Contracting King, Inc. v. Creek Services, L.L.C. et al

Filing 69

ORDER & REASONS granting 41 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES FOR THE USE AND BENEFIT OF
CONTRACTING KING, INC.
VERSUS
CREEK SERVICES, L.L.C., ET AL.

*
*
*
*
*
*

CIVIL ACTION

NO. 09-6098
SECTION “B”(2)

ORDER AND REASONS
Before the Court is Defendants’ Motion for Summary Judgment
(Rec. Doc. No. 41); Plaintiff has filed an opposition thereto at
Rec. Doc. No. 42, the reply to which is found at Rec. Doc. No. 54.
For the reasons articulated below,
IT IS ORDERED that Defendants’ Motion for Summary Judgment
(Rec. Doc. No. 41) be and is hereby GRANTED.

The Court retains

discretion pursuant to 28 U.S.C. § 1367(c), to determine whether
Plaintiff’s remaining claims will proceed in federal court or be
dismissed without prejudice to refile in the appropriate state
court.
I. Cause of Action and Facts of Case
This case arises from contracts awarded by the U.S. Army Corps
of Engineers (“USACE”) to Defendant Creek Services on or about
October 12, 2007 for repairs to pumping stations in the New Orleans
area.

(Rec. Doc. Nos. 1 at 1-2; 41-1 at 2).

After executing

surety agreements with Travelers Casualty and Surety Company of
North

America

(“Travelers”),

Creek
1

Services

entered

into

a

subcontract with CWW, Inc. (“CWW”).

(Rec. Doc. No. 1 at 2).

As

required by the Miller Act, Creek posted a performance bond and
payment bond.

(Rec. Doc. No. 41-1 at 5).

It should be noted that

default judgment was entered in favor of Plaintiff and against CWW,
Inc. in the amount of $63,000.00 on August 27, 2010.
No. 22).

(Rec. Doc.

In February, 2008 CWW entered into a subcontract with

Plaintiff in which Plaintiff agreed to “furnish all necessary
supervision, labor, material, services . . . and all other things
necessary to fully finish and perform in a good and workmanlike
manner . . . .”

(Rec. Doc. Nos. 1-1 at 7; 41-2 at 1).

More

specifically, the subcontract between CWW and Plaintiff was for the
performance of “Miscellaneous Repairs to Pump Stations,” as per
plans and specifications; all described in attachment B . . . .”
(Rec. Doc. Nos. 1-1 at 7; 41-2 at 1).

Plaintiff contends it is

owed $63,000.00 for roofing replacement “work at Pump Station 5”
which Creek Services “agreed to guarantee final payment . . . per
its agreement with [CWW] upon receipt of the USACE acceptance of
certified payrolls . . . .”

(Rec. Doc. No. 1 at 3).

Movants contend that Plaintiff’s claim under the Miller Act is
time barred and that as such, dismissal of that claim is mandated.
(Rec. Doc. No. 41-1).

Movants submit that the Miller Act is a

federal statute that “allows persons or entities that supply [sic]
labor or materials to bring a civil action for amounts unpaid
following completion of their contractual obligations.”

2

Id. at 5.

Further, Movants state that “a claimant must commence suit under
the Miller Act ‘no later than one year after the day on which the
last of the labor was performed or material was supplied by the
person bringing the action.” Id. (citing 40 U.S.C. § 3133(b)(4)).
Movants argue that Plaintiff last rendered services on the project
at issue on July 14, 2008 and thus had until July 14, 2009 to file
its claim under the Miller act.

(Rec. Doc. No. 41-1 at 5).

Thus,

as Plaintiff did not commence the instant suit until September 2,
2009, Movants contend Plaintiff’s Miller Act claim is time barred
and must be dismissed.

Id.

Movants also submit that the last day

on which Plaintiff “provided any labor or materials for the Project
was July 11, 2008.”

Id. at 2.

