United States of America v. Alliance Mechanical, Inc. et al

Filing 51

ORDER Denying 43 Plaintiff's Motion for Summary Judgment. Signed by Judge James C. Mahan on 02/18/2014. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THE UNITED STATES OF AMERICA
for the use of BOMBARD
MECHANICAL, LLC,

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2:12-CV-1088 JCM (CWH)

Plaintiff(s),

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v.

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ALLIANCE MECHANICAL, INC., et
al.,

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Defendant(s).

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ORDER

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Presently before the court is plaintiff United States of America (for the use of Bombard

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Mechanical, LLC)’s motion for summary judgment (Doc. # 43). Defendants did not file a response.

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I.

Background

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This action arises out of the construction of a V.A. hospital located at 6900 N. Pecos Drive,

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North Las Vegas, Nevada. The general contractor on the project was Clark/Hunt, JV - Nevada

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(hereinafter "Clark/Hunt"), which entered into separate subcontracts with defendants Alliance

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Mechanical, Inc. and Alliance/Penta, A JV, for various portions of the project. Defendants Alliance

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Mechanical and Alliance/Penta each entered into subcontracts with Bombard Mechanical, LLC

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(“Bombard”).

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Because the project was federally owned and funded, each contractor was required to secure

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payment and performance bonds pursuant to 40 U.S.C. §§ 3131-3134 ("the Miller Act"). The bonds

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James C. Mahan
U.S. District Judge

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were obtained by the respective contractors in accordance with the Miller Act.

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Plaintiff claims that Bombard performed its work under the contract, that the VA Hospital

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is currently operating, and that no complaints are outstanding as to Bombard's performance.

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Defendants have provided no evidence that there were any problems with Bombard's labor,

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materials, or workmanship.

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Plaintiff alleges that defendants and their respective bonding companies have not paid

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Bombard. The reasons given for non-payment are unrelated to the services that Bombard provided

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under the contract.

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Plaintiff states that the reason defendants refuse to pay is a conflict between defendants and

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Insulation Maintenance & Contracting, LLC (“IMC”). Plaintiff subcontracted with IMC to provide

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insulation services for the V.A. hospital project. An employee or employees of IMC complained to the

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Department of Labor regarding wages. Because Bombard had subcontracted with IMC, Bombard

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became liable for IMC's penalties. Defendants Alliance Mechanical and Alliance/Penta have withheld

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payment due to the possibility that penalties will be assessed against Bombard.

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IMC is now defunct, and defendants have not requested any discovery in this case following the

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initial disclosures. Plaintiff asserts causes of action for breach of contract and claims on payment

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bonds against defendants.

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II.

Legal Standard

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The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that “there is no genuine issue as to any material fact and that the movant is entitled to a

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is “to

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isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24

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(1986).

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In determining summary judgment, a court applies a burden-shifting analysis. “When the

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party moving for summary judgment would bear the burden of proof at trial, it must come forward

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with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.

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James C. Mahan
U.S. District Judge

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In such a case, the moving party has the initial burden of establishing the absence of a genuine issue

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of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213

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F.3d 474, 480 (9th Cir. 2000) (citations omitted).

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In contrast, when the nonmoving party bears the burden of proving the claim or defense, the

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moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential

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element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to

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make a showing sufficient to establish an element essential to that party's case on which that party

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will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving party fails

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to meet its initial burden, summary judgment must be denied and the court need not consider the

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nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing

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party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

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claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions

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of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th

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Cir. 1987).

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In other words, the nonmoving party cannot avoid summary judgment by relying solely on

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conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

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pleadings and set forth specific facts by producing competent evidence that shows a genuine issue

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for trial. See Celotex Corp., 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all justifiable

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inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is

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James C. Mahan
U.S. District Judge

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merely colorable or is not significantly probative, summary judgment may be granted. See id. at

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249–50.

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III.

Analysis

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After thoroughly reviewing the record in this case, the court finds that summary judgment

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is not appropriate. While plaintiff has alleged that it had a formal contract with defendants to provide

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its construction services in exchange for payment, plaintiff has failed to submit evidence directly

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showing that it had a contract with defendants.

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While plaintiff’s filings make it seem as if plaintiff possesses documents that show the terms

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of the contract, it has failed to attach these as exhibits to its filings. Similarly, plaintiff provides no

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specific documentation relating to the payment bonds at issue in this case.

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Because the existence and terms of the contract as well as the payment bonds are essential

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to plaintiff’s claims, the court cannot award summary judgment in plaintiff’s favor unless it provides

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substantial evidence relating to the contract and bonds. As such, the court will deny plaintiff’s

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motion for summary judgment.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for

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summary judgment (doc. # 43) be, and the same hereby is, DENIED.
DATED February 18, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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