North Star Terminal & Stevedore Co. Ex Rel et al v. Nugget Construction Inc. et al
Order on Motion for Summary Judgment
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA for the use of
NORTH STAR TERMINAL & STEVEDORE
COMPANY, d/b/a NORTHERN STEVEDORING &
HANDLING, and NORTH STAR TERMINAL &
STEVEDORE COMPANY, d/b/a NORTHERN
STEVEDORING & HANDLING, on its own behalf,
Case No. 3:98-cv-9 TMB
UNITED STATES OF AMERICA for the use of
SHORESIDE PETROLEUM, INC., d/b/a
MARATHON FUEL SERVICE, and SHORESIDE
PETROLEUM, INC., d/b/a MARATHON FUEL
SERVICE, on its own behalf,
ORDER DISPOSING OF
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT ON
NUGGET CONSTRUCTION, INC., SPENCER
ROCK PRODUCTS, INC., UNITED STATES
FIDELITY AND GUARANTY COMPANY, and
ROBERT A. LAPORE,
Plaintiff North Star Terminal and Stevedore Company (“North Star”) has moved for
summary judgment against United States Fidelity & Guaranty Company (“USF&G”) upon
USF&G’s affirmative defenses.1 Plaintiffs Shoreside Petroleum, Inc. and Metco, Inc. have
joined North Star’s motion.2 Defendant USF&G has opposed.3 Plaintiffs have replied.4
Plaintiffs argue that USF&G has failed to present evidence in support of its affirmative
defenses, despite a number of discovery requests. Plaintiffs refer extensively to their second set
of discovery requests and USF&G’s responses thereto. They make little or no reference to the
extensive record beyond this discovery request.
USF&G argues in its defense (i) that USF&G has adopted the factual support and
responses of its co-defendant and surety bond principal, Nugget Construction, Inc. (“Nugget”)
with respect to the affirmative defenses that require factual support, (ii) that it is not required to
provide factual support for those affirmative defenses based solely on legal propositions
(affirmative defense 12 and 13), and (iii) that Plaintiffs’ motion is procedurally incorrect, in that
the issues raised in the motion are in essence discovery disputes that should be addressed in a
discovery motion pursuant to Federal Rule of Civil Procedure 37. USF&G also focuses its
briefing on the second set discovery requests and responses thereto and largely ignores the rest
of the voluminous record.
The parties disagree, among many things, as to the nature of the relief sought by this
motion. Since Plaintiffs have styled this motion a motion for summary judgment, the Court here
treats it as such, although it is largely duplicative of the parties’ many other summary judgment
Docket No. 494.
Docket No. 555.
Docket No. 522.
Docket No. 567.
motions. The summary judgment standard is set forth in the Court’s prior opinions herein.5
Both parties seem to agree that the dispute at issue in this motion concerns the following
affirmative defenses interposed by USF&G:
 Plaintiffs have no contract with Nugget.
 Plaintiffs were suppliers of Nugget’s materialman and are not covered under
the Miller Act.
If Plaintiffs are covered under the Miller Act:
 Plaintiffs’ claims are nonetheless barred by their failure to comply with
 Plaintiffs’ claims are not recoverable under the Miller Act.
If Plaintiffs are in privity with Nugget:
 Plaintiffs fail to state a claim upon which relief can be granted.
 Plaintiffs’ claims are barred by the doctrine of unclean hands and
 Plaintiffs’ claims are barred by the doctrine of unjust enrichment.
 Plaintiffs’ claims are barred by the their failure to mitigate damages.
 Plaintiffs’ claims fail because their damages were caused by their own
wrongful conduct or the conduct of others.
 Plaintiffs’ claims are barred because they failed to comply with all
the conditions precedent under their services contracts.
 Plaintiffs’ claims are barred because they failed to timely provide
notice of the alleged breaches of contract.
 The surety has no liability above the penal sum of the bond.
 The surety asserts all defenses that could be asserted by the principal,
Nugget, whether those defenses have been asserted or not.
 Nugget is not liable for punitive damages or liquidated damages that
are punitive in nature.
 Plaintiffs’ damages should be reduced by their contributory fault
pursuant to Alaska Statute 09.17.060.
 Plaintiffs’ damages are proximately caused by parties other than
Nugget and should be apportioned according to the percentage of fault of
These affirmative defenses depend upon (i) whether Nugget and Plaintiffs are in privity
(affirmative defenses 1, 5-16) and (ii) whether Plaintiffs are covered by the Miller Act
(affirmative defenses 2-4). As discussed in this Court’s opinions addressing the parties’ other
Docket Nos. 635 and 636.
summary judgment motions, these are precisely the material issues of fact that remain in
dispute.6 Because the material issues of fact underlying USF&G’s defenses are in dispute, they
must be decided by the finder of fact at trial. On the briefing before it on this motion, the Court
is not persuaded that summary judgment in favor of Plaintiffs under Federal Rule of Civil
Procedure 56 is appropriate on USF&G’s affirmative defenses.
Plaintiffs’ motion (Docket Nos. 494 and 555) is DENIED.
Dated at Anchorage, Alaska, this 1st day of August, 2006.
/s/ Timothy Burgess
Timothy M. Burgess
United States District Judge
Docket Nos. 635 and 636. See also, North Star Terminal & Stevedore, Co. et al.
v. Nugget Construction, Inc. et al., Slip Op. No. 02-35887 at 4 (9th Cir., March 3, 2005).
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