United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION TO STAY; AND
FINDING PLAINTIFF'S MOTION TO STRIKE, DISMISS, OR STAY
MOOT DOCKET NOS. 60, 68
M. CHEN UNITED STATES DISTRICT JUDGE
Fisk Electric Company (“Fisk”) has filed suit
against multiple defendants, including the Webcor/Obayashi
Joint Venture (“WOJV”); Webcor Construction
L.P.; and Obayashi Corporation. The main claim
between Fisk and these defendants - hereinafter collectively
referred to as the WOJV Defendants - is breach of contract.
The WOJV has filed counterclaims against Fisk and further
asserted a third-party complaint.
pending before the Court are two motions: (1) the WOJV
Defendants' motion to stay and (2) Fisk's motion to
strike, dismiss, or stay the WOJV's third-party
complaint. Having considered the parties' briefs and
accompanying submissions, as well as the oral argument of
counsel, the Court hereby GRANTS the WOJV
Defendants' motion and, as a result, finds Fisk's
FACTUAL & PROCEDURAL BACKGROUND
operative second amended complaint (“SAC”), Fisk
alleges as follows.
March 2009, the Transbay Joint Powers Authority
(“TJPA”) and the WOJV entered into a written
contract - hereinafter referred to as the “Prime
Contract” - related to the construction of the Transbay
Transit Center Project. See SAC ¶ 14. In the
Prime Contract, the TJPA and the WOJV agreed that the latter
would provide certain pre-construction services, serve as the
construction manager/general contractor, and
manage/administer subcontracts with trade subcontractors.
See SAC ¶ 14.
November 2014, the WOJV and Fisk entered into a written
contract - hereinafter referred to as the
“Subcontract” - under which “Fisk agreed to
furnish labor, materials, and equipment required by the Prime
Contract for the [Transbay Transit Center] Project's
Electrical, Communications, Security and Integrated
Networks.” SAC ¶ 20; see also FAC, Ex. B
(Subcontract). Fisk would be paid nearly $87 million for its
work under the Subcontract. See SAC ¶ 20;
see also SAC, Ex. B (Subcontract § 3) (listing
contract price). The Subcontract also provided for additional
compensation should there be “extra work and added cost
required due to changes in the scope, conditions, or
requirements for performance of the Subcontract work, and for
delays, disruption, and acceleration of the work of Fisk and
its subcontractors and suppliers.” SAC ¶ 23.
to Fisk, ultimately, it did perform extra work because,
e.g., the WOJV made changes to the work and
interfered with Fisk's work, and because changes in
conditions were discovered, all of which “changed the
nature of scope of the work and services required in the . .
. Subcontract.” SAC ¶ 24. Fisk alleges that it has
not been compensated for the extra work. In addition, it has
not been compensated for some of the work required under the
original terms of the Subcontract. Altogether, Fisk claims it
is owed at least $60 million. See SAC ¶¶
25-26. According to Fisk, the WOJV has breached the
Subcontract by failing to pay. See FAC ¶ 27.
Fisk also claims additional breaches of the Subcontract -
e.g., “failing to complete precedent work
necessary to allow Fisk to timely perform its scope of work,
” “improperly de-scoping portions of the . . .
Subcontract and assigning said work to other contractors in
violation of California law, ” and “[a]sserting
arbitrary and groundless offset claims against Fisk.”
SAC ¶ 27.
SAC, Fisk asserts multiple causes of action against the WOJV
(1) Breach of contract (i.e., the Subcontract).
(2) Recovery on “stop payment notice” release
(3) Violation of prompt-payment statute.
(4) Recovery on payment bond.
response to Fisk's SAC, the WOJV has asserted (1) a
third-party complaint against the TJPA and (2) counterclaims
against Fisk. In the third-party complaint against the TJPA,
the WOJV alleges that the “TJPA was unable to fulfill
its key contractual duties including making the critical
decisions required to keep the Project on time and on
budget.” Docket No. 63 (3d-Party Compl. ¶ 10). In
its counterclaim, the WOJV takes notes of allegations made by
the TJPA in other litigation that the “WOJV and its
Trade Subcontractors, including Fisk, failed, in various
respects, to properly provide certain work, services,
materials, or equipment, as applicable in connection with the
Project work.” Docket No. 64 (Countercl. ¶ 18).
“[The] WOJV denies [the] TJPA's allegations and any
liability to [the] TJPA”; however, “if it is
determined that [the] TJPA is entitled to any recovery
against [the] WOJV in this action, it will be due, in whole
or in part, to the acts or omissions of [Fisk].” Docket
No. 64 (Countercl. ¶ 20). The WOJV's counterclaims
against Fisk include claims for breach of contract and
Related State Court Litigation
instant case is not the only case related to the construction
of the Transbay Transit Center Project. There are also four
state court actions, namely:
(1) The Pacific Action (No. CGC-18-564434).
(2) The Skanska Action (No. CGC-18-566431).
(3) The WOJV Action (No. CGC-18-570621).
(4) The Desert Action (No. CGC-19-573549).
first, second, and fourth lawsuits were all brought by
subcontractors on the Project against, inter alia,
the WOJV. See also Dillon Decl. ¶ 3 (testifying
that the WOJV subcontracted with various companies “to
perform certain work on the project to construct the Transbay
Transit Center Building and related structures”). The
subcontractors' claims against the WOJV include,
e.g., claims based on bonds and claims for breach of
contract. In the Skanska Action, the WOJV responded by
asserting cross-claims against the TJPA. See Dillon
Decl., Ex. E (cross-claims). The TJPA in turn asserted claims
against the WOJV and, in turn, the WOJV brought in additional
parties - namely, subcontractors such as Fisk. See
Dillon Decl., Ex. G (second amended cross-claims). According
to the WOJV, although it “denies [the] TJPA's
allegations and any liability to [the] TJPA, if it is