United States District Court, S.D. Florida
ORDER DENYING GREAT MIDWEST'S MOTION TO
N. Scola, Jr. United States District Judge
Concrete Works and Paving, Inc. (“Concrete
Works”), has filed suit seeking relief under Florida
Statute § 255.05 for payment under two construction
bonds. This suit is brought against Great Midwest Insurance
Company (“Great Midwest”), the surety insurer
under both bonds. Defendant Great Midwest now moves to
dismiss Concrete Work's complaint. (Def.'s Mot., ECF
No. 17.) After careful analysis, the Court disagrees with
Great Midwest and finds the complaint sufficiently plead. The
Court therefore denies Great Midwest's
motion. (ECF No. 17.)
Works subcontracted with Pioneer Construction Management
Services (“Pioneer”) to provide labor and
materials for two public concrete/asphalt restoration
projects, one with Broward County and another with the City
of Lauderhill. (Compl. at ¶¶ 6-7, 15-16, ECF No.
1.) For each project, Great Midwest executed and delivered a
payment bond pursuant to Florida Statute § 255.05.
(Id. at ¶¶ 8, 17.) The bonds guarantee
payment to those furnishing labor, materials, or services
provided for in the public construction contract.
(Id.) Concrete Works alleges that they are a lienor
under both bonds because they subcontracted with Pioneer for
each project. (Id. at ¶¶ 7, 16.) Concrete
Works completed the work under the subcontract for both
projects; however, Pioneer did not pay Concrete Works for the
labor and materials provided in either project. (Id.
at ¶¶ 10-11, 19-20.) Concrete Works notified Great
Midwest of Pioneer's failures to pay but they have not
received payment. (Id. at ¶¶ 12, 21.)
Concrete Works is owed $140, 023 for the Broward County
project, and $64, 566 for the City of Lauderhill project.
(Id. at ¶¶ 13, 22.)
considering a motion to dismiss, filed under Federal Rule of
Civil Procedure 12(b)(6), must accept all the complaint's
allegations as true, construing them in the light most
favorable to the plaintiff. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading
need only contain a short and plain statement of the claim
showing that the pleader is entitled to relief, a plaintiff
must nevertheless articulate “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A court must dismiss a plaintiff's claims if she
fails to nudge her “claims across the line from
conceivable to plausible.” Id.
the court's review in considering a 12(b)(6) motion is
ordinarily “limited to the four corners of the
complaint, ” Wilchombe v. TeeVee Toons, Inc.,
555 F.3d 949, 959 (11th Cir. 2009), a court may nonetheless
consider documents that the complaint incorporates by
reference as well as matters that may be judicially noticed,
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007).
Statute § 255.05 is intended to protect those providing
labor or supplies for a public project from non-payment. The
statute provides that “all persons defined in s. 713.01
who furnish labor, services, or materials for the prosecution
of the work provided for in the contract . . . shall have a
cause of action against the contractor and surety for the
amount due to him or her, including unpaid finance charges
due under the claimant's contract.” §
255.05(1), Fla. Stat. (2012). Under section 713.01(18)(b), a
subcontractor may be a claimant. A subcontractor is defined
as “a person other than a materialman or laborer who
enters into a contract with a contractor for the performance
of any part of such contractor's contract.” §
713.01(28). Fla. Stat. (2007). Because both claims regard
public construction projects, each payment bond specifically
references section 255.05(1), guaranteeing prompt payment to
those who qualify as claimants. (See ECF No. 1-2 and
Midwest argues that Concrete Works does not plead
“[w]hat labor or materials Plaintiff supplied or when,
the terms of the agreement giving rise to a subcontract
arrangement, when payment was demanded and due from Pioneer,
or when the work was accepted by the owner.” (ECF No.
17 at ¶ 2.) Great Midwest, however, fails to cite a
single case or reference any statutory language that requires
this specificity in pleading. In fact, detailed factual
allegations are not required. See Twombly, 550 U.S.
at 555. The complaint alleges that Pioneer subcontracted with
Concrete Works for labor and materials (ECF No. 1 at
¶¶ 8, 16), Concrete Works performed the work
(id. at ¶¶ 10, 19), and Pioneer failed to
make payment (id. at ¶¶ 11, 20). The
complaint also alleges that Concrete Works notified Great
Midwest of Pioneer's failure to pay. (Id. at
¶¶ 12, 21.) Taking the complaint's factual
allegations as true, the complaint sufficiently establishes a
cause of action under Section 255.05. See Faceton, Inc.
v. Danella Companies, Inc., No. 17-cv-1971-T-17MAP, 2008
WL 11336345, at *2 (M.D. Fla. March 24, 2008) (denying motion
to dismiss under Section 255.05).
the Court denies Great Midwest's motion
to dismiss (ECF No. 17). The Defendant's
answer is due on or before July 24, 2019.