Opinion
CASE NO. 20-24684-CIV-ALTONAGA/Torres
2021-03-02
MAGNUM CONSTRUCTION MANAGEMENT, LLC, Plaintiff, v. WSP USA SOLUTIONS, INC.; et al., Defendants.
Mariela Melissa Malfeld, Watt, Tieder, Hoffar & Fitzgerald, Miami, FL, Carter Burwell Reid, Pro Hac Vice, Watt Tieder Hoffar & Fitzgerald LLP, McLean, VA, for Plaintiff. Rayda Aleman, Gregory J. Trask, Peter W. Homer, Homer Bonner Jacobs, P.A., Miami, FL, Hariklia Karis, Pro Hac Vice, Stacey Garbis Pagonis, Pro Hac Vice, Kirkland & Ellis LLP, Chicago, IL, for Defendants.
Mariela Melissa Malfeld, Watt, Tieder, Hoffar & Fitzgerald, Miami, FL, Carter Burwell Reid, Pro Hac Vice, Watt Tieder Hoffar & Fitzgerald LLP, McLean, VA, for Plaintiff.
Rayda Aleman, Gregory J. Trask, Peter W. Homer, Homer Bonner Jacobs, P.A., Miami, FL, Hariklia Karis, Pro Hac Vice, Stacey Garbis Pagonis, Pro Hac Vice, Kirkland & Ellis LLP, Chicago, IL, for Defendants.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court on Defendants, WSP USA Solutions, Inc.; Louis Berger U.S., Inc.; The Louis Berger Group, Inc.; and Amman & Whitney, Inc.’s Motion to Dismiss Complaint [ECF No. 19], filed on December 4, 2020. Plaintiff, Magnum Construction Management, LLC, filed a Response in Opposition [ECF No. 31] to the Motion, to which Defendants filed a Reply [ECF No. 38] and Notice of Supplemental Authority [ECF No. 39]. The Court has carefully considered the Complaint [ECF No. 1-2], the parties’ written submissions, the record, and applicable law. For the following reasons, the Motion is granted in part and denied in part.
I. BACKGROUND
This action involves a dispute over liability for the fatal March 2018 collapse of an elevated pedestrian bridge (the "Bridge") built in connection with Florida International University's ("FIU[’s]") UniversityCity Prosperity Project. FIU retained Plaintiff to design and construct an elevated pedestrian bridge at the intersection of S.W. 8th Street, Tamiami Canal, and S.W. 109th Avenue in Miami-Dade County. (See Compl. ¶ 9). In turn, Plaintiff contracted with FIGG Bridge Engineers, Inc. ("FIGG") to perform all design and engineering services for the Bridge. (See id. ¶ 10). FIGG then contracted with The Louis Berger Group, Inc. for an independent peer review of certain aspects of the Bridge design. (See id. ¶ 12; id. , Ex. 2, Peer Review Agreement 104). The Complaint alleges "Louis Berger" submitted its first peer review certification letter on September 13, 2016 (see Compl. ¶ 28); completed its peer review on February 10, 2017 (see id. ¶ 30); and the Bridge collapsed on March 15, 2018 (see id. ¶ 42).
The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings.
After Plaintiff filed for bankruptcy in March 2019 (see id. ¶ 46), FIU filed a claim against it totaling $15,256,503.86 for breach of contract, property damage, and indemnification, stemming from the Bridge collapse (see id. ¶ 47). In November 2019, Plaintiff entered into a settlement agreement with FIU and several other parties, which partially satisfied FIU's claim in the amount of $9,500,000. (See id. ¶ 53). Plaintiff contributed over $750,000.00 toward the partial satisfaction of FIU's claim through its surety, Travelers Casualty and Surety Company of America. (See id. ¶ 54). In exchange, FIU assigned its rights against any non-settling defendants to Travelers — including any claims against Defendants. (See id. ¶ 55; id. , Ex. 3, Second Settlement Agreement 117, 122). The Settlement Agreement explicitly did not release any claims that Plaintiff, Travelers, or FIU may have against the non-settling defendants. (See id. 127). Plaintiff alleges Travelers then transferred its own rights and FIU's rights against "Louis Berger" to Plaintiff. (See Compl. ¶¶ 58–59).
