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Audubon Engineering Company, LLC v. International Procurement and Contracting Group, LLC

United States District Court, D. Delaware

July 6, 2015


Andrew D. Cordo, Esquire, F. Troupe Mickler IV, Esquire Ashby & Geddes, Wilmington, Delaware, Attorneys for Plaintiff.

Evan O. Williford, Esquire, The Williford Firm LLC, Wilmington, Delaware, Sheldon S. Toll, Esquire, Law Office of Sheldon S. Toll PLLC, Southfield, Michigan, Attorneys for Defendants.


LEONARD P. STARK, District Judge.


Plaintiffs Audubon Engineering Company, LLC and Audubon Engineering Solutions, LLC (collectively, "Audubon" or "Plaintiffs") filed this suit for breach of contract against International Procurement and Contracting Group, LLC ("IPCG" or "Defendant"). IPCG asserted counterclaims for breach of contract, negligence, and breach of the implied covenant of good faith and fair dealing. Presently before the Court are Plaintiffs' Motion for Summary Judgment (D.I. 35), Plaintiffs' request for attorneys' fees and court costs (D.I. 36 at 17-18), and Plaintiffs' Motion to Exclude Opinions of John C. Bourdon (D.I. 47). For the reasons that follow, the Court will grant Plaintiffs' Motion for Summary Judgment, grant Plaintiffs' request for attorneys' fees and court costs, and deny as moot Plaintiffs' Motion to Exclude Opinions of John C. Bourdon.


A. Factual Background

On March 21, 2012, Audubon and IPCG entered into a settlement agreement ("the Agreement") to resolve litigation pending in the United States District Court for the Eastern District of Michigan. (D.I. 37, ex. 2) As a result of the Agreement, Audubon agreed to perform work pursuant to a proposal attached to the Agreement ("the Proposal"). (D.I. 37, ex. 2 at 2) Pursuant to Contract #1 of the Proposal, Audubon was to perform three milestones ( id., ex. 2, Proposal at 17). Certain terms of the Proposal were modified in the Agreement, none of which is relevant in resolving the instant motions. ( Id., ex. 2 at 2). Except as modified in the Agreement, the payment terms, dates, and services were to be performed as per the Proposal. ( Id., ex. 2 at 3) Milestone I was completed by the award of Contract #1 to Audubon, and JPCG made the required $200, 000.00 payment to Audubon. (D.I. 36 at 5)

The disputes in this suit focus on Milestones 2 and 3. Milestone 2 required Audubon to issue engineering drawings for approval. (D.I. 2, ex. 2, Proposal at 17) Milestone 3 required Audubon to issue Major Equipment Procurement Packages for purchase. ( Id. ) During the work on Milestone 2, a dispute arose regarding IPCG's requests for certain drawings in native, changeable format. ( See D.I. 37, ex. 4 at 1-2) Audubon asserted that the native files and simulations are its intellectual property, and refused the request, arguing nonetheless that Audubon was complying with its standards as incorporated by the Agreement. ( Id. at 1) IPCG requested other items, which Audubon alleges were outside of the scope of Contract #1 and could not be provided. ( Id., ex. 11; id. ex. 12) In addition to the native files, IPCG requested that Audubon modify its deliverables under Milestone 2 to use SI units rather than English units; the parties executed a Change Order memorializing that Audubon would perform this extra work at an additional cost of $40, 320.00. (D.I. 37, ex. 9) Audubon billed IPCG for its performance on Milestone 2, excluding the Change Order, and Audubon was paid in full on September 12, 2012. ( Id. ex. 10; D.I. 36 at 7)

With respect to Milestone 3, Audubon asserts that it performed the work and issued bid packages on October 15, 2012. (D.I. 37, ex. 13; id., ex. 14 at 3) Audubon asserts that it received no comments from IPCG on performance of Milestone 3, and that it issued an invoice seeking payment of $560, 320.00 for both the bid packages under Milestone 3 and the Change Order. ( Id. ex. 15; see also D.I. 9 at ¶ 15 (admitting existence of invoice)) IPCG would not pay until the native drawings were released, and Audubon would not release the native drawings until a liability release was signed for the drawings. (D.I. 37, ex. 19 at 3) Audubon asserts that IPCG never signed the release, and thus Audubon never provided the files. ( Id., ex. 21) A dispute also arose about provision of certain drawings related to civil construction of the project foundation and skids, which Audubon asserts were required under Contract #3 rather than Contract #1, and could not be provided until vendors were chosen. (D.I. 36 at 6; D.I. 37, ex. 11; D.I. 37, ex. 12)

B. Procedural History

On June 17, 2013, Plaintiffs filed this action against Defendant in the Superior Court of the State of Delaware in and for New Castle County. (D.I. 1 at ¶ 1) On July 18, 2013, Defendant filed a notice of removal in this Court pursuant to 28 U.S.C. § 1441, alleging jurisdiction under 28 U.S.C. § 1332(a)(1). (D.I. 1) On August 8, 2013, Defendant filed its Answer, asserting three counterclaims against Plaintiffs. (D.I. 9) On November 14, 2014, Plaintiffs filed the instant Motion for Summary Judgment. (D.I. 35) Briefing was completed on January 12, 2015. (D.I. 36; D.I. 37; D.I. 39; D.I. 40; D.I. 41)


"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). An assertion that a fact cannot be - or, alternatively, is - genuinely disputed must be supported either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. ...

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