Opinion
CIVIL ACTION NO. 3:03-CV-0324-P.
June 10, 2003.
ORDER
Now before the Court are Defendant's Motion to Dismiss For Lack of Subject Matter Jurisdiction and, in the alternative, Motion to Stay Proceedings; Defendant's Supplemental Motion to Dismiss For Lack of Subject Matter Jurisdiction and, in the alternative, Motion to Stay Proceedings; Plaintiff's Motion to Strike Defendant's Affirmative Defenses.
Defendant's Motion to Dismiss was filed on April 16, 2003 with his brief in support. Plaintiff filed a response on May 5, 2003.
Defendant's Supplemental Motion to Dismiss was filed on June 3, 2003 with his brief in support.
Plaintiff's Motion to Strike was filed on March 30, 2003 with his brief in support. Defendant filed a response on April 19, 2003 with his brief in support. Plaintiff filed a reply on April 24, 2003.
After considering the parties' briefing and the applicable law, the Court DENIES Defendant's motion to dismiss for lack of subject matter jurisdiction and DENIES Defendant's motion to stay proceedings. Furthermore, the Court GRANTS in part and DENIES in part Plaintiff's motion to strike Defendant's affirmative defenses.
I. Factual Background
Defendant LAN/STV, a joint venture of Lockwood, Andrews, and Newman, Inc. and STV Incorporated ("Defendant" or "LAN/STV") entered into an "engineering contract" with Dallas Area Rapid Transit ("DART") to prepare the plans, drawings, and specifications for the construction of extensions to the DART light-rail system, specifically section G-2 ("the Project"). Pl.'s Compl. ¶ 9. Once these plans were completed, DART submitted them to various general contractors in order to receive public bids on the Project. Id. ¶ 11. After the public letting, Plaintiff GLF Construction Corporation ("Plaintiff" or "GLF") was awarded the "construction contract" by DART and began work on the Project as DART's general contractor. Id. ¶ 12
When LAN/STV drafted and distributed the plans, drawings, and specifications for the Project, LAN/STV represented that they were completed exercising professional skill and knowledge. Id. ¶ 13. Furthermore, LAN/STV purportedly agreed to provide administrative and supervisory services for construction of the Project as well. Id. GLF alleges that it reasonably relied on the plans when submitting the successful bid for the Project. Id. ¶¶ 11-12, 14.
GLF's separate "construction contract" with DART allegedly provided that (1) GLF would construct the Project according to the plans, drawings, and specifications provided by LAN/STV and (2) GLF would construct the Project under the administration and supervision of LAN/STV in accordance with their professional skill and expertise. Id. ¶ 12.
When GLF attempted to undertake construction of the Project, they experienced a number of complications, which were allegedly due to the inadequacy of the plans, drawings, and specifications prepared by LAN/STV. Id. ¶ 17. GLF further contends that these difficulties were worsened by the inadequacy of the administration and supervision provided by LAN/STV. Id. ¶ 18.
GLF has alleged professional negligence and misrepresentation against LAN/STV in both the drafting of the plans, drawings, and specifications and the administration and supervision of the construction of the Project. LAN/STV subsequently filed a motion to dismiss for lack of subject-matter jurisdiction and, in the alternative, motion to stay proceedings. GLF defends this Court's jurisdiction and seeks to strike three of LAN/STV's affirmative defenses.
II. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and, in the alternative, Motion to Stay Proceedings
Federal Rule of Civil Procedure 12(b)(1) ensures that an appropriate jurisdictional basis is established before any conclusive rulings are made by the court; if a court lacks subject-matter jurisdiction it has no choice but to dismiss the claim. FED. R. Civ. P. 12(b)(1); see Williamson v. Tucker, 635 F.2d 404, 413 (5th Cir. 1981). Defendant moves to dismiss Plaintiff's complaint on grounds that an alternative-dispute-resolution provision in the respective contracts of both parties with DART controls in this situation. The Court disagrees and denies Defendant's motion.
