Apple American Group, Llc v. Gbc Design, Inc.

BRIEF in Opposition re Motion to Dismiss for Failure to State a Claim

W.D. Pa.May 24, 2017

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA APPLE AMERICAN GROUP, LLC, Plaintiff, vs. GBC DESIGN, INC., Defendant/Third- Party Plaintiff, vs. JACKSON TAYLOR CONTRACTORS, LLC, ACA ENGINEERING, INC., and L.R. KIMBALL & ASSOCIATES, Inc., Third-Party Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:15-CV-325 Judge Kim R. Gibson ELECTRONICALLY FILED DEFENDANT/THIRD-PARTY PLAINTIFF GBC DESIGN, INC.’S BRIEF IN OPPOSITION TO THIRD-PARTY DEFENDANT JACKSON TAYLOR’S MOTION TO DISMISS Now comes Defendant/Third-Party Plaintiff, GBC Design, Inc. (“GBC”), by and through counsel, and hereby respectfully submits its Brief in Opposition to Third-Party Defendant Jackson Taylor’s (“Jackson Taylor”) Motion to Dismiss as follows: I. FACTUAL BACKGROUND This matter stems in part from alleged water drainage issues and moisture damage that occurred at Plaintiff’s recently constructed Applebee’s location in Ebensburg, Pennsylvania. ECF 1, ¶¶8-10. Prior to the construction of this new Applebee’s location, Plaintiff Apple American Group, LLC (“Apple”) retained the services of Third-Party Defendant ACA Engineering, Inc., (“ACA”) to conduct initial site inspections as well as a geotechnical investigation of the proposed site to be used during the site planning phase of the project. Id. at ¶11. Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 1 of 15 On or around March 2013, Apple contracted with GBC to prepare the site plans for the new Applebee’s location. Id. at ¶¶12-16. The GBC site plans were completed around August or September 2013. Id. Following the completion of the GBC site plans, the construction of the new Applebee’s was conducted by a number of different contractors, including Third-Party Defendants Jackson Taylor and L.R. Kimball and Associates, Inc., (“L.R. Kimball”). Id. at ¶17. It is alleged that following the restaurant’s opening in late 2014, moisture and drainage issues occurred. Id. at ¶21. The cause of these moisture and drainage issues is in dispute. While Apple contends that its damages were caused by a failure of GBC to incorporate recommendations from the ACA geotechnical report into its site plan, the issues, in fact, were caused and created by Jackson Taylor’s and the other third party defendants failures to perform their work in accordance with industry standards and incorporate ACA’s recommendations into its work. ECF 24, ¶¶12-16. GBC asserts that the damages suffered by Apple were a result of the combined acts and/or omissions of several different parties, including Jackson Taylor, which taken together led to the harm suffered. II. LAW AND ARGUMENT Contrary to Jackson Taylor’s assertions, GBC’s Third-Party Complaint is proper under Federal Rule of Civil Procedure 14 as it sets forth proper claims for relief under theories of contribution or indemnity. Jackson Taylor incorrectly argues that GBC is merely attempting to point the finger at Jackson Taylor for the damages suffered by Plaintiff. To the contrary, GBC has not alleged that Jackson Taylor or the other Third-Party Defendants are “solely liable to Plaintiff,” but instead seeks to hold Jackson Taylor liable to GBC for contribution or indemnity only to the extent that GBC has damages assessed against it greater than its proportionate liability. ECF 24. Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 2 of 15 The crux of Jackson Taylor’s argument is that Apple’s claims against GBC sound in contract, for which contribution or indemnity claims are not available. However, Pennsylvania case law shows that claims for negligent workmanship, even when the work is governed by a contract, sound in tort. Beyond this threshold issue, Jackson Taylor’s arguments surround the triggering of common law indemnity and the availability of contribution being only for joint tortfeasors. These later questions implicate issues of fact as they relate to findings based on the nature of the work performed in relation to the ultimate harm suffered by Apple. Such factual issues are not properly within the purview of a Rule 12(B)(6) motion, as all that is required at this stage is a plausible claim for relief. Since the substantive case law supports a conclusion that Apple’s claims do sound in tort, there is a plausible legal basis for claims of indemnity or contribution, and Jackson Taylor’s Motion should be denied. A. Standard of Review When considering a motion to dismiss made under Fed.R. 12(B)(6), a reviewing court must “assume all remaining factual allegations to be true, construe those truths in the light most favorable to the plaintiff, and then draw all reasonable inferences from them.” Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016) Further, a court’s role is limited to determining if a plaintiff is entitled to offer evidence in support of her claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). A pleading that states a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Nat'l Specialty Ins. Co. v. Tunkhannock Auto Mart, Inc., M.D.Pa. No. 3:16-CV-00268, 2017 U.S. Dist. LEXIS 23160, at *6 (Feb. 17, 2017) (citing Fed. R. Civ. P. 8(a)(2)). Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 3 of 15 plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,” Nat'l Specialty Ins. Co. at *7 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)), meaning enough factual allegations “to raise a reasonable expectation that discovery will reveal evidence of'” each necessary element. Id. (citing Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)). In other words, the mere fact that Jackson Taylor may not be ultimately liable to GBC for contribution or indemnity is irrelevant to a motion to dismiss. The question is not whether GBC would prevail, but whether it plausibly could prevail. As GBC’s Third-Party Complaint states a claim that is sufficient to meet this low threshold, Jackson Taylor’s Motion to Dismiss should be denied. B. GBC’s Third-Party Complaint States a Proper Claim for Contribution/Indemnity Jackson Taylor’s Motion to Dismiss is in large part grounded in two primary misconceptions regarding the nature of the claims set forth in GBC’s Third-Party Complaint. First, Jackson Taylor confuses the difference between the allegation that its actions are a direct cause of Apple’s damages versus the claim that GBC is alleging that Jackson Taylor is directly liable to Apple. To the contrary, GBC has alleged via its third party complaint that Jackson Taylor is liable to GBC for any amount above its proportionate fault. Second, Jackson Taylor improperly relies on distinguishable case law in order to argue that Apple’s claims against GBC sound in contract law despite the fact that Apple’s Complaint plainly sets forth tort claims. Pennsylvania case law supports a finding that the claims raised in this matter sound in tort, and therefore, contribution or indemnity claims may be available to GBC. Consequently, Jackson Taylor’s Motion to Dismiss should be denied. 1. GBC Has Not Attempted to Join Jackson Taylor for Direct Liability to Apple GBC does not refute the fact that Federal Rule 14 governs third-party practice, and that the rule only permits joinder of a nonparty “who is or may be liable to it for all or part of the claims against it.” Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 4 of 15 Fed. R. Civ. P. 14. In other words, Rule 14 permits joinder of a non-party who may be liable to a third- party plaintiff for contribution or indemnity. It is important to note that Rule 14 does not require a Third-Party Plaintiff to wait until the underlying case concludes, but instead “permits a defendant to bring in a third-party defendant even though the defendant's claim is purely inchoate -- i.e., has not yet accrued under the governing substantive law -- so long as the third-party defendant may become liable for all or part of the plaintiff's judgment.” Trs. of the IBEW Local 98 Pension Plan v. Aetna Cas. & Sur. Co., E.D.Pa. CIVIL ACTION NO. 97-7407, 1998 U.S. Dist. LEXIS 14605, at *4-5 (Sep. 11, 1998)(citing Andrulonis v. United States, 26 F.3d 1224, 1233 (2d Cir. 1994); IHP Industrial, Inc. v. Permalert, ESP, 178 F.R.D. 483, 487 (S.D. Miss. 1997)(“Rule 14 does not require that the third-party plaintiff await the outcome of the plaintiff's claim against it before it may assert its third-party claim” even when the defendant's cause of action for indemnity has not yet arisen under state law)) Jackson Taylor misconstrues GBC’s pleading when it argues that GBC merely alleges that Jackson Taylor is directly liable to Apple. As evidenced by the portions of the Third-Party Complaint cited in its Motion, Jackson Taylor mistakes allegations of causation for allegations of liability. Specifically, Jackson Taylor cites to the claim that Apple “suffered damages set forth in [Apple’s] Complaint… [a]s a direct and proximate result of Jackson Taylor’s negligence.” ECF 24, ¶16. This allegation does not purport to hold Jackson Taylor directly liable to Apple, but instead sets forth an allegation of causation, which would be required to find Jackson Taylor liable to GBC for contribution or common law indemnity. As Jackson Taylor itself argues, in order for there to be a right to contribution or indemnity, a tort must have been committed, and it is axiomatic for one to be liable for a tort there must be direct and proximate causation. This allegation of causation, which would be absolutely necessary for a well-plead Complaint sounding in tort, does not aim to draw a direct line of liability between Apple and Jackson Taylor as its Motion suggests. Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 5 of 15 2. GBC May Be Entitled to Contribution or Indemnity from Jackson Taylor As a threshold matter, GBC does not contend that it was not in contractual privity with Jackson Taylor, therefore, the indemnity sought rests in common law not any contractual right to indemnification. In regards to claims for either common law indemnity or contribution, Pennsylvania substantive law governs. Herndon Borough Jackson Twp. Joint Mun. Auth. v. Pentair Pump Grp., Inc., No. 4:12- CV-01116, 2015 U.S. Dist. LEXIS 60459, 2015 WL 2166097, at *2 (M.D. Pa. May 8, 2015) Under Pennsylvania law, the right to contribution is statutorily set forth in the Pennsylvania Uniform Contribution Among Tortfeasors Act. 42 Pa. C.S. §§ 8322-8327. Under this Act, a claim for contribution is permitted between joint-tortfeasors, which is defined “two or more persons jointly or severally liable in tort for the same injury to persons or property . . .” 42 Pa. C.S. § 8322 While contribution is a claim which involves the sharing of relative fault between tortfeasors, common law indemnity “ensures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.” Bank v. City of Phila., 991 F.Supp.2d 523, 530 (E.D.Pa.2014) The difference between the two remedies lies primarily in whether the claiming party had any fault for the harm suffered. Id. However, what contribution and common law indemnity have in common is that both are only available for liability sounding in tort and are not available for breaches of contract. See EQT Prod. Co. v. Terra Servs., LLC, 179 F. Supp. 3d 486, 493-494 (W.D.Pa.2016) This common requirement is at the center of Jackson Taylor’s arguments for why GBC’s claims for indemnity or contribution both must fail. To be sure, Apple’s complaint does contain a count for breach of contract, but it also importantly includes counts of negligence, professional negligence, and unjust enrichment. ECF 1. These later claims sound in tort, and based on substantial Pennsylvania case Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 6 of 15 law, the Gist of the Action doctrine does not convert the whole of Apple’s Complaint into one arising under contract law only. As this action does involve actions sounding in tort, claims for contribution or indemnity may be available to GBC. a. Apple’s Claims Against GBC Sound in Tort Jackson Taylor’s Motion to Dismiss relies heavily on the Gist of the Action doctrine and a recent case from this Court, EQT Prod. Co. v. Terra Servs., LLC, to support its arguments. However, EQT is factually distinguishable from the facts of this case. Without rehashing the entire factual background of EQT, that matter involved the construction of a natural gas well by a number of different contractors. Like the present matter, the plaintiff, EQT, chose to only file suit against a single contractor, Terra, which in turn filed third-party claims against other contractors who worked on the project. See EQT, generally. Ultimately these third-party claims were dismissed in large part due to the finding that application of Gist of the Action led to the conclusion that the claims sounded in contract, for which claims of contribution and indemnity are not available. However, the factual and procedural background of this case depart from those in EQT, so much so that the reasoning applied there cannot apply here. Importantly, the claims brought by the plaintiff in that case were not the same as Apple’s. In EQT, the plaintiff did not plead any claim for negligence or any other tort. Instead, the complaint contained claims against Terra for breach of contract, breach of express warranty, contractual indemnification, or in the alternative, common law indemnification. Id. at 490. This Court applied the Gist of the Action doctrine, to find that EQT’s claims all sounded in contract; however, the application of that doctrine was perhaps unnecessary as those claims do sound in contract on their face. The same cannot be said here, as Apple’s Complaint specifically includes tort claims of professional and ordinary negligence. Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 7 of 15 Both this Court and the Pennsylvania Supreme Court have recognized that the “mere existence of a contract between two parties does not, ipso facto, classify a claim by a contracting party for injury or loss suffered as the result of actions of the other party in performing the contract as one for breach of contract. Indeed, our Court has long recognized that a party to a contract may be found liable in tort for negligently performing contractual obligations and thereby causing injury or other harm to another contracting party.” Bruno v. Erie Ins. Co., 630 Pa. 79, 114, 106 A.3d 48 (2014) (emphasis added); EQT, 179 F. Supp. 3d at 496. In fact, the Pennsylvania Supreme Court in Bruno cites to a number of cases where a party was held liable in tort for the negligent performance of contractual duties. Bruno, 630 Pa. at 69-70 (citing, Bloomsburg Mills v. Sordoni, 