Archer Western Contractors, LLC v. The Erection Company, Inc. et al
Filing
11
ORDER granting 9 Stipulation to Stay; The parties will provide a status report of the pending FAA dispute by Tuesday, September 4, 2018, and every forty-five (45) days thereafter. Signed by Chief Judge Gloria M. Navarro on 6/14/2018. (Copies have been distributed pursuant to the NEF - JM)
Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 1 of 8
1
2
3
4
5
6
7
8
9
KURT C. FAUX, ESQ.
Nevada Bar No. 003407
WILLI SIEPMANN, ESQ.
Nevada Bar No. 002478
JORDAN F. FAUX, ESQ.
Nevada Bar No. 12205
THE FAUX LAW GROUP
1540 W. Warm Springs Road, Suite 100
Henderson, Nevada 89014
Telephone: (702) 458-5790
Facsimile: (702) 458-5794
Email: kfaux@fauxlaw.com
wsiepmann@fauxlaw.com
jfaux@fauxlaw.com
Attorneys for Plaintiff Archer Western Contractors, LLC
10
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
THE FAUX LAW GROUP
1540 W. WARM SPRINGS ROAD, SUITE 100
HENDERSON, NEVADA 89014
TEL. (702) 458-5790
11
12
13
ARCHER WESTERN CONTRACTORS, LLC
A Delaware foreign limited-liability company
14
Plaintiff,
15
v.
16
CASE NO. 2:17-cv-03032-GMN-NJK
THE ERECTION COMPANY, INC.,
A Washington corporation
17
18
19
STIPULATION TO STAY and ORDER
and
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA,
A Connecticut Corporation
20
Defendants.
21
22
23
24
25
Plaintiff, Archer Western Contractors, LLC, (“Archer Western”), and Defendants, The
Erection Company, Inc. (“TEC”), and Travelers Casualty and Surety Company of America
(“Travelers TEC”) 1, (collectively referred to as the “Parties”), by counsel, hereby stipulate to stay
26
27
28
1
Travelers issued payment and performance bonds to both Archer Western and TEC.
Travelers’ bonds related to Archer Western are referred to as “Archer Western Travelers”.
Travelers’ bonds related to TEC are referred to as “Travelers TEC”.
00051145/ 102
Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 2 of 8
1
this litigation. This joint stipulation is made for good cause and is not made with any intent to
2
delay these proceedings. This Stipulation is based upon the information and case law provided
3
below.
4
STIPULATION
5
6
I.
INTRODUCTION
The Parties seek to stay the pending action for two primary reasons:
7
(a) Archer Western filed this lawsuit due to concerns regarding the expiration of the statute
8
9
of limitation; and
THE FAUX LAW GROUP
(b) The resolution of a pending dispute between Archer Western and the Federal Aviation
11
1540 W. WARM SPRINGS ROAD, SUITE 100
HENDERSON, NEVADA 89014
TEL. (702) 458-5790
10
Administration (“FAA”) may resolve this lawsuit and other pending and potential
12
lawsuits as delineated below.
13
14
II.
STATEMENT OF THE CASE
15
This litigation is related to and arises from disputes between Archer Western and the FAA
16
regarding the construction of the new Air Traffic Control Tower and Terminal Radar Approach
17
Control at McCarran International Airport, Las Vegas, Nevada (“Project”). It also arises from
18
disputes between Archer Western, its subcontractors, and their subcontractors regarding the
19
assertions of affirmative claims.
20
Archer Western, as general contractor, entered into a prime contract with the FAA, the
21
22
owner, to construct the Project. Archer Western entered into subcontracts with the Gallagher-
23
Kaiser Corporation (“G-K”) and Fisk Electric Company (“Fisk”), wherein G-K was to perform
24
certain mechanical and plumbing work for the Project as a subcontractor to Archer Western, and
25
wherein Fisk was to perform certain electrical work.
26
27
During the Project, the FAA materially altered the character of Archer Western’s work on
the Project by, among other things, issuing numerous changes and design revisions – including
28
00051145/ 102
Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 3 of 8
1
changes and design revisions to G-K’s mechanical and plumbing work and Fisk’s electrical work.
2
The FAA’s changes and design revisions are described in detail in Archer Western’s claims
3
4
against the FAA (Notices of Contract Dispute), which are included as part of Exhibit A attached
hereto.
The FAA’s numerous changes and design revisions significantly increased Archer
5
6
7
Western’s, G-K’s and Fisk’s cost of performing their work. Archer Western contends that it also
increased the cost of G-K’s and Fisk’s subcontractors. TEC and Travelers TEC dispute that
8
contention and the contention that Archer Western may seek indemnification for claims by any of
9
G-K’s or Fisk’s subcontractors.. The FAA’s changes and design revisions also impacted Archer
10
THE FAUX LAW GROUP
1540 W. WARM SPRINGS ROAD, SUITE 100
HENDERSON, NEVADA 89014
TEL. (702) 458-5790
11
Western’s and G-K’s ability to perform their work in a timely and cost-effective manner.
