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.
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.
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.
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