401 Pa. 358, 164 A.2d 201 (Pa. 1960)(finding evidence sufficient for jury to have concluded architect was negligent in failing to exercise reasonable care in performance of duties imposed by design contract) ; Evans v. Otis Elevator Co., 403 Pa. 13, 18, 168 A.2d 573, 575 (1961): (elevator repair company liable for injuries to user of the elevator caused by its negligent performance of service contract with building owner); Farabaugh v. Pa. Turnpike Comm'n, 590 Pa. 46, 911 A.2d 1264 (Pa. 2006)(recognizing claim for negligence against construction company for injuries to a third person caused by company's allegedly deficient performance of its contractual duty of inspection)). Ultimately, the Pennsylvania Supreme Court found: Consequently, a negligence claim based on the actions of a contracting party in performing contractual obligations is not viewed as an action on the underlying contract itself, since it is not founded on the breach of any of the specific executory promises which comprise the contract. Instead, the contract is regarded merely as the vehicle, or mechanism, which established the relationship between the parties, during which the tort of negligence was committed. See Zell, 2 Pen. & W. 292, 1830 WL 3261, at *3 (considering action to be in tort since it was for breach of the defendant's duty to perform, in a "workmanly manner," construction activities specified by the construction contract); Evans, 168 A.2d at 575 ("It is not the contract per se which creates the duty [to avoid causing injury to third parties]; it is the law which imposes the duty because of the nature of the undertaking in the contract."); Reitmeyer (negligence action was based on landlord's alleged breach of his independent duty of care imposed by law, which arose because of the parties' establishment of a contractual relationship Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 8 of 15 through the formation of the lease agreement, not for a breach of a duty created by the agreement itself). Bruno 630 Pa. at 114-115 (emphasis added.) What differentiates this Court’s reasoning in EQT from this compelling line of Pennsylvania substantive case law appears to be the fact that the alleged breach in EQT was of duties specifically set forth in the contract at issue as opposed to a general obligation to complete contract work in a workmanlike manner. In EQT, the contract at issue specifically stated that Trumbull would complete the work in a “’workmanlike’ and ‘safe’ manner, free from defects. Trumbull also agreed that it would not ‘cause or permit a violation of, or perform [work] in a manner that will subject [the well site] to any remedial obligation under any local, state or federal environmental laws’ and to indemnify EQT if its performance resulted in any such remedial obligations.” EQT, 179 F. Supp. 3d at 495. The Court noted that “Terra's allegations regarding Trumbull's failures fall squarely within Terra's own description of Trumbull's contractual obligations to EQT.” Id. Because the contract specifically obligated Trumbull not to cause the harm that was alleged, the Court found that the claims sounded in contract. Here, the claims brought by Apple are fundamentally different from those set forth in EQT. Apple specifically brought tort claims of professional and ordinary negligence, but more importantly the alleged harms were not caused by breaches of duties specifically set forth in the contract between GBC and Apple. Instead Apple alleges that “As a licenses professional, GBC has a duty independent and separate from its contract with Apple American to complete Site Plans in an appropriate and adequate manner,” further, “By completing the Site Plans in a defective and negligent manner, GBC breached that duty to Apple American.” ECF 1, ¶39; ¶44. In accordance with the Pennsylvania Supreme Court’s analysis in Bruno, these sorts of allegations do not implicate any explicit contractual obligation, but instead arise from the general duty of reasonable care that is subject of tort law. Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 9 of 15 Given the fundamental factual differences between the claims brought by Apple in this case and those present in EQT, Jackson Taylor’s reliance on that prior decision and the application of the Gist of the Action doctrine is misplaced. As this Court is bound by Pennsylvania substantive law when determining the availability of contribution or indemnity claims, the holdings in Bruno as well as the numerous cases cited therein are controlling - Apple’s claims sound in tort. b. GBC is Entitled to Common Law Indemnity In its Motion to Dismiss, Jackson Taylor claims that “[e]ven if this Court determines that this action sounds in tort, there is no legal or special relationship between GBC and Jackson Taylor sufficient to impose a common law duty of indemnification…” However, Federal Courts interpreting Pennsylvania