Progressive Services, Inc. v. JMR Construction Corp, et al.,

Filing 37

ORDER signed by Judge John A. Mendez on 6/22/15 ORDERING the Court GRANTS Plaintiff's motion to lift the stay. The parties shall file a joint status report within twenty days of this order. (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

UNITED STATES OF AMERICA for
the use and benefit of
PROGRESSIVE SERVICES, INC.,
d/b/a/ PROGRESSIVE ROOFING,

13
Plaintiff,

No.

2:11-cv-03005-JAM-DAD

ORDER GRANTING PLAINTIFF’S
MOTION TO LIFT STAY

14
v.
15
16
17

JMR CONSTRUCTION CORP.; NORTH
AMERICAN SPECIALTY INSURANCE
COMPANY; and DOES 1 through
10 inclusive,

18
19

Defendant.
JMR CONSTRUCTION CORP.,

20
21
22
23
24
25
26
27

Counterclaimant,
v.
PROGRESSIVE SERVICES, INC.
d/b/a PROGRESSIVE ROOFING,
and ROES 1 through 10,
inclusive,
Counterdefendants.
Plaintiff Progressive Services, Inc. (“Plaintiff”) moves
(Doc. #30) to lift the stay issued November 8, 2012 (Doc. #29),

28
1

1

of this action against Defendants JMR Construction Corp. (“JMR”);

2

North American Specialty Insurance Company (“NAS”); and Does 1

3

through 10 (collectively “Defendants”), and on JMR’s Counterclaim

4

(Doc. #10) against Plaintiff and Roes 1 through 10. 1

5
6

I. PROCEDURAL BACKGROUND

7

In August 2010, JMR entered into a contract with the

8

Department of the Air Force, on behalf of the United States of

9

America, to perform certain work at Beale Air Force Base in

10

California (“Project”).

11

#7) ¶ 6.

12

Plaintiff in which Plaintiff agreed to furnish certain roofing

13

work on the Project.

14

working on the Project, it ran into unforeseen difficulties and

15

required additional time and compensation to complete the roofing

16

work.

17

additional compensation to JMR and JMR refused to pay.

18

Plaintiff filed its original complaint on November 10, 2011 and

19

its FAC on January 12, 2012.

20

First Amended Complaint (“FAC”) (Doc.

One month later, JMR entered into a subcontract with

Id. ¶ 8.

Id. ¶¶ 9-11, 14, 15.

Shortly after Plaintiff began

Plaintiff submitted its requests for
Id. ¶ 17.

On November 7, 2012, Plaintiff and Defendants submitted a

21

Joint Motion to Stay (“Joint Motion”) (Doc. #27).

In this

22

motion, the parties stated that they had an agreement

23

(“Agreement”) to enter into a pass-through arrangement.

24

Mot. at p. 2.

25

to pursue additional compensation, in JMR’s name, for the

Joint

The pass-through arrangement would allow Plaintiff

26
27
28

1

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for June 17, 2015.
2

1

unanticipated site conditions directly against the U.S.

2

Government under the Contract Disputes Act (“CDA”), 41 U.S.C.

3

§ 7101.

4

stayed pending the outcome of the dispute resolution process

5

outlined in the CDA, and that all pre-trial and discovery

6

deadlines should be vacated.

7

Motion (Doc. #29) and this lawsuit has been stayed since November

8

8, 2012.

Id.

The Joint Motion requested that this litigation be

Id.

The Court granted the Joint

9
10

II.

11

OPINION

Plaintiff asks the Court to lift the stay in order to

12

pursue recovery through the instant action.

13

Court stayed this case “pending Plaintiff’s pursuit of

14

administrative remedies against the federal government” (Doc.

15

#29).

16

stay Order.

17

expense.

18

remedy is well within its rights under the stay Order.

19

nowhere in any agreement, motion or order is there any language

20

which prohibits Plaintiff from filing the instant motion until

21

all administrative remedies have been exhausted.

22

also not required to obtain Defendants’ consent before deciding

23

to stop pursuing any administrative remedies.

24

Mot. ¶ 5.

The

Plaintiff has fulfilled its obligations under the Court’s
It did so voluntarily and at its sole cost and

Its decision to now stop pursuing this administrative
Indeed,

Plaintiff is

Plaintiff is entitled to have its day in court. The reasons

25

for the administrative claim being denied are not relevant nor

26

does it matter whether or not Defendants met all of their

27

obligations under the joint agreement staying this action.

28

Regardless of the terms of the written Joint Prosecution
3

1

Agreement, the conditions of the stay are controlled by the

2

Court’s Order.

3

authority that gives the Court the power to deny the motion.

4

Defendants have not cited to any law or

The Court ordered a stay of the instant action “in light of

5

the parties’ agreement and stipulation that this matter should be

6

stayed pending Plaintiff’s pursuit of administrative remedies

7

against the federal government.”

8

the stay was to give the parties a chance to either resolve the

9

action or simplify the issues for trial.

Order at p. 1.

The purpose of

See Joint Mot. at p. 2.

10

After more than two and a half years it is readily apparent that

11

the parties are no longer in agreement, and Plaintiff is now

12

entitled to resume its action for recovery in this Court.

13

Court grants Plaintiff’s motion and lifts the stay.

The

14
15
16

III. ORDER
For the reasons set forth above, the Court GRANTS

17

Plaintiff’s motion to lift the stay.

18

joint status report within twenty days of this order.

19
20

IT IS SO ORDERED.
Dated: June 22, 2015

21
22
23
24
25
26
27
28
4

The parties shall file a