Dero Roofing, LLC v. Triton, Inc.

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DERO ROOFING, LLC, Plaintiff, v. TRITON, INC. and BASF CORPORATION, Defendants.

No. 2:21-cv-688-SPC-KCD

United States District Court, M.D. Florida, Fort Myers Division

February 6, 2023

OPINION AND ORDER^[1]

SHERI POLSTER CHAPELL UNITED STATES DISTRICT JUDGE

Before the Court is Defendant BASF Corporation's (“BASF”) Motion to Dismiss (Doc. 79) Plaintiff Dero Roofing, LLC's (“Dero”) response in opposition (Doc. 84), and Defendant Triton, Inc.'s (“Triton”) Motion for Joinder (Doc. 80). The Court grants Triton's Motion for Joinder and partly grants BASF's Motion to Dismiss.

BACKGROUND

This is a products liability case that has been pending for over a year yet is still in the pleadings stage. The current operative pleading is Dero's Fifth Amended Complaint. (Doc. 78). Dero is a contractor that repaired hurricane damage to two condominium buildings, Casa de Marco and Huron Cove (“the condominium associations”). Defendants manufactured and distributed TritoCryl, TritoFlex (collectively, the “Products”) and a Sprayer for the application of the Products, all used by Dero in the repair of the condominiums. The Products, when applied by Dero with the Sprayer, did not perform well and streaked down the roof tiles onto other parts of the condominium buildings.^[2]

The condominium associations assigned Dero their legal claims against Triton concerning the Products. By the plain language of these assignments, they only cover claims against Triton not BASF. There is no evidence that any individual condominium unit owners assigned their claims against either Defendant to the condominium associations.

In this sixth iteration of the Complaint, Dero asserts strict liability claims against both Defendants and a negligence claim solely against Triton. (Doc. 78). For the reasons stated below, this Court grants the motion to dismiss as to BASF, but denies the motion to dismiss as to Triton, Inc.

LEGAL STANDARD

A complaint must recite “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a Rule 12(b)(6) motion, the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A facially plausible claim allows a “court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. At this stage, courts usually don't consider matters outside the four corners of the complaint and its exhibits. Allen v. USAA Cas. Ins., 790 F.3d 1274, 1278 (11th Cir. 2015). Courts accept all well-pled allegations as true and view them most favorably to the plaintiff. Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066 (11th Cir. 2017).

“When standing is challenged on the basis of the pleadings, we accept as true all material allegations of the complaint and . . . construe the complaint in favor of the complaining party.” Pennell v. San Jose, 485 U.S. 1, 7 (1988) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975); Gladstone, Realtors v. Villageof Bellwood, 441 U.S. 91, 109 (1979)) (internal quotations omitted). Standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal citations omitted). “At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice” to establish standing because “on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990)).

DISCUSSION

Before discussing the Motion to Dismiss, the Court briefly addresses Triton's Motion to Join BASF's Motion to Dismiss. (Doc. 80). A party is generally free to join in another party's pending motion unless the joinder would adversely affect the administration of the case. SeeFisher v. Off. of StateAtty. 13th Jud. Cir. Fla. 162 Fed.Appx. 937, 942 (11th Cir. 2006). Triton's Motion was timely filed before resolution of the Motion to Dismiss. Dero does not oppose the Motion to Join in its Response, and therefore the Court considers it unopposed.^[3] As a result, Triton's Motion to Join (Doc. 80) is granted.

The Court now turns to the substance of BASF's Motion to Dismiss. (Doc. 79). BASF asserts three main arguments: (1) Dero cannot bring claims against BASF based on the plain language of the assignment of claims; (2) Dero lacks standing; and (3) Dero's claims fail under the economic loss rule. Triton joins the second and third arguments.

Before addressing these arguments, it is important to note that standing in this case is really a two-part analysis: (1) Has Dero adequately pled that the condominium associations have standing to assert claims against Defendants? and (2) If Dero has pled standing, have the condominium associations properly assigned their rights to sue to Dero?

