United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
TOMMY E. MILLER, Magistrate Judge.
This matter is before the Court on The Sherwin Williams Company's ("Defendant's") Motion to Dismiss Count Four of the Amended Complaint ("Motion") filed on July 15, 2014. ECF No. 26. Defendant argues in its Motion that Count Four should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Additionally, the Court will briefly address Defendant's original Motion to Dismiss (ECF No. 3) filed on May 8, 2014, which was rendered moot by the filing of the Amended Complaint.
A. Factual Background
Plaintiff, Norfolk Coating Services ("Plaintiff" or "NCS"), is a construction company owned by Michael Winterling that primarily performs its work at Colonna's Shipyard in Norfolk, Virginia. Am. Compl. ¶¶ 3, 9. NCS was founded by Mr. Winterling in December 2011 upon his separation from a business partner at Surface Preparation and Coatings, Inc. ("Surface"). Id. at ¶ 9.
Defendant is in the business, among other things, of selling paint equipment and performing maintenance and repair work on commercial paint equipment. Id. at ¶¶ 11-12. As a part of that business, Defendant sold Surface a Graco XP70 Plural-Component Sprayer (the "Sprayer"). Id. at ¶ 15. When Mr. Winterling subsequently left Surface to start NCS, he took the Sprayer with him to use with his new business venture. Id. at ¶ 16. Subsequently, Defendant arranged with NCS for the necessary training and certification of NCS employees on the use of the Sprayer. Id. at ¶¶ 21-22. In February 2013, Plaintiff and Defendant contracted for Defendant to perform whatever repair or maintenance work was necessary to refurbish the Sprayer. Id. at ¶ 23.
Around that same time, Plaintiff contracted with Colonna's Shipyard to perform painting work on the USS DYNAMIC. Id. at ¶¶ 24-25. Plaintiff relied upon Defendant for all of its equipment and paint needs for the USS DYNAMIC job due to the relationship between Defendant and Mr. Winterling. Id. at ¶ 27. Additionally, the recently refurbished Sprayer was used for the first time on this job. Id. at ¶ 30.
The Sprayer, when functioning properly, precisely mixes various paint components to match the exact specifications of each job. Id. at ¶ 17. The metering valve, one essential part of the Sprayer, is intended to "regulate the flow of the various paint components being mixed to ensure that the final product meets the exact parameters specific to each job." Id. at ¶ 18.
Nearly immediately upon its initial use for the USS DYNAMIC job, the Sprayer began displaying an error code. Id. at ¶ 34. Plaintiff informed Defendant about the error code and Defendant sent over a technician who determined that the metering valve was bad, and replaced it with a new one. Id. at ¶¶ 35-39. When turned on, however, the Sprayer displayed the same error code as before. Id. at ¶ 40.
Defendant's technician advised Plaintiff that the error code was no longer valid and that he should proceed with the USS DYNAMIC job. Id. at ¶ 41. Relying on this assurance, Plaintiff's employee attempted to complete the job, discovering later that the Sprayer was not mixing paint appropriately. Id. at ¶¶ 42-46. This improper mixture caused the paint to peel off of the USS DYNAMIC's ballast tanks. Id. at ¶¶ 47-48. Due to this issue, Colonna's Shipyard replaced Plaintiff with a different sub-contractor and charged Plaintiff the cost of this replacement. Id. at ¶¶ 49-52. Furthermore, as a result of this issue, Colonna's Shipyard prohibited Plaintiff from performing any other work at the shipyard "for a period of time" until "recently." Id. at ¶¶ 53-54.
B. Procedural History
Originally filed in Chesapeake Circuit Court, the instant case was removed to this Court on May 2, 2014. ECF No. 1. Defendant filed its original Motion to Dismiss, its Answer, and a Counterclaim on May 8, 2014. ECF Nos. 3, 5. On June 18, 2014, Plaintiff filed its Answer to Counterclaim. ECF No. 16.
Plaintiff requested Leave to File an Amended Complaint on June 18, 2014, which was granted the following day. ECF Nos. 17, 22. On June 23, 2014, Plaintiff filed the Amended Complaint against Defendant. ECF No. 23.
A companion case, brought against Mr. Winterling, was filed on May 9, 2014 before this Court. See No. 2:14cv212 at ECF No. 1. Plaintiff then moved to have the two cases consolidated on July 15, 2014. After a hearing before United States Magistrate Judge Tommy Miller, the cases were ordered consolidated on September 2, 2014. Both parties consented to proceed before a Magistrate Judge by October 6, 2014. ECF No. 37. This case was ...