Fought & Company, Inc. v. Walsh/DeMaria Joint Venture V et al
Filing
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ORDER GRANTING STIPULATION TO RELATE CASES Signed by Judge Paul S. Grewal on December 24, 2014. 14-cv-03360-PSG and 14-cv-04401-HRL ARE NOW RELATED. (psglc2, COURT STAFF) (Filed on 12/24/2014)
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NEWMEYER & DILLION LLP
J. BRIAN MORROW, CBN 191392
brian.morrow@ndlf.com
BRANDON A. CLOUSE, CBN 293102
brandon.clouse@ndlf.com
1277 Treat Blvd, Suite 600
Walnut Creek, California 94597
(925) 988-3200; (925) 988-3290 (Fax)
Attorneys for Defendants
WALSH/DEMARIA JOINT VENTURE V, WALSH
CONSTRUCTION COMPANY, THE WALSH GROUP
LTD., and DEMARIA BUILDING COMPANY, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
N EWMEYER & D ILLION LLP
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THE UNITED STATES OF AMERICA, for
the Use and Benefit of J.R. CONKEY &
ASSOCIATES, INC., a California
corporation; and J.R. CONKEY &
ASSOCIATES, INC., a California
corporation,
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CASE NO.: 5:14-cv-03360-PSG
STIPULATION TO RELATE CASES
AND [PROPOSED] ORDER
Plaintiff,
vs.
WALSH/DEMARIA JOINT VENTURE V,
an Illinois joint venture; WALSH
CONSTRUCTION COMPANY, AN Illinois
corporation; THE WALSH GROUP LTD., an
Illinois corporation; DEMARIA BUILDING
COMPANY, INC., a Michigan corporation;
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, a Connecticut
corporation; and DOES 1 through 10
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FILE DATE: July 24, 2014
TRIAL DATE SET: No Date Set
Defendants.
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STIPULATION TO RELATE CASES
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Defendants, Walsh/DeMaria Joint Venture V (“Walsh/DeMaria”), Walsh Construction
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Company (“Walsh Construction”), The Walsh Group Ltd. (“Walsh Group”), DeMaria Building
Company, Inc. (“DeMaria Building”) (collectively “Walsh”), Travelers Casualty and Surety
5010967.1
CASE NO. 5:14-cv-03360-PSG
STIPULATION TO RELATE CASES AND
[PROPOSED] ORDER
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Company of America (“Travelers”) and Liberty Mutual Insurance Company (“Liberty Mutual”)
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(collectively the “Sureties”), Plaintiffs, The United States of America, for the use and benefit of
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J.R. Conkey & Associates, Inc. and J.R. Conkey & Associates, Inc. (“Conkey”) and Plaintiff, The
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United States of America, for the use and benefit of Fought & Company, Inc. Fought &
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Company, Inc. (“Fought”) (all collectively referred to as the “Conkey and Fought Parties”), by
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and through their respective counsel of record herein, hereby stipulate and agree as follows:
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RELATED ACTIONS
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WHEREAS, Plaintiff, J.R. Conkey, commenced an action entitled J.R. Conkey v. Walsh
DeMaria Joint Venture V. et al. (N.D. Cal.) Case No. 5:14-cv-03360-PSG (“Conkey Action”) by
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filing a complaint on or about July 24, 2014, in the United States District Court for the Northern
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N EWMEYER & D ILLION LLP
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District of California, including a cause of action for recovery on Miller Act Payment Bond,
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pursuant to 40 U.S.C. §§ 3131-3134, relating to monies allegedly owed for work performed at a
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Veterans Administration (“VA”) hospital in Palo Alto;
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WHEREAS, Plaintiff, Fought, commenced an action entitled Fought v. Walsh DeMaria
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Joint Venture V. et al. (N.D. Cal.) Case No. 5:14-cv-04401-HRL (“Fought Action”) by filing a
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complaint on or about September 30, 2014, in the United States District Court for the Northern
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District of California, including a Miller Act Payment Bond claim for relief, pursuant to 40
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U.S.C. §§ 3131 et seq., relating to monies allegedly owed for work performed at a Veterans
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Administration hospital in Palo Alto;
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WHEREAS, Defendants, Walsh, filed a counter-claim against Conkey on or about
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December 8, 2014 in the Conkey Action, inter alia, for failing to defend and indemnify Walsh
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and its Sureties against the Fought Action and for breaching the Subcontract Agreement;
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WHEREAS, Defendants, Walsh, filed a cross-claim in the Fought Action against Conkey
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on or about December 9, 2014 asserting the same claims alleged in its counter-claim against
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Conkey in the Conkey Action;
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RELATIONSHIP OF THE ACTIONS
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WHEREAS, Defendant Walsh/DeMaria entered into a contract (the “Prime Contract”)
with the United States of America, Department of Veteran Affairs, for the construction of the VA
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CASE NO. 5:14-cv-03360-PSG
STIPULATION TO RELATE CASES AND
[PROPOSED] ORDER
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Palo Alto Health Care System Capital Asset Improvements, Phase I, Contract No. VA101CFM-
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C-0168 (“the Project”), also known as the VA Hospital, Palo Alto Polytrauma Blind Rehab
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Center, 3801 Miranda Avenue, Palo Alto, CA;
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WHEREAS, on or about October 7, 2011, Walsh/DeMaria entered into and executed a
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Payment Bond with Travelers, Travelers Bond No. 105669430, and its co-surety, Liberty Mutual,