Plaintiff initiated this action against Defendants on September 11, 2020. (See id. 22). Plaintiff alleges Defendants — collectively referred to as "Louis Berger" throughout the Complaint — wrongfully represented that they were pre-qualified to perform the peer review work, as required by the Florida Department of Transportation ("FDOT") Plans Preparation Manual (see id. ¶¶ 21–26); performed an inadequate, incomplete analysis (see id. ¶¶ 36–38); and wrongfully certified they had fully complied with all independent peer review requirements in accordance with FDOT and Federal Highway Administration (FHWA) standards (see id. ¶¶ 27–31). Plaintiff therefore asserts claims of professional negligence and negligent misrepresentation. (See id. ¶¶ 61–115). Plaintiff also seeks contribution and equitable subrogation from Defendants in the amount of $750,000.00 for the sum it and Travelers paid to satisfy FIU's claim. (See id. ¶¶ 117–130). Defendants now move to dismiss the Complaint, arguing: (1) the Complaint is a shotgun pleading because it does not differentiate between Defendants; (2) the Complaint is in conflict with its attached Peer Review Agreement, which states only The Louis Berger Group, Inc. was contracted to perform peer review services; (3) Count III for negligent misrepresentation fails to meet the heightened pleading standard of Federal Rule of Civil Procedure 9(a) by lumping Defendants together; (4) Count I for professional negligence is barred by the statute of limitations; and (5) Count IV for contribution should be dismissed because there is no common law right to contribution and Plaintiff is not entitled to statutory contribution based on the Complaint's allegations. (See generally Mot.).
II. DISCUSSION
A. Shotgun Pleading
Defendants argue the Complaint should be dismissed as a shotgun pleading that violates Federal Rule of Civil Procedure 8(a)(2). (See Mot. 7–8). Rule 8(a)(2) requires that a pleading contain a "short and plain statement of the claim" showing the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). Thereunder, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests[.]" Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (alteration adopted; other alteration added; citation and quotation marks omitted).
"Complaints that violate [ ] Rule 8(a)(2) ... are often disparagingly referred to as ‘shotgun pleadings.’ " Weiland v. Palm Beach Cnty. Sheriff's Off. , 792 F.3d 1313, 1320 (11th Cir. 2015) (alterations added). There are "four rough types" of shotgun pleadings. Id. at 1321. As relevant here, a complaint is a shotgun pleading when it commits "the relatively rare sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against." Id. at 1323 (footnote call number omitted). Shotgun pleadings "fail ... to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests." Id. (alteration added; footnote call number omitted). Therefore, "shotgun pleadings are routinely condemned by the Eleventh Circuit." Real Estate Mortg. Network, Inc. v. Cadrecha , No. 8:11-cv-474, 2011 WL 2881928, at *2 (M.D. Fla. July 19, 2011) (citing Pelletier v. Zweifel , 921 F.2d 1465, 1518 (11th Cir. 1991) ).
Defendants argue the Complaint should be dismissed because it refers to Defendants collectively as "Louis Berger" throughout. (See, e.g. , Compl. ¶¶ 12, 23–26, 28–31, 36–38, 61–71, 75–76, 81–84, 92–100, 102–108, 119, 127). The pleading does not contain any individualized allegations.
Plaintiff argues it should be permitted to plead this way because Defendants are all merged or successor entities to one another. (See Resp. 6–7). Specifically, Plaintiff contends that The Louis Berger Group, Inc. and Amman & Whitney, Inc. merged to become Louis Berger U.S., Inc.; which was then acquired by WSP USA Solutions, Inc. (See id. 2–3). Thus, Plaintiff argues, all Defendants are essentially "the same entity." (Id. 3 (emphasis omitted)). In support, Plaintiff attaches to its Response several web articles chronicling the various mergers and acquisitions. (See [ECF Nos. 31-1, 31-2]). As an initial matter, a court "is generally limited to reviewing what is within the four corners of the complaint on a motion to dismiss." Bickley v. Caremark RX, Inc. , 461 F.3d 1325, 1329 n.7 (11th Cir. 2006). The Court therefore will not consider the documents attached to Plaintiff's Response, which were neither attached to nor referenced in the Complaint. See Jallali v. Nova Se. Univ., Inc. , 486 F. App'x 765, 767 (11th Cir. 2012) ("[A] party cannot amend a complaint by attaching documents to a response to a motion to dismiss." (alteration added; citation omitted)); Burkes v. Dylewski , No. 14-cv-22079, 2016 WL 9526692, at *4 n.1 (S.D. Fla. May 3, 2016) ("The Court will not consider the declarations attached to Plaintiffs’ Response to Defendants’ Motions to Dismiss, ... as these materials are outside the four corners of Plaintiffs’ [First Amended Complaint]." (alterations added; citations omitted)).