It is clear from Plaintiff's complaint that the parties are completely diverse and that the jurisdictional amount can be met. Pl.'s Compl. ¶ 5. The Court, having reviewed the pleadings, is satisfied that it may exercise jurisdiction over this dispute, unless some contractual provision commits the parties to seek an alternative. See Pennzoil Exploration Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1066 (5th Cir. 1998). Defendant argues that the alternative-dispute-resolution provision found in both the Defendant's and the Plaintiff's contracts with DART is binding upon Plaintiff in this suit. The alternative-dispute-resolution provision reads, in relevant part, that "any dispute concerning a question of fact or law arising under or related to this contract which is not disposed of by agreement shall be decided by the Contracting Officer." Def.'s Mot. Dismiss, Exhibit A, 24. However, at no time did either litigant enter into a contractual agreement with the other. Rather, Defendant contracted with DART to draft the plans, drawings, and specifications for the Project, and Plaintiff contracted with DART to perform the construction on the Project.
Texas contract law provides that a private entity cannot be bound by terms of a contract for which he has not bargained. See Bruner v. Exxon Co., U.S.A., 752 S.W.2d 679, 682 (Tex.App. — Dallas 1988). Likewise, a party cannot be compelled to settle a dispute through alternative dispute resolution unless there has been a contractual agreement to do so. Neal v. Hardee's Food Sys., Inc., 918 F.2d 34, 37 (5th Cir. 1990). Furthermore, a non-signatory to a contract containing an alternative-dispute-resolution provision cannot invoke the provision. Westmoreland v. Sadoux, 299 F.3d 462, 465 (5th Cir. 2002). Consequently, GLF is not bound, in its relations with LAN/STV, by LAN/STV's contract with DART; nor is LAN/STV bound by GLF's contract with DART in its relations with GLF. No contract between Plaintiff and Defendant requires this dispute to be submitted to alternative dispute resolution. Therefore, the Court retains jurisdiction. Defendant's motion to dismiss is denied, as is the motion to stay proceedings.
Defendant filed, on June 3, 2003, a Supplemental Motion to Dismiss for Lack of Subject Matter Jurisdiction and, in the alternative, Motion to Stay Proceedings. In this motion, Defendant informs the Court that Plaintiff has filed a claim for equitable relief with the contracting officer through the alternative-dispute-resolution process provided for in Plaintiff's contract with DART. Further, Plaintiff responded to a rule 26a(1)(C) demand for discovery by stating that damages could not be calculated until the contracting officer's ruling was received. Supp. Mot. at 4. Defendant contends that the complaint should be dismissed because it is an attempt "to seek recovery on two fronts for the same damages arising out of the same occurrence." Id. Defendant alternatively argues that the proceedings should be stayed until the contracting officer resolves the request for alternative dispute resolution. Nothing in the supplemental motion alters the Court's analysis of its jurisdiction. Indeed, Defendant cites no law in support of its motion. The Supplemental Motion is DENIED.
III. Plaintiff's Motion to Strike Defendant's Second Affirmative Defense
Federal Rule of Civil Procedure 12(f) allows a complainant to move to strike an insufficient, redundant, immaterial, impertinent, or scandalous defense asserted by the respondent. FED. R. Civ. P. 12(f). A motion to strike an affirmative defense is viewed with disfavor and before such a motion can be granted the court must be convinced that there are no questions of fact and that the law is stated clearly and is not in dispute. FDIC v. Niblo, 821 F. Supp. 441, 449 (N.D. Tex. 1993); see also 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1380 (2d ed. 1990 Supp. 2003). Furthermore, it must be shown that the challenged defenses are so unrelated to the present claim that they are unworthy of consideration and would be prejudicial to the moving party should they remain throughout the proceeding. Niblo, 821 F. Supp. at 450; 5A WRIGHT MILLER § 1380.
Defendant's second affirmative defense asserts that Plaintiff was the proximate cause, the sole cause, and/or the sole proximate cause of Plaintiff's own damages. Def.'s Answer ¶ 30. Defendant's third affirmative defense asserts that under the proportionate-liability statute, TEX. CIV. PRAC. REM. CODE ANN. § 33.001 (Vernon 1997), Plaintiff will be proven responsible for at least fifty-one percent of the negligence causing the damages sought and Plaintiff will therefore be barred from recovering or, in the alternative, their recovery will be significantly reduce. Id. ¶ 31. Plaintiff moves to strike the second affirmative defense because it is immaterial and redundant. Pl.'s Mot. Strike, 8. The Court agrees and therefore strikes Defendant's second affirmative defense.
