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Shaw v. Cherokee Meadows, LP

United States District Court, N.D. Oklahoma

June 12, 2018

DELLA SHAW, SHERLYNE TURNER, BERTHA JOHNSON and MARTHA RAND, Plaintiffs,
v.
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

         This 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 granted.

         I. Background and Allegations of the Contingent Crossclaim

         This 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[1]; and (5) breach of contract.

         Defendants 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. [Id.].

         II. Motion to Dismiss Standard

         In 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. 2007)).

         III. Analysis

         Blackledge 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.[2] [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' Crossclaim.

         A. Nature of Crossclaim

         As 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)].

         Under 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.

         Contribution, 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 (Okla.Civ.App. 1989).

         Here, 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 ...


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