Pritchett Controls, Inc. v. Hartford Accident and Indemnity Company

Filing 19

MEMORANDUM OPINION. Signed by Judge Catherine C. Blake on 11/21/2017. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

PRITCHETT CONTROLS, INC.

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v.

HARTFORD ACCIDENT AND
INDEMNITY COMPANY

Civil No. CCB-17-2089

MEMORANDUM
Pritchett Controls, Inc. (“Pritchett”) has sued Hartford Accident and Indemnity Company
(“Hartford”) for payment under the Maryland Little Miller Act, Md. Code, State Fin. & Proc. §§
17-101, et seq. Now pending before the court are Hartford’s motions to extend time in which to
file a responsive pleading, nunc pro tunc, and to dismiss pursuant to the doctrine of forum non
conveniens. The motions have been fully briefed, and no oral argument is necessary. See Local
Rule 105.6. For the reasons explained below, the motion for extension of time will be granted,
and the motion to dismiss will be denied.

BACKGROUND
In August 2015, Pritchett was hired by general contractor James W. Ancel, Inc. (“JWA”)
as a subcontractor on a construction project located in Baltimore, Maryland for the Maryland
Transit Authority. Compl. ¶ 6-8. To comply with the Maryland Little Miller Act, JWA procured
a payment bond from Hartford for the project. Id. at ¶ 7. While performing its work on the
project, Pritchett submitted twelve applications for payment totaling $744,799.00. Id. at ¶ 10-11.
Pritchett completed its work on March 16, 2017. Id. at ¶ 14. Pritchett has not received any
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payment for its work on the project. Id. at ¶ 17. On May 11, 2017, Prtichett submitted a Notice
of Claim and Demand against the Payment Bond to Hartford. Id. at ¶ 19; see also Ex. 5, ECF
No. 1-6. As neither JWA nor Hartford paid Pritchett, Pritchett filed this suit against Hartford on
July 25, 2017 for payment under the payment bond of its twelve applications for payment and
accrued interest. Compl. ¶21, 29-30.
The subcontract between JWA and Pritchett contained a forum selection clause stating,
“[A]ny actions or lawsuits arising hereunder to the extent permitted by law shall be
brought in the District or County where Contractor’s principal office is located without
regard to principles of conflicts of laws or forum non-convenience [sic].”
Ex. B. ¶ 37, ECF No. 1-2. JWA’s principal office is located in Towson, Maryland. Id. at 1; Ex. A
at 1, ECF No. 1-1. Towson is within Baltimore County and within the District of Maryland.
On September 19, 2017, Hartford filed a motion to dismiss pursuant to the doctrine of
forum non conveniens. ECF No. 9. Pritchett filed its response on October 3. ECF No. 11.
Hartford filed a motion for extension of time to file a responsive pleading, nunc pro turc, on
October 12 and its reply regarding the motion to dismiss on October 17. ECF Nos. 12, 15. On
October 25, Pritchett filed a response in opposition to the motion for extension of time. ECF No.
16. On November 8, Hartford filed both its answer to Pritchett’s complaint and its reply
regarding the motion for extension of time. ECF Nos. 17, 18.
ANALYSIS
A. Motion to Extend Time for Filing of Responsive Pleading, Nunc Pro Tunc
A motion for extension of time is evaluated under Fed. R. Civ. P. 6(b)(1), which permits
the court to grant an extension when a “party failed to act because of excusable neglect.” Fed R.
Civ.P. 6(b)(1)(B); see also In re MI Windows and Doors Inc., 860 F.3d 218, 226 (4th Cir. 2017).

