Capitol Builders Hardware Inc. v. American Safety Casualty Insurance Company et al

Filing 18

ORDER granting 11 Use Plaintiff's Motion to File First Amended Complaint; vacating October 7, 2014 hearing; denying as moot 17 Use Plaintiff's Request to Attend October 7, 2014 Hearing by Telephonic Appearance. Signed by Magistrate Judge Howard R. Lloyd on 10/3/2014. (hrllc1, COURT STAFF) (Filed on 10/3/2014)

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*E-Filed: October 3, 2014*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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UNITED STATES, for the use of CAPITOL
BUILDERS HARDWARE, INC. dba
CAPITOL DOOR SERVICE,
Use Plaintiff,

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No. C14-02785 HRL
ORDER GRANTING USE
PLAINTIFF’S MOTION TO FILE
FIRST AMENDED COMPLAINT

v.
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SABER CONSTRUCTION, INC. and
AMERICAN SAFETY CASUALTY
INSURANCE COMPANY,

ORDER DENYING AS MOOT USE
PLAINTIFF’S REQUEST TO ATTEND
OCTOBER 7, 2014 HEARING BY
TELEPHONIC APPEARANCE

Defendants.
____________________________________/

[Re: Docket Nos. 11, 17]

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The United States, for the use of Capitol Builders Hardware, Inc. dba Capitol Door Service,

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sues Saber Construction, Inc. and American Safety Casualty Insurance Company, asserting a claim

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on the Miller Act Payment Bond as well as state law claims for breach of contract and quantum

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meruit. Capitol Builders moves to file a first amended complaint. Dkt. No. 11. Defendants do not

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oppose the motion. The motion is deemed suitable for determination without oral argument. The

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October 7, 2014 hearing is vacated. Civ. L.R. 7-1(b). Capitol Builders’ request to attend the

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October 7, 2014 hearing by telephonic appearance is denied as moot. Dkt. No. 17. Based on the

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moving papers, the Court grants the motion to file a first amended complaint.

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Saber Construction was awarded Contract No. GS-09P-13-WB-M-0024 by the United States

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for improvements to the Robert F. Peckham Federal Building and United States Courthouse, 280

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South First Street, San Jose, California. Saber Construction, as principal, and American Safety

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Casualty Insurance Company, as surety, executed and delivered a payment bond guaranteeing the

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payment to all persons supplying labor and materials in the prosecution of the work provided for in

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the contract. Capitol Builders entered into a subcontract agreement with Saber Construction,

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pursuant to which it furnished automatic door equipment and related labor and materials to Saber

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Construction, which were used in the prosecution of the work provided for in the contract. Capitol

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Builders alleges that it has not been paid the amount due for the value of the labor, services, and

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materials provided.
The original complaint alleges that the contract value is $66,087 and that Capitol Builders

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For the Northern District of California

has received partial payment of $6,608.70, leaving a balance due and owing of $59,478.30. Capitol

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United States District Court

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Builders’ counsel, William Baker, testifies that he inadvertently identified the amount of $6,608.70

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as a partial payment made by Saber Construction, when in fact no payments have been made by

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Saber Construction. Baker Decl. ¶ 2. According to Capitol Builders, $6,608.70 is the amount of

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unpaid retention due on the project in addition to the previously invoiced amount of $59,478.30. Id.

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It seeks to amend the complaint to request $66,087 in damages, plus interest, attorneys’ fees, and

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costs.

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In addition, Exhibit B to the original complaint is a copy of the subcontract agreement that

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does not contain initials by Capitol Builders or Saber Construction acknowledging the new

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subcontract amount. Attorney Baker testifies that he recently located a copy of the subcontract

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agreement that includes Capitol Builders’ and Saber Construction’s initials acknowledging the

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revised subcontract amount. Id. ¶ 3. Capitol Builders seeks to amend the complaint by replacing

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Exhibit B with a copy of the subcontract agreement that contains all of the parties’ initials.

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Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading only

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with the opposing party’s written consent or the court’s leave. The court should freely give leave

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when justice so requires.” In order to determine whether leave to amend should be granted, the

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Court considers “‘undue delay, bad faith or dilatory motive on the part of the movant, repeated

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failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

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party by virtue of allowance of the amendment, [and] futility of amendment, etc.’” Eminence

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Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003) (quoting Foman v. Davis,

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371 U.S. 178, 182 (1962)).

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Here, there is no evidence of undue delay, bad faith or dilatory motive on the part of Capitol

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Builders; repeated failure to cure deficiencies by amendments previously allowed; undue prejudice

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to Defendants, or futility of amendment. Accordingly, Capitol Builders’ motion is granted. Capitol

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Builders shall file its attached proposed amended complaint forthwith, and in no case later than

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seven days from the date this order is filed. Upon filing, pursuant to Rule 15(a)(3), Defendants will

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have 14 days to move to dismiss the amended complaint or otherwise respond.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.
Dated: October 3, 2014
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C14-02785 HRL Notice will be electronically mailed to:

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Christian J. Gascou

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William Louis Baker

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

[e-mail]
[e-mail]

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For the Northern District of California

United States District Court

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