MCDONNELL v. HESCO BASTION INC (2025)

ORDER ON DEFENDANT'S MOTION TO DISMISS

Plaintiffs are individuals and business owners from Davenport, Iowa. They have brought suit against Defendant alleging various claims stemming from the failure of a flood barrier wall in Spring 2019. The barrier's collapse allowed Mississippi River floodwaters to inundate downtown Davenport, allegedly causing substantial damage to Plaintiffs’ real and personal property. Originally filed in Iowa state court, this matter was removed to this Court, invoking diversity jurisdiction. Defendant has moved to dismiss several of Plaintiffs’ claims asserting they fail to state a claim upon which relief can be granted.

I. BACKGROUND

A. Factual Background 1

Plaintiffs—Timothy McDonnell, Great Bedding Corporation, and Paul Krutzfeldt—bring various tort and contract claims against Defendant Hesco Bastion, Inc. (“Hesco”). [ECF No. 9]. McDonnell is a resident of Davenport, Iowa where he owned two warehouses and associated businesses in the downtown area. [ECF No. 15 at 2]. Great Bedding, an Iowa Corporation solely owned by McDonnell, operated as a commercial tenant in McDonnell's downtown properties. [ECF No. 9 ¶ 4]. Krutzfeldt, also a Davenport resident, owned commercial property in downtown Davenport and leased space in another commercial building. [ECF Nos. 9 ¶ 5; 15 at 2]. Defendant Hesco Bastion, Inc. (“Hesco”) is a manufacturer and developer of defensive barriers, including the flood protection barriers at issue in this case. [ECF No. 12–1 at 2].

Prior to the Spring 2019 flood, the City of Davenport (“the City”), purchased flood barriers from Hesco specifically for municipal flood protection. Id. During the spring of 2019, eastern Iowa experienced substantial rainfall, causing the Mississippi River to rise significantly. Id. at 2–3. On April 30, 2019, the Hesco barriers collapsed permitting the water to flood downtown and damage Plaintiffs’ real and personal property. Id.

Plaintiffs have asserted numerous legal causes of the collapse and subsequent flooding. [ECF No. 9]. However, the factual allegations supporting Plaintiffs’ claims are that: (1) Hesco allowed the placement of visqueen plastic sheeting under and between the barrier components; (2) Hesco failed to reinforce the wall with additional barriers behind the primary flood wall; and (3) Hesco neglected to advise the City against placing additional sandbags atop the barriers. [ECF No. 15 at 4–6].

B. Procedural Background

Plaintiffs initially filed their complaint in the District Court of Iowa for Scott County. [ECF No. 1–4 at 1]. In the original filings, Plaintiffs named not only Hesco, but also the City, and Corrin Spiegel, who served as the City Administrator during the relevant period. Id. at 17. Upon motion by the municipal defendants, the Iowa court dismissed all of Plaintiffs’ claims against the City and Spiegel as time-barred. Id. at 221. Following this dismissal, Hesco removed the case to this Court pursuant to diversity jurisdiction.

After removal, Hesco moved to strike argument, exhibits, and irrelevant portions of the complaint relating to the dismissed parties. [ECF Nos. 1, 3]. The Court granted the motion to strike and ordered the Plaintiffs to file an Amended Complaint, which was submitted on November 13, 2024. [ECF Nos. 8, 9]. Subsequently, Hesco filed a Partial Motion to Dismiss four specific counts: Count I (negligence), Count IV (breach of contract to third-party beneficiary), Count V (strict liability), and Count VII (civil conspiracy). [ECF Nos. 12, 15].

Hesco's motion advances several grounds for dismissal. First, Defendant asserts that Plaintiffs’ negligence claim should be dismissed because the duties alleged are negated by the terms of the purchase orders between Hesco and the City. [ECF No. 12]. Second, Defendant contends the breach of contract claim fails because Plaintiffs are not third-party beneficiaries of any contract between Hesco and the City. Id. Third, Defendant argues for the dismissal of the strict liability claim, asserting Plaintiffs fail to plead a plausible strict liability product defect claim. Id. Finally, Defendant seeks dismissal of the civil conspiracy claim because it does not allege legally actionable conduct and the claim is barred by the statute of limitations. Id.

