Inter-City Const, v. Suffolk Const.

• Court: District Court, D. New Hampshire
• Decided: April 5, 1996
• Docket: CV-96-012-B
• Status: Published

Opinion

Inter-City Const, v. Suffolk Const. CV-96-012-B 04/05/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Inter-City Construction, Inc.

v. Civil No. 96-012-B

Suffolk Construction Co., Inc. and Seaboard Surety Company

O R D E R

Suffolk Construction Company, Inc. was the general

contractor for a new sports arena at the University of New

Hampshire. Suffolk purchased a performance bond from Seaboard

Surety Company guaranteeing Suffolk's obligation to pay its

subcontractors.

Inter-City Construction, Inc., one of Suffolk's

subcontractors, commenced this action against Suffolk and

Seaboard, alleging that Suffolk breached its contract with Inter

City and that Seaboard is liable for Suffolk's breach pursuant t

the performance bond. Suffolk and Seaboard have moved to

dismiss, claiming that the court lacks subject matter

jurisdiction over Inter-City's claims because Federal Rule of

Civil Procedure 19(a)(1) and (2) reguire the joinder of several

of Inter-City's subcontractors and their joinder would deprive the court of diversity of citizenship jurisdiction. Defendants'

motion is more properly characterized as a motion to dismiss

based on Inter-City's failure to join indispensable parties under

Rule 19(b). See 3A James W. Moore, Moore's Federal Practice

5 19.05[2] , p. 19-77 n .6 (2d ed. 1995).

Motions to dismiss based on Rule 19(b) are evaluated using a

two-step process. First, I must determine whether the absent

person must be joined if feasible because either:

(1) in the person's absence, complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest, or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

Fed. R. Civ. P. 19(a) . I then must determine "whether in eguity

and good conscience the action should proceed among the parties

before it, or should be dismissed, the absent person being thus

regarded as indispensable." Fed. R. Civ. P. 19(b). Dismissal is

warranted only if both reguirements are satisfied.

Defendants' sole argument is that the missing subcontractors

are indispensable because they also have claims against Suffolk

2 and Seaboard and the state statute on which Inter-City's bond

claim is based,1 requires that all claims against the bond must

be adjudicated in a single proceeding. I reject this argument

because the statute provides that other subcontractors with

1 N.H. Rev. Stat. Ann. 447:18 provides: Said claimant shall, within one year after filing such claim, file a petition in the superior court for the county within which the contract shall be principally performed to enforce his claim or intervene in a petition already filed, with copy to the principal and surety, and such further notice as the court may order. Such petition shall contain an allegation of the nature and subject matter of the claim or contract or indebtedness relied upon, of the execution and delivery of the bond, and of the facts showing compliance by the claimant with the provisions of RSA 447:17 and this section relative to the filing of said claim. Subsequent pleadings may thereafter be filed by any party in interest for the purpose of formulating issues under the direction of the court. The court shall examine all claims which have been duly filed in accordance herewith, and fix a date for hearing thereon, with notice to all creditors who have filed claims as herein provided, and to the principal and surety or sureties, and find the respective amounts due such party claimants and their rights to participate in the security and make such orders and decrees as justice may require. The court may require at any hearing on said claims the attendance of any official with whom claims have been filed, with such claims, or require such official to furnish a copy of such claims for the use of the court.

3 claims may file their claims in an action that has been commenced

by another party. It does not require that all claims must be

adjudicated in the same action. If Inter-City's subcontractors

also have claims against the bond and they cannot be joined in

this action without depriving the court of subject matter

jurisdiction, they are free to pursue their claims in state

court. Since defendants offer no other argument to support their

claim that the missing subcontractors are indispensable under

Rule 19(b), their motion to dismiss is denied.

CONCLUSION

Defendants' motion to dismiss (document no. 6) is denied.

SO ORDERED.

Paul Barbadoro United States District Judge

April 5, 1996

cc: Lawrence Edelman, Esq. Frank Spinella, Esq.