United States District Court, D. Arizona
ORDER
DOMINIC W. L.ANZA UNITED STATES DISTRICT JUDGE
Macy's
Inc. (“Macy's”) sued two defendants, H and M
Construction Co., Inc. (“HMC”) and H and M
Architects/Engineers, Inc. (“HMA”), after a leaky
sprinkler system-which the defendants were allegedly
responsible for designing, installing, and/or supervising the
installation of-caused nearly $3.8 million in damage to
nearly 45, 000 pairs of shoes that Macy's was holding for
sale in an Arizona distribution center. The Court previously
dismissed, without prejudice, the complaint against HMA
because it didn't adequately allege duty or specific
negligent conduct by HMA. (Doc. 64.) The Court also ordered
Macy's to comply with A.R.S. § 12-2602 by filing a
written certification concerning the need for expert
testimony. (Id. at 5-6.)
Macy's
filed an amended complaint. (Doc. 65.) Attached to this
pleading were two exhibits that were intended to satisfy
A.R.S. § 12-2602. (Docs. 65-1, 65-2.) The Court struck
the amended complaint and the two exhibits because Macy's
failed to comply with Local Rule 15.1. (Doc. 66.) In
response, Macy's refiled its amended complaint but failed
to refile the two exhibits. (Doc. 67.) Accordingly, the Court
issued an order requiring Macy's to refile the two
exhibits by November 16, 2018. (Doc. 92.) Macy's ignored
this deadline.
Separately,
HMA has moved to dismiss the amended complaint for failure to
state a claim. (Doc. 70.) The motion is fully briefed and
neither party has requested oral argument.
As
explained below, the Court will deny the motion to dismiss.
The Court also will provide Macy's with one more
opportunity to refile the two exhibits that are necessary to
satisfy its obligations under A.R.S. § 12-2602. Failure
to comply will result in dismissal of this action.
BACKGROUND
Macy's
entered into a contract with HMC in March 2007 in connection
with the construction of an addition to a Macy's
distribution center in Goodyear, Arizona. (Doc. 67
¶¶ 1, 8.) In the contract, HMC represented that HMA
“would assume the responsibility of being the project
architect.” (Id. ¶ 20.) Macy's
alleges that it paid all sums due and that, under information
and belief, HMC and HMA both received payment under the
contract. (Id. ¶ 9.)
Macy's
contends the sprinkler heads installed at the distribution
center were hand-tightened, rather than wrench-tightened,
and, as a result, one of them became loose and fell off the
pipe, causing water to cascade onto shoes being held for sale
at the distribution center. (Id. ¶ 12.)
Macy's further alleges the sprinklers were installed in a
manner contrary to various standards governing the
installation of sprinkler heads. (Id. ¶¶
10-12.) The water damaged 44, 490 pairs of shoes, only some
of which could be sold in a salvage sale, resulting in a net
loss of nearly $3.8 million. (Id. ¶ 12.)
The
amended complaint asserts two claims: (1) a negligence claim
against HMC and (2) a negligence claim against HMA. Although
the complaint alleges that HMC and HMA “are affiliated
corporations which represent they operate jointly as a single
entity and provide construction and engineering/architectural
services as ‘H&M Company'” (id.
¶ 4), it also alleges separate conduct on the part of
each defendant.
With
respect to HMC, the amended complaint alleges that its
“conduct in undertaking the work of installing,
constructing and inspecting the work as well as supervising
the work of its subcontractors fell below the standard of
care governing such installations.” (Id.
¶ 17.) With respect to HMA, the amended complaint
alleges that it “took numerous actions to actually
supervise construction of the Macy's distribution
center” (id. ¶ 21), “assumed the
responsibility for providing professional
engineering/architectural services to design and construct
the addition to Macy's distribution center in a
first-class and workmanlike manner, [and] failed to do
so” (id. ¶ 23), and “assumed the
responsibility of directing construction of the Macy's
distribution center to achieve such a result, [and] similarly
failed to properly supervise that construction”
(id.). Further, the amended complaint alleges that
HMA “failed to require in its plans, drawings,
directives or otherwise that its employees or its
subcontractors wrench-tighten the sprinkler heads in
compliance with the governing standards.” (Id.
¶ 23(a).)
LEGAL
STANDARD
“[T]o
survive a motion to dismiss, a party must allege
‘sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.'”
In re Fitness Holdings Int'l, Inc., 714 F.3d
1141, 1144 (9th Cir. 2013) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim has
facial plausibility 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. (quoting Iqbal, 556 U.S. at 678).
“[A]ll well-pleaded allegations of material fact in the
complaint are accepted as true and are construed in the light
most favorable to the non-moving party.” Id.
at 1144-45 (citation omitted). However, the court need not
accept legal conclusions couched as factual allegations.
Iqbal, 556 U.S. at 679-80. The court also may
dismiss due to “a lack of a cognizable legal
theory.” Mollett v. Netflix, Inc., 795 F.3d
1062, 1065 (9th Cir. 2015) (citation omitted).
ANALYSIS
The
disputed issue here is whether HMA owed a “duty of
care” to Macy's, which is one of the elements of a
claim for negligence. Gipson v. Kasey, 150 P.3d 228,
230 (Ariz. 2007) (“Whether the defendant owes the
plaintiff a duty of care is a threshold issue; absent some
duty, an action for negligence cannot be maintained.”).
“Arizona does not presume duty; rather, in every
negligence case, the ...