United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY, UNITED STATES DISTRICT JUDGE
matter is before the Court on Third-Party Defendant
Engineering and Technical Services, Inc.'s
(“ETS”) motion to dismiss (ECF No. 21). For the
reasons set forth herein, ETS' motion is denied.
action arises out of Plaintiff Irene Niezgoda's slip and
fall at a Kentucky Fried Chicken restaurant in Pawley's
Island, South Carolina. Niezgoda alleges that she tripped on
the restaurant's defective entranceway and suffered
damages as a result. Defendant Paris & Potter Management
Corporation d/b/a KFC Restaurant (“KFC”) denies
that allegation. However, KFC has also asserted third-party
claims against ETS and several other subcontractors, claiming
that if the entranceway was defective, then those
subcontractors created the defect.
removed this action from the Georgetown County Court of
Common Pleas on February 29, 2016. KFC filed its third-party
complaint on September 27. ETS then filed the instant motion
on October 24, and KFC responded on November 8. No reply was
filed. Accordingly, this matter is now ripe for
motion to dismiss pursuant to Rule 12(b)(6) “challenges
the legal sufficiency of a complaint.” Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations
omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A
motion to dismiss under Rule 12(b)(6) . . . does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”). To be legally sufficient,
a pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2).
courts use “a ‘two-pronged approach'”
to assess the legal sufficiency of a complaint. Robertson
v. Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th
Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009)). First, the complaint must “contain factual
allegations in addition to legal conclusions.”
Id. Under Rule 8's pleading standard,
“‘a formulaic recitation of the elements of a
cause of action will not do, '” id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)), and “‘naked assertion[s]' devoid
of ‘further factual enhancement'” will not
suffice, Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557). Second, the complaint
must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). More specifically, the
complaint must demonstrate that the plaintiff's right to
relief is more than a mere possibility, but it need not rise
to the level of evincing a probability of success.
Id. Accordingly, “[d]etermining 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.
ruling on a Rule 12(b)(6) motion, the court must accept as
true all of the facts alleged in the complaint and construe
all reasonable inferences in favor of the plaintiff.
E.g., E.I. du Pont de Nemours & Co. v. Kolon
Indus., 637 F.3d 435, 440 (4th Cir. 2011). The court
must determine whether the allegations give rise to a
plausible right to relief, Iqbal, 556 U.S. at 679;
however, it should “not accept ‘legal conclusions
couched as facts or unwarranted inferences, unreasonable
conclusions, or arguments, '” United States ex
rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451,
455 (4th Cir. 2013) (quoting Wag More Dogs, LLC v.
Cozart, 680 F.3d 359, 365 (4th Cir. 2012)); see also
Iqbal, 556 U.S. at 678 (“[T]he tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”).
Thus, although the court must accept a plaintiff's
well-pleaded factual allegations as true for purposes of
ruling on the motion, the complaint must nevertheless satisfy
the “two-pronged” test articulated by the Supreme
Court. Iqbal, 556 U.S. at 679.
motion is based on South Carolina Code section 15-36-100(B),
which requires a party asserting professional negligence
claims to file an affidavit of an expert witness
contemporaneously with the complaint. If the party fails to
do so, section 15-36-100(B) provides that the complaint is
subject to dismissal for failure to state a claim. Here, when
KFC filed its third-party complaint against ETS, it failed to
attach such an affidavit. Thus, ETS filed the instant motion.
Court has previously held that section 15-36-100(B) does not
apply when the complaint alleges a professional negligence
claim against a corporation or other business entity. See
Oakman v. Lincare Inc., No. 1:13-cv-428-JMC, 2013 WL
3549848, at *5 (D.S.C. July 10, 2013). In Oakman,
Judge Childs determined that the plain language of section
15-36-100(B) indicates the General Assembly's intent to
“apply this filing requirement only to actions brought
against individual persons-not to actions brought against the
corporation or other business entit[y] by which those
individuals are employed . . . .” Id. Because
KFC brought this professional negligence claim against ETS,