Androscoggin Valley Regional Refuse Disposal District v. R.H. White Construction Co., Inc.

MOTION to Dismiss for Failure to State a Claim as to Count II and Part of Count III of Sanborn Head & Associates' Counterclaim

D.N.H.October 21, 2016

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE ANDROSCOGGIN VALLEY REGIONAL REFUSE DISPOSAL DISTRICT, Plaintiff, v. R.H. WHITE CONSTRUCTION CO., INC., Defendant, And R.H. WHITE CONSTRUCTION CO., INC., Third-Party Plaintiff, v. SANBORN, HEAD & ASSOCIATES, INC., CDR MAGUIRE INC., ELECTRICAL INSTALLATIONS, INC. EII, FUSS & O’NEILL, INC., PSB INDUSTRIES, INC., UNISON SOLUTIONS, INC., CMA ENGINEERS, INC., ATLAS COPCO NORTH AMERICA, LLC, as successor to Houston Service Industries, Inc., and STEARNS CONRAD AND SCHMIDT, CONSULTING ENGINEERS, INC., d/b/a SCS Engineers, Third-Party Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.: 1:15-cv-00434-LM R.H. WHITE CONSTRUCTION CO., INC.’S MOTION TO DISMISS COUNT II AND PART OF COUNT III OF COUNTERCLAIM FILED BY SANBORN, HEAD & ASSOCIATES, INC. NOW COMES the Defendant / Third-Party Plaintiff R.H. White Construction Co., Inc. (“RH White”), by and through its attorneys, Primmer Piper Eggleston & Cramer PC, and moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Count II (Unjust Enrichment/Quantum Meruit) and part of Count III (Indemnification) of the Counterclaim filed Case 1:15-cv-00434-LM Document 92 Filed 10/21/16 Page 1 of 5 2 by Third-Party Defendant Sanborn, Head & Associates, Inc. (“SHA”). In support thereof, RH White states as follows: 1. This case involves the design and construction of a landfill gas processing station, together with a natural gas meter and regulating station, and all the associated pipelines for a completed gas plant (the “Project” or “LGP Station”) at the Mount Carberry Landfill in Success, New Hampshire, owned and operated by the Plaintiff, Androscoggin Valley Regional Refuse Disposal District (“AVRRDD”). 2. One of the third-party defendants, SHA, has filed Counterclaims against RH White setting forth three causes of action. Two of those claims are the subject of this motion to dismiss: Count II, asserting quasi-contract claims of unjust enrichment and quantum meruit, and the portion of Count III asserting an implied right to indemnification. 3. Count II and the implied indemnity portion of Count III within SHA’s Counterclaim should be dismissed for failing to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). SHA’s quasi-contract claims in Count II and the implied indemnification obligations at issue in Count III are displaced by the express written agreement between the parties. 4. A memorandum of law in support of this motion to dismiss has been filed along with this motion pursuant to Local Rule 7.1(a)(2). WHEREFORE, Defendant RH White respectfully requests that this Honorable Court: A. Grant this motion to dismiss; B. Dismiss Count II of SHA’s Counterclaim; C. Dismiss the implied indemnity claim within Count III of SHA’s Counterclaim; and D. Grant any other relief it deems just and proper. Case 1:15-cv-00434-LM Document 92 Filed 10/21/16 Page 2 of 5 3 Date: October 21, 2016 By: Respectfully submitted, R.H. WHITE CONSTRUCTION CO., INC., By its attorneys, PRIMMER PIPER EGGLESTON & CRAMER PC, /s/ Thomas J. Pappas Thomas J. Pappas, Esq. (N.H. Bar No. 4111) Adam R. Mordecai, Esq. (N.H. Bar No. 17727) P.O. Box 3600 Manchester, NH 03105-3600 (603) 626-3300 tpappas@primmer.com amordecai@primmer.com CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has this day been forwarded via the Court’s Electronic Case Filing System to all counsel of record listed on the attached service list. Dated: October 21, 2016 By: /s/Thomas J. Pappas Thomas J. Pappas, Esq. (N.H. Bar No. 4111) 2577040_1 Case 1:15-cv-00434-LM Document 92 Filed 10/21/16 Page 3 of 5 4 Androscoggin Valley Regional Refuse Disposal District v. R.H. White Construction Co., Inc., et al. CASE #: 1:15-cv-00434-LM Service List PARTY COUNSEL ANDROSCOGGIN VALLEY REGIONAL REFUSE DISPOSAL DISTRICT Plaintiff / Counterclaim Defendant Derek D. Lick, Esq. dlick@sulloway.com ATLAS COPCO NORTH AMERICA, LLC, as successor to Houston Service Industries, Inc. Third-Party Defendant R. Matthew Cairns, Esq. cairns@gcglaw.com