MEMORANDUM DECISION ON PLAINTIFF’S MOTIONS IN LI-MINE AND RECOMMENDED DECISION ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Portland Pipe Line Corp. (“Pipeline”) moves for summary judgment in its favor on three of the five counts of the complaint filed against it by Jay Cashman, Inc. (“Cashman”). In its complaint, Cashman seeks additional compensation for dredging work it performed for Pipeline in the Portland Harbor Channel. See generally Defendant’s Motion for Partial Summary Judgment (“Defendant’s S/J Motion”) (Docket No. 27); Complaint (Jury Trial Demanded) (“Complaint”) (Docket No. 1). In addition, Cashman seeks, via five motions in limine, to exclude evidence it anticipates Pipeline will offer against it. See Plaintiff Jay Cashman Inc.’s Motion in Li-mine To Exclude Evidence Including Expert Opinion Testimony Concerning [Cash-man’s] Hydrographic Surveying (“Limine Motion/Surveying”) (Docket No. 28); Jay Cashman Inc.’s Motion in Limine To Exclude Evidence of Settlement Negotiations (“Limine Motion/Settlement”) (Docket No. 29); Plaintiff Jay Cashman, Inc.’s Motion in Limine To Exclude Evidence of Third-Party Insurance Claim (“Limine Motion/Insurance”) (Docket No. 30); Plaintiff Jay Cashman Inc.’s Motion in Limine To Limit the Testimony of Defendant’s Expert Edward Geoff Webster (“Limine Motion/Webster”) (Docket No. 31); Plaintiff Jay Cashman Inc.’s Motion in Limine To Exclude Any Evidence To Clarify the Terms of the Contract Where the Contract Is Not Ambiguous (“Limine Motion/Contract Terms”) (Docket No. 32). With the benefit of oral argument held before me on May 13, 2008, addressing all six motions, I defer ruling until trial on three of the motions in limine (the Limine Motion/Settlement, the Limine Motion/Insurance, and the Limine Motion/Webster), grant the Limine Motion/Contract Terms, deny the Limine Motion/Surveying, and recommend that the court grant the Defendant’s S/J Motion as to Counts III (unjust enrichment) and V (unconscionability and breach of the duty of good faith and fair dealing) and deny it as to Count II (quantum meruit).
I. Motions in Limine
At oral argument, counsel for Cashman sought postponement of the court’s ruling until trial on three of its pending motions in limine, the Limine Motion/Settlement, the Limine Motion/Insurance, and the Li-mine Motion/Webster. Counsel for Pipeline lodged no objection to that request. Accordingly, ruling on thosе motions is reserved until trial. Pipeline’s counsel also advocated for postponement of a ruling on Cashman’s remaining two motions in limine, the Limine Motion/Contract Terms and the Limine Motion/Surveying, in view of the complexity of the contract and the record in this case, and the parties’ sharp divergence on the motions’ merits. Counsel for Cashman rejoined that the motions could and ought to be adjudicated and that their prompt resolution would assist counsel in preparing for trial. I agree with Cashman and accordingly address the merits of those two motions.
A. Limine Motion/Contract Terms
In its motion in
limine
concerning contract terms, Cashman in effect asks the court to declare that the parties’ contract unambiguously (i) incorporated the standards of the United States Army Corps of
Cashman initially anticipated that Pipeline would “attempt to argue at trial that some of the сontract’s provisions are subject to several interpretations or that they are meaningless.” Limine Motion/Contract Terms at 1. Pipeline clarified that it makes no such argument; rather, its position is that the contract unambiguously did not incorporate a half-foot measurement tolerance and unambiguously fixed the bronze disk as the benchmark from which Cashman’s performance was to be measured. See generally Defendant’s Opposition to Plaintiffs Motion in Limine To Exclude Evidence To Clarify or Explain the Terms of the Contract (“Limine Opposition/Contract Terms”) (Docket No. 41). Pipeline seeks denial of the motion on the bases that (i) its interpretation of the contract alone is reasonable and, (ii) alternatively, should the court find both parties’ interpretations reasonable (and the contract therefore ambiguous), it is entitled to present extrinsic evidence clarifying the parties’ intent. See id. at 1.
The parties see eye to eye on most of the operative legal constructs. They agree that (i) whether a contract term is ambiguous is a question of law for the court, (ii) if a term is unambiguous, its meaning should be derived from within the four corners of the contract, and (iii) if contract terms lend themselves to more than one reasonable interpretation, those terms are ambiguous.
Compare Limine
Motion/Contract Terms at 2
with Limine
Opposition/Contract Terms at 3;
see also, e.g., Triple-A Baseball Club Assocs. v. Northeastern Baseball, Inc.,
1. 1994 Manual
The parties’ contract included a twenty-page Supplemental Schedule 1, Scope of Work (“SOW”). See SOW, Exh. A to Li-mine Motion/Contract Terms. The SOW described the job at issue as follows:
[Pipeline or “Company”] owns and operates a crude oil receiving pier (Pier 2) and storage terminal in South Portland, Maine, that receives petroleum from ocean-going tankers. The Company proposes to deepen the federally designated Portland Harbor Approach Channel (referred to herein as “the Channel”) and the approach to Pier 2 from the Channel (referred to herein as “the Transition Area”) to the performance limits (-48 feet MLLW or -50 feet MLLW) to accommodate larger vessels as shown on the contract Exhibits and Drawings. The portions of the Channel and the Transition area designated fоr dredging to the performance limits, as shown on the contract drawings (see 0103 — List of Drawings), are collectively referred to herein as the Project Area.
Id. at 1, § 0102. 1 The project goal was “to dredge the Project Area ... to the performance limits as shown on the Contract Drawings and Exhibits and as defined herein.” Id. Section 0103 of the SOW listed approximately a dozen drawings “generated to define the scope of work” and “considered part of the Contract Documentsf,]” among them “OSI Drawings of the acoustic basement; July 31, 2002.” Id. at 2, § 0103. The SOW also contained the following relevant provisions:
0254 — Physical Data
The physical conditions indicated on the drawings and in the specifications are the result of site investigations by multi-beam hydrographic surveys, acoustic Doppler current profiling and/or sampling and physical and/or chemical testing of channel sediments or rock deposits. The surveys were conducted in accordance with the USA-COE Hydrographic Manual, Class 1, EM 1110-2-1003, October 1994.
1026 — Responsibility for Post-Dredge Surveys
The Company will conduct the post-dredge hydrographic surveys in accordance with Section 1027. The Company is responsible for the cost of one post-dredge survey that successfully demonstrates that the Contractor has satisfactorily completed the work to the performance limits. Any additional survey work conducted by the Contractor shall be at the Contractor’s expense. In the event that the Company-conducted post-dredge surveys identify areas of the work that have not been satisfactorily completed to the performance limits, the Contractor shall re-dredge the affected areas to the performance limits and will be responsible for the cost of the subsequent re-surveys by the Company to determine attainment of the performance limits. The cost of any such resurveys will be deducted from the payments to the Contractor.
