United States District Court, D. South Carolina, Columbia Division
JENNIFER L. CHAMPY, Plaintiff,
BEAZER HOMES CORPORATION; BEAZER HOMES USA, INC.; BEAZER HOMES - COLUMBIA DIVISION; BEAZER HOMES, INC., AND DON GARNER, Defendants. BEAZER HOMES CORPORATION, Third-Party Plaintiff,
THE SHERWIN-WILLIAMS COMPANY, Third-Party Defendant.
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
This matter came before the court on Defendant Don Garner’s Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 26. After considering the submissions of counsel, and for the reasons that follow, Defendant Don Garner’s motion is GRANTED and Plaintiff’s claims against him are hereby DISMISSED with prejudice.
On April 18, 2007, Plaintiff Jennifer L. Champy (hereinafter, “Plaintiff”) contracted with Beazer Homes Corporation (“BHC”) for the purchase of a home located in Chapin, South Carolina. ECF No. 26-2, Agreement to Buy and Sell Real Property.
On July 1, 2015, Plaintiff filed this lawsuit in the Lexington County Court of Common Pleas against Beazer Homes Corporation; Beazer Homes USA, Inc.; Beazer Homes - Columbia Division; Beazer Homes, Inc.; and Don Garner (collectively, “Defendants”). ECF No. 1-1. Plaintiff alleges that she “entered into discussions with, and ultimately contracted with” Defendants for the purchase of a new home in Chapin. Id. ¶8. She alleges that “as part of those discussions and negotiations, the Plaintiff repeatedly advised aforesaid Defendants that she has pre-existing respiratory health concerns and therefore, her newly constructed house would need to be free from excessive or inordinate amounts of dirt, dust, debris, and other contaminants which could aggravate her respiratory issues.” Id. ¶9. According to Plaintiff, Defendants acknowledged and agreed to her requirements. Id. ¶10. Plaintiff claims that after moving into the newly-constructed house, she experienced “numerous and worsening health problems.” Id. ¶12. In November 2012, she discovered “excessive amounts of dust, dirt, construction debris and the like” under the carpeting in her house, which had been there since construction. Id. ¶14. Plaintiff asserts causes of action against Defendants for negligence, breach of express and implied warranties, and breach of contract due to the health issues she attributes to the material she found beneath her carpet.
According to Defendant Don Garner, he was employed by BHC from early 2005 until January 2008. ECF No. 26-3, Garner Aff. ¶2. He never held a management position with BHC. Id. ¶5. He did participate in the construction of Plaintiff’s house in his capacity as an employee of BHC. Id. ¶4. Garner did not have authority to enter into contracts for Beazer, or to handle special requests or changes from prospective homeowners. Id. ¶¶8-10. Garner’s employment duties with BHC were primarily to schedule subcontractors and handle their payment requests. Id. ¶4. He did not have authority to select, contract with, hire or fire subcontractors, nor was he authorized to direct subcontractors’ means and methods. Id. ¶¶4, 5. Specifically, Garner’s job duties included communicating with subcontractors and suppliers to schedule their work, and processing paperwork associated with those parties. Id. ¶4. He was not tasked with inspecting any subcontractor’s performance or with personally performing any substantive construction tasks, and did not, in fact, monitor subcontractor performance or perform any construction work. Id.
Plaintiff filed her Complaint in the Lexington County Court of Common Pleas on July 1, 2015. ECF No. 1-1. BHC filed its Notice of Removal to this court on October 1, 2015. ECF No. 1. In its Notice of Removal, BHC asserts that Defendant Don Garner is a sham defendant. Plaintiff has not objected or otherwise responded to the Notice of Removal. Defendant Don Garner filed his Motion to Dismiss on January 15, 2016. ECF No. 26. Plaintiff did not file a response.
STANDARD OF REVIEW
A claim survives a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) if it “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ’ but asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint that is not plausible must be dismissed. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. While the court must consider the complaint in the light most favorable to the Plaintiff, the court “need not accept ‘legal conclusions drawn from the facts [or] unwarranted inferences, unreasonable conclusions, or arguments.” Hughes v. Wells Fargo Bank, N.A., 617 F.App'x 261, 263 (4th Cir. 2015). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted if “it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 317 (4th Cir. 2006).
A negligence claim requires that the defendant owe a duty of care to the plaintiff; the existence of any duty is determined by the court. E.g., Doe v. Marion, 645 S.E.2d 245, 250 (S.C. 2007). Claims “predicated on the alleged breach, or even negligent breach, of a contract between the parties, ” cannot succeed in a tort action. Meddin v. Southern Ry.-Carolina Div., 62 S.E.2d 109, 112 (S.C. 1950). If the alleged tort arises out of a contract, then an independent relationship must exist (outside of that contract) that would give rise to the duty alleged, in order for a negligence claim to be viable. Id. The District Court of South Carolina described the test for determining whether an action sounds in contract or tort:
If the cause of the complaint be for an act of omission or nonfeasance which, without proof of a contract to do what has been left undone, would not give rise to any cause of action (because no duty apart from the contract to do what is complained of ...