United States District Court, S.D. Ohio, Eastern Division
Vascura Magistrate Judge.
OPINION AND ORDER
C. SMITH, JUDGE.
matter is before the Court upon Plaintiff Anheuser-Busch,
LLC's Motion to Dismiss Defendant Atlas Industrial
Holdings, LLC's Counterclaim (Doc. 18). Defendant opposed
Plaintiff's Motion (Doc. 24) and Plaintiff replied in
support (Doc. 26). This matter is now ripe for review. For
the following reasons, Defendant's Motion is
DENIED in part and GRANTED in
lawsuit arises out of work Atlas Industrial Holdings, LLC
(“Atlas”) performed at an Anheuser-Busch, LLC
(“Anheuser-Busch”) brewery in Columbus. The
parties contracted for the work under a document called the
“Master Project Agreement.” (See Doc.
1-1, Master Project Agreement). Atlas agreed with
Anheuser-Busch to remove rusted angle iron and obsolete
brackets from a can pasteurizer. (Doc. 1, Compl. at
¶¶ 19-20). Unfortunately, while Atlas was
performing the contractually agreed-upon work, Anheuser-Busch
alleges an Atlas employee negligently used an acetylene torch
and started a fire, causing damage to the brewery building
and the products and materials in the building. (Id.
at ¶¶ 2, 27, 34). Ultimately, Anheuser-Busch
submitted a claim to its insurance company, Lexington
Insurance Company, but Lexington's coverage decision is
not available to this Court.
lawsuit seeks damages against Atlas for its allegedly
negligent actions and for breach of contract. Atlas's
counterclaim asks for declaratory judgment against
Anheuser-Busch, alleging that Anheuser-Busch was
contractually responsible for “procur[ing] a separate
All Risk Bui[l]der's Risk policy or (2) rely[ing] on its
existing all-risk property insurance policy.” (Doc. 8,
Answer and Countercl. at ¶ 75). Accordingly, Atlas asks
the Court to affirmatively rule that Anheuser-Busch is liable
for some or all of the damages suffered because
Anheuser-Busch either failed to obtain an adequate insurance
policy or that Anheuser-Busch's insurance policy with
Lexington Insurance is responsible for the payment of damages
arising from the fire. Anheuser-Busch now moves to dismiss
Atlas' Counterclaim because Anheuser-Busch alleges the
Counterclaim is not yet ripe and because Anheuser-Busch
alleges the Master Project Agreement did not require
Anheuser-Busch to obtain insurance for the work Atlas
STANDARD OF REVIEW
brings this motion pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, alleging that Atlas failed to state
a claim upon which relief can be granted.
the Federal Rules, any pleading that states a claim for
relief must contain a “short and plain statement of the
claim” showing that the pleader is entitled to such
relief. Fed.R.Civ.P. 8(a)(2). To meet this standard, a party
must allege sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A claim will be
considered “plausible on its face” when a
plaintiff sets forth “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).
12(b)(6) allows parties to challenge the sufficiency of a
complaint under the foregoing standards. In considering
whether a complaint fails to state a claim upon which relief
can be granted, the Court must “construe the complaint
in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” Ohio Police & Fire
Pension Fund v. Standard & Poor's Fin. Servs.
LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting
Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
2007)). However, “the tenet that a court must accept a
complaint's allegations as true is inapplicable to
threadbare recitals of a cause of action's elements,
supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663. Thus, while a court is to
afford plaintiff every inference, the pleading must still
contain facts sufficient to “provide a plausible basis
for the claims in the complaint”; a recitation of facts
intimating the “mere possibility of misconduct”
will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of
Mich., Inc., 491 F. App'x 628, 632 (6th Cir. 2012);
Iqbal, 556 U.S. at 679.
Master Project Agreement has a section called
“Builder's Risk Property Insurance” which
Atlas alleges required Anheuser-Busch to obtain adequate
insurance coverage for the damage caused in this case.
Anheuser-Busch argues that the Builder's Risk Coverage
provision in the Master Project Agreement does not apply here
and thus, Atlas's counterclaim has no merit.
Anheuser-Busch further argues that it did get the coverage
required by the Master Project Agreement and that the
counterclaim is not ripe.
Court will address each of Anheuser-Busch's arguments in