1027 — Requests for Post-Dredge Surveys
... The post-dredging hydrographic surveys will employ comparable equipment and techniques to those employed during the pre-dredging hydrographic survey (see 0254 — Physical Data).
Id. at 6,19, §§ 0254,1026-27.
The 1994 Manual states that its intent “is to establish definitive standards along with survey performance and procedural
Cashman contends that, in representing that the pre-dredge surveys had been performed “in accordance with” the 1994 Manual and that the post-dredge surveys would be conducted using “comparable” equipment and techniques, the contract in effect contemplated adjustment of post-dredge measurements to a half-foot tolerance. See Limine Reply/Contract Terms at 2-5. This, in Cashman’s view, constituted a fair and commercially reasonable measurement technique in circumstances in which achievement of perfection was “unjust and absurd” given inherent limitations in surveying methods and equipment. See id. at 3-A. As things played out, Cashman complains, Pipeline and its surveyor, OSI, 2 ignored the 1994 Manual and held Cashman to a standard of virtual perfection, requiring redredging when OSI’s surveys indicated Cashman’s work was off by as little as one-tenth or one one-hundredth of a foot. See id. 3
Pipeline does not deny the applicability of the 1994 Manual to the pre-dredge surveys, or that the post-dredge surveys were to be completed using “comparable” survey methods.
See Limine
Opposition/Contract Terms at 5. However, it argues that (i) the contract specified that Cashman would dredge to the stated depths, with no measurement tolerance or payment allowance for overdredging, (ii) a prudent contractor would have planned to overdredge
Cashman retorts, inter alia, that it “reasonably expected that its work would be judged by the ‘floor’ outlined in the 1994 Manual, not by the ‘well above’ the ‘floor’ standard of perfection created by OSI” and that, while Pipeline may now regret it chose to refer to the 1994 Manual, it “does not get a ‘re-do’ because it now realizes that the contract language does not support what it did in the field.” Limine Reply/Contract Terms at 5 (footnote omitted).
Pursuant to Maine law, “a contract is ambiguous only when its terms lend themselves to more than one
reasonable
interpretation.”
Blackie v. State of Maine,
Inasmuch as Cashman offers the only reasonable interpretation of the contract as it bears on the issue of measurement tolerances, I discern no ambiguity. Accordingly, I grant Cashman’s motion as it bears on the contract’s incorporation of the standards (including measurement-tolerance standards) of the 1994 Manual.
2. MLLW and Benchmark
Cashman next seeks to preclude Pipeline from adducing extrinsic evidence tend
Pipeline does not dispute that the contract set MLLW as the measurement unit or that the 1994 Manual correctly defines MLLW; however, it argues that this begs the critical question of the benchmark, or reference point, from which MLLW was to be measured. See Limine Opposition/Contract Terms at 6 & n. 3. Pipeline asserts that the contract documents, together with instructions given during a pre-bid meeting, made clear that Cashman was to take its measurements from the bronze disk (regardless of whether that disk produced an accurate measurement of MLLW). See id. at 6-7. 5 Cashman protests, inter alia, that Pipeline improperly resorts to extrinsic evidence (notes of the pre-bid meeting) to bolster its case for the bronze disk. See Limine Reply/Contract Terms at 1 n. 1.1 agree.
Pipeline points to no language within the four corners of the contract establishing the bronze disk as the reference point from which measurements were to be taken. See Limine Opposition/Contract Terms at 6-8. Rather, it relies on a note to pre-dredge acoustic basement surveys performed by OSI that stated: “DEPTHS ARE IN FEET AND ARE REFERENCED TO MEAN LOWER LOW WATER (MLLW) BASED ON A BRONZE DISK STAMPED “20.14” LOCATED ON PIER NO. 2 WHICH HAS AN ELEVATION OF 20.14 FEET MEAN LOW WATER ... AS PROVIDED BY PORTLAND PIPELINE CORPORATION.” See Notes for OSI Pipeline Seamless MLLW Contour Set (“OSI Survey Notes”), attached thereto as Exhibit C. OSI’s acoustic basement surveys, in turn, were included along with 12 drawings “generated to define the scope of work” and were “considered part of the Contract Documents[J” SOW at 2, § 0103. 6
I am mindful that, as Pipeline’s counsel has underscored, this was a complex, highly technical project, not easily grasped by a layperson. Nonetheless, Pipeline does not argue that (i) the pre-bid meeting notes were incоrporated by reference in the contract
7
or that (ii) the contract eon
Confining my review to the four corners of the contract documents presented by the parties, I once again conclude that Cashman offers a reasonable interpretation, but Pipeline does not. As Cashman argues, the contract reasonably can be read to have fixed MLLW as the standard of measurement without specifying a point from which MLLW was to be measured. See Limine Motion/Contract Terms at 5-6. As Cashman’s counsel suggested at oral argument, this is the equivalent of fixing a time for a meeting — say, 12:30 p.m. EST— and relying on the parties to have accurate watches, rather than specifying that the meeting time is to be ascertained with reference to a certain timepiece (regardless of that timepiece’s accuracy). The contract, on its face, betrays no reason to believe that a single benchmark necessarily must be selected for a dredging project. In any event, there is no dispute that MLLW, like EST, has a precise definition. Finally, one reasonably can construe the notation to the acoustic basement survey drawings as revealing merely that, for purposes of the pre-dredge acoustic basement surveys, OSI chose, or was directed by Pipeline, to use the bronze disk as a reference point.
On the other hand, it is simply too great a stretch to deduce, from a notation to one set of surveys included with 12 additional contract drawings, that the parties intended the bronze disk to be used as the reference point for MLLW measurement throughout the project. Tellingly, Pipeline itself argues that this intention can be divined from a
combination
of the contract documents and the pre-bid meeting notes, not from the four corners of the contract alone.
See Limine
Opposition/Contract Terms at 6-7. Yet Pipeline offers no basis (beyond ambiguity of the contract) for taking the pre-bid meeting notes into account.
See id.
at 6;
see also Portland Valve,
In sum, the contract unambiguously (i) fixed MLLW as the standard of measurement, (ii) provided a definition of MLLW via the 1994 Manual, incorporated by reference in the contract, and (iii) neither fixed, nor indicated any need to fix, a particular reference point from which MLLW was to be measured. No extrinsic evidence is admissible to vary the terms of an unambiguous contract. Accordingly, Cashman’s motion is granted insofar as it seeks to preclude any bid by Pipeline to introduce extrinsic evidence for the purpose of showing that the parties intended to fix the bronze disk as their benchmark for measurement.
