United States District Court, S.D. Georgia, Augusta Division
UNITED STATES OF AMERICA ex rel. DIXIE COMMUNICATIONS SYSTEMS, INC., Plaintiff,
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA; ICON CONSTRUCTION, INC.; and J&J MAINTENANCE, INC., Defendants.
RANDAL HALL, CHIEF UNITED STATES DISTRICT JUIDGE.
the Court are J&J Maintenance, Inc.'s
("Defendant J&J") motion to dismiss (Doc. 6)
and Defendant Travelers Casualty and Surety Company of
America's ("Defendant Travelers") motion to
dismiss (Doc. 10). Both motions argue Plaintiff's
Complaint should be dismissed for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).
present dispute arises from a project at Fort Gordon
involving the construction and renovation of the Dwight D.
Eisenhower Army Medical Center's Fisher Army Dental
Laboratory (the "Project"). (Compl., Doc. 1, ¶
10.) Defendant J&J was the general contractor for the
Project. (Id. ¶ 11.) Defendant J&J
subcontracted with Defendant ICON to perform work on the
Project. (Id. ¶ 12.) Defendant ICON
subcontracted with Plaintiff to install alarm systems.
(Id. ¶¶ 13-14; Pl.'s Opp'n to Def.
J& J's Mot. to Dismiss, Doc. 12, Ex. 6.) Defendant
Travelers supplied the Project bond to Defendant J&J.
(Compl., ¶ 11.)
completed the work required under its subcontract with
Defendant ICON on December 6, 2017. (Id.
¶¶ 15-16.) Afterward, Plaintiff submitted a bill to
Defendant ICON in the amount of $66, 187.50, but Defendant
ICON has yet to pay the invoice. (Id. ¶¶
17-18, 22; Pl.'s Opp'n to Def. J& J's Mot. to
Dismiss, Ex. 1.) Defendant J&J also refused to pay
Plaintiff for the alarm system installation. (Compl., ¶
19.) Finally, Plaintiff sought payment from Defendant
Travelers through Defendant J&J's bond. (Id.
¶ 23.) Defendant Travelers repudiated Plaintiff's
request for payment. (Id.; Def. Travelers's Mot.
to Dismiss, Doc. 10, Ex. A.)
procedural posture of this case is more convoluted than
generally expected at this stage of litigation. Plaintiff
filed its Complaint asserting four claims against three
defendants: (1) breach of contract; (2) quantum meruit; (3) a
Miller Act bond claim; and (4) bad faith refusal to settle.
(Compl., ¶¶ 24-46.) Defendants J&J and
Travelers ("Moving Defendants") moved to dismiss
the Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6), but Defendant ICON Construction, Inc.
("Defendant ICON") offered no response to
Plaintiff's Complaint. On February 11, the Clerk entered
an entry of default as to Defendant ICON (Doc. 22), and
shortly thereafter, Defendant J&J filed a suggestion of
bankruptcy indicating Defendant ICON filed for Chapter 11
bankruptcy in the United States Bankruptcy Court for the
Eastern District of Texas (Docs. 24, 24-1).
Moving Defendants' motions to dismiss, both pointed to
Plaintiff's failure to allege that it provided proper
notice under the Miller Act. (Def. J&J's Mot. to
Dismiss, Doc. 6, at 3; Def. Travelers's Mot. to Dismiss,
at 5-6.) The Complaint alleges that Plaintiff provided notice
to Defendant Travelers more than ninety days after completing
work under the subcontract. (See Compl.,
¶¶ 16, 21.) Rather than amend its Complaint to
allege it provided proper notice, Plaintiff attached several
documents to its responses in opposition to the motions to
dismiss. (See Pl.'s Opp'n to Def. J&
J's Mot. to Dismiss, Exs. 1-9.) Plaintiff then argued
Defendants' motions to dismiss should be converted to
motions for summary judgment. (See Pl.'s
Sur-Reply Opp'n to Def. J&J's Mot. to Dismiss,
Doc. 20, at 4.) Based upon Plaintiff's introduction of
various documents in its opposition to the present motions to
dismiss, the Court addresses multiple issues involving the
introduction of extrinsic documents in addition to resolving
the present motions.
proceeding to the merits of Moving Defendants' motions to
dismiss, the Court must determine whether the extrinsic
documents should be considered at this stage.
when considering a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), the district court is restrained
to consider the allegations within the four corners of the
complaint. See Speaker v. U.S. Pep't of Health &
Human Servs. Ctrs. for Disease Control & Prevention,
623 F.3d 1371, 1379 (11th Cir. 2010) . An exception to the
general rule is recognized "if [the extrinsic document]
is (1) central to the plaintiff's claim, and (2) its
authenticity is not challenged." SFM Holdings, Ltd.
v. Banc of Am. Sec, LLC, 600 F.3d 1334, 1337 (11th Cir.
