SEVENSON ENVIRONMENTAL SERVICES, INC. v. WATERSOLVE, LLC

Filing 122

OPINION. Signed by Judge Joseph H. Rodriguez on 6/25/2020. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SEVENSON ENVIRONMENTAL
SERVICES, INC.,

:

Plaintiff,

Defendant/Third-Party Plaintiff,

Third-Party Defendants.

OPINION

:

WATERSOLVE, LLC,

COWI N. AM. INC., COWI
MARINE N. AM. and OCEAN
& COASTAL CONSULTANTS,

Civil No. 16-5158-JHR-KMW

:

v.

v.

Hon. Joseph H. Rodriguez

:

:
:
:
:
:
:

This case comes before the Court upon the Motion to Dismiss filed by Third-Party
Defendants, COWI North America Inc., COWI Marine North America, and Ocean and
Coastal Consultants (collectively “COWI”). [Dkt. No. 116]. The Court has reviewed the
submissions of the parties and considered the motion on the papers in accordance with
Federal Rule of Civil Procedure 78. For the reasons set forth below, Third-Party
Defendants’ Motion [Dkt. No. 116] will be granted.
Background
This case arises from a dredging project (the “Project”) in the Borough of Stone
Harbor, New Jersey (“Stone Harbor”). [Dkt. No. 1, ¶¶ 5-6.] Stone Harbor hired COWI to
oversee the Project. [Dkt. No. 87-4, at 143:13-25.] All dredging work plans and
dewatering plans for the Project were to be submitted to and approved by COWI. [Id. at
246:17-247:1.]
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In September of 2015, Plaintiff, Sevenson Environmental Services, Inc.
(“Sevenson”), submitted a bid for a contract with Stone Harbor to perform dredging
services. [Dkt. No. 1, ¶¶ 7-13.] On October 8, 2015, Stone Harbor awarded the bid for the
Project to Sevenson. [Id. ¶ 13.] Thereafter, Sevenson and WaterSolve entered into an
Agreement (the “Agreement”) in which WaterSolve would assist Sevenson with the
Project. [Id. ¶ 14.]
Shortly after the Project began, there were issues with the dewatering system. [Id.
¶ 15.] As a result, Stone Harbor ordered the cessation of dredging on December 8, 2015,
pursuant to an order issued by the New Jersey Department of Environmental
Protection, Office of Dredging and Sediment Technology (“NJDEP”). [Id. ¶ 16.]
Dredging later recommenced on February 16, 2016. [Id. ¶ 19.] Again, the dewatering
system failed, and on March 23, 2016, the NJDEP suspended the permit despite
Sevenson’s attempt to remedy the issues. [Id. ¶¶ 19-21.] Sevenson then canceled its
contract with WaterSolve and filed an action against WaterSolve on August 24, 2016.
[Id. ¶ 22; Dkt. No. 1.]
After two years of motions practice, WaterSolve filed a Motion for Leave to File a
Third-Party Complaint. [Dkt. No. 87.] The Proposed Third-Party Complaint asserted
claims against COWI for contribution and indemnity. [Id.] WaterSolve argued that
“COWI was involved with and/or possibly responsible for claims averred by Sevenson.”
[Id. at 8.] On August 9, 2019, despite being unopposed, the Motion was held deficient
and subsequently denied. [Dkt. No. 93.] The Court held that “the Proposed Third-Party
Complaint fail[ed] to state any genuine averments of fact and is notable for its failure to
plead any non-conclusory factual allegations.” [Id. at 5 (emphasis original).]