To support these chronological contentions, Movants attach to
the instant motion the payroll sheets submitted by Plaintiff’s
President Carl D. King to the U.S. Department of Labor as a
subcontractor from April 18, 2008 to July 11, 2008 referencing and
describing
Repairs.”

the

project

and

location

(Rec. Doc. No. 41-3 at 1-26).

as

“Misc.

Pump

Station

Movants also attach the

same payroll sheets for Danny East, described on the sheets as
“Owner, Roofer”, Kenneth Clark, described as “Owner, Labor”, Chad
Cotton, described as “Owner, Roofer”, and Peter Martin, described
as “Owner, Labor”.1

For each man, the payroll sheets begin in

1
East’s payroll sheets are found at Rec. Doc. Nos. 41-3 at 27-29; 41-4
at 1-23, Clark’s at Rec. Doc. Nos. 41-4 at 24-46; 41-5 at 1-3; Cotton’s at
Rec. Doc. No. 41-5 at 4-29; and Martin’s at Rec. Doc. No. 41-5 at 30-55.

3

April of 2008 and end the week ending in July 11, 2008.
Nos.

41-3,

41-4,

41-5).

Movants

also

attach

(Rec. Doc.

statements

of

compliance signed by each of the men listed above detailing work
done on “Pump Station 5” commencing April 4, 2008 and ending July
11, 2008; each form describes the work preformed as “replacement of
metal roofing on pump station number 5”.
3, 5, 7, 9).

(Rec. Doc. No. 41-6 at 1,

Movants further attach “sign in sheets from the job

sites for the Project” which appear to reflect the daily times
worked on different pump stations of the project by Plaintiff’s
employees.

(Rec. Doc. No. 41-7).

The last entry, on what appears

to be a sign in sheet for pump station one, is dated July 14,
2008.2

Id.

Movants also submit the affidavit of Creek Services’

CEO Teresa Hightower which states that the last date on which
Plaintiff or any other party “provided any labor, materials or
services” on the Project was July 14, 2008. (Rec. Doc. No. 41-10).
Notably, Movants attach the claim form submitted by Plaintiff
to Travelers on January 5, 2009 singed by Plaintiff’s President
“under penalty of perjury” on December 24, 2008.
41-11 at 1-5).

(Rec. Doc. No.

In the blank following the prompt “[d]ate you last

worked on the project (not including warranty work):”, Mr. King
wrote “09/01/08”.

Id. at 3.

2

Although Movants attach “Contractors Quality Control Report” and
“Timeline CWW and Creek Services Corps Jobs” stating that work was last
performed on July 14, 2008 and that roofing of pump station five was completed
on July 11, 2008 respectively, neither are signed by anyone. (Rec. Doc. Nos.
41-8, 41-9).

4

Finally, Movants contend that, if Plaintiff’s Miller Act claim
is dismissed for untimeliness, all remaining claims will be based
on state law and, Movants allege, “Plaintiff must rely on diversity
jurisdiction in order to continue to prosecute this case in federal
court.”

Id. at 6.

Movants suggest that diversity does not exist

in the present case as both Creek Services and Plaintiff are
Louisiana citizens and thus, Plaintiff’s remaining claims must be
dismissed.

Id.

In their reply to Respondent’s opposition Movants

address the application of 28 U.S.C. § 1367(c) arguing that this
Court should decline to exercise its supplemental jurisdiction over
any claims that would remain were the court to dismiss Plaintiff’s
Miller Act claim.

(Rec. Doc. No. 54 at 14-15).

Respondent first contends that the instant motion should be
dismissed as premature “as plaintiff . . . has not had the
opportunity for adequate discovery.”

(Rec. Doc. No. 42-1 at 7).

Respondent states that it has filed several motions which “will
produce evidence that raises a genuine issue of material fact” and
preclude summary judgment. Id. at 10. Among those motions already
denied or otherwise disposed of are a motion to compel discovery
(Rec. Doc. 40), a Motion for Leave to File a First Supplemental and
Amended Complaint (Rec. Doc. No. 55), and a Motion for Leave to
Propound Additional Interrogatories (Rec. Doc. No. 39).
9.

