Modern Builders Contractors, Inc. et al v. Griggs, Mitchell, & Alma of IL, LLC et al

Filing 84

MOTION by Plaintiff United States of America and/or United States Department of the Interior - National Park Services for the use and benefit of Modern Builders Contractors, Inc. for judgment Petition To Confirm Arbitration Award and Enter Judgment Presented before District Judge (Berglund, Joseph)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MODERN BUILDERS CONTRACTORS, INC. ) and DEL DEVELOPMENT, LTD. ) ) Plaintiffs, ) ) v. ) ) GRIGGS, MITCHELL, & ALMA OF IL, LLC. ) D/B/A GMA CONSTRUCTION GROUP, ) ) Defendant. ) _________________________________ ) The UNITED STATES OF AMERICA ) and/or UNITED STATES DEPARTMENT OF ) THE INTERIOR – NATIONAL PARK ) SERVICES for the use and benefit of ) MODERN BUILDERS CONTRACTORS, INC., ) and the UNITED STATES OF AMERICA ) and/or UNITED STATES DEPARTMENT OF ) THE INTERIOR – NATIONAL PARK ) SERVICES for the use and benefit of DEL ) DEVELOPMENT, LTD. ) ) Plaintiffs, ) v. ) ) GMA CONSTRUCTION GROUP ) and ARGONAUT INSURANCE COMPANY, ) ) Defendants. ) Case No. 21 CV 5991 Hon. Lindsay C. Jenkins Magistrate Judge Maria Valdez OPPOSED PETITION OF THE UNITED STATES OF AMERICA AND/OR UNITED STATES DEPARTMENT OF THE INTERIOR – NATIONAL PARK SERVICES, FOR THE USE AND BENEFIT OF MODERN BUILDERS CONTRACTORS, INC., TO CONFIRM ARBITRATION AWARD AGAINST GMA CONSTRUCTION GROUP AND ARGONAUT INSURANCE COMPANY ON COUNT II OF COMPLAINT NOW COMES the Plaintiff, The UNITED STATES OF AMERICA and/or UNITED STATES DEPARTMENT OF THE INTERIOR – NATIONAL PARK SERVICES (“United States”) for the use and benefit of MODERN BUILDERS CONTRACTORS, INC., and for 1 its Petition To Confirm The Arbitration Award and Enter Judgment against Defendants, Argonaut Insurance Company (“Argonaut”) and GMA Construction Group (“GMA”), on Count II of the Complaint, which is opposed by Defendants, states as follows: In accordance with this Court’s Standing Order, the parties have conferred and agreed to a briefing schedule regarding this Petition whereby Defendants’ Response will be filed by August 5, 2024 and the Reply will be filed by August 26, 2024. Movant seeks to confirm an Arbitration Award, that was issued on February 26, 2024 and delivered to the parties on March 1, 2024. Defendants have not served a notice of motion to vacate, modify or correct the Arbitration Award within the 3-month deadline, as required under 9 U.S.C. §12, after the Award was delivered on March 1, 2024. As set forth below in in Movant’s supporting Memorandum, the only task remaining for this court to perform is to confirm the Arbitration Award in the amount of $52,746.57, enter judgment against Argonaut Insurance Company and GMA Construction Group in the amount of $52,746.57, and award post-Award interest beginning on February 27, 2024, which is the day after the Award was entered, in the amount of 9% per annum until the Award is paid in full. The only Count of the underlying Complaint that remains pending before this Honorable Court is Count II. The UNITED STATES OF AMERICA and/or UNITED STATES DEPARTMENT OF THE INTERIOR – NATIONAL PARK SERVICES for the use and benefit of MODERN BUILDERS CONTRACTORS, INC.(“Modern”) asserted its claim in Count II against Argonaut and GMA for judgment under a Payment Bond (the “Bond”), Bond No. 2 SUR0058230, that was issued by Argonaut, as surety, and GMA as the Principal on the Bond. The Bond was furnished for the payment of subcontractors, including but not limited to Modern Builders, under the Miller Act, 40 U.S.C. § 3131 et seq, in relation to the construction improvement project known as the Pullman National Monument – Admin Building – Visitor Center (“Project”). Complaint, Count II, ¶¶26-27. On January 20, 2022, GMA and Argonaut filed a Motion To Stay Pending Arbitration, And, In Ther Alternative, To Dismiss Pursuant To FRCP 12(b)(6). [Doc. 18] GMA and Argonaut moved on pages 12-13 of their Motion for “an Order compelling the parties to arbitrate their dispute and to retain jurisdiction to confirm an arbitration award and any judgment, or in the alternative granting its Motion To Dismiss Pursuant to Fed.R.Civ.P 12(b)(6), dismissing [in pertinent part] Counts I, II, and III against GMA Construction Group and Argonaut Insurance Company of Plaintiffs’ Complaint ….” Judge Franklin U. Valderrama issued his Order on 12/19/22 [ECF 66] and stayed the United States’ claim “under Count II pending the outcome of the arbitration. Order dated 12/19/22, p. 18. Judge Valderrama dismissed Counts I and III “because the parties are subject to arbitration.” Modern Builders’ asserted its claim for breach of contract against GMA in Count I. Modern Builders asserted Count III, in the alternative to Count I, its claim for Quantum Meruit against GMA. The parties agreed to designate the Honorable Lisa R. Curcio (Ret.) of ADR Systems of America, LLC (“ADR”) to arbitrate the dispute. An arbitration hearing was held before the Honorable Lisa R. Curcio on October 4-5, 2023 at ADR in Chicago, Illinois. 