law have found that “Pennsylvania law does not limit indemnity to cases where a legal relationship exists between the party primarily liable and the party secondarily liable Trs. of the IBEW Local 98 Pension Plan 1998 U.S. Dist. LEXIS 14605, at *6 (citing Tromza v. Tecumseh Products Co., 378 F.2d 601, 604 (3d Cir. 1967)) Further, a lack of contractual or other legal relationship between defendant and third-party defendant is no defense to indemnity claim under Pennsylvania law. Id. (citing Petite v. Mehl Mfg. Co., 333 F. Supp. 207, 208 (E.D. Pa. 1970)). Jackson Taylor’s claim that a legal or special relationship must exist as a prerequisite for a common law indemnity claim is erroneous under Pennsylvania law. Rather than require a legal or special relationship as a prerequisite to common law indemnity, the Third Circuit Court of Appeals has recognized: In all these cases [where indemnity was sought] the wrongful act of the one held finally liable created the unsafe or dangerous condition from which the injury resulted. The principal and moving cause, resulting in the injury sustained, was the act of the first wrongdoer, and the other has been held liable to third persons for failing to discover or correct the defect caused by the positive act of the other. Tromza, 378 F.2d at 606 Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 10 of 15 This shows that the threshold for the availability of common law indemnity does not turn on the demonstration of any legal or special relationship, but instead involves a question of the nature of the work or actions of the parties involves in order to determine potential primary and secondary liability. Such an inquiry would involve questions of fact that are not meant to be disposed of in a 12(B)(6) motion. As common law indemnity does not require a legal or special relationship between the parties under Pennsylvania law, but could instead arise from primary and secondary liability based on their respective roles in causing the harm, GBC has met its burden of pleading a plausible claim for relief. c. Jackson Taylor and GBC Are Joint Tortfeasors, Thereby Allowing a Claim for Contribution. In its Motion to Dismiss, Jackson Taylor argues that even if Apple’s claims sounded in tort, contribution would still not be a valid claim, because it and GBC could not be found to be joint- tortfeasors under 42 Pa. C.S. §§ 8322-8327. However, given the definition of “joint tortfeasor” under Pennsylvania law, given the nature of harms suffered by Apple and the fact that multiple contractors contributed to those harms, such a relationship may plausibly be proven. Pennsylvania Courts have defined “joint tortfeasors” in a number of ways, including when “the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury.” Lasprogata v. Qualls, 263 Pa.Super. 174, 179, 397 A.2d 803 (1979), fn. 4 The second portion of that definition is important as Jackson Taylor has attempted to draw a distinction between the timing and type of work done by either party in order to argue that they cannot be joint tortfeasors. Not only does this argument implicate issues of fact not within the purview of this Motion, but this definition contradicts such an argument as it provides that even independent acts can give rise to joint liability. In fact, at least one Federal Court interpreting Pennsylvania law has found Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 11 of 15 “that actors could also be joint tortfeasors if they acted independently to cause a single injury. Mills v. Ford Motor Co., 142 F.R.D. 271, 272 (M.D.Pa.1990), fn. 2 (emphasis added). Additionally, Pennsylvania Courts have identified a number of factors in determining whether two parties can be considered joint tortfeasors: the identity of a cause of action against each of two or more defendants; the existence of a common, or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place, or result; whether the injury is direct and immediate, rather than consequential; responsibility of the defendants for the same injuria as distinguished from the damnum. Morris v. Lenihan, 192 F.R.D. 484, 490 (E.D.Pa.2000) Here, we have a single injury, the water and moisture damage sustained by Apple. As set forth in GBC’s Third-Party Complaint, Jackson Taylor, ACA, and L.R. Kimball all acted negligently in causing that single harm suffered by Apple. Regardless of the timing of their respective work, when viewed in a light most favorably to GBC, the Third-Party Complaint raises plausible allegations of joint liability between the various parties where their actions, independent or otherwise, combined to result in a single harm - which is sufficient to defeat Jackson Taylor’s Motion to Dismiss. d. The Nature of the Relationship Between Jackson Taylor and GBC Turns on Issues of Fact Beyond Jackson Taylor’s primary argument that Apple’s claims sound in contract rather than tort, the