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The Supreme Court has identified four factors to determine “excusable neglect:”
[1] the danger of prejudice to the debtor, [2] the length of the delay and its potential
impact on judicial proceedings, [3] the reason for the delay, including whether it was
within the reasonable control of the movant, and [4] whether the movant acted in good
faith.
Id. (quoting Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380,
395 (1993). Further, “[N]o factor is dispositive, and while inadvertence, ignorance of the rules,
or mistakes construing the rules do not usually constitute excusable neglect, it is clear that
excusable neglect is a somewhat elastic concept and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.” Id. (citing Pioneer Investment, 507 U.S. at
392) (internal quotation marks omitted). In determining what type of mistake qualifies as
excusable neglect, courts have distinguished between instances where the error was intentional
and instances where the error was inadvertent. Compare Martinez v. U.S., 578 Fed. Appx. 192,
194 (4th Cir. 2014) (affirming a finding of no excusable neglect when plaintiff’s attorney was
“clearly aware” of an error that led to failure to timely serve process) with Fernandes v. Crane,
538 Fed.Appx. 274, 276 (4th Cir. 2013) (remanding for further consideration a finding of no
excusable neglect where there was no indication plaintiff’s lawyer was aware of or willfully
blind to errors that led to missing a filing deadline). 1
In its response to the motion to dismiss, Pritchett argued that Hartford’s motion was
untimely, as the deadline for filing responsive pleadings was September 21, 2017. Resp. Mot.
Dismiss ¶ 12. Hartford filed its motion for extension of time, in which it explained it had made
an error calculating the date responsive pleadings were due, and had filed its motion to dismiss
seven days late, on what it believed was the deadline. See Mot. Extend Time File Responsive
Pleading, ECF No. 12. Pritchett argued that Hartford failed to demonstrate excusable neglect
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Unpublished opinions are cited not as precedent, but for the soundness of their reasoning.

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because its mistake was avoidable, and that it has been unfairly prejudiced by the untimely
motion. See Resp. Opp. Mot. Extend Time at 5-8, ECF No. 16. Pritchett requested that the court
strike the motion and order Hartford to file an answer. Id. at 9. In its reply, Hartford notes that it
has now filed its answer, as requested by Pritchett. It argues that its motion to dismiss was
“timely filed as an appropriate preliminary motion but untimely as a responsive pleading.” Reply
Pl.’s Resp. Opp. Mot. Extend Time at 8.
Here, there is no danger of prejudice to Pritchett in permitting the time extension by a
mere seven days. Hartford has already filed its answer, which was Pritchett’s main request for
relief in its opposition. Pritchett has been able to fully respond to the motion to dismiss, and the
amount of delay in ultimate resolution of the case has been negligible. Second, and relatedly, the
length of delay was very short and granting the extension has no impact on further judicial
proceedings. The motion to dismiss has been fully briefed by both sides, and will be decided in
the same order as the order granting the extension. Third, although the delay was within the
control of the movant, it appears to have been an inadvertent error. Hartford filed the motion by
the deadline it believed to apply. Fourth, there is no indication Hartford acted in bad faith.
Applying the four factors, the court finds that Hartford demonstrated excusable neglect, owing
primarily to the very small length of delay and very minor impact on proceedings. The motion to
extend time nunc pro tunc will be granted.
B. Motion to Dismiss Pursuant to Forum Non Conveniens
In Atlantic Marine Construction Company, Inc. v. United States District Court for the
Western District of Texas, the Supreme Court held that “[T]he appropriate way to enforce a
forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non

