Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:07-cv-00751-GMS

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

____________________________________ BRENDAN WARD MASONRY, INC., : : Plaintiff, : : : : v. : : WU & ASSOCIATES, INC., : : Defendant. : ___________________________________ :

BREACH OF CONTRACT

JURY TRAIL DEMANDED CIVIL NO. 07-cv-00751 GMS

MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM PURSUANT TO Fed. R. Civ. P. 12(b)(6) Plaintiff, Brendan Ward Masonry, Inc., by and through its attorneys, DeVlieger Hilser, P.C., hereby moves this Honorable Court for an Order Dismissing the Counterclaim of Defendant, WU & Associates, Inc., pursuant to Fed. R. Civ. P. 12(b)(6). 1. On or about August 2001, Defendant, Wu & Associates, Inc. [hereinafter "Wu"],

entered into a written contract with the Department of Labor for the United States of America as the general contractor for work to be performed for a federal construction project, number 0102, at the Wilmington Job Corps Center, 9 Vandever Avenue, Wilmington, Delaware 19802. Complaint at ¶ 5. 2. On or about April 5 2002, Plaintiff, Brendan Ward Masonry, Inc. [hereinafter

"Ward"], entered into a Subcontractor Agreement with Wu to furnish labor, equipment, materials and perform masonry work for the aforementioned federal project. See Complaint at ¶ 6. A true and correct copy of the Subcontractor Agreement is attached to Ward's Complaint as Exhibit "A."

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3.

The Subcontractor Agreement provided for a guaranteed maxim contract price of

$950,000.00 and further provided that this price would be increased in the event that certain conditions or modifications were instituted pursuant to Change Orders. See Exhibit A of Ward's Complaint. See Complaint at ¶ 7. 4. Ward substantially performed all of its obligation under the Subcontractor

Agreement. See Complaint at ¶ 8. 5. Wu has failed to perform its obligations under the Subcontractor Agreement.

Complaint at ¶ 9. 6. Wu has failed to fully pay Ward pursuant to the Subcontractor Agreement. See

Complaint at ¶ 10. 7. Wu's failure to perform its obligations under the Subcontractor Agreement has

caused Ward to suffer damages in excess of $200,000.00. Complaint at ¶ 11. 8. On or about May 3, 2004, Defendant, Wu, filed a complaint against the current

Plaintiff, Ward, in the Superior Court of New Jersey, Camden County Law Division, Docket No.: L 002425 04, seeking alleged damages in Breach of Contract arising under the Subcontractors Agreement (Count I). A true and correct copy of the 2004 Complaint, is attached to Wu's Counterclaim as Exhibit 6. 9. On July 6, 2004, pursuant to a stipulation between counsel, the Superior Court of

New Jersey dismissed Defendant, Wu's, 2004 Complaint with prejudice. See Camden Superior Court Archive Report for Docket No.: L 002425 04. A true and correct copy of which is attached hereto and incorporated herein as Exhibit "A." 10. On December 16, 2004, for the substantial consideration of agreeing to

withdraw and dismiss its claims against both Ward and the Surety, Plaintiff, Ward, entered into a Tolling Agreement with Defendant, Wu, pursuant to the scheduling of a future arbitration. A true and correct copy of the Tolling Agreement is attached to Plaintiff, Ward's, Complaint as Exhibit B.

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11.

When contacted in October 2007 by Ward's current counsel, Defendant, Wu,

refused to arbitrate Plaintiff, Ward's, claims pursuant to the Tolling Agreement. 12. Instead, on or about October 12, 2007, Defendant, Wu, filed yet another

Complaint with the Superior Court of New Jersey, Camden County Law Division, Docket No.: L 005245 07, against Ward, again seeking alleged damages in Breach of Contract arising under the Subcontractors Agreement (Count I). A true and correct copy of the 2007 Complaint, is attached to Defendant, Wu's, Counterclaim as Exhibit 8. 13. Defendant, Wu's, 2004 Complaint filed against Defendant, Ward, and Plaintiff,

Wu's, 2007 Complaint filed against Defendant, Ward, are identical. See and compare Exhibits 6 and 8 of Defendant, Wu's, Counterclaim. 14. On or about November 15, 2007, Plaintiff, Ward filed a Motion to Dismiss

Defendant, Wu's 2007 Complaint for "failure to state a claim upon which relief can be granted" and res judicata pursuant to New Jersey Rules of Court 4:6-2(e) and 4:37-2. A true and correct copy of which is attached hereto and incorporated herein as Exhibit "B." 15. On or about November 21, 2007, pursuant to Defendant, Wu's, refusal to arbitrate

Plaintiff, Ward's, claims, Ward filed its Complaint against Wu in the above captioned matter. 16. On December 7, 2007, the Superior Court of New Jersey, Camden County Law

Division, granted Ward's aforementioned Motion and, again, dismissed Wu's, Complaint against Ward with prejudice. A true and correct copy of the New Jersey Superior Court's Order is attached hereto and incorporated herein as Exhibit "C." 17. On December 13, 2007, Plaintiff, Ward, filed its Amended Complaint against

Defendant, Wu, in the above captioned matter. 18. On or about January 28, 2008, Defendant, Wu filed an Answer and Counterclaim

against Plaintiff, Ward, again, alleging damages in Breach of Contract arising under the Subcontractors Agreement. See Defendant, Wu's, Counterclaim, Counts I, II and III.

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19.