CMA ENGINEERS, INC. Third-Party Defendant Richard C. Nelson, Esq. rnelson@devinemillimet.com CDR MAGUIRE INC. Third-Party Defendant Third-Party Counterclaim Plaintiff as to R.H. White Andrew Ross Ferguson, Esq. aferguson@coughlinbetke.com Emily G. Coughlin, Esq. ecoughlin@coughlinbetke.com Matthew J. Lynch mlynch@coughlinbetke.com ELECTRICAL INSTALLATIONS, INC. EII Third-Party Defendant Third-Party Counterclaim Plaintiff as to R.H. White John P. Graceffa, Esq. jgraceffa@morrisonmahoney.com Kevin Truland, Esq. ktruland@morrisonmahoney.com Brian A. Suslak, Esq. (Pro Hac Vice) bsuslak@morrisonmahoney.com FUSS & O’NEILL, INC. Third-Party Defendant Jeffrey L. Alitz, Esq. jeffrey.alitz@leclairryan.com Eric Martignetti, Esq. eric.martignetti@leclairryan.com PSB INDUSTRIES, INC. Third-Party Defendant Kevin P. Polansky kevin.polansky@nelsonmullins.com William J. Kelly, Jr., Esq. (Pro Hac Vice) bill@kellyfirm.com Case 1:15-cv-00434-LM Document 92 Filed 10/21/16 Page 4 of 5 5 SANBORN, HEAD & ASSOCIATES, INC. Third-Party Defendant Third-Party Counterclaim Plaintiff as to R.H. White Michael E. Coghlan, Esq. mcoghlan@donovanhatem.com Cheryl A. Waterhouse (Pro Hac Vice) cwaterhouse@donovanhatem.com STEARNS CONRAD AND SCHMIDT, CONSULTING ENGINEERS, INC., d/b/a SCS Engineers Third-Party Defendant William C. Saturley, Esq. wsaturley@preti.com Nathan Reed Fennessy, Esq. nfennessy@preti.com UNISON SOLUTIONS, INC. Third-Party Defendant Third-Party Counterclaim Plaintiff as to R.H. White Lawrence B. Gormley lgormley@hpgrlaw.com Case 1:15-cv-00434-LM Document 92 Filed 10/21/16 Page 5 of 5 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE ANDROSCOGGIN VALLEY REGIONAL REFUSE DISPOSAL DISTRICT, Plaintiff, v. R.H. WHITE CONSTRUCTION CO., INC., Defendant, And R.H. WHITE CONSTRUCTION CO., INC., Third-Party Plaintiff, v. SANBORN, HEAD & ASSOCIATES, INC., CDR MAGUIRE INC., ELECTRICAL INSTALLATIONS, INC. EII, FUSS & O’NEILL, INC., PSB INDUSTRIES, INC., UNISON SOLUTIONS, INC., CMA ENGINEERS, INC., ATLAS COPCO NORTH AMERICA, LLC, as successor to Houston Service Industries, Inc., and STEARNS CONRAD AND SCHMIDT, CONSULTING ENGINEERS, INC., d/b/a SCS Engineers, Third-Party Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.: 1:15-cv-00434-LM R.H. WHITE CONSTRUCTION CO., INC.’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COUNT II AND PART OF COUNT III OF COUNTERCLAIM FILED BY SANBORN, HEAD & ASSOCIATES, INC. NOW COMES the Defendant / Third-Party Plaintiff R.H. White Construction Co., Inc. (“RH White”), by and through its attorneys, Primmer Piper Eggleston & Cramer PC, and files the following memorandum of law in support of its motion filed pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Count II (Unjust Enrichment/Quantum Meruit) and part of Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 1 of 12 2 Count III (Indemnification) of the Counterclaims filed by Third-Party Defendant Sanborn, Head & Associates, Inc. (“SHA”). INTRODUCTION AND BACKGROUND This case involves the design and construction of a landfill gas processing station, together with a natural gas meter and regulating station, and all the associated pipelines for a completed gas plant (the “Project” or “LGP Station”) at the Mount Carberry Landfill in Success, New Hampshire, owned and operated by the Plaintiff, Androscoggin Valley Regional Refuse Disposal District (“AVRRDD”). See Pl’s First Amended Complaint at p. 2 (Doc. 77); see also SHA’s Counterclaim at ¶¶ 3-5 (Doc. 42). In September, 2011, RH White and AVRRDD entered into a design/build agreement for the construction of the LGP Station. Counterclaim at ¶ 5 (Doc. 42). RH White and SHA thereafter entered into a Subconsultant Agreement for the Project under which SHA would provide engineering services needed for the design of the LGP Station. Counterclaim at ¶ 6 (Doc. 42). RH White filed third-party complaints against SHA and other entities responsible for designing various elements of the LGP Station. SHA, in turn, filed a three-count counterclaim against RH White. Counterclaim (Doc. 42). RH White now seeks to dismiss Count II of that Counterclaim, alleging “unjust enrichment/quantum meruit,” and the implied indemnity claim within Count III (which asserts claims for both express and