Plaintiffs contest each of these arguments in their resistance. [ECF Nos. 14, 15]. They argue that Hesco was negligent in failing to properly advise and instruct the City regarding the installation, inspection, modification, and maintenance of Hesco barriers. [ECF No. 15 at 3–9]. Addressing the breach of contract claim, Plaintiffs assert that it should not be dismissed because it is not barred by the statute of limitations and relates back to their original pleading. Id. at 9–13. Furthermore, Plaintiffs contend the strict liability claim should not be dismissed because the claim is based upon public policy, which imposes obligations on contractors to provide proper supervision when selling products designed to protect the public. Id. at 13–14. Finally, Plaintiffs argue their civil conspiracy claim should survive dismissal because it sufficiently relates back to the same “conduct, transaction, or occurrence” that Plaintiffs alleged in their amended complaint in state court. Id. at 15–19.

II. ANALYSIS

A. 12(b)(6) Standard

A complaint is subject to dismissal when it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter ․ to ‘state a claim to relief that is plausible on its face.’ ” Rydholm v. Equifax Info. Servs. LLC, 44 F.4th 1105, 1108 (8th Cir. 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “There is no requirement for direct evidence; the factual allegations may be circumstantial and ‘need only be enough to nudge the claim across the line from conceivable to plausible.’ ” McDonough v. Anoka Cnty., 799 F.3d 931, 945 (8th Cir. 2015) (cleaned up).

Courts are not required to “accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” United States ex rel. Ambrosecchia v. Paddock Lab'ys, LLC, 855 F.3d 949, 955 (8th Cir. 2017) (citation omitted). A court “must accept the allegations contained in the complaint as true and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Hafley v. Lohman, 90 F.2d 264, 266 (8th Cir. 1996)). If a complaint raises multiple “plausible inferences,” “[w]hich inference will prove to be correct is not an issue to be determined by a motion to dismiss.” Hamilton v. Palm, 621 F.3d 816, 819 (8th Cir. 2010).

B. Claims

1. Count IV: Breach of Contract

The record contains several documents—and notably one conspicuous absence—which are instructive on Plaintiffs’ breach of contract claim. Plaintiffs allege that Hesco and the City entered into a contract regarding the barrier wall which contained express and implied duties requiring that Hesco advise and supervise the City as well as install, repair, and maintain the wall. [ECF No. 9 ¶ 34]. Yet, as Defendant points out, Plaintiffs have not produced this alleged contract in any of their filings. By contrast, Defendant provided the purchase orders for the barriers sold to the city, which reflect a standard sales transaction with no provisions for installation, advisement, or ongoing manufacturer involvement. [ECF No. 12-2]. These purchase orders contain a “notice” clause stating that the signatory acknowledges receipt and acceptance of Hesco's terms and conditions—which appears unsigned on both documents. Id.

In response, rather than producing the alleged contract, Plaintiffs contend that the purchase orders incorporate by reference Hesco's terms and conditions. They provide the version of those terms and conditions purportedly published on Hesco's website as of December 2024—well after the relevant transactions. [ECF No. 15-1]. Finally, Plaintiffs acknowledge that they do not know what the contract terms between the Defendant and the City “actually say,” arguing instead they should be permitted to continue to discovery to determine what written obligations or verbal agreements might have existed.

Defendant responds that the Plaintiffs were not third-party beneficiaries of the agreement between Hesco and the City laid out in the purchase orders. This is because that contract was for the benefit of the general public rather than specific property owners. They also assert that Plaintiffs have failed to demonstrate the existence of the contractual obligations they allege in their complaint. Plaintiffs reply that the intentions of the City should control the third-party beneficiary analysis, and it can be inferred that the City intended for the contract to benefit Plaintiffs through its flood protection measures.²

To state a claim upon which relief can be granted, “[t]he facts alleged in the complaint ‘must be enough to raise a right of relief above the speculative level.’ ” Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009) (citation omitted). Here, Plaintiffs ask the Court to infer a very specific duty from express and implied language in a contract they concede they have not seen. Although Plaintiffs are entitled to all reasonable inferences to be drawn from their allegations, reasonable inferences are not warranted if a complaint merely pleads “labels and conclusions,” “naked assertions,” or a “formulaic recitation” of the elements of a claim. Hamilton, 621 F.3d at 817–18 (citation omitted). Plaintiffs’ naked assertions about the contents of an alleged contract constitute precisely the type of speculation that fails to “nudge the claim ‘across the line from conceivable to plausible.’ ” McDonough, 799 F.3d at 945 (cleaned up) (citation omitted). However, even if it were plausible, the Court finds Plaintiffs have not pled sufficient facts to support that Plaintiffs were third-party beneficiaries of any such contract.

