United States District Court, N.D. Indiana, Hammond Division
PNC BANK, NATIONAL ASSOCIATION, f/k/a NATIONAL CITY BANK, SUCCESSOR TRUSTEE OF TRUST #972 DATED MARCH 10, 1960, Plaintiff,
UNITED STATES ARMY CORPS OF ENGINEERS, LITTLE CALUMET RIVER BASIN DEVELOPMENT COMMISSION and WALSH CONSTRUCTION COMPANY, Defendants, LITTLE CALUMET RIVER BASIN DEVELOPMENT COMMISSION, Cross-Claimant,
UNITED STATES ARMY CORPS OF ENGINEERS and WALSH CONSTRUCTION COMPANY, Cross-Defendants.
FINDINGS, REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(b)(1)(B) & (C)
JOHN E. MARTIN, Magistrate Judge.
This matter is before the Court on a Motion [DE 24], filed by Defendant Walsh Construction Company on March 18, 2014, and a Motion to Dismiss [DE 33], filed by Defendant Walsh Construction Company on May 7, 2014.
On May 9, 2014, Judge Joseph S. Van Bokkelen entered an Order [DE 35] referring this matter to the undersigned Magistrate Judge for a report and recommendation on the instant motion pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge's combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the following reasons, the Court recommends that the District Court grant in part and deny in part the motions to dismiss.
Plaintiff PNC Bank, National Association f/k/a National City Bank, Successor Trustee of Trust # 972 dated March 1, 1960 ("the Trust") filed its Complaint on October 16, 2013, for damages arising out of the July 30, 2010, destruction of a rain water drain pipe. It alleges that Defendants United States Army Corps of Engineers ("the Corps"), Little Calumet River Basin Development Commission ("the Commission"), and Walsh Construction Company ("Walsh") were engaged in upgrading a levee on the Trust's property when the drain pipe was destroyed.
On March 18, 2014, Walsh filed its first Motion [DE 24], requesting dismissal of the Trust's claim against it. The Trust filed a response on April 24, 2014, and Walsh filed a reply on May 1, 2014. Also on March 18, 2014, the Commission filed its answer, including a cross-claim against Walsh. On May 7, 2014, Walsh filed its second Motion to Dismiss [DE 33] requesting dismissal of the cross-claim. No response has been filed and the time to do so has passed. The Corps has not appeared or filed any responsive pleadings.
STANDARD OF REVIEW
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and not the merits of the suit. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on such a motion, the Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008).
To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint must first comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), such that the defendant is given "fair notice of what the... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Second, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see also Tamayo, 526 F.3d at 1082. The Supreme Court explained that the "plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (quotation marks and brackets omitted); see also Iqbal, 556 U.S. at 678-79; Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). The Seventh Circuit Court of Appeals has explained that "[t]he complaint must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level.'" Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012) (quoting Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Serv., Inc., 536 F.3d 663, 668 (7th Cir. 2008)). In order "[t]o meet this plausibility standard, the complaint must supply enough fact to raise a reasonable expectation that discovery will reveal evidence supporting the plaintiff's allegations." Indep. Trust Corp., 665 F.3d at 934-935 (quoting Twombly, 550 U.S. at 556) (quotation marks omitted).
In the instant Motions, Walsh moves for the dismissal of the claims and cross-claim pending against it. The Court will first consider Walsh's motion for dismissal of the cross-claim, then will consider its arguments regarding dismissal of counts in the Complaint.
I. Motion to Dismiss Cross-Claim
Walsh moves to dismiss the Commission's cross-claim on the grounds that Indiana does not recognize the non-contractual common law indemnification claim. The Commission did not file a response.
On March 18, 2014, the Commission filed its cross-claim against Walsh for indemnification of the Commission for any judgment rendered against the Commission. The Commission alleges that it was the local sponsor of the levee project, but "had nothing to do with the engineering, construction, or supervision of the project, " and that the Corps "was the project ...