ADDITIONAL CASES The Hayner Hoyt Corporation, Plaintiff v. Ventana DBS LLC et al., Defendants; 5:19-cv-1376 SUMMARY ORDER Ventana DBS LLC commenced this diversity action on April 10, 2018, alleging claims against The Hayner Hoyt Corporation and Travelers Casualty and Surety Company of America pursuant to New York state law (hereinafter “the First Action”). (No. 3:18-cv-436, Dkt. No. 1 (hereinafter “1st Compl.”).) Hayner Hoyt and Travelers answered the complaint and asserted a counterclaim against Ventana pursuant to New York state law. (Id., Dkt. No. 9.) Shortly thereafter, Magistrate Judge David E. Peebles issued a scheduling order and set the deadline for amending pleadings and joining parties at September 20, 2018. (Id., Dkt. No. 14.) The parties conducted discovery in the First Action from August 2018 until they requested a stay on discovery in November 2019. (Id., Dkt. Nos. 14, 90-92.) On November 6, 2019, Hayner Hoyt filed a separate diversity action, alleging claims pursuant to New York state law against Ventana and Liberty Mutual Insurance Company (hereinafter “the Second Action”). (No. 5:19-cv-1376, Dkt. No. 1 (hereinafter “2d Compl.”).) The First Action and the Second Action, which both center around a certain contract between Ventana and Hayner Hoyt, (see generally 1st Compl.; 2d Compl.), have since been consolidated by Magistrate Judge Miroslav Lovric, (No. 5:19-cv-1376, Dkt. No. 20.) Now pending is Ventana’s and Liberty’s motion to dismiss, in which they argue that Hayner Hoyt’s claims in the Second Action are barred as compulsory counterclaims pursuant to Fed. R Civ. P. 13(a). (Id., Dkt. No. 13.) Also pending is Hayner Hoyt’s cross-motion for leave to amend its answer in the First Action in order to add the claims as counterclaims.1 (Id., Dkt. No. 17, Attach. 25 at 12-15.) For the reasons that follow, both motions are granted. A. Ventana’s and Liberty’s Motion to Dismiss First, as an initial matter, the applicable standard of review is not entirely clear, specifically with respect to whether the court can consider materials outside of the pleadings when deciding the pending motion. However, even if Rule 12(b)(6) applies, which at least some courts have found, see, e.g., Ginther v. Provident Life & Cas. Ins. Co., No. 05-CV-0248E, 2006 WL 8455681, at *1 (W.D.N.Y. Jan. 24, 2006), aff’d, 350 F. App’x 494 (2d Cir. 2009), the court can consider the correspondence upon which both parties rely because it was attached to the complaint in the Second Action, (No. 5:19-cv-1376, Dkt. No. 1, Attach. 3). Indeed, in considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the court “may consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, legally required public disclosure documents filed with the SEC, and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). Turning to the merits, “[a] litigant must assert as a counterclaim any claim that the litigant has against the opposing party if the claim ‘arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.’” Parnoff v. Fireman’s Fund Ins. Co., 796 F. App’x 6, 9 (2d Cir. 2019) (quoting Fed. R. Civ. P. 13(a)(1)(A)). “The only exceptions are if (1) the claim was already the subject of another pending action and (2) the opposing party did not establish personal jurisdiction over the counterclaimant.” Id. (citing Fed. R. Civ. P. 13(a)(2)). “[A]n absolute identity of factual backgrounds” is not required to render a counterclaim compulsory. Jones v. Ford Motor Credit Co., 358 F.3d 205, 209 (2d Cir. 2004) (citation omitted). Rather, “[a] claim is compulsory if a logical relationship exists between the claim and the counterclaim and if the essential facts of the claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.” Critical-Vac Filtration Corp. v. Minuteman Int’l, Inc., 233 F.3d 697, 699 (2d Cir. 2000) (internal quotation marks, emphasis, and citation omitted). The complaints filed in both the First Action and the Second Action center around the same contract between Hayner Hoyt and Ventana whereby Ventana, as Hayner Hoyt’s subcontractor, agreed to build a “curtain wall system” at Cornell University. (See generally 1st Compl.; 2d Compl.) In the First Action, Ventana alleged certain claims based on Hayner Hoyt’s failure to pay Ventana. (See generally 1st Compl.) Hayner Hoyt filed a counterclaim in the First Action alleging that Ventana breached the contract by delaying performance past an agreed upon deadline. (No. 3:18-cv-436, Dkt. No. 9.) In the Second Action, Hayner Hoyt additionally alleges that Ventana breached the contract because the services it provided were defective. (See generally 2d Compl.) Specifically, Hayner Hoyt alleges that certain water testing that was performed on the curtain wall system “revealed significant water leaks resulting in the collection of water in sills, doors[,] and floors of the building and the presence of biological growth, as well as chips and fractures in glass and sealant gaps,” and that this confirmed Ventana’s defective and deficient installation of the system. (Id. 23.) Hayner Hoyt also added a new party, Liberty, to the action, alleging claims of breach of contract and for specific performance, because, among other things, “Hayner Hoyt has called on Liberty…to satisfy its obligations under [a certain] [p]erformance [b]ond, which…[it] has failed to do.” (Id.