Iowa courts have explained that “[t]he primary question in a third-party beneficiary case is ‘whether the contract manifests an intent to benefit a third party.’ ” RPC Liquidation v. Iowa Dep't of Transp., 717 N.W.2d 317, 319–20 (Iowa 2006) (citation omitted). To make this determination, courts look to the language of the contract and surrounding circumstances, with the promisee's intent typically controlling. Id. Plaintiffs do not allege that any contract between the City and Defendant explicitly designates them as third-party beneficiaries or manifests an intent that the contract was for their particular benefit. Rather, they merely suggest that they should be able to conduct discovery about the contracts and potential oral agreements between the City and Defendant to determine their intent. Further, they invite the Court to assume, without reference to any contractual terms, that the City must have intended the contract to benefit Plaintiffs because flood protection inherently serves property owners. This is a “legal conclusion couched as a factual allegation”, which the Court is not required to accept as true. Papasan, 478 U.S. at 286, 106 S.Ct. 2932. The record is devoid of well-pleaded facts to support any determination that a contract between the City and Defendant manifests an intent to benefit Plaintiffs.

In their resistance, Plaintiffs allege for the first time that the terms and conditions were incorporated by reference into the purchase orders. There are several issues with this argument. For example, Plaintiffs do not explain how an unsigned acknowledgment on the purchase orders affects the incorporation of these terms, nor do they address how the Court should determine which terms and conditions would have applied in March of 2017 when the purchase orders were executed. Even setting aside these substantial defects, the terms and conditions Plaintiffs themselves provide undermine rather than support their position.³ Far from creating third-party beneficiary rights, the terms explicitly state that “[n]o term of the Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.” [ECF No. 15-1 ¶ 13.13]. This is a reference to United Kingdom law governing third-party enforcement of contractual terms—a clear expression of intent to preclude third-party beneficiary claims. Iowa courts routinely enforce such express disclaimers. See Rath v. Arch Ins. Co., 6 N.W.3d 342 (Iowa Ct. App. 2024) (explaining that when a contract expresses an unambiguous intent not to benefit third parties, it ends the inquiry). Plaintiffs offer no coherent explanation as to how the terms and conditions they cite manifest an intent that they be third-party beneficiaries.

Even if the Court were to infer from the surrounding circumstances that the City intended to benefit parties beyond itself by purchasing the Hesco barriers, any such intent would necessarily extend to the general public rather than these specific Plaintiffs. Uhl v. City of Sioux City, 490 N.W.2d 69, 73 (Iowa Ct. App. 1992). Indeed, Plaintiffs acknowledge as much. [ECF No. 9 ¶ 32] (alleging that the contract was intended for the benefit of “the owners of real property and personal property and businesses and the general public”). Absent contractual language identifying Plaintiffs as specific property owners intended to be benefited, at most they could be considered incidental beneficiaries. Uhl, 490 N.W.2d at 73. Under Iowa law, “[i]ncidental beneficiaries cannot claim any right to the performance of a contract between other parties.” Khabbaz v. Swartz, 319 N.W.2d 279, 285 (Iowa 1982) (citing Johnson Farm Equip. Co. v. Cook, 230 F.2d 119, 124 (8th Cir. 1956)).

2. Count I: Negligence

In the Amended Complaint, Plaintiffs assert that Defendant's duty to inspect and supervise the construction, repair, and maintenance of the flood wall arose out of the contract it allegedly formed with the City for the benefit of Plaintiffs. Defendant argues that because the contract that Plaintiffs invoke does not exist as described, they lack standing to bring a negligence claim—in essence, that Defendant owed no duty of care to Plaintiffs. Plaintiffs respond that Defendant's duty does not arise solely from the purported contract with the City. They put forth three alternative theories to establish this duty. Having already determined that Defendant owed no contractual duty to Plaintiffs pursuant to a contract with the City, the Court will address each of these additional theories below.

First, Plaintiffs invoke the principle that when an individual voluntarily undertakes an action they had no initial duty to perform, the law imposes a duty of reasonable care in the execution of that undertaking. Although this represents a settled concept in tort law, it has no application to the facts as pleaded here. The Restatement recognizes that a duty of care is imposed when a person undertakes to “render services to another and who knows or should know that the services will reduce the risk of physical harm to the other.” A duty of reasonable care arises if:

(a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or

(b) the person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking.