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Liberty Mutual Bond No. 013124426, with Walsh as principal and Travelers and Liberty Mutual
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as Surety;
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WHEREAS, on or about February 3, 2012, Walsh/DeMaria entered into a written
Subcontract Agreement with Conkey, Subcontract Number 212010S01 for certain labor and
materials to be provided by Conkey on the Project;
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WHEREAS, on or about October 17, 2012, Conkey entered into a sub-subcontract with
Fought for certain labor, materials, and equipment on the Project;
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CRITERIA FOR RELATED ACTIONS PER L.R. 3-12(a)
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WHEREAS, Civil Local Rule 3-12 provides that actions are related when:
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(1)
The actions concern substantially the same parties, property, transaction or
event; and
(2)
It appears likely that there will be an unduly burdensome duplication of
labor and expense or conflicting results if the cases are conducted before
different Judges;
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WHEREAS, the actions concern substantially the same parties because Walsh, Travelers,
Liberty Mutual and Conkey are parties to both actions;
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WHEREAS, the actions concern substantially the same transaction or event because the
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lawsuits arise from the same work for building demolition, for the same Project in Palo Alto for
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the VA, concerning the same contracts between Walsh and the VA, Walsh and Conkey, and
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Conkey and Fought, and claims are being made under the same bonds issued by the same
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Sureties. Further, Walsh filed the same claims for relief in its counter-claim and cross-claim
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against Conkey in the Conkey Action and Fought Action;
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WHEREAS, there will be an unduly burdensome duplication of labor and expense and
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conflicting results if the cases are conducted before different judges because Walsh’s counter5010967.1
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CASE NO. 5:14-cv-03360-PSG
STIPULATION TO RELATE CASES AND
[PROPOSED] ORDER
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claim and cross-claim are the same in both cases. Further, the payment issues are substantially
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the same in both cases because they concern substantially the same parties, facts and law, as the
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claims in both actions are pursuant to the Miller Act;
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WHEREAS, all Parties in the Conkey Action and Fought Action agree that these actions
should be related; and
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WHEREAS, the Conkey Action is the lowest numbered case, such that if the cases are
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related the Fought Action should be reassigned to Magistrate Judge Paul S. Grewal, who is
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assigned to the Conkey Action, pursuant to L.R. 3-12 (f)(3).
THEREFORE, IT IS HEREBY STIPULATED AND AGREED BY THE
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COUNSEL SIGNATORIES BELOW, ON BEHALF OF THEIR RESPECTIVE
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N EWMEYER & D ILLION LLP
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CLIENTS, AND THE PARTIES RESPECTFULLY REQUEST THAT THE
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COURT ORDER THE FOLLOWING:
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(1)
That the Conkey Action and Fought Action, including related counter-claims and
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cross-claims, should be related pursuant to L.R. 3-12 because the actions concern substantially
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the same parties, property, transaction or event and it appears likely that there will be an unduly
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burdensome duplication of labor and expense or conflicting results if the cases are conducted
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before different Judges; and
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(2)
That the Clerk reassign the Fought Action to Magistrate Judge Paul S. Grewal
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pursuant to L.R. 3-12 (f)(3).
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IT IS SO STIPULATED.
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Dated: December ____, 2014
MARKS, FINCH, THORNTON &
BAIRD, LLP
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_____________________________
David S. Demian
Jeffrey B. Baird
Christopher R. Sillari
Attorneys for Plaintiffs
THE UNITED STATES OF AMERICA, for
the Use and Benefit of J.R. CONKEY &
ASSOCIATES, INC., a California
corporation; and J.R. CONKEY &
ASSOCIATES, INC., a California
corporation,
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[PROPOSED] ORDER
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Dated: December ____, 2014
HANSON BRIDGETT LLP
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_____________________________
Robert W. O'Connor
John W. Klotsche
Attorneys for Plaintiffs
THE UNITED STATES OF AMERICA, for
the Use and Benefit of FOUGHT &
COMPANY, INC., an Oregon corporation;
and FOUGHT & COMPANY, INC., an
Oregon corporation,
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Dated: December____, 2014
NEWMEYER & DILLION, LLP
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_____________________________
J. Brian Morrow
Attorneys for Defendants
WALSH/DEMARIA JOINT VENTURE V,
WALSH CONSTRUCTION COMPANY,
THE WALSH GROUP LTD., and
DEMARIA BUILDING COMPANY, INC.
N EWMEYER & D ILLION LLP
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Dated: December ____, 2014
CORFIELD FELD LLP
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_____________________________
Michael A. Corfield
Natalie M. Kellogg
Attorneys for Travelers Casualty and Surety
Company of America and Liberty Mutual
Insurance Company
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