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August 4, 2005.


The opinion of the court was delivered by: JEROME SIMANDLE, District Judge


I. Introduction

  A. Background

  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.

  II. Discussion

  A. Standard of Review

  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. 1994).

  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).

  B. Contractual Indemnity

  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 ...

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