The Complaint alleges only that WSP USA Solutions, Inc.; Louis Berger U.S., Inc.; and Amman & Whitney, Inc. are merged or successor entities. (See Compl. ¶ 4) ("WSP USA Solutions, Inc. is the successor to Louis Berger U.S., Inc."); id. ¶ 5 ("As a successor by merger, Louis Berger U.S., Inc. is liable for the acts and omissions of Amman & Whitney, Inc. in the performance of its professional obligations."). It does not allege The Louis Berger Group, Inc. is a predecessor or merged entity. (See id. ¶ 7). Notably, Plaintiff's Complaint uses the past tense to describe Louis Berger U.S., Inc. and Amman & Whitney, Inc.; but it uses the present tense to describe The Louis Berger Group, Inc. — "The Louis Berger Group, Inc. is a foreign corporation ...." (Id. (alteration and emphasis added)). Thus, the Complaint holds The Louis Berger Group, Inc. out as a distinct legal entity.
As Defendants point out, the Complaint makes no individual allegations against any of the Defendants. Instead, it refers throughout only to "Louis Berger," which the Complaint defines to mean all Defendants collectively. (See id. 1). Because the Complaint alleges at least The Louis Berger Group, Inc. to be a separate, legally distinct entity, the Complaint's allegations against Defendants collectively as "Louis Berger" impermissibly lump them together and render the Complaint a shotgun pleading. See Prolow v. Aetna Life Ins. Co. , No. 20-80545-Civ, 2021 WL 24712, at *6 (S.D. Fla. Jan. 4, 2021) ("Each Defendant is alleged to be [a] distinct legal entit[y], but the Complaint does not adequately differentiate between Defendants nor inform each Defendant separately of the allegations that apply to it." (alterations added; internal citation omitted; collecting cases)); Cellco P'ship v. Plaza Resorts Inc. , No. 12-81238-Civ, 2013 WL 5436553, at *7 (S.D. Fla. Sept. 27, 2013) ("Although the Complaint states that the entities[, alleged to be legally distinct,] are ‘affiliated’ and ‘act in concert’ with each other, these statements are simply too conclusory." (alteration added; citation omitted)); see also Mason v. Midland Funding LLC , No. 1:16-cv-02867, 2017 WL 6994577, at *13 (N.D. Ga. July 27, 2017) (dismissing as shotgun pleading a complaint replete with allegations against "Defendants" and "Encore Capital," which plaintiffs defined to include a parent company and several of its wholly-owned subsidiaries, because it did not specify which defendant was responsible for which specific act). While Plaintiff tries to escape this conclusion by arguing that Defendants do not have "separate and distinct corporate identities" (Resp. 7), the allegations in the Complaint state otherwise.
Plaintiff further argues it should be permitted to name all Defendants as Louis Berger-related entities and plead against them collectively because the Peer Review Agreement ambiguously refers to "Louis Berger." (See Resp. 5–7). This argument is unpersuasive. Although the main body of the Peer Review Agreement simply refers to and was executed by "Louis Berger" (see Peer Review Agreement 62, 69), the Scope of Work addendum clearly identifies "Louis Berger" to be "The Louis Berger Group, Inc.," as the entity retained to conduct the peer review (see id. 104). And, again, while Plaintiff submits the remaining Defendants succeeded or merged with The Louis Berger Group, Inc., those purported relationships with The Louis Berger Group, Inc. are absent from the Complaint.
