United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
Spring Lake Pork (SLP) brings contract and tort actions
against Great Plains Management (GPM), which had entered a
“Management Agreement” with plaintiff relating to
the operation of a pig farm and breeding facility in
Curryville, Missouri. Great Plains in turn filed a
counterclaim against Spring Lake. Great Plains also filed a
third-party complaint against Swine Management Services
(SMS), seeking indemnity and/or contribution in the event it
is found liable to Spring Lake. Great Plains alleges that
Swine Management also performed management services for
Spring Lake, and did so negligently, thus causing the damages
that Spring Lake seeks from Great Plains. Swine Management
moves to dismiss the third-party complaint under Fed.R.Civ.P.
12(b)(6). Having reviewed GPM's third-party
complaint in light of the relevant standard,  I will permit its
claim to proceed.
state a claim for negligence under Missouri law, “the
plaintiff must allege that the defendant had a duty of care
to protect the plaintiff from injury, the defendant failed in
performing the duty, and the defendant's failure
proximately caused harm to the plaintiff.” A.O.A.
v. Rennert, 350 F.Supp.3d 818, 840 (E.D. Mo. 2018)
(citing Lopez v. Three Rivers Elec. Co-op., Inc., 26
S.W.3d 151, 155 (Mo. banc 2000)). Great Plains alleges Spring
Lake retained Swine Management to “perform certain
management services” at SLP's facility, and that
its managerial role “was at all times superior to that
of GPM . . . .” Id. GPM further alleges SMS
acted negligently in four different ways,  and that
SMS's negligence proximately caused SLP's damages.
opposition, Swine Management contends that it did not owe any
duty of care to Spring Lake regarding the management of the
facility. Swine Management filed, in support of its motion, a
“Service Agreement” between it and SLP, which SMS
contends shows that its role was limited to
“[providing] production and financial
reports-nothing more.” ECF 20 at pg. 5;
see Service Agreement, ECF 21-1, Ex. A.
Alternatively, Swine Management alleges that Great Plains was
“the exclusive manager of [Spring Lake's
facility]” under the contract between SLP and GPM, so
any duty SMS may have owed (or breached) to SLP was
independent of GPM's contractual obligations.
to the extent GPM argues that I cannot consider the service
agreement on this motion to dismiss, GPM is incorrect. Courts
may consider documents “necessarily embraced by the
complaint, ” Ashanti v. City of Golden Valley,
666 F.3d 1148, 1151 (8th Cir. 2012), as well as documents
“incorporated by reference, or integral to the
claim” in assessing a 12(b)(6) motion to dismiss.
See Dittmer Properties, L.P. v. F.D.I.C., 708 F.3d
1011, 1021 (8th Cir. 2013) (quoting Miller v. Redwood
Toxicology Lab., Inc., 688 F.3d 928, 931 n. 3 (8th Cir.
2012). “[T]he contracts upon which [a] claim rests . .
. are evidently embraced by the pleadings.” Mattes
v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir.
2003); see also Stahl v. U.S. Dep't of Agric.,
327 F.3d 697, 700 (8th Cir. 2003) (“In a case involving
a contract, the court may examine the contract documents in
deciding a motion to dismiss.”). GPM's third-party
complaint alleges that the services Swine Management
performed for Spring Lake “were either defined by a
contract between SLP and SMS or otherwise agreed upon by
those parties.” ECF 8 at p. 28, ¶4. This is
sufficient to “reference” the service agreement,
so I may consider it and need not convert SMS's motion to
dismiss into a motion for summary judgment. See Gorog v.
Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014).
service agreement does not dictate the outcome of this
motion. Assuming the truth of Great Plains' factual
allegations and giving GPM the benefit of all reasonable
inferences, GPM has alleged sufficient facts to support a
reasonable inference that SMS can be held liable for the
alleged negligent acts. Neither Swine Management's
service agreement with Spring Lake, nor the agreement between
SLP and GPM, establish that SMS's responsibilities at
SLP's facility were exclusively limited to generating
reports. Moreover, the third-party complaint alleges that
“SMS performed a role at the Facility which was at all
times superior to that of GPM and performed services which
had a direct impact upon the productivity and profitability
of the Facility.” ECF 8 at p. 29, ¶ 5. Great
Plains alleges that it cannot be more specific without
discovery, but it represents in its brief that it already has
emails and other documents that provide support for the
allegations. These allegations are sufficient for the
third-party claim to proceed; a party is not required to
prove its allegations in its pleadings, and Swine
Management's service agreement cannot, on its own, form a
basis for dismissal of the third-party complaint.
the existence and scope of Swine Management's managerial
duties at Spring Lake's facility, as well as the
interrelation and hierarchy between the respective
obligations of Great Plains and Swine Management pertaining
to the services they performed at the facility, involve
factual questions which are more properly resolved after the
parties have had a full opportunity to conduct discovery.
IT IS HEREBY ORDERED that third-party
defendant Swine Management Services' Motion to Dismiss
 is DENIED.
Rule 16 scheduling conference remains set for
December 20, 2019 at 10:30 AM. Third-party
defendant is reminded of its obligation to answer the
third-party complaint within the time set by the rules.
 This case is complicated procedurally
because after the briefing on Swine Management's motion
to dismiss the third-party complaint concluded, Spring Lake
was granted leave to amend its complaint [ECF 31]. Great
Plains and the newly-added defendants have not yet responded
to Spring Lake's amended complaint. However, Great
Plains' third-party complaint against Swine Management
remains pending and is not dependent on the response Great
Plains will file against Spring Lake's amended complaint,
so it is appropriate that I rule now on Swine
Management's motion to dismiss the third-party
 When considering a Rule 12(b)(6)
motion, I assume the factual allegations of the complaint to
be true and construe them in favor of the plaintiff.
Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). To
survive dismissal, a complaint must contain “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007);
accord Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). It need not contain “detailed factual
allegations, ” but it must contain facts with enough
specificity “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
The issue in determining a Rule 12(b)(6) motion is not
whether the plaintiff will ultimately prevail, but whether he
is entitled to present evidence in support of the claim.
See Skinner v. Switzer, 562 U.S. 521, 529-30 (2011)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
 Specifically, GPM alleges SMS 1)
negligently failed to manage the facility to avoid the
development of PRRS, stray voltage, and contaminated water;
2) negligently established unreasonable production goals; 3)
negligently failed to prevent the provision of contaminated
water to the pig population; and 4) negligently failed to
manage SLP's facility in ...