JOHNSON BROS. CORP.

v.

WSP USA, INC.

In this dispute arising from a construction contract, Volusia Count moves to dismiss three of the thirty-eight claims that Johnson Bros. Corp asserts against it in the Third Amended Complaint (TAC) (Doc. 36). (Mot Dism., Doc. 40). Having considered the motion and related filings,! the Cour grants in part and denies in part the County’s motion. I. Background? In February 2016, Johnson and the County entered into a contract (the Construction Agreement) for replacement of the Veterans Memorial Bridge ove¹ the Halifax River. (See TAC § 5; Construction Agreement, Doc. 36-13). Johnsor began work on the project in June 2016, (TAC § 6), and submitted monthls

applications to the County for progress payments, (id. § 7).

The Construction Agreement includes provisions describing the procedur for Johnson to submit claims to the County for “Extra Work” and “Delay.” (Doc 36-1, Article 5-12 (“Claims by Contractor’)).

While working on the project Johnson “encountered numerous issues encumbering and delaying it: performance” and submitted “Notices of Intent to File Claim” (NOIs) to th County related to those issues. (Jd. § 8).

Johnson also submitted writter certified claims corresponding to those NOIs. (See id. § 10).

In the 38-count⁴ TAC, Johnson asserts, inter alia, numerous claims fo: breach of contract, many of which arise from the claims that it submitted for extra work and delay. Counts 34 and 36 correspond, respectively, to NOI 04< (for the “Pier 11&⁴ Cracking Claim”) and NOI 045 (for the “Preformed Pile Delay Claim”).

And in Count 36, Johnson brings a claim titled “Breach o Construction Agreement—Quantum Meruit.” The County now moves tc dismiss Counts 34, 36, & 38 under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim on which relief can be granted. The County also contend that the quantum meruit claim in Count 38 is barred by sovereign immunity.⁵

II. Legal Standards

“A pleading that states a claim for relief must contain ...a short and plan statement of the claim showing that the pleader is entitled to relief.” Fed. R Civ. P. 8(a)(2). “[D]etailed factual allegations” are not required, but “[a pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of th elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 67: (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). [...] survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficien factual matter, accepted as true, to ‘state a claim to relief that is plausible on it: face.” Id. (quoting Twombly, 550 U.S. at 570).

In considering a motion tc dismiss brought under Rule 12(b)(6), a court limits its “consideration to the well pleaded factual allegations, documents central to or referenced in the complaint and matters judicially noticed.” LaGrasta v.

First Union Sec., Inc., 358 F.3¢ 840, 845 (11th Cir. 2004). “A copy of a written instruction that is an exhibit tc a pleading is a part of the pleading for all purposes,” Fed. R. Civ. P. 10(c) including for the purpose of resolving a 12(b)(6) motion to dismiss, Solis.

Ramirez v. U.S. Dep’t of Just., 758 F. 2d 1426, 1430 (11th Cir. 1985).

III. Discussion

A. Counts 34 and 36

In Count 34,6 Johnson alleges a breach of contract claim arising from “th 044 Pier 11&⁴ Cracking Claim.” (TAC at 45-46).

Johnson asserts that i submitted that claim “in accordance with the Construction Agreement,” (id {| 229), that the County breached the Construction Agreement by failing to pa’ the claim, (td. § 230-31), and that Johnson has been damaged thereby in thi amount of $632,399.00, (id. §] 232).

Similarly, in Count 36,7 Johnson alleges ; breach of contract claim arising from “the 045 Preformed Pile Delay Claim. (TAC at 47—48).

Johnson asserts that it submitted that claim “in [...] with the Construction Agreement,” (id. § 243), that the County breached thx Construction Agreement by failing to pay the claim, (id. § 244-45), and tha Johnson has been damaged thereby in the amount of $482,230.00, (id. 4 246) And at the beginning of the TAC, Johnson alleges that “[a]ll condition: precedent to the filing of this action have occurred or have been waived.” (TAC⁴ 18).

The County argues for the dismissal of Counts 34 and 368 on the basis

that Johnson did not comply with the notice requirements of the Constructio: Agreement. But none of the cases the County cites in support of this argumen involved a motion to dismiss; instead, all involved factual findings made after : trial or hearing. See Marriott Corp. v. Dasta Constr. Co., 26 F. 3d 1057 (11th Cir 1994) Gury trial); Broward Cnty. v. Brooks Builders, Inc., 908 So. 2d 536 (Fla 4th DCA 2005) (bench trial); Tuttle/ White Constructors, Inc. v. State Dep’t o Gen. Servs., 371 So. 2d 1096 (Fla. 1st DCA 1979) (hearing officer findings) Inland Dredging Co. v. Panama City Port Auth., 190 F. App’x 906 (11th Cir 2006) (bench trial).

Although the County urges that the exhibits attached to th: TAC—which the Court may properly consider on a motion to dismiss—establisl that Johnson did not timely submit required documentation to the County, the question whether Johnson complied with the contractual requirements fo: submitting claims or was excused from doing so by actions of the County 01 otherwise cannot be resolved at the motion-to-dismiss stage. See, e.g., Cap Sales & Mktg., Inc. v. NCL (Bahamas) Ltd., Case No. 1:19-cv-20736, 2020 WI 6263012, at *3 (S.D. Fla. Oct. 23, 2020) (“Defendant’s arguments essentialls require the Court to analyze and interpret the language of the Contract anc come to conclusions as to what transpired between the parties and the reasons for the parties’ respective actions. ... Defendant’s arguments are more properly

Counts 34, 35, and 38, (see id. at 28-31) rather than Counts, 34, 36, & 38.

presented at summary judgment, following discovery and a fully-develope record.”).

Thus, the County’s motion to dismiss Counts 34 and 36 will be denied

B. Count 38

The County argues that Count 38 of the TAC (titled “Breach o Construction Agreement—Quantum Meruit”) fails to state a claim for whicl relief can be granted because an express contract exists between the parties Additionally, the County contends that sovereign immunity bars this claim This claim is confusingly asserted, but it is clear that to the extent it sounds i quantum meruit it is indeed barred by sovereign immunity. The doctrine of sovereign immunity does not protect the state of Florid: or its subdivisions from breach-of-contract claims. Pan-A4m Tobacco Corp. v Dep’t of Corrs., 471 So. 2d 4, 5-6 (Fla. 1984).

But it does bar quantum [...] and similar claims against state entities that are based on an implied contract See, e.g., Champagne-Webber, Inc. v. City of Ft. Lauderdale, 519 So. 2d 696, 69° (Fla. 4th DCA 1988) (citing authorities and agreeing with trial court that quantum meruit count was barred by sovereign immunity).

Count 38 will be dismissed based on lack of subject-matter jurisdiction, but Johnson is [...] leave to amend to restate this count as something other than quantum meruit.

IV. Conclusion

In accordance with the foregoing, it is ORDERED as follows: 1. The County’s Motion to Dismiss (Doc. 40) is GRANTED in part

and DENIED in part. The motion is granted as to Count 38. Count 38 i DISMISSED without prejudice based on sovereign immunity, but Johnso is granted leave to replead it. The motion is DENIED as to Counts 34 and 36 2. Johnson may file a fourth amended complaint on or before Jul: 25, 2022. If Johnson does so, it shall correct the error in the numbering of th counts that pervades the TAC. DONE and ORDERED in July 122622. _ / C_ /JOHN ANTOON II Us ted States District Judge Copies furnished to: Counsel of Record