Dlb Associates Consulting Engineers, P.C. v. Shlemmer Algaze & Associates et al

BRIEF in Opposition

D.N.J.May 1, 2017

HARRIS BEACH PLLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: 212-687-0100 Facsimile: 212-687-0659 Counsel for Third-Party Defendant/Counterclaim Plaintiff Orr Partners, LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY DLB ASSOCIATES CONSULTING ENGINEERS, P.C., Plaintiff, v. SHLEMMER ALGAZE & ASSOCIATES and ORR PARTNERS, LLC, Defendants. Civil Action No. 3:15-cv-00689-MAS-LHG DLB ASSOCIATES CONSULTING ENGINEERS, P.C., Third-Party Plaintiff, v. ORR PARTNERS, LLC, Third-Party Defendant. THIRD-PARTY DEFENDANT/ COUNTERCLAIM PLAINTIFF ORR PARTNERS, LLC’S BRIEF IN OPPOSITION TO PLAINTIFF/COUNTERCLAIM DEFENDANT DLB ASSOCIATES’ MOTION TO DISMISS COUNTERCLAIMS David J. Dino HARRIS BEACH PLLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: 212-687-0100 Email: ddino@harrisbeach.com Counsel for Third-Party Defendant/ Counterclaim Plaintiff Orr Partners, LLC Motion Day: May 15, 2017 Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 1 of 19 PageID: 3268 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF RELEVANT FACTS ....................................................................................... 1 I. Relevant Factual Background .......................................................................................... 1 II. Relevant Procedural Background .................................................................................... 3 ARGUMENT .................................................................................................................................. 4 I. ORR’S OVERSTATEMENT OF THE LIEN SHOULD BE ADJUDICATED BY THIS COURT ................................................................................6 A. This Court Has Jurisdiction Over Orr’s Willful Overstatement of Construction Lien Claim .............................................................................................7 B. DLB Fails To Cognizably Argue Against Orr’s Right To Bring The Willful Overstatement Claim ......................................................................................8 II. ORR HAS PROPERLY PLEADED ITS NEGLIGENT MISREPRESENTATION CLAIM AS AN INDEPENDENT DUTY IS NOT AN ELEMENT OF THIS CLAIM ......................................................................... 9 CONCLUSION ............................................................................................................................. 14 Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 2 of 19 PageID: 3269 ii TABLE OF AUTHORITIES Page Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 5 Avdel v. Mecure, 58 N.J. 264 (1971) .............................................................................................. 7 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................................... 4, 5 Conley v. Gibson, 355 U.S. 41 (1957) ............................................................................................ 5 Creative Bus. Decisions, Inc. v. Magnum Comm’ns. Ltd., Inc., 276 N.J. Super. 560 (Super. Ct. 1993) ........................................................................................ 8 Green v. Morgan Properties, 215 N.J. 431 (2013) ....................................................................... 12 H. Rosenblum, Inc. v. Adler, 93 N.J. 324 (1983) .......................................................................... 10 Hardaway Co. v. Parsons, Brinckerhoff, Quade & Douglas, Inc., 267 Ga. 424 (1997) ................................................................................................................... 10 Henderson v. Volvo Cars of N. Am., LLC, No. CIV. 09-4146 (DMC), 2010 WL 2925913 (D.N.J. July 21, 2010) .......................................................................... 12, 13 In re Mut. Ben. Life Ins. Co., 258 N.J. Super. 356 (App. Div. 1992) ............................................. 7 In re Tower Air, Inc., 416 F.3d 229 (3d Cir. 2005) ........................................................................ 5 Karu v. Feldman, 119 N.J. 135 (1990) ......................................................................................... 10 Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993) ............................................................................. 4 Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) .................................................................................................................... 5 Marquis Towers, Inc. v. Highland Grp., 265 Ga.App. 343 (2004) .............................................. 10 McTernan v. City of York, PA, 564 F.3d 636 (3d Cir. 2009) .......................................................... 