The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiffs initially filed this action in the Superior Court of the District of Columbia for the alleged wrongful death of their husband and father, Joseph Hudert. The decedent died from injuries sustained on May 3, 2004, caused by a steam and water burst that occurred at the construction site where he was employed. Fourth Amended Complaint ( "Am. Compl.") ¶¶ 28, 29. The plaintiffs filed this action against defendants Grunley-Walsh Joint Venture LLC ("Grunley-Walsh") and Alion Science & Technology Corp. ("Alion"), alleging that their negligence caused the decedent's fatal injuries. The case was subsequently removed to this Court by the United States of America ("USA"), a third-party defendant, and the plaintiffs filed successive amended complaints. The plaintiffs' Fourth Amended Complaint also names Consolidated Engineering Services, Inc. ("CES") as a defendant, alleging that its negligence contributed to Mr. Hudert's death. Id ¶¶ 17-18, 31. Currently before the Court is Defendant CES's Motion to Dismiss and for Summary Judgment. ("Def.'s Mot.").*fn1 For the reasons set forth below, CES's motion is granted in part and denied in part.
The plaintiffs in this case are Margaret Hudert, Elizabeth Hudert, and Anthony Hudert, who are all seeking to recover damages for the death of Joseph Hudert. Margaret Hudert is the decedent's wife, and is the personal representative of his estate. Am. Compl. ¶¶ 46-47. Elizabeth Hudert is the daughter of the decedent, id. ¶¶ 49-50, and Anthony Hudert is the decedent's minor son. Id. ¶¶ 52-53. As noted above, on April 23, 2004, the decedent sustained fatal burns at a construction site at or near 808 17th Street, NW, Washington D.C., and died from his injuries on May 2, 2004. Id. ¶¶ 28, 29. The plaintiffs have now filed this action against seven defendants, alleging that each was in some way at fault for Mr. Hudert's death.*fn2 At the time of Mr. Hudert's death, he was employed by Cherry Hill Construction, Inc. ("Cherry Hill"), id. ¶ 27. Cherry Hill had been hired as a subcontractor by defendant Grunley-Walsh Joint Venture, LLC ("Grunley-Walsh") to perform services pursuant to a contract that Grunley-Walsh had entered into with the United States General Services Administration ("GSA"). Id. Under that contract, Grunley-Walsh was "to replace the steam condensation system running under 17th Street, NW, Washington, D.C." Id. ¶ 10. Cherry Hill was hired as a subcontractor by Grunley-Walsh "to excavate and perform other services in connection" with the GSA contract. Id. ¶ 27.
The plaintiffs' Fourth Amended Complaint, filed on April 19, 2007, for the first time named CES as a defendant. Id. at ¶¶ 17, 18, 38. The plaintiffs allege that CES "was contracted in 2002 to provide maintenance and repair services for the GSA Steam Distribution Tunnels . . . , id. ¶18, and thus the "accident and injuries resulting to [Mr.] Hudert were caused by the negligence and want of due care on the part of the defendants." Id. at 45. Defendant CES has moved to dismiss, as to it, Counts II, III, and IV of the Fourth Amended Complaint for failure to state a claim for which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As to Count I of the complaint, the defendant contends that it is entitled to summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
A. Rule 12(b)(6) of the Federal Rules of Civil Procedure
On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged in the complaint. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). In deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). A rule 12(b)(6) motion should be granted and claims should be dismissed under this rule if the plaintiff does not provide "enough facts to state a claim of relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___U.S. ___, ___, 127 S.Ct. 1955, 1974 (2007).
B. Rule 56 of the Federal Rules of Civil Procedure
On a motion for summary judgment under Federal Rule of Civil Procedure 56(c), this Court must find that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). However, the non-moving party cannot rely on "mere allegations or denials . . ., but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). Under Rule 56, "if a party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial" summary judgment is warranted. Hazward v. Runyon, 14 F. Supp. 2d 120, 122 (D.D.C. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The party moving for summary judgment bears the burden of establishing the absence of evidence that supports the non-moving party's case. Id.
The defendant has two arguments in response to the plaintiffs' complaint: First, that the claims brought under Counts II through IV of the complaint are barred by the applicable statute of limitations, Def.'s Mem. at 5-6; and second, that with regard to Count I, CES owed no duty to Mr. Hudert as it did not assume any contractual duties related to the steam distribution system until after Mr. Hudert's death. Id. at 3-5. The plaintiffs do not oppose and therefore concede that Counts II through IV of the complaint for wrongful death are time barred because "an action asserting a claim for wrongful death must be brought within one year of the decedent's death pursuant to D.C. Code § 16-2702 ." Pls.' Mem. at 6. Therefore, since the plaintiffs did not file this action against CES until nearly three years after Mr. Hudert's death, the statute of limitations has run. Id. Accordingly, these claims must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.
CES requests summary judgment with respect to Count I of the amended complaint, which is a survival claim brought by Mr. Hudert's widow as his personal representative. Am. Compl. ¶¶ 43-45. She alleges in this count that the defendant failed to adequately repair and maintain the steam distribution system in the area where Mr. Hudert was working on April 23, 2004, id. at ¶¶ 18-21, 31, a failure the plaintiff alleges that led to his death. Id. ¶ 31. CES, on the other hand, claims that it is in no way liable for Mr. Hudert's injuries and ultimate death, since its contractual liability to maintain the steam tunnels and pipelines in the area where Mr. Hudert was working did not take effect until August 30, 2004, over four months after Mr. Hudert sustained the injuries that resulted in his death. Def.'s Mem. at 4. In support of this assertion, the defendant has submitted the affidavit of CES employee Richard Small, Def.'s Mem. Ex. 1 (Affidavit of Richard Small dated May 16, 2007) ("Small Aff'd"),*fn3 and a copy of the contract transferring the maintenance and repair responsibilities for the steam tunnels and pipelines at issue from Day and Zimmerman to CES as of August 30, 2004. Def.'s Mem., Ex. 1 (Small Aff'd) & Attachment (copy of Amendment of Solicitation/Modification of Contract between GSA and Day & Zimmerman labeled as exhibit 1). Mr. Small also states in his affidavit that he has no knowledge of any other entity other than Day & Zimmerman that had contractual duties or responsibilities for the repair, maintenance and inspection of the Steam Distribution Complex for the GSA prior to August 30, 2004. Id. ¶ 8.
In contrast to the representations of Mr. Small, the plaintiff has submitted the affidavit of Samuel J. Pace, Jr., counsel for the plaintiff, along with another copy of an Amendment of Solicitation/Modification of Contract entered into between the GSA and CES indicating an effective contract date of March 1, 2005. Pls.' Mem. at 4-5, Ex. 1 (Affidavit of Samuel J. Pace, Jr.) & Attachment (copy of Amendment of Solicitation/Modification of Contract between GSA and CES).*fn4 Also attached to the amended contract dated March 1, 2005, is a work order identifying "17th at NEOB (S of H)" as the location where the work would be performed. Id. Because of the possible contrasting affidavits and evidence, the plaintiffs argue that the defendant's motion must be denied since they have not had an opportunity to conduct discovery on the issue. Id. at 3-5. Furthermore, they contend, an adequate opportunity to conduct discovery may show that the defendant had been authorized to do work on the steam ...