United States District Court, D. New Hampshire
T. Dilworth, Esq.
Demetrio F. Aspiras, III, Esq.
Melissa A. Hewey, Esq.
Kenneth B. Walton, Esq.
Lindsey D. Smith, Esq.
Kristin Hartman, Esq.
Michael P. Sams, Esq.
H. Conroy, Esq.
Matthew V. Burrows, Esq.
Samantha D. Elliott, Esq.
B. Livernois, Esq.
J. McAuliffe United States District Judge.
2010, the Unity School District hired Vaughn Associates and
Scott Vaughn (collectively, “Vaughn”) to design
and oversee construction of a new elementary school in Unity,
New Hampshire. The project did not proceed as the School
District had envisioned. Construction was beset with delays
and forced work stoppages (by, for example, the state fire
marshal) and costs ballooned from the $4.7 million that
Vaughn had promised to more than $9 million. Eventually,
Vaughn's contracts with the School District were
terminated and the School District sued Vaughn for damages.
Those claims were settled and, in April of 2017, the School
District's suit against Vaughn was dismissed, by
agreement of the parties. See Stipulation of Dismissal
(document no. 100).
remain are Vaughn's third-party claims against two
subcontractors on the project: Excel Mechanical, Inc., and
Superior Walls of the Hudson Valley, Inc. Pending before the
court is Excel Mechanical's motion for summary judgment,
in which Excel asserts that it is entitled to judgment as a
matter of law as to each of the three state law claims Vaughn
advances against it. Vaughn objects.
reasons discussed, Excel's motion for summary judgment is
ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most
favorable to the nonmoving party, and to draw all reasonable
inferences in the nonmoving party's favor.”
Block Island Fishing, Inc. v. Rogers, 844 F.3d 358,
360 (1st Cir. 2016) (citation omitted). Summary judgment is
appropriate when the record reveals “no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). In
this context, a factual dispute “is ‘genuine'
if the evidence of record permits a rational factfinder to
resolve it in favor of either party, and ‘material'
if its existence or nonexistence has the potential to change
the outcome of the suit.” Rando v. Leonard,
826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
Consequently, “[a]s to issues on which the party
opposing summary judgment would bear the burden of proof at
trial, that party may not simply rely on the absence of
evidence but, rather, must point to definite and competent
evidence showing the existence of a genuine issue of material
fact.” Perez v. Lorraine Enters., 769 F.3d 23,
29-30 (1st Cir. 2014). In other words, “a laundry list
of possibilities and hypotheticals” and
“[s]peculation about mere possibilities, without more,
is not enough to stave off summary judgment.” Tobin
v. Fed. Express Corp., 775 F.3d 448, 451-52 (1st Cir.
2014). See generally Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
factual background of this case has been set forth in prior
orders of the court. See, e.g., Order on Third-Party
Defendants' Motion to Dismiss (document no. 42); Order on
Defendants' Motion for Summary Judgment (document no.
55). It need not be recounted again in detail. It is
sufficient to note the following. In 2010, the Unity School
District entered into two contracts with Vaughn to design and
oversee construction of a new elementary school. Construction
began in late 2011. Then, in August of 2012, the Unity School
District hired Excel Mechanical to perform rough and finish
plumbing services. On the same date, the School District
entered into a separate contract with William Knight, d/b/a
LSE (“LSE”), to perform HVAC and mechanical work
on the project. LSE, in turn, entered into a subcontract with
Excel to provide “design drawings with engineer's
stamp for both plumbing and mechanical.”
upshot of all of this is the following: Vaughn had two
contracts with the Unity School District. It did not,
however, have any contractual relationship with Excel;
Excel's contracts were with the School District itself,
and with LSE. Moreover, Excel's contractual obligation to
provide mechanical drawings stamped by a licensed engineer -
the critical element of Vaughn's claims - ran to LSE, not
Vaughn. See AIA Standard Agreement between Contractor and
Subcontractor (document no. 139-7) at Article 8, and
“Notes and Clarifications” to Contract (document
no. 139-8) at 3.
third-party complaint, Vaughn alleges that it sustained
compensable damages when it relied, both reasonably and to
its detriment, upon allegedly false and material
misstatements made by Excel concerning the presence of an
in-house mechanical engineer. Specifically, Vaughn alleges:
Excel represented to VAI [Vaughn] that it had a mechanical
engineer who could complete the mechanical components of