Submitted: July 12, 2019
Motions to Dismiss Denied in Part; Granted in Part
Christopher Componovo, Esquire, Esquire of Kimmel &
Silverman, P.C., Wilmington, Delaware; attorney for
M. Ernst, Esquire of O'Kelly Ernst & Joyce, LLC,
Wilmington, Delaware; attorney for Defendant Conboy &
Mannion Contracting, Inc.
A. Campbell, Esquire of the Law Office of Dean A. Campbell,
P.A., Georgetown, Delaware; attorney for Mid-Atlantic
Electrical Service, Inc.
William L. Witham. Jr. Resident Judge.
before the Court are Defendants Conboy and Mannion
Contracting, Inc. (hereinafter "Defendant C&M")
and Mid-Atlantic Electrical Service, Inc. (hereinafter
"Defendant Mid-Atlantic) and their Motions to Dismiss
Plaintiff Kiss Electric, LLC's (hereinafter
"Plaintiff) breach of contract, unjust enrichment, and
tortious inference claims against both Defendants pursuant to
Superior Court Rules of Civil Procedure Rule 12(b)(1).
considering Defendants' motions, Plaintiffs responses, in
opposition, and the record, the Court GRANTS IN PART
and DENIES IN PART Defendants' Motions to
AND PROCEDURAL HISTORY
Plaintiff is an electrical installation company that
maintains an office at 5921 Bistol-Emilie Road, Levittown,
Defendant C&M is a New York based construction company,
which maintains an office at 36 Phila Street, Sarasota
Springs, New York 12866.
Defendant Mid-Atlantic Electrical Service is an electrical
services company which maintains an office at 24556 Betts
Pond Road, Millsboro, Delaware 19966.
alleged acts and omissions claimed by Plaintiff occurred
primarily in Dover, Delaware.
May 4, 2017, Defendant C&M hired Plaintiff to perform
electrical services at Panera Bread, located at 545 N. DuPont
Hwy in Dover, Delaware. Defendant C&M and Plaintiff
entered into a contract that provided Plaintiff would be paid
$157, 500.00 by Defendant Conboy and Mannion for its
contract contained several provisions of note. First, it
contained an integration clause that stated:
...writing constitute[d] the entire agreement of the parties
and supercedes all prior negotiations, discussions,
representations, understandings [, ] or agreements with
respect to the subject matter hereof and may not be
specifically referring to this Agreement signed by all of the
it also contained a choice of law provision stating that the
Contract and any amendments:
[S]hall be governed by and construed in accordance with the
law of the State of New York applicable to contracts made and
to be performed entirely therein.
the Contract contained a provision requiring arbitration. The
Contract specifically states:
Any controversy or claim arising out of or relating to this
contract, or the breach thereof, shall be settled by
arbitration in Saratoga Springs, New York, administered by
the American Arbitration Association (hereinafter
specific arbitration clause further stated:
Notice of demand shall be filed with the AAA within one
hundred twenty (120) days after a dispute first
May 8, 2017, Plaintiff hired Defendant Mid-Atlantic as a
sub-contractor to perform electrical services at the Panera
Bread. Defendant C&M was allegedly aware that
Plaintiff had hired Defendant Mid-Atlantic as a
sub-contractor and expressed its acceptance of the
arrangement at multiple times between May 2017 through August
agreement regarding the procedure for payment between the
parties appears to be that Defendant C&M would pay
Plaintiff and then in turn, Plaintiff would pay Defendant
Mid-Atlantic. From May 2017 to July 2017, Defendant
C&M made timely installment payments to Plaintiff and
Plaintiff made timely payments to Defendant Mid-Atlantic.
August 2017 and for reasons unknown, Defendant C&M
withheld payments to Plaintiff regarding the reminder of its
outstanding balance. As a result, Plaintiff was not paid for
expenses or payments made to Defendant Mid-Atlantic.
Defendant Mid-Atlantic then asserted that Plaintiff was late
in its payment.
not receiving payment from Plaintiff, Defendant Mid-Atlantic
sought payment directly from Defendant C&M. Defendant
C&M agreed to pay Defendant Mid-Atlantic.
December 1, 2017, Plaintiff filed a mechanic's lien in
this Courtagainst property located at 545 N. DuPont
Hwy. in Dover. On March 23, 2018, the mechanic's
lien was discharged with consent of Plaintiff after Defendant
C&M paid the bond to the Court. This Court currently
still holds that bond.
Plaintiff filed its current action, based in contract and
tort, on December 13, 2018.
response, two dismissal motions have been filed in this
Court. First, Defendant C&M filed a Motion to Dismiss on
March 27, 2019. Second, Defendant Mid-Atlantic followed with
its own Motion to Dismiss on April 1, 2019.
Court heard this matter at oral argument on July 12, 2019.
Defendants' Contentions Regarding Their Motions to
Defendants share many of the same arguments in their motions,
but differ in some areas due to the allegations against each
individually by Plaintiff.
crux of Defendant C&M's argument supporting their
motion is that this Court lacks jurisdiction over Plaintiffs
cause of action. It specifically argues that the
arbitration clause contained in the contract trumps any
subject matter jurisdiction that this Court may have had
otherwise. Defendant C&M also asserts that
Plaintiffs claim was filed well beyond the 120 days the
Contract allows to file a notice of demand for
Defendant Mid-Atlantic appears to nearly mirror Defendant
C&M's arguments asserting the Court's lack of
subject matter jurisdiction in this case and the untimeliness
of Plaintiff s filing. Notably absent is any inference that
New York law applies to its contract.
Plaintiffs Contentions Regarding Defendants' Motions to
Dismiss Based on Breach of Contract Theory
In regards to Defendant C&M.
Plaintiffs reply, in opposition, to Defendant C&M's
motion asserts that this Court does in fact have subject
matter jurisdiction, notwithstanding the arbitration
provision contained in the Contract. Plaintiff makes four
primary arguments in its response.
First, Plaintiff argues that Defendant C&M's
participation in its mechanic's lien action effectively
waived its right to enforce the arbitration
clause.Plaintiff specifically points to
Defendant C&M's lack of argument regarding the
arbitration clause during it's mechanic's lien
Second, Plaintiff contends the dispute arose on August 27,
2017 which led to the mechanic's lien being filed in this
Court on December 1, 2017, 96 days after the dispute
arose. Plaintiff contends that by filing the
mechanic's lien within the 120 day period, it is timely
filed. Regardless, Plaintiff asserts that the applicable
statue of limitations regarding filing is tolled because of
the mechanic's lien action.
Third, Plaintiff argues that the arbitration provision of the
Contract is unenforceable as a matter of law. Plaintiff
asserts that because the contract's 120 day limitation
shortens the Delaware statute of limitations by nearly 90%,
the limitation is insufficient and unenforceable under
Delaware law. Additionally, Plaintiff contends that
the arbitration clause would have precluded Plaintiff from
filing and enforcing a mechanic's lien in the only matter
that Delaware law allows, adding support for why the
provision is unenforceable.
In regards to Defendant Mid-Atlantic.
Plaintiffs arguments in response to Defendant
Mid-Atlantic's motion appear similar to its arguments
previously made in response to Defendant C&M's motion
in regards to breach of contract. Plaintiff does provide
additional amplification of its arguments, however, due to