United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. TRAUGER, UNITED STATES DISTRICT JUDGE.
before the court are two Motions to Dismiss. The first
(Docket No. 18) was filed by Palm Beach Grading, Inc.
(“Palm Beach Grading”), to which the plaintiff,
Pulte Homes Tennessee Limited Partnership
(“Pulte”), has filed a Response (Docket No. 26).
The second (Docket No. 20) was filed by Eugene Eichelberger,
to which Pulte has filed a separate Response (Docket No. 27).
For the reasons discussed herein, Palm Beach Grading's
motion will be denied and Eichelberger's motion will be
granted in part.
October 2, 2015, Pulte, a land developer, contracted with PBG
of South Carolina, Inc. (“PBG”) for
infrastructure improvements and related work on a Tennessee
land development known as Southern Springs. The parties
signed a Master Land Trade Contractor Agreement
(“Agreement”) that called for PBG to perform work
on Phases 1 and 2 of the multi-phase development project.
Eichelberger, PBG's Vice President, signed the Agreement
on behalf of PBG. On January 27, 2016, PBG became a licensed
contractor in the state of Tennessee. On February 15, 2016,
the Phase 1 Schedules (“Schedules”)-detailing the
construction work PBG was to perform during Phase I-were
executed by Pulte and PBG and incorporated into the
Agreement. Disputes later arose regarding the quality and
timeliness of PBG's performance. As a result, Pulte was
required to bring in other contractors to complete and
correct PBG's work. On August 18, 2017, Pulte terminated
August 28, 2017, PBG placed a lien for approximately $1.3
million on the Southern Springs development project, claiming
that it had not been paid for labor, equipment, materials,
and services related to the project. On September 21, 2017,
PBG amended the lien to nearly $1.9 million. Eichelberger
signed both liens on behalf of PBG. PBG has not filed suit or
otherwise taken action to enforce the lien. On September 1,
2017, Pulte filed its Complaint in this court against PBG,
Eichelberger, and Palm Beach Grading, a separate entity which
Pulte alleges is an alter ego of PBG (Docket No. 1). On
November 7, 2017, Pulte amended its Complaint, bringing a
host of charges related to the defendants' performance
pursuant to the Agreement. (Docket No. 16.) In addition,
Pulte alleges slander of title against the defendants, based
on the lien filed by PBG.
deciding a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court will “construe the
complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007);
Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.
2002). The Federal Rules of Civil Procedure require only that
a plaintiff provide “a short and plain statement of the
claim that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957). The court must determine only whether “the
claimant is entitled to offer evidence to support the claims,
” not whether the plaintiff can ultimately prove the
facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)).
complaint's allegations, however, “must be enough
to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). To establish the “facial
plausibility” required to “unlock the doors of
discovery, ” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the
elements of a cause of action, ” but, instead, the
plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. at 679;
Twombly, 550 U.S. at 556. According to the Supreme
Court, “plausibility” occupies that wide space
between “possibility” and
“probability.” Iqbal, 556 U.S. at 678.
If a reasonable court can draw the necessary inference from
the factual material stated in the complaint, the
plausibility standard has been satisfied.
November 28, 2017, Palm Beach Grading and Eichelberger filed
separate motions to dismiss. Palm Beach Grading seeks
dismissal of the slander of title claim against it. (Docket
No. 18.) Eichelberger seeks to dismiss all claims against
him. (Docket No. 20.)
Slander of Title Claims
of title has long been recognized as a tort in Tennessee.
Phillips v. Woods, No. E200700697COAR3CV, 2008 WL
836161, at *7 (Tenn. Ct. App. Mar. 31, 2008).
[O]ne may become liable by asserting title in bad faith and
without probable cause to the injury of another. Libel of
title has been found to occur when a person . . . without
privilege to do so, willfully records or publishes matter
which is untrue and disparaging to another's property
rights in land as would lead a reasonable person to foresee
that the conduct of a third party purchaser might be
determined by the publication, or maliciously records a
document which clouds another's title to real estate. To
establish a successful claim for libel of title in this
state, a plaintiff must prove: (1) that it has an interest in
the property; (2) that the defendant published false
statements about the title to the property; (3) that the
defendant was acting maliciously, and (4) that the false
statements proximately caused the plaintiff a pecuniary loss.
Id. (internal citations and quotation marks
omitted). Pulte alleges that all defendants are liable for
slander of title. Pulte has pled facts which, if true, would
establish a slander of title based on PBG's filing of the
lien against Pulte. However, Palm Beach Grading and
Eichelberger contend that the absolute privilege doctrine
shields them from any potential liability related to the
lien. The absolute privilege doctrine protects any defamatory
statements of an attorney or litigant “made in the
course of a judicial proceeding.” Simpson
Strong-Tie Co. v. Stewart, Estes &Donnell,