DEBOURGH MANUFACTURING COMPANY v. GSC CONSTRUCTION INC, et al.
ORDER granting in part and denying in part 17 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D. LAND on 11/16/2017 (tlf).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
UNITED STATES OF AMERICA,
for the use and benefit of
DEBOURGH MANUFACTURING COMPANY, *
CASE NO. 4:16-CV-370(CDL)
GSC CONSTRUCTION, INC., and
ALLIED WORLD SPECIALTY
INSURANCE COMPANY, f/k/a Darwin *
National Assurance Company,
O R D E R
In November 2014, the United States Army Corps of Engineers
(“Army”) awarded a contract for a renovation project on Fort
Benning to Defendant GSC Construction (“GSC”).
Miller Act, 40 U.S.C. § 3131-34,
Pursuant to the
GSC posted performance and
payment bonds, with Defendant Allied World Specialty Insurance
Company (“Allied”) as surety.
As part of the renovation, the
Army required GSC to install storage lockers in the buildings.
manufacture and installation of lockers that complied with the
GSC submitted various locker options
to the Army that GSC believed complied with the specifications.
option, a storage locker with woven wire mesh manufactured by
woven wire lockers cost $321,943.52.
After completion of the
subsequently brought this action and alleged claims of breach of
contract and quantum meruit.
Debourgh also brought a claim on
the Miller Act payment bond.
Debourgh also sued for unexpected
costs it allegedly incurred during installation and for an award
of attorney’s fees.
Defendants contend that Debourgh improperly
caused the Army to reject the lower-cost proposals and to insist
on Debourgh’s more expensive product.
GSC therefore argues that
Debourgh should be equitably estopped from recovery.
interference with its contract with the Army.
Debourgh filed a
Motion for Partial Summary Judgment on its Miller Act claim,
against GSC’s counterclaim, and for the costs of the action (ECF
Because Defendants cannot establish that Debourgh’s
communications with the Army influenced the Army’s requirement
for woven wire mesh lockers, the Court grants Debourgh’s motion
with respect to its Miller Act claim and GSC’s counterclaim.
Further, because Defendants pointed to no evidence or law to the
accrued finance charges on GSC’s unpaid balance.
Court denies Debourgh’s motion for costs pending the outcome of
Debourgh’s remaining claims.
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.”
Civ. P. 56(a).
In determining whether a
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Viewed in the light most favorable to the non-movants, the
record reveals the following:
Debourgh’s 2013 Project
Sometime in 2013, Debourgh manufactured and installed woven
project on Fort Benning.
Salo Dep. 37:13-17, ECF No. 25-2.
Debourgh’s point of contact with the Army for that project was
First Lieutenant Aaron Boyer.
GSC was not involved in the 2013
Buildings 2944-2945 Project
In November 2014, the Army awarded GSC a contract for the
renovation of Buildings 2944 and 2945 on Fort Benning.
lockers in the renovated buildings.
The contract set forth some
specifications for the lockers, but it did not require the use
of woven wire mesh.
In January 2015, GSC vice president John
lockers that complied with the specifications in the contract.
Phillips attached pictures of the Debourgh lockers from the 2013
project to his email.
Phillips explained that the lockers in
the attached pictures were the ones that GSC needed for the
Berg Decl. Ex. A, Email from Phillips to
response, Debourgh sales representative Patrick Berg sent GSC a
matched the lockers in the picture.
Berg Decl. Ex. B, Woven
Wire Mesh Quote (Feb. 16, 2015), ECF No. 17-2 at 21.
sent GSC a quote of $265,124.38 for expanded metal mesh lockers.
Berg Decl. Ex. C, Expanded Metal Mesh Quote (Feb. 16, 2015), ECF
No. 17-2 at 24.
GSC also solicited quotes from Lyon Workspaces, a competing
In June 2015, GSC submitted Lyon lockers
to the Army at a cost of $170,065.00.
Def. Allied’s Resp. Ex.
D, Letter from GSC to Army, ECF No. 24-4 at 13-17.