5 Mulheron v. Philadelphia Eagles, No. 12-1753 MAS TJB, 2013 WL 211349 (D.N.J. Jan. 18, 2013) ................................................................................ 4, 5 Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 3 of 19 PageID: 3270 iii Peruto v. TimberTech Ltd., 126 F. Supp. 3d 447 (D.N.J. 2015) ..................................................... 9 Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008) ........................................................... 5 PHL Variable Ins. Co. v. Faye Keith Jolly Irrevocable Life Ins. Trust ex rel. Shapiro, 460 F. App’x 899 (11th Cir. 2012) ........................................................ 10 PHL Variable Ins. Co. v. Jolly, 800 F. Supp. 2d 1205 (N.D. Ga. 2011) ..................................................................................... 10 S. Broward Hosp. Dist. v. MedQuist Inc., 516 F. Supp. 2d 370 (D.N.J. 2007) ........................................................................................... 12 Shaffer v. Heitner, 433 U.S. 186 (1977) ......................................................................................... 7 Thomas v. Indep. Twp., 463 F.3d 285 (3d Cir. 2006) ..................................................................... 5 Federal Statutes Fed. R. Civ. P. 8(a)(2) ..................................................................................................................... 4 State Statutes 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (2d ed. 1990) ................................................................... 4 Statutes N.J.S.A. 2A:44A-15(a) ................................................................................................................... 8 N.J.S.A. 2A:44A-15(b) ................................................................................................................... 8 Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 4 of 19 PageID: 3271 1 PRELIMINARY STATEMENT Third-Party Defendant/Counterclaim Plaintiff Orr Partners, LLC (“Orr”) respectfully submits this Brief in Opposition to Plaintiff/Counterclaim Defendant DLB Associates Consulting Engineers, P.C.’s (“DLB”) Motion to Dismiss Orr’s Counterclaims. Orr has filed counterclaims for Willful Overstatement of a Construction Claim and Negligent Misrepresentation (collectively hereinafter referred to as “Orr’s Counterclaims”), which DLB now requests dismissal. DLB’s Motion to Dismiss (the “Motion”) must be denied because it: (1) relies on an improper legal standard; (2) cites and relies on law that is blatantly incorrect; (3) materially misrepresents the standards relevant to Orr’s claims; and (4) relies on irrelevant facts not properly before the Court on a Rule 12(b)(6) motion to dismiss. As discussed herein, Orr has properly pleaded its Counterclaims under the relevant case law and standards, and therefore DLB’s Motion is baseless and should be denied. STATEMENT OF RELEVANT FACTS I. Relevant Factual Background In 2006, Orr entered into a contract with Gulfstream Aerospace Corporation (“Gulfstream”) to serve as Gulfstream’s independent consultant on various Gulfstream projects. One such project has become the subject of this lawsuit, the design and construction of an aircraft assembly facility, known as Building Z, for which Orr was specifically retained as Gulfstream’s representative to act as a consultant on this project. Counterclaim at ¶¶ 5-7. Gulfstream retained Shlemmer Algaze & Associates (“SAA”) to perform certain services related to this project, and SAA in turn retained DLB as its subcontractor to provide engineering services. Id. at ¶¶ 9-10. Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 5 of 19 PageID: 3272 2 In July 2012, Gulfstream issued a Request for Qualifications (“RFQ”) for design services on the Building Z project. Id. at ¶ 12; see also id. at Ex. A (“RFQ”). In September 2012, Gulfstream issued a Request for Proposal (“RFP”)1 for design services on the Building Z project. Id. at ¶ 16; see also id. at Ex. B (“RFP”). The RFQ and RFP provide specific details regarding requirements and expectations for services to be provided by the contractors, scheduling and budget requirements, and procedures for submitting proposals for additional services. Id. at ¶¶ 19-20. The RFQ states that all contractors are to review the entire RFQ, including the schedule and instructions, and submit a qualifications package for consideration by Gulfstream, as project owner, and Orr, as Gulfstream’s representative. RFQ at 8. After reviewing the RFQ and RFP, DLB submitted its qualifications for consideration, and claimed that its broad-based experience with a variety of industrial sites made it uniquely qualified for this project. See Orr’s Counterclaim at ¶¶ 14-15, 22; see also ECF 43, DLB’s Amended