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Central Contracting, Inc. v. Kenny Construction Co et al

March 12, 2012

CENTRAL CONTRACTING, INC.
v.
KENNY CONSTRUCTION CO ET AL



Name of Assigned Judge or Magistrate Judge Amy J. St. Eve Sitting Judge if Other than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The Court denies Kenny's Rule 56(a) motion for partial summary judgment [R. 32] without prejudice and grants Central's Rule 56(d) motion [37].

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Before the Court is Defendant/Counter-Plaintiff Kenny Construction Company's ("Kenny") Motion for Partial Summary Judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56 on Counts I and III of Central's Amended Complaint and Counts I-III of Kenny's Counterclaim. In response, Plaintiff/Counter-Defendant Central Contracting, Inc.'s ("Central") filed a Rule 56(d) motion, to which Kenny filed a written response.*fn1 Because Kenny's motion is premature, the Court denies it without prejudice to refile after the close of discovery. The Court grants Central's Rule 56(d) motion.

Courtroom Deputy KF

Initials:

BACKGROUND

I. Procedural Background

Central filed its Complaint and Amended Complaint against Kenny and Trans-Allegheny Interstate Line Company ("TrailCo") in September 2011 in the Circuit Court of Monongalia County, West Virginia, asserting claims for breach of contract, enforcement of mechanic's lien, and unjust enrichment. (R. 3-1, Compl. and Am. Compl.) On October 7, 2011, Kenny removed the case to the United States District Court for the Northern District of West Virginia based on diversity of the parties. (R. 3, Notice of Removal.) On December 23, 2011, the United States District Court for the Northern District of West Virginia granted Kenny's motion to transfer in part and transferred Counts I and III (breach of contract and unjust enrichment) to this Court.*fn2 (R. 13, Order.) Kenny and TrailCo filed their Answers to Central's Complaint on January 17, 2012 and January 18, 2012, respectively. (R. 28-29, Answers.) Kenny also filed a Counterclaim against Central on January 17, 2012, asserting causes of action for declaratory judgment, breach of contract, unjust enrichment, and an accounting. (R. 28 at 8-17, Counterclaim.) The parties have not yet exchanged Rule 26(a)(1) disclosures, and no discovery has taken place.

II. Factual Background*fn3

A. Central's claims against Kenny

This dispute arises out of a Subcontract Agreement ("Subcontract") into which Central and Kenny entered on September 22, 2007. (R. 28, Kenny's Answer ¶ 11.) The Subcontract was in furtherance of a contract between Kenny and TrailCo (the "Alliance Agreement"). (Id. ¶ 12.) Pursuant to the Subcontract, Kenny performed access road construction services in connection with the Trans-Allegheny Interstate Line Company 500kV Transmission Project. (Id. ¶ 11; R. 31, Central's Answer to Kenny's Counterclaims ¶ 10.) Central alleges that Kenny breached the Subcontract by failing and refusing to pay $5,723,852.80 that Kenny owed Central under the ...


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