ATTORNEY Kevin Abikoff has asked the federal court to dismiss with prejudice the lawsuit filed by Tang’s Corp. against Imperial Pacific International LLC.
Tang’s Corp. sued IPI for non-payment of a contractual agreement amounting to $230,623.53.
Abikoff, who represents IPI, filed a memorandum in support of the defendant’s motion for judgment on the pleadings or, in the alternative, a summary judgment.
The “plaintiff’s threadbare claims are legally insufficient and fail to state a claim upon which relief can be granted,” Abikoff said.
He noted that the plaintiff has filed three complaints in this matter in less than a year.
“Even after two opportunities to amend its pleading, Tang’s Corp.’s allegations against IPI remain imprecise, uninformative, and conclusory,” Abikoff said,
Tang’s Corp. “purports to bring claims for breach of contract, but the complaint’s oblique references to one alleged oral contract are almost incomprehensible, while allegations brought under a second contract merely list the elements of a breach of contract claim while failing to make any effective factual allegations,” the lawyer said.
Abikoff is asking the District Court for the NMI to enter a judgment on the pleadings and dismiss the complaint with prejudice.
Beyond that, Abikoff said, “the minimal factual development in this matter (with discovery now closed), when combined with the razor thin allegations, fails to create a genuine issue of material fact as to IPI’s liability under either the oral or written contract.”
Thus, in the alternative, he added, the court should grant IPI’s motion for summary judgment as to both claims.
According to the lawyer, the debris removal project claim is fundamentally flawed.
“There is no contract between Tang’s Corp. and IPI for debris removal project, even assuming that the debris removal project was subject to a valid contract, Tang’s Corp. has not provided any evidence of any work performed for IPI under the contract,” Abikoff said.
Abikoff also said that IPI was not unjustly enriched by the debris removal project. Summary judgment in favor of IPI regarding the debris removal project claim should be granted, he added.
As for the consultancy claim, Abikoff said the plaintiff is not entitled to payment under the consultancy agreement because it did not perform under the contract and has not suffered any damages.
Moreover, IPI was not unjustly enriched by the consultancy agreement, he said.
Abikoff also asked the court to dismiss Tang’s request for a mechanic’s lien.
He said the “plaintiff has not alleged that it completed the requisite steps that would entitle it to a mechanic’s lien, and it is presently impossible for plaintiff to complete those steps.”
Abikoff said even if the plaintiff had strictly complied with the statute, it would not be entitled to a mechanic’s lien.
The statute provides that an application for a lien and notice of lien must be filed no later than 60 days from the date of completion, defined as “the time when the owner, general contractor or material supplier for the improvement completes the delivery of a notice upon all other parties attesting that the contracted work on the improvement has been completed or has been abandoned due to non-payment from the owner,” Abikoff said.
The plaintiff does not allege that it provided notice of completion or abandonment of the contracted work, he added.
In fact, the plaintiff alleges that “charges for the storage of IPI’s materials continue to accrue,” and “the services provided by Tang’s are not complete.”
“Thus, not only did plaintiff fail to provide notice of completion or abandonment, plaintiff admits that the alleged work is ongoing. Even if the court were to find that Tang’s and IPI entered into an agreement for the debris removal project, plaintiff is not entitled to a mechanic’s lien and this request for relief should be dismissed,” Abikoff reiterated.
Tang’s Corp., through attorney Marc Scoggins, has filed a petition to compel arbitration and a complaint for damages.
The lawsuit is seeking a court order awarding Tang’s Corp. actual damages.
The lawsuit is also asking for an order directing IPI to take possession of its property stored at Tang’s or to otherwise provide for its disposal.
According to the lawsuit , Tang’s Corp. and IPI entered into an agreement in 2016 to remove construction debris and landfill from the casino resort construction site and store it for disposal at IPI’s expense.
Tang’s Corp. said IPI has failed to pay the amounts owed under the agreement totaling $144,623.52.
In its petition to compel arbitration, the lawsuit stated that IPI also hired Tang’s Corp to perform consulting services in relation to fire suppression systems at the casino construction site.
IPI has failed to pay amounts owed under the agreement totaling at least $86,000, Tang’s Corp. stated.
