Unity School District, Plaintiff v. Vaughn Associates, Inc., and Scott Vaughn, Defendants v. School Administrative Unit #6, Excel Mechanical, Inc., Superior Walls of Hudson Valley, Inc., a/k/a Superior Walls by Weaver Northeast, a/k/a Superior Walls of the Northeast, LLC, and Town of Unity, Third-Party Defendants

2020 DNH 017

• Court: District Court, D. New Hampshire
• Decided: February 5, 2020
• Docket: 15-cv-155-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Unity School District, Plaintiff

v. Case No. 15-cv-155-SM Opinion No. 2020 DNH 017 Vaughn Associates, Inc., and Scott Vaughn, Defendants

v.

School Administrative Unit #6, Excel Mechanical, Inc., Superior Walls of Hudson Valley, Inc., a/k/a Superior Walls by Weaver Northeast, a/k/a Superior Walls of the Northeast, LLC, and Town of Unity, Third-Party Defendants

O R D E R

In 2010, the Unity School District hired Vaughn Associates

and Scott Vaughn (collectively, “Vaughn”) to design and oversee

construction of a new elementary school in Unity, New Hampshire.

The project did not proceed as the School District had

envisioned. Construction was beset with delays and forced work

stoppages (by, for example, the state fire marshal). Costs

ballooned from the $4.7 million that Vaughn had promised to more

than $9 million. Eventually, Vaughn’s contracts with the School

District were terminated and the School District sued Vaughn for damages. Those claims were settled and, in April of 2017, the

School District’s suit against Vaughn was dismissed. See

Stipulation of Dismissal (document no. 100).

At that point, what remained were Vaughn’s third-party

claims against two subcontractors on the project: Excel

Mechanical, Inc., and Superior Walls of the Hudson Valley, Inc.

By order dated November 19, 2019, the court granted Excel’s

motion for summary judgment on all of Vaughn’s third-party

claims against it. So, the sole remaining claims are those

Vaughn asserts against Superior Walls of the Hudson Valley, Inc.

(“Superior Walls”).

Pending before the court is a motion to dismiss, filed by

Superior Walls by Weaver Northeast (“Weaver Northeast”). As the

court just noted, Vaughn’s third-party claims are against

Superior Walls. Weaver Northeast is never mentioned in the body

of the third-party complaint, nor is any wrongdoing attributed

to it. But, in the complaint’s caption, Vaughn listed Weaver

Northeast as an alternate name under which Superior Walls also

does business. That is, Vaughn’s third-party complaint names as

the third-party defendant “Superior Walls of the Hudson Valley,

Inc., a/k/a Superior Walls by Weaver Northeast.” Third Party

Complaint (document no. 8) (emphasis supplied).

2 But, says Weaver Northeast, it is not an alias or an

“a/k/a” of the third-party defendant Superior Walls. Instead,

it claims to be an entirely separate and distinct legal entity.

And, as such, it says it was entitled to proper service of

process and notice of these proceedings. According to Weaver

Northeast, it was never properly served as a third-party

defendant in this action and, therefore, it moves to dismiss all

of Vaughn’s claims against it. Vaughn objects.

Discussion

Federal Rule of Civil Procedure 12(b)(5) provides for

dismissal of a claim if service of process was not properly

made. And, “once challenged, plaintiffs have the burden of

proving proper service.” Rivera-Lopez v. Municipality of

Dorado, 979 F.2d 885, 887 (1st Cir. 1992). When service of

process is properly challenged, “[a] return of service generally

serves as prima facie evidence that service was validly

performed.” Blair v. City of Worcester, 522 F.3d 105, 111 (1st

Cir. 2008).

Initially, the court notes that Weaver Northeast has not

made a serious effort to call into question whether it was

entitled to separate service of process and, if so, whether the

service Vaughn actually made was proper. To be sure, in its

3 motion, Weaver Northeast makes numerous factual claims about its

independent corporate status and the alleged lack of authority

of various individuals to accept service on its behalf. It has

not, however, supported any of those claims with affidavits or

exhibits. Consequently, there is no evidence in the record that

Weaver Northeast is, as it claims, “an entirely separate

business entity from Superior Walls.” Motion to Dismiss

(document no. 150) at 1. See generally A.T. through Travis v.

Newark Corp., No. 4:16-CV-448-SNLJ, 2017 WL 5070421, at *2 (E.D.

