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Davin v. Resolution Management Consultants, Inc.

United States District Court, E.D. Tennessee

June 13, 2019

KENNETH R. DAVIN, Plaintiff,



         This civil action is before the Court on defendant's partial motion to dismiss [Doc. 21]. Plaintiff responded in opposition [Doc. 32] following the Court's order to show cause why defendant's motion should not be granted as unopposed [Doc. 30]. Defendant did not reply. For the reasons stated below, the Court will grant defendant's motion.

         I. Background [1]

         Plaintiff Kenneth Davin is the sole stockholder in Design One Building Systems Inc., a Tennessee corporation [Doc. 1-1 p. 4]. In February, 2014, plaintiff contracted with defendant Resolution Management Consultants, Inc., a New Jersey corporation, to obtain litigation support services in connection with a construction dispute between plaintiff and the Veteran's Administration [Id. pp. 3-5]. This case arises out of that contract.

         In July, 2018, plaintiff filed suit in the Chancery Court for Knox County, Tennessee, alleging breach of contract, negligence, fraudulent misrepresentation, coercion, willful misconduct and failure to perform duties, and violations of the Tennessee Consumer Protection Act (“TCPA”) [Id. pp. 3, 11]. The allegations in plaintiff's complaint can be distilled into two essential charges: that defendant charged plaintiff “exorbitant” fees for bad or nonperformance under the contract, and that defendant willfully misrepresented its expertise in the construction and engineering fields, all of which caused plaintiff harm [Doc. 1-1 p. 9]. Defendant removed the case to this Court and filed the instant motion, seeking dismissal of all but plaintiff's breach of contract and willful misconduct claims.

         II. Legal Standard

         Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard. To survive a motion to dismiss, a complaint needs only a “short and plain statement of the claim showing that the pleader is entitled to relief, ‘in order to give [the opposing party] fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party's “obligation to provide the ‘grounds'” of his relief “requires more than labels and conclusions.” Id. “[A] formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In ruling on a motion to dismiss under Rule 12(b)(6), a district court “must construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief.” Id. at 512 (citation omitted). “A claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         When a plaintiff pleads fraud or mistake, however, he must state “with particularity” the circumstances supporting those claims. Fed.R.Civ.P. 9(b). To satisfy this heightened pleading standard, “a plaintiff must, at a minimum, allege the time, place and content of the alleged misrepresentation upon which he or she relied; the fraudulent intent of the defendants and the injury resulting from the fraud.” Gebhardt v. GMAC Mortg., LLC, No. 3:09-CV-425, 2010 WL 2901823, at *4 (E.D. Tenn. July 21, 2010) (citing Calipari v. Powertel, 231 F.Supp.2d 734, 735-36 (W.D. Tenn. 2002) (citations omitted)).

         III. Analysis

         Plaintiff's negligence, misrepresentation, TCPA, and coercion claims will be dismissed for failure to state a claim. The Court will examine each claim in turn.

         A. Negligence

         Plaintiff's negligence claim fails because it is essentially indistinguishable from his breach of contract claim. To establish a prima facie claim of negligence, a plaintiff must show: (1) defendant owed a duty of care to plaintiff; (2) defendant engaged in conduct below the applicable standard of care that amounts to a breach of that duty; (3) plaintiff suffered an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009). Here, defendant argues that plaintiff's claim fails because plaintiff has not shown that defendant owed plaintiff any duty outside those imposed by the parties' contract. Plaintiff maintains that the allegations in the complaint are sufficient to state a “professional negligence” claim.

         Plaintiff alleges in the “facts” section of the complaint that defendant unjustifiably “forc[ed] [p]laintiff to pay exorbitant invoices” and “refuse[d] to correct errors in [its] expert reports” [Doc. 1-1 p. 9]. The only time plaintiff specifically explains his “negligence” claim in the complaint is in the “causes of action” section, where plaintiff summarily states that “Defendants have acted negligently in service of the contract between the parties” [Id. p. 11]. This statement is telling. Rather than identify any tort-based duty, plaintiff's negligence claim is based on defendant's actions “in service of the [parties'] contract.” As this Court stated in Weese v. Wyndham Vacation Resorts, No. 3:07-CV-433, 2009 WL 1884058, at *5 (E.D. Tenn. June 30, 2009), a “negligence” claim that is really rooted in breach of contract may be interpreted as a claim for breach of the implied covenant of good faith and fair dealing. However, in Tennessee, “a breach of the implied covenant of good faith and fair dealing is not an independent basis for relief, but rather ‘may be an element or circumstance of recognized torts, or breaches of contracts.'” Id. (citing Solomon v. First Am. Nat'l Bank of Nashville, 774 S.W.2d 935, 945 (Tenn. Ct. App. 1989)). Plaintiff argues that Solomon stands for the proposition that “good faith, or lack ...

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