United States District Court, D. Maryland
MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
J. GARBIS UNITED STATES DISTRICT JUDGE.
Court has before it Defendant Ashmark Construction, LLC's
Cross Motion for Summary Judgment [ECF No. 8] and the
materials submitted relating thereto. The Court finds that a
hearing is not necessary.
RHI, Inc. (“RHI”), a commercial flooring
contractor incorporated in Maryland, brings an action for
damages against Defendant Ashmark Construction, LLC
(“Ashmark”), a Michigan limited liability
company. Compl. ¶ 1-3. Plaintiff alleges breach of
contract and, in the alternative, quantum meruit and unjust
enrichment. The Court has jurisdiction pursuant to 28 U.S.C.
fall of 2015, Ashmark and AC Restaurants, LLC (“AC
Restaurants”) entered into a series of prime contracts,
which provided that Ashmark would be the general contractor
for the construction build-out of several Tilted Kilt
restaurants. Compl. ¶ 7; Def.'s Mot. at 2, ECF No.
8-1. On August 27, 2015, RHI and Ashmark entered into a
Subcontractor Agreement (“Agreement”), providing
that Ashmark would supply labor and materials for tile and
vinyl flooring at three Tilted Kilt restaurants located in
Wheaton, Maryland (“Wheaton Restaurant”), Dulles,
Virginia (“Dulles Restaurant”), and Annapolis,
Maryland (“Annapolis Restaurant”). Compl. ¶
8; Def.'s Mot. Ex. 1 to Ex. A (Subcontractor Agreement),
ECF No. 8-2.
purposes of this motion, there is no dispute between the
parties that the Agreement itself was valid and enforceable
and that RHI performed the requested services pursuant to the
Agreement. Rather, RHI alleges that Ashmark has failed to pay
for the cost of the services provided:
. On the Dulles Restaurant, RHI alleges a modified contract
value of $62, 443.00, of which Defendant has paid $59, 046.20
and owes $3, 396.80. Compl. ¶ 10, ECF No. 2.
. On the Annapolis Restaurant, RHI alleges a modified
contract value of $53, 880.00, of which Defendant has paid
$40, 410.00 and owes $13, 470.00. Id. ¶ 11, ECF
. On the Wheaton Restaurant, RHI alleges a modified contract
value of $61, 175.00, of which Defendant has paid $0.00 and
owes the full amount. Id. ¶ 12, ECF No. 2.
alleges that the total amount due in connection with all
three restaurants is $78, 041.80, and seeks damages,
interest, and costs. Compl. ¶¶ 25-26.
does not dispute these amounts and concurs that Plaintiff
ultimately is entitled to payment but contends that due to
“pay-when-paid” provisions within the Agreement,
it has no obligation to pay RHI until after it is paid by AC
Restaurants. Ashmark contends that it is proceeding
reasonably to obtain payment from the customer but has not yet
obtained payment so that Plaintiff's claims for immediate
payment are barred by the alleged “pay-when-paid”
. § III.1 Payment Schedule: Contractor shall pay the
Subcontractor for the performance of the Work upon receipt of
payment by the Owner and subject to additions and deductions
by change order or other provisions of this Agreement . . .
. § IV Manner of Payment: . . . Contractor will pay the
Subcontractor such amounts within fifteen (15) days after
Contractor receives payment from the Owner.
. Exhibit B to the Agreement, entitled “Payment
Schedule, ” which states: “See subsequent
purchase orders: Draws Net 10 Days after payment received
from Owner.” Def.'s Mot. Ex. 1 to Ex. A, ECF No.
SUMMARY JUDGMENT STANDARD
motion for summary judgment shall be granted if the pleadings
and supporting documents “show that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
well-established principles pertinent to summary judgment
motions can be distilled to a simple statement: [t]he Court
may look at the evidence presented in regard to a motion for
summary judgment through the non-movant's rose-colored
glasses, but must view it realistically. After so doing, the
essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant
would, at trial, be entitled to judgment as a matter of law.
See, e.g., Celotex Corp. v. Catrett, 477
U.S. 317, 322-323 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Shealy v.
Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). Thus, in
order to defeat a motion for summary judgment, “the
party opposing the motion must present evidence of
specific facts from which the finder of fact could reasonably
find for him or her.” Mackey v. Shalala, 43
F.Supp.2d 559, 564 (D. Md. 1999) (emphasis added).
evaluating a motion for summary judgment, the Court must bear
in mind that the “[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut,
but rather as an integral part of the Federal Rules as a
whole, which are designed ‘to secure the just, speedy
and inexpensive ...