United States District Court, S.D. New York
J.T. MAGEN & COMPANY, INC., Plaintiff,
ALLEN EDMONDS CORP., Defendant.
OPINION & ORDER
L. STANTON U.S.D.J.
Edmonds Corp. ("Allen Edmonds") moves, pursuant to
Fed.R.Civ.P. 56, for summary judgment in its favor and to
dismiss with prejudice J.T. Magen & Company, Inc.'s
("JT") complaint. For the reasons that follow, the
motion is denied.
JT and non-party Swenson Construction Company
("Swenson") were retained to carry out the general
construction work at a store belonging to Allen Edmonds. The
dispute is over which one was the general contractor. JT
claims Swenson was acting as Allen Edmonds' agent, and JT
as its general contractor. Allen Edmonds claims Swenson was
its general contractor, and JT a subcontractor of Swenson.
Their roles matter, because if JT was Swenson's
subcontractor it is Swenson who is responsible for paying for
JT's work, not defendant Allen Edmonds. (Swenson is now
out of business, and some of JT's work remains
motion, the issue is whether the answer to that dispute is so
clear that it can be given as a matter of law, or whether
there are genuine facts at issue which must be resolved at a
matter jurisdiction exists under 28 U.S.C. § 1332(a)(1)
because the matter in controversy exceeds the sum or value of
$75, 000, exclusive of interest and costs, and is between
citizens of different states.
JT is a New York corporation based in New York City. It is a
general contractor who performs work in and around New York.
Defendant Allen Edmonds is a Wisconsin corporation based in
Port Washington, Wisconsin and owns the retail company by the
is a California based corporation. Swenson had been general
contractor on a number of Allen Edmonds' prior
construction projects. Swenson usually provided on-site
project supervision but did not itself perform construction
work. In the Allen Edmonds construction projects that Swenson
did not work on, Allen Edmonds required its general
contractors to sign a written contract that contained terms
and conditions, but with Swenson Allen Edmonds relied on a
one page purchase order that did not contain terms and
November 15, 2012, JT submitted a proposal to Swenson
"to provide all labor and materials necessary to carry
out the general construction work as per James Dayton Design
drawings dated 09/17/2012 and Lynstarr Engineering, PC
drawings dated 08/09/2012" at the Allen Edmonds store
located on West 43rd Street in New York City for $478,
081.00. Swenson, with Allen Edmonds' approval, accepted
November 16, 2012, Swenson submitted a bid sheet to Allen
Edmonds for $561, 089.10. Swenson's bid sheet contains
nearly identical line items and prices as JT"s proposal
to Swenson. Swenson's bid sheet also includes an item
called "Contractor Overhead & Profit (10%)" for
$51, 008.10, which is based on the total cost in
Swenson's bid. Allen Edmonds selected Swenson's bid,
and on November 19, 2012 it issued a purchase order to
Swenson for $561, 089.10. JT's proposal is attached to
the purchase order Allen Edmonds issued to Swenson.
claims that it submitted its proposal, whereby it agreed to
perform general construction work for Allen Edmonds, to
Swenson who was Allen Edmonds' agent. Allen Edmonds
claims that Swenson was its general contractor for the
project, and that Swenson independently hired JT.
Allen Edmonds issued the purchase order to Swenson, JT began
working at the project. No Allen Edmonds employees were at
the site during the project. Swenson did not itself provide
labor or materials for the project; it provided daily on-site
supervision though Art Medley, a Swenson representative.
and JT had regular and direct interaction throughout the
project. JT's main contact for the project was Derek
Swenson, another Swenson representative. All of JT's
questions relating to change orders, requests for
information, or the status of payment were communicated by JT
to Swenson personnel, and all directions and orders to JT
relating to construction services came from Swenson
personnel. All change orders were signed by Derek Swenson.
According to Allen Edmonds, Swenson made all decision and
approvals relating to invoicing, payments, requests for
information, and change orders independently without need for
approval or direction from Allen Edmonds. When the project
was completed, JT sent a letter of completion to Derek
Swenson. JT had no interaction with Allen Edmonds personnel
until the summer of 2013 when JT became worried that Swenson
would not pay JT.
Allen Edmonds' landlord notified Allen Edmonds that its
contractor must provide a certificate of insurance, Allen
Edmonds did not follow its typical practice of requiring
Swenson to provide insurance. Instead, JT provided the
insurance. The certificate of insurance lists JT as the named
insured, identifies the job operation, lists Allen Edmonds as
an additional insured, and does not mention Swenson. JT also
obtained the work permits required by ...