Additionally, Archer Western alleges that the work of Archer Western, its subcontractors,
12
and their lower-tiered subcontractors was affected by significant delays to the entire Project caused
13
14
by TEC, which had been retained by one of Archer Western’s subcontractors to do the steel
15
erection work on the Project. TEC disputes and denies this allegation. While a previous lawsuit
16
between Archer Western, TEC, and Travelers TEC was settled and dismissed, the settlement
17
agreement between the parties exempted claims relating to the Project from G-K and Fisk.2
18
Archer Western and Archer Western Travelers contend that the settlement agreement also
19
exempted claims from G-K and Fisk’s subcontractors. TEC and Travelers TEC dispute that
20
contention.
21
22
Archer Western asserts that G-K and Fisk Electric, subcontractors to Archer Western, have
23
asserted claims against Archer Western and Archer Western Travelers. Archer Western also
24
asserts that subcontractors of G-K have asserted claims against Archer Western and Archer
25
Western Travelers. TEC and Travelers TEC dispute that these claims are exempted from the
26
27
2
28
The dismissed case is The Erection Co., Inc. v. Archer Western Contractors, LLC, et al.,
Case No. 2:12-cv-00612-MMD-MJK.
00051145/ 102
Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 4 of 8
1
settlement agreement between Archer Western and Archer Western Travelers and TEC and
2
Travelers TEC.
3
4
G-K, has filed a legal action against Archer Western and/or Archer Western Travelers, and
this action has been dismissed without prejudice for one primary reason, namely that the pending
5
6
7
action between Archer Western and the FAA will potentially resolve the claims of G-K and of
Fisk. Desert Mechanical and Liberty Duct also filed legal actions against Archer Western and/or
8
Archer Western Travelers, which have been stayed. TEC and Travelers TEC dispute that they
9
might have any liability related to those claims and that their actions and/or claims are exempted
10
from the settlement agreement.
THE FAUX LAW GROUP
1540 W. WARM SPRINGS ROAD, SUITE 100
HENDERSON, NEVADA 89014
TEL. (702) 458-5790
11
As a result of the FAA’s changes and design revisions, and in accordance with the dispute
12
resolution process in the prime contract, Archer Western submitted its claims for additional
13
14
compensation (Notices of Contract Dispute) to the Office of Dispute Resolution for Acquisitions
15
(“ODRA”). (Exhibit A.) That dispute is pending. ODRA is the sole, statutorily designated
16
tribunal for all contract disputes under the FAA’s management system. 14 CFR Part 17.
17
A substantial portion of the pending claims against Archer Western by its subcontractors
18
relates to claimed delay damages, and, as stated, Archer Western contends that TEC caused
19
substantial delays on the Project, a contention disputed by TEC. Because of statute of limitation
20
concerns, Archer Western asserts that it could not wait until its claim against the FAA was
21
22
resolved to assert a claim against TEC and Travelers TEC but was forced to file the instant lawsuit.
23
However, as the ultimate outcome of Archer Western’s claim against the FAA will have a
24
significant effect on this case and the other pending claims and cases, the Parties seek to stay this
25
action pending the resolution of the ODRA action.
26
27
///
///
28
00051145/ 102
Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 5 of 8
1
III.
LEGAL SUPPORT
2
A. The Legal Standard
3
The “power to stay proceedings is incidental to the power inherent in every court to control
4
the disposition of the causes on its docket with economy of time and effort for itself, for counsel,
5
and for litigants. How this can best be done calls for the exercise of judgment, which must weigh
6
7
competing interests and maintain an even balance.” Landis v. North American. Co., 299 U.S. 248,
8
254-55 (1936). There is no requirement that “before proceedings in one suit may be stayed to
9
abide the proceedings in another, the parties to the two causes must be shown to be the same and
10
the issues identical.” Id. at 254.
THE FAUX LAW GROUP
1540 W. WARM SPRINGS ROAD, SUITE 100
HENDERSON, NEVADA 89014
TEL. (702) 458-5790
11
12
“Where it is proposed that a pending proceeding be stayed, the competing interests which
will be affected by the granting or refusal to grant a stay must be weighed. Among these
13
14
15
competing interests are the possible damage which may result from the granting of a stay, the
hardship or inequity which a party may suffer in being required to go forward, and the orderly
16
course of justice measured in terms of simplifying or complicating the issues, proof, and questions
17
of law which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268
18
(1962).
19
“A trial court may, with propriety, find it is efficient for its own docket and the fairest
20
course for the parties to enter a stay of an action before it, pending resolution of independent
21
22
proceedings which bear upon the case. This rule applies whether the separate proceedings are
23
judicial, administrative, or arbitral in character, and does not require that the issues in such
24
proceedings are necessarily controlling of the action before the court.” Leyva v. Certified Grocers
25
of California, Ltd., 593 F.2d 857, 863-864 (9th Cir. 1979).
