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Harbison v. Rich Gullet and Sons, Inc.

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

April 9, 2015

RICH GULLET AND SONS, INC., et al, Defendants.



This case is before the Court on two motions filed by Defendant/Counterclaim Defendant McDonough-Whitlow, P.C. ("McDonough") requesting that the Court dismiss indemnity counterclaims and cross-claims against McDonough brought by Defendant/Counterclaimant McGrath & Associates, Inc. ("McGrath") and Defendant Rich Gullet and Sons, Inc. ("Rich Gullet"). (Docs. 124, 125). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 9).


On October 20, 2011, Plaintiff Fred Harbison ("Plaintiff") was delivering a heavy piece of concrete vault for a construction project at a job site when the concrete vault section fell on his truck during the unloading process, causing him injury. Plaintiff asserted claims of negligence against Rich Gullet, the company responsible for unloading the concrete vault section, and McDonough, the company that produced engineering drawings and instructions for use in lifting the vault.

Rich Gullet then brought cross-claims for indemnity and contribution against McDonough (Doc. 25), which Rich Gullet later amended. (Doc. 115).[2] McDonough brought a third-party complaint for contribution against McGrath, the general contractor that contracted with the owner of the job site to provide labor and equipment for the construction project. (Doc. 35, 109). McGrath then brought a counterclaim for contribution and indemnity against McDonough. (Doc. 119).

In the instant motions, McDonough seeks to dismiss (1) McGrath's counterclaim for indemnity and (2) Rich Gullet's cross-claims for indemnity.


A. Legal Standard for Motion to Dismiss

When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all of the factual allegations in the complaint, though it need not accept the legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the plausibility standard "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The complaint must contain "more than labels and conclusions, " and "a formulaic recitation of the elements of the cause of action will not do." Twombly, 550 U.S. at 555.

B. McGrath's Indemnity Counterclaim

McGrath alleges a single "Claim for Contribution" against McDonough. McGrath alleges that McDonough was negligent in various ways in providing engineering services regarding the construction project, and that McDonough is or may be liable to McGrath for all or part of a claim asserted against McGrath. However, one paragraph of the counterclaim contains a mention of "indemnity": McGrath states, "McGrath denies that it was negligent, and denies any liability to Plaintiff, but if any verdict or judgment is entered against McGrath, then McGrath pleads in the alternative that in the event judgment is entered against it, it may obtain indemnity and contribution from McDonough-Whitlow to the extent its negligence, liability and fault caused Plaintiff to sustain any such injury or damages." (Doc. 119, at ¶ 19) (emphasis added).

McDonough argues that McGrath has failed to state a claim for "indemnity, " noting that McGrath has failed to allege any of the elements of equitable indemnity and simply improperly comingles a claim for "indemnity" with its claim for contribution. In its response, McGrath states that its claim is one for contribution rather than indemnity, that any use of the word "indemnity" to characterize its claim may be stricken, and the request for relief should be read as a request for contribution rather than indemnity. (Doc. 134, ¶ 4).

Because the parties agree that McGrath's counterclaim against McDonough is for contribution only, and not for indemnity, the Court will strike the word "indemnity" from Paragraph 19 of Document 119. See Fed.R.Civ.P. 12(f) ("The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter... on its own."). McDonough's motion to ...

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