Free Response to Motion - 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. CIVIL NO. 07-cv-00751 GMS BREACH OF CONTRACT

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM PURSUANT TO F.R.C.P. 12(b)(6)

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Defendant/Counterclaimant, Wu & Associates, Inc. ("Wu"), by and through its attorneys, hereby responds to plaintiff's motion as follows: 1. 2. 3. 4. 5. 6. 7. 8. 9. Admitted. Admitted. Denied as stated. The Subcontractor Agreement speaks for itself. Denied. Denied. Denied that Wu has failed to pay Ward the amounts to which Ward is entitled. Denied. Admitted. Denied as stated. It is admitted that on July 6, 2004, the parties filed a Stipulation

of Dismissal of Wu's 2004 New Jersey action. A copy of the Stipulation of Dismissal is attached to the annexed Certification of Peter Milligan as Exhibit "G." (Mr. Milligan's Certification, which was filed in connection with the New Jersey Superior Court case captioned Wu & Associates, Inc. v. Brendan Ward Masonry, et al., Superior Court of New Jersey, Law Division, Camden County, Docket No. L-005-245-07, is attached to the annexed Affidavit of Sean T. O'Meara, Esquire.) The Stipulation of Dismissal specifically provided that all claims between the parties would be submitted to Arbitration before the American Arbitration Association, and that neither party was releasing any claims or defenses in connection with the Stipulation.

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10.

Denied as stated. It is admitted that the parties entered into a Tolling Agreement.

While the Tolling Agreement speaks for itself, the jist of it was to preserve the claims of both parties pending the outcome of litigation Wu had pending with the U.S. Department of Labor. 11. Denied as stated. Counsel for Ward telephoned Peter Milligan, then counsel for

Wu, in October, 2007 and advised that, unless Wu was willing to extend the limitation period in the Tolling Agreement, Ward intended to reinstitute litigation in this Court. (See Milligan Certification, ¶10). Since Wu believed that, if this dispute was not going to be decided in AAA Arbitration, it belonged in New Jersey, Mr. Milligan re-filed in New Jersey Superior Court the Complaint he had previously filed in 2004. (Id., ¶11). 12. 13. 14. Admitted. Admitted. Admitted, except that the basis of Ward's motion was that Wu's claims were

already pending in this Court, and that therefore there was no need to have them pending in New Jersey as well. Once Ward obtained a dismissal of the 2007 New Jersey action, it then filed the instant motion seeking to dismiss Wu's affirmative claims set forth in its Counterclaim, despite having advised the New Jersey court that those claims were pending in this Court. (See Milligan Certification and exhibits annexed thereto, ¶¶ 12 and 16-18.) 15. It is admitted that Ward filed its Complaint in this Court on or about November

21, 2007, but denied that Wu refused to arbitrate the claims in this dispute. 16. Admitted, except that the Court should also be aware that there is currently

pending with the Superior Court of New Jersey a Motion to Vacate December 7, 2007 Order

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pursuant to R. 4:50, which motion is scheduled to be heard April 25, 2008. (See, motion papers attached to annexed O'Meara Affidavit as Exhibit "1"). 17. 18. 19. Admitted. Admitted. Admitted as to the principles stated, but denied that res judicata applies where (1)

the underlying judgment was procured by fraudulent conduct and (2) where there is currently pending a motion to vacate the underlying judgment. See Commissioner of Internal Revenue Service v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 192 L. Ed. 898 (1948); Maldonado v. Flynn, 417 A.2d 378, 384 (Del. Ch. 1980). 20. 21. 22. Admitted as to the proposition noted, but see paragraph 19 above. Admitted. Denied for the reasons set forth in paragraph 19.

