Mangiardi Brothers Trucking, Inc.
Dewey Environmental, LLC, et al. Opinion No. 2013 DNH 069
JOSEPH A. DiCLERICO, Jr., District Judge.
Mangiardi Brothers Trucking, Inc. ("Mangiardi") brought suit against Dewey Environmental, LLC ("Dewey"); Francis Harvey and Sons, Inc. ("Francis Harvey"); Babcock and Wilcox Construction Co., Inc. ("Babcock"); and Berlin Station, LLC ("Berlin Station") alleging claims arising out of unpaid invoices for Mangiardi's services in hauling hazardous waste from a construction site. Babcock and Berlin move to dismiss the complaint. Mangiardi objects to the motions.
In the fall of 2011, Berlin Station hired Babcock as its general contractor for the construction of a "biomass energy plant" (the "Project"). Berlin Station owns the property upon which the Project was being constructed (the "Construction Site").
In November 2011, Babcock entered into an agreement with Francis Harvey, under which Francis Harvey agreed to perform certain site work for the Project. Francis Harvey subcontracted with Dewey to perform hazardous waste removal on the Project.
Dewey subsequently contacted and subcontracted with Mangiardi to haul the hazardous waste materials from the Construction Site. Dewey agreed to pay Mangiardi $115 per ton of waste hauled and payment was due within fourteen days after the date of an invoice. The terms of the agreement were confirmed through an email between Dewey and Mangiardi. Mangiardi alleges that Dewey discussed the terms of the agreement with Francis Harvey.
Mangiardi began performing the services required under the contract with Dewey on December 1, 2011. On December 5, 2011, Mangiardi submitted its first invoice to Dewey in the amount of $20, 513.75. Mangiardi received a check from Francis Harvey for the full amount of the invoice on December 12, 2011.
Mangiardi continued to perform the services required under the contract and submitted five more invoices to Dewey, totaling $128, 751.70. When payment for the first of the five invoices was not made within fourteen days, Mangiardi contacted both Dewey and Francis Harvey. Each promised that a payment would be made shortly.
On January 9, 2012, Dewey wired $50, 000 to Mangiardi. Despite contacting Dewey and Francis Harvey on many occasions since then, Mangiardi has not received any further payment from either company.
After being unsuccessful in obtaining payment from Dewey and Francis Harvey, Mangiardi contacted Babcock to request payment of the outstanding invoices. Mangiardi alleges that Babcock stated that it had paid Francis Harvey in full for the portion of work performed by Mangiardi and, therefore, would not pay Mangiardi the money Mangiardi alleged it was owed.
Mangiardi subsequently contacted Cate Street Capital ("Cate Street"), which it believed to be the owner of the Construction Site, to request payment of its invoices. Cate Street said that it was not the owner of the Construction Site and refused to make any payments to Mangiardi.
Standard of Review
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must determine whether the facts alleged, when taken as true and in the light most favorable to the plaintiff, state a claim on which relief can be granted. Rederford v. U.S. Airways, Inc. , 589 F.3d 30, 35 (1st Cir. 2009). Under the notice pleading standard of Federal Rule of Civil Procedure 8(a)(2), a plaintiff need provide only a short and plain statement that provides enough facts "to raise a right to relief above the speculative level....'" Ocasio-Hernandez v. Fortuno-Burset , 640 F.3d 1, 12 (1st Cir. 2011) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). The court takes the well-pled allegations as true, views all of the facts in the light most favorable to the non-moving party, and determines whether the complaint alleges facts to ...