Jostes Concrete, Inc. v. MDC Holdings, Inc.

MEMORANDUM

Plaintiff Jostes Concrete, Inc. (“Jostes”), appeals the district court’s order dismissing with prejudice Counts One, Two, and Seven of its First Amended Complaint (“FAC”) against defendants. We have jurisdiction under 28 U.S.C. § 1291 . We reverse. We remand with instructions to grant Jostes leave to file a second amended complaint.

The district court properly dismissed Count One (breach of contract), Count Two (wrongful termination), and Count Seven (alter-ego liability) of the FAC as pled. Count One fails because Jostes did not adequately allege that any of defendants’ modifications applied retroactively to work that Jostes had already completed. See Rubenstein v. Sela, 137 Ariz. 563 , 672 P.2d 492, 493 (1983). Count Two fails because Jostes’s allegations do not provide fair notice of its claim that defendants breached the covenant of good faith and fair dealing. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007). The district court properly dismissed Count Seven because Jostes did not adequately plead any substantive cause of action.

However, the district court erred in dismissing Counts One, Two, and Seven without giving…