Id. at 8-

The motion to compel was granted in part and denied in part by

the Magistrate Judge at Rec. Doc. No. 56, the Motion for Leave to
5

File an amended complaint was denied by the Magistrate Judge at
Rec. Doc. No. 63, and the motion for leave to propound additional
interrogatories was denied by the Magistrate Judge at Rec. Doc. No.
57.

Respondent has not, to date, requested leave to file a sur-

reply to Movants’ reply.

Thus, Respondent’s first contention need

not be further addressed.
Respondent next argues that its Miller Act claim is not time
barred as the sign in sheets and statements of compliance submitted
by Movants only show that July 14, 2008 was the last day on which
Respondent provided labor or services to “some of the job sites for
the Project”.

(Rec. Doc. No. 42-1 at 12).

As the Project involved

work sites in addition to those referenced in the documentation
attached to the instant motion, Respondent implies that Movants
have not fully proved that July 14, 2008 was the last day on which
labor or services were supplied to any and all sites of the
Project.

(Rec. Doc. No. 42-1 at 12).

Respondent further contends

that the sign in sheets, statements of compliance, and certified
payroll documents “are unsworn and incomplete documents that are
not properly authenticated and are, therefore, incompetent summary
judgment evidence.”3

Id.

(citing F.R.C.P. 56(e)).

Further

Respondent points to the claim form submitted by Plaintiff’s

3
Movants point out in their reply that with the exception of Ms.
Hightower’s affidavit, all documents which plaintiff calls incompetent summary
judgment evidence, were produced by Plaintiff. (Rec. Doc. No. 54 at 8-9).
Movants cite to a large body of jurisprudence to support the proposition that
documents so provided are both properly authenticated and competent summary
judgment evidence. Id. at 9 n.35.

6

President Carl D. King to Travelers and signed under penalty of
perjury stating that the last date on which work was performed by
Plaintiff was September 1, 2008.

(Rec. Doc. No. 42-1 at 13-14).

Although less specific than the claim form, Respondent also
attaches Mr. King’s affidavit which states that Plaintiff “provided
labor and services on the Project . . . into September of 2008.”
(Rec. Doc. No. 42-6 at 2).

Mr. King’s affidavit also states:

Sometime after mid-July of 2008 and into early September
of 2008, [Plaintiff] was called back to pump stations on
the project . . . on several occasions to address ongoing
roofing problems. [Plaintiff], through inspections and
other
testing
work
on
the
Project,
adequately
demonstrated to [CWW, Creek and/or the USACE] that the
reported roofing problems at the pump stations were not
associated with [Plaintiff’s] work scope on the Project.
(Rec. Doc. No. 42-6 at 2).

Respondent submits that the evidence

before the Court “reveals that [Plaintiff’s] last day of work on
the project remains in dispute” as they argue Movants have “failed
to affirmatively establish” that the September 2, 2009 filing of
the

instant

suit

was

barred

by

the

statute

of

limitations

applicable to Plaintiff’s Miller Act Claim. (Rec. Doc. No. 42-1 at
14-15).

Movants’ reply cites jurisprudence to support their

contention that a return to a worksite to conduct repair or
corrective work does not toll the one year statute of limitations
under the Miller Act.

(Rec. Doc. No. 54 at 10-11).

Respondent’s then argue that Movants are equitably “estopped

7

from asserting the one year period of limitations as a defense to
[Respondent’s] Miller Act claim.”

(Rec. Doc. No. 42-1 at 15).

Respondent maintains that Movants conduct “reasonably mislead
[Plaintiff] to its prejudice to accept the notion that Travelers
was seriously engaged in its investigation of the claim and filing
suit would prolong, and perhaps even forestall, resolution with
Creek Services.”

Id. at 16. Respondent admits that, from the time

Respondent filed its claim with Travelers on the payment bond for
the $63,000.00 due “for renovations and repair work on Pump Station
No. 5”, “Travelers maintained that [Plaintiff’s] claim was being
disputed

.