Complaint, at ¶ 31 (“DLB reviewed the RFQ and submitted its qualifications to SAA on August 9, 2012, and explained that while it had previously not participated in the construction of an aircraft manufacturing facility, its broad-based experience with a variety of industrial sites, oftentimes of greater scale and complexity than the proposed Building Z, made it uniquely suited to assist in the construction of Building Z.”). DLB submitted a proposal to SAA that included its proposed services and a total bid for the project of $655,000, and portions of this proposal were included in the submission to Gulfstream and Orr. Id. at ¶¶ 33-35; see also id. at Ex. C (“DLB Proposal”). In September 2012, DLB attended interviews in Savannah, Georgia with Gulfstream and Orr in which it presented its qualifications and proposal for the project. Id. at ¶¶ 36-39. Orr, 1 The RFP, while shorter in length, references portions of the RFQ regarding scope of work and instructions to the contractors. RFP at 4. Therefore, for simplicity, Orr will cite only to the RFQ. Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 6 of 19 PageID: 3273 3 as Gulfstream’s representative, assisted Gulfstream in the selection of the design team for Building Z based on the submissions in response to the RFQ and RFP, and the interviews in Savannah. Id. at ¶ 13. During the course of the Building Z project, DLB failed to meet deadlines and failed to properly staff its work with qualified individuals, leading to delays on the project. Id. at ¶¶ 44- 45, 48. Due to DLB’s failures, additional contractors were retained to correct DLB’s mistakes, including DLB’s failure to include required information and details in its design drawings, and DLB’s design of a defective chilled beam system. Id. at ¶¶ 46-47, 49. On approximately April 28, 2014, DLB submitted an invoice to SAA for $2,200,729.08 for additional services DLB claims it provided from October 2012 to April 2014. Id. at ¶¶ 54-55. The invoice fails to provide any description of services provided, hours worked, individuals that provided the services, or any supporting documentation. Id. at ¶¶ 56-57. On or about May 9, 2014, DLB filed a lien against the property known as Building Z. Id. at ¶ 52. As a result of DLB’s willful overstatement of its construction lien and negligent misrepresentation as to their qualifications and ability to handle the Building Z project, Orr was forced to spend additional time, effort, and resources on the project. Id. at ¶¶ 69 & 79. II. Relevant Procedural Background On December 30, 2014, DLB filed a complaint in New Jersey Superior Court against SAA and Orr for various contract-related claims, which was then removed to this District Court. ECF 1-1, DLB’s Initial Complaint. Orr filed a motion to dismiss the contractual claims, which was granted by this Court. ECFs 4, 5, 12, 14, 36, and 37. On November 30, 2015, DLB filed an Amended Complaint again asserting contractual claims against Orr. ECF 43. Orr filed another Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 7 of 19 PageID: 3274 4 motion to dismiss on December 14, 2015, which this Court granted after oral argument from both parties. ECF 46, 55, 56, 58 and 59. SAA asserted counterclaims against DLB in its Answer, and in response, on November 16, 2015, DLB filed a Third-Party Complaint against Orr asserting negligence, contribution, and indemnification. ECF 27 and 41. On March 30, 3016, Orr filed an Answer to DLB’s Third-Party Complaint, which included counterclaims for Willful Overstatement of a Construction Claim and Negligent Misrepresentation (collectively hereinafter referred to as “Orr’s Counterclaims”). ECF 62. On June 3, 2016, DLB filed an Answer to Orr’s Counterclaims. ECF 67. DLB now seeks dismissal of Orr’s Counterclaims. ARGUMENT Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismissal for failure to state a claim, such as DLB’s Motion, may only be granted in the rare circumstance where the allegations in the complaint cannot possibly support any cause of action. The plaintiff must “provide the ‘grounds’ of his ‘entitle[ment] to relief,’ [which] 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, 545 (2007); see also Fed. R. Civ. P. 8(a)(2). The plaintiff must “set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (2d ed. 1990)). A district court conducts a three-part analysis when considering a Rule 12(b)(6) motion. Mulheron v. Philadelphia Eagles, No. 12-1753 MAS TJB, 2013 WL 211349, at *4 (D.N.J. Jan. 18, 2013) (Shipp, J.). First, the court must “take note of the elements a plaintiff must plead to Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 8 of 19 PageID: 3275 5 state a claim.