B. Limine Motion/Surveying
In its
Limine
Motion/Surveying, Cash-man requests an order barring Pipeline from introducing evidence and argument concerning Cashman’s own hydrographic surveying on the bases that such evidence (i) is probative of nothing and (ii) would sow confusion, waste time, and unfairly prejudice Cashman.
See Limine
Mo
1. The parties’ contract provided that Pipeline’s surveys (done by OSI), not Cashman’s, determined whether Cashman had completed its work. See id. at 1-2. Accordingly, in Cashman’s view, the quality of its own surveying is irrelevant. See id. at 2.
2. Even if Cashman’s surveying is relevant, Pipeline’s evidence would distract the jury from the real issue, whether Cashman completed its dredging work per OSI’s surveying, not whether Cashman is itself an accomplished surveyor. See id. at 3-5.
Pipeline counters that:
1. While it is true that OSI was to judge whether Cashman’s performance was complete, evidence of Cashman’s own poor surveying is relevant for at least two reasons: (i) to show that Cashman’s own poor planning and execution of the job, rather than any breach by Pipeline, caused its extra costs, and (ii) to challenge Cash-man’s “total cost” claim for damages, which incorporates its surveying costs. See Defendant’s Opposition to Plaintiffs Motion in Limine To Exclude Evidence Including Expert Opinion Testimony Concerning Jay Cashman, Inc.’s Hydrographic Surveying (“Limine Opposition/Surveying”) (Docket No. 44) at 5-6. Pipeline offers two of “numerous” examples of the negative effects that Cashman’s surveying allegedly had on its performance: (i) its surveys were off by one foot through much of the 2005 dredging season (making it more likely that it did not finish the project in 2005), and (ii) its surveyor made a 0.68 foot conversion error in 2006, making it more likely that a large part of its 2006 surveying costs were attributable to its own error. See id. at 6.
2. Cashman’s surveying, rather than constituting a confusing and prejudicial sideline, played an integral role in its performance of the instant dredging job. See id. at 6-7.
Cashman admits the two specific surveying errors cited by Pipeline but labels them red herrings because (i) Cashman is only claiming damages from late March 2005, when OSI’s surveys show its work was complete, and (ii) Cashman’s work in 2006 consisted of addressing locations that Pipeline directed it to address. See Plaintiff Jay Cashman, Inc.’s Reply to Defendant’s Opposition to Plaintiffs Motion in Limine To Exclude Evidence Including Expert Opinion Testimony Concerning Cashman’s Hydrographic Surveying (“Li-mine Reply/Surveying”) (Docket No. 53) at 2. It argues that the contract’s extra-work provision does not entitle Pipeline to a rebate for poor performance on Cash-man’s part and that, in any event, as its counsel underscored at oral argument, it is willing to forgo damages for costs of its surveyor if need be. See id. at 4.
Pipeline has the better argument. “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Cash-man’s willingness to excise surveying costs from its damages claim does not wholly blunt Pipeline’s argument that its evidence of Cashman’s surveying is relevant. As Pipeline correctly notes: “If the jury believes that Cashman did poor survey work in 2005, that tends to disprove that it was the Pipeline’s fault that Cashman returned in 2006.... If the jury believes that Cash-man eventually came to rely on OSI for practically all survey work, not just the clearing survey, that tends to prove that OSI’s costs sought in the Pipeline’s setoff are justifiable.”
Limine
Opposition/Sur
Nor does Cashman make a convincing case that the evidence it seeks to exclude is more confusing or unfairly prejudicial than probative. Cashman’s surveys were integral to the process of its job performance. It is difficult to see how the jury could grasp this case without being informed of the role those surveys played. The parties’ able counsel do not dispute, and are capable of making clear to the jury, that under the contract, the judgment as to whether Cashman completed performance was to be made solely on the basis of OSI’s post-dredging surveys.
For these reasons, Cashman’s motion to bar Pipeline from adducing evidence addressing Cashman’s hydrographic surveys is denied on the showing made.
II. Motion for Partial Summary Judgment
A. Summary Judgment Standards
1. Federal Rule of Civil Procedure 56
Summary judgment is appropriate only if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
Santoni v. Potter,
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett,
2. Local Rule 56
The evidence the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the Local Rules of this District.
See
Loe. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute.
See
Loe. R. 56(b). Each fact
Failure to comply with Local Rule 56 can result in serious consequences. “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loe. R. 56(e). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of fact.”
Id.; see also, e.g., Cosme-Rosado v. Serrano-Rodriguez,
B. Factual Context
The parties’ statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 56, reveal the following facts relevant to resolution of Pipeline’s summary-judgment motion: 9
This litigation arises out of a contract between Pipeline and Cashman pursuant to which Cashman was retained to perform dredging work in the Portland Harbor Approach Channel. Defendant’s Statement of Material Facts in Support of Its Motion for Partial Summary Judgment (“Defendant’s SMF”), attached to Defendant’s S/J Motion, ¶ 1; Plaintiff Jay Cashman, Inc.’s Response to Defendant Portland Pipeline, Inc.’s Statement of Material Facts and Plaintiffs Statement of Additional Material Facts (“Plaintiffs Opposing SMF”), attached to Plaintiff Jay Cashman, Inc.’s Memorandum of Law in Opposition to Defendant’s Motion for Partial Summary Judgment (“Plaintiffs S/J Opposition”) (Docket No. 45), ¶ l.
10
Pipeline determined
The details of the work to be completed under the contract were contained in a series of documents incorporated by reference, including 12 technical drawings specific to the Project, a series of acoustic basement drawings, seven technical reports, dive videos, and governmental permits from local, state, and federal governments. Defendant’s SMF ¶2; Plaintiffs Opposing SMF ¶ 2. 12 Under the state permit, dredging in the approach channel was permissible only between January 1, 2005 and March 31, 2005 — a 90-day job — for environmental reasons primarily related to lobster habitat. Id. ¶ 3. 13 In general terms, the contract required Cashman to dredge down to an elevation of minus 48 feet MLLW generally and to minus 49 feet MLLW in the till and bedrock areas. Id. ¶ 4. The lumpsum contract price for this work was $1,950,000. Id. ¶7. 14 Pipeline drafted the contract for the Project. Plaintiffs Additional SMF ¶ 45; Defendant’s Reply SMF ¶ 45. Cashman did not draft the terms of the contract. Id. ¶ 46.
Through this litigation, Cashman has asserted a claim that ranges from $2,760,330 to $2,982,330 for alleged extra work, more than the total amount of the contract Cashman signed. Defendant’s SMF ¶ 16; Plaintiffs Opposing SMF ¶6. Cashman’s job under the contract included removing
The day before Cashman was to start dredging in 2005, a ship collided with its dredge that was moored outside the channel. Plaintiffs Additional SMF ¶ 31; Defendant’s Reply SMF ¶ 31. As a result of the collision, Cashman’s primary production vessel was damaged and taken out of service. Id. The collision occurred through no fault of Cashman and was not a foreseeable event. Id.
