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United States v. Torcon, Inc.

United States District Court, E.D. New York

November 18, 2014

UNITED STATES OF AMERICA, for the Use and Benefit of Keller Painting Corp., and KELLER PAINTING CORP. Plaintiffs,
v.
TORCON, INC. and TRAVELERS CASUALTY AND SURETY COMPANY, Defendants.

Law Offices of Marianne Candito, Attorney for the Plaintiff United States of America, Oakdale, NY.

John Edward Hannum, Esq., Of Counsel, Hannum Feretic Prendergast & Merlino LLC, New York, NY., Attorney for the Plaintiff Keller Painting Corp.

Scott G. Kearns, Esq., Bruce D. Meller, Esq., Of Counsel, Peckar & Abramson, P.C., New York, NY, Attorney for the Defendants.

MEMORANDUOM OF DECISION & ORDER

ARTHUR D. SPATT, District Judge.

Although the parties' familiarity with the underlying procedural history of the case is assumed, a brief review is in order.

I. BACKGROUND

On March 5, 2012, the United States of America, for the use and benefit of Helmark Steel, Inc., and Helmark Steel, Inc. ("Helmark") (collectively, the "Helmark Plaintiffs") commenced an action, under case number 12-cv-1061, against the Defendants Torcon, Inc. ("Torcon") and Travelers Casualty and Surety Company ("Travelers") (collectively, the "Defendants") in connection with the Defendants alleged failure to pay Helmark for its work, labor, and materials pursuant to the terms of a subcontract with Torcon related to a construction project at a federal government building (the "Helmark action").

In its answer to the original complaint, the Defendants asserted a "[s]et-off and [c]ounterclaim" against Helmark for failing to perform work required of it under the subcontract with Torcon. (Answer 5-13.)

On May 30, 2012, Helmark filed a third party complaint against Vulcraft of New York, Inc. ("Vulcraft") asserting that Vulcraft, who supplied paint primer material to Helmark in connection with its engagement by Torcon, should indemnify Helmark for any damages or attorneys' fees in connection with defending against the Defendants' counterclaim. (Third Party Compl. at ΒΆΒΆ 10-19, Dkt. No. 10.) On August 30, 2012, the Court so ordered a stipulation by Helmark and Vulcraft to stay proceedings against Vulcraft pending arbitration. (Dkt. No. 24.)

In a related action, under case number 12-cv-6291, the Plaintiffs United States of America, for the use and benefit of Keller Painting Corp., and Keller Painting Corp. (collectively, the "Keller Plaintiffs"), asserted claims against the Defendants arising from the same construction project (the "Keller Action"). On January 18, 2013, the Defendants asserted counterclaims against the Keller Plaintiffs for failing to perform work required of it under the subcontract with Torcon. (12-cv-6291, Dkt. No. 7.)

On February 14, 2013, the Court granted a joint motion pursuant to Fed.R.Civ.P. 42(a) to consolidate the Keller and Helmark Actions under the case number 12-cv-1061 and approving an amended caption. (Dkt. No. 29.) On February 15, 2013, the Helmark and Keller Plaintiffs filed an amended consolidated complaint against the Defendants. (Dkt. No. 31.)

On April 16, 2014, the Court approved a stipulation voluntarily dismissing the claims of the Helmark Plaintiffs against the Defendants and all counterclaims by the Defendants against the Helmark Plaintiffs (Dkt. No. 52.) Pursuant to the order, the Court also approved an amended caption, which eliminated the Helmark Plaintiffs from the caption. The proposed order was signed by the Helmark Plaintiffs and the Defendants but not the Keller Plaintiffs.

On November 17, 2014, the Defendants filed a letter seeking an order by the Court directing Keller to sign a pre-trial order. (Dkt. No. 75.) On the same day, the Keller Plaintiffs filed a letter in response stating that that they will not sign the Defendant's proposed pre-trial order because they object ...


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