Restatement (Third) of Torts § 42. As the Restatement explains, “[a]n undertaking entails an actor voluntarily rendering a service, gratuitously or pursuant to contract, on behalf of another.” Id. at cmt. d. As previously discussed, Plaintiffs failed to plead facts to support such a voluntary undertaking through any contract between the City and Defendant. Therefore, to establish a duty under this theory, Plaintiffs must sufficiently allege that Defendant gratuitously volunteered services to the City.

However, the facts pled in the amended complaint suggest precisely the opposite. Plaintiffs assert that Defendant failed to supervise installation of the barrier, failed to advise the City on proper installation and reinforcement of the barrier, failed to detect the defective conditions after installation, and failed to inspect the barrier. These allegations describe omissions rather than affirmative undertakings that might create a duty of reasonable care. See Rembrandt Enters., Inc. v. Tecno Poultry Equip., SpA, No. 21-CV-4007-CJW-MAR, 2023 WL 9004917, at *2 (N.D. Iowa Dec. 28, 2023) (finding a genuine issue of material fact as to the liability under a voluntary undertaking theory when the defendant agreed to provide an employee to oversee the installation of the manufactured product).

Second, Plaintiffs argue that by selling a specialized flood protection product, Defendant assumed an ongoing obligation to ensure proper installation and maintenance. Specifically, they contend “[t]he Defendant could not simply deliver the bags and then just drive away with no further responsibility to ensure that these Hesco bags [were] used by the City of Davenport properly to prevent flooding in downtown Davenport.” The only authority they cite to support this proposition is Kahn v. Heritage Prop. Mgmt., 584 N.W.2d 725, 728 (Iowa Ct. App. 1998). Although that case does articulate that it is “a fundamental principle of tort law that a wrongdoer must owe a duty of care to an injured party before the law will permit redress against the wrongdoer for a claimed wrong,” it in no way advances Plaintiffs’ expansive theory of manufacturer liability. The issue in Kahn was whether a landlord has a duty to safeguard a tenant's personal property after an eviction. The Iowa Court of Appeals ultimately found that there was no such duty under Iowa caselaw or statute. Kahn has no meaningful application to Plaintiffs’ assertion that the mere act of selling a specialized product imposes continuing duties of installation and maintenance. A thorough examination of Iowa case law reveals no support for such an obligation. Absent contractual undertakings or other legal mandates, Iowa law does not impose the expansive and perpetual duty Plaintiffs suggest—one that would require a manufacturer to install and indefinitely maintain their products after sale, even specialized ones.

Finally, Plaintiffs claim that public policy requires placing legal responsibility for proper flood wall construction on the party possessing the greatest knowledge of its design and construction. They cite no legal authority recognizing this as Iowa's public policy or supporting such a duty. A legal duty cannot be fashioned from pragmatic policy arguments untethered to recognized sources of law. A duty of care can be found in statutes, judicial decisions, or contracts. See Kahn, 584 N.W.2d at 728. Plaintiffs have failed to identify any such source imposing the duty they seek to enforce against Defendant. Accordingly, Plaintiffs’ negligence claim fails as a matter of law.

3. Count V: Strict Liability Product Defect

In their amended complaint, Plaintiffs allege that the Hesco barrier was “defective in its design, workmanship, construction, manufacture, instructed placement, testing and maintenance” and that, as “a direct and proximate result of the defects in Hesco's product and its use and of the failure of Hesco to give adequate warning of those defects and Hesco's misfeasance and nonfeasance related to the design, installation and maintenance of the product” Plaintiffs sustained losses. Defendant moves for dismissal of this claim, asserting that Plaintiffs do not allege a specific defect with the Hesco barriers nor that the defect caused the collapse as is required for a claim of strict liability under Iowa law. Plaintiffs respond, as they do repeatedly in their resistance, by simply reiterating their conclusory allegations without elaboration. Conspicuously absent from Plaintiffs’ submissions is any factual allegation identifying a manufacturing or design defect in the Hesco product. Further, they make no attempt to explain how the barebones allegations in the amended complaint are sufficient to support a plausible claim for strict liability.

For each variant of strict liability presented in Count V, Plaintiffs must plead facts sufficient to put Defendant on notice of the specific defect alleged to have caused the barrier to collapse. To establish a design defect claim, Plaintiffs must establish that “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Wright v. Brooke Grp. Ltd., 652 N.W.2d 159, 169 (Iowa 2002) (citation omitted). Likewise, for a manufacturing defect claim, Plaintiffs have to allege that at the time the product left the Defendant's control it contained a defect that departed from its intended design. Id. at 178. Plaintiffs provide no facts identifying any manufacturing or design defect in the barriers, thus failing to satisfy these foundational pleading requirements.