implied indemnity). Those claims fail as a matter of law to state a claim upon which relief can be granted and thus should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 2 of 12 3 LEGAL STANDARD The decisions of the United States Supreme Court in Bell Atlantic Corp. v. Twombly, et al., 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009), guide this Court’s review of a motion to dismiss. Under these decisions, the holdings of which apply to all civil actions, Iqbal, 129 S.Ct. at 1953, the Plaintiff’s Amended Complaint “must contain sufficient factual matter... to state a claim to relief that is plausible on its face.” Id. at 1949 (quotation omitted). The pleading standard of Federal Rule 8 does not require “detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Where the facts in a complaint do not permit a court to “infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘shown’ - that the pleader is entitled to relief.” Id. (citing Fed. R. Civ. P. 8(a)(2)). In weighing the Plaintiff’s Amended Complaint under the Twombly and Iqbal standards, this Court will assume the truth of all well-pleaded facts, see Iqbal, 129 S.Ct. at 1949-50, but it is “not bound [ ] to credit ‘bald assertions, unsupportable conclusions, and opprobrious epithets’ woven into the fabric of the complaint.” In re Colonial Mortgage Bankers Corp. v. Lopez- Stubbe, 324 F.3d 12, 15 (1st Cir. 2003); see also Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 224 (1st Cir. 2004) (“We accept the plaintiff’s well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff... [but] we reject claims that are made in the complaint if they are ‘bald assertions’ or ‘unsupportable conclusion.’”) (citing Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002)). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S. at 557). Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 3 of 12 4 ARGUMENT A. The quasi-contract claim set forth at Count II of SHA’s Counterclaim fails to set forth a cognizable cause of action because any implied contracts were entirely displaced by the parties’ express written agreement. It is well-settled New Hampshire law that a court “cannot allow recovery under a theory of unjust enrichment when there is a valid, express contract covering the subject matter at hand.” Axenics, Inc. v. Turner Constr. Co., 164 N.H. 659, 669 (2013). Since SHA has alleged that there was a valid, express contract between itself and RH White, see Counterclaim at ¶ 6, 14-17 (setting forth breach of contract claim) (Doc. 42), SHA’s quasi-contract claim for “unjust enrichment/quantum meruit” should be dismissed as failing to state a claim upon which relief can be granted. See id.; see also Fed. R. Civ. P. 12(b)(6). As a preliminary matter, this Court can address and dispose of the entirety of Count II, even though the caption alleges both quantum meruit and unjust enrichment. 1 Both theories are treated interchangeably under New Hampshire law. See E. Elec. Corp. v. FERD Constr., Inc., 2005 DNH 164 at 6 n1, 8 (D.N.H. 2005) (unpublished) (“New Hampshire cases do not clearly differentiate between theories of unjust enrichment and quantum meruit... Theories of unjust enrichment and quantum meruit are based on the equitable principle that the defendant has enriched itself at the expense of another, or in other words, has received a benefit for which it has not paid.”). Quantum meruit and unjust enrichment are both equitable remedies predicated upon theories of quasi or implied contract. Compare State v. Haley, 94 N.H. 69, 72 (1946) (stating that quantum meruit refers to contracts “implied in fact or to obligations imposed by law... for reasons dictated by reason and justice.”) with Cohen v. Frank Developers, Inc., 118 N.H. 512, 1 SHA treats both quantum meruit and unjust enrichment alike - they are included in the same count and the caption lumps them together as “unjust enrichment/quantum meruit.” The Court should treat those claims in the same manner and dispose of them together. Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 4 of 12 5 518 (1978) (providing that doctrine of unjust enrichment “is that one shall not be allowed to profit or enrich himself at the expense of another contrary to equity.”). Although SHA has asserted claims for both unjust enrichment and quantum meruit in Count II, they can be disposed of together because they are inextricably related. Count II should be dismissed as failing to state a claim upon which relief can be granted. New Hampshire law provides that an express contract between parties will displace any quasi- contract claims between them touching upon the subject matter covered by that contract. “[O]ne cannot recover in quasi-contract when an express contract exists.” Axenics, Inc., 164 N.H. at 669; see also Turner v. Shared Towers VA, LLC, 167 N.H. 196, 202 (2014) (quoting and relying upon Axenics). “Where there is a valid express contract between the parties... the law will not imply a quasi-contract.” Tentindo v. Locke Lake Colony Ass’n, 120 N.H. 593, 597 (1980). As the New Hampshire Supreme Court has recognized, “[t]his is so because ‘[r]estitution is... subordinate to contract as an organizing principle of private relationships, and the terms of an enforceable agreement normally displace any claim of unjust enrichment within their reach.’” Axenics, Inc., 164 N.H. at 669 (quoting Restatement (Third) of Restitution and Unjust Enrichment § 2, cmt. c at 17 (2011)) (emphasis added). Where an express contract exists, “the terms of that agreement may not be varied by a legal fiction.” Tentindo, 120 N.H. at 597. Count II acknowledges SHA’s written agreement with RH White, but claims that RH White was unjustly enriched by services rendered by SHA pursuant to that contract for which it alleges RH White did not pay. Counterclaim at ¶ 18-24 (Doc. 42). This is precisely the sort of quasi-contract claim that New Hampshire law disallows when there is a valid written agreement between the parties. See, e.g., Axenics, Inc., 164 N.H. at 669. Because the comprehensive Subconsultant Agreement between SHA and RH White governs any work in the LPG Station, Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 5 of 12 6 any quasi-contract claims concerning work for the design of that facility are displaced as a matter of law and should be dismissed. Turner, 167 N.H. at 202 (A claim of unjust enrichment “may not supplant the terms of an agreement,”) (citing Axenics, 164 N.H. at 669). A number of other jurisdictions have found that “the concept of unjust enrichment has no application where an express written contract exists.” Servewell Plumbing, LLC v. Summit Contractors, Inc., 210 S.W.3d 101, 112 (Ark. 2005); see also Stratton v. Inspiration Consol. Copper Co., 683 P.2d 327, 330 (Ariz. Ct. App. 1984) (“[T]he doctrine of unjust enrichment has no application to the owner where an explicit contract exists between the subcontractor and the prime contractor.”); Haggard Drilling Inc. v. Greene, 236 N.W.2d 841, 846 (Neb. 1975); Farwest Steel Corp. v. Mainline Metal Works, Inc., 741 P.2d 58, 64 (Wash. Ct. App. 1987). One court reasoned that: As in physics, two solid bodies cannot occupy the same space at the same time, so in law and common sense, there cannot be an express and an implied contract for the same thing, existing at the same time. This is an axiomatic truth. It is only where parties do not expressly agree, that the law interposes and raises a promise. R.P. Redd v. L&A Contracting Co., 151 So.2d 205, 208 (Miss. 1983) (quoting Walker v. Brown and Hollingworth, 28 Ill. 378 (Ill. 1862)). This Court has recognized that rule in several recent decisions. See Lovy v. Fed’l Nat. Mortg. Ass’n, 2014 WL 1663137, *7-8, No. 13-CV-399-SM (D.N.H. Apr. 28, 2014) (unreported) (noting that unjust enrichment is “quite limited in its application” and that it “is a well-established principle that the court ordinarily cannot allow recovery under a theory of unjust enrichment where there is a valid, express contract covering the subject matter at hand.”); Fogle v. Wilmington Finance, 2011 WL 320572, *8, No. 08-CV- 388-JD (D.N.H. Jan. 31, 2011) (unreported) (dismissing claims for unjust enrichment and quantum meruit because such claims “will not lie ‘where there is a valid express contract Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 6 of 12 7 between the parties.”). See also Servewell Plumbing, LLC, 210 S.W.3d at 112 (“the concept of unjust enrichment has no application when an express