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HMS ENTERPRISES, INC. v. PACIFIC GENERAL

United States District Court, S.D. California


September 19, 2005.

United States for the use of HMS ENTERPRISES, INC., a California corporation dba CROSS PAINTING, Plaintiff,
v.
PACIFIC GENERAL, INC., an entity of form unknown; TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a surety, Defendants.

The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge

ORDER GRANTING DEFENDANT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA'S MOTION FOR SUMMARY ADJUDICATION
On October 22, 2004, Plaintiff filed a complaint for damages alleging claims for breach of contract, open book account, account stated, reasonable value, and a bond claim under the Miller Act. Defendant Pacific General, Inc. ("PGI"), had entered into a contract with the Department of Justice for the construction of a new border patrol facility in El Centro, California. Defendant Travelers Casualty and Surety Company of America ("Travelers") issued a Miller Act Payment Bond guaranteeing the payment to all persons supplying labor and materials for the construction project. Plaintiff alleges that it provided labor and materials on the construction project per its contract with PGI, but was not paid in full. Defendant Travelers moves for summary adjudication on Plaintiff's fifth cause of action under the Miller Act. For the reasons expressed below, the Court hereby GRANTS Plaintiff's motion for summary adjudication.

I. LEGAL STANDARD

  Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248.

  A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to establish an essential element of the nonmoving party's case on which the nonmoving party bears the burden of proof at trial. See id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

  Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. See Celotex, 477 U.S. at 314. When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must not weigh the evidence or make credibility determinations in evaluating a motion for summary judgment. See Anderson, 477 U.S. at 255.

  II. DISCUSSION

  To prevail on a bond claim under the Miller Act, the supplier need only prove four elements: (1) the materials were supplied in prosecution of the work provided for in the contract; (2) the supplier has not been paid; (3) the supplier had a good faith belief that the materials were intended for the specified work; and (4) the jurisdictional requisites of timely notice and filing were met. Martin Steel Constructors, Inc. v. Avanti Constructors, Inc., 750 F.2d 759, 761 (9th Cir. 1984); United States for Use and Benefit of Hawaiian Rock Products Corp. v. A.E. Lopez Enterprises, Ltd., 74 F.3d 972, 975 (9th Cir. 1996). 40 U.S.C. § 3133 provides a one-year statute of limitations which begins to run one day after the last day on which the labor was performed or the material supplied. 40 U.S.C.A. § 3133(b)(4) (2002) ("An action brought under this subsection must be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action.").*fn1

  Defendant Travelers contends that Plaintiff's fifth cause of action under the Miller Act is time barred as a matter of law because Plaintiff failed to file its complaint within the one-year statute of limitations. Travelers points to the fact that the work orders produced by Plaintiff indicate that Plaintiff's last day of work was completed on August 21, 2003 and, therefore, Plaintiff's October 21, 2004 complaint is untimely. Relying on this documentation, Travelers argues that there is no genuine issue of material fact as to Plaintiff's last day of work. The Court agrees.

  No triable issue of fact exists as to when Plaintiff completed his work under the contract. In his declaration, Plaintiff's president, Harry Shearer, states that Plaintiff performed extra work on or about November 15, 2003 to fix damages to the completed paint surfaces after the project move-in. (Shearer Decl. at 2.) This work, however, can not be considered part of the original contract, but is instead new work. It will not toll the statute of limitations. See United States ex rel. Austin v. Western Elec. Co., 337 F.2d 568, 572 (9th Cir. 1964) (distinguishing, for statute of limitations purposes, work done as part of an original contract from work undertaken for the purpose of correcting defects). See also United States v. Int'l Fidelity Ins. Co, 200 F.3d 456, 460 (6th Cir. 2000) (holding that performing remedial or corrective work does not toll statute of limitations under the Miller Act); T & A Painting, Inc. v. United States, 673 F.Supp. 994, 996 (N.D. Cal. 1987). Moreover, the facts show that the work was 100% complete as of August 21, 2003, according to the face of the Plaintiff's invoice. (Travelers decl., ex. 1). Thus, plaintiff had one year from that date to file a Miller Act Bond Claim. Because plaintiff's complaint was not filed until October 22, 2004, it is untimely.

  Accordingly, Defendant's motion for summary adjudication on Plaintiffs fifth cause of action under the Miller Act is hereby GRANTED.

  IT IS SO ORDERED.

20050919

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