.

investigation

.

and

yet

of

the

claim

position could change.”
Respondent

attaches

[]

continued
was

to

ongoing,

maintain

that

its

suggesting

that

its

(Rec. Doc. No. 42-1 at 18).
multiple

emails;

one

of

which

from

Travelers employee Chris Dugan to Plaintiff’s counsel, dated June
12, 2009 states “based on the information [Travelers] has received
to date from [Plaintiff and Creek Services], at this time Travelers
is not in a position to consider any portion of your client’s claim
undisputed.

(Rec. Doc. No. 42-8 at 8).

A later portion of the

same paragraph state that “Creek has made it known that if it
becomes clear that an amount in due and owing tp [Plaintiff], they
will take the proper steps to see that payment is made.”

Id.

Despite these statements, Respondent states it “remained
8

hopeful that an amicable resolution would be reached based on
Travelers’ repeated representations of an ongoing investigation .
. . .”

(Rec. Doc. No. 42-1 at 20).

Additionally attached is an

unsigned copy of a letter from counsel for Creek Services to CWW,
Inc. which suggests that, because Plaintiff disputed that the
amount of a check CWW issued to Plaintiff was the full amount due,
CWW issue Plaintiff a new check “in the undisputed amount owed” or
that CWW provide Creek’s counsel with an accounting of the amounts
CWW intended to withhold from payment to Plaintiff. (Rec. Doc. No.
42-8 at 7-10).
Respondent argues that, because it “relied to its detriment on
Travelers’ representations and Creek Services’ acknowledgment of
amounts owed, and afforded defendants the opportunity to make good
on the Subcontractor Claim before filing” the instant suit, Movants
“should be equitably estopped from relying on the one-year statute
of limitations under the Miller Act . . .”
20).

(Rec. Doc. No. 42-1 at

Respondent closes by arguing that the Miller Act is not the

only basis for jurisdiction in this court and that the amount in
controversy on the other claims would exceed the $75,000.01 floor
of 28 U.S.C. § 1332 although Respondent does not address diversity
of the parties.

Id. at 21.
II. Law and Analysis

A.

Summary Judgment Standard
9

Summary judgment is proper if the pleadings, depositions,
interrogatory

answers,

and

admissions,

together

with

any

affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law.

Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986).
would

allow

nonmovant.
(1986).

a

A genuine issue exists if the evidence

reasonable

jury

to

return

a

verdict

for

the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

Although the Court must consider the evidence with all

reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.

Webb v. Cardiothoracic

Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The nonmovant must go beyond the pleadings and use affidavits,
depositions, interrogatory responses, admissions, or other evidence
to establish a genuine issue.

Id.

Accordingly, conclusory

rebuttals of the pleadings are insufficient to avoid summary
judgment.

Travelers Ins. Co. v. Liljeberg Enter., Inc. 7 F.3d

1203, 1207 (5th Cir. 1993).
B.

Miller Act Claim - Statute of Limitations
The Miller Act is intended, in part, to protect the rights of

a subcontractor on a government contract and should be liberally
construed to accomplish this purpose.
10

Warrior Constructors, Inc.

v. Harders, Inc., 387 F.2d 727, 729 (5th Cir. 1967); U.S. f/u/b/o
Trans Coastal Roofing Co., Inc. v. David Boland, Inc. 922 F.Supp.
597, 598 (S.D. Fla. 1996); 40 U.S.C. § 3131, et seq.

“If [a]

subcontractor is not paid, his only remedy is a suit under the
Miller Act.” U.S. f/u/b/o B's Company v. Cleveland Electric Co. of
S.C., 373 F.2d 585, 588 (5th Cir. 1967).

A subcontractor's right

to sue may be waived by clear and express provisions in the
contract between the prime contractor and subcontractor.

Id.

Accordingly, in the absence of a clear expression, “the contention
that there has been a waiver or release of that right must fail.”
Warrior Constructors, Inc., 387 F.2d at 729.
An action brought under 40 U.S.C. § 3133, “must be brought no
later than one year after the day on which the last of the labor
was performed or material was supplied by the person bringing the
action.”

§ 3133(b)(4).

The one-year statute of limitations is

limitational and not jurisdiction and thus, a party may be estopped
from thereupon relying where “sufficient equitable considerations
exist to warrant estoppel.”