written contract exists.”) (citation omitted) (“‘settled principle’ that ‘the existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi-contract for events arising out of the same subject matter.’”) Id. (quoting U.S. East Telecommunications, Inc. v. U.S. West Communications Services, Inc., 38 F.3d 1289, 1296 (2d Cir. 1994)). Since there was a valid, express agreement between RH White and SHA for design services for the LGP Station at issue in Count II, see Counterclaim at ¶6, 14-17 (setting forth breach of contract claim) (Doc 42), SHA cannot maintain its claim for unjust enrichment or quantum meruit for the same work covered by that contract. Count II of SHA’s Counterclaim, which sets forth a quasi-contract claim based upon RH White’s alleged failure to pay SHA as called for in the parties’ written agreement therefore fails to state a claim upon which relief can be granted and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). B. The implied indemnity claim set forth at Count III of SHA’s Counterclaim fails to set forth a cognizable cause of action because any such claim was entirely displaced by the parties’ express written indemnification agreement. In Count III of its Counterclaim, SHA sets forth causes of action for both express and implied indemnity. The latter of those claims, seeking implied indemnification at law and outside of the parties’ contract, should be dismissed. As with the quasi-contract claims discussed above, SHA’s claim for implied indemnification has been displaced as a matter of law by the parties’ express agreement on the subject. That portion of Count III of the Counterclaim seeking implied indemnification should therefore also be dismissed for failing to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 7 of 12 8 Although the New Hampshire Supreme Court has repeatedly determined that an express contract will displace any related quasi-contract claims, see Axenics, Inc., 164 N.H. at 669; Turner, 167 N.H. at 202; Tentindo; 120 N.H. at 597, the Court has not had an opportunity to apply that general rule to claims for indemnification. Nevertheless, given the general rule in New Hampshire that a written agreement between the parties will displace any quasi-contractual claims for the same subject matter, there is no reason to believe that the Supreme Court would hold differently with respect to only indemnity provisions. This Court should apply the rule of Axenics and find that SHA’s claim for implied indemnification is displaced by the express written indemnification provision upon which SHA also relies. Courts from other jurisdictions have done just that. In Delaware, where “parties to a contract have entered into a written agreement expressly setting forth one party's indemnifying liability, there is no room for any enlargement of that obligation by implication.” Rock v. Delaware Elec. Co-op., Inc., 328 A.2d 449, 453 (Del. Super. Ct. 1974). See also Howard, Needles, Tammen and Bergendoff v. Steers, Perini & Pomeroy, Del.Super., 312 A.2d 621 (1973); Waller v. J.E. Brenneman Company, Del.Super., 307 A.2d 550 (1973). In Wyoming, if the contract sets out an indemnity agreement between the parties, as SHA alleges its contract with RH White does, then [t]he area of indemnity has been preempted by an express agreement setting out the extent and limitation of the indemnity understanding . We do not think that the indemnity agreement of the parties should be expanded, enlarged, or rewritten for them. Implied theories of indemnity are not viable in the face of an express indemnity agreement. Wyoming Johnson, Inc. v. Stag Indus., Inc., 662 P.2d 96, 101 (Wyo. 1983) (emphasis added) (citing Frederick v. Hess Oil Virgin Islands Corporation, 492 F.Supp. 1338 (D.C.V.I.1980). See also Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp., 453 F.Supp. 527 Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 8 of 12 9 (D.C.W.D.Pa.1978); City and Borough of Juneau v. Alaska Electric Light & Power Company, Alaska, 622 P.2d 954 (1981); County of Alameda v. Southern Pacific Company, 55 Cal.2d 479, 11 Cal.Rptr. 751, 360 P.2d 327 (1961); Quilico v. Union Oil Co. of California, 58 Ill.App.3d 87, 15 Ill.Dec. 784, 374 N.E.2d 219 (1978); Eazor Express, Inc. v. J.R. Barkley, 441 