Mo. Nov. 3, 2017). See also Peavy v. Labor Source, No. 15-2633-

JAR, 2015 WL 4617419 (D. Kan. July 31, 2015) (defendant moved to

dismiss for improper service, claiming it was not a “d/b/a” of

another defendant and was, therefore, entitled to separate

service of process – claims it supported with affidavits

addressing relevant disputed factual matters). Nor, in the

alternative, has Weaver Northeast requested an evidentiary

hearing on the matter. See generally Blair, 522 F.3d at 111

(“factual disputes regarding agency [that is, authority of

individuals to accept service of process] should typically be

resolved only after a live hearing.”).

In response to Weaver Northeast’s motion, Vaughn claims

that it served “Superior Walls of the Hudson Valley, Inc., a/k/a

Superior Walls by Weaver Northeast,” at its place of business in

4 Poughkeepsie, New York, on July 7, 2015. Process was accepted

by Karen Ackert, wife of Superior Walls’ CEO. See Return of

Service (document no. 23). See also Affidavit of Counsel

(document no. 31). Three months later, Vaughn appears to have

again made service upon the named third-party defendant by

personally serving Arthur Ackert, CEO of Superior Walls. See

Proof of Service (document no. 33). See generally Blair, 522

F.3d at 111.

Of course, if Weaver Northeast is a separate legal entity

distinct from Superior Walls, then evidence of Vaughn’s service

upon Superior Walls is entirely beside the point. Yet, nowhere

in its objection does Vaughn clearly and supportably state that

it properly served a legal entity known as Weaver Northeast.

Nor, on the other hand, has Vaughn presented evidence in support

of its “belief” that Weaver Northeast is simply another name for

Superior Walls, and not a distinct legal entity unto itself.

Moreover, given Vaughn’s position that Superior Walls and

Weaver Northeast are the same entity, it is unclear why Vaughn

even mentioned Weaver Northeast in the caption of its complaint.

Vaughn specifically states that the only entity with which it

ever had dealings was one calling itself Superior Walls.

5 To be clear, at the time of the alleged conduct that forms the basis of Vaughn’s third party claims against Superior Walls, Vaughn was dealing with the entity named “Superior Walls of the Hudson Valley.” However, at the time that Vaughn filed the Third Party Complaint, Vaughn found sufficient evidence that these names all referred to the same entity and that they still do.

Vaughn’s Opposition Memorandum (document no. 154) at 5 (emphasis

supplied). If that is accurate, it would seem that naming and

properly serving Superior Walls was sufficient. In other words,

if, as Vaughn claims, the names used in the third-party

complaint – that is, Superior Walls and Weaver Northeast – both

refer to the same legal entity (Superior Walls), then it appears

that that entity has been properly served. It is unclear why

(or even how) Vaughn would make separate service of process on

Superior Walls’ “alias” or its “a/k/a” other than by service on

Superior Walls itself. 1

It is impossible to tell from the record whether Weaver

Northeast is a separate legal entity that was entitled to proper

service of process (as Weaver claims) and, if so, whether Vaughn

1 Based on Vaughn’s position that Superior Walls and Weaver Northeast are the same legal entity, it does not appear that Vaughn is naming separate, but related, legal entities with a view toward piercing corporate veils or imposing liability on corporate alter egos, should Superior Walls be found liable, but have insufficient assets to pay any damages award. Given the state of the parties’ briefs, however, it is difficult to draw any conclusions with confidence.

6 properly served that entity. Nor is it possible to determine

whether Weaver Northeast is simply another name under which

Superior Walls operates (as Vaughn claims).

Conclusion

The arguments and contentions on both sides are convoluted

and insufficiently supported. Weaver Northeast’s motion to

dismiss for lack of proper service of process is denied. But,

because the court cannot conclude that Vaughn has properly

served all defendants entitled to such service, the motion is

denied without prejudice to renewing, with appropriate legal and

factual support (provided, of course, that such a motion can be

filed in good faith).

Parenthetically, the court notes that, like Vaughn’s third

party claims against Excel, the claims asserted against Superior

Walls seem to lend themselves to relatively straight-forward

resolution on summary judgment. The third-party defendant(s)

have chosen to focus on the issue of service of process, as is

their prerogative. But, a more efficient and cost-effective

resolution to this long-lingering dispute may be found in

considering the merits of Vaughn’s claims.

7 Superior Walls by Weaver Northeast’s motion to dismiss for

lack of proper service (document no. 150) is denied, albeit

without prejudice.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

February 5, 2020

cc: All Counsel of Record