remainder of its arguments for dismissal surround issues of fact that cannot be disposed of at this stage of litigation. As for GBC’s common law indemnity claim, Jackson Taylor argues that even if the claims sound in tort, that there is no set of facts that could cause GBC to pay Apple for Jackson Taylor’s negligence. Similarly, in regards to the contribution claim, Jackson Taylor argues that even if the claims sound in tort, Jackson Taylor and GBC cannot be considered joint tortfeasors. Both of these secondary arguments arise out of the relationship between the two parties and the work that they Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 12 of 15 performed on Apple’s property, which involve questions of fact. There mere existence of the factors cited above is proof that the issue of whether parties are joint tortfeasors is a fact based inquiry. Jackson Taylor’s arguments that the parties are not joint tortfeasors or that common law indemnity could never be available are nothing more than conjecture and speculation at this stage of litigation, as both issues involves questions of fact, which require further discovery and evidence to properly assess. In order to survive a Motion to Dismiss, GBC need not prove its case through the pleadings, yet many of the arguments raised by Jackson Taylor surround factual questions that are not meant to be addressed in such a motion. When faced with a similar Motion to Dismiss in Berkley Mid-Atl. Grp., LLC v. G.F. Hoch Co., this Court recognized that at the early stages of litigation it had little information about the relationship between the parties and therefore could not properly assess the viability of an indemnity or contribution claim. See Berkley Mid-Atl. Grp., LLC v. G.F. Hoch Co., W.D.Pa. Civil Action No. 13-372, 2013 U.S. Dist. LEXIS 164872, at *10 (Nov. 20, 2013) Faced with such a lack of information, this Court found that it could not grant the Motion to Dismiss, but instead left the issue open for resolution at a later time such as by summary judgment once reasonable discovery had been conducted. Id. As in Berkley, GBC contends that the issues raised by Jackson Taylor can only be determined through a resolution of factual questions that a 12(B)(6) motion is neither equipped for or meant to dispose of. GBC has met the baseline threshold of stating a plausible claim for relief, and requests that the Court deny Jackson Taylor’s Motion and allow for the proper discovery into the issues raised in GBC’s Third-Party Complaint. C. Alternatively, GBC Should be Granted Leave to Amend its Third-Party Complaint Should the Court find that GBC’s Third-Party Complaint is in any way insufficient, GBC respectfully requests that it be given the opportunity to make any necessary amendments in order to Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 13 of 15 state a proper claim for indemnity or contribution. The Third Circuit Court of Appeals has found, that if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile. Salvio v. Amgen, Inc., 810 F.Supp.2d 745, 757 (W.D.Pa.2011) A district court must provide the plaintiff with this opportunity even if the plaintiff does not seek leave to amend. Id. Based on the above, if an amendment is required, such an amendment would not be futile as Pennsylvania law supports a finding that Apple’s claims against GBC sound, at least in part, in tort. Therefore, GBC may be entitled to common law indemnity or contribution depending on the nature of the work they each performed, which can only be learned through discovery. For these reasons, the circumstances of this case could plausibly give rise to claims for indemnity or contribution. While GBC asserts that its Third-Part Complaint is proper as it is, should the Court find that there is any deficiency, it respectfully requests the opportunity to remedy it. III. CONCLUSION Based on the foregoing, GBC’s claims against Jackson Taylor are proper under Federal Rule 14, as GBC has stated a plausible claim for indemnity or contribution against Jackson Taylor under Pennsylvania law. For these reasons, Third-Party Plaintiff GBC Design, Inc., respectfully requests that Jackson Taylor’s Motion to Dismiss be denied. Respectfully submitted, /s/ Brian C. Lee Brian C. Lee, Esq. (0081675) REMINGER CO., LPA 101 West Prospect Ave., Suite 1400 Cleveland, OH 44011 T: 216-687-1311 / F: 216-687-1841 Email: blee@reminger.com Attorney for Defendant/Third Party Plaintiff GBC Design, Inc. Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 14 of 15 CERTIFICATE OF SERVICE I certify on May 24, 2017, the foregoing Defendant/Third-Party Plaintiff GBC Design, Inc.’s Brief in opposition to Third-party Defendant Jackson Taylor’s Motion to Dismiss was served, via the Court’s electronic filing system, to all counsel of record /s/ Brian C. Lee Brian C. Lee, Esq. (0081675) Case 3:15-cv-00325-KRG Document 47 Filed 05/24/17 Page 15 of 15