The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
On October 2, 2001, Plaintiff Mobile Dredging & Pumping Co.
("Mobile") entered into a contract with Third Party Plaintiff,
City of Gloucester ("Gloucester" or "City"), to dredge a marina
being built by the City on the Delaware River. (Third Party
Compl. at ¶ 5.) Gloucester hired Third-Party Defendant, S.T.
Hudson Engineering ("Hudson"), to design and oversee the project
since the City did not have its own engineering department.
(Id. at ¶ 5.) Under Mobile's contract with the City, the
dredging was to begin within twenty days of execution, no later
than October 22, 2001. However, work did not begin until December
12, 2001. (Id. at ¶ 6.) The primary reason for the late start
was a holdup in securing a dredging permit from the New Jersey
Department of Environmental Protection ("DEP"), the obtainment of
which was Gloucester's responsibility pursuant to its contract
with Mobile. (Id. at ¶ 8.) The DEP initially refused to issue a
permit after discovering that the polymer to be used by Mobile
was dangerously toxic and only granted permission to dredge once
the parties had devised a safer method of using the polymer.
(Id. at ¶¶ 10-13.) The project was also delayed by the City's
low water pressure and volume, which made hydraulic dredging
impossible since Mobile was to use the City's water supply.
(Id. at ¶¶ 15-17.) Only after Mobile obtained additional pumps could it achieve the requisite
pressure and volume for hydraulic dredging. (Third Party Resp. at
3.) On January 31, 2002, Mobile completed dredging, (id. at ¶
7), but the City, based on soundings conducted by Hudson, claimed
Mobile had not reached the necessary depth and requested that
Mobile try again. (Third Party Resp. at 3.) After re-dredging,
Mobile still had not achieved the proper depth, again according
to Hudson's calculations, at which time Gloucester hired another
firm to complete the project. (Id. at 3-4.)
On September 23, 2004, Mobile commenced suit, (Docket Item No.
1), for breach of contract against Gloucester and for negligence
against Hudson, requesting the contract balance as well as
damages. (Mobile Compl. at ¶¶ 16-17.) Mobile claims it did an
independent depth calculation and found that, despite Hudson's
findings to the contrary, it had dredged deep enough and
therefore fulfilled its obligations under the contract with the
City. (Third Party Resp. at 9.) Furthermore, Mobile alleges that
due to Gloucester and Hudson's failures to secure a timely permit
and to provide an adequate water supply, it was forced to work
during winter, which led to additional damages. (Mobile Compl. at
¶¶ 25-28.) On October 27, 2004, Hudson made a Rule 12(b)(6)
motion to dismiss all of Mobile's claims against it, (Docket Item
No. 4), and this motion was granted on November 30, 2004. (Docket
Item No. 7.) On March 9, 2005, Gloucester filed a third party complaint
against Hudson, (Docket Item No. 15), claiming that Hudson is
responsible for any and all damages the City may owe to Mobile.
Prior to signing its contract with Mobile, Gloucester entered
into a contract with Hudson by which Hudson was to provide
engineering consultation and services in conjunction with that
project. (Compl. at ¶ 22.) Though neither Hudson nor Gloucester
has submitted a copy of their contract with their briefs,
Gloucester asserts that the contract contained an indemnification
clause requiring Hudson to pay the City for any loss the City
suffered attributable to the acts or omissions of Hudson. (Id.
at ¶ 23.)
Gloucester argues that Hudson did or failed to do three things
that caused it to be potentially liable to Mobile. First, the
City argues that Hudson's failure to secure the DEP permit in
time, attainment of which was Hudson's responsibility, (id. at
¶ 9), contributed to Mobile's damages by forcing Mobile to
operate during the winter. (Third Party Resp. at 3.) Second,
Gloucester contends that Hudson failed to verify Mobile's water
pressure requirements which also delayed the start of the project
and therefore also contributed to Mobile's alleged damages.
(Id. at 3.) Third, Gloucester maintains that if Hudson's depth
calculations were wrong, as is being claimed by Mobile, Hudson would be responsible for any of the City's liability to Mobile
stemming from those faulty calculations. (Id. at 4.)
Gloucester's Complaint contains five counts. Count One asks for
contractual indemnity in the event of a successful suit by
Mobile. (Compl. at ¶¶ 21-25.) Count Two claims common law
indemnity; Count Three claims contribution; Count Four claims set
off damages; and Count Five claims damages for professional
malpractice. (Id. at ¶¶ 26-36.)
On April 5, 2005, Hudson filed the present motion to dismiss
Gloucester's third party complaint for failure to state a claim,
pursuant to Rule 12(b)(6). (Docket Item No. 19.) Hudson argues
that none of the delays in the project are its responsibility.
Hudson first claims that it took all necessary steps in securing
the DEP permit, but that the delay can be attributed to Mobile's
misrepresentation of the polymer's toxicity. (Hudson Motion at
4-5.) Hudson next claims that the delay in providing the proper
water pressure can also be attributed to Mobile, and therefore
Gloucester cannot state a claim against Hudson for any damages
attributed to that delay. (Id. at 6-7.) Hudson argues that
since Mobile never specified the water pressure it needed, and
since supplying the water was actually the City's responsibility,
it did nothing wrong that could create a cause of action against
it. (Id. at 6-7.) Additionally, Hudson says that it performed
its duties in a professional and workmanlike manner so any allegations to the contrary cannot be sustained. (Id. at 8.)
Based on these arguments, Hudson maintains that all five of
Gloucester's counts should be dismissed for failure to state a
claim. For the reasons explained below, Hudson's motion will be
granted in part and denied in part.
A Rule 12(b)(6) motion to dismiss for failure to state a claim
upon which relief may be granted must be denied "unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief."
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court
must accept any and all reasonable inferences derived from those
facts. Unger v. Nat'l Residents Corp. v. Exxon Co., U.S.A.,
761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank,
748 F. Supp. 254, 260 (D.N.J. 1990). Further, the court must view
all allegations in the Complaint in the light most favorable to
the plaintiff. See Scheuer, 416 U.S. at 236; Jordan v. Fox,
Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.
It is not necessary for the plaintiff to plead evidence, and it
is not necessary to plead the facts that serve as the basis for
the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d
Cir. 1977); In re Midlantic Corp. Shareholder Litigation,
758 F. Supp. 226, 230 (D.N.J. 1990). The question before the court is not whether plaintiffs will ultimately prevail; rather, it is
whether they can prove any set of facts in support of their
claims that would entitle them to relief. Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984). Therefore, in deciding a
motion to dismiss, a court should look to the face of the
complaint and decide whether, taking all of the allegations of
fact as true and construing them in a light most favorable to the
nonmovant, plaintiff's allegations state a legal claim.
Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.
1990). Only the allegations in the complaint, matters of public
record, orders, and exhibits attached to the complaint matter,
are taken into consideration. Chester County Intermediate Unit
v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).
Hudson asserts that Gloucester fails to state a claim for
contractual indemnity. Gloucester submits that its contract with
Hudson contained a clause to "indemnify the city for any loss the
city suffers attributable to the acts and/or omissions of
[Hudson]." (Compl. at ¶ 23.) Hudson does not deny the existence
of this indemnity clause with Gloucester, but it argues that its
conduct during the project does not satisfy the criteria of that
clause since it was not responsible for the delays in the
dredging operation and since it performed its duties in ...