Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nitterhouse Concrete Products, Inc. v. Dobco Group, Inc.

United States District Court, D. New Jersey

April 3, 2018

NITTERHOUSE CONCRETE PRODUCTS, INC., Plaintiff,
v.
DOBCO GROUP, INC., Defendant,

          OPINION

          WILLIAM H. WALLS SENIOR UNITED STATES DISTRICT COURT JUDGE

         This matter arises out of a dispute between Plaintiff Nitterhouse Concrete Products, and Defendant Dobco, [1] over a subcontract agreement for the fabrication of pre-cast structural supports by Plaintiff for a parking garage project on which Defendant was the general contractor. Defendant moves to dismiss this matter under Fed.R.Civ.P. 12(b)(6), or in the alternative, to stay the matter and compel mediation and arbitration pursuant to the Federal Arbitration Act. Defendant's motion is granted in part.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Nitterhouse Concrete Products, Inc. ("Nitterhouse"), is a business entity with its principal place of business in Chambersburg, Pennsylvania. Compl. ¶ 1, ECF No. 1. Defendant Dobco is a business entity with its principal place of business in Wayne, New Jersey. Id. ¶ 2. On December 26, 2012, the parties entered into a contact in connection with the construction of a parking garage on the campus of William Patterson University in Wayne, New Jersey. Id. ¶ 5. Defendant Dobco was the general contractor for the parking garage construction project, and hired Plaintiff Nitterhouse to fabricate "pre-cast structural members" for the construction of the garage. Id. ¶ 6. Dobco contracted to pay Nitterhouse $5, 736, 000.00 upon completion of their work on the parking garage, this amount was later reduced to $5, 724, 053.89. Id. ¶ 7. Although Nitterhouse performed its obligations in completing the project, payment in the amount of $286, 203.00 was still outstanding as of December 31, 2014. Id. ¶ 11.

         1. The Subcontract Provisions

         The subcontract contained provisions for alternative dispute resolution procedures. Section 6.1.2 of the subcontract contains a mediation provision, which provides:

The parties shall endeavor to resolve their claims by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures currently in effect. A request for mediation shall be made in writing, delivered to the other party to this Subcontract and filed with the American Arbitration Association unless the parties mutually agree in writing to substitute mediation administrator.

         Standard Form of Agreement Between Contractor and Subcontractor ("Subcontract") § 6.1.2, ECF No. 1-1.

         In addition to the mediation provision, the subcontract also contains a provision for binding dispute resolution. This provision, Section 6.2, provides:

For any claim subject to, but not resolved by mediation pursuant to Section 6.1, at the sole option of [Dobco], it shall be resolved either by arbitration under the Construction Industry Arbitration Rules of the American Arbitration Association and judgment may be entered on the basis of the award; or, if [Dobco] does not opt for arbitration, then such dispute shall be decided in the Superior Court of the State of New Jersey, and the venue of any such action shall be placed in Passaic County, New Jersey.

Id. § 6.2.1

         2. The Siddons Litigation

         An individual named Donald Siddons was injured on the site of the parking garage construction project, and brought claims against both Nitterhouse and Dobco in the Superior Court of New Jersey. Def.'s Br. at 4, ECF No. 7-1. Dobco asserted cross-claims against Nitterhouse seeking indemnification under the contract.

         In response, Nitterhouse claimed that Dobco was not entitled to indemnification because it was in breach of the contract due to the outstanding $286, 203.00 at issue in this lawsuit. PL's Opp. at 11, ECF No. 10. Nitterhouse also sought to bring an affirmative counterclaim against Dobco seeking damages for breach of contract. The trial court allowed Nitterhouse to raise the breach of contract issue as a defense to indemnification, but refused to allow an affirmative damages claim for fear of confusing the issues before the jury. Id. Dobco has engaged in significant discovery in connection with the Siddons litigation, including participation in multiple depositions. Id. at 9. The outstanding $286, 203.00 balance was raised at some of these depositions. Id.

         Plaintiff Nitterhouse brought suit in the District of New Jersey on November 9, 2016 alleging breach of contract, breach of implied covenant of good faith and fair dealing, unjust enrichment and conversion. Compl. ¶¶ 14-33.

         On January 17, 2017, Defendant moved to dismiss or, in the alternative, to stay the action in the District and compel mediation and arbitration. Defendant argued that the suit should be dismissed pursuant to the forum selection clause, which provides that any litigation be venued in the Superior Court of New Jersey. In the alternative, Defendant argues that the action be stayed, and that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.