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Demien Constr. Co. v. O'Fallon Fire Protection District

United States District Court, E.D. Missouri, Eastern Division

December 11, 2014

DEMIEN CONSTRUCTION CO., Plaintiff,
v.
O'FALLON FIRE PROTECTION DISTRICT, Defendant

Page 968

For Demien Construction Co., Plaintiff: Joshua M. Avigad, Lawrence P. Kaplan, LEAD ATTORNEYS, KAPLAN ASSOCIATES, L.L.C., Clayton, MO.

For O'Fallon Fire Protection District, Defendant: Lawrence R. Smith, LEAD ATTORNEY, James E. Beal, BRINKER AND DOYEN, St. Louis, MO.

Page 969

MEMORANDUM AND ORDER

JOHN A. ROSS, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Defendant O'Fallon Fire Protection District's Rule 12(b)(6) Motion to Dismiss. (Doc. No. 11) The motion is fully briefed and ready for disposition.[1] For the following reasons, the motion will be granted.

I. Background

Plaintiff brings this action under 42 U.S.C. § 1983 alleging a violation of due process under the First and Fourteenth Amendments. Plaintiff also alleges state law claims for violation of Mo. Rev. Stat. § 321.220(4), and the Missouri Constitution. According to Plaintiff, during the spring of 2014, the District solicited a bid from it for the general construction of a new fire house. (First Amended Complaint (" FAC" ), Doc. No. 3 at ¶ ¶ 7-8) The " INVITATION TO BID" incorporated by reference a " Recommended Guide for Bidding Procedures and Contract Awards" published by the American Institute of Architects to guide all bidding. (Doc. No. 3-1 at 5) The Guide provides that " [t]he contract should be awarded to the lowest responsible bidder." (Doc. No. 3-2 at 10) Plaintiff submitted the " lowest responsible bid" for the general construction on the fire house. (FAC at¶ 9) On May 27, 2014, the District awarded the contract to another general contractor with a higher bid. (Id. at¶ 11)

Plaintiff alleges that " by not awarding the bid for general construction of the fire house to [Plaintiff], the District did not meet the basic standards of due process under the First and Fourteenth Amendments of the United States Constitution as well as the Missouri Constitution because the District did not have objective data to not award the contract to [Plaintiff] on more than surmise, guesswork, or gut feeling." (FAC at ¶ ¶ 18, 28) Plaintiff further alleges that under Mo.Rev.Stat. § 321.220(4), the contract was not fairly bid. (Id. at ¶ ¶ 24-27) Plaintiff seeks damages for lost profits and loss of goodwill and business reputation as well as punitive damages.

II. Legal standard

In ruling on a motion dismiss under Rule 12(b)(6), the Court must view the allegations in the complaint in the light most favorable to Plaintiff. Foster v. Deutsche Bank Nat. Trust Co., 2012 WL 5285887, 2 (E.D.Mo. Oct. 25, 2012) (citing Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008)). The Court " must accept the allegations contained in the complaint

Page 970

as true and draw all reasonable inferences in favor of the nonmoving party." Id. (quoting Coons v. Mineta,410 F.3d 1036, 1039 (8th Cir. 2005)). The complaint's factual allegations must be sufficient " to raise a right to relief above the speculative level," however, and the motion to dismiss must be granted if the complaint does not contain " enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly,550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating the " no set of facts" standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Thus, a dismissal under Rule 12(b)(6) should be granted " only in the unusual case in which a plaintiff includes allegations that show, on the face of the complaint, that there is some insuperable bar to relief." Strand v. Diversified Collection Serv., Inc.,380 F.3d 316, 317 (8th Cir. 2004). The issue on a motion to dismiss ...


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