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United States v. Insurance Co.

August 6, 2008

UNITED STATES OF AMERICA FOR THE USE AND BENEFIT OF SHAMROCK PLUMBING, LLC, SHAMROCK PLUMBING, LLC, A UTAH LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
INSURANCE COMPANY, A MINNESOTA ST. PAUL FIRE AND MARINE INSURANCE COMPANY, A CORPORATION; LIBERTY MUTUAL MASSACHUSETTS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 6/24/09 Non-Dispositive Motion Filing Deadline: 7/10/09 Dispositive Motion Filing Deadline: 7/24/09 Settlement Conference Date: 7/9/09 10:00 Ctrm. 9 Pre-Trial Conference Date: 10/5/09 11:00 Ctrm. 3 Trial Date: 11/17/09 9:00 Ctrm. 3 (JT-7 days)

Date of Scheduling Conference. August 6, 2008.

I. Summary of Pleadings.

1. Plaintiff Shamrock, entered into a subcontract agreement ("Subcontract") with UPA California for the performance of plumbing work on the Curry Village Employee Housing Project located in Yosemite, California ("Project"). Shamrock claims a sum of $335,431 remains due and owing on the subcontract.

II. Orders Re Amendments To Pleadings.

1. The parties do not currently anticipate amending the pleadings, but reserve the right to do so.

III. Factual Summary.

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings.

1. Miller Watts Constructors, Inc. ("Miller/Watts"), as a general contractor, entered into an agreement with the United States of America, by and through the National Parks Service, Contract No. 1443C8000050912 for the Project.

2. Miller/Watts entered into a subcontract agreement with UPA California.

3. UPA California entered into second-tier subcontract agreement with Shamrock for the performance of plumbing work on the project.

4. The Use Plaintiff, Shamrock Plumbing, LLC, is a Utah limited liability company.

5. Defendant St. Paul Fire and Marine Insurance Company is a Minnesota corporation licensed to do and doing business in California.

B. Contested Facts.

1. The Project encountered issues with various construction delays. The source of the delays are at issue, as well as the damages related to the delays.

2. Miller/Watts contends that all payments due to UPA California were made. This issue is contested. Various UPA California subcontractors also claim that they were not paid in full. This issue is also contested. Payment issues include, but are not limited to, validity of requested change orders, back charges and offsetting claims.

3. There is a pending AAA arbitration involving Miller/Watts, UPA California, St. Paul, Liberty and several subcontractors scheduled for February 2009. UPA California has filed for bankruptcy. Therefore, the arbitration as to claims against UPA California is stayed. The parties are meeting and conferring as to whether issues related to Shamrock's present claim may be resolved at the pending arbitration. Shamrock is currently not a party to the arbitration. There may be an issue as to whether UPA must join Shamrock into the arbitration, or if Shamrock could be joined by another party. The parties are meeting and conferring on this issue as well, as it relates to arbitration joinder, standing and bankruptcy stay scope.

4. Shamrock's compliance with the Miller Act is contested.

5. Shamrock's compliance with the bonds under which it is seeking recovery is contested.

6. The date upon which Shamrock completed its work on the Project is contested.

IV. Legal Issues.

A. Uncontested.

1. Jurisdiction exists under 28 U.S.C. § 1331 and 40 U.S.C. §§ 3131-3133.

2. Venue is proper under 28 U.S.C. § 1391.

3. In a Miller Act case, Federal law governs the Miller Act bonds and the owner's plan specifications and contracts. As to non-Miller Act bonds, the law of the State ...


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