Big B Construction, Inc. v. Mascon Inc., et al

Filing 10

STIPULATION AND ORDER signed by Judge John A. Mendez on 2/9/2015 STAYING this action pending arbitration. (Michel, G.)

1

5

DOWNEY BRAND LLP
Matthew J. Weber, California Bar No. 227314
[e-mail]
Sean J. Filippini, California Bar No. 232380
[e-mail]
3425 Brookside Road, Suite A
Stockton, CA 95219-1757
Telephone:
[phone]
Facsimile:
[phone]

6

Attorneys for Use Plaintiff

7

BIG B CONSTRUCTION, INC.

2
3
4

8
9

THE UNITED STATES DISTRICT COURT FOR

10

THE EASTERN DISTRICT OF CALIFORNIA

11

SACRAMENTO DIVISION

DOWNEY BRAND LLP

12
13
14
15

UNITED STATES OF AMERICA, for the
use and benefit of BIG B
CONSTRUCTION, INC., a California
corporation,

v.

17

19

STIPULATION FOR STAY PENDING
ARBITRATION; ORDER THEREON

Plaintiff,

16

18

CASE NO. 2:14-cv-01979-JAM-KJN

MASCON, INC., a California Corporation,
TRAVELERS CASUALTY AND
SURETY COMPANY OF AMERICA, and
DOES 1-10, inclusive,

20

Defendants.

21
22
23
24
25
26
27
28
1396768.3

STIPULATION FOR STAY PENDING ARBITRATION AND ORDER

1

Plaintiff Big B Construction, Inc. (“Big B”), and Defendants Mascon, Inc. (“Mascon”),

2

and Travelers Casualty and Surety of America (“Travelers”) by and through their attorneys of

3

record, hereby stipulate and agree as follows:

4

1.

Mascon was awarded a contract by the United States of America, through the

5

Department of Army, more particularly identified as Contract No. W91238-12-C-0021 (the

6

“Prime Contract”), for certain public work of improvements consisting of the construction of a

7

new Public Safety Center Facility at the Defense Depot Joaquin Complex in Tracy, San Joaquin

8

County, California (the “Project”).

9

2.

Under 40 U.S.C. §§ 3131-3133, Mascon, as principal, and Travelers, as surety,

executed and delivered a payment bond, more particularly identified as Bond No. 105755297 (the

11

“Payment Bond”), guaranteeing the payment of all persons supplying labor and material in the

12
DOWNEY BRAND LLP

10

prosecution of the work provided for in the Prime Contract and any and all duly authorized

13

modifications thereof. Further, pursuant to the Payment Bond, Mascon and Travelers bound

14

themselves jointly and severally for the purpose of allowing a joint action or actions against any

15

or all of them and bound themselves in a sum of money equal to the Prime Contract price.

16

3.

On or about September 27, 2012, Big B and Mascon entered into a subcontract

17

which provided that Big B would furnish labor, material, and equipment to construct cast-in-place

18

building concrete and site concrete as part of the overall construction of the Project (the

19

“Subcontract”).

20

4.

21

Big B performed work pursuant to the Subcontract. Thereafter, Big B and Mascon

became involved in a dispute over payment and performance of the Work under the Subcontract.

22

5.

As a result, Big B filed the above entitled lawsuit against Mascon and Travelers on

23

or about August 25, 2014, alleging claims for: 1) Recovery on Bond (Miller Act), 2) Breach of

24

Contract, 3) Account Stated, and 4) Goods and Services Rendered.

25

6.

The Subcontract contains an agreement to arbitrate disputes arising out of, or

26

relating to, the Subcontract. Nevertheless, Big B initiated this lawsuit to secure its rights to make

27

a claim against Travelers (who is not a signatory to the Subcontract) on the Payment Bond.

28

7.
1396768.3

Therefore, Big B, Mascon, and Travelers stipulate and agree that they shall submit
1
STIPULATION FOR STAY PENDING ARBITRATION AND ORDER

this1
dispute to mediation and complete mediation before a mutually agreeable mediator within the
2
earlier of the two following dates:
3

A) Sixty days after the Project is physically complete and the United States Department of

the 4
Army’s (“Owner”) subsequent contractual “acceptance” of the Project (i.e., when the Owner
5
issues its undisputed final change orders, including but not limited to the Owner’s compensable
6
and/or non-compensable schedule adjustments); or
7

B) Sixty days after March 30, 2015.

8

8.

If mediation does not completely resolve all of the issues between the parties, Big

9
B, Mascon, and Travelers stipulate and agree that they shall submit this dispute to a mutually
10
agreeable arbitrator (through either JAMS or AAA or another service agreed upon by the parties)
to 11 arbitrated as a binding arbitration, consistent with the provisions of the Subcontract. The
be
DOWNEY BRAND LLP

12
agreement on the arbitrator and submission of the matter to binding arbitration, and formal
13
initiation of the arbitration, shall occur no later than 30 days after the mediation is completed.
14
Even though Travelers is not a signatory to the Subcontract, it expressly agrees, through this
15
stipulation, to participate in, and be bound by, the stipulated binding arbitration as set forth in this
16
paragraph.
17

9.

Big B, Mascon, and Travelers, further stipulate and agree that any statutes of

18
limitations applicable to Big B’s claims against Mascon or Travelers (regardless of whether
19
asserted in this lawsuit) shall be tolled from the date of the filing of the Complaint in this lawsuit
20
(August 25, 2014).
21

10.

Big B, Mascon, and Travelers further stipulate and agree that this lawsuit should

be22
STAYED for all purposes pending arbitration. The parties further agree that the stay shall
23
remain in effect until resolution of this dispute by arbitration and pending entry of an arbitrator’s
24
award in this Court.
25
26
27
28
1396768.3

2
STIPULATION FOR STAY PENDING ARBITRATION AND ORDER

1
DATED: February 9, 2015
2

DOWNEY BRAND LLP

3
By:

4
5
6

/s/ Sean J. Filippini
MATTHEW J. WEBER
SEAN J. FILIPPINI
Attorneys for Plaintiff BIG B CONSTRUCTION,
INC.

7
DATED: February 9, 2015
8

KENNADAY, LEAVITT & DAPONDE

9
By:

10
11
DOWNEY BRAND LLP

12

/s/ George Gore (auth’d on 2/9/15)_________
GEORGE GORE
Attorneys for Defendants
MASCON, INC., and TRAVELERS CASUALTY
AND SURETY COMPANY OF AMERICA

13
14
15
16 Good cause appearing, IT IS SO ORDERED.
17
18
19

Dated: 2/9/2015

/s/ John A. Mendez______
John A. Mendez
U. S. District Court Judge

20
21
22
23
24
25
26
27
28
1396768.3

3
STIPULATION FOR STAY PENDING ARBITRATION AND ORDER