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

Filing 48

ORDER granting Grady's 44 motion for default judgment against Montana Builders and Ronald Wilson in the amount of $61,963.05, plus interest at the rate of one and one half percent from the date the payment was due until paid in full. IT IS FURTHER ORDERED granting Grady's 45 motion for attorney's fees and costs against Montana Builders and Wilson in the amount of $6,969.90. Signed by Judge Frederick J Martone on 10/05/11. (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 filed this action against Grady’s and its principals

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

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also named as defendants Montana Builders and Ronald Wilson as surety under the payment

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bond pursuant to the Miller Act. See 40 U.S.C. § 3133(b)(2). Grady’s in turn filed a cross-

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claim against Montana Builders and Wilson, for Montana Builder’s failure to pay Grady’s

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under the subcontract. When Montana Builders and Wilson failed to answer, Cemex sought

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and was granted default judgment against Montana Builders and Wilson in the amount of

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$48,465.58, plus interest (doc. 42).

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We now have before us Grady’s motion for default judgment (doc. 44), and motion
for attorney’s fees (doc. 45) against Montana Builders and Wilson.

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Grady’s filed a cross-claim against Montana Builders and Ronald Wilson for work

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and materials Grady’s furnished in the principal sum of $61,963.05, pursuant to the

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subcontract between Grady’s and Montana Builders. Montana Builders and Wilson were

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served with the cross-claim on June 21, 2011 (docs. 33, 34), but neither filed an answer. The

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clerk of the court entered default against Montana Builders and Wilson in favor of Grady’s

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on July 15, 2011. Grady’s now seeks entry of default judgment and contends that its claim

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is for a sum certain in the principal amount of $61,963.05, plus interest. Grady’s claim is

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sufficiently supported by affidavit (doc. 44 at 5-7). Therefore, we grant Grady’s motion for

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entry of default judgment against Montana Builders and Ronald Wilson in the amount of

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$61,963.05, plus interest at the rate of one and one half percent from the date the payment

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was due until paid in full. See A.R.S. § 32-1129.02(H).

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In its motion for default judgment, Grady’s also asks for attorney’s fees in the amount

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of $15,154.00 and costs in the amount of $494.00 that it claims it “is obligated to pay to

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Cemex as a direct result of Montana Builders failure to pay Grady’s” (doc. 44 at 2). Grady’s

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provides no authority or documentary support for its claim for these fees and costs and
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therefore we do not include them in the default judgment.

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Grady’s also filed a separate motion for attorney’s fees in the amount of $6,539.50,

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pursuant to A.R.S. § 12-341.01, and taxable costs in the amount of $430.40, for amounts it

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incurred in attempting to collect the debt owed by Montana Builders. Grady’s claim is

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sufficiently supported by affidavit, therefore we grant Grady’s motion for attorney’s fees and

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costs in the amount of $6,969.90.

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IT IS ORDERED GRANTING Grady’s motion for default judgment (doc. 44)

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against Montana Builders and Ronald Wilson in the amount of $61,963.05, plus interest at

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the rate of one and one half percent from the date the payment was due until paid in full. See

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A.R.S. § 32-1129.02(H).
IT IS FURTHER ORDERED GRANTING Grady’s motion for attorney’s fees and
costs (doc. 45) against Montana Builders and Wilson n the amount of $6,969.90.
DATED this 5th day of October, 2011.

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