IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

NEW VIEW INC.,

Plaintiff,

vs. CASE NO. 5:11-cv-174/RS-CJK

MCCRORY BUILDING CO. INC.

and TRAVELERS CASUALTY &

SURETY COMPANY OF AMERICA, 

Defendants.

_________________________________________/

AMENDED ORDER

Before me are Defendant Travelers’ Motion to Dismiss (Doc. 18), and Plaintiff’s 

Response in Opposition (Doc. 23). This Amended Order reflects changes in bold and 

underlined. 

Plaintiff is a subcontractor that preformed services for Defendant McCrory 

Building on a construction project in Panama City Beach. Defendant Travelers provided 

a payment bond on behalf of Defendant McCrory Building for this project (Doc. 10, p. 

2). Plaintiff alleges that it is owed $236,405 by Defendant McCrory Building as a result 

of this project and seeks to recover from both defendants. 

To survive a motion to dismiss, a complaint must contain sufficient facts, which 

accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct. 

1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief 

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could be granted under any set of facts that could be proven consistent with the 

allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 

2229, 2232 (1984). In making this determination, the court must accept all factual 

allegations in the complaint as true and in the light most favorable to Plaintiff. 

Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).

Plaintiff’s Amended Complaint (Doc. 10) seeks recovery from Defendant 

Travelers under five theories: conversion (Counts Four and Eight), unjust enrichment 

(Count Six), breach of bond (Count Seven), and money had and received (Count Nine). 

Defendant Travelers argues that Counts Four, Six, Eight, and Nine (“non-breach 

claims”) are barred because they sound in tort and Plaintiffs have not alleged sufficient 

facts to support those claims.1The essence of the allegations contained in the Amended 

Complaint is that Defendant Travelers has not paid Plaintiff what it believes it is owed 

under the payment bond. Plaintiff does not allege any other set of facts which establishes 

a relationship other than that between a surety and an unpaid subcontractor. Plaintiff’s 

assertions for the tort claims are merely a recitation of elements, not facts. Even in the 

light most favorable to Plaintiff, it is implausible that Defendant Travelers committed 

separate acts outside of issuing a payment bond which would expose it to tort liability to 

the subcontractor. 

 

1 Defendant also asserts that as a matter of Alabama law, the tort causes of actions fail because a Plaintiff with a suit 

under a payment bond is foreclosed from other causes of action. I do not reach this contention because Plaintiff has 

not brought forth sufficient facts to support the tort causes of action. I also note that the payment bond incorporates 

provisions of Florida law and is security for a Florida real estate project. It is likely governed by Florida and not 

Alabama law. 

Case 5:11-cv-00174-RS-CJK Document 39 Filed 06/10/11 Page 2 of 3
The Motion to Dismiss (Doc. 18) is GRANTED. Counts Four, Six, Eight and

Nine are dismissed as to Defendant Travelers Casualty & Surety Company of America. 

ORDERED on June 10, 2011.

 /S/ Richard Smoak

 RICHARD SMOAK

 UNITED STATES DISTRICT JUDGE 

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