U.S. ex rel Steel Smith Inc. v.

Holliday Const. LLC, 2010 WL 1379798, at *3 (S.D. Miss. Apr. 23,
2010) (citing United States f/u/o American Bank v. C.I.T. Constrc.,
Inc., 944 F.2d 253, 256 (5th Cir. 1991).
Interpreting the phrase “the last of the labor was performed
or material was supplied”, the Sixth Circuit “agree[d] with the
11

majority of courts that have interpreted the phrase and have
concluded it connotes more than mere substantial completion or
substantial performance of the plaintiff's obligations under its
contract.”4

U.S. v. International Fidelity Ins. Co., 200 F.3 456,

459 (6th Cir. 2000) (citing United States ex rel. Austin v. Western
Elec. Co., 337 F.2d 568, 572 (9th Cir. 1964)).
the

court

found

that

work

done

after

In that same case

“final

inspection

and

acceptance of the project” did not fall within the meaning of
“labor” as used in the statute and thus, would not toll the oneyear statute of limitations.

Id.

That court stated “[t]he

majority of circuits that have addressed this issue have held that
remedial or corrective work or materials, or inspection of work
already

completed,

falls

outside

the

meaning

‘material’ under [the statute of limitations].”5

of

‘labor’

or

Id. at 460.

(citing United States f/u/o Billows Elec. Supply Co. v. E.J.T.
Constr. Co., Inc., 517 F.Supp. 1178, 1181 (E.D.Pa. 1981), aff'd.
688 F.2d 827 (3rd Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 126,
74 L.Ed.2d 109 (1982); United States f/u/o Magna Masonry, Inc., v.
R.T. Woodfield, Inc., 709 F.2d 249, 250 (4th Cir. 1983); United

4

What constitutes “labor” or supply of “materials” within the scope of
the applicable statute of limitations does not appear to have been directly
addressed by the Fifth Circuit to date.
5

At the time of the Sixth Circuit’s opinion in U.S. v. International
Fidelity, now § 3133(b)(4) was 40 U.S.C. § 270b(b); revised by 2002 acts.

12

States ex rel. Austin v. Western Elec. Co., 337 F.2d 568, 572 (9th
Cir. 1964); United States f/u/o State Elec. Supply Co. v. Hesselden
Constr. Co., 404 F.2d 774, 776 (10th Cir. 1968)).
Here, the evidence submitted by Movants to show the last day
which services were performed by Plaintiff was July 14, 2008 seems
conclusive as the majority of that evidence, save Ms. Hightower’s
affidavit was originally produced by Plaintiff.

Although not

directly argued, any contention that work performed by Plaintiff
“into early September” tolled the applicable statute of limitations
cannot stand by virtue of the above outlined jurisprudence and the
affidavit of Plaintiff’s President.

As discussed supra, the

affidavit states “into early September of 2008, [Plaintiff] was
called back to pump stations on the project . . . on several
occasions to address ongoing roofing problems. [Plaintiff], through
inspections and other testing work on the Project, adequately
demonstrated . . . [that the reported problems] were not associated
with [Plaintiff’s] work scope on the Project.” (Rec. Doc. No. 42-6
at

2).

As

any

work

then

performed

was

clearly

remedial,

corrective, or an inspection of the work already completed, it
cannot be considered “labor” such that it would toll the statute of
limitations.

Even assuming arguendo that Mr. King’s statement on

the claim form submitted to Travelers is correct and that the last
day on which work was performed on the project by Plaintiff was
13

September 1, 2008, the instant suit would still have been barred
upon its filing on September 2, 2009.
Furthermore, Plaintiff itself states that is aware of the
applicability of the Miller Act and, presumably, the statute of
limitations.

The

record

before

the

Court

does

not

support

Plaintiff’s request that Defendants be equitably estopped from
relying on the Miller Act’s statute of limitations.
New Orleans, Louisiana, this 7TH day of July, 2011.

______________________________
UNITED STATES DISTRICT JUDGE

14