The Court begins with the question of whether the condominium associations have standing to assert claims against Defendants. There are three methods by which the condominium associations could have standing to sue over the damaged property: (1) the condominium associations own the damaged property; (2) under Fla. Stat. § 718.111 the damaged area was of common interest to all or most unit owners; or (3) the individual owners of the units have exclusive right to sue, but assigned their own claims to the condominium associations. There are no facts before this Court that support this last possibility, so if the damage was done to a portion of the property that is exclusively owned by the unit owners and is not of common interest, then only the owners-not Dero-have standing to bring this action.

A. Standing, Both Under Fla. Stat. § 718.111 and Otherwise^[4]

To begin, the Court emphasizes that where we are right now stems from careless pleading. Defendants argue that Dero lacks standing because Dero has not specifically pled that it owns the damaged property or pled that individual owners of the damaged property assigned their right to sue to Dero. This means (according to Defendants) that Dero only has standing to bring claims under § 718.111-claims of “common interest to most or all unit owners.” But Dero has not pled that the damaged property is of “common interest to most or all unit owners.” (Doc. 79 at 9-11). Defendants' argument is not without merit, because there are two important areas Dero sorely neglected in its Complaint: (1) what areas of the building were damaged and (2) who owns that damaged property.

But while the Court does not wish to reward sloppy pleading, this is the motion to dismiss stage. SeeBell v. Miedema, No. 3:20-cv-294-J-32MCR, 2020 WL 5230581, at *1 (M.D. Fla. Sept. 2, 2020) (“At the motion to dismiss stage, courts must evaluate standing based on the facts alleged in the complaint, and a party's burden is satisfied if it has alleged facts that plausibly establish standing”). And the Court finds that Dero has alleged standing sufficient to survive the motion to dismiss stage.

Fla. Stat. § 718.111(3)(b)(1) gives condominiums a right to assert a cause of action on behalf of individual condominium owners “concerning matters of common interest to most or all unit owners.” These “matters of common interest” include “the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; and representations of the developer pertaining to any existing or proposed commonly used facilities.” Fla. Stat. § 718.111(3)(b)(1). Defendants argue that this statute is the only way that Dero can have standing.

But because Dero has pled that it is the “owner of property damaged by Tritocryl,” the Court finds that Dero may have standing independent of Fla. Stat. § 718.111. At the motion to dismiss stage when the Court must take the facts in the light most favorable to Dero, the Court finds that paragraphs eight and nine of the Fifth Amended Complaint allow Dero to squeak through:

8. Casa de Marco is . . . the owner of property damaged by Tritocryl.

9. Huron Cove is . . . another owner of property damaged by Tritocryl.

(Doc. 78 at 3).

Defendants may ultimately be correct that Dero's only standing comes from Fla. Stat. § 718.111, but reading the complaint in the required light most favorable to Dero, Dero has pled that the condominium associations own the damaged property.

Even if Dero only has standing under Fla. Stat. § 718.111, it still passes the motion to dismiss standard. Dero asserts standing under Fla. Stat. § 718.111(3)(b)(1) because “the TritoCryl topcoat white acrylic product had begun streaking down the red tile roofing system and down the exterior and interior of the buildings, including penetration of the residents' screens, gutters, and other related areas.” (Doc. 78 at n.1). This description does not explicitly tell the Court if the damage was to areas of common interest to most or all unit owners. SeeVoeller Const., Inc. v. Southern-Owners Ins. Co., No 8:13-cv-3169-T-30MAP, 2015 WL 1169420, at *3 (M.D. Fla. Mar. 13, 2015) (noting that the seawall, structural components, and electrical, plumbing, and heating within the condo are matters of common interest to unit owners). The Court is left to speculate about several facts, including the size of the condominiums, the number of unit owners, and the size and location of the impacted area. But in the light most favorable to Dero, the “exterior . . . of the...