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V.A.L. Floors v. 1419 Tower

July 8, 2009





This is an action for payment under a construction project sub-contract. The construction project ("Project") in question was the building of the Aria Condominium ("Aria") in Philadelphia. Plaintiff V.A.L. Floors ("V.A.L."), a flooring subcontractor, sues one of the Aria's owners, 1419 Tower L.P. ("1419 Tower"), as well as the general contractor for the Project, Shoemaker Construction Co. ("Shoemaker") for payment for work performed. It appears that the Project spawned multiple legal disputes. At least one other civil action related to the Project is pending in this judicial district, before Judge Pratter. Presently before the Court is Shoemaker's Motion to consolidate this action ("the V.A.L. Action") with the aforementioned pending action,*fn1 styled Eastern Electrical Corporation of New Jersey v. Shoemaker Construction Company, 1419 Tower L.P., Urban Residential LLC, and Metropolitan Housing Partners LLC ("the Eastern Action"), pursuant to Federal Rule of Civil Procedure 42(a).*fn2 For the reasons that follow, the Motion will be denied.


A. The V.A.L. Action

V.A.L. filed the civil action Complaint in this matter on December 5, 2008.*fn3

Therein, V.A.L. alleges that while laboring under a valid, written sub-contract to perform flooring work for the Project, it completed its work in a good and workmanlike fashion, and that Defendants Shoemaker and 1419 Tower accepted its work without any claim of deficiency, but have since failed to pay V.A.L. $165,634.51 for the job, which amount, plus interest, is now due and owing. V.A.L. also alleges that 1419 Tower is withholding payment from Shoemaker for work done on the Project. V.A.L. brings three Counts against Shoemaker, under theories of Breach of Contract, violation of Pennsylvania Contractor and Subcontractor Payment Act,*fn4 and Quantum Meruit or Unjust Enrichment, and one Count against both Shoemaker and 1419 Tower, seeking a Constructive Trust on money being held by 1419 Tower from Shoemaker for the benefit of V.A.L.

On March 18, 2009, default was entered against 1419 Tower after it failed to appear, plead or defend in the action.*fn5 For its part, Shoemaker first filed a Motion to Dismiss Count Three,*fn6 consisting of the equitable claims against it, but then filed an Answer to the entire Complaint,*fn7 which prompted the dismissal of its Motion to Dismiss in Part as moot.*fn8 On the same day it filed its Answer, Shoemaker filed the instant Motion asking the Court to consolidate this action and the Eastern Action pursuant to Federal Rule of Civil Procedure 42(a).

B. The Eastern Action

In August of 2008, four months prior to the filing of the V.A.L. Action, the Eastern Action was filed in this District. The Eastern Action was originally listed on the calendar of Judge Giles before being transferred, ultimately, to the calendar of Judge Pratter. Plaintiff in the Eastern Action is the electrical subcontractor in the Aria Project, Eastern Electrical Corporation ("Eastern"). Eastern sues Shoemaker and Aria's various owners for nonpayment for work performed. The defendants in the Eastern Action are the two defendants in the V.A.L. Action -- Shoemaker and 1419 Tower -- as well as the other apparent owners of Aria, Urban Residential LLC ("Urban") and Metropolitan Housing Partners LLC ("Metropolitan"). Eastern's claims against the four defendants are for breach of contract, violation of the Pennsylvania Contractor and Subcontractor Payment Act, Unjust Enrichment and Quantum Meruit. The gist of the claims is that the defendants owe Eastern over $300,000 for contractual and extra-contractual work performed on the Project. Eastern demands a jury trial.

Shoemaker has filed Cross-Claims in the Eastern Action against 1419 Tower and Urban ("Cross-Claim Defendants"), for breach of contract, declaratory judgment and violation of the Pennsylvania Contractor and Subcontractor Payment Act. In its Cross-Claims Shoemaker alleges on behalf of itself and its sub-contractors, including Eastern and V.A.L. on a pass-through basis, that Cross-Claim Defendants owe it over $1.2 million dollars for work performed on the Project pursuant to contracts and valid change work orders. The Clerk of Court entered default against the Cross-Claim Defendants on April 7, 2009.*fn9 Shoemaker has since moved for default judgment on the Cross-Claims.

The Eastern Action also involves third party litigation in which Shoemaker sues various individuals and entities related to Defendant 1419 Tower, including a putative warrantor of some or all of 1419 Tower's debts in connection with the Project. Default was entered against these third-party defendants on June 10, 2009. Lastly, by court-approved party stipulation, the Eastern Action has been consolidated with a directly related insurance action involving party plaintiff Eastern.

C. The Instant Motion to Consolidate

According to movant Shoemaker, the V.A.L. Action should be consolidated with the earlier-filed Eastern Action because the cases stem from the same construction project, share many of the same defendants and involve common questions of law and fact. While acknowledging the commonalities between the two actions, V.A.L. opposes ...

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