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Frontier Development LLC v. Craig Test Boring Co.

United States District Court, D. New Jersey

September 15, 2017

FRONTIER DEVELOPMENT LLC, Plaintiff,
v.
CRAIG TEST BORING CO., INC. AND CRAIG TESTING LABORATORIES, INC., Defendants.

          Alan R. Ackerman, Esq. Law Offices of Alan R. Ackerman Attorney for Plaintiff

          Michael J. DeRita, Esq. Chiumento McNally, LLC One Echelon Plaza Attorney for Defendant

          OPINION

          HONORABLE JEROME B. SIMANDLE JUDGE

         I. INTRODUCTION

         This matter comes before the Court by way of the motion of Defendants Craig Test Boring Co., Inc. and Craig Testing Laboratories, Inc. (collectively, "the Defendants") to dismiss Plaintiff Frontier Development LLC's ("Plaintiff") Amended Complaint. [Docket Item 32. ][1] On February 11, 2016, Plaintiff filed a Complaint in this Court alleging breach of contract against both Defendants. [Docket Item 1.] On August 3, 2016, this Court allowed Plaintiff to amend the Complaint as a matter of right under Federal Rule of Civil Procedure 15(a). [Docket Item 16.] Shortly thereafter, Plaintiff filed the Amended Complaint. [Docket Item 17.] Defendant filed their Answer to the Amended Complaint on August 23, 2016. [Docket Item 20.] On January 26, 2017, Defendants filed a motion to dismiss the Amended Complaint, now pending before the Court. [Docket Item 32.] On February 24, 2017, Plaintiff filed an affidavit of merit ("AOM"). [Docket Item 35.]

         The first issue to be determined by the Court is whether Plaintiff's claim sounds in breach of contract or professional malpractice. If the claim is for professional malpractice, as Defendants argue, then N.J.S.A. 2A:53A-26 through -29 ("the AOM Statute" or "the Statute") applies to Plaintiff's Amended Complaint. On the other hand, if the claim is rooted in breach of contract, the AOM Statute does not apply and no AOM was necessary.

         If the AOM Statute applies, Plaintiff was required to file an AOM within 60 (or 120) days of the Defendants' Answer to the Amended Complaint, see N.J.S.A. 2A:53A-27, "unless some exception applies, " Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 312 (3d Cir. 2012) (quoting Couri v. Gardner, 801 A.2d 1134, 1141 (N.J. 2002)). Under this scenario, if Plaintiff failed to furnish an AOM within 60 (or 120) days, the Court would consider the applicability of any potentially-relevant exceptions to the AOM Statute. If none of the exceptions apply, however, the Court must dismiss Plaintiff's Amended Complaint with prejudice. Id. at 305; see also N.J.S.A. 2A:53A-29 (setting forth the consequence for a plaintiff's failure to provide an affidavit of merit).

         For the reasons discussed below, the Court finds that the AOM Statute applies to Plaintiff's claim. Plaintiff failed to furnish an AOM within the statutorily-required timeframe and none of the exceptions to the AOM Statute apply. Accordingly, the Court will, as it must, dismiss Plaintiff's Amended Complaint with prejudice.

         II. BACKGROUND

         A. Factual Background

         Plaintiff was the developer of a commercial building located in Egg Harbor Twp., New Jersey. (Amend. Compl. at ¶ 7.) During the early stages of the construction project, Plaintiff concluded it was necessary "to determine the depth of the topsoil to be removed to prepare the site for construction, and whether the soil beneath the topsoil was stable to support the proof-rolling of a foundation for the structure." (Id. at ¶ 8.)

         To that end, Plaintiff entered into an agreement with Craig Test Boring Co., Inc. ("Defendant Boring"), whereby Defendant Boring was to perform geotechnical boring testing and prepare a soil boring report ("the Report"). (Id. at ¶ 11.) Defendant Boring then subcontracted with Craig Testing Laboratories, Inc. ("Defendant Testing") to perform the actual testing and prepare the Report. (Id. at ¶ 12.) On October 14, 2015, Plaintiff received a copy of the Report from Defendant Boring. (Id. at ¶ 20.) The Report was authored by Eduardo Freire, P.E., an employee of Defendant Testing. (Id. at ¶ 20.)

         According to Plaintiff, "[a]s a result of the faulty findings in the [Report]. . . Plaintiff was required to remove an excessive amount of topsoil, and loose ground underneath the topsoil in contradiction to the original Geotechnical Engineering Report." (Id. at ¶ 25.) According to Plaintiff, "[t]he faulty [Report]. . . resulted in delay in Plaintiff's construction schedule, the incursion of excessive costs to remove in excess of 3, 000 additional yards of topsoil and loose granular soil beneath the topsoil, and Plaintiff's purchase of suitable fill to stabilize the ground." (Id.) As compensation for the damages Plaintiff allegedly incurred, Plaintiff requests $174, 078.74 from the Defendants. (Id. at ¶ 26.)