Cashman did not finish its work as scheduled in 2005. Defendant’s SMF ¶ 8; Plaintiffs Opposing SMF ¶ 8. 16 At the end of the 2005 dredging season, Pipeline had the choice of terminating the contract with Cashman for cause and hiring a new contractor to complete the dredging or working out a way to have Cashman return and finish the Project in 2006. Defendant’s SMF ¶ 9; Declaration of Stanwood L. Given III (“Given Deck”), attached thereto, ¶ 13. 17 Cashman agreed and committed in a meeting on April 28, 2005 with Bruce Wood and Jay Cashman for Cashman and Marjorie Dawson, Dave Cyr, Ken Brown, and Stan Given for Pipeline to return to complete the contract dredge work in 2006. Defendant’s SMF ¶ 10; Plaintiffs Opposing SMF ¶ 10. 18 At that time, Cashman posted a substantial letter of credit to guaranty its return and performance. Id. ¶ 11. Cashman signed a “Contract Work Order” agreeing to extend the work period of the original contract through July 31, 2006. Id. ¶ 12. Pipeline accepted the letter of credit and Cashman’s commitment to return to finish the job. Id. ¶ 13. Pipeline obtained the necessary pеrmit revisions and notifications required to extend the dredge period for 2006. Id. ¶ 14. Cashman returned to Portland in 2006 to work another full dredging season, from early January through late March 2006, to complete its contract. Id. ¶ 15. 19
As the Project went forward, Cashman learned that Pipeline had a significantly different understanding of what the contract required and how its terms should be interpreted. Plaintiffs Additional SMF ¶ 32; Wood Aff. ¶ 5. For example, Pipeline did not disclose its intention to judge Cashman’s work against an inflexible and unrealistically precise standard until after the Project was under way. Id. 23 When Cashman submitted its bid, it understood that the standards set out in the 1994 Manual would be used for post-dredge surveys. Plaintiffs Additional SMF ¶ 33; Wood Aff. ¶ 5. This manual recognizes the margin of error inherent in surveying equipment and techniques as being in the range of one-half foot. Id. Pipeline, however, judged Cashman’s work to the .01 and .1 of a foot level. Id. 24
An undisclosed error in the benchmark resulted in Pipeline’s surveyor requiring Cashman to dredge the channel to 48.26 feet MLLW instead of the performance standard stated in the contract of 48 feet MLLW. Plaintiffs Additional SMF ¶37; Wood Aff. ¶ 9.
25
During the bid process for the Project, Pipeline did not discuss with prospective contractors that the bronze disk was not at 20.14 MLLW when using the NOAA datum. Plaintiffs Additional SMF ¶ 47; Defendant’s Reply SMF 47.
26
Pipeline required Cashman to dredge to remove areas that had been reported to be in excess of a performance elevation by .01 foot and .1 foot. Id. ¶ 29. These directions were based on surveys performed by OSI. Id. 29 OSI’s surveyors have acknowledged that there is a margin of error of .2 foot in their surveying techniques and methodology 95 percent of the time. Id. ¶ 30. 30 Cashman was forced to go back and redredge areas that would have been determined to be clear if an accurate benchmark had been used. Plaintiffs Additional SMF ¶ 34; Wood Aff. ¶ 5; Deposition of Jay Cashman, Inc., by William Bruce Wood, Exh. H to Plaintiffs Opposing SMF (“Wood Dep./Plaintiff”), at 65-66, 109-10. Id. Cashman was spending time, money and effort on areas that actually were “clear” according to the performance limits stated in the contract. Id. 31
The benchmark problems were compounded by Pipeline’s decision to employ an inflexible and unreasonable standard in judging thе status of Cashman’s work. Plaintiffs Additional SMF ¶ 35; Wood Aff. ¶ 5.
32
Pipeline also re-surveyed large
As the Project went forward, Cashman discovered information that materially affected its ability to complete the Project. Plaintiffs Additional SMF ¶ 63; Wood Aff. ¶ 4. If Pipeline had disclosed this information to Cashman, Cashman either would not have submitted a bid for the Project or would have submitted a bid substantially higher than the bid it actually submitted. Id 35
Cashman was bidding on two potential projects. Plaintiffs Additional SMF ¶ 50; Defendant’s Reply SMF ¶ 50. The first was to create a channel that was minus 49 feet MLLW in the till and bedrock areas and minus 48 feet MLLW in the remaining non-rock areas. Id. The second was to create a channel that was minus 51 feet MLLW in the till and bedrock areas and minus 50 feet MLLW in the remaining non-rock areas. Id. Cashman submitted a bid for both projects. Id. ¶ 51. Its bid for the 48/49 foot MLLW channel was $1,950,000, and its bid for the 51/50 MLLW channel was $6,964,000. Id. The contract documents estimated that creation of the 48/49 foot MLLW channel would entail removal of 36,000 cubic yards of material, including 3,300 yards of “hard” material. Id. ¶ 52. 36 Creation of the minus 50 foot MLLW channel was estimated to require removal of 240,000 cubic yards of material, including 30,000 cubic yards of rock material. Id. ¶ 54. Cashman dredged in excess of 140,000 cubic yards of material from the Portland Harbor Channel. Id. ¶ 53. 37
Cashman made its complaints and claims known to Pipeline prior to litigation.
The contract between Cashman and Pipeline has a provision covering claims for extra work by Cashman. Defendant’s SMF ¶ 27; Plaintiffs Opposing SMF ¶ 27. 43 Cashman stated in a letter to Pipeline dated June 23, 2004 that it would finish the Project in 2005 in 45 days rather than the allotted 90 days. Id. ¶ 28. 44
Moffatt & Nichols is a consulting engineering company that does work specializing in port and marine infrastructure. Plaintiffs Additional SMF ¶ 57; Defendant’s Reply SMF ¶ 57. Moffatt
&
Nichols was originally hired by Pipeline to provide preliminary design for the deepening of the Portland Harbor Channel.
Id.
