Filed: Jun. 25, 2012
Latest Update: Jun. 25, 2012
Summary: MEMORANDUM OPINION AND ORDER W. HAROLD ALBRITTON, Senior District Judge. I. INTRODUCTION This case is before the court on a Motion to Dismiss filed by Countertop Visions, Inc. (Doc. #7) The Plaintiff, a citizen of Alabama, filed a Complaint in this case on May 1, 2012, in the Circuit Court of Houston County, Alabama. She brings claims of theft, conversion, or wrongful taking for the loss of jewelry against Lowe's Home Centers, Inc. and Countertop Visions, Inc. She seeks $100,000.00 in damag
Summary: MEMORANDUM OPINION AND ORDER W. HAROLD ALBRITTON, Senior District Judge. I. INTRODUCTION This case is before the court on a Motion to Dismiss filed by Countertop Visions, Inc. (Doc. #7) The Plaintiff, a citizen of Alabama, filed a Complaint in this case on May 1, 2012, in the Circuit Court of Houston County, Alabama. She brings claims of theft, conversion, or wrongful taking for the loss of jewelry against Lowe's Home Centers, Inc. and Countertop Visions, Inc. She seeks $100,000.00 in damage..
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MEMORANDUM OPINION AND ORDER
W. HAROLD ALBRITTON, Senior District Judge.
I. INTRODUCTION
This case is before the court on a Motion to Dismiss filed by Countertop Visions, Inc. (Doc. #7)
The Plaintiff, a citizen of Alabama, filed a Complaint in this case on May 1, 2012, in the Circuit Court of Houston County, Alabama. She brings claims of theft, conversion, or wrongful taking for the loss of jewelry against Lowe's Home Centers, Inc. and Countertop Visions, Inc. She seeks $100,000.00 in damages.
The Defendants removed the case to this court on May 30, 2012, on the basis of diversity subject matter jurisdiction. They represent in the Notice of Removal that Lowe's Home Center, Inc. is a citizen of North Carolina and that Countertop Visions, Inc. is a citizen of Florida. It appears that the court has diversity subject matter jurisdiction in this case.
For the reasons to be discussed, the Motion to Dismiss is due to GRANTED.
II. MOTION TO DISMISS
The court accepts the plaintiff's factual allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor, Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by a two-prong approach: one, the court is not bound to accept conclusory statements of the elements of a cause of action and, two, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). "[A] plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Id. (citation omitted). To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," but instead the complaint must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. The factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555.
III. FACTS
The submissions of the parties establish the following facts, construed in a light most favorable to the non-movant:
The Plaintiff, Deborah Abercrombie ("Abercrombie"), alleges in her Complaint that she contracted with the Defendant Lowe's Home Centers, Inc. at its Dothan, Alabama store for work to be done at her home. She alleges that the Defendants' contractors, subcontractors, agents, servants, or employees committed an act of theft, conversion, or wrongful taking of a diamond ring and ring guard from her home. She states that the ring is a yellow gold 14 ct. band with a Tiffany 6 prong 1.75 ct diamond, and that the ring guard contains two 1.05 ct. diamonds. She values her damages at $100,000.00.
IV. DISCUSSION
Countertop Visions, Inc. ("Countertop Visions") moves to dismiss the claims against it, arguing that under Alabama law, for an employer to have vicarious liability for the actions as alleged, the actions must have been taken within the line and scope of the employee's employment or been in furtherance of the business. See, e.g., Shoney's Inc. v. Barnett, 773 So.2d 1015 (Ala. Civ. App. 1999). Countertop Visions states that the claims in this case do not allege that the theft, conversion, or wrongful taking was within the line and scope of employment or in furtherance of the business. Countertop Visions also contends that Abercrombie has not pled a basis for holding it liable for punitive damages.
Abercrombie responds that the Alabama cases cited by Countertop Visions are not pleading cases, but instead are cases which discuss the proof necessary to establish claims based on vicarious liability. Abercrombie argues that she has met the pleading standard, but she cites the former federal pleading standard, not the standard applied in the Supreme Court's decisions in Iqbal and Twombly, discussed above. Abercrombie alternatively states that she can amend her Complaint to state that a basis for liability. (Doc. #19).
It appears that Abercrombie intends to allege that Countertop Visions' employees, not independent contractors, were responsible for her loss, and contends that there are facts which support a plausible claim of vicarious liability and punitive damages under Alabama law. At this point, however, the Complaint does not contain any facts which refer specifically to Countertop Visions' employees. Therefore, the court will dismiss the claims against Countertop Visions without prejudice, and will give Abercrombie additional time in which to amend her Complaint so as to meet the Iqbal/Twombly standard.
V. CONCLUSION
For the reasons discussed, the Motion to Dismiss is GRANTED, and the claims against Countertop Visions, Inc. are DISMISSED without prejudice.
The Plaintiff is given until July 27, 2012 to file an Amended Complaint, complete unto itself, see M.D. Ala. Local R. 15.1, which meets the pleading standard of Iqbal/Twombly, as set out above, and which meets the requirements of Fed. R. Civ. P. 11, in setting forth the factual basis of liability and of liability for punitive damages against Countertop Visions, Inc. in this case.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
Rev.: 4/04
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
