M.E.S., INC., M.C.E.S., INC., and GEORGE MAKHOUL, Plaintiffs-Appellants,
SAFECO INSURANCE COMPANY OF AMERICA, LIBERTY MUTUAL INSURANCE COMPANY, S.A. COMUNALE CO. INC., RONALD GOETSCH, DAVID PIKULIN, and CARYN MOHAN-MAXFIELD, Defendants-Appellees. [*]
Argued: December 10, 2018
Appeal from the United States District Court For the Eastern
District of New York
from a judgment of the United States District Court for the
Eastern District of New York (Chen, J.), granting
summary judgment and dismissing all claims in the Second
Amended Complaint against defendants- appellees. On appeal,
plaintiffs-appellants argue that the district court erred in
holding that they failed to demonstrate the existence of a
triable issue of fact as to their claims that
defendants-appellees breached their contractual obligations
and engaged in bad faith and tortious conduct.
Michael Confusione, Hegge & Confusione, LLC, Mullica
Hill, New Jersey, for Plaintiffs-Appellants.
Katsantonis, Watt, Tieder, Hoffar & Fitzgerald, L.L.P.,
McLean, Virginia, for Defendants-Appellees Safeco Insurance
Company of America, Ronald Goetsch, David Pikulin, and Caryn
Jonathan Bondy (Stephen A. Wieder, Beth J. Rotenberg, on the
brief), Chiesa Shahinian & Giantomasi PC, West Orange,
New Jersey, for Defendant-Appellee Liberty Mutual Insurance
A. Kassis, Schenck, Price, Smith & King, LLP, Florham
Park, New Jersey, for Defendant-Appellee S.A. Comunale Co.
Before: Sack, Parker, and Chin, Circuit Judges.
M.E.S., Inc. ("MES"), M.C.E.S., Inc., and George
Makhoul (collectively, "Plaintiffs") appeal the
district court's August 25, 2017 judgment dismissing all
claims in the Second Amended Complaint against
defendants-appellees Safeco Insurance Company of America,
Ronald Goetsch, David Pikulin, and Caryn Mohan-Maxfield
(collectively, "Safeco"); Liberty Mutual Insurance
Company ("Liberty Mutual"); and S.A. Comunale Co.
Inc. ("Comunale"). We assume the parties'
familiarity with the underlying facts, procedural history,
and issues on appeal.
case arises from three construction projects undertaken by
the United States Army Corps of Engineers (the
"Corps") between 2003 and 2006. The Corps hired MES
as the general contractor on two of the projects and
Hirani/MES, JV (the "Joint Venture") as the general
contractor on the third. At MES's request, Safeco issued
performance and payment bonds for all three projects, and MES
agreed to indemnify Safeco for any losses resulting from its
issuance of the bonds for two of the projects. The Joint
Venture is identified as the "Principal" in an
identical indemnity agreement with Safeco for the third
project, which was executed by the Joint Venture, Hirani
Engineering & Land Surveying, P.C., and MES. Thereafter,
MES executed a subcontract with Comunale to perform fire
protection work on two of the projects. Liberty Mutual issued
performance and payment bonds for these subcontracts.
2008, the Corps issued Cure Notices for each project,
notifying MES and the Joint Venture of their respective
failures and requiring them to cure all failures within 14
days. The Corps subsequently terminated each contract for
default and made a bond demand on Safeco to complete the
remaining work for each project. Safeco incurred losses in
responding to the Corp's bond demands and performing its
and MES brought separate actions in the United States
District Court for the Eastern District of New York related
to the three construction projects. In its June 16, 2015
Minute Order, the district court dismissed Plaintiffs'
claims based on the third project for lack of standing,
reasoning that MES had not shown that it was a third-party
beneficiary of the contract in question. On September 3,
2015, the district court granted the parties leave to file
cross summary-judgment motions in both cases. The district
court decided these motions in a detailed 76-page memorandum
and order under captions for both cases, and entered separate
judgments for each case. This appeal concerns only the action
initiated by MES.
district court dismissed Plaintiffs' claims arising from
the third project for lack of standing. We have some doubt as
to whether this decision was correct,  but we need not
decide the question for MES's claims based on the third
project are essentially identical to its claims based on the
other two projects. We conclude that MES's claims fail on
the merits, substantially for the reasons given by the
district court in its memorandum and order of March 30, 2017.
Indeed, after nine years of litigation, including five years
of discovery, MES fails to articulate any support for its
accusations that Safeco breached its contractual obligations
or engaged in bad faith or tortious conduct. The claim that
Safeco acted inappropriately by attending the cure meetings
is particularly frivolous, as the record shows that, in its
Cure Notices, the Corps "required" the
"presence of [MES's] bonding company" at the
meetings. J. App. at 4042, 4045; see also J. App. at
4079, 4110. MES has failed to identify any good faith basis,
in law or on the basis of the agreements at issue, for its
assertion that ...