Pa. 429, 272 A.2d 893 (1971)). The First Circuit Court of Appeals has reached a similar conclusion in a case involving fidelity and surety bonds and cited favorably to the proposition that “resort to implied indemnity principles is improper when an express indemnification contract exists.” See Fireman’s Ins. Co. of Newark, N.J. v. Todesca Equip. Co., Inc., 310 F.3d 32, 37 n.7 (1st Cir. 2007) (noting that other courts have “pronounced similar holdings” and citing to Fidelity & Deposit Co. of Maryland v. Bristol Steel & Iron Works, Inc., 722 F.2d 1160, 1163 (4th Cir. 1983)). The New Hampshire Supreme Court has found that express contractual provisions control over implied agreements. Here, SHA’s alleges that there was an express indemnification provision between the parties governing the same subject as its implied indemnification claim. Consequently, SHA’s claim for implied indemnification found within Count III of its Counterclaim is displaced and thus should be dismissed for failing to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). CONCLUSION Count II of SHA’s Counterclaim and the implied indemnity portion of Count III should be dismissed for failing to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). SHA’s quasi-contract claims at Count II and the implied indemnification obligations at issue in Count III are displaced by the express written agreement between the parties. RH White’s motion to dismiss should therefore be granted. Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 9 of 12 10 Date: October 21, 2016 By: Respectfully submitted, R.H. WHITE CONSTRUCTION CO., INC., By its attorneys, PRIMMER PIPER EGGLESTON & CRAMER PC, /s/ Thomas J. Pappas Thomas J. Pappas, Esq. (N.H. Bar No. 4111) Adam R. Mordecai, Esq. (N.H. Bar No. 17727) P.O. Box 3600 Manchester, NH 03105-3600 (603) 626-3300 tpappas@primmer.com amordecai@primmer.com CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has this day been forwarded via the Court’s Electronic Case Filing System to all counsel of record listed on the attached service list. Dated: October 21, 2016 By: /s/Thomas J. Pappas Thomas J. Pappas, Esq. (N.H. Bar No. 4111) 2576844_1 Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 10 of 12 11 Androscoggin Valley Regional Refuse Disposal District v. R.H. White Construction Co., Inc., et al. CASE #: 1:15-cv-00434-LM Service List PARTY COUNSEL ANDROSCOGGIN VALLEY REGIONAL REFUSE DISPOSAL DISTRICT Plaintiff / Counterclaim Defendant Derek D. Lick, Esq. dlick@sulloway.com ATLAS COPCO NORTH AMERICA, LLC, as successor to Houston Service Industries, Inc. Third-Party Defendant R. Matthew Cairns, Esq. cairns@gcglaw.com CMA ENGINEERS, INC. Third-Party Defendant Richard C. Nelson, Esq. rnelson@devinemillimet.com CDR MAGUIRE INC. Third-Party Defendant Third-Party Counterclaim Plaintiff as to R.H. White Andrew Ross Ferguson, Esq. aferguson@coughlinbetke.com Emily G. Coughlin, Esq. ecoughlin@coughlinbetke.com Matthew J. Lynch mlynch@coughlinbetke.com ELECTRICAL INSTALLATIONS, INC. EII Third-Party Defendant Third-Party Counterclaim Plaintiff as to R.H. White John P. Graceffa, Esq. jgraceffa@morrisonmahoney.com Kevin Truland, Esq. ktruland@morrisonmahoney.com Brian A. Suslak, Esq. (Pro Hac Vice) bsuslak@morrisonmahoney.com FUSS & O’NEILL, INC. Third-Party Defendant Jeffrey L. Alitz, Esq. jeffrey.alitz@leclairryan.com Eric Martignetti, Esq. eric.martignetti@leclairryan.com PSB INDUSTRIES, INC. Third-Party Defendant Kevin P. Polansky kevin.polansky@nelsonmullins.com William J. Kelly, Jr., Esq. (Pro Hac Vice) bill@kellyfirm.com Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 11 of 12 12 SANBORN, HEAD & ASSOCIATES, INC. Third-Party Defendant Third-Party Counterclaim Plaintiff as to R.H. White Michael E. Coghlan, Esq. mcoghlan@donovanhatem.com Cheryl A. Waterhouse (Pro Hac Vice) cwaterhouse@donovanhatem.com STEARNS CONRAD AND SCHMIDT, CONSULTING ENGINEERS, INC., d/b/a SCS Engineers Third-Party Defendant William C. Saturley, Esq. wsaturley@preti.com Nathan Reed Fennessy, Esq. nfennessy@preti.com UNISON SOLUTIONS, INC. Third-Party Defendant Third-Party Counterclaim Plaintiff as to R.H. White Lawrence B. Gormley lgormley@hpgrlaw.com Case 1:15-cv-00434-LM Document 92-1 Filed 10/21/16 Page 12 of 12