         B. Procedural Background

         On February 11, 2016, Plaintiff filed a Complaint before this Court, alleging breach of contract. [Docket Item 1.] Specifically, Plaintiff claimed that: (1) Defendant Boring breached the services contract with Plaintiff by impermissibly assigning the testing work and preparation of the Report to Defendant Testing; and (2) both Defendants breached the services contract by "misstat[ing] the depth of the topsoil and amount of excavation that would be required on the property to prepare the site for construction." [Id. at ¶¶ 13, 16.]

         On March 11, 2016, Defendants filed their first Answer and asserted, among other affirmative defenses, that the Complaint was barred by Plaintiff's failure to comply with the AOM Statute. [Docket Item 5 at 6, ¶ 26.] On July 12, 2016, Defendants filed a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), on the basis that Plaintiff had not filed an AOM within 120 days of Defendant's March 11, 2016 Answer. [Docket Item 14.]

         On August 1, 2016, Plaintiff filed a cross-motion to amend the Complaint. [Docket Item 15.] In this cross-motion, Plaintiff argued that: (1) the Court should grant the Plaintiff leave to amend the Complaint under Federal Rule of Civil Procedure 15(a); (2) if the Court does not grant Plaintiff leave to amend, an AOM should not be required because Plaintiff's cause of action against Defendants is for breach of contract, not professional malpractice; (3) even if the AOM Statute does apply to Plaintiff's claim, the "common knowledge" exception removes Plaintiff's obligation to file an AOM; and (4) if the Court grants the Plaintiff's motion, Plaintiff should have 60 days from when Defendants file their Amended Answer to file the AOM. [Docket Item 15.] On August 3, 2016, the Court granted Plaintiff's request for leave to amend as a matter of right under Federal Rule of Civil Procedure 15(a)(1)(B), and dismissed Defendants' first motion to dismiss as moot. [Docket Item 16.]

         On August 9, 2016, Plaintiff filed an Amended Complaint. [Docket Item 17.] In the Amended Complaint, Plaintiff re-alleged that: (1) Defendant Boring breached the services contract with Plaintiff by impermissibly assigning the testing work and preparation of the Report to Defendant Testing; and (2) both Defendants breached the services contract by providing Plaintiff with a "faulty report, " containing "faulty findings" and "faulty conclusions." [Id. at ¶¶ 12, 24-25.] On August 23, 2016, Defendants filed an Answer to the Amended Complaint, again raising the affirmative defense that the Amended Complaint is barred by Plaintiff's failure to comply with the AOM Statute. [Docket Item 20 at 7, ¶ 26.]

         On August 17, 2016, Defendants filed a motion for reconsideration of the Court's Order dismissing the original dismissal motion as moot. [Docket Item 18.] Defendants argued that, by granting Plaintiff leave amend, the Court had improperly permitted Plaintiff to circumvent the AOM Statute's 120-day filing requirement. [Id.] On September 6, 2016, Plaintiff filed an Opposition to Defendant's motion for reconsideration [Docket Item 21], and on September 19, 2016, Defendant filed a Reply to Plaintiff's Opposition. [Docket Item 24. ][2] On September 21, 2016, Judge Williams ordered that "discovery shall be STAYED pending the outcome of the pending Motion for Reconsideration." [Docket Item 26.]

         On January 26, 2017, the Court denied the Defendants' Motion for Reconsideration. [Docket Item 31.] As the Court noted in its Order, Plaintiff had been granted leave to amend the Complaint as a. matter of right under Federal Rule of Civil Procedure 15(a)(1)(B), thereby rendering any issues regarding the 120-day period to file an AOM moot. [Id.] Since the Court had not decided whether the Plaintiff's claims required an AOM, the Court explained, "Defendants are free to file additional motions in response to Plaintiff's Amended Complaint contesting whether or not an Affidavit of Merit needs to be filed in this case. ..." [Id.]

         The following day, Defendants filed a motion to dismiss Plaintiff's Amended Complaint. [Docket Item 32.] On February 8, 2017, Plaintiff filed its Opposition to Defendants' motion to dismiss. [Docket Item 33.] On February 14, 2017, Defendants filed their Reply to Plaintiff's Opposition. [Docket 34.]

         Finally, on February 24, 2017, Plaintiff filed an AOM prepared by Sean DiBartolo, P.E. [Docket 35.] Plaintiff provided no explanation for its filing of the AOM, nor has it sought to do so.

         III. STANDARD OF REVIEW

         Defendants have styled the motion presently under consideration as a motion to dismiss for failure to state a cause pursuant to Federal Rule of Civil Procedure 12(b)(6). As the Court explained in Note 1, supra, both parties have treated the motion as one for summary judgment, submitting evidence outside the pleadings in support of their respective positions. As the parties themselves have treated Defendants' motion ...


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