MEG INTERNATIONAL INC v. BRASFIELD AND GORRIE et al

Filing 43

ORDER denying 16 Motion for Summary Judgment; finding as moot 26 Motion to Strike; lifting stay entered on January 18, 2012 and setting deadline for response to Motion to Stay Pending Arbitration. Ordered by Judge Clay D. Land on 04/30/2012. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
UNITED STATES for the use and
benefit of M.E.G.
INTERNATIONAL, INC.,

*
*

Plaintiff,

*
CASE NO. 4:11-CV-139 (CDL)

vs.

*

BRASFIELD & GORRIE, LLC,
et al.,

*
*

Defendants.
*
O R D E R
This

action

involves

disputes

project at Fort Benning, Georgia.
LLC

(“Brasfield”)

was

the

prime

regarding

a

construction

Defendant Brasfield & Gorrie,
contractor

on

the

project.

Brasfield obtained a Miller Act payment bond from Defendants
Federal Insurance Company (“Federal”) and Travelers Casualty and
Surety

Company

of

America

(“Travelers”).

Brasfield

subcontracted certain portions of the work to Defendant John W.
Parrish

Structural

Detailer

Company,

Inc.

(“Parrish”),

and

Parrish subcontracted certain portions of the work to Defendant
North Alabama Fabricating Company (“NAFCO”).
International,

Inc.

(“MEG”)

alleges

that

Plaintiff M.E.G.
Parrish

and

NAFCO

subcontracted work to MEG and that Parrish and NAFCO breached
their

agreement

with

MEG

by

terminating

refusing to pay MEG for its services.

the

subcontract

and

MEG also asserts a claim

against Brasfield, Federal and Travelers for recovery under the
Miller Act payment bond.
Presently pending before the Court is Brasfield’s Motion
for Summary Judgment (ECF No. 16) and Brasfield’s Motion to
Strike

(ECF

No.

26).

For

the

reasons

set

forth

below

the

summary judgment motion is denied, and the motion to strike is
moot.

Also

pending

is

NAFCO’s

Motion

to

Stay

Arbitration (ECF No. 37), which is not yet ripe.

Pending

The Court

previously issued a stay of the briefing on that motion.

That

stay is hereby lifted.
DISCUSSION
I.

Brasfield’s Summary Judgment Motion
Brasfield seeks summary judgment as to MEG’s Miller Act

claims
solely

against
with

it.
NAFCO

Brasfield
and

that

contends
MEG

is

that
thus

MEG

contracted

a

third-tier

subcontractor that is not entitled to relief under the Miller
Act.

MEG asserts that it contracted with both Parrish and NAFCO

and was therefore a second-tier subcontractor that can obtain
relief

under

the

Miller

Act.1

Brasfield’s

1

motion

is

denied

MEG does not dispute that the Miller Act does not protect third-tier
subcontractors.
See 40 U.S.C. § 3133(b)(2) (providing that a person
with “a direct contractual relationship with a subcontractor” may make
a Miller Act claim); see also J.W. Bateson Co. v. U.S. ex rel. Bd. of
Trustees of Nat’l Automatic Sprinkler Indus. Pension Fund, 434 U.S.
586, 591-93 (1978) (noting that Miller Act protection extends only to
subcontractors and sub-subcontractors).

2

because

there

is

a

genuine

fact

dispute

as

to

whether

MEG

contracted directly with Parrish.
It is undisputed that Brasfield had a contract with the
U.S.

Army

Corps

of

Engineers

to

complete

a

project

at

Fort

Benning and that Brasfield subcontracted certain portions of the
work

to

Parrish.

It

is

also

undisputed

that

subcontracted certain portions of the work to NAFCO.

Parrish
Finally,

it is undisputed that MEG entered a subcontract agreement (“MEG
Agreement”)
Structural
Company,

entitled
Detailer

“Subcontract
Company,

Inc.—M.E.G.

Agreement

Inc./North

International,

John

Alabama

Inc.”

MEG

agreed

to

perform

Benning construction project.
MEG

Agreement

Structural

Detailer

Company, Inc.”
Parrish,

defines

the

certain

behalf of Parrish.

C,

on

the

Fort

Id. at 2, ECF No. 1-2 at 14.
“Contractor”

Company,

of

Ex.

Under the MEG

work

as

Inc./North

“John

Parrish,

signed

W.

Alabama

Id. at 1, ECF No. 1-2 at 13.

president

Parrish

Fabricating

Compl.

Subcontract Agreement 1, ECF No. 1-2 at 13.
Agreement,

W.

the

MEG

Parrish

Fabricating
Margaret K.
Agreement

Id. at 4, ECF No. 1-2 at 16.

initialed each page as “Contractor.”

The

on

She also

Id. at 1-4, ECF No. 1-2 at

13-16.
Brasfield nonetheless contends that Parrish was not a party
to the MEG Agreement and that the Court should so find as a
matter of law.

In support of its argument, Brasfield points the

3

Court

to

evidence

of

the

parties’

course

of

dealing

and

to

evidence that Parrish and NAFCO are separate (though related)
entities that perform separate functions.

The undisputed fact

remains, however, that Parrish is listed as the “Contractor” in
the

MEG

Agreement,

and

Parrish’s

Agreement on behalf of Parrish.

president

signed

the

MEG

Based on the face of the MEG

Agreement, it is reasonable to infer that Parrish was a party to
the MEG Agreement.
sufficient

to

The Court is satisfied that this evidence is

create

a

genuine

fact

dispute

Parrish was a party to the MEG Agreement.

as

to

whether

See Fed. R. Civ. P.

56(a) (stating that summary judgment may be granted only “if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law”); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)

(stating

that

in

determining

whether

a

genuine

fact

dispute exists, the court must view the evidence in the light
most favorable to the non-moving party and draw all justifiable
inferences

in

his

favor).

Accordingly,

Brasfield’s

summary

judgment motion is denied.
II.

Brasfield’s Motion to Strike
Brasfield

also

seeks

to

have

the

Court

strike

certain

portions of the affidavit of Jeffrey H. Meyer, which MEG filed
in opposition to Brasfield’s summary judgment motion.

Since the

Court did not rely on any portion of the Meyer affidavit in its

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consideration of the summary judgment motion, the Court finds
the motion to strike moot.
III. NAFCO’s Motion to Stay Pending Arbitration
Also pending is NAFCO’s Motion to Stay Pending Arbitration.
The motion is not yet ripe because the parties asked the Court
to issue a stay of the briefing pending the Court’s ruling on
Brasfield’s
lifted.

summary

Within

judgment

fourteen

motion.

days

of

That

today’s

stay
Order,

is
MEG

hereby
shall

respond to the Motion to Stay Pending Arbitration.
CONCLUSION
As discussed above, the Court finds that Brasfield’s Motion
to Strike (ECF No. 26) is moot, and the Court denies Brasfield’s
Motion for Summary Judgment (ECF No. 16).

The stay previously

issued by the Court is hereby lifted, and MEG shall respond to
NAFCO’s Motion to Stay Pending Arbitration within fourteen days
of today’s Order.

Any reply brief shall be filed within seven

days of the filing of the response.

IT IS SO ORDERED, this 30th day of April, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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