United States District Court, D. Massachusetts
RICHARD HISERT, Manager, on behalf of H2H ASSOCIATES, LLC, Plaintiff,
BLUE WATERS DREDGING LLC, DAVID URBANI, HERBERT HASCHEN, and DOROTHY B. WILLIAMS, Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS URBANI'S AND
HASCHEN'S MOTIONS TO DISMISS
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
an action arising out of a contract dispute concerning a
marine dredging project. In July 2015, the Army Corps of
Engineers awarded plaintiff H2H Associates, LLC a contract
for a dredging project in Cohasset Harbor in Massachusetts.
H2H subcontracted with defendant Blue Waters Dredging LLC to
perform work on that project (“BWD”). The
verified amended complaint alleges that BWD failed to perform
under the contract as promised and repeatedly made false
statements and threats to induce H2H to make payments to BWD
not due under the contract. The complaint alleges three
counts under Massachusetts law for breach of contract, breach
of the implied covenant of good faith and fair dealing, and
Herbert Haschen and David Urbani have separately moved to
dismiss the complaint. For the following reasons,
Urbani's motion will be denied, and Haschen's motion
will be granted in part and denied in part.
following facts are set forth as alleged in the verified
H2H Associates, LLC, is a New York limited liability company.
(Hisert Aff.). Richard Hisert is the sole manager and member
of H2H. (Am. Compl. ¶ 4).
Blue Waters Dredging LLC is a Maryland limited liability
company. (Id. ¶ 6). At all relevant times,
defendants Herbert Haschen, David Urbani, and Dorothy B.
Williams were members of BWD and residents of Maryland.
(Id. ¶¶ 12-14). Urbani is also a principal
member of Morris Street Financial LLC, a finance company
funding BWD. (Id. ¶ 12; Id. Ex. A).
Prime Contract with the ACOE
13, 2015, the Army Corps of Engineers (“ACOE”)
awarded H2H the prime contract for a marine dredging project
in Cohasset Harbor in Massachusetts. (Id. ¶ 5).
H2H secured a 100% performance and payment bond with
International Fidelity Insurance Company in the amount of $1,
703, 090, as required by the prime contract. (Id.
¶ 8). The prime contract required H2H to maintain
sufficient capacity and equipment to complete the project by
January 31, 2016. (Id. ¶¶ 21-22, 45). It
further required H2H to propose a schedule of equipment
needed to meet that deadline, subject to the ACOE's
approval. (Id. ¶ 24).
Subcontract with BWD
August 27, 2015, H2H subcontracted with BWD to perform work
on the project for a price of $1, 194, 611. (Id.
¶¶ 7, 10). The subcontract required BWD to provide
all “materials, labor, [and] equipment to dredge
Cohasset Harbor.” (Id. ¶ 9). Also on
August 27, Urbani, Haschen, and Williams submitted equipment
specifications to H2H. (Id. ¶ 23). Thereafter,
H2H sent an equipment list containing BWD's
specifications to the ACOE and received approval.
(Id. ¶¶ 24-25).
specifications submitted by BWD and approved by the ACOE
included an Ellicott Series 670 Booster Pump that was
necessary to perform the dredging work. (Id. ¶
23). BWD arrived at the job site to commence work on October
3, 2015. However, it did not have the required booster pump
and thus the dredging operations could not be performed.
(Id. ¶¶ 28, 31).
amended complaint alleges that on October 21, 2015, nearly
three weeks later, defendants represented to H2H that
BWD's financial condition did not allow it to purchase or
lease a booster pump, and requested financing to procure a
pump. (Id. ¶¶ 33, 37). Despite that
representation, on October 22, defendants admitted they had
arranged to purchase a new booster pump the previous month in
order to save $100, 000, but that the new pump had not been
built in time for work to begin. (Id. ¶¶
34-35). The next day-after BWD had already missed 18
good-weather days suitable for dredging in October-H2H loaned