¶ 58. In October 2003, Moffatt
&
Nichols declined further involvement in the Portland
Inasmuch as review and commentary on the subject bid package could be construed as an endorsement of the approаch [Pipeline] is taking, we respectfully decline further involvement. We wish, on the other hand, to mention that we have concerns about the [Pipeline] approach. For example[,] in the absence of a detailed design and associated construction documents that clearly define the work for the contractor, [Pipeline] is effectively enabling the contractor to perform the work on a time and material basis. This may not work to [Pipeline’s] advantage. The concern is that the contractor will argue change conditions if the quantities or dredged material properties differ from those represented in the bid package (detailed plans and specifications would dramatically reduce this possibility). Further you should consider liquidated damages to make sure the contractor completes the work within a specified time. This is critical both from the point of view of cost control as well as meeting the schedule dictated by the environmental dredging window. There are many other particulars provided in typical dredging specifications that serve to protect the owners; too many to cite here. Finally, you should keep in mind that the preliminary opinions of probable costs we have forwarded in the past assumed a conventional design approach where the nature of the work could be controlled with the construction documents. Using [Pipeline’s] proposed, i.e., less defined approach could result in significant inсreases in construction costs, particularly if there are disputes with the contractor over weather, soil/rock conditions, quantity measurements, etc.
Id. ¶ 59 (emphasis in original). Pipeline did not produce Exhibit R [the foregoing letter] in discovery. Id. ¶ 60. It was obtained by Cashman in response to a subpoena issued to Moffatt & Nichols. Id. 45
C. Analysis
Pipeline moves for summary judgment on three of the five counts of Cashman’s complaint, Count II (quantum meruit), Count III (unjust enrichment), and Count V (unconscionability and breach of the duty of good faith and fair dealing). See Defendant’s S/J Motion at 1; Complaint. The parties agree that Maine law governs resolution of their dispute. See Defendant’s S/J Motion at 4-7; Plaintiffs S/J Opposition at 6-16. Pipeline seeks summary judgment as to both Counts II and III on the ground that, as a matter of law, Cashman cannot be entitled to extracontractual remedies with respect to matters that, in Pipeline’s view, were governed entirely by the parties’ contract. See Defendant’s S/J Motion at 5. It seeks summary judgment as to Count V on the bases that (i) Cashman cannot demonstrate the requisites of unconscionability, which include a showing that, as of the time of execution of a contract, it contained terms so unfair as to “shock the conscience,” and (ii) Maine has not recognized the existence of an implied duty of good faith and fair dealing outside the context of the Uniform Commercial Code (“UCC”), which governs transactions in goods, not construction services. See id. at 6-7.
For the reasons that follow, I conclude that (i) Cashman’s claim of untimely filing is without merit, and (ii) Pipeline demonstrates entitlement to summary judgment as to Counts III and V, but not as to Count II.
1. Cashman’s Claim of Untimely Filing
On March 7, 2008, Pipeline filed the instant motion for partial summary judgment. See Docket No. 27. Pursuant to a January 17, 2008 order granting a motion by Cashman to extend time, that was the date on which dispositive motions were due. See Docket Nos. 19-20. The instant motion hence was timely filed. It is of no consequence that Pipeline could have filed it sooner or could have styled it as a motiоn to dismiss. It is also irrelevant that Pipeline represented during a conference between the court and counsel on November 6, 2007 that it likely would not file any dispositive motions. See Docket No. 17. Pipeline never declared that it would not file such a motion and never waived its right to do so. See id. Nor is there any indication that its representation was made in bad faith. Cashman’s timeliness challenge accordingly must fail.
2. Count II: Quantum Meruit
As the Law Court has explained,
quantum meruit
and unjust enrichment are distinct causes of action:
“Quantum meruit,
also sometimes la-belled ‘contract implied in fact,’ involves recovery for services or materials provided under an implied contract. Unjust enrichment describes recovery for the value of the benefit retained when there is no contractual relationship, but when, on the grounds of fairness and justice, the law compels performance of a legal and moral
“A valid claim in
quantum meruit
requires: that (1) services were rendered to the defendant by the plaintiff; (2) with the knowledge and consent of the defendant; and (3) under circumstances that make it reasonable for the plaintiff to expect payment.”
Id.
¶ 8,
“To establish a claim for unjust enrichment, three elements must be proved: [One] a benefit conferred upon the defendant by the plaintiff; [two] an appreciation or knowledge by the defendant of the benefit; and [three] the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.”
Bowden v. Grindle,
Cashman is correct that, under Maine law, the existence of an express contract between the parties does not necessarily bar a claim for
quantum meruit
damages.
See
Plaintiffs S/J Opposition at 6-9;
see also, e.g., Uncle Henry’s Inc. v. Plaut Consulting Co.,
At oral argument, Pipeline’s counsel agreed that
Abington
stands for the proposition that, in some cases, a claim for
quantum meruit
may exist alongside an express contract; however, he sought to distinguish
Abington
on the basis that the instant contract, which includes provisions prescribing the methodology by which Cashman was to seek any extra compensation, fully addressed the alleged “extra”
From all that appears, the express contract at issue in
Abington
contained no provision addressing extra pay for extra work (such as a change-order clause), or at least, no such provision is discussed.
See generally Abington,
The parties sharply dispute whether, in this case, Pipeline directed Cashman to perform work outside the scope of the contract.
47
Nonetheless, a trier of fact viewing the evidence in the light most favorable to Cashman could find that it did. Specifically, a trier of fact could find that (i) Cashman rendered services to Pipelinе outside the scope of the contract
[e.g.,
the creation of a channel deeper than contemplated and the re-dredging of areas previously declared cleared), (ii) with Pipeline’s knowledge and
The court accordingly should deny Pipeline’s bid for summary judgment as to Count II.
3. Count III: Unjust Enrichment
I reach a different conclusion with respect to Cashman’s unjust-enrichment claim. While some of Cashman’s authorities support the proposition that a
quantum meruit
claim can coexist alongside an express contract, none supports the proposition that such is the case with respect to an unjust-enrichment claim.
See
Plaintiffs S/J Opposition at 6-9;
see also Uncle Henry’s,
What is more, as Pipeline suggests,
see
Defendant’s S/J Reply at 4, the Law Court has affirmatively stated that unjust-enrichment claims arise when no contractual relationship exists,
see, e.g., Passamaquoddy Tribe,
4. Count V: Unconscionability; Breach of Duty of Good Faith, Fair Dealing
As Cashman points out,
see
Plaintiffs S/J Opposition at 12, there are two species of unconscionability claims: procedural and substantive,
see, e.g., JOM, Inc. v. Adell Plastics, Inc.,
Cashman identifies no specific provision of the instant contract as substantively unconscionable. See Plaintiffs S/J Opposition at 12-16. It does contend that Pipeline knew, by virtue of Moffatt & Nichols’ report, that the contract lacked detail and was ambiguous, potentially leading to cost overruns and disputes with the contractor. See id. at 13-15. However, assuming that a generalized claim of ambiguity suffices to make out a cause of action for substantive unconscionability, Moffatt & Nichols warned that this lack of precision could hurt Pipeline’s interests, not those of the contractor. Cashman’s evidence and argument falls short of delineating a triable issue of substantive unconscionability.