2015, the Army rejected this submittal.
In its rejection, the
Army explained to GSC that the lockers used in the 2944-2945
project “[m]ust replicate existing 3/75 Quad COF TA50 lockers
exactly . . . .”
Def. Allied’s Resp. Ex. F,
Remarks (July 30, 2015), ECF No. 24-6 at 1.
another Lyon product in August 2015, which was also rejected by
the Army because it “[did] not meet the owner requirements.”1
Def. Allied’s Resp. Ex. F, Gov’t Review Remarks (Sept. 2, 2015),
ECF No. 24-6 at 2.
lockers, GSC submitted the Debourgh woven wire mesh lockers to
Berg Supplemental Decl. Ex. B, Army Approval for Woven
After the Army rejected both of GSC’s Lyon submittals, GSC wrote to
the Army and protested that it was being forced to buy lockers from a
single source. In response, the Army explained that the Lyon products
were rejected because they were “not galvanized and [did] not have
individual five knuckle hinges” as required by the Request for
Proposals (“RFP”). Def. Allied’s Resp. Ex. G, Letter from Army to GSC
(Oct. 7, 2015), ECF No. 24-7. The Army further noted that “[a] quick
review from our office indicates Wire Crafters, Jesco, and Standard
Wire Steel, all manufacture TA-50 lockers that meet the RFP
In June 2016, GSC renewed its dispute with the
Def. Allied’s Resp. Ex. D, Letter from GSC to Army (June 28,
2016), ECF No. 24-4.
In its June 2016 letter, GSC argued that the
Lyon lockers actually met the requirements of the RFP because the
lockers had “continuous hinges, allowing them to be stronger[,]” and
because “[e]lectro-galvanizing and galvanneal are really the same
process which provides better paint adhesion and interaction with
potential weather elements.”
Id. at 1.
Neither party offered any
evidence about the outcome of this grievance.
Wire Mesh Lockers, ECF No. 27-1 at 23-26.
On November 6, 2015,
GSC emailed Berg and placed an order for the expanded metal mesh
lockers, not the woven wire mesh lockers that had been submitted
to and approved by the Army.
Berg Decl. Ex. E, Email from GSC
to Berg (Nov. 6, 2015), ECF No. 17-2 at 29-31.
To meet the
deadline for the project, Debourgh began processing the order
Berg Supplemental Decl. Ex. A, Email from Berg to
GSC (Nov. 9, 2015), ECF No. 27-1 at 16-17.
Replacement Locker for the 2013 Project
discussing a replacement locker for the 2013 project.
before August 2015, someone vandalized a locker from the 2013
Salo Dep. 40:10-21.
On August 24, 2015, Lieutenant
Boyer sent an email to Debourgh about repairing or replacing the
Debourgh whether it had “been able to identify a model number or
a price of the wall lockers in the photos [Boyer] sent last
Def. Allied’s Resp. Ex. B, Email from Boyer to Debourgh
(Aug. 24, 2015), ECF No. 24-2 at 19.
Berg replied to Boyer and
said he was “working out how to get you a replacement locker . .
Id., Email from Berg to Boyer (Aug. 24, 2015), ECF No. 24-
2 at 18.
Berg told Boyer that he was working with GSC on the
Berg explained that he had not yet received
the purchase order for the 2944-2945 project, but that if the
lockers for the purchase order matched the locker that Boyer
sought to replace, Berg “would be willing to just add on an
additional locker” to the 2944-2945 project run to keep the cost
down for Boyer.
Berg then asked if Boyer was familiar with
the 2944-2945 project and whether Boyer knew
who Berg could
concluded by saying “[if] I’m not able to tie these together, I
can get you a separate price ASAP.”
Boyer replied by giving Berg the contact information for
Jennifer Mason, the project engineer for the 2944-2945 project.
Berg replied that he would contact Mason about the 2944-2945
locker completion schedule.
