Free Amended Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00283-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

M.C. PAINTING CORPORATION Plaintiff, v. CIANBRO CORPORATION, and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendants

: : : : No. 1:07-cv-283 (GMS) : : : : : : : :

AMENDED COMPLAINT Plaintiff, M.C. Painting Corporation , by and through their attorneys, Davis, Bucco & Ardizzi, bring this Complaint against Defendants Cianbro Corporation and Travelers Casualty and Surety Company of America, and in support thereof hereby avers the following: PARTIES 1. Plaintiff, M.C. Painting Corporation. ("hereinafter referred to as "MCP"), is a

Pennsylvania corporation that provides various services including commercial and industrial painting with a principal place of business located at 1195 Haverford Road, Crum Lynne, PA 19022. 2. Defendant, Cianbro Corporation ("Henderson"), is, upon information and belief, a

Maryland Corporation, registered to do business in the State of Delaware with a principal place of business located at 605 Pittman Road, Baltimore, MD 21226. 3. Defendant, Travelers Casualty and Surety Company of America ("Travelers"), is

upon information and belief a Connecticut corporation, registered to do business in the State of Delaware with a principal place of business located at One Tower Square, Hartford, CT 06183-

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6014.
VENUE AND JURISDICTION

4.

Jurisdiction is proper pursuant to 28 U.S.C. §1332 (diversity of citizenship) because

the parties are diverse and the amount in controversy exceeds $75,000. 5. Venue is proper in the United States District Court for the District of Delaware

pursuant to 28 U.S.C. §1391 because the project at issue in this action is located in Delaware. FACTUAL BACKGROUND 6. At all times relevant herein, Cianbro was engaged in the construction industry as a

general contractor/construction manager. 7. Plaintiff believes and therefore avers that in early 2004 Cianbro was awarded a

contract by Delaware Department of Transportation (DelDot) to serve as the general contractor and/or construction manager for a project known as Bridge 688, S. Market Street Draw Bridge located in Wilmington, Delaware (the "Project"). 8. As a condition of being awarded a contract for the Project, Cianbro was obligated

to obtain a labor and material payment bond. 9. Project. 10. On or about April 2004, Plaintiff entered into a subcontract with Cianbro pursuant Cianbro obtained a labor and material payment bond from Travelers for the

to which Plaintiff agreed to supply labor and materials to the Project. A true and correct copy of the subcontract is attached hereto as Exhibit "1" and made a part hereof. 11. The work that Plaintiff agreed to perform on the project was work that Cianbro

was obligated to perform and part of its contract with the Del DOT. 12. The work that Plaintiff agreed to perform on the project was work that was

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encompassed and covered by the bond issued to Cianbro. 13. Plaintiff began its work at the Project in April 2004 and performed its work in a

good and workmanlike manner. 14. Project. 15. 16. Plaintiff completed its work on the Project. Plaintiff has demanded payment from Cianbro for the labor and materials it Cianbro received and accepted all labor and materials provided by Plaintiff at the

provided on the Project. 17. As of the date of the filing of this Amended Complaint, Cianbro has failed and

refused to pay Plaintiff for the labor and materials it provided pursuant to the subcontract.

COUNT I
BREACH OF CONTRACT PLAINTIFF v. CIANBRO 18. Plaintiff incorporates the foregoing allegations of the Complaint, above, as if fully

set forth at length herein. 19. Plaintiff provided labor and materials to the Project in accordance with its

subcontract with Cianbro and fully complied with all of its obligations under the subcontract. 20. There is a principal balance in the amount of $93,690.09 owed to Plaintiff for the

above-described work. 21. 22. Despite demand, Cianbro has failed and refused to pay the outstanding balance. Cianbro's failure and refusal to pay the balance owed to Plaintiff constitutes a

material breach of the subcontract between the parties. WHEREFORE, Plaintiff, M.C. Painting Corporation demands judgment in its favor and against Defendant, Cianbro Corporation, in an amount in of $93,690.09, plus pre-judgment and

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post-judgment interest and such other relief as this Court deems just and proper.

COUNT II
UNJUST ENRICHMENT PLAINTIFF v. CIANBRO (in the alternative) 23. Plaintiff incorporates the allegations set forth above in paragraphs 1 through 23 as

if fully set forth at length herein. 24. Cianbro received the benefit of the value of the labor and materials provided by

Plaintiff at the Project. 25. Although Cianbro received the full benefit of the labor and materials, it has not

paid Plaintiff for the value of said labor or materials. 26. Cianbro's receipt of the value of the labor and materials furnished by Plaintiff

without payment therefor constitutes an unjust enrichment to Cianbro to the detriment of Plaintiff. 27. $93,690,09. WHEREFORE, Plaintiff, M.C. Painting Corporation demands judgment in its favor and against Defendant, Cianbro Corporation, in an amount in of $93,690.09, plus pre-judgment and post-judgment interest and such other relief as this Court deems just and proper. The reasonable value of the labor and materials furnished by Plaintiff is

COUNT III
CLAIM AGAINST LABOR AND MATERIALMAN'S PAYMENT BOND/ BREACH OF PAYMENT BOND (MCP v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA) 28. Plaintiff incorporates the allegations set forth above in paragraphs 1 through 27 as

if fully set forth at length herein.

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29.

Pursuant to the bond issued on behalf of Cianbro, Travelers agreed to pay the

claims of proper claimants, including Plaintiff, in the event Cianbro failed to pay for the work of such claimants in connection with the Project. A copy of the payment bond is attached hereto and made a part hereof as Exhibit 2. 30. 31. Cianbro has failed and refused to pay Plaintiff the outstanding contract balance. Plaintiff is a proper claimant under the Bond because it supplied labor and

materials to the Project as a subcontractor to Cianbro. 32. Travelers is liable to Plaintiff pursuant to the terms of the bond for the balance of

$93,690.09 owed to Plaintiff. 33. bond. WHEREFORE, Plaintiff, M.C. Painting Corporation, demands judgment in its favor and against Defendant, Travelers Casualty and Surety Company of America, in the amount of $93,690.09, plus interest, costs and such other relief as the Court deems appropriate. Travelers failure to pay Plaintiff's claim is a breach of its obligation under the

DAVIS, BUCCO & ARDIZZI

/s/ Robert D. Ardizzi Robert D. Ardizzi, Esquire DE Bar No. 3602 901 N. Market Street, Suite 700 Wilmington, DE 19801 (302) 345-9808 Attorneys for Plaintiff

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