Defendants alternatively argue that all Defendants other than The Louis Berger Group, Inc. should be dismissed because the allegations of the Complaint against Defendants collectively conflict with the attached Peer Review Agreement, which specifies The Louis Berger Group, Inc. contracted to perform the peer review services. (See Mot. 9–10). See, e.g. , Comparelli v. Republica Bolivariana De Venezuela , 891 F.3d 1311, 1316 n.1 (11th Cir. 2018) (explaining it is well-settled law in the Eleventh Circuit that "[e]xhibits control over conflicting allegations in a pleading" (alteration added)). Because the Complaint is dismissed as a shotgun pleading and Plaintiff is granted leave to amend its grouped allegations, the Court does not address this argument.
Even if the Complaint properly alleged all Defendants to be merged with or acquired by one another, Plaintiff cites no case or legal authority stating that successor and predecessor entities may be lumped together in factual allegations. Plaintiff's reliance on Sovereign Bonds Exch. LLC v. Federal Republic of Germany , 899 F. Supp. 2d 1304, 1317 (S.D. Fla. 2010), is unavailing. The Undersigned in Sovereign Bonds merely stated, "it is plausible and not necessarily contradictory—or even impossible in fact—that both a successor bank and its legal predecessor be named defendants in a complaint ...." Id. (alteration and emphasis added). The Court did not address the issues of a shotgun pleading and allegations against defendants collectively. In any event, Sovereign Bonds is factually distinguishable because the plaintiff there made specific allegations against the successor bank throughout the complaint. See id. Here, by contrast, Plaintiff does not make any individualized allegations against the predecessor or successor entities.
Instead, Plaintiff's Response suggests Amman & Whitney, Inc.; Louis Berger U.S., Inc.; and WSP USA Solutions, Inc. are liable in their capacity as successors to The Louis Berger Group, Inc. (see Resp. 5–7); but the Complaint does not contain any claims or plead any facts relating to successor liability. See, e.g. , Kipu Sys., LLC v. ZenCharts, LLC , No. 17-24733, 2019 WL 7371879, at *6 n.5 (S.D. Fla. Oct. 16, 2019) (rejecting the plaintiff's argument that certain defendants could be liable under a successor liability theory because the complaint did not plead successor liability). Plainly, the mere fact that some Defendants are successor entities to other Defendants is insufficient, by itself, to justify group pleading or establish liability. Rather, Plaintiff must "adequately ple[a]d facts supporting displacement of the general rule that successor entities do not, as a matter of Florida law, ‘assume the liabilities’ of a business whose assets have been acquired." Five Five Five Realty Holdings, Inc. v. GLL BVK Props., L.P. , No. 09-61888, 2010 WL 11440942, at *3 (S.D. Fla. June 8, 2010) (alteration added; citation and footnote call number omitted).
Given these deficiencies, the Court concludes the Complaint is a shotgun pleading that fails to differentiate between multiple Defendants. Plaintiff's protestations that Defendants are successors and "all the same entity" (Resp. 3 (emphasis omitted)) are unavailing for the reasons described. B. Heightened Pleading Standard
Defendants further argue Count III for negligent misrepresentation fails to meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b). (See Mot. 10–11). Rule 9(b) requires plaintiffs alleging fraud to "state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). " Rule 9(b) ’s heightened pleading standard applies to negligent misrepresentation claims asserted under Florida law because such claims sound in fraud." Wilding v. DNC Servs. Corp. , 941 F.3d 1116, 1127 (11th Cir. 2019) (quotation marks and citations omitted).
A plaintiff asserting negligent misrepresentation under Florida law must therefore allege "(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the [p]laintiff[ ]; and (4) what the defendants gained by the alleged fraud." Am. Dental Ass'n v. Cigna Corp. , 605 F.3d 1283, 1291 (11th Cir. 2010) (alterations added; quotation marks and citation omitted). "[B]are allegation[s] of reliance on alleged misrepresentations, bereft of any additional detail, will not suffice under Rule 9(b)." Wilding , 941 F.3d at 1128 (alterations added; citation omitted).
Defendants’ argument regarding Count III largely echoes their argument that the Complaint is a shotgun pleading that fails to differentiate between Defendants. Certainly, Plaintiff's allegations concerning negligent misrepresentation refer to Defendants collectively as "Louis Berger." (Compl. ¶¶ 23–26, 28–31, 92–107). Such group pleading is not permitted under Rule 9(b). See, e.g. , Wyndham Vacation Ownership, Inc. v. US Consumer Att'ys, P.A. , No. 18-81251-Civ, 2019 WL 7837887, at *5 (S.D. Fla. July 3, 2019) ("When a complaint asserts claims against multiple defendants, it cannot merely ‘lump together all of the defendants in their allegations of fraud.’ Instead, a complaint must contain specific allegations with respect to each defendant to ‘inform each defendant of his alleged participation in the fraud.’ " (alteration adopted; citations omitted)).
