Triple S Alarm Company Inc v. Westfield Insurance Company

Filing 35

ORDER denying deft's 34 Motion for a Declaration. Signed by Judge Susan Webber Wright on 3/1/12. (vjt)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION UNITED STATES OF AMERICA, for the use and benefit of TRIPLE S ALARM CO., INC. Plaintiff VS. WESTFIELD INSURANCE COMPANY Defendant * * * * * * * * * * * * NO: 4:10CV01505 SWW ORDER Before the Court is Defendant’s motion for a declaration regarding Plaintiff’s ability to recover attorney fees in this case (docket entry #34). The Court will not issue an advisory opinion regarding a controversy which has not arisen and thus declines to grant the requested declaration. However, in the interest of resolving this dispute without the necessity of a trial, the Court directs the parties to F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 94 S.Ct. 2157 (1974), where the Supreme Court held that “the Miller Act provides a federal cause of action, and the scope of the remedy as well as the substance of the rights created thereby is a matter of federal not state law.” Id. at 127, 94 S.Ct. 2157. IT IS THEREFORE ORDERED that Defendant’s motion for a declaration (docket entry # 34) is DENIED. IT IS SO ORDERED THIS 1st DAY OF MARCH, 2012. /s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

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