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Additionally, the Court held that WaterSolve’s Motion failed to address the factors
utilized to determine whether a Rule 14 joinder is appropriate. [Id. at 5-6.]
On September 17, 2019, WaterSolve filed an amended Motion for Leave to File a
Third-Party Complaint. [Dkt. No. 94.] Again, the Motion was unopposed. [Id.] On
November 7, 2019, this amended motion was denied. [Dkt. No. 99.] The Court, focusing
on a section of the Proposed Third-Party Complaint entitled “LIABILITY,” held the
amended Proposed Third-Party Complaint was “deficient as it claim[ed] COWI’s actions
and/or inactions proximately caused Sevenson’s damages — all the while also claiming
that WaterSolve’s actions and/or inactions proximately caused Sevenson’s damages.”
[Id. at 5.]
On November 8, 2019, WaterSolve filed a third unopposed amended Motion.
[Dkt. No. 100.] Notably, this Proposed Third-Party Complaint only removed the abovementioned “LIABILITY” section of the previous version of the Proposed Third-Party
Complaint. [Compare Dkt. No. 100-5, Exh. K, with Dkt. No. 94-5, Exh. K.] On this third
attempt, the Court granted Defendant's Motion Seeking Leave to File a Third-Party
Complaint. [Dkt. No. 107.] COWI then moved to dismiss this third-party complaint.
[Dkt. No. 116.] WaterSolve then filed a brief in opposition of dismissal on February 18,
2020. [Dkt. No. 118.] COWI filed a reply in support of dismissal on February 24, 2020.
[Dkt. No. 119.]
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a
complaint “for failure to state a claim upon which relief can be granted.” In order to
survive a motion to dismiss, a complaint must allege facts that raise a right to relief
above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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(“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.”) (internal
quotation omitted); see also FED. R. CIV. P. 8(a)(2). While a court must accept as true all
allegations in a plaintiff's complaint, and view them in the light most favorable to the
plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not
required to accept sweeping legal conclusions cast in the form of factual allegations,
unwarranted inferences, or unsupported conclusions, Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997). The complaint must state sufficient facts to show that
the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. “A
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
Thus, a motion to dismiss should be granted unless the plaintiff's factual
allegations are “enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 556 (internal citations omitted). “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged – but it has not ‘shown’ – ‘that the pleader is entitled to relief.’” Iqbal, 556
U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
As the Court noted in its Order denying WaterSolve’s first Motion to file a thirdparty complaint, a third-party claim may be asserted under Federal Rule of Civil
Procedure 14(a) only when the third party's liability is in some way dependent on the
outcome of the main claim or when the third-party is secondarily liable to the
defendant. See [Dkt. No. 93, at 5;] see also FED. R. CIV. P. 14(a). If the claim is separate
or independent from the main action, impleader will be denied. See [Dkt. No. 93, at 5;]
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see also F.D.I.C. v. Bathgate, 27 F.3d 850, 873 (3d Cir. 1994). While a third-party claim
does not need to be based on the same theory as the main claim, third-party claims must
be brought under a theory of derivative liability such as indemnification or contribution.
See Toberman v. Copas, 800 F. Supp. 1239, 1242 (M.D. Pa. 1992); see also [Dkt. No. 93,
at 5.] “Courts have stringently followed the rule that a third-party complaint may not set
forth a claim of the third-party defendant’s liability to the plaintiff,” and it is clear that a
“theory that another party is the correct defendant is not appropriate for a third-party
complaint.” Slater v. Skyhawk Transportation, Inc., 187 F.R.D. 185, 203 (D.N.J. 1999)
(quoting Toberman, 800 F. Supp. at 1242). “A third-party complaint that does not make
a facial showing of secondary liability will not be entertained by the court.” Ronson v.
Talesnick, 33 F. Supp. 2d 347, 358 (D.N.J. 1999) (superseded on other grounds by
statute).
Discussion
Third-Party Plaintiff, WaterSolve, alleges it is entitled to relief from Third-Party
Defendant, COWI, based on the theories of contribution and indemnification. [Dkt. No.
108, ¶ 22.] COWI, in its Motion to Dismiss, argues (1) there is no basis for contractual
contribution or indemnification, (2) there is no basis for common law contribution, and
(3) there is no basis for common law indemnification. 1 [Dkt. No. 116.] The Court will
address each argument in turn.
I.

Contractual Contribution

Third-Party Defendants also assert an argument that the Economic Loss Doctrine is
applicable. This doctrine is not addressed because the Court finds a sufficient basis for
its ruling on other grounds.
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WaterSolve asserts it has a contractual right of contribution from COWI. [Dkt.
No. 108, ¶ 22.] WaterSolve alleges there was a contract between WaterSolve and
Sevenson and between COWI and Stone Harbor but makes no allegation of a contract
between COWI and WaterSolve. [Id. ¶¶ 4, 14.] WaterSolve does not dispute that there is
a lack of contract between WaterSolve and COWI in its response. [See generally Dkt. No.
118.] If no contract is pleaded, there cannot be contractual contribution between COWI
and WaterSolve. See Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 102 A.2d 587,
593 (N.J. 1954) (“Contribution is an equitable principle of equality in the sharing of a
common burden arising out of contract.”).
II.

Common Law Contribution
Next, WaterSolve argues that it is entitled to common law contribution. New