To the extent that Plaintiffs attempt to assert a failure to warn theory, it fails for multiple reasons. First, Iowa law expressly prohibits failure to warn claims under a strict liability framework. Scott v. Dutton-Lainson Co., 774 N.W.2d 501, 504 (Iowa 2009) (“Failure to warn claims cannot be brought under a theory of strict liability.”) (citation omitted). Second, Plaintiffs fail to plead facts to support a finding that Defendant, “in light of the generally recognized and prevailing best scientific knowledge,” knew or should have known of the danger that required a warning. Daughetee v. Chr. Hansen, Inc., 960 F. Supp. 2d 849, 867 (N.D. Iowa 2013) (explaining that a “manufacturer has no duty to warn when it did not or should not have known of the danger.”) (citation omitted). Plaintiffs simply allege that Hesco knew or should have known that the manner in which the barrier was installed would not withstand flood conditions. This post hac assertion cannot establish Defendant had an affirmative duty to warn against this method of installation at the time it sold the product to the City. In fact, these allegations implicitly depend on the presumption that Defendant had an obligation to supervise or inspect the installation—a duty the Court has already found lacking.

Finally, in their resistance, Plaintiffs invoke public policy principles that purportedly prohibit contractors from selling products designed to protect the public without providing supervision to municipalities, citing Sutton v. Council Bluffs Water Works, 990 N.W.2d 795 (Iowa 2023). Sutton held that the Iowa Municipal Tort Claims Act does not bar claims of strict liability against municipalities. Id. It does not offer even remote support for Plaintiffs’ public policy proposition, and they provide no other case law to establish that this is Iowa's adopted public policy. Moreover, they fail to make any coherent legal argument explaining how their proposed public policy would create strict liability for manufacturers under the circumstances presented here.

4. Count VII: Civil Conspiracy

Lastly, Defendant argues that Plaintiff's civil conspiracy allegations fail to state an actionable claim because they merely assert that Defendant withheld information about the barrier failure without alleging any independently tortious or wrongful act. Moreover, Defendant contends that the claim is barred by the statute of limitations and does not relate back to the original pleading. In response, Plaintiffs argue that they have pled a sufficient claim for conspiracy because Hesco and the City conspired to withhold information about the cause of the barrier failure to Plaintiffs’ detriment. Regarding timeliness, Plaintiffs summarily assert that the alleged conspiracy to withhold information about the breach's cause—purportedly to allow limitations periods to expire—arises from the same conduct, transaction, or occurrence alleged in their original pleading. Although Plaintiffs extensively quote Kindsfather v. Bowling (In re Glaser), 959 N.W.2d 379 (Iowa 2021), they provide no analysis connecting that decision to present circumstances.

The issue of relation back “is governed by Rule 15(c) of the Federal Rules of Civil Procedure.” Remmes v. Int'l Flavors & Fragrances, Inc., 453 F. Supp. 2d 1058, 1068 (N.D. Iowa Sept. 26, 2006) (citations omitted). Under Rule 15(c)(1)(B), an amendment relates back when it “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” The Eighth Circuit has explained that Rule 15(c) permits relation back only when amendments do not create an unfair surprise or prejudice to the defendant. Fuller v. Marx, 724 F.2d 717, 720 (8th Cir. 1984) (citations omitted). “The rule does not contemplate depriving defendants of the protection of the statute of limitations.” Id. (citations omitted).

For an amendment to relate back, the claims must be “ ‘tied to a common core of operative facts.’ ” Dodd v. United States, 614 F.3d 512, 515 (8th Cir. 2010) (quoting Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005)). “The basic inquiry is whether the amended complaint is related to the general fact situation alleged in the original pleading.” Saghir v. Schenker Logistics, Inc., No. 4:09-cv-0579-JAJ, 2011 WL 13141432, at *9 (N.D. Iowa July 27, 2011) (quoting Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1543 (8th Cir. 1996)).

