Kirk Excavating & Constr., Inc. v. Oilfield, Civil Action 2:14-cv-2097
| Decision Date | 22 October 2015 |
| Docket Number | Civil Action 2:14-cv-2097 |
| Parties | KIRK EXCAVATING & CONSTRUCTION, INC., Plaintiff, v. AYS OILFIELD, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
Plaintiff Kirk Excavating & Construction, Inc. ("Kirk Excavating") asserts claims of breach of contract, unjust enrichment, quantum meruit, and constructive trust in connection with certain work performed for which it was allegedly not paid. With the consent of the parties pursuant to 28 U.S.C. § 636(c), this matter is before the Court on Access MLP Operating, LLC's Motion for Restraining Order and Service of Process Authorized by 28 U.S.C. § 2361, ECF 23 ("Motion"). Third-party defendant Columbus Equipment Company ("Columbus Equipment") and third-party defendant Highway Equipment Company, Inc. ("Highway Equipment") have responded to the Motion. See Memorandum of Columbus Equipment Company in Opposition to Motion of Access MLP Operating, L.L.C. for Restraining Order and Service of Process, ECF 31 ("Columbus Equipment's Initial Response"), and Proposed Third-Party Defendant Highway Equipment Company, Inc.'s Limited Objection to Motion for Restraining Order and Service of Process Authorized by 28U.S.C. § 2361, ECF 32 ("Highway Equipment's Response"), respectively. Access MLP Operating, LLC ("Access MLP Operating") has filed a reply memorandum. See Access MLP Operating, L.L.C.'s Reply in Support of Motion for Restraining Order and Service of Process Authorized by 28 U.S.C. § 2361, ECF 33 ("Access MLP Operating's Reply"). Access MLP Operating and Columbus Equipment subsequently supplemented their positions. See Access MLP Operating, LLC's Notice of Funds Available for Immediate Deposit in Support of Motion for Restraining Order and Service of Process Authorized by 28 U.S.C. § 2361, ECF 38 ("Notice of Funds Available"); Response of Columbus Equipment Company to Access Midstream's Notice of Funds Available, ECF 40 ("Columbus Equipment's Supplemental Response"); Access MLP Operating, L.L.C.'s Reply in Support of Motion for Restraining Order and Service of Process Authorized by 28 U.S.C. § 2361 and § 1335, ECF 42 ("Access MLP Operating's Supplemental Reply").1 For the reasons that follow, the Motion is GRANTED in part.
Kirk Excavating, an Ohio corporation with its principal place of business in Columbus, Ohio, allegedly entered into a contract with defendant AYS Oilfield, a Louisiana entity doing business in Ohio, in April 2014 for certain work to be performed in Carroll County, Ohio, including the drilling of a borehole. Complaint, ECF 2, ¶¶ 1-2, 9-15; Exhibit A, attached thereto ("the Kirk Excavating Contract"). KirkExcavating completed this work in April and May of 2014. Complaint, ¶ 16. Although Kirk Excavating sent invoices in the total amount of $332,320.00, AYS Oilfield allegedly has not paid for the work performed. Complaint, ¶¶ 17-19; Exhibit B, attached thereto. Kirk Excavating alleges that AYS Oilfield's nonpayment constitutes a material breach of the Kirk Excavating Contract. Id. at ¶¶ 20-25. Kirk Excavating further alleges that Kirk Excavating conferred a benefit on defendants AYS Oilfield, RKJ Enterprises, LLC d/b/a At Your Service ("RKJ d/b/a At Your Service"), a Louisiana entity doing business in Ohio, and Access Midstream Partners, LP and Access Midstream Partners, GP, LLC, Delaware entities doing business in Ohio, and that defendants have been thereby unjustly enriched. Id. at ¶¶ 2-3, 20-35. According to Kirk Excavating, defendants Access Midstream Partners, LP and Access Midstream Partners, GP, LLC have "control over money that is earmarked or otherwise held to compensate AYS [Oilfield] for its work on Access' behalf." Complaint, ¶¶ 3, 37.
