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Kisby Lees Mechanical LLC, T/A Kisby Shore Corp. v. Pinnacle Insulation

July 31, 2012

KISBY LEES MECHANICAL LLC, T/A KISBY SHORE CORP.
PLAINTIFF,
v.
PINNACLE INSULATION, INC., DEFENDANT.



The opinion of the court was delivered by: Honorable Jerome B. Simandle

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

Plaintiff, Kisby Lee Mechanical LLC, t/a Kisby Shore Corp. ("Kisby"), brought this action in the Superior Court of New Jersey, Atlantic County, seeking confirmation of an arbitration award, and Defendant, Pinnacle Insulation, Inc. ("Pinnacle"), removed the action to this Court. [Docket Item 1.]

Defendant Pinnacle brought a Counterclaim asserting claims for breach of contract, unjust enrichment, and promissory estoppel. [Docket Item 5.] This matter is currently before the Court on Plaintiff's motion to dismiss Defendant's Counterclaim. [Docket Item 9.] For the reasons set forth below, the Court will convert Plaintiff Kisby's Rule 12(b)(6) motion to a Rule 56 motion for summary judgment, and Defendant Pinnacle will have fourteen (14) days to adduce admissible evidence in opposition to the motion.

II. BACKGROUND

Plaintiff Kisby is a Heating, Ventilating and Air

Conditioning ("HVAC") contractor, and Defendant Pinnacle is a mechanical contractor. Kisby engaged Pinnacle, as a subcontractor, to supply HVAC insulations on a number of projects that Kisby performed pursuant to subcontracts with higher tier contractors.

A.Procedural History

Defendant Pinnacle previously filed a complaint against Plaintiff Kisby with this Court on May 19, 2010, docketed at Civ. No. 10-2573, but Pinnacle voluntarily dismissed the complaint on June 25, 2010, without prejudice in order to pursue arbitration.

On August 16, 2011, Kisby filed the present action in the Superior Court for the State of New Jersey, seeking confirmation of an arbitration award. On September 2, 2011, Pinnacle removed the action to this Court pursuant to 28 U.S.C. § 1441 et seq. [Docket Item 1.]

Pinnacle filed its Answer and Counterclaim on November 23, 2011. [Docket Item 5.] In its Counterclaim, Pinnacle asserted claims for (1) breach of contract, (2) unjust enrichment, and (3) promissory estoppel.

Kisby filed the instant motion to dismiss Pinnacle's

Counterclaim under Rule 12(b)(6) for failure to state a claim on December 28, 2011. [Docket Item 9.] Kisby claims that (1) res judicata, (2) the entire controversy doctrine, and (3) the doctrine of arbitration and award bar Pinnacle's Counterclaim. Id. Kisby further requests that if the Court declines to dismiss the Counterclaim with prejudice, the Court dismiss the Counterclaim without prejudice and compel Pinnacle to pursue its claims in arbitration. Id. at 24.

On February 7, 2012, Pinnacle filed its Brief in Opposition to Kisby's Motion to Dismiss the Counterclaim. [Docket Item 15.] Pinnacle also requests that, if the Court grants any part of Kisby's 12(b)(6) motion, the Court grant Pinnacle leave to file an amended complaint alleging fraud. Id. at 14-15.

Pinnacle based this request on the assertion that, subsequent to the arbitration award, Pinnacle learned that Kisby had ...


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