Unity School District v. Vaughn Associates, Inc. et al

Filing 158

ORDER denying without prejudice 150 Motion to Dismiss Third Party Complaint. So Ordered by Judge Steven J. McAuliffe.(lw)

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

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Third Party

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.

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To be sure, in its

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.”
(document no. 150) at 1.

Motion to Dismiss

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

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Poughkeepsie, New York, on July 7, 2015.

Process was accepted

by Karen Ackert, wife of Superior Walls’ CEO.
Service (document no. 23).
(document no. 31).

See Return of

See also Affidavit of Counsel

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.
Proof of Service (document no. 33).

See

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.

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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

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.
1

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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.

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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

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