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WHEREFORE, Defendant/Counterclaimant, Wu & Associates, Inc., respectfully requests that this Court deny plaintiff's Motion to Dismiss Defendant's Counterclaim pursuant to F.R.C.P. 12(b)(6). ARCHER & GREINER, P.C. A Professional Corporation Attorneys for Defendant/Counterclaimant

By:/s/ Peter L. Frattarelli________ PETER L. FRATTARELLI OF COUNSEL: Sean T. O'Meara, Esquire ARCHER & GREINER A Professional Corporation One Centennial Square Haddonfield, NJ 08033-0968 (856) 795-2121 Dated: March 14, 2008
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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

BRENDAN WARD MASONRY, INC., Plaintiff v. WU & ASSOCIATES, INC., Defendant. CIVIL NO. 07-cv-00751 GMS BREACH OF CONTRACT

BRIEF OF DEFENDANT/COUNTERCLAIMANT IN OPPOSITION TO PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM PURSUANT TO F.R.C.P. 12(b)(6)

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TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................................................................................ii I. II. III. INTRODUCTION...........................................................................................................1 STATEMENT OF PROCEDURAL HISTORY...............................................................2 LAW AND ARGUMENT ...............................................................................................2 A. B. THE DOCTRINE OF RES JUDICATA DOES NOT APPLY WHERE THE UNDERLYING JUDGMENT WAS PROCURED BY FRAUD..................2 IN THE ALTERNATIVE, RES JUDICATA DOES NOT APPLY WHILE A MOTION IS PENDING TO VACATE THE UNDERLYING JUDGMENT .............................................................................3

IV.

CONCLUSION...............................................................................................................4

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TABLE OF AUTHORITIES FEDERAL CASES Commissioner of Internal Revenue Service v. Sunnen, 333 U.S. 591, 68 S. Ct. 715, 92 L. Ed. 898 (1948) .......................................................................................... 2 County of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1387 (E.D.N.Y. 1989) ......................................................................................................................... 2 Gregory v. Chehi, 843 F.2d 111 (3d Cir. 1988)................................................................ 2 McCarty v. First of Georgia Insurance, 713 F.2d 609 (10th Cir. 1983)............................. 2 Quarrels v. Miller, 86 F.3d 55 (4th Cir. 1996).................................................................. 2 STATE CASES Epstein v. Chatham Park, Inc., 153 A.2d 180 (Del. Super. 1959) ..................................... 3 Maldonado v. Flynn, 417 A.2d 378 (Del. Ch. 1980) ........................................................ 3 Oswald v. Seidler, 47 A.2d 437 (N.J.E&A 1946)............................................................. 3 MISCELLANEOUS C.J. S. "Judgment," §723 (1997)...................................................................................... 3

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I.

INTRODUCTION Plaintiff, Brendan Ward Masonry, Inc. ("Ward"), and defendant/counterclaimant, Wu &

Associates, Inc. ("Wu"), each have claims against the other arising out of the construction of a building for the U.S. Department of Labor in Wilmington, Delaware (the "Project"). Wu was the general contractor for the Project and Ward was its masonry subcontractor. The Subcontract between the parties provided that any dispute would be resolved by arbitration. Despite this fact, Ward filed suit in this Court in 2004, leading to a chain of procedural events. The very involved procedural history of the litigation between the parties is set forth in detail in the Certification of Peter Milligan, Esquire, prior counsel for Wu, which is attached to the annexed Affidavit of Sean T. O'Meara, Esq.1 As a result of false and misleading statements by Ward's counsel to the New Jersey Superior Court indicating that this litigation was pending, and that the claims Wu asserted in New Jersey would be decided as part of this case, the New Jersey court dismissed Wu's Complaint on December 7, 2007. In this motion, Ward now seeks to use that Order to prevent Wu from asserting its claims against Ward in this case, on the basis of res judicata. Thus, Ward wants to pursue its claims in this case, but wants to prevent Wu from asserting its claims in any forum. Such a result would be grossly inequitable and unjust. Accordingly, Wu requests that the Court deny Ward's motion because (1) res judicata does not apply where the underlying judgment was procured by fraud and/or (2) res judicata does not apply where a motion is pending to vacate the underlying judgment.

1

Mr. Milligan's Certification and Brief, which is also attached to Mr. O'Meara's Affidavit, were yesterday submitted to the Superior Court of New Jersey in support of a Motion to Vacate December 7, 2007 Order Pursuant to R. 4:50. That motion is scheduled to be heard on April 25, 2008.

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II.

