Precision Sampling Incorporated v. EA Engineering, Science and Technology Incorporated

Filing 16

ORDER - IT IS ORDERED GRANTING defendant's motion for judgment on the pleadings (doc. 7 ). All that remains in this case is defendant's counterclaim. Signed by Judge Frederick J Martone on 2/13/13. (LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15

)
)
)
Plaintiff,
)
)
vs.
)
)
EA Engineering, Science and Technology,)
)
Inc.,
)
)
Defendant.
)
)
Precision Sampling, Inc.,

No. CV 12-02228-PHX-FJM
ORDER

16
17
The court has before it defendant’s motion for judgment on the pleadings (doc. 7),
18
plaintiff’s response (doc. 9), and defendant’s reply (doc. 13).
19
Plaintiff Precision Sampling, Inc. provides geotechnical and groundwater sampling
20
services. In March 2012, plaintiff contracted with defendant EA Engineering, Science and
21
Technology, Inc. in connection with defendant’s work on the Iron King Mine in Dewey22
Humbolt, Arizona. The Iron King Mine is a “Superfund” contaminated site. Pursuant to a
23
Subcontractor Service Order Agreement dated April 16, 2012 (the “Agreement”), plaintiff
24
agreed to provide geological and environmental sampling services for defendant. Disputes
25
arose regarding plaintiff’s performance and defendant’s payment for the services. Before the
26
project was completed, defendant agreed to pay plaintiff certain sums in an effort to resolve
27
the disputes. However, defendant subsequently refused to make the promised payment.
28

1

Plaintiff then filed this action asserting claims for breach of contract and unjust enrichment.

2

Defendant filed a counterclaim, alleging that plaintiff breached the Agreement by failing to

3

properly perform its duties. Defendant now moves to dismiss, claiming that under A.R.S.

4

§ 32-1153 plaintiff is barred from filing this action because it did not have a contractor’s

5

license as required by A.R.S. § 32-1151.

6

A.R.S. § 32-1151 provides that “[i]t is unlawful for any person [or organization] to

7

act in the capacity . . . of a contractor without having a contractor’s license.” If a contractor,

8

as defined in § 32-1101, violates the licensing requirement, he is prohibited from

9

“commenc[ing] or maintain[ing] any action in any court of the state for collection of

10

compensation for the performance of any act for which a license is required.” The statute

11

requires that a contractor have the requisite license at the time the work is bid and performed.

12

The purpose of the act is to “furnish protection to the public by strict licensing requirements

13

even where harsh consequences fall upon those who do contracting work in good faith

14

without an appropriate license.” Schlicht v. Curtin, 117 Ariz. 30, 32, 570 P.2d 801, 803 (Ct.

15

App. 1977).

16

Defendant argues that plaintiff has failed to establish that it had an Arizona

17

contracting license when it contracted with defendant and performed the work for which it

18

now seeks payment. Plaintiff contends that it was not acting as a contractor as that term is

19

defined by the statute, and therefore § 32-1153 does not bar this action. Therefore, the issue

20

before us is whether plaintiff was acting as a “contractor” under the Agreement, such that it

21

was required to have a license.

22
23
24
25

A.R.S. § 32-1101(A)(3) defines “contractor” as “synonymous with the term ‘builder’”
and means any person, firm, or other organization that
for compensation, undertakes to or offers to undertake to, purports to have the
capacity to undertake to, submits a bid or responds to a request for
qualification or a request for proposals for construction services to, does
himself or by or through others, or directly or indirectly supervises others to:

26
27
28

(a) Construct, alter, repair, add to, subtract from, improve, move, wreck or
demolish any building, highway, road, railroad, excavation or other structure,
project, development or improvement, or to do any part thereof, including the
erection of scaffolding or any other structure or work in connection with the
-2-

1

construction.

2

Plaintiff argues that the environmental testing activities it was performing under the

3

contract do not fit within any of the services listed in the statute and therefore it was not a

4

“contractor” as that term is defined in § 32-1001. It argues instead that its activities under

5

the contract included “plac[ing] pumps, screens and other devices in boreholes for the

6

purpose of sampling groundwater and other material in order to test for contaminants.”

7

Response at 3 (emphasis in original).

8

The Agreement provides that the “Subcontractor must be licensed by the Arizona

9

Department of Water Resources and Arizona Registrar of Contractors for borehole drilling

10

and well installation in the State of Arizona.” Answer, ex. A at 10. Plaintiff agreed to this

11

requirement when it signed the contract. Although this contractual provision does not

12

determine the applicability of § 32-1001, it does serve to estop plaintiff from now asserting

13

that it was not required to have a license.

14

The Arizona Administrative Code, promulgated by the Registrar of Contractors,

15

provides that an A4 Drilling license is required for “Drilling [which] includes horizontal and

16

vertical drilling or boring, constructing, deepening, repairing, or abandoning wells; . . . and

17

constructing dry wells, and monitor wells.” Ariz. Admin. Code R4-9-102(B).

18

Under the Agreement, plaintiff agreed to, among other things, “Advance minium 8-

19

inch diameter air rotary borehole for two-colocated wells”; “A maximum of three boreholes

20

will be drilled utilizing a Mud Rotary drill rig to depths of approximately 40 feet bgs to

21

collect geotechnical samples”; “Construct shallow approximate 50-foot bgs well”; and

22

“Construct deep approximate 300-bgs well.” Answer, ex. A at 7. Moreover, the “Statement

23

of Work” section of the Agreement provides that plaintiff will perform “Drilling Services

24

which involve drilling, geotechnical sampling, well construction, well development, transport

25

and staging of drill cuttings and development water.” Id. at 10.

26

The Agreement required plaintiff to construct monitor wells and drill boreholes. The

27

regulations require an A4 Drilling License for drilling, boring, or constructing monitor wells.

28

Plaintiff agreed that it “must be licensed by the Arizona Department of Water Resources and
-3-

1

Arizona Registrar of Contractors for borehole drilling and well installation.” Id. It is now

2

estopped from asserting otherwise. Under the plain language of the Agreement and the

3

regulations, plaintiff was required to have a license at the time it entered into the Agreement

4

and performed the work. Plaintiff has failed to “alleg[e] and prov[e] that [it] was a duly

5

licensed contractor.” A.R.S. § 32-1153. Therefore, we conclude that, under § 32-1153,

6

plaintiff is prohibited from maintaining this action.

7
8
9

IT IS ORDERED GRANTING defendant’s motion for judgment on the pleadings
(doc. 7). All that remains in this case is defendant’s counterclaim.
DATED this 13th day of February, 2013.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-