Jersey law provides for contribution among joint tortfeasors under the Joint
Tortfeasors’ Contribution Act (“JTCA”).
Where injury or damage is suffered by any person as a result of the wrongful
act, neglect or default of joint tortfeasors, and the person so suffering injury
or damage recovers a money judgment or judgments for such injury or
damage against one or more of the joint tortfeasors, either in one action or
in separate actions, and any one of the joint tortfeasors pays such judgment
in whole or in part, he shall be entitled to recover contribution from the
other joint tortfeasor or joint tortfeasors for the excess so paid over his pro
rata share . . . .
N.J. STAT. ANN. § 2A:53A-3 (emphasis added).
“Joint tortfeasors” are defined as “two or more persons jointly or severally liable
in tort for the same injury to person or property.” Id. § 2A:53A-1. Common liability is
the crux of contribution action. Tomkovich v. Pub. Serv. Coordinated Transp., 160 A.2d
507, 509 (N.J. Super. Ct. App. Div. 1960) (internal quotation marks omitted). “It is
common liability at the time of the accrual of plaintiff’s cause of action which is the sine
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qua non of defendant’s contribution right.” Markey v. Skog, 322 A.2d 513, 518 (N.J.
Super. Ct. Law Div. 1974). Joint, common, or concurrent negligence will not do. Cherry
Hill Manor Assocs. v. Paul Faugno, Rogan & Faugno, Harleysville Ins. Co. of New
Jersey, 861 A.2d 123, 128 (N.J. 2004). “Where the pleadings show separate torts,
severable as to time and breaching different duties, rather than a joint tort, dismissal of
the third-party action is appropriate.” Finderne Mgmt. Co., Inc. v. Barrett, 809 A.2d
857, 864 (N.J. Super. Ct. App. Div. 2002).
In order to trigger the provisions of the JTCA, the act of the alleged joint
tortfeasor must have also resulted in the “same injury.” Cherry Hill, 861 A.2d at 129-30.
“[T]he term ‘same injury’ in its definition of joint tortfeasor relate[s] to the harm the tort
victim suffered and not to the cumulative damages the tort victim sustained as a result
of multiple disparate injuries caused by multiple tortfeasors.” Id. at 130.
Here, WaterSolve does not outline how it and COWI are joint tortfeasors other
than through conclusory statements. [See, e.g., Dkt. No. 108, ¶¶ 20, 24 (“Third-Party
Defendants were responsible for stoppage of work . . . . [WaterSolve] asserts that its
negligence, if any, was passive, vicarious, and imputed whereas the negligence of ThirdParty Defendants, [COWI], was active and primary.”).] WaterSolve does allege facts
indicating that COWI was involved in the development of the Project standards, but this
development was contracted between COWI and Stone Harbor, not COWI and
WaterSolve. [Dkt. No. 108, ¶¶ 14-19.] WaterSolve fails to go further and allege facts that,
for example, indicate COWI failed to properly set sampling and testing standards,
required Geotubes, or inappropriately set the depth for dredging. Thus, facially, there

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are insufficient facts pleaded to show WaterSolve and COWI were joint tortfeasors, as
defined by JTCA, to survive a motion to dismiss. 2
III.

Common Law Indemnification

WaterSolve also asserts it is entitled to common law indemnification. [Dkt. No.
108, ¶ 25.] “Indemnification is available under New Jersey law in two situations: when a
contract explicitly provides for indemnification or when a special legal relationship
between the parties creates an implied right to indemnification.” Allied, 730 F. Supp., at
639 (D.N.J. 1990). A party is only entitled to indemnification if they are without fault or
their liability is purely constructive, secondary, or vicarious. Allied, 730 F. Supp. at 639;
see also Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 510 A.2d 1152, 1158 (1986)
(“As a general rule, a third party may recover on a theory of implied indemnity from an
employer only when a special legal relationship exists between the employer and the
third party, and the liability of the third party is vicarious.”). For a relationship to be a
“special legal relationship,” it must be “sufficient to impose certain duties and [upon] a
subsequent breach of those duties . . . [said relationship] permits an implied
indemnification.” Ruvolo v. U.S. Steel Corp., 336 A.2d 508, 511 (N.J. Super. Ct. Ch. Div.
1975). “Examples of the special relationship that will support a third party’s claim for
indemnification include that of principal and agent, bailor and bailee, and lessor and
lessee.” Ramos, 510 A.2d at 1158 (internal citations omitted). Additionally, “implied
indemnification by way of a special relationship is a ‘narrow doctrine’ that is not
frequently stretched beyond the examples of principal-agent, employer-employee,

COWI also argues the JCTA requires that for a claim of contribution, there must first
be a judgment entered against the party seeking contribution. The Court finds the
insufficient pleading of facts to identify the parties as “joint tortfeasors” is sufficient to
grant the Motion to Dismiss, and reserves ruling on this additional argument.

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lessor-lessee, and bailor-bailee.” SGS U.S. Testing Co., Inc. v. Takata Corp., Civ. No. 09–
6007, 2012 WL 3018262, at *5 (D.N.J. July 24, 2012).
WaterSolve fails to define the basis for an implied indemnity claim against COWI.
WaterSolve alleges that “the negligence of [COWI] was active and primary.” [Dkt. No.
108, ¶ 24.] As Magistrate Judge Williams stated in the first Order denying WaterSolve
leave to file a third-party complaint, the complaint “fails to state any genuine averments
of fact and is notable for its failure to plead any non-conclusory factual allegations.”
[Dkt. No. 99, at 5.] “Beyond a basic recitation of the parties’ identities, every sentence is
a legal conclusion.” [Id. at 6.] The only substantial change since that Order was the
removal of the “LIABILITY” section mentioned above. [Compare Dkt. No. 100, with Dkt.
No. 108.] Thus, based on the facts pleaded, the Court cannot find there is a relationship
between WaterSolve and COWI that would rise to the necessary degree to reveal a
plausible implied indemnification theory.
Conclusion
For the reasons stated above, the Motion to Dismiss filed by Third-Party
Defendants, COWI North America Inc., COWI Marine North America, and Ocean and
Coastal Consultants (collectively “COWI”) [Dkt. No. 116] will be granted.

June 25, 2020
Date

s/Joseph H. Rodriguez___________
JOSEPH H. RODRIGUEZ
United States District Judge

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