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Pay Attention To Legal Standards And Survive A Motion To Dismiss

Saturday, April 04, 2009 05:21 pm

Pay Attention To Legal Standards And Survive A Motion To Dismiss Breach of contract The Weitz Company, LLC v. Alberici Constructors, Inc. U.S.District Court for the District of Nebraska 2009 U.S.Dist.Lexis 3235(Jan.16, 2009)

It pays to know the pleading standards for your con¬struction claims.You can easily survive a motion to dis¬miss or a motion for summaryjudgment by tailoring your complaint to the pleading standards of each claim.

In 2005, the Metropolitan Utilities District of Omaha (MUD)entered into a prime contract with Alberici Constructors, Inc. (Alberici)for the construction of MUD's water treatment plant.Alberici, as the general contractor, then entered into a subcontract with The Weitz Company, LLC (Weitz), for a defined scope of work, including cast¬in¬place concrete work. Travelers Casualty & Surety Company of America (Travelers)provided Alberici's bond.Although the project was scheduled for completion in October 2007, it was still ongoing when Weitz filed its amended complaint.

Weitz asserted four causes of action:(1)breach of contract,(2)negligent misrepresentation,(3)quantum meruit and(4)bond payment.Alberici and Travelers moved to dismiss all four claims for failure to state a claim under Rule 12(b)(6).To survive a 12(b)(6)motion to dis-miss, a plaintiff's complaint must include enough facts to state plausible claims if all of the facts are assumed to be true.It is essential, then, to know what facts each claim requires to be plausible.

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