The doctrine of res judicata, or claim preclusion, bars the retrying of the same

claim by the same parties after a final judgment on the merits. Equal Opportunity Commission v. U.S. Steel Corp., 821 F.2d 489 (3d Cir. 1990). 20. A court's dismissal of an action with prejudice "constitutes an adjudication of the

merits as fully and competently as if the order had been entered after trial." Gambocz v. Yelensics, 468 F.2d 837, 840 (3d Cir. 1972). 21. The Federal Rules of Civil Procedure 12(b)(6) empowers this court to dismiss a

counterclaim for "failure to state a claim upon which relief can be granted." 22. Defendant, Wu's, claims against Plaintiff, Ward, set forth in their Counterclaim,

are barred by the doctrine of res judicata as they have been dismissed with prejudice not only once but twice previously and; therefore, Wu's Counterclaim has failed to state a claim against Ward pursuant to Fed. R. Civ. P. 12(b)(6) and should be dismissed as matter of law. WHEREFORE, Plaintiff, Brendan Ward Masonry, Inc., respectfully requests this Court enter an Order Dismissing the Counterclaim of Defendant, Wu and Associates, Inc., with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). ABER, GOLDLUST, BAKER & OVER /s/ Perry F. Goldlust (DSB #770) PERRY F. GOLDLUST (DSB #770) 702 King Street, Suite 600 P. O. Box 1675 Wilmington, DE 19899-1675 (302) 472-4900; (302) 472-4920 (FAX) [email protected] Attorney for Plaintiff Brendan Ward Masonry, Inc DATED: February 19, 2008 Of Counsel: JOHN E. HILSER, ESQUIRE DEVLIEGER HILSER, P.C. 1518 Walnut Street, 16th Floor Philadelphia, PA 19102 (215) 735-9181; (215) 735-9186 (FAX) [email protected]

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________ BRENDAN WARD MASONRY, INC., : : Plaintiff, : : : BREACH OF CONTRACT : v. : : WU & ASSOCIATES, INC., : JURY TRAIL DEMANDED : Defendant. : CIVIL NO. 07-cv-00751 ___________________________________ : NOTICE OF MOTION TO: Peter L. Frattarelli, Esquire Archer & Freiner, P.C. 300 Delaware Avenue Suite 1370 Wilmington, DE 19801 PLEASE TAKE NOTICE that the attached Motion to Dismiss Defendant's Counterclaim Pursuant to Fed. R. Civ. P. 12(b)(6) will be presented to this Honorable Court at the Court's convenience. ABER, GOLDLUST, BAKER & OVER /s/ Perry F. Goldlust (DSB #770) PERRY F. GOLDLUST (DSB #770) 702 King Street, Suite 600 P. O. Box 1675 Wilmington, DE 19899-1675 (302) 472-4900; (302) 472-4920 (FAX) [email protected] Attorney for Plaintiff Brendan Ward Masonry, Inc DATED: February 19, 2008 Of Counsel: JOHN E. HILSER, ESQUIRE DEVLIEGER HILSER, P.C. 1518 Walnut Street, 16th Floor Philadelphia, PA 19102 (215) 735-9181; (215) 735-9186 (FAX) [email protected]
Client/Hilser/Notice of Motion to Dismiss

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________ BRENDAN WARD MASONRY, INC., : : Plaintiff, : : : : v. : : WU & ASSOCIATES, INC., : : Defendant. : ___________________________________ :

BREACH OF CONTRACT

JURY TRAIL DEMANDED CIVIL NO. 07-cv-00751

PROPOSED ORDER THIS MATTER having come before the Court on a Motion to Dismiss the Counterclaim of Defendant, Wu & Associates, Inc., pursuant to Fed. R. Civ. P. 12(b)(6) filed by Plaintiff, Brendan Ward Masonry, Inc., and the Court having considered the Moving Papers, and the Opposition filed in response thereto and argument of counsel, if any; and it appearing that the Counterclaim fails to state a claim upon which relief may be granted; IT IS SO ORDERED on this day of ______________, 2008 that the Motion of

Plaintiff, Brendan Ward Masonry, Inc., is hereby GRANTED and the Counterclaim of Defendant, Wu & Associates, Inc. is hereby DISMISSED with prejudice.

J.

Client/Hilser/Proposed Order

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________ BRENDAN WARD MASONRY, INC., : : Plaintiff, : : : BREACH OF CONTRACT : v. : : WU & ASSOCIATES, INC., : JURY TRAIL DEMANDED : Defendant. : CIVIL NO. 07-cv-00751 ___________________________________ : CERTIFICATE OF SERVICE I, PERRY F. GOLDLUST, do hereby certify that the attached Motion to Dismiss Defendant's Counterclaim Pursuant to Fed. R. Civ. P. 12(b)(6) and Brief in Support of Motion to Dismiss Defendant's Counterclaim Pursuant to Fed. R. Civ. P. 12(b)(6) was E-filed and a copy mailed by U.S. Mail, postage-prepaid, on February 19, 2008 to: Peter L. Frattarelli, Esquire Archer & Freiner, P.C. 300 Delaware Avenue Suite 1370 Wilmington, DE 19801 ABER, GOLDLUST, BAKER & OVER /s/ Perry F. Goldlust (DSB #770) PERRY F. GOLDLUST (DSB #770) 702 King Street, Suite 600 P. O. Box 1675 Wilmington, DE 19899-1675 (302) 472-4900; (302) 472-4920 (FAX) [email protected] Attorney for Plaintiff Brendan Ward Masonry, Inc DATED: February 19, 2008 Of Counsel: JOHN E. HILSER, ESQUIRE DEVLIEGER HILSER, P.C. 1518 Walnut Street, 16th Floor Philadelphia, PA 19102 (215) 735-9181; (215) 735-9186 (FAX) [email protected]
Client/Hilser/Certificate of Service-Motion to Dismiss