In addition, Plaintiff makes numerous allegations of misrepresentation solely "[u]pon information and belief." (Compl. ¶¶ 23–26, 94, 96–97 (alteration added)). In particular, Plaintiff alleges "[u]pon information and belief" that "Louis Berger" misrepresented that it was pre-qualified to perform the requested work, as required by the FDOT Plans Preparation Manual. (See generally id. (alteration added)). Although "information and belief pleading can sometimes survive a motion to dismiss ... [where] a plaintiff ... allege[s] specific facts to support a claim[, c]onclusory allegations made upon information and belief are not entitled to a presumption of truth, and allegations stated upon information and belief that do not contain any factual support fail to meet the [plausibility] standard." Scott v. Experian Info. Sols., Inc. , No. 18-cv-60178, 2018 WL 3360754, at *6 (S.D. Fla. June 29, 2018) (alterations added; quotation marks and citations omitted).
Here again, the Court agrees with Defendants. Plaintiff fails to allege facts sufficient to support its claim that Defendants misrepresented it was pre-qualified under the applicable provision of the Florida Administrative Code. Plaintiff's conclusory allegations, made "upon information and belief," that Defendants did so misrepresent are insufficient. Moreover, as explained, the Complaint is replete with allegations against Defendants collectively, including allegations concerning the negligent misrepresentation claim. Accordingly, Count III must be dismissed for these additional reasons. Plaintiff may remedy these deficiencies in any amended complaint if it has a good faith basis to do so.
C. Statute of Limitations
In the interest of resolving this matter as expeditiously as possible, the Court will also address Defendants’ substantive bases for dismissal. Defendants assert Count I for professional negligence should be dismissed as time-barred. (See Mot. 11–13). "[A] statute of limitations bar is an affirmative defense, and a plaintiff is not required to negate an affirmative defense in its complaint[.]" Sanguinetti v. JPMorgan Chase Bank Nat'l Ass'n , No. 20-cv-81023, 2020 WL 7765792, at *4 (S.D. Fla. Nov. 13, 2020) (alterations added). Dismissal under Federal Rule of Civil Procedure 12(b)(6) on statute of limitations grounds is nevertheless appropriate "where it is apparent from the face of the complaint that the claim is time-barred." United States v. Henco Holding Corp. , 985 F.3d 1290, 1296 (11th Cir. 2021) (quotation marks and citations omitted).
"To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (alteration added; quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). Although this pleading standard "does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (alteration added; quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (alteration added; citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (alteration added; citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). When considering a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc. , 835 F.2d 270, 272 (11th Cir. 1988) ).
Defendants argue Plaintiff's claim for professional negligence is time-barred under section 95.11(4)(a), Florida Statutes, which provides a two-year limitations period for professional malpractice for "persons in privity with the professional." Fla. Stat. § 95.11(4)(a). The limitations period under this section begins to run "when a plaintiff becomes aware that [it] has suffered some loss[.]" First Mut. Grp., L.P. v. Miqeulon , No. 14-cv-14445, 2015 WL 12778387, at *3 (S.D. Fla. Aug. 24, 2015) (alterations added; emphasis and citation omitted). Defendants contend Count I is therefore barred because the Complaint was filed on September 11, 2020, over two years after the Bridge collapsed on March 15, 2018. (See Mot. 12).