3 On February 26, 2024, Hon. Lisa R. Curcio (Ret.) issued an Arbitration Award that was emailed to the parties’ counsel on March 1, 2024. Judge Curcio (Ret.) awarded Modern Builders the total amount of $52,746.57, which includes the principal sum of $49,221.37 plus interest to the date of the Award in the amount of $4,798.73 less $1,273.53. On May 13, 2024 Judge Curcio entered an Order by email to amend the Arbitration Award nunc pro tunc to state, in pertinent part as follows: The award in favor of Modern Builders on its claims on the Pullman project against Griggs, Mitchell, & Alma of IL, LLC in the amount $49,221.37 plus interest in the amount of $4,798.73 less $1,273.55 for a total award of $52,746.57 is the final arbitration award. No further issues are pending before the arbitrator with regard to this claim. Defendants have failed and refused to pay the Award and have not responded to the undersigned’s demand for payment. This Court retained jurisdiction to confirm the Arbitration Award and enter judgment. The Award is a Final Award. The Arbitration Award should be confirmed and Judgement should enter against Argonaut and GMA for the total amount of the Arbitration Award of $52,746.57 plus post-Award interest beginning on February 27, 2024, which is the day after the Award was entered, in the amount of 9% per annum until the Award is paid in full. Confirmation of arbitration awards is "usually routine or summary." Hasbro, Inc. v. Catalyst USA, Inc., 367 F.3d 689, 691-92 (7th Cir. 2004); see also D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006) ("Normally, confirmation of an arbitration award is a summary proceeding that merely makes what is already a final arbitration award a judgment of the court, and the court 'must grant' the award 'unless the award is 4 vacated, modified, or corrected.'") (quoting 9 U.S.C. § 9) (internal citation and some quotation marks omitted). "Judicial review of arbitration awards is tightly limited; perhaps it ought not be called 'review' at all." Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704, 706 (7th Cir. 1994); see also Wise v. Wachovia Sec., LLC, 450 F.3d 265, 269 (7th Cir. 2006) ("It is tempting to think that courts are engaged in judicial review of arbitration awards under the Federal Arbitration Act, but they are not.") Section 12 of the FAA, 9 U.S.C. §12, requires that "[n]otice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered." The Seventh Circuit strictly enforces this statute of limitations. See Webster v. A. T. Kearney, Inc., 507 F.3d 568, 574-75 (7th Cir. 2007) (dismissing as untimely a motion to vacate an arbitration award filed one day beyond Section 12's three-month window) Defendants have not given notice of or filed a motion to vacate, modify, or correct the Award as mandated by the FAA. As a result, there is nothing for this Court to do other than confirm the Award in the total amount of $52,746.57. In addition, Post-Award interest is due in the amount of 9% per annum from February 27, 2024 until the Award is paid in full. Movants are completing its supporting Memorandum to file today in support of this Petition. WHEREFORE, Plaintiff, the United States of America and United States Department of the Interior – National Park Services, for the use and benefit of Plaintiff Modern Builders Contractors, Inc., respectfully requests that this Honorable Court: 5 A. Confirm the Arbitration Award rendered by the Honorable Lisa R. Curcio and enter judgment against GMA and Argonaut Insurance Company, jointly and severally, in the amount of $52,746.57; B. Enter Judgment for post-judgment interest accruing on the principle amount of $52,746.57 due on the Arbitration Award at the Illinois statutory rate of nine percent (9%) per annum for each day after the date of the Arbitration Award, February 27, 2024, ($13.00 per day) until the Judgment is satisfied in full per 735 ILCS 5/2-1303; and C. For such other relief the Court deems just and equitable. RESPECTFULLY SUBMITTED, THE UNITED STATES OF AMERICA AND UNITED STATES DEPARTMENT OF THE INTERIOR – NATIONAL PARK SERVICES, FOR THE USE AND BENEFIT OF PLAINTIFF MODERN BUILDERS CONTRACTORS, INC. By:/s/ Joseph P. Berglund Its Attorney Attorney for Plaintiffs Joseph P. Berglund Law Offices of Joseph P. Berglund P.C. 1010 Jorie Blvd, Suite 370 Oak Brook, Illinois 60523 berglundmastny@aol.com (630)990-0234 CERTIFICATE OF SERVICE I declare under penalty of perjury under the laws of the United states of America that I served a copy of this Petition upon Mr. Matthew W. Horn, Ms. Kimberly Herring and Maxwell Kaevey via this Court’s ECF System on this 8th day of July 2024. By: /s/ Joseph P. Berglund 6

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