2010); accord Fin. Sec. Assurance, Inc. v. Stephens,
Inc., 500 F.3d 1276, 1285 (11th Cir. 2007) (considering
document attached to motion to dismiss because "it [was]
referred to in the complaint, it [was] central to [the
plaintiff's] . . . claim, . . . and neither party
challenge[d] its authenticity"). Otherwise, if
"matters outside the pleadings are presented to and not
excluded by the court, " it "must convert the
motion to dismiss into a summary judgment motion."
Fed.R.Civ.P. 12(d); SFM Holdings, 600 F.3d at 1339.
Thus, the Court identifies the external documents; determines
if the Court may consider them in conjunction with the
present motions to dismiss; and if not, concludes whether it
will consider the documents thereby converting the present
motions into summary judgment motions.
Plaintiff's Exhibits 1 and 6 
Exhibit 1 is a bill Plaintiff submitted to Defendant ICON.
(Pl.'s Opp'n to Def. J& J's Mot. to Dismiss,
Ex. 1.) Exhibit 6 appears to be a letter from Plaintiff's
counsel to Defendant Travelers, dated July 30, 2018,
attaching the subcontract between Plaintiff and Defendant
ICON; applications for payment and other billing documents
submitted by Plaintiff to Defendant ICON; and Plaintiff's
counsel's letters to Defendant J&J and Defendant ICON
dated March 28, 2018. (Id. Ex. 6.) These documents
meet the exception for consideration.
for Plaintiff's subcontract work is at the heart of this
dispute. Accordingly, documents related to Plaintiff's
attempts to seek payment for its work are central to
Plaintiff's claims. Similarly, the subcontract serves as
the foundation of the present action, especially considering
Plaintiff asserts a breach of contract claim. See United
States ex rel. TSI Tri-State Painting, LLC v. Fed. Ins.
Co., No. CV 216-113, 2016 WL 7385715, at *4 (S.D. Ga.
Dec. 20, 2016). Moreover, Plaintiff references both the bill
and the subcontract in its Complaint, and Moving Defendants
do not dispute the authenticity of these documents. (Compl.,
¶¶ 14, 17.) Thus, the Court considers these
documents without converting the present motions to dismiss
into motions for summary judgment.
Plaintiff's Exhibits 2, 3, 5, 7, 8, and 9
2, 3, 5, 7, 8, 9 appear to be communications between
Plaintiff and Defendant J&J. (Pl.'s Opp'n to Def.
J& J's Mot. to Dismiss, Exs. 2, 3, 5, 7, 8, 9.) These
communications are extrinsic documents falling outside the
incorporation doctrine. First, the Court concludes these
documents are not central to Plaintiff's claim. The
Complaint makes no reference to specific communications made
with the Defendants other than the alleged March 28, 2018
notice to Defendant Travelers. (See Compl.)
Furthermore, the communications with Defendant J&J are
not critical to proving Plaintiff's claim. The Complaint
does not allege specific notice provided to Defendant
J&J. Instead, Plaintiff asserts "Dixie's notice
to the bond company could not be provided until March 28,
2018, because Dixie had no way of knowing the identity of the
bond company." (Compl., ¶ 21.) Even if the
referenced documents support Plaintiff's allegation
concerning the surety's identity, the Miller Act
expressly requires notice to the contractor, not the bonding
A person having a direct contractual relationship with a
subcontractor but no contractual relationship, express or
implied, with the contractor furnishing the payment bond may
bring a civil action on the payment bond on giving written
notice to the contractor within [ninety] days from the date
on which the person did or performed the last of the labor or
furnished or supplied the last of the material for which the
claim is made.
40 U.S.C. § 3133(b)(2). Therefore, evidence pertaining
to any alleged attempt by Defendant J&J to conceal the
identify of its bondholder is not central to a Miller Act
claim requiring notice to the contractor. Plaintiff's
Complaint fails to allege notice to the contractor, Defendant
Defendant Travelers challenged the authenticity of the
communications in question. (Def. Travelers's Reply Supp.
Mot. to Dismiss, Doc. 23, at 4-5.) In response, Plaintiff
argues that the emails can be self-authenticated "[i]f
it is not possible to depose the drafter of an email or call
him or her at trial." (Pl.'s Sur-Reply Opp'n to
Def. Travelers's Mot. to Dismiss, Doc. 26, at 4.) Of
course, Plaintiff may not have deposed the email drafters yet
because the present action is still in its early stages.
Plaintiff does not assert that it will be impossible to
authenticate the emails over the course of discovery.
the rule does not require the Court to determine
authenticity; instead, it only requires a challenge to the
authenticity. Because alleged concealment of the
surety's identity is not central to a Miller Act claim,
Plaintiff does not allege notice to Defendant J&J, and
Defendant Travelers challenged the authenticity of ...