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true plaintiff’s well-pleaded factual allegations and construe the complaint in the light most favorable to the plaintiff. Mulheron, 2013 WL 211349, at *4; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (finding the court must accept “all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”). Finally, a court must next determine whether the “facts alleged in the complaint are sufficient to show that plaintiff has a ‘plausible claim for relief.’” Mulheron, 2013 WL 211349, at *4 (quoting Iqbal, 556 U.S. at 679). The plausibility requirement “‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556) (emphasis added); see also McTernan v. City of York, PA, 564 F.3d 636, 646 (3d Cir. 2009) (“A complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.”). In analyzing such a motion, the Court should be mindful “a plaintiff will not be thrown out of court on a Rule 12(b)(6) motion for lack of detailed facts.” In re Tower Air, Inc., 416 F.3d 229, 237 (3d Cir. 2005). Rather, “supporting facts should be alleged, but only those necessary to provide the defendant fair notice of the plaintiff’s claim and the ‘grounds upon which it rests.’” Id. (quoting Conley v. Gibson, 355 U.S. 41 (1957)); see also Thomas v. Indep. Twp., 463 F.3d 285, 295 (3d Cir. 2006) (“As the Supreme Court has advised, the Federal Rules ‘do not require a claimant to set out in detail the facts upon which he bases his claim.’”) (quoting Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993)). Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 9 of 19 PageID: 3276 6 The focal point of DLB’s Motion is improper legal standards and incorrect law; DLB identifies no legal failing in Orr’s Counterclaims, nor any factual hurdle that cannot possibly be surpassed through discovery. Throughout its Motion, DLB heavily relies on irrelevant facts outside the facts as pleaded by Orr in its Counterclaims, and thus are not properly before this Court on a Rule 12(b)(6) motion to dismiss. As discussed below, under the pertinent analysis, Orr has pleaded sufficient facts to support its Counterclaims. As such, DLB’s Motion should be denied. I. ORR’S OVERSTATEMENT OF THE LIEN SHOULD BE ADJUDICATED BY THIS COURT DLB argues that Orr’s first Counterclaim, Willful Overstatement of Construction Lien, is improper because: (1) the Court lacks jurisdiction over an out-of-state construction lien; and (2) “Orr cannot prove a prima facie [sic] against DLB relating to the Georgia construction lien as Orr does not possess any ownership interest . . . .” Motion at 11.2 However, DLB’s argument suffers fatal deficiencies. First, there is no basis for asserting that this Court does not have jurisdiction over the lien, when the law clearly gives the Court that power. Second, Orr was damaged by DLB’s filing of a construction lien that was inflated nearly 350% over and above DLB’s bid on the Building Z project, with no supporting documentation. Practically, that these flaws exist is not surprising - in the less than two pages of argument that DLB dedicates to this argument, there is not a single case citation provided to support the propositions being stated. 2 Due to the lack of page numbers in DLB’s Motion, page number references throughout Orr’s Opposition refer to the pagination stamping from the ECF system. Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 10 of 19 PageID: 3277 7 A. This Court Has Jurisdiction Over Orr’s Willful Overstatement of Construction Lien Claim DLB’s argument that this Court lacks jurisdiction over Orr’s Willful Overstatement of Construction Lien is completely fabricated and without even a single case cited to support it. The law does not support the concept that the Court cannot exercise jurisdiction over property located in another state. In fact, the opposite is true; New Jersey courts have explicitly adjudicated restraints and other issues associated with property in other states, including in Maryland, Tennessee, and South Carolina. In re Mut. Ben. Life Ins. Co., 258 N.J. Super. 356, 373 (App. Div. 1992) (finding personal jurisdiction over defendant-owner of property at issue permitted placing restraints on out of state residents seeking to foreclose on out of state property). In In re Mut. Ben. Life Ins., in fact, the court utilized the standard analysis for personal jurisdiction applicable to any dispute, i.e. whether minimum contacts existed in the “relationship among the non-resident, the forum, and the litigation” such that exercise of jurisdiction was proper. Id. at 370 (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977) (internal quotations omitted). The court noted that “New Jersey permits the exercise of long-arm jurisdiction over non-residents to the outermost limits allowed by the due process clause of the United States Constitution.” In re Mut. Ben. Life Ins., 258 N.J. Super. At 369 (citing Avdel v. Mecure, 58 N.J. 264, 268 (1971). DLB makes no argument about the Constitutional propriety of Orr’s claim, nor in fact does DLB make a substantive argument of any kind relative to the jurisdictional issue; DLB seems to hope that the Court will simply refuse to adjudicate the issue because the property is in Georgia and the dispute is being adjudicated in New Jersey; unfortunately for DLB, New Jersey laws requires more than that. See, e.g., Creative Bus. Decisions, Inc. v. Magnum Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 11 of 19 PageID: 3278 8 Comm’ns. Ltd., Inc., 276 N.J. Super. 