United States District Court, D. Maine
JOHN C. NIVISON, Magistrate Judge.
In this action, Plaintiff Tetra Tech Construction alleges that Defendant Summit Natural Gas of Maine failed to make certain payments under the terms of the parties' construction contract. As part of its response to Plaintiff's complaint, Defendant asserted a counterclaim by which Defendant alleges a claim for breach of warranties (Count III). The matter is before the Court on Plaintiff's Motion to Dismiss Counterclaim Count III-Breach of Warranties (Motion to Dismiss, ECF No. 14).
As explained below, following a review of the pleadings, and after consideration of the parties' arguments, the recommendation is that the Court deny the motion.
The facts set forth below are drawn from Defendant's counterclaim, which facts are deemed true when evaluating the motion to dismiss. Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998). Courts can also consider documents which are not disputed by the parties, public records, documents central to the parties' dispute, and documents sufficiently referred to in the complaint. Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
On or about May 28, 2013, Defendant and Plaintiff entered into a construction contract (the "Contract") for the installation of high-density polyethylene natural gas pipeline and the installation of natural gas service lines in and around the Kennebec Valley as part of Defendant's Kennebec Valley Pipeline Project (the "Project"). (Counterclaim, ECF No. 11, ¶ 5.) Plaintiff warranted that its workmanship and materials would be free from defects (Id. ¶ 6, citing Contract, Article III(1)(e)(i).), that it would perform the work in a "good and workmanlike manner" (Id. ¶ 23.), and that its workmanship would be free of defects. (Id. ¶ 24.)
Plaintiff further represented:
for the period set forth in Article V(1)(c) herein, that all Work will be of good quality, free from faults and defects and in conformance with the Contract. All Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective.
(Id. ¶ 7, citing Contract, Article V(1)(a).)
According to Defendant, certain portions of Plaintiff's workmanship and the materials supplied were defective, and did not comply with the Contract, including the applicable plans, specifications and industry standards. (Id. ¶ 8.) Defendant maintains that as the result of Plaintiff's breach of its representations and warranties, Defendant sustained substantial damages. (Id. ¶¶ 25-26.) Defendant asserts that all of the conditions precedent to this action have been satisfied. (Id. ¶ 27.)
The material warranty provisions are found in Articles III and V of the Contract. The relevant Articles provide:
CONTRACTOR REPRESENTATIONS AND WARRANTIES
1. Contractor's Representations and Warranties
a) Review of Field Conditions and Contract by ...