Access MLP Operating, L.L.C. ("Access MLP Operating") "operates a natural gas pipeline gathering system in Ohio which receives natural gas produced from horizontal shale wells that are producing in multiple counties located in eastern and southeastern Ohio." Intervening Defendant Access MLP Operating, L.L.C.'s Answer to Complaint and Counterclaim, Cross-Claim and Third-Party Complaint for Interpleader, ECF 21,2 ¶ 6 of Access MLP Operating's Counterclaim,Cross-Claim, and Third-Party Complaint for Interpleader. Access MLP Operating allegedly entered into agreements with At Your Service Construction, Inc. ("At Your Service"), which Access MLP Operating believes is an affiliate and/or alter ego of RKJ d/b/a At Your Service, to provide construction services relating to the construction of natural gas pipelines in Ohio operated by Access MLP Operating (collectively, "Access MLP Operating's Construction Contract"). Access MLP Operating's Counterclaim, Cross-Claim, and Third-Party Complaint, ¶¶ 1-2. Pursuant to Access MLP Operating's Construction Contract, RKJ d/b/a At Your Service provided certain construction services. Id. at ¶ 3. Access MLP Operating has purportedly paid RKJ dba At Your Service for these services, but holds some funds in retainage that it is ready to release. Id. At the time of the filing of Access MLP Operating's Counterclaim, Cross-Claim, and Third-Party Complaint for Interpleader, Access MLP Operating represented that it held retainage on the following projects relating to work performed by RKJ d/b/a At Your Service:
| 1. Javersak Well Connect - |
| $32,506.71 |
| 2. Ciacci Well Connect - |
| 24,047.85 |
| 3. Mechanicstown Pipeline - |
| 139,573.89 |
| Total: |
| $196,128.45 |
Id. at ¶ 16. Without waiving its rights, Access MLP Operating furtherrepresented that it was "willing and able to pay $146,000.00 of the retainage held on the projects." Id. at ¶ 17. It explains that it "continues to hold the remaining amount of retainage at this time due to some work by RKJ [d/b/a At Your Service] being incomplete on the projects and upon confirmation of Final Completion as required pursuant to" its construction contract. Id.
Thereafter, Access MLP Operating revised the amount available for immediate deposit and retainage. See Notice of Funds Available. Specifically, Access MLP Operating represents that it should retain $12,000.00 to complete painting required at certain projects pursuant to its contractual rights. Id. at 2. It further represents that, excluding this retainage, it now holds a total of $428,198.73 that is available for immediate deposit. Id. at 2-3; Exhibit A (copies of two checks payable to "At Your Service" prepared in the combined amount of $428,198.73), attached thereto.
Multiple entities claim entitlement to certain funds and/or have filed proceedings in state or federal court asserting a right to certain funds.
Access MLP Operating alleges that RKJ d/b/a At Your Service "claims a right to payment pursuant to the terms" of Access MLP Operating's Construction Contract "as the party in privity with Access MLP Operating." Access MLP Operating's Counterclaim, Cross-Claim, and Third Party Complaint, ¶ 18(a); RKJ Enterprises, LLC DBA At Your Service Construction's Answer to Counterclaim, Cross-Claim and ThirdParty Complaint of Access MLP Operating, LLC, ECF 26, ¶ 1 ("RKJ d/b/a At Your Service Answer").
Access MLP Operating's Counterclaim, Cross-Claim, and Third-Party Complaint names, inter alios, Horizon Supply Company, Inc. ("Horizon Supply")3 as a third-party defendant in the action presently before this Court. Access MLP Operating alleges that Horizon Supply is a limited liability company organized under the laws of Pennsylvania with its principal place of business in New Castle, Pennsylvania. Access MLP Operating's Counterclaim, Cross-Claim, and Third-Party Complaint, ¶ 12. Horizon Supply allegedly "has sent correspondence to Access MLP's counsel asserting that it holds a judgment against RKJ and made claims that it has a right to the Funds as a judgment creditor." Id. at ¶ 18(e).
Columbus Equipment has instituted to separate actions to obtain certain funds.
On July 11, 2014, third-party defendant Columbus Equipment4 filed an action in the Court of Common Pleas for Franklin County, Ohio, naming as defendants "Ryan Jones, dba At Your Service" and "RKJ Enterprises, LLC, dba At Your Service." Complaint, filed on July 11,2014, in Columbus Equipment Company v. Jones, Case No. 14CV-07-7212 ("the Franklin County Action"). Columbus Equipment alleges that Mr. Jones provided a credit application to it on behalf of a company named At Your Service and that, for certain reasons, Mr. Jones is personally liable on the account. Id. at ¶¶ 1-3 (citing Exhibit A, attached thereto). After Columbus Equipment began performing under the terms of the credit application, it received checks from "RKJ Enterprises, LLC, dba At Your Service," which "is or may be an undisclosed principal who is also responsible for the amounts owed Plaintiff, but which does not relieve Jones of personal liability[.]" Id. at ¶¶ 4-5. Columbus Equipment asserted claims for an account, breach of contract, unjust enrichment, quantum meruit and/or quantum valebant, and attorney's fees. Id. at ¶¶ 6-18. On September 16, 2014, the Franklin County Court of Common Pleas granted Columbus Equipment's motion for default judgment against "Ryan Jones, dba At Your Service" and RKJ d/b/a At Your Service, jointly and severally, awarding a total amount of $340,821.32 plus post-judgment interest. Final Judgment Granting Motion for Default Judgment and Leave to Seek Additional Attorney Fees Post-Judgment, filed in the Franklin County Action.
On September 26, 2014, an order and notice of garnishment was directed to, inter alios, Texas State Bank. See Order and Notice of Garnishment of Property Other than Personal Earnings and Answer of Garnishee, filed in the Franklin County Action. In its answer to the notice of garnishment, Texas State Bank represented that it held a total of $831.59 in money,...
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