Berg also quoted Boyer prices of
$1,170.65 to replace the single locker as a separate order and
$462.60 to bundle the replacement locker with the prospective
2944-2945 project order.
Id., Email from Berg to Boyer (Aug.
24, 2015), ECF No. 24-2 at 16.
Boyer accepted the $462.60
option, and explained that he was waiting to hear from Mason
about when the order would ship.
Id., Email from Boyer to Berg
(Sept. 1, 2015), ECF No. 24-2 at 15.
order for expanded metal mesh lockers, Berg followed up with
Berg explained that while Debourgh had been granted the
Around the same time, Berg followed up with Phillips about the status
of the project.
Berg also informed Phillips of his correspondence
with Boyer about the replacement locker. See Def. Allied’s Resp. Ex.
B, Email from Berg to Phillips (Aug. 28, 2015), ECF No. 24-2 at 4.
purchase order for the 2944-2945 project, the order had been
called for different lockers than the ones
discount on the replacement locker.
Id., Email from Berg to
Boyer (Nov. 13, 2015), ECF No. 24-2 at 14.
Boyer replied that
he had spoken with Mason and that she was not aware of any
“change” in the locker order.
Instead, Boyer indicated that
“[w]e would like to keep the original lockers, if possible.”
Id., Email from Boyer to Berg (Nov. 16, 2015), ECF No. 24-2 at
facility] chose a locker that does not match the unite you’re
needing to be replaced.”
Id., Email from Berg to Boyer (Nov.
16, 2015), ECF No. 24-2 at 13.
Change of GSC’s Locker Order
called Berg and indicated that they might need to change their
order for the 2944-2945 project.
Berg Decl. ¶ 8, ECF No. 17-2.
Phillips emailed Berg and explained that the Army “is expecting
the woven wire lockers because those [are the lockers] we indeed
actually submitted for approval some time ago . . . .”
Decl. Ex. H., Email from Phillips to Berg (Nov. 19, 2015), ECF
No. 17-2 at 48-49.
Berg advised Phillips that switching to
woven wire mesh at that point would increase cost and delay
Phillips then stated that if Berg could “talk to the
Id., Email from Phillips to Berg (Nov. 19, 2015), ECF
NO. 17-2 at 46.
Phillips noted that Debourgh’s “[expanded] wire
mesh lockers that we sent the [purchase order] for meet the spec
we were given, as we showed you.
Let me know if you can help us
Berg agreed that the expanded metal mesh met the
Army’s specifications and asked for the contact information of
Phillips’s “end user” with the Army.
Phillips replied that the
end user was “the soldier that you have talked to in the past
for the Rangers.
Boyer . . . .”
A Captain, I believe.
Id., Email from Phillips to Berg (Nov. 19,
2015), ECF No. 17-2
Or maybe Lieutenant
The next day, Berg replied to
Berg stated that he had talked to Boyer and that
Boyer had indicated that the Army would only accept woven wire
mesh lockers in the 2944-2945 project.
To ensure that Debourgh
material needed for the woven wire mesh lockers.
from Berg to Phillips (Nov. 20, 2015), ECF No. 17-2 at 42-43.
Phillips later replied that “[i]f the order has been placed for
the wire mesh that the [Army] wants then we are good to go . . .
I will just have to sort out the timing of it, and also the
increased charges for it that I will have to ask the Government
to recoup me for.”
Id., Email from Phillips to Berg (Nov. 20,
2015), ECF No. 17-2 at 40-41.
Debourgh ultimately delivered and installed the woven wire
separate purchase order.
Salo Dep. 37:18-23.
The Army approved
the 2944-2945 project lockers in February 2016.
¶ 7, ECF No. 25-6.
The parties agree that the lockers cost
Berg Decl. Ex. M, Debourgh Invoice to GSC, ECF No.
17-2 at 71; see also Def. GSC’s Answer & Countercl. 6, ECF No. 8
(“The Debourgh product demanded by the Army cost $321,943.52.”).
GSC paid Debourgh $172,494.07, or the amount that GSC would have
paid Lyon had the Army accepted GSC’s first submittal.