560, 570-71 (Super. Ct. 1993) (finding jurisdiction over Georgia defendant in New Jersey). B. DLB Fails To Cognizably Argue Against Orr’s Right To Bring The Willful Overstatement Claim In the Motion, DLB argues, without a scintilla of legal support, that “Orr cannot prove a prima facie [sic] against DLB relating to the Georgia construction lien as Orr does not possess any ownership interest in the property subject to the construction lien.” Motion at 11. DLB’s argument not only lacks legal support, it also misses entirely the gravamen of Orr’s Counterclaim. In addition, the Motion fallaciously claims that “Orr . . . cannot be damaged by the filing of the construction lien.” Motion at 12. Again, DLB fails to cite even a single case that support dismissal on the grounds DLB proffers.3 First and foremost, DLB identifies no provision of the New Jersey statutes or New Jersey law that precludes Orr from asserting a claim against DLB for its actions related to the lien. Why? Because the lien statute specifically contemplates parties other than the owner recovering as a result of a wrongful lien, as it specifically notes “[t]he court shall, in addition, enter judgment against the claimant for damages to any of the parties adversely affected by the lien claim.” N.J.S.A. 2A:44A-15(a) (emphasis added); see also N.J.S.A. 2A:44A-15(b) (“If a defense to a lien claim is without basis, the party maintaining the defense shall be liable for all court costs, and reasonable legal expenses . . . incurred by any of the parties adversely affected . . . . The court shall, in addition, enter judgment against the party maintaining this defense for damages to any of the parties adversely affected thereby.”) (emphasis added). 3 DLB’s failure to cite relevant case law is akin to simply failing to provide a brief. As such, to the extent DLB’s reply (if any) relies on any legal authority, Orr respectfully requests the right to file a sur-reply in response thereto. Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 12 of 19 PageID: 3279 9 It is inarguable, and certainly at the pleading stage, that Orr suffered damages as a result of the wrongful lien. Orr has sufficiently pleaded damages as a result of DLB’s willful overstatement. Orr’s Counterclaim at ¶ 69 (“As a direct and proximate result of DLB’s willful overstatement of its lien, Orr has been damaged by incurring defense costs, including attorney’s fees, court costs, staff costs, opportunity costs, and other expenses, in defending itself against DLB’s lien, and continues to incur these costs as this case proceeds.”). For example, Orr has been forced to litigate this dispute, with the attendant costs and fees, and suffered opportunity costs and reputational harm in an amount that has not yet been quantified (and will likely require a trial by jury). These damages flow directly from the lien, and are thus recoverable under the statute. Orr has properly pleaded a claim for willful overstatement of a construction lien, and therefore is entitled to discovery to determine the extent of its damages. DLB’s motion should therefore be denied. II. ORR HAS PROPERLY PLEADED ITS NEGLIGENT MISREPRESENTATION CLAIM AS AN INDEPENDENT DUTY IS NOT AN ELEMENT OF THIS CLAIM DLB’s argument for dismissal of Orr’s negligent misrepresentation Counterclaim is based on the incorrect premise that such a claim requires “an independent duty of care” as between Orr and DLB. See Motion at 12. In an attempt to buttress their completely fabricated standard, DLB elaborates that “DLB and Orr never entered into an agreement . . . and Orr never plead [sic] that an independent duty of care was owed.” See id. This argument ignores the fact that a duty to the defendant is not an element of a negligent misrepresentation claim. See Peruto v. TimberTech Ltd., 126 F. Supp. 3d 447, 457 (D.N.J. 2015) (“Under New Jersey law, a cause of action for negligent misrepresentation may exist when a party negligently provides false information.”) (internal quotations omitted) (quoting Karu v. Feldman, 119 N.J. 135, 146 Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 13 of 19 PageID: 3280 10 (1990)). Therefore, Orr does not need to prove, nor plead, an independent duty of care. Under New Jersey law4, to prove a claim for negligent misrepresentation Orr must show that DLB’s “incorrect statement, negligently made and justifiably relied upon, may be the basis for recovery of damages for economic loss or injury sustained as a consequence of that reliance.” H. Rosenblum, Inc. v. Adler, 93 N.J. 324, 334 (1983). Orr has sufficiently pleaded facts that, viewed in the light most favorable to Orr as per the proper standard, supports its negligent misrepresentation claim against DLB. Specifically, Orr alleges that DLB misrepresented (i.e., made an incorrect statement) its level of experience, qualifications, and ability to handle the design requirements expressed in the RFQ for an aircraft manufacturing facility. Orr’s Counterclaim at ¶¶ 71-74. DLB misrepresented its qualifications on multiple occasions, including in writing in response to the RFQ and RFP and in the DLB Proposal, and verbally during the interviews with Gulfstream and Orr. Id. at ¶¶ 14-15, 22, & 33-39; see also RFQ at 8 (stating that all contractors are to submit a qualifications package for consideration by Gulfstream and Orr). DLB does not dispute that it made these representations, and in fact expressly states that it made these in its own Complaint. See DLB’s Am. Compl. at 4 The burden of a choice of law analysis is not necessary here because there is no conflict regarding the elements of a negligent misrepresentation claim under New Jersey and Georgia law. See, e.g., Hardaway Co. v. Parsons, Brinckerhoff, Quade & Douglas, Inc., 267 Ga. 424, 426 (1997)(“In order to establish a claim for negligent misrepresentation, the plaintiff must show ‘(1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown, (2) such person’s reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance.’”); see also Marquis Towers, Inc. v. Highland Grp., 265 Ga.App. 343, 346 (2004) (same); PHL Variable Ins. Co. v. Jolly, 800 F. Supp. 2d 1205, 1212 (N.D. Ga. 2011), aff'd sub nom. PHL Variable Ins. Co. v. Faye Keith Jolly Irrevocable Life Ins. Trust ex rel. Shapiro, 460 F. App’x 899 (11th Cir. 2012) (same). Simply put, under either New Jersey or Georgia law, Orr must prove that (1) DLB made a false of incorrect statement, (2) Orr relied on that statement, and (3) Orr was damaged. Orr has properly pleaded elements of its claim under both the laws of New Jersey and Georgia, therefore analysis under either state’s laws will heed the same result. Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 14 of 19 PageID: 3281 11 ¶ 31 (“DLB reviewed the RFQ and submitted its qualifications to SAA on August 9, 2012, and explained that while it had previously not participated in the construction of an aircraft manufacturing facility, its broad-based experience with a variety of industrial sites, oftentimes of greater scale and complexity than the proposed Building Z, made it uniquely suited to assist in the construction of Building Z.”). DLB either knew, or should have known, that it was not experienced enough, nor qualified, to handle a project of this magnitude for the $655,000 bid it submitted. Next, Orr justifiably relied on DLB’s incorrect statements when assisting Gulfstream in the selection of the design team for the Building Z project because it believed DLB’s representations, made both in writing and in person, that it was qualified to design an aircraft manufacturing facility, and could perform its services for its bid price of $655,000. Orr’s Counterclaim at ¶¶ 75-77. The bid price, as all contractors know, is a major consideration when selecting to which contractors to offer a construction project. DLB either knew, or should have known, that Orr, as Gulfstream’s agent, relied on DLB’s representations during the interviews and in DLB’s responses to the RFQ and RFP, both of which contained representations as to DLB’s qualifications and experience, in the selection of the design team for the project. While DLB’s statements were made for the benefit of Gulfstream (i.e. for the design of Building Z), they were made to both Orr and Gulfstream, and DLB made these statements in its pursuit of securing the Building Z work, for which it was significantly under qualified. DLB expected Orr and Gulfstream to rely on these statements when selecting contractors for the project. Finally, Orr suffered economic losses as a result of DLB’s failures during the project, which were the result of DLB’s inability to handle a project of this magnitude, despite its representations otherwise. Specifically, DLB failed to meet deadlines which led to project Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 15 of 19 PageID: 3282 12 delays, failed to staff the project with qualified