United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART CH2M HILL, INC.'S MOTION TO
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT is the Motion to Dismiss  filed by the
defendant CH2M Hill, Inc. The Motion has been fully briefed.
After reviewing the submissions of the parties, the record in
this matter, and the applicable law, the Court finds that the
Motion to Dismiss should be granted as to Southern
Industrial's contract claim against CH2M and denied as to
Southern Industrial's negligence claim against CH2M.
plaintiff Southern Industrial Contractors, LLC, served as the
general contractor for the West Pier Facilities project at
the Port of Gulfport, Mississippi. It filed this lawsuit
against the project's owner, Mississippi Development
Authority, as well as the project's consultants and
engineers - Neel-Schaffer, Inc., CH2M, T.L. Wallace
Construction, Inc., Thompson Engineering, Inc., W.G. Yates
& Sons Construction Company, Roy Anderson Corp., Yates
Anderson, JV, and Quality Engineering Services, Inc. Southern
Industrial alleges that these defendants failed to provide
notice of a large underground debris field at the project
site. Southern Industrial claims it was required to excavate
the debris, which made the project much more expensive and
time-consuming. The defendant CH2M, has filed the present
Motion to Dismiss in which it argues that it owed no duty to
STANDARD OF REVIEW
considering a motion to dismiss filed pursuant to
Fed.R.Civ.P. 12(b)(6), the court must accept all well-pleaded
facts as true and must view all facts in the light most
favorable to the plaintiff. New Orleans City v. Ambac
Assurance Corp., 815 F.3d 196, 199-200 (5th Cir. 2016).
The complaint should be dismissed unless it pleads
“enough facts to state a claim to relief that is
plausible on its face.” Turner v. Pleasant,
663 F.3d 770, 775 (5th Cir. 2011) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[T]he complaint must allege more than labels and
conclusions, a formulaic recitation of the elements of a
cause of action will not do, and factual allegations must be
enough to raise a right to relief above the speculative
level.” Jabaco, Inc. v. Harrah's Operating Co.,
Inc., 587 F.3d 314, 319 (5th Cir. 2009).
if a court considers materials outside of the pleadings, the
motion to dismiss must be treated as a motion for summary
judgment. Causey v. Sewell Cadillac-Chevrolet, Inc.,
394 F.3d 285, 288 (5th Cir. 2004). However,
“[d]ocuments that a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are
referred to in the plaintiff's complaint and are central
to her claim.” Id. In support of its Motion,
CH2M relies on the contract for professional services that it
entered into with Mississippi State Port Authority at
Gulfport (MSPA). This contract is referred to in Southern
Industrial's Complaint, and the contract is central to
Southern Industrial's claims, because Southern Industrial
claims that it is a third-party beneficiary of that contract.
(Compl. at 3-4, ¶¶7, 11, ECF No. 1). Therefore, this
Court is permitted to review the contract without converting
CH2M's Motion to Dismiss to a Motion for Summary
SOUTHERN INDUSTRIAL'S CONTRACTUAL CLAIMS
first argues that Southern Industrial's contract claims
should be dismissed, because Southern Industrial was not a
third-party beneficiary of CH2M's contract with MSPA.
general rule followed in other states is also consistent with
Mississippi law that a party may not enforce a contract to
which it is neither a party nor a third-party
beneficiary.” Kleyle v. Deogracias, 195 So.3d
234, 238 (¶12) (Miss. Ct. App. 2016). “[T]o be a
third-party beneficiary, the rights of the third-party must
spring forth from the terms of the contract itself.”
Ground Control, LLC v. Capsco Indus., Inc.,
214 So.3d 232, 242 (Miss. 2017) (citing Trammell v.
State, 622 So.2d 1257, 1260 (Miss. 1993)). The
Mississippi Supreme Court has held that:
A person or entity may be considered a third-party
beneficiary if: (1) the contract between the original parties
was entered for that person's or entity's benefit, or
the original parties at least contemplated such benefit as a
direct result of performance; (2) the promisee owed a legal
obligation or duty to that person or entity; and (3) the
legal obligation or duty connects that person or entity with
Simmons Housing Inc. v. Shelton, 36 So.3d 1283, 1286
(¶ 10) (Miss. 2010). “[A] third-party beneficiary
also must benefit directly from the contract. . . . A mere
incidental or consequential benefit is insufficient.”
Id. at 1286-87 (¶11). Unambiguous clauses that
prohibit third parties from being treated as beneficiaries to
the contract “must be accepted as the intent of the
parties and enforced as written.” Garrett ...