Cemex Construction Materials South LLC v. Grady's Quality Excavating Incorporated et al

Filing 42

ORDER granting Cemex's 37 motion for entry of default judgment in the amount of $48, 465.58, plus interest at the legal rate of 10% per annum. IT IS ORDERED denying Cemex's 39 motion for attorney's fees. Signed by Judge Frederick J Martone on 08/22/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cemex Construction Materials South,)
LLC; United States for the use and benefit)
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of Cemex Materials South LLC,
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Plaintiffs,
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vs.
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Grady’s Quality Excavating Inc.; Grady L.)
Hopson; Cheryl L. Hopson; Ronald F.)
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Wilson; Montana Builders LLC,
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Defendants.
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_________________________________ )
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Cheryl L. Hopson; Grady L. Hopson;)
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Grady’s Quality Excavating Inc.
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Cross Claimants
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vs.
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Montana Builders LLC; Ronald F. Wilson)
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Cross Defendants
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No. CV-11-8012-PCT-FJM
ORDER

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The United States, through the Department of Agriculture, entered into a contract with

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defendant Montana Builders, LLC, for a construction project at Oak Creek Complex-Pine

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Flat Campground (the “Project”). Montana Builders, as the general contractor on the Project

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and pursuant to the Miller Act, 40 U.S.C. § 3131(b)(2), furnished a payment bond to the

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United States. Defendant Ronald Wilson is surety on the payment bond. Montana Builders

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contracted with defendant Grady’s Quality Excavating as subcontractor on the Project.

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Grady’s in turn contracted with plaintiff Cemex Construction Materials South, LLC, for the

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purchase of construction materials. Cemex has now filed this action against Grady and its

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principals for their failure to pay Cemex for materials in the principal amount of $48,465.58.

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Pursuant to the Miller Act, Cemex also named as defendants Montana Builders and its surety

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under the payment bond. See 40 U.S.C. § 3133(b)(2).

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The court has before it the United States of America for the Use and Benefit of Cemex

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Construction Materials South, LLC’s (“Cemex”) application for entry of default judgment

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against Montana Builders, LLC, and Ronald F. Wilson (doc. 37). Also before us is Cemex’s

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motion for attorney’s fees in the amount of $14,213.51 (doc. 39).

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Cemex served copies of the summons and complaint on defendant Montana Builders

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on February 13, 2011, and on defendant Ronald F. Wilson on March 27, 2011. Both

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Montana Builders and Wilson have failed to plead or otherwise defend within the time

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prescribed by Rule 12(a)(1), Fed. R. Civ. P. The clerk entered default against these

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defendants in favor of Cemex on June 8, 2011. Cemex now seeks entry of default judgment

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and contends that its claims against Montana Builders and Ronald Wilson is for a sum certain

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in the principal amount of $48,465.58, plus interest at the legal rate of 10% per annum from

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the date payment was due until paid in full (doc. 37 at 2). Cemex’s claim is sufficiently

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supported by affidavit (doc. 27, ex. A). Therefore, IT IS ORDERED GRANTING

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Cemex’s motion for entry of default judgment in the amount of $48, 465.58, plus interest at

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the legal rate of 10% per annum (doc. 37).

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Cemex also seeks attorney’s fees in the amount of $14,213.51 pursuant to A.R.S. §

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12-341.01 and the Miller Act (doc. 39). Other than to cite the two statutes, however, Cemex

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does not explain its eligibility for recovery of fees.

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Attorney’s fees are not available under the Miller Act unless expressly provided for

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by the terms of the direct contract between the parties or in the Miller Act bond itself. United

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States v. ex rel. Reed v. Callahan, 884 F.2d 1180, 1185 (9th Cir. 1989). Moreover, fees are

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not available under A.R.S. § 12-341.01 in the absence of a contractual relationship. Ayres
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v. Red Cloud Mills, Inc., 167 Ariz. 474, 481, 808 P.2d 1226, 1233 (Ct. App. 1990). Cemex

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had no contractual relationship with Montana Builders or Ronald Wilson and the payment

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bond does not provide for attorney’s fees. See Complaint ex. A. Because Cemex has failed

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to establish any theory to support its claim for attorney’s fees against Montana Builders or

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Wilson, Cemex’s motion for attorney’s fees is denied (doc. 39).

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IT IS ORDERED GRANTING Cemex’s motion for entry of default judgment in the
amount of $48, 465.58, plus interest at the legal rate of 10% per annum (doc. 37).

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IT IS ORDERED DENYING Cemex’s motion for attorney’s fees (doc. 39).

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DATED this 22nd day of August, 2011.

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