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conveniens.” 134 S. Ct. 568, 580 (2013). “In analyzing forum selection clauses, courts begin by
determining whether the limitation provided in the clause is one of sovereignty or geography.”
Silo Point II LLC v. Suffolk Const. Co., Inc., 578 F.Supp.2d 807, 810 (D.Md. 2008) (citing Ferri
Contracting Co. v. Town of Masontown, 2003 WL 22244905 at *1-2 (4th Cir. Sept. 29, 2003)
(per curiam) (some citations omitted)). Forum selection clauses that limit jurisdiction with the
phrase “in [a location]” have been held to refer to a geographic restriction, while clauses with the
phrase “of [a location]” indicate a restriction of sovereignty. “[F]orum selection clauses that use
the term ‘in a state’ express the parties’ intent as a matter of geography, permitting jurisdiction in
both the state and federal courts of the named state, whereas forum selection clauses that use the
term ‘of [a state]’ connote sovereignty, limiting jurisdiction over the parties’ dispute to the state
courts of the named state.” Findwhere Holdings, Inc. v. Systems Environment Optimization, LLC,
625 F.3d 752, 755 (4th Cir. 2010).
Hartford argues that as surety, it has a right to all defenses available to the general
contractor JWA, including the use of the forum selection clause in the subcontract between JWA
and Pritchett. It continues that this forum selection clause permits venue only in Baltimore
County, and as there is no federal courthouse located in Baltimore County, the case must be
dismissed and re-filed in the Circuit Court for Baltimore County. See Mot. Dismiss, ECF No. 9.
Pritchett argues that the forum selection clause contained in the subcontract is inapplicable to
suits under the payment bond, and that even if the clause were to apply, venue would be proper
under the language of the clause.
The court assumes, without deciding, that the forum selection clause contained in the
subcontract would be applicable to suits under the payment bond. But the clause does not

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preclude litigation in the U.S. District Court for the District of Maryland. The forum selection
clause requires that suits be brought “in the District or County where Contractor’s principal
office is located.” The use of “in” indicates a restriction to a geographical area, not a limitation
on which court system has sovereignty. See FindWhere Holdings Inc., 625 F.3d at 755.
The parties contest the meaning of the phrase “District or County” in the forum selection
clause. Hartford argues that “District” is an alternative geographic designation to “County,” and
that the two words functionally have the same definition of state-level geographic boundaries in
this context. See Reply Resp. Opp. Mot. Dismiss at 12-13, ECF No. 15. Pritchett argues that
“District” contemplates federal district courts as distinct from “County,” which contemplates
state-level courts. Resp. Opp. Mot. Dismiss at 13-16, ECF No. 11.
Pritchett’s interpretation is consistent with similar language that has been interpreted by
this court. See United Corrosion Control, LLC v. G-W Management Services, LLC, 2016 WL
6610393 (D. Md. Nov. 9, 2016) (permitting venue in the District of Maryland where the forum
selection clause stated “any actions or lawsuits arising hereunder to the extent permitted by law
shall be brought in the District where Contractor’s principal office is located”). Hartford attempts
to distinguish this case by noting that United Corrosion was a federal Miller Act case where
jurisdiction was only proper in federal courts. Here, Hartford argues, the parties are governed by
Maryland’s Little Miller Act, which sets venue for cases in the courts of Maryland, so the phrase
“District or County” should be read as only referring to state boundary lines.
State statutes setting venue in state courts do not preclude federal diversity jurisdiction. 2
See Gross v. Weingarten, 217 F.3d 208, 221 (4th Cir. 2000) (stating “The Supreme Court has
repeatedly and unequivocally rejected the [ ] contention that a state may oust the federal courts of
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Neither side contests the presence of diversity jurisdiction in this case.

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jurisdiction by creating an exclusive forum for claims against an estate”). Interpreting the
contract in context, it is therefore reasonable that the contracting parties contemplated the
appropriate venue being in both federal and state courts, and meant “District or County” to
encompass both possible venues. In addition, in the context of judicial forum selection, “District”
is commonly understood to mean federal judicial districts. Even further, the lack of other
possible state-level geographic boundaries being mentioned in the clause (such as borough or
parish, as suggested by Hartford) weighs against Hartford’s interpretation of “District or County”
as referring only to whatever geographic demarcation term is used by the principal contractor’s
state. Therefore, giving the phrase “District or County” its plain meaning in this context
unambiguously provides for an appropriate venue in the District of Maryland, and dismissal
pursuant to forum non conveniens based on this clause would be inappropriate.
CONCLUSION
For the reasons stated above, Hartford’s motion to extend time to file a responsive
pleading, nunc pro tunc will be granted. Hartford’s motion to dismiss pursuant to forum non
conveniens will be denied.
A separate order follows.

__11/21/2017__________
Date

________/S/_________________
Catherine C. Blake
United States District Judge

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