STATEMENT OF PROCEDURAL HISTORY As noted above, the procedural history between Wu and Ward in AAA Arbitration, in

New Jersey Superior Court and in this Court, is somewhat involved, but it is very important. This history is summarized in Mr. Milligan's Certification. Wu incorporates the information contained in that Certification as if repeated at length herein. III. LAW AND ARGUMENT A. THE DOCTRINE OF RES JUDICATA DOES NOT APPLY WHERE THE UNDERLYING JUDGMENT WAS PROCURED BY FRAUD

Res judicata, or claim preclusion, prevents a party from re-litigating a matter which has already been considered on the merits and finally decided. See, e.g., Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir. 1988). Res judicata effect will not be given, however, to judgments obtained by fraud. Commissioner of Internal Revenue Service v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 92 L. Ed. 898 (1948); McCarty v. First of Georgia Ins., 713 F.2d 609, 612-13 (10th Cir. 1983); County of Suffolk v. Long Island Lighting Co., 710 F.Supp. 1387, 1393 (E.D.N.Y. 1989); Quarrels v. Miller, 86 F.3d 55, 57 (4th Cir. 1996). The doctrine of res judicata does not apply in this case because Ward procured the December 7, 2007 Order by fraud. The specifics of the fraud are set forth in the Milligan Certification and the Exhibits attached to it. The essential fact is that Ward convinced the New Jersey court to dismiss Wu's Complaint by concealing the fact that the 2004 New Jersey case was dismissed based on the express agreement that Wu's claims would be decided elsewhere, and by representing that the claims Wu sought to assert in New Jersey were already pending before this Court, and that allowing the New Jersey litigation to proceed would result in duplicative litigation. (See Milligan Certification and related Exhibits, ¶¶ 12 and 16-18). The bottom line is that Wu and Ward have each had claims pending against one another in AAA

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Arbitration, in New Jersey Superior Court and in this Court. The prior cases in both New Jersey and in this Court that were filed in 2004 were dismissed with prejudice based upon the express agreement that neither party was waiving any of its claims or defenses, and that the parties would later be able to assert their claims in another forum. (See Milligan Certification, ¶¶ 3-9). Wu is now faced with a situation where Ward wants to pursue its affirmative claims against Wu in this Court, but wants to deny Wu the opportunity to present its affirmative claims. Wu respectfully requests that Ward's argument should not be accepted by this Court. As one court has noted, the doctrine of res judicata was invented to promoted peace, not to deny justice. Oswald v. Seidler, 47 A.2d 437 (N.J.E&A 1946). If Wu's Counterclaim is dismissed by this Court, Wu will never have had an opportunity to present the merits of its claims in any forum, a result contrary to the principles of res judicata and elemental fairness. B. IN THE ALTERNATIVE, RES JUDICATA DOES NOT APPLY WHILE A MOTION IS PENDING TO VACATE THE UNDERLYING JUDGMENT

Courts differ over whether a final judgment which is being appealed or is the subject of a motion to vacate will support the application of the doctrine of res judicata. See e.g., Epstein v. Chatham Park, Inc., 153 A.2d 180 (Del. Super. 1959); C.J. S. "Judgment," §723 (1997). Delaware has taken the view that the dismissal of the second action should be held in abeyance until the appeal of the first section is completed. See Maldonado v. Flynn, 417 A.2d 378, 384 (Del. Ch. 1980). Accordingly, should the Court not agree with Wu that its Counterclaim should not be dismissed because the New Jersey litigation was dismissed based upon a fraudulent premise, Wu respectfully requests that the Court not dismiss the Counterclaim until the New Jersey Superior Court rules upon Wu's Motion to Vacate the December 7, 2007 Order.

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IV.

CONCLUSION For all of the foregoing reasons, defendant/counterclaimant respectfully requests that the

Court deny plaintiff's motion. ARCHER & GREINER, P.C. A Professional Corporation Attorneys for Defendant/Counterclaimant

By:/s/ Peter L. Frattarelli PETER L. FRATTARELLI OF COUNSEL: Sean T. O'Meara, Esquire ARCHER & GREINER A Professional Corporation One Centennial Square Haddonfield, NJ 08033-0968 (856) 795-2121 Dated: March 14, 2008

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