A claim alleging civil conspiracy must be brought within five years after the cause has accrued. Iowa Code § 614.1(4). The flood occurred on April 30, 2019, and Plaintiffs’ original complaint was filed in state court on April 30, 2024. [ECF No. 1-4 at 1]. Accordingly, if the civil conspiracy claim relates back, it would fall within the limitations period. However, comparing the original allegations with the current conspiracy reveals a fundamental disconnect. The original and amended complaints in state court alleged Hesco failed to provide appropriate instructions and advice to the City concerning the location, installation, inspection, modification, and maintenance of the barriers—conduct occurring before the barrier's failure. [ECF No. 1–4]. By contrast, the present conspiracy claim concerns alleged post-failure collusion between Defendant and the City to conceal information about the causes of the breach. This temporal distinction between these events is significant. Knowledge of what caused the barrier's failure could have only developed after the collapse occurred. Thus, any alleged conspiracy to withhold that information necessarily postdates—and does not arise from—Defendant's pre-failure conduct regarding installation advice.

This distinction parallels the circumstances in Fuller, where the Eighth Circuit affirmed that a newly added claim of intentional misconduct to cover up medical negligence did not relate back to the original negligence claim. 724 F.2d at 720–21. In that case, a widow brought a negligence claim against a medical examiner, alleging he negligently performed the autopsy of her husband who died in custody of the Department of Corrections. Id. at 718. Two years after the original complaint was filed, the widow amended her complaint and added a count of intentional infliction of emotional harm, alleging the medical examiner intentionally misstated the cause of her husband's death to protect the Department from liability. Id. at 720. The panel affirmed that the newly added claim did not relate back because it impermissibly expanded the scope of the original complaint. Id. at 721. Ultimately, the original complaint pertained to the performance of the autopsy, which was a separate event from the cover-up alleged in the amended complaint. Id. at 720. The same rationale applies to Plaintiffs’ claim. The cause of the Hesco barrier collapsing is a separate event from the alleged civil conspiracy between Defendant and the City after the fact. As a result, Plaintiffs’ civil conspiracy claim does not relate back because it does not share a “common core of operative facts.” Dodd, 614 F.3d at 515 (citations omitted).

Beyond its untimeliness, Plaintiffs’ civil conspiracy claim fails on substantive grounds because they have not identified any underlying tort. “Civil conspiracy is not in itself actionable; rather it is the acts causing injury undertaken in furtherance of the conspiracy [that] give rise to the action.” Wright, 652 N.W.2d at 172 (cleaned up) (citation omitted). Plaintiffs’ allegations that Defendant was not forthcoming with information it had no legal duty to produce, does not tie the civil conspiracy claim to an actionable wrong. Because civil conspiracy “is merely an avenue for imposing vicarious liability on a party for the wrongful conduct of another with whom the party has acted in concert,” the absence of any actionable wrong is fatal to the claim regardless of timeliness considerations. Id.

III. CONCLUSION

For these reasons, Defendant's Partial Motion to Dismiss is GRANTED. [ECF No. 3]. Counts I, IV, V, and VII of Plaintiffs’ Amended Complaint are DISMISSED.

IT IS SO ORDERED.

FOOTNOTES

2.   The Court again notes the incoherent nature of Plaintiffs’ filings. In their resistance, they misstate Defendant's argument when they explain that “Defendant asserts that this amended claim IV is barred by the statute of limitations because this claim does not arise out of the same ‘conduct, transaction or occurrence’ as the purchase orders for the Hesco [barrier].” This misapprehends Defendant's position entirely. Defendants made no statute of limitations argument regarding Count IV in their Motion to Dismiss. Rather, Defendant directly challenged Plaintiffs’ status as third-party beneficiaries—the very issue to which Plaintiff ultimately, if circuitously, responded. Such mischaracterizations impede the efficient resolution of the matters before the Court and reflect the broader pattern of deficiencies previously noted.

3.   The terms and conditions, even if properly incorporated into the agreement, do not impart on Defendant the broad obligations Plaintiffs allege. Regarding installation, the terms make only limited reference to installation services, noting that any such obligation exists as expressed in the purchase orders. [ECF No. 15-1 at 3]. Far from assuming comprehensive duties, the terms contain multiple provisions explicitly limiting liability for advice rendered, warranties made, fitness for the particular purposes, and product safety or durability. Id. ¶ 9.1; ¶ 11.5. These provisions, regardless of whether they are enforceable, clearly demonstrate that Defendant did not contractually assume the sweeping duties alleged by Plaintiffs—namely, responsibility for inspection, supervision, construction, repairs, and ongoing maintenance of the barrier system.

STEPHANIE M. ROSE, CHIEF JUDGE