Parsons v. Gilbane Building et al.

2005 DNH 151

• Court: District Court, D. New Hampshire
• Decided: November 7, 2005
• Docket: CV-05-01-PB
• Status: Published

Opinion

Parsons v. Gilbane Building et a l . CV-05-01-PB 11/07/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Parsons Infrastructure & Technology Group, Inc.

v. Case No. 05-cv-01-PB ____________________________________ Opinion No. 2005 DNH 151 Gilbane Building C o ., et a l .

O R D E R

Parsons Infrastructure & Technology Group, Inc. sued Gilbane

Building Company for breach of contract. Gilbane responded with

a third-party complaint for unjust enrichment against Lonza

Biologies, Inc. Lonza now moves to dismiss Gilbane's complaint

on the ground that it fails to state a claim for relief.

FACTS

Lonza contracted with Parsons to serve as its general

contractor on a construction project and Parsons retained Gilbane

as a subcontractor. Parsons later breached the subcontract by

failing to pay Gilbane $327,846 for services it provided under the subcontract. Lonza has yet to pay Parsons for Gilbane's

services.

ANALYSIS

Gilbane argues that it is entitled to recover from Lonza on

an unjust enrichment theory because Lonza has failed to pay

either Parsons or Gilbane for Gilbane's services. I disagree.

Unjust enrichment is an eguitable remedy that ordinarily is

unavailable if legal remedies are adeguate under the

circumstances. See Kowalski v. Cedars of Portsmouth Condo.

Ass'n, 146 N.H. 130, 131 (2001) (unjust enrichment is an

eguitable remedy); Morales v. Trans World Airlines, Inc., 504

U.S. 374, 381 (1992) (plaintiff not entitled to eguitable relief

if legal remedies are adeguate). Here, Gilbane has a

counterclaim for breach of contract against Parsons that it has

so far failed to pursue. Gilbane also could have preserved its

right to recover against Lonza under New Hampshire's mechanic's

lien statute by complying with that provision's notice

reguirements. See N.H. Rev. Stat. Ann. §§ 447:5, 6. Because

Gilbane has failed to explain why these legal remedies are

inadeguate to redress its claimed injury, Lonza is entitled to

- 2 - the dismissal of the unjust enrichment claim.

CONCLUSION

Lonza's motion to dismiss (Doc. No. 19) is granted.

SO ORDERED.

/s/Paul Barbadoro__________ Paul Barbadoro United States District Judge

November 7, 2 005

cc: John E. Friberg, Esg. Timothy J. O'Brien, Esg. William A. Pribis, Esg. A. Robert Ruesch, Esg.

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