In support of its claim of procedural unconscionability, Cashman asserts that (i) Pipeline drafted the contract and required Cashman to sign it at the time it submitted its bid, and (ii) Pipeline administered the contract in an unconscionable fashion, demanding a level of perfection beyond its ability to measure and unrealistic to achieve in Maine’s tidal waters. See id. at 12-13. As Pipeline points out, see Defendant’s S/J Motion at 6, the measure of unconscionability is taken at the time of execution of a contract, see, e.g., Richardson v. Diringis, Civil Action Docket No. CV-97-14, 1999 Me.Super. LEXIS 38, at *7 (Me.Super.Ct. Feb. 2, 1999) (if a contract “is unconscionable at the time the contract is made a court may refuse to enforce the contract”) (quoting Restatement (Second) of Contracts § 208); L.L. Bean, Inc. v. Metro-Autospan, Inc., Civil Action Docket No. CV-88-1362, 1989 Me.Super. LEXIS 250, at *11-*12 (Me.Super.Ct. Dec. 11, 1989) (“[W]hen determining whether an entire contract or any of its parts is so unconscionable as to justify its judicial rescission or cancellation, the matter will not be judged in hindsight but by the situation as it existed at the time the bargain was struck.”) (citations and internal quotation marks omitted). Cashman’s contract-administration complaints hence cannot shore up its claim of unconscionability.
Pipeline hence is entitled to summary judgment with respect to Cashman’s unconscionability claim.
This leaves Cashman’s claim for breach of the duty of good faith and fair dealing. As Pipeline correctly observes,
see
Defendant’s S/J Reply at 5, the Law Court has stated that it declines to extend that duty beyond the confines of transactions governed by the UCC,
see, e.g., First NH Banks Granite State v. Scarborough,
Pipeline accordingly is entitled to summary judgment as to Count V.
III. Conclusion
For the foregoing reasons, I DEFER by agreement of the parties ruling until trial on three of Cashman’s motions in
limine
(the
Limine
Motion/Settlement, the
Li-mine
Motion/Insurance, and the
Limine
Motion/Webster), GRANT the
Limine
Motion/Contract Terms, DENY the
Limine
Notes
. Pipeline sought bids on two alternative jobs, one to dredge to minus 48 feet MLLW generally and minus 49 feet MLLW in bedrock and till areas and the other to dredge to minus 50 feet MLLW generally and minus 51 feet in bedrock and till areas. See SOW at 5, § 0230. The parties agreed on the first alternative. See Limine Opposition/Contract Terms at 4; Limine Reply/Contract Terms at 6.
. "OSI" is shorthand for Ocean Surveys, Inc., a company based in Old Saybrook, Connecticut. See Exh. H to Limine Reply/Contract Terms.
. Cashman asserts in its papers, and its counsel contended at oral argument, that in conducting post-dredge surveying for this job, OSI, which prided itself on the sophistication of its technology and the accuracy of its surveys, ignored the 1994 Manual. See Limine Motion/Contract Terms at 3 n. 1; Deposition of Russell Watson ("Watson Dep.”), Exh. D thereto, at 48; Limine Reply/Contract Terms at 3-4 & nn. 3-4; Watson Dep., Exh. E thereto, at 18, 20. Pipeline does not dispute this but explains that (i) in 1994, multibeam hydrographic surveying was in its infancy, and the equipment and methodology used in the pre-dredge surveys in 2002 were more sophis- . ticated than those envisioned by the 1994 Manual, (ii) while the 1994 Manual was the most up to date version available when the contract documents were created, it had become outmoded, even "archaic,” with respect to multibeam hydrographic surveying by the time OSI performed pre-dredge surveying for the instant project in 2002, (iii) the standards and tolerances described in the 1994 Manual with respect to multibeam hydrographic surveying had been superseded in the field by the equipment and methodology used by OSI in its 2002 pre-dredge surveys, and (iv) OSI used post-dredge equipment and methods "comparable” to those it employed for its pre-dredge surveys in 2002. See Limine Opposition/Contract Terms at 4; Watson Dep., attached thereto, at 15-16; Deposition of George Reynolds ("Reynolds Dep.”), attached to Limine Opposition/Contract Terms, at 74-76.
. It is not clear that the 1994 Manual’s measurement methodology, which calls for rounding to the nearest half-foot, see 1994 Manual at Table 8-1, necessarily favors Cashman in every instance. Indeed, at oral argument, Pipeline's counsel contended that if Cashman had read and focused on the six-inch tolerance contained in the 1994 Manual, it should have made sure it dredged enough to meet performance standards within a half-foot (plus or minus) tolerance. It may be, as Pipeline seems to suggest, that Cashman performed its dredging duties pоorly even by the yardstick of the 1994 Manual, but that is a separate matter.
.The parties discovered near the end of the instant dredging project in March 2006 that the bronze disk, which was keyed to an earlier tidal epoch, did not accurately measure MLLW. See Limine Motion/Contract Terms at 5 & n. 2; Limine Opposition/Contract Terms at 7 & n. 5. MLLW was actually 0.26 foot higher (per Cashman) or 0.23 higher (per Pipeline) than indicated by the disk — in other words, approximately three inches in Cash-man’s favor. See Limine Opposition/Contract Terms at 7 & n. 5; Post Road Surveying, Inc. report dated March 20, 2006, attached thereto; Titcomb Associates report dated June 26, 2006, attached to Limine Opposition/Contract Terms.
. At oral argument Cashman’s counsel represented, and Pipeline's counsel did not dispute, that none of the 12 drawings apart from the OSI acoustic basement survey drawings contained a notation referencing the bronze disk.
. For purposes of advocating that the court take into consideration the pre-bid meeting notes, Pipeline's counsel has not relied on a section of the SOW contemplating that the parties would negotiate certain details of the project at a so-called “kickoff meeting.”
See Limine
Opposition/Contract Terms at 6-8; SOW at 3-4, § 0210. The kickoff meeting was to take place after the bid’s award,
see
SOW at 3-4, § 0210, whereas the pre-bid meeting presumably occurred prior to that
. Pipeline seeks a setoff of $327,676 from the contract price for costs of certain OSI survey services in 2005 and 2006 and certain dive services in 2005. See Answer (Docket No. 3) at 7.
. As noted above, Local Rule 56 requires a party responding to a statement of material facts to admit, deny or qualify the underlying statement. See Loe. R. 56(c)-(d). The concept of "qualification” presupposes that the underlying statement is accurate but in some manner incomplete, perhaps even misleading, in the absence of additional information. Except to the extent that a party, in qualifying a statement, has expressly controverted all or a portion of the underlying statement, I have deemed it admitted.
