DTS Contracting, Inc. v. Angels General Construction, Inc. et al

Filing 21

ORDER Denying Defendants' 12 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DTS CONTRACTING, INC.,
Plaintiff,

Case No. 18-cv-11974
Hon. Matthew F. Leitman

v.
ANGELS GENERAL
CONSTRUCTION, INC., et al.,
Defendants.
__________________________________________________________________/
ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (ECF #12)
This is a payment dispute between a contractor and a sub-contractor. Plaintiff
DTS Contracting, Inc. alleges that Defendant Angels General Construction, Inc.
acted as the general contractor for a project at the Selfridge Air National Guard Base
and that Angels failed to pay DTS for the work DTS completed on the project as a
sub-contractor. (See Compl., ECF #1.)
DTS brings this action under the Miller Act, 40 U.S.C. § 3131 et seq. (See id.)
A plaintiff must file an action under the Miller Act no more than one year after the
plaintiff last provided labor or materials to the project at issue. See 40 U.S.C. §
3131(b)(4).

1

On August 21, 2018, Defendants filed a motion for summary judgment. (See
Mot., ECF #12.) Defendants argued that DTS did not file this action within the
Miller Act’s one-year statute of limitation. (See id. at Pg. ID 38.) In support of that
motion, Defendants submitted sworn affidavits from their employees in which the
employees said that their review of Defendants’ records established that DTS had
not provided labor or materials to the project at issue in the one year preceding the
filing of this action. (See ECF ## 12-4, 12-5.)
In response to Defendants’ motion, DTS submitted a sworn declaration from
its President, Toma Stanaj. (See ECF #15-3.) In that declaration, Stanaj said that,
based on his personal knowledge, “DTS last performed labor and provided materials
at [the project at issue] … on September 19, 2017,” or less than one year before DTS
filed this action. (Id. at ¶4, ECF #15-3 at Pg. ID 123.) Stanaj also submitted a
certified payroll record that, he said, “show[ed] that DTS employees were providing
labor and materials [to the project at issue] … on September 19, 2017.” (Id. at ¶5,
Pg. ID 123; see also ECF #15-2.)
On January 17, 2019, Defendants filed a supplemental brief and additional
evidence that Defendants asserted “establish[ed], even more conclusively than
previously discussed, that DTS [] last worked at the job site on May 25, 2017, and
never provided any services or labor thereafter.” (Def.s’ Supp. Br., ECF #18 at Pg.
ID 128.) This additional evidence included, among other things, evidence that the

2

project site was “closed and locked” on June 26, 2017, and that no work was
conducted, or could have been conducted, at the site after that date. (Supplemental
Affidavit of Emir Gardel at ¶¶ 3-5, ECF #18-3 at Pg. ID 138-39.) DTS vigorously
disputes this evidence and says that it did work on the site after June 26, 2017. (See
DTS Supp. Br., ECF #19.)
Defendants have presented evidence in their initial and supplemental
submissions that DTS had not provided any labor or materials to the project at issue
in the one year preceding the filing of this action. In response, DTS has presented
evidence, including a sworn declaration from its President, Toma Stanaj, that it did
provide such labor and materials in the one year before it filed this action. This is a
quintessential question of fact that cannot be resolved by the Court on summary
judgment. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(noting that “weighing the evidence” is a “jury function[], not [that] of a judge”).
Accordingly, the Court will deny Defendants’ motion for summary judgment.
In Defendants’ reply brief, they asked the Court that if it were to deny
summary judgment that it limit discovery to “the last-day-of-work issue.”
(Defendants’ Reply Br., ECF #16 at Pg. ID 126.) Given the Stanaj Declaration and
supporting documentation, the Court does not believe that limiting discovery is
appropriate at this time.

3

Accordingly, for all of the reasons stated above, Defendants’ motion for
summary judgment (ECF #12) is DENIED. Defendants shall file an Answer to the
Complaint within 14 days of this order.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 25, 2019

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 25, 2019, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

4