In an attempt to revive this defense, Defendant asserts that it relies on a pure avoidance theory, whereas the third affirmative defense relies on a comparative negligence theory. Def.'s Resp. Pl.'s Mot. Strike ¶ 5. The Texas Supreme Court has established that the state's proportionate-liability statute was adopted in order to "abolish the harsh effect of a contributory negligence finding." Kroger Co. v. Keng, 23 S.W.3d 347, 350 (Tex. 2000); see also Farley v. MM Cattle Co., 529 S.W.2d 751 (Tex. 1975) (stating that, when the Texas State Legislature adopted comparative negligence, it evidenced a clear intention to apportion negligence rather than completely bar recovery). Further manifestations of this view were apparent when the Texas Supreme Court abolished specific examples of the total fault/total victory theory used in previous jurisprudence. See Davila v. Sanders, 557 S.W.2d 770 (Tex. 1977) (holding that the doctrine of imminent peril is not valid with the adoption of the comparative liability statute); see also French v. Grigsby, 571 S.W.2d 867 (Tex. 1978) (holding that the doctrine of last clear chance is not valid with the adoption of the comparative liability statute). Not only is there no legal authority to support Defendants' pure avoidance theory, but it is also clear that where the proportionate-liability statute applies total fault (or sole cause) is not a valid defense.
IV. Plaintiff's Motion to Strike Defendant's Sixth and Seventh Affirmative Defenses
Plaintiff has also moved to strike Defendant's sixth and seventh affirmative defenses, alleging that they are irrelevant and nonresponsisve to Plaintiff's professional negligence and misrepresentation claims. Defendant alleges that any duty owed to Plaintiff arises under contract theory and not under tort law. In the sixth affirmative defense, Defendant avers that Plaintiff did not have privity of contract with Defendant and therefore cannot recover any damages from Defendant. See Bruner, 752 S.W.2d 679. In the seventh affirmative defense, Defendant avers that Plaintiff was not specifically designated as a third-party beneficiary to the contract between Defendant and DART and therefore cannot recover any damages from Defendant. See id.
Plaintiff's complaint alleges that Defendant was professionally negligent and asserts that Defendant undertook a duty to use professional care when drafting the plans, drawings, and specifications for the Project and when administering and supervising Plaintiff's work on the Project. See Ass'd Architects Eng'rs, Inc. v. Lubbock Glass Mirrors Co., 422 S.W.2d 942 (Tex.App.-Amarillo 1967). Defendants counter this by citing Bernard Johnson, Inc. v. Cont'l Constructors, Inc., 630 S.W.2d 365 (Tex.App.-Austin 1982), which held that an action brought pursuant to a contract alleging negligence was in fact a breach-of-contract claim cloaked in tort-law terms. Def.'s Resp. Pl.'s Mot. Strike ¶ 6. Defendant further asserts that no duty to supervise the construction of the Project was undertaken as Plaintiff contends. Def.'s Answer ¶¶ 15, 18, 26.
It is not the duty of the Court at this time to settle the factual and legal disputes raised. Rather, the factual and legal disputes should be resolved throughout the course of the proceedings. To this extent, Plaintiff's motion is premature and is therefore denied. See Resolution Trust Corp. v. Sands, 863 F. Supp. 365, 375-76 (N.D. Tex. 1994). In Sands, the Resolution Trust Corporation ("RTC") brought claims of negligence and gross negligence, among others, against directors and officers of Southwest Savings Association; RTC claimed that the directors and officers were professionally negligent in the administration and collection of debts owed. Id. at 367. When presented with RTC's motion to strike certain of the officers' and directors' affirmative defenses, the court concluded that, when the precise contours of the defense could not be determined, the court could not rule affirmatively on the motion. Id. at 375. The motion to strike was denied in part because the movant had asserted the motion prematurely and the court did not feel that it had the capacity to rule at the time the motion was brought. Id. Similarly, in the case at hand, there is a dispute as to the law and the facts surrounding Plaintiff's claim. See Niblo, 821 F. Supp. at 449; see also 5A WRIGHT MILLER § 1380. Therefore, Plaintiff's motion to strike Defendant's sixth and seventh affirmative defenses is denied.
V. Conclusion
Accordingly, the Court hereby DENIES Defendant's motion to dismiss for lack of subject-matter jurisdiction, DENIES Defendant's motion to stay proceedings, DENIES Defendant's supplemental motion to dismiss for lack of subject matter jurisdiction, and DENIES Defendant's supplemental motion to stay proceedings. Furthermore, the Court GRANTS Plaintiff's motion to strike Defendant's second affirmative defense and DENIES Plaintiff's motion to strike Defendant's sixth and seventh affirmative defenses.