P.3d 881, 886 (Okla.Civ.App.
2005) (quoting Thomas v. E-Z Mart Stores, Inc., 102
P.3d 133, 139 (Okla. 2004)). “The right exists when one
who is only constructively liable to the injured party and is
in no manner responsible for the harm is compelled to pay
damages for the tortious act of another.” Id.
No right of indemnity exists between joint tortfeasors.
Thomas, 102 P.3d at 140.
on the other hand, “allows a plaintiff's loss to be
distributed between or among joint tortfeasors pro rata,
whether or not plaintiff sued all the tortfeasors.”
Guideone Am. Ins. Co. v. Shore Ins. Agency, Inc.,
259 P.3d 864, 870 (Okla.Civ.App. 2011). Oklahoma provides a
statutory right of contribution, but such right “exists
only in favor of a tort-feasor who has paid more than their
pro rata share of the common liability, and the total
recovery is limited to the amount paid by the tort-feasor in
excess of their pro rata share.” 12 Okla. Stat. §
832(B). No. right of contribution exists for claims
“that the party against whom contribution is sought is
solely liable to the plaintiff, or that the party seeking
contribution is not liable at all.” Daugherty v.
Farmers Coop. Ass'n, 790 P.2d 1118, 1120-21
the Crossclaim disclaims Carland Group and Cherokee
Meadows' liability and seeks to recover for the entirety
of any judgment entered against the crossclaimants in this
case. [Doc. No. 18, pp. 17-18]. Although Carland Group and
Cherokee Meadows now assert that they “do not
seek to recover from Blackledge for their own alleged
violations of those federal regulations” and
“merely seek to ensure Blackledge shares proportionally
in its responsibility for Plaintiffs' damages (if any) .
. . ., ” [Doc. No. 40, pp. 2-3], the Crossclaim cannot
reasonably be construed to seek only those damages
attributable to Blackledge. As previously stated, the
Crossclaim seeks judgment “in the same amount and over
and against [Blackledge]” of any judgment in favor of
plaintiffs against Carland Group and Cherokee Meadows, and
includes no limitation to Blackledge's
negligence-i.e., Blackledge's pro rata share.
[Doc. No. 18, pp. 17-18]. Because the Crossclaim effectively
seeks to shift all liability to plaintiffs from Carland Group
and Cherokee Meadows to Blackledge, the ...