. Cashman qualifies this statement, asserting that (i) this litigation arises out of disputes related to dredging work Cashman performed
. Pipeline qualifies this statement, asserting that it decided to go ahead with the Project so that the same vessels that had been accessing the Pipeline piers could come in more fully laden with oil. Defendant's Reply SMF ¶ 62; 30(b)(6) Deposition of: Kenneth P. Brown ... on September 17, 2007 ("Sept. 17 Brown Dep.”), Exh. A to Affidavit of Nikolas P. Kerest ("Kerest Aff.”) (Docket No. 48), at 7-8; Deposition of: Stanwood L. Given, III ("Given Dep.”), Exh. C to Kerest Aff., at 23.
. Cashman qualifies this statemеnt, asserting that the details of the contractual work were contained in the text of the contract. Plaintiff's Opposing SMF ¶ 2; Exhs. B-E thereto.
. Cashman qualifies this statement, asserting that, although the original Maine Department of Environmental Protection ("DEP”) permit for the Project covered the period from January 1, 2005 through March 31, 2005, Pipeline was granted an extension until April 15, 2005. Plaintiff's Opposing SMF ¶ 3; Sept. 17 Brown Dep. at 158. Cashman adds that Pipeline did not notify it of the extension, as a result of which it was unable to schedule dredging operations in the most effective manner. Plaintiff's Opposing SMF ¶ 3; Deposition of James Galli, P.E. ("Galli Dep.”), Exh. G thereto, at 56-57.
.Cashman qualifies this statement, asserting that the contract contemplated payment of $1,950,000 to create a channel of minus 49 feet MLLW in the till and bedrock areas and minus 48 feet MLLW in the remaining non-rock areas, but as the Project went forward, Cashman discovered information that materially affected its ability to complete the Project. Plaintiffs Opposing SMF ¶ 7; Lump Sum Agreement, Exh. B thereto, at 2, ¶ 4(a); Wood Aff. ¶ 4. Cashman asserts that, if Pipeline had disclosed this information, it either would not have submitted a bid for the Project or would have submitted a substantially higher bid. Plaintiff's Opposing SMF ¶ 7; Wood Aff. ¶ 4.
. Cashman qualifies this statement, asserting that it was required to conduct work outside the scope of the contract because of errors made by Pipeline and its surveyor. Plaintiff's Opposing SMF ¶ 19; Wood Aff. ¶¶ 12-14.
. Cashman qualifies this statement and several others made by Pipeline, asserting that at the end of the 2005 dredging season, it had substantially completed the Project, and Pipeline was made aware of its position. Plaintiffs Opposing SMF ¶¶ 8-10, 13, 15; Wood Aff. ¶ 19.
. Cashman denies this statement on the basis of its objection that the Given Declaration falls into the category of ''[s]elfserving affidavits that do not contain adequate specific factual information based on personal knowledge[, which] are insufficient” to sustain a summary-judgment motion. Plaintiff's Opposing SMF ¶ 9 (quoting
Spratt v. Rhode Island Dep’t of Corr.,
. Cashman qualifies this statement and others made by Pipeline, asserting that the only way it could receive the money it was owed under the contract was to post a letter of credit and return to Portland in 2006 to do more dredging. Plaintiff's Opposing SMF ¶ 10-11, 13; Wood Aff. ¶ 22.
. Cashman qualifies this statement, asserting that when it returned to Portland Harbor Channel in 2006 it was fulfilling Pipeline's continual demands to dredge, there was little if any material left to dredge, and it did not expect it would be working for an entire
. Pipeline denies this statement, see Defendant's Reply SMF ¶ 43; however, I view the facts in the light most favorable to Cashman, as non-movant.
. Pipeline qualifies this statement, asserting that both parties agreed that there was less than 1,000 cubic yards of material abоve the contract specifications after the 2005 dredging season. Defendant’s Reply SMF ¶ 44; Sept. 17 Brown Dep. at 156-57.
. Pipeline denies this statement, see Defendant's Reply SMF ¶ 55; however, I view the facts in the light most favorable to Cashman as non-movant.
. Pipeline denies paragraph 32, see Defendant's Reply SMF ¶ 32; however, I view the facts in the light most favorable to Cashman as non-movant.
. Pipeline denies paragraph 33, see Defendant's Reply SMF ¶ 33; however, I view the facts in the light most favorable to Cashman, as non-movant.
. Pipeline denies this, see Defendant's Reply SMF ¶ 37; however, I view the facts in the light most favorable to Cashman, as non-movant.
. Pipeline qualifies this statement, asserting that until the middle of March 2006, about two weeks before the end of the contract period, neither party was aware that the elevation stamped on the bronze disk on Pipeline's Pier No. 2 had not been adjusted to the latest NOAA tidal-epoch data. Defendant’s Reply SMF ¶ 47; Sept. 17 Brown Dep. at 37-39. Pipeline adds that Cashman’s land surveyor, Post Road Surveying, made this discovery as part of its attempt to determine why Cashman’s surveys were inaccurate. Defendant’s Reply SMF ¶ 47; Deposition of Jay Cashman, Inc., by William Bruce Wood, Exh. H to Kerest Aff. ("Wood Dep./Defendant”), at 144; Deposition of Daniel J. Gaudet ("Gaudet Dep.”), Exh. I to Kerest Aff., at 135, 165.
. Pipeline qualifies paragraph 48, asserting that in spring 2006 Titcomb Associates completed a ground survey for Pipeline in advance of OSI's hydrographic survey that would form the basis for the charting of the channel. Defendant's Reply SMF ¶ 48; Sept. 17 Brown Dep. at 38-39, 41. Pipeline adds that, as part of that ground survey, Titcomb Associates found that the bronze dislc was not 20.14 MLLW using the latest NOAA tidal-еpoch data. Defendant's Reply SMF ¶ 48; Sept. 17 Brown Dep. at 37-39.
. Pipeline qualifies this statement, asserting that Titcomb Associates found that the bronze disk was .23 foot higher than 20.14 MLLW, using the latest NOAA tidal-epoch data, in June 2006, more than one month after the contract's conclusion. Defendant's Reply SMF ¶ 49; Sept. 17 Brown Dep. at 38-39; Titcomb Associates report dated June 26, 2006, attached to Limine Opposition/Contract Terms.
. Pipeline qualifies paragraph 29, asserting, inter alia, that upon Project completion it wanted to be sure that the relevant charting agencies would chart a 48-foot channel. Defendant's Reply SMF ¶ 29; Sept. 17, 2007 Brown Dep. at 42-43; Given Dep. at 53-54. Therefore, it says, when OSI’s surveys showed Cashman’s performance in excess of performance elevation by .1 or even .01 feet, in most circumstances it required Cashman to re-dredge those areas. Defendant’s Reply SMF ¶ 29; Given Dep. at 53-54.