individuals, failed to include required information in its work product, and designed a defective chilled beam system. Id. at ¶¶ 44-49. As a result, Orr was damaged in that it suffered economic losses and was forced to expend additional time, effort, and resources on the project to correct DLB’s errors, including facilitating the retainer of additional contractors to come in and fix DLB’s mistakes. Id. at ¶¶ 46, 79, & 80. DLB attempts to obfuscate the relevant legal standard by citing a case that purports to put a heavy burden on Orr’s negligent misrepresentation claim (“a legally cognizable duty,” Motion at 13), but in fact was related to whether tort liability for negligent misrepresentation could co-exist with the contractual duties that existed between the parties. Reference to the entire quote from South Broward, placed in the original context, is damning to DLB’s argument. The actual quote is: “Plaintiffs have failed to plead that MedQuist owed a legally cognizable duty to Plaintiffs-outside of MedQuist’s contractual duties-for which Plaintiffs can recover in tort.” S. Broward Hosp. Dist. v. MedQuist Inc., 516 F. Supp. 2d 370, 395 (D.N.J. 2007). Thus, South Broward stands for the very well-known, but completely irrelevant, proposition that tort liability cannot arise from pre-existing contractual liability. South Broward has also been cited as requiring a specific duty when the negligent misrepresentation claim is premised on an omission, see, e.g., Henderson v. Volvo Cars of N. Am., LLC, No. CIV. 09-4146 (DMC), 2010 WL 2925913, at *11 (D.N.J. July 21, 2010) (citing South Broward, 516 F. Supp. 2d at 397), but does not support DLB’s broader proposition. Relevant case law from New Jersey emphasizes the point, by drawing a distinction specifically between negligence and negligent misrepresentation. In Green v. Morgan Properties, New Jersey’s highest court grappled with a claim that was confusingly pleaded in that it was “characterized as a claim for negligence, for misrepresentation, and for malpractice. Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 16 of 19 PageID: 3283 13 That is, it is captioned as a claim for negligence, it asserts that defendants made misrepresentations to plaintiffs, and the filing of an Affidavit of Merit implies that it is meant to be a claim for malpractice.” Id., 215 N.J. 431, 457 (2013). The New Jersey Supreme Court upheld the appellate court’s ruling that the cause of action could sound in negligent misrepresentation, even if it could not necessarily meet the standard for negligence. Id. This is supported by other case law in the context of both negligence and negligent misrepresentation. See, e.g., Henderson v. Volvo Cars of N. Am., LLC, No. CIV. 09-4146 (DMC), 2010 WL 2925913, at *11 (D.N.J. July 21, 2010) (“a claim for negligent misrepresentation requires a plaintiff to establish that defendant made an incorrect statement, upon which he or she justifiably relied, causing economic loss”). Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 17 of 19 PageID: 3284 14 CONCLUSION For the reasons set forth herein, Third-Party Defendant/Counterclaim Plaintiff Orr Partners, LLC respectfully requests that the Court enter an order: (1) denying Plaintiff/Third- Party Plaintiff DLB Associates Consulting Engineers, P.C.’s Motion to Dismiss Orr Partners’ Counterclaims Pursuant to Fed. R. Civ. P. 12(b)(6); and (2) for such other and further relief as the Court deems just and proper. Dated: May 1, 2017 HARRIS BEACH PLLC /s/ David J. Dino David J. Dino, Esq. 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: 212-687-0100 Facsimile: 212-687-0659 Email: ddino@harrisbeach.com Counsel for Third-Party Defendant/ Counterclaim Plaintiff Orr Partners, LLC Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 18 of 19 PageID: 3285 15 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum of Law in Opposition to DLB Associates Consulting Engineers, P.C.’s Orr’s Motion to Dismiss Orr Partners’ Counterclaims Pursuant to Fed. R. Civ. P. 12(b)(6) was served via the Court’s ECF Notification System on the 1st day of May, 2017, to the following: Sarah B. Biser Fox Rothschild, LLP 101 Park Avenue New York, NY 10178 Tel: 646-601-7636 Fax: 212-692-0940 Counsel for Defendant Shlemmer Algaze & Associates Ralph Ferrara, Esq. Aaron Peskin, Esq. Ferrara Law Group, P.C. 224 West State Street Trenton, N. J. 08608 Tel.: 609-571-3738 Fax: 609-498-7440 Counsel for Plaintiff/Third-Party Plaintiff William Waldron, Esq. Marshall Dennehey Warner Coleman & Goggin 425 Eagle Rock Avenue, Suite 302 Roseland, NJ 07068 Tel: 973-618-4112 Fax: 973-618-0685 Counsel for Plaintiff/Third-Party Plaintiff /s/ David J. Dino David J. Dino Case 3:15-cv-00689-MAS-LHG Document 127 Filed 05/01/17 Page 19 of 19 PageID: 3286