Stuart C. Irby Company v. Western Surety Company et al

Filing 61

OPINION AND ORDER denying 51 Motion to set aside assignment. Signed by Judge John E. Steele on 1/9/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STUART C. IRBY COMPANY,
Plaintiff,
v.

Case No: 2:16-cv-211-FtM-99CM

WESTERN
SURETY
COMPANY,
BROOKS & FREUND, L.L.C., and
BC POWER, INC.,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendant BC Power,
Inc.’s Emergency 1 Motion to Set Aside Assignment (Doc. #51) filed
on November 29, 2016.

Plaintiff Stuart C. Irby Company and

defendant Western Surety Company filed responses in opposition
(Docs. ##52, 53).

For the reasons set forth below, the motion is

denied.
I.
The Second Amended Complaint (Doc. #17) filed by Stuart C.
Irby, Company (Irby or plaintiff) on July 8, 2016, alleges that it
furnished electrical materials to defendant BC Power, Inc. (BC
Power) as the electrical subcontractor under a Credit Agreement.
BC Power was not fully paid by defendant Brooks & Freund, LLC

1

The Court previously took the motion under advisement,
finding no emergency. (Doc. #52.)

(Brooks), the general contractor on the construction project, and
BC Power is owed a principal amount of $685,967.42.

BC Power in

turn did not fully pay Irby the unpaid principal amount for
materials in the amount of $46,145.05.

BC Power assigned to Irby

its accounts receivables for the principal amount of $685,967.42
through an Assignment of Accounts Receivable.
11-14, 19-22, 26.)

(Doc. #17, ¶¶ 2,

Although referenced and attached to the Second

Amended Complaint, Doc. #17-6, Exh. 6, plaintiff’s claims against
BC Power are not based on a breach of the Assignment.

Plaintiff’s

first and third claims are against Brooks only, and the second
claim is against Western Surety Company (Western) and Brooks only.
Under the second and third claims, plaintiff alleges that it was
assigned BC Power’s accounts receivables representing the BC Power
principal amount owed by Brooks to BC Power; plaintiff is therefore
asserting claims two and three against Western and Brooks on behalf
of BC Power as assignee to recover all amounts owed to BC Power
under the subcontract.

(Doc. #17, ¶¶ 39-40, 46-47.)

The fourth

claim asserts a breach of the Credit Agreement by BC Power for
failing to fully pay for the materials received.

Brooks has also

filed a Crossclaim against BC Power for breach of a subcontract
agreement.

(Doc. #25) 2.

BC Power failed to answer the allegations

2

Plaintiff is not named as the
accounts receivable in the Crossclaim.

- 2 -

assignee

of

BC

Power’s

in claims one through three as it is “not a named party,” and none
of the affirmative defenses address the Assignment.

(Doc. #39.)

II.
BC Power seeks to set aside as void or voidable the Assignment
of

Accounts

Receivable

based

upon

lack

of

consideration,

unconscionability, fraud in the inducement, and mistake.

Irby and

Western respond that BC Power’s motion is an improperly supported
quasi-motion for summary judgment and that BC Power has waived
these arguments by failing to assert them as affirmative defenses
in its Answer and has not otherwise raised them as claims against
Irby in this case.

The Assignment of Accounts Receivable (Doc.

#17-6) is governed and construed under Mississippi law according
to its terms.
The Court agrees that procedurally BC Power’s arguments are
improperly raised and out of time.

Rather than file a counterclaim

against Irby or state its defenses as affirmative defenses in its
Answer, BC Power filed a motion to rescind the Assignment and set
it aside.

By failing to assert their defenses to Irby’s claim

for relief in their Answer, BC Power waived these affirmative
defenses and the time to amend pleadings has long since passed.
See Fed. R. Civ. P. 8(c), 12(b).

The Court declines to construe

the filing as a motion to dismiss as BC Power submits matters
outside the pleadings for the Court’s consideration and otherwise

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the motion was not made before BC Power filed its Answer.

See

Fed. R. Civ. P. 12(b).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant BC Power, Inc.’s Emergency Motion to Set Aside
Assignment (Doc. #51) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
January, 2017.

Copies:
Counsel of Record

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9th

day of