United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN United States District Judge.
matter is before the Court upon Fannie May Confections,
Inc.'s Motion to Dismiss Defendant Equity Industrial
Maple Heights, LLC's Third Party Complaint against Third
Party Defendant Fannie May Confections, Inc., a/k/a Fannie
May Confections Brands, Inc. (Doc. 47). Also pending are the
Third-Party Defendant Fannie May Confections, Inc. a/k/a
Fannie May Confections Brands, Inc.'s Motion to Dismiss
“Cross-Claim” of Defendant Tempest, Inc. (Doc.
58) and Motion to Dismiss of Third Party Defendant Fannie May
Confections, Inc. a/k/a Fannie May Confections Brands, Inc.
the Cross-Claim of Fire Protection, Inc. (Doc. 74). This is
an insurance case arising out of a warehouse fire. For the
reasons that follow, the motions are GRANTED.
purposes of ruling on the pending motions, the facts asserted
in the relevant complaints are presumed true.
Continental Casualty Company (“Continental
Casualty”), filed this action as subrogee to its
insured, Fannie May Confections, Inc. a/k/a Fannie May
Confections Brands, Inc. (“Fannie May”), seeking
recovery for amounts it paid to Fannie May for losses
sustained as the result of a warehouse fire. The initial
complaint is filed against defendant, Equity Industrial Maple
Heights, LLC (“Equity”).
to the complaint, Equity owns a large warehouse in Maple
Heights, Ohio. Fannie May entered into a lease agreement with
Equity. During the lease term, a large fire broke out at the
warehouse causing extensive damage. Continental Casualty
alleges that the compressed air component of the fire
suppression system was disabled. In addition, the fire
suppression system lacked an adequate water supply and thus
was unable to control the fire until the fire department
arrived. Ultimately, it appears that plaintiff paid Fannie
May $55 million for the damage to property stored at the
warehouse. As a result of the payment, plaintiff became
subrogated to the rights of Fannie May.
Casualty then filed an amended complaint adding new party
defendants, Commercial Property Maintenance, LLC
(“Commercial Maintenance”), Fire Protection, Inc.
(“Fire Protection”), and Tempest, Inc.
(“Tempest”). Continental Casualty alleges that
Commercial Maintenance was responsible for maintaining,
servicing and inspecting the property, including the
inspection of the fire suppression system and the water
supply connected thereto. Fire Protection is also alleged to
have serviced and maintained the fire suppression system.
was retained by Fannie May to service and maintain the
ammonia refrigeration system used by Fannie May for the
operation of freezers and cooler units used for the storage
of food and perishable items. According to the amended
complaint, Tempest employees came to the property in response
to an after-hours alarm. Continental Casualty alleges that
the actions or inaction of Tempest employees caused an
explosion due to the ammonia levels at the property, which
resulted in the fire at issue.
Casualty asserts negligence claims against all defendants and
further asserts breach of contract claims against Equity and
Tempest. Equity, in turn, filed a third-party complaint
against a number of entities, including Fannie May. Equity
alleges that Fannie May was contractually responsible for
maintaining the sprinkler system. In addition, Equity claims
that a provision the parties' lease agreement provides
that Fannie May will indemnify Equity for any damages
incurred as a result of Fannie May's improper conduct.
Specifically, Equity asserts claims for breach of contract,
contribution pursuant to R.C. § 2307.25, contractual and
common law indemnification, and “res ipsa
loquitur” against Fannie May. In their answers to the
amended complaint, both Tempest and Prevention Fire filed
cross-claims for contribution against Fannie May on that
grounds that, to the extent Tempest or Prevention Fire is
found liable to Continental Casualty, Fannie May is liable
for all or a portion of the damages as a result of Fannie
May's own conduct.
May now moves to dismiss the claims asserted by Equity in the
third-party complaint. Fannie May also moves to dismiss the
claims asserted as cross-claims by Tempest and Fire
Protection. Equity and Tempest opposed the motions, but Fire
Prevention did not.
considering a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the allegations of the
complaint must be taken as true and construed liberally in
favor of the plaintiff. Lawrence v. Chancery Court of
Tenn., 188 F.3d 687, 691 (6th Cir. 1999). Notice
pleading requires only that the defendant be given
“fair notice of what the plaintiff's claim is and
the grounds upon which it rests.” Conley, 355
U.S. at 47. However, the complaint must set forth “more
than the bare assertion of legal conclusions.”
Allard v. Weitzman (In Re DeLorean Motor
Co.), 991 F.2d 1236, 1240 (6th Cir. 1993). Legal
conclusions and unwarranted factual inferences are not
accepted as true, nor are mere conclusions afforded liberal
Rule 12(b)(6) review. Fingers v. Jackson-Madison County
General Hospital District, 101 F.3d 702 (6th Cir. Nov.
21, 1996), unpublished. Dismissal is proper if the
complaint lacks an allegation regarding a required element
necessary to obtain relief. Craighead v. E.F. Hutton
& Co., 899 F.2d 485, 489-490 (6th Cir. 1990).
addition, a claimant must provide “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569
(2007). A pleading that offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1955 (2009). Nor
does a complaint ...