United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS ATTORNEY FEE CLAIM AND
GRANTING REQUEST FOR AN ENLARGEMENT OF TIME TO FILE
N. PARRISH UNITED STATES DISTRICT COURT JUDGE.
the court is a motion brought by defendants MBA General
Contracting, LLC and Cory Martin (collectively, MBA) to
dismiss plaintiff R&O Construction Company's (R
&O 's) fourth cause of action for an award of
attorney fees. [Docket 8]. The court GRANTS the motion and
dismisses the fourth cause of action with prejudice.
a general contractor, entered into a construction contract
with Utah State University Research Foundation. Under the
construction contract, R&O agreed to act as the general
contractor for a construction project on Utah State
University's campus in Logan, Utah.
entered into two contracts with a subcontractor, MBA. The
first was entitled the Master Subcontract Agreement (Master
Agreement), which outlined the general duties and obligations
between the parties. The second was entitled the Work
Authorization Document, which delineated the specific duties
and obligations of the parties related to the Utah State
University project. Under the Work Authorization Document,
MBA agreed to perform concrete work as a subcontractor for
the construction project.
alleges that MBA breached the contracts by failing to meet
required quality standards and by failing to complete the
work on time. As a result of the alleged failures to perform
under the contracts, R&O gave MBA a notice to cure the
deficiencies. R&O alleges that M B A's response did
not adequately address its demands. As a result, R&O
withheld payments. M B A then notified R&O that it would
cease work on the construction project until payments were
made in full. R&O hired replacement subcontractors to
complete the work.
sued MBA. In its complaint, R&O asserts various causes of
action arising from MBA's alleged failure to perform
under the contracts. R &O 's fourth cause of action
is for an award of attorney f ees allegedly provided for
under t h e M as t er A gr eem en t . M BA filed a motion to
dismiss the attorney fee claim, arguing that the Master
Agreement does not permit an attorney fee award under the
facts of this case.
of a claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure is appropriate where the plaintiff fails to state a
claim upon which relief can be granted. In this case, MBA
argues that R&O cannot state a contractual claim for
attorney fees because the language of the Master Agreement
does allow for an award of fees. The Master Agreement
provides that it shall be interpreted under the laws of the
State of Utah. Because the interpretation of this contract
does not involve extrinsic evidence, it is a legal question
for the court. See Peterson v. Sunrider Corp., 48
P.3d 918, 924 (Utah 2002).
argues that two separate provisions of the Master Agreement
permit an award of attorney fees in its favor: (1) the
indemnification provision (Section 3.D) and (2) the
failure-to-perform provision (Section 2.E). The court
addresses each of these provisions in turn.
THE INDEMNIFICATION PROVISION
Master Agreement contains an indemnification provision, which
Indemnification. . . . To the fullest extent
permitted by law, Subcontractor [MBA] shall indemnify, defend
and hold harmless Contractor [R&O] and Owner, and their
agents and employees against any and all claims, demands,
damages, liabilities, expenses and reasonable attorney fees
incurred by Contractor and/or Owner and arising out of or in
any way related to the performance of ...