United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON FOURTH-PARTY
DEFENDANT'S MOTION TO DISMISS
W. EGINTON, SENIOR UNITED STATES DISTRICT JUDGE.
Materials Testing Laboratories Inc. (“IMTL”) has
moved to dismiss the cross-claim filed against it by B&W
Paving & Landscaping LLC (“B&W Paving”).
For the following reasons, IMTL's motion to dismiss will
30, 2010, The United Illuminating Company (“UI”)
and Whiting-Turner entered into an agreement for the
construction of The United Illuminating Central Facility
Project located in Orange, Connecticut.
agreement required the construction of an office building, an
operations building, and related parking lots and common
and B&W Paving entered into a subcontract agreement
pursuant to which B&W Paving was to perform the paving
work on the Central Facility. Under the subcontract, B&W
Paving was responsible for performing all of the work
described in the B&W Paving subcontract documents,
including the “Contract Documents” defined
therein, in accordance with plans, specifications and other
the B&W Paving subcontract, B&W Paving
“represents and warrants that it is an expert in the
particular line or lines of work herein contracted to be done
and that it is competent to know whether the materials,
methods and apparatus specified for this work are sufficient
and suitable to secure the results contemplated by the
Contract Documents.” Under the B&W Paving
Subcontract, B&W Paving “warrants its workmanship
and materials furnished against any defects, faults or
alleges that if UI's allegations related to paving work
are proven, any liability Whiting-Turner may have to UI for
incomplete and/or defective work is a direct and proximate
result of B&W Paving's breaches of the B&W Paving
subcontract, including, but not limited to, allegations that
B&W Paving installed an insufficient quantity of asphalt
or otherwise improperly or incompletely installed the asphalt
for the parking lots and driveways.
alleges that B&W Paving was in exclusive control of the
paving of the parking lots and driveways about which UI
complains to the exclusion of Whiting-Turner.
Paving filed a cross-claim for common law indemnification
against Independent Materials Testing Laboratories Inc.
(“IMTL”). B&W Paving alleges that during
construction, IMTL oversaw, inspected, and approved of
B&W Paving's paving work, and that B&W Paving was
instructed to follow the directions from IMTL while placing
the bituminous paving material. IMTL has now moved to dismiss
B&W Paving's cross-claim for failure to state a
function of a motion to dismiss is "merely to assess the
legal feasibility of the complaint, not to assay the weight
of the evidence which might be offered in support
thereof." Ryder Energy Distribution v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984).
When deciding a motion to dismiss, the Court must accept all
well-pleaded allegations as true and draw all reasonable
inferences in favor of the pleader. Hishon v. King,
467 U.S. 69, 73 (1984). The complaint must contain the
grounds upon which the claim rests through factual
allegations sufficient “to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007). A plaintiff is