The Florida Supreme Court has held that privity, for purposes of section 95.11(4)(a), means "direct contractual privity." Baskerville-Donovan Eng'rs, Inc. v. Pensacola Exec. House Condo. Ass'n, Inc. , 581 So. 2d 1301, 1303 (Fla. 1991) (rejecting argument that privity should encompass "the relationship between a professional and third-party beneficiaries who are known and intended beneficiaries of the professional's services"). Plainly, Defendants were not in direct contractual privity with Plaintiff. The Complaint alleges Defendants entered into a contract only with FIGG to provide independent peer review services for the Bridge. (See Compl. ¶ 12). Although the Complaint alleges the contract between Plaintiff and FIGG was "incorporated by reference into the Peer Review Agreement" (id. ¶ 62), Defendants cite no authority for the proposition that incorporation of a separate agreement puts a professional and non-contracting party in "direct contractual privity," as defined by the Florida Supreme Court. Rather, the Complaint's allegations suggest that Plaintiff was no more than a "known and intended beneficiar[y]" of Defendants’ peer review services, which does not amount to "privity" for purposes of section 95.11(4)(a). Baskerville-Donovan Eng'rs, Inc. , 581 So. 2d at 1303 (alteration added); (see Compl. ¶ 62 (alleging Defendants "knew or should have known that [Plaintiff] would rely on [Defendants’] peer reviewing services" (alterations added))). The statute of limitations set forth in section 95.11(4)(a) does not apply.
In its Response, Plaintiff argues section 95.11(3)(c), Florida Statutes, governs. (See Resp. 9–11). Section 95.11(3)(c) applies a four-year limitations period to actions "founded on the design, planning, or construction of an improvement to real property[.]" Fla. Stat. § 95.11(3)(c) (alteration added). Actions merely "relating to" the design, planning, or construction of a structure do not trigger application of this section. See Manney v. MBV Eng'g, Inc. , 273 So. 3d 214, 216–17 (Fla. 5th DCA 2019) (holding section 95.11(3)(c) inapplicable where engineer was hired to review construction drawings and inspect newly constructed house). According to the Complaint, Defendants did not "design, plan[ ], or construct[ ]" the Bridge, Fla. Stat. § 95.11(3)(c) (alterations added); they simply reviewed plans drawn up by FIGG. (See Compl. ¶ 12). Section 95.11(3)(c) therefore does not apply.
Instead, the relevant statute of limitations is the four-year period set forth in section 95.11(3)(a) for actions "founded on negligence." See Baskerville-Donovan Eng'rs, Inc. , 581 So. 2d at 1301–02 (applying section 95.11(3)(a) to action against engineering corporation who produced a roof inspection report). Under this section, the limitations period begins to run "from the time of the negligent act[.]" Miqeulon , 2015 WL 12778387, at *3 (alteration added; emphasis omitted). Here, Defendants submitted the first allegedly negligent review of the plans on September 13, 2016. (See Compl. ¶ 28). Thus, Plaintiff's Complaint filed on September 11, 2020 is timely, and Defendants’ request to dismiss Count I as time-barred is denied.
D. Contribution Claim
Finally, Defendants argue Plaintiff cannot maintain its claim for contribution, made in Count IV. (See Mot. 13–14). As an initial matter, there is no common law right of contribution under Florida law. See Mortg. Contracting Servs., LLC v. J & S Prop. Servs. LLC , No. 17-cv-1566, 2018 WL 3219386, at *7 (M.D. Fla. July 2, 2018) (citation omitted). The parties debate whether, in the context of settlement, claims for statutory contribution survived the passage in 2006 of Florida's Comparative Fault Statute, Fla. Stat. § 768.81. (See Mot. 14; Resp. 11–13; Reply 7–9). The Court need not decide the question: even assuming statutory contribution remains available after one party settles, Plaintiff's contribution claim is precluded. Section 768.31(d), Florida Statutes, states that "[a] tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement ...." Fla. Stat. § 768.31(d) (alterations added). Plaintiff's settlement with FIU expressly did not release any claims against The Louis Berger Group, Inc.; WSP USA Solutions, Inc.; Amman & Whitney, Inc.; or Louis Berger U.S., Inc. (See Second Settlement Agreement 117, 127). Accordingly, Plaintiff's claim for contribution must be dismissed. No leave to amend is granted as to Count IV.
III. CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendants, WSP USA Solutions, Inc., Louis Berger U.S., Inc., The Louis Berger Group, Inc., and Amman & Whitney, Inc.’s Motion to Dismiss Complaint [ECF No. 19] is GRANTED , except with respect to the argument that Count I is time-barred.
2. Plaintiff, Magnum Construction Management, LLC, has until March 16, 2021 to file an amended complaint in accordance with this Order. Failure to do so may result in dismissal of this action.
DONE AND ORDERED in Miami, Florida, this 2nd day of March, 2021.