Decl. ¶ 14.
After awaiting payment for several months, Debourgh
filed this action.
Debourgh’s Statement of Material Facts
Allied urges the Court to strike Debourgh’s Statement of
Local Rule 56 requires summary judgment movants
to file a separate statement of material facts to which the
movant contends there is no genuine dispute to be tried.
Ga. R. 56.
“Éach material fact shall be numbered separately and
shall be supported by specific citation to particular parts of
materials in the record.”
Debourgh’s initial statement of
required Defendants to spend unnecessary time identifying each
fact before replying.
“[E]ven though local rules are valid and
binding on the parties, their enforcement must be temepered with
curiam) (footnote omitted).
Here, though all the parties are
corporations represented by counsel, the Court finds that the
Debourgh rectified its error by submitting a
modified statement that incorporated Defendants’ responses.
Court is satisfied with the briefing and the record that have
Given the circumstances, the Court thinks it
prolong this action, and await a later opportunity to reach the
request to strike is denied.
Debourgh moves for summary judgment on its claim on the
Miller Act payment bond for the 2944-2945 project.
materials were supplied for work in the particular contract at
issue; 2) that the supplier is unpaid; 3) that the supplier had
a good faith belief that the materials were for the specified
work; and 4) that jurisdictional requirements are met.”
rel. Krupp Steel Prods., Inc. v. Aetna Ins. Co., 831 F.2d 978,
980 (11th Cir. 1987).
Defendants do not dispute that Debourgh
Debourgh should be equitably estopped from recovery and that
Debourgh is liable to GSC for tortious interference with its
Debourgh’s motion for summary judgment on its Miller Act bond,
against GSC’s counterclaim, and for the finance charges on GSC’s
The Court denies Debourgh’s motion for costs
pending adjudication of Debourgh’s remaining claims.
Defendants’ Equitable Estoppel Defense
estopped from recovering on its Miller Act claim.
argue that “Plaintiff used it[s] relationship with the Army on
previous projects to get the Army to reject every other locker
presented, besides Plaintiff’s most expensive quote.
Plaintiff’s interference in this project by its communications
knowledge, GSC would have spent only $170,000 on lockers for the
project . . . .”
Def. Allied’s Resp. 13, ECF No. 26; see also
Def. GSC’s Resp. 6-7, ECF No. 25 (making the same argument).
The record evidence, however, does not support this theory.
Army rejected GSC’s first Lyon locker submittal on July 30, 2015
and explained to GSC that the lockers in the 2944-2945 project
“must match existing 3/75 Quad COF TA50 lockers exactly.”
Allied’s Resp. Ex. F, Gov’t Review Remarks (July 30, 2015), ECF
Therefore, the Army expressed its requirement for
woven wire mesh lockers as early as July 30, 2015.3
There is no
evidence, however, that Debourgh had any contact with the Army
until almost a month later on August 24, 2015, when Berg replied
to Boyer’s email.
Therefore, there is no evidence that Debourgh
used its pre-existing relationship with the Army to “get the
Army to reject every other locker presented.”
Def. GSC’s Resp.
Instead, the evidence demonstrates that the Army required
communicated with the Army (and then, it was in response to
Consequently, there is no genuine dispute about whether Debourgh
Debourgh on its Miller Act claim.4
In fact, the requirement for woven wire mesh lockers may have been in
place even earlier. In his initial email to Debourgh in January 2015,
Phillips attached a picture of the Debourgh lockers from the 2013
project and explained that “[t]he attached photos show the locker we
need.” Berg Decl. Ex. A, Email from Phillips to Debourgh Sales (Jan.
30, 2015), ECF No. 17-2 at 10.
Phillips’s email suggests that GSC
knew from the outset that the Army required woven wire mesh lockers,
further undermining Defendants’ assertion that Debourgh “manipulated
the Army to modify the project’s specifications for its benefit.”
Def. GSC’s Resp. 4.
