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Shirk v. Garrow

September 6, 2007

THOMAS G. SHIRK, PLAINTIFF,
v.
MARK GARROW, ET AL., DEFENDANTS/THIRD-PARTY PLAINTIFFS,
v.
CELINA MOORE BARTON, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 10

MEMORANDUM OPINION

GRANTING THE THIRD-PARTY DEFENDANT'SMOTION TO DISMISS THE COMPLAINT WITHOUT PREJUDICE

I. INTRODUCTION

This action stems from a failed property sale. The defendants, Mark and Gail Garrows, entered into a contract with the plaintiff, Thomas G. Shirk, to purchase his property. The plaintiff alleges that the defendants failed to appear for the scheduled settlement, and he brings suit to recover losses resulting from the defendants' breach of contract. The defendants, and now the third-party plaintiffs ("the Garrows"), filed a third-party complaint naming Celina Moore Barton as a third-party defendant. Barton acted as the Garrows' licensed real estate broker, and she agreed to represent them in the sales contract for the property. Barton now moves the court to dismiss the third-party complaint, arguing that the Garrows fail to set forth a short and plain statement showing that they are entitled to relief, as required by Federal Rule of Civil Procedure 8*fn1 ("Rule 8"). The Garrows respond that the third-party complaint incorporates by reference the factual allegations contained in the complaint. According to the Garrows, this more than satisfies the pleading requirements of Rule 8. The court disagrees and concludes that the third-party complaint does not sufficiently outline the legal basis for the Garrows' claims against Barton. Accordingly, the court grants Barton's motion to dismiss and dismisses the complaint without prejudice.

II. BACKGROUND

A. Factual History

The plaintiff and the Garrows entered into a contract by which the Garrows would purchase the plaintiff's property for $2,495,000. Parties' Joint Status Report for Initial Scheduling Conf. ("Joint Report") at 2; Compl. ¶ 5. Barton served as the Garrows' real estate agent for the sales contract. Joint Report at 2. Although the Garrows deposited $125,000 in earnest money for the purchase of the property, the parties never closed on the property. Id. The plaintiff subsequently sold the property to another purchaser for a lower price*fn2 than that agreed upon with the Garrows. Id. The Garrows' earnest money remains in escrow. Compl. ¶ 10.

B. Procedural History

On February 16, 2007, the plaintiff filed suit seeking declaratory judgment against the Garrows for their breach of the sales contract, claiming $635,250.00 in actual damages and requesting attorneys' costs and fees. Compl. at 3. On April 23, 2007, the Garrows answered the complaint by setting forth a number of affirmative defenses and counterclaiming for the return of their earnest money deposit. See generally Defs.' Answer, Affirmative Defenses and Counterclaim ("Defs.' Ans."). That same day, the Garrows filed a third-party complaint naming Barton as the third-party defendant. In the third-party complaint, the Garrows incorporate by reference the plaintiff's complaint and assert that Barton is liable for all of the plaintiff's claims against the Garrows. Third-Party Compl. ¶¶ 5-7. Stated differently, the Garrows are suing Barton for indemnity and contribution in the event that Shirk succeeds in his claims against the Garrows.

On June 25, 2007, Barton filed a motion to dismiss the third-party complaint, alleging that the Garrows failed to state a claim upon which relief can be granted. Third-Party Def. Barton's Motion to Dismiss Third-Party Compl. ("Barton's Mot.") at 1. Specifically, Barton argues that the Garrows failed to satisfy Rule 8 because they offer merely conclusory allegations as to Barton's liability. Id. at 2. The Garrows oppose Barton's motion because the third-party complaint incorporates by reference Shirk's complaint which, to the Garrows, renders the third-party complaint more than sufficient for the purposes of Rule 8. Third-Party Pls.' Opp'n to Barton's Mot. to Dismiss ("Garrows' Opp'n").

III. ANALYSIS

A. Legal Standard for Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040(D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, ...


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