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Hottinger Excavating & Ready Mix, LLC v. R.E. Crawford Constr., LLC

United States District Court, D. Colorado

November 18, 2014

HOTTINGER EXCAVATING & READY MIX, LLC, Plaintiff,
v.
R.E. CRAWFORD CONSTRUCTION, LLC, JEFF USELTON, COASTAL ELITE, LLC, PAUL JOHNSTON, SR., PAUL JOHNSTON, III, EDGAR W. COX, JR., and AKRON FDS, LLC, Defendants

For Hottinger Excavating & Ready Mix, LLC, Plaintiff: Alexander Lincoln Wright, Wright & Williamson, LLC, Sterling, CO.

For R.E. Crawford Construction, LLC, Jeff Uselton, Defendants: Ryan Earl Warren, Polsinelli PC-Denver, Denver, CO.

ORDER

Kathleen M. Tafoya, United States Magistrate Judge.

This matter is before the court on " Defendant R.E. Crawford Construction, LLC and Jeff Uselton's Motion to Dismiss; or, in the Alternative, Motion for a More Definite Statement." (Doc. No. 21, filed Apr. 4, 2014.) For the following reasons, Defendants R.E. Crawford Construction (" R.E. Crawford") and Jeff Uselton's[1] (" Uselton") Motion to Dismiss is GRANTED in part and DENIED in part.

FACTUAL BACKGROUND

The following facts are taken from Plaintiff's Amended Complaint, filed August 8, 2014 (Doc. No. 43), and are presumed to be true for purposes of this Order.

Sometime prior to April 24, 2012, R.E. Crawford was hired by Defendant Akron FDS, LLC for the purpose of building a Family Dollar store in Akron, Colorado. (Am. Compl. ¶ 10.) Uselton was R.E. Crawford's construction manager. (Id. ¶ 12.) R.E. Crawford subsequently hired Defendant Coastal Elite, LLC to handle the process of hiring a local contractor to construct the building for the Family Dollar Store (" the Building"). (Id. ¶ 11.) Coastal Elite, through its agent or employee, Defendant Edgar Cox, hired Plaintiff to erect the Building. (Id. ¶ 15.) Defendant Cox informed Plaintiff that it would be paid a flat fee of $18, 000.00 plus costs to erect the Building. (Id. ¶ 16.)

Initially, two other companies were hired to do the " dirt work" necessary to erect the building--which included filling and compacting the ground for the Building, filling and grading the parking lot, installing drain channels, and erecting necessary signs for the parking lot. (Id. ¶ ¶ 20-23.) After both of those companies quit the job ( id . ¶ ¶ 21, 23), Defendant Cox requested that Plaintiff do the " dirt work" and told Plaintiff it would be compensated for its work. (Id. ¶ 25.) Initially, Plaintiff declined, but eventually agreed to do the " dirt work" for only its employees' hourly rate plus the cost of equipment and other requirements to complete this project. (Id. ¶ 26.)

Plaintiff asserts that it completed all the work it agreed to perform--namely the " dirt work" and then erecting the Building. (Id. ¶ 27.) Plaintiff alleges that while it was paid for some portion of the materials and/or services it provided, it was not paid in full for the materials and services it provided, despite multiple requests for payment. (Id. ¶ 34.)

PROCEDURAL HISTORY

Plaintiff filed its original Complaint on October 29, 2013 in state court. ( See Doc. No. 3.) On April 7, 2014, R.E. Crawford removed the action to this court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) and § 1441(b). ( See Doc. No. 1.)

R.E. Crawford and Uselton filed their Motion to Dismiss on April 28, 2014. ( See Mot.) On May 20, 2014, Plaintiff filed its " Response to Defendants R.E. Crawford Construction, LLC and Jeff Uselton's Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement; or, in the Alternative, Motion for Leave to File an Amended Complaint." (Doc. No. 24.) R.E. Crawford and Uselton filed their Reply on June 6, 2014. (Doc. No. 29.)

On August 8, 2014, Plaintiff filed a Motion to Amend Complaint. (Doc. No. 42.) R.E. Crawford and Uselton consented to the filing Plaintiff's proposed Amended Complaint, upon the condition that their Motion to Dismiss was deemed to apply to the Amended Complaint. (Doc. No. 45.) On August 18, 2014, the court granted Plaintiff's Motion to Amend and accepted Plaintiff's Amended Complaint as filed. (Minute Order, Doc. No. Aug. 14, 2014.) The court ...


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