Debourgh also urges the Court to strike portions of Phillips’s
declaration. Pl.’s Reply 6, ECF No. 27. Even if these paragraphs are
Defendants’ Tortious Interference Counterclaim
GSC brought a counterclaim against Debourgh for “tortious
interference with contracts.”
ECF No. 8.
Def. GSC’s Answer & Countercl. 7,
To establish this claim, GSC must show that Debourgh
“(1) acted improperly or wrongfully and without privilege; (2)
acted purposely, with malice, and with the intent to injure; (3)
induced a third party to breach a contract with the plaintiff;
Groupon, Inc., 333 Ga.App. 319, 323, 775 S.E.2d 776, 780 (Ga.
Ct. App. 2015) (quoting Medlin v. Morganstern, 601 S.E.2d 359,
361-62 (Ga. Ct. App. 2004)).
judgment on this claim.
Debourgh also moved for summary
In its response, GSC made no arguments
Because the Army required the use of woven wire mesh lockers
before any contact between the Army and Debourgh, GSC cannot
show that Debourgh induced the Army to breach its contract with
Therefore, the Court grants summary judgment in
favor of Debourgh on GSC’s counterclaim.5
admissible, the Court concludes that they do not create a genuine fact
dispute. Therefore, Debourgh’s motion to strike is denied as moot.
The Court further notes that neither GSC nor Allied made any
arguments in favor of GSC’s counterclaim in their responses.
Defendants did not identify the elements of their counterclaim or
point to any evidence that could support those elements.
the Court deems GSC’s counterclaim abandoned. Resolution Trust Corp.
v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc).
III. Debourgh’s Finance Charges
Debourgh also contends that it should recover the accrued
finance charges on GSC’s unpaid balance.
invoice to GSC clearly stated that “[i]nvoices over 90 days past
due are subject to finance charges of 1-1/2% per month.”
Decl. Ex. M, Invoice from Debourgh to GSC, ECF No. 17-2 at 71.
In its motion, Debourgh clearly sought summary judgment on the
accrued finance charges.
Defendants, however, pointed the Court
to no evidence disputing the accrued finance charges and to no
law suggesting that the finance charges are not recoverable.
Therefore, based on the circumstances and the record of this
case, the Court concludes that the accrued finance charges are
Based on the evidence, the accrued finance charges when the
Complaint was filed totaled $15,066.50.
Berg Decl. Ex. N., GSC
Invoices for Finance Charges, ECF No. 17-2 at 74-79.
when Debourgh filed its Complaint, GSC owed Debourgh $164,511.95
This amount is subject to the 1.5% finance charge
each month from November 2016 to October 2017 (12 compounding
A principal of $164,511.95 compounded monthly at 1.5%
Therefore, Defendants are liable to Debourgh in the amount of
continue to apply until Defendants satisfy the judgment.
Debourgh’s Remaining Claims
costs of this action.”
Pl.’s Mot. for Partial Summ. J. 3.
its Complaint, however, Debourgh also alleged state law claims
of breach of contract and quantum meruit.
1 & 2, ECF No. 1.
Pl.’s Compl., Counts
Debourgh also alleged that GSC is responsible
interference with its work by others.”
Berg Decl. ¶ 15; see
also Berg Decl. Ex. P, Email from Berg to Phillips (Apr. 13,
2016), ECF No. 17-2 at 83-84 (outlining the alleged additional
Compl. ¶¶ 12, 17.
Neither party moved for
summary judgment on any of these remaining claims.
therefore denies Debourgh’s motion for costs pending disposition
of the remaining claims.
For the foregoing reasons, Debourgh’s Motion for Partial
Summary Judgment (ECF No. 17) is granted in part and denied in
The Court enters judgment in favor of Debourgh on its
Miller Act bond claim in the amount of $196,693.48.
liable for this amount.
The monthly finance charge of 1.5%
shall continue to apply.
No other court-ordered post-judgment
interest shall accrue.
IT IS SO ORDERED, this 16th day of November, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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