United States District Court, D. New Hampshire
Unity School District, Plaintiff.
Vaughn Associates, Inc., and Scott Vaughn, Defendants,
School Administrative Unit #6, Excel Mechanical, Inc., Superior Walls of Hudson Valley, Inc., and Town of Unity, Third-Party Defendants. Opinion No. 2016 DNH 062
J. McAULIFFE, District Judge.
case arises from two contracts between the Unity School
District and Vaughn Associates, Inc., pursuant to which
Vaughn Associates agreed to design and, subsequently, oversee
construction of a new elementary school in Unity, New
Hampshire. Those contracts were terminated in early 2014, and
this litigation ensued. Initially, the Unity School District
filed a four-count writ in state court against Vaughn
Associates and its principal, Scott Vaughn (collectively,
"Vaughn"). Vaughn then removed the action to this
court, on grounds that the parties are diverse. Subsequently,
it filed a ten-count third-party complaint against several
entities, none of which was a party to its contracts with the
Unity School District.
those third-party defendants - the Town of Unity and School
Administrative Unit #6 - now move to dismiss all claims
advanced against them, asserting that none states a viable
cause of action. See generally Fed.R.Civ.P. 12(b)(6). Vaughn
objects. For the reasons discussed, those motions are
ruling on a motion to dismiss under Rule 12(b)(6), the court
must "accept as true all well-pleaded facts set out in
the complaint and indulge all reasonable inferences in favor
of the pleader." SEC v. Tambone, 597 F.3d 436,
441 (1st Cir. 2010). Although the complaint need only contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief, " Fed.R.Civ.P.
8(a)(2), it must allege each of the essential elements of a
viable cause of action and "contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face, " Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation and internal punctuation
other words, "a plaintiff's obligation to provide
the grounds' of his entitlement to relief' requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Instead, the facts alleged in the complaint must, if
credited as true, be sufficient to "nudge"
plaintiff's claims "across the line from conceivable
to plausible." Id. at 570. If, however, the
"factual allegations in the complaint are too meager,
vague, or conclusory to remove the possibility of relief from
the realm of mere conjecture, the complaint is open to
dismissal." Tambone, 597 F.3d at 442.
the allegations of the third-party complaint as true - as the
court must at this juncture - the relevant facts are as
follows. In 2009, the New Hampshire Department of Education
voted to close the Town of Unity's elementary school
because it failed to comply with state building, fire safety,
and educational requirements. In 2010, Scott Vaughn
volunteered to donate his design services to assist the Unity
School District in preparing a proposal to construct a new
elementary school and to secure voter approval of a bond to
fund the project.
August of 2010, that bond was approved by the voters of the
school district. Subsequently, the Unity School District
entered into an Architectural Services Contract with Vaughn
Associates, under which Vaughn Associates agreed to design
the new elementary school. Shortly thereafter, the Unity
School District entered into a second contract with Vaughn
Associates, pursuant to which Vaughn Associates would act as
the project's construction manager. Once the project got
underway, however, it was plagued by difficulties and delays.
Eventually, in January of 2014, Vaughn Associates resigned as
construction manager and, approximately two months later, it
sent notice to the Unity School District terminating the
Architectural Services Agreement. In terminating that
contract, Vaughn Associates cited "impracticability,
frustration of purpose, lack of good faith and fair dealing,
and non-payment." Third-Party Complaint (document no. 8)
at para. 125.
March of 2015, the Unity School District filed suit in state
court against Vaughn Associates, Inc. and Scott Vaughn,
advancing claims of negligence, breach of contract, negligent
misrepresentation, and violations of New Hampshire's
Consumer Protection Act. Vaughn removed the action, invoking
this court's diversity subject matter jurisdiction. See
generally 28 U.S.C. § 1332. And, as noted above, Vaughn
subsequently filed a tencount third-party complaint against
School Administrative Unit #6 ("SAU #6"), Excel
Mechanical, Inc., Superior Walls of the Hudson Valley, and
the Town of Unity, New Hampshire.
before the court are motions filed by SAU #6 and the Town of
Unity, seeking dismissal of all claims asserted against them.
Counsel for the parties presented their arguments in legal
memoranda, as well as at a hearing before the court on
December 1, 2015.
addressing the specifics of the pending motions to dismiss,
it probably bears noting that, with the exception of its
claim against the Town of Unity for intentional interference
with contractual relations, Vaughn does not seek to recover
damages for actual losses or injuries it sustained. Instead,
Vaughn seeks contribution or, better still, complete
indemnification from both the Town and SAU #6 for harms
sustained by the Unity School District and any damages Vaughn
may, in the future, owe to the Unity School District. See,
e.g., Third-Party Complaint at paras. 138, 144, 205, and 212.
Vaughn has clearly, repeatedly, and unambiguously proclaimed
that it is (with the one exception noted above) pursuing
claims for contribution and implied indemnification.
Accordingly, its claims must be treated as such (despite
allegations in the third-party complaint that might suggest
Vaughn is pursuing the third-party defendants for harm it
suffered as a consequence of their allegedly tortious
Claims Against SAU #6.
advances two claims against SAU #6: one for statutory
contribution, pursuant to N.H. Rev. Stat. Ann.
("RSA") 507:7-f (count one); and one for common law
indemnity (count two). Third-Party Complaint at paras. 138
and 144. See also Vaughn's Memorandum in Opposition
(document no. 30-1) at 2-3 ("[Vaughn's] Third-Party
Complaint against SAU seeks contribution and/or indemnity for
the actions of SAU which caused or contributed to the Project
issues and delays."). The New Hampshire Supreme Court
has explained the distinction between contribution and
indemnification as follows:
[I]ndemnity is distinguished from contribution because
whereas indemnity shifts the entire burden of loss from one
tortfeasor who has been compelled to pay it, to another whose
act of negligence is the primary cause of the injured
party's harm, contribution is partial payment made by
each or any of jointly or severally liable tortfeasors who
share a common liability to an injured party.
Leisure Life Indus., 165 N.H. 324, 330 (2013) (citations and