MEG INTERNATIONAL INC v. BRASFIELD AND GORRIE et al
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
UNITED STATES for the use and
benefit of M.E.G.
CASE NO. 4:11-CV-139 (CDL)
BRASFIELD & GORRIE, LLC,
O R D E R
project at Fort Benning, Georgia.
Defendant Brasfield & Gorrie,
Brasfield obtained a Miller Act payment bond from Defendants
Federal Insurance Company (“Federal”) and Travelers Casualty and
subcontracted certain portions of the work to Defendant John W.
Parrish subcontracted certain portions of the work to Defendant
North Alabama Fabricating Company (“NAFCO”).
subcontracted work to MEG and that Parrish and NAFCO breached
refusing to pay MEG for its services.
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
summary judgment motion is denied, and the motion to strike is
Arbitration (ECF No. 37), which is not yet ripe.
previously issued a stay of the briefing on that motion.
stay is hereby lifted.
Brasfield’s Summary Judgment Motion
Brasfield seeks summary judgment as to MEG’s Miller Act
subcontractor that is not entitled to relief under the Miller
MEG asserts that it contracted with both Parrish and NAFCO
and was therefore a second-tier subcontractor that can obtain
MEG does not dispute that the Miller Act does not protect third-tier
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).
contracted directly with Parrish.
It is undisputed that Brasfield had a contract with the
Benning and that Brasfield subcontracted certain portions of the
subcontracted certain portions of the work to NAFCO.
it is undisputed that MEG entered a subcontract agreement (“MEG
Benning construction project.
behalf of Parrish.
Id. at 2, ECF No. 1-2 at 14.
Under the MEG
Id. at 1, ECF No. 1-2 at 13.
Subcontract Agreement 1, ECF No. 1-2 at 13.
Id. at 4, ECF No. 1-2 at 16.
initialed each page as “Contractor.”
Id. at 1-4, ECF No. 1-2 at
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
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
Agreement on behalf of Parrish.
Based on the face of the MEG
Agreement, it is reasonable to infer that Parrish was a party to
the MEG Agreement.
The Court is satisfied that this evidence is
Parrish was a party to the MEG Agreement.
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
dispute exists, the court must view the evidence in the light
most favorable to the non-moving party and draw all justifiable
judgment motion is denied.
Brasfield’s Motion to Strike
portions of the affidavit of Jeffrey H. Meyer, which MEG filed
in opposition to Brasfield’s summary judgment motion.
Court did not rely on any portion of the Meyer affidavit in its
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
respond to the Motion to Stay Pending Arbitration.
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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