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Pacific Boring, Inc. v. Staheli Trenchless Consultants, Inc.

United States District Court, W.D. Washington, Seattle

November 21, 2014

PACIFIC BORING, INC., a California corporation, Plaintiff,
v.
STAHELI TRENCHLESS CONSULTANTS, INC., a Washington corporation, and KIMBERLIE STAHELI LOUCH, P.E., Ph.D., individually, Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

RICARDO S. MARTINEZ, District Judge.

I. INTRODUCTION

This matter comes before the Court on Defendants' Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. #11. Defendants argue that two of Plaintiff's claims - Plaintiff's Third Claim for Relief Against Defendant Staheli Trenchless Consultants, Inc. ("STC"), and Plaintiff's Cause of Action for Declaratory Relief against both STC and Dr. Kimberlie Staheli - should be dismissed because this Court lacks subject matter jurisdiction over those claims, and because Plaintiff fails to allege facts sufficient to support the causes of action in any event. Id. Plaintiff responds that this Court has jurisdiction over the claims and that it has pled sufficient facts to meet the appropriate notice pleading standard. Dkt. #12. For the reasons set forth below, the Court disagrees with Plaintiff and GRANTS Defendants' motion to dismiss.

II. BACKGROUND

Defendant Kimberlie Staheli is a licensed engineer operating her own consulting business. Dkt. #1 at ¶ 5. She co-authored a professional paper in 2009 about the legal impact of geotechnical baseline reports in subsurface excavation contracts which also contain Differing Site Condition clauses. Dkt. #1, Ex. D. Specifically, the paper addresses the mechanisms for allocation of risk in situations where truly unanticipated conditions may be encountered in a project which affects the cost of completion of the project. Id. The other coauthor of the paper is an attorney from the Seattle law firm Davis Wright Tremaine, LLP, who is not a party to this suit. Id.

According to Plaintiff, on or about April 19, 2010, Defendants contracted with the Northshore Utility District to provide engineering services related to the installation of a sewer bypass line at the O.O. Denny Park in Kirkland, WA. Dkt. #1 at ¶ 30 and Ex. A. The park contained wetlands, which affected the types of technologies that could be utilized for excavation. Within the scope of her consulting services, Dr. Staheli allegedly reviewed and edited a geotechnical engineering services report by GeoEngineers, the geotechnical engineer for the sewer bypass project. Id. at ¶ 40. Dr. Staheli later contracted with Gray & Osborne, Inc., the design engineer on the project, to consult about auger bore specifications. Id. at ¶ 59.

In July 2011, Plaintiff (a trenchless construction firm) submitted a bid as a subcontractor for the project. Id. at ¶ 71. Plaintiff alleges that it had been solicited by Defendants to submit the bid. Id. at ¶ ¶ 68-71. Plaintiff further alleges that, in soliciting Plaintiff, Defendants "seriously misrepresented" the conditions of the project and the suitability of Plaintiff's technologies. Plaintiff also alleges that Defendants "manipulated" the aforementioned geotechnical reports to "shed liability" for unanticipated conditions. Dkt. #12 at 6-7. Plaintiff asserts that after successfully starting the project, it encountered unanticipated, wet flowing ground (a condition it alleges was known by Defendants, but hidden from Plaintiff), causing a sinkhole, prohibiting forward progress, and giving rise to a claim for differing site conditions. Dkt. #1 at ¶ ¶ 83-91. Ultimately, Plaintiff completed the project, but with additional time and expense. Plaintiff then brought suit against Defendants to recover damages it alleges arose from Defendants' negligence and misrepresentations.

III. DISCUSSION

A. Standards of Review

1. Motions Under 12(b)(1)

Federal courts are courts of limited jurisdiction. Gunn v. Minton, ___ U.S. ___, 133 S.Ct. 1059, 1064 (2013) (citation omitted). As such, this Court is to presume "that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673 (1994) (citations omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either "facial" or "factual." See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id. "A jurisdictional challenge is factual where the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'" Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Air for Everyone, 373 F.3d at 1039)). Here, Defendants raise facial challenges to certain of Plaintiff's claims.

2. Motions Under 12(b)(6)

On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, the court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. at 678. This requirement is met when the plaintiff "pleads factual content that allows the court ...


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