. I omit Cashman's further statement that OSI’s surveyors acknowledged a margin of error of up to a foot five percent of the time. Plaintiff's Additional SMF ¶ 30. As Pipeline points out, neither Russell Watson nor George Reynolds, on whose testimony Cashman relies for this point, testified that the margin of error was up to a foot five percent of the time. Defendant’s Reply SMF ¶ 30; Watson Dep., Exh. L to Plaintiff's Opposing SMF, at 20; Reynolds Dep., Exh. M to Plaintiff’s Opposing SMF, at 62. As both parties note, see Plaintiff's Additional SMF 130; Defendant's Reply SMF ¶ 30, Reynolds did testify that OSI met "the corps spec for accuracy for this type of environment” and that the “corps spec” was "[a] half a foot to a foot[,]” Reynolds Dep. at 111, but he corrected his testimony in an errata sheet to one-half foot, Errata Sheet for the Deposition of George Reynolds, attached thereto.
. Pipeline denies paragraph 34, see Defendant's Reply SMF ¶ 34; however, I view the facts in the light most favorable to Cashman, as non-movant.
. Pipeline denies this, see Defendant's Reply SMF ¶ 35; however, I view the facts in the light most favorable to Cashman, as non-movant.
. Pipeline denies this, see Defendant's Reply SMF ¶ 38; however, I view the facts in the light most favorable to Cashman, as non-movant.
. Pipeline qualifies paragraph 39, asserting that it does not know what rock Cashman anticipated finding when it submitted its bid, but the contract states that "[t]he Contractor shall be responsible to evaluate the volume and composition of targeted materials and their dredging and excavation characteristics based on the information incorporated and referenced within these specifications and other information available to or acquired by the Contractor. In addition, the Contractor may conduct additional on-site investigations at his expense.” Defendant's Reply SMF ¶ 39; SOW, Exh. D to Plaintiff's Opposing SMF, at 8, § 0270. In addition, Pipeline asserts that Cashman notified it of alleged ''unanticipated” rock in Area C on March 1, 2006, which was untimely notice under the contract. Defendant’s Reply SMF ¶ 39; General Conditions, Exh. C to Plaintiff's Opposing SMF, at 5-6, ¶ 8(a)-(b).
. Pipeline denies this statement, see Defendant’s Reply SMF ¶ 63; however, I view the cognizable evidence in the light most favorable to Cashman as non-movant.
. Pipeline qualifies paragraphs 52 and 54, noting that the contract stated: "These estimates are provided for information purposes only. The Contractor shall be responsible to evaluate the volume and composition of targeted materials and their dredging and excavation characteristics based on the information incorporated and referenced within these specifications and other information available to or acquired by the Contractor.” Defendant’s Reply SMF ¶¶ 52, 54; SOW at 8, § 0270. Pipeline adds that the volume estimates did not account for overdredge. Defendant’s Reply SMF ¶¶ 52, 54; Sept. 17 Brown Dep. at 76.
. Pipeline qualifies this statement, asserting that Cashman dredged in excess of 140,000 cubic yards (including overdredge) while working on the Project inside and outside of the contract area. Defendant's Reply SMF ¶ 53; Sept. 17 Brown Dep. at 74.
. Pipeline qualifies this statement, asserting that under the terms of the contract, Cash-man was required to provide notice of its claims for, among other things, extra work and/or extra compensation within fourteen days after the basis for the claim arose. Defendant's Reply SMF ¶ 40; General Conditions at 5-6, ¶ 8(a)-(b). Pipeline adds that Cashman was also required to provide a detailed and properly documented statement of the basis of its claim within 30 days of making the original claim. Defendant’s Reply SMF ¶ 40; General Conditions at 5-6, ¶¶ 8(a)-(c), 9. According to Pipeline, although Cashman made complaints and claims known prior to litigation, it did not comply with contract notice provisions. Defendant's Reply SMF 1140; Sept. 17 Brown Dep. at 27-28, 33.
. Pipeline denies this, see Defendant's Reply SMF ¶ 41; however, I view the facts in the light most favorable to Cashman as non-movant.
. Pipeline qualifies this statement, stating, inter alia, that Cashman did not comply with the nоtice of provisions of the contract. Defendant's Reply SMF ¶ 42; Given Deck ¶¶ 28-30.
. Cashman purports to deny this statement; however, its denial is in the nature of a qualification, to wit, that it consistently notified Pipeline that Pipeline was administering the contract in an unreasonable manner and imposing on Cashman an obligation not required by the contract. Plaintiff's Opposing SMF ¶ 24; Wood Aff. HI 8.
. Cashman purports to deny this statement, but its denial is the nature of a qualification, to wit, that it continually protested the arbitrary and unreasonable way in which Pipeline was administering and interpreting the contract. Plaintiff’s Opposing SMF ¶ 25; Wood Aff. ¶ 18.
. Cashman qualifies this statement, asserting, inter alia, that it continually tried to satisfy Pipeline and resolve its concerns even though its attempts to satisfy Pipeline exceeded the requirements of the contract, but it never intended to abandon its claims if no amicable resolution was possible. Plaintiff's Opposing SMF ¶ 27; Wood Aff. ¶ 23.
. Cashman qualifies this statement, asserting that extenuating circumstances impacted its work progress; for example, in January 2005, the same month it began drilling work, a Cashman vessel was involved in an "allision,” talcing a major piece of equipment out of service. Plaintiff's Opposing SMF ¶ 28; Wood Dep./Plaintiff at 62-63. Allisions are "collisions between a vessel and a stationary object[.]"
Continental Grain Co. v. Puerto Rico Mar. Shipping Auth.,
. I omit paragraph 61, which is neither admitted nor supported by the citation provided.
. Cashman also argues that the contract may have been voided by a material mistake of fact, in which case Cashman’s only remedies would be extracontractual ones. See Plaintiff's S/J Opposition at 6 n. 3. Cashman posits that this possibility alone renders summary judgment inappropriate as to Counts II and III. See id. The material mistake to which Cashman refers is the belief that the bronze disk on Pipeline’s Pier No. 2 accurately measured MLLW. See id. As Cashman acknowledges, this mistake could void the contract only if a fact-finder were to determine that the contract fixed the bronze disk as the benchmark for the Project. See id. In ruling on Cashman's pending Limine Motion/Contract Terms, I found that the contract unambiguously did not fix the bronze disk as the Project’s benchmark. Cashman's material-mistake ground for opposing summary judgment as to Counts II and III is accordingly moot.
. For example, at oral argument, Pipeline's counsel described this case as not remotely similar to the classic quantum meruit case in which a homeowner directs a contractor to add two additional windows to her house. By contrast, Cashman’s counsel characterized this case as very similar, suggesting that Pipeline's direction to do considerable additional digging paralleled the prototypical homeowner’s direction.
. To make out the third element of a
quantum meruit
claim (that the circumstances made it reasonable for the plaintiff to expect payment), a plaintiff need not show that the defendant subjectively intended to pay for the work.
See, e.g., Paffhausen,