26
///
27
///
28
00051145/ 102
Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 6 of 8
B. The Present Litigation should be stayed until the dispute between Archer Western and
the FAA is resolved.
1
2
3
As stated, this case was filed by Archer Western because of statute of limitation concerns.
4
The case, however, is significantly related to other pending litigation and claims, all of which arise
5
6
out of the same Project, with the main dispute being the one between Archer Western and the FAA
7
as described in Exhibit “A”. It is likely that the outcome of that dispute will significantly affect the
8
other pending claims of Archer Western’s subcontractors and sub-subcontractors, and may well
9
cause this case to be dismissed or be consolidated with one of the other cases. In the meantime,
10
THE FAUX LAW GROUP
1540 W. WARM SPRINGS ROAD, SUITE 100
HENDERSON, NEVADA 89014
TEL. (702) 458-5790
11
and because of that likely outcome, the Parties hereto should not be forced to incur significant
attorney’s fees and costs.
12
C. The “Competing Interests of Justice” in the Present Matter Support a Stay of this
Litigation
13
14
The “competing interests” in the present matter also support a stay of this litigation. See
15
CMAX, Inc., 300 F.2d 265, 268. In the first instance, no possible damage to the Parties or this
16
17
Court will result from the stay, and TEC and Travelers TEC will not be prejudiced by a stay of this
18
litigation. See Id. A stay of the present litigation would only be temporary and would only remain
19
in effect until such time that the ODRA proceedings are exhausted. Once the ODRA proceedings
20
conclude, this litigation can resume, if necessary, and the stay will not result in TEC and Travelers
21
TEC losing any contractual or legal rights.
22
23
However, if the present litigation is not stayed, the Parties will be prejudiced and will suffer
“hardship or inequity.” See Id. Litigating the same issues in this Court and ODRA at the same
24
25
time would be duplicative and unduly burdensome. If this litigation is not stayed, the Archer
26
Western will incur unnecessary attorneys’ fees and legal costs in having to litigate the same issues
27
simultaneously in different jurisdictions, and TEC and Travelers TEC will incur similar fees and
28
cost.
00051145/ 102
Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 7 of 8
1
Furthermore, if this litigation is not stayed, Archer Western, TEC and Travelers TEC
2
would be forced to litigate issues related to the claims of other contractors and subcontractors,
3
4
whose own actions against Archer Western have been stayed or dismissed. That, in turn, would
potentially result in inconsistent outcomes, duplicative proceedings and discovery, and might not
5
6
7
resolve any of the pending disputes.
In fact, this lawsuit, by its very nature, relates to the claims of G-K and Fisk, and indirectly
8
to the dispute between Archer Western and the FAA. If this case is not stayed, Archer Western will
9
in all likelihood move to have it consolidated with one of the other pending lawsuits, because of
10
the assertion of delay damages by one of those plaintiffs. Because those cases are presently stayed,
THE FAUX LAW GROUP
1540 W. WARM SPRINGS ROAD, SUITE 100
HENDERSON, NEVADA 89014
TEL. (702) 458-5790
11
12
the ultimate result would be the same.
The “orderly course of justice” and the judicial economy of this Court would be enhanced
13
14
if this litigation were stayed and the ODRA proceedings were allowed to proceed to determine the
15
entitlement and measure of Archer Western’s damages resulting from claims by G-K and/or Fisk.
16
Archer Western and Archer Western Travelers also contend that this lawsuit pertains to claims of
17
G-K’s and Fisk’s subcontractors.
18
contention that Archer Western may seek indemnification for claims by any of G-K’s or Fisk’s
19
TEC and Travelers TEC dispute that contention and the
subcontractors. Judicial resources and time would be saved if this litigation is stayed because the
20
risk of inconsistent findings and judgments would be avoided. Also, if this litigation is stayed,
21
22
Archer Western could recover damages against the FAA in the ODRA proceedings for these other
23
pending claims and, as a result, these claims against Archer Western could be resolved without the
24
need for this litigation. Even if the ODRA proceedings do not resolve all of the issues between
25
Archer Western and G-K, the ODRA proceedings will at the very least significantly narrow the
26
issues. Nevertheless, if this litigation is stayed, there would be no harm to the Parties as the stay
27
28
00051145/ 102
Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 8 of 8
1
could be lifted upon the conclusion of the ODRA proceedings, and the Parties would not incur any
2
fees and cost in the meantime.
3
IV.
4
CONCLUSION
Based on the above, the Parties respectfully requests that this Court stay this litigation until
5
6
7
the owner related disputes process against the FAA is exhausted.
By agreeing to this Stipulation, TEC and Travelers TEC do not waive and Archer Western
8
agrees that TEC and Travelers TEC retain any and all defenses which they have to Archer
9
Western’s complaint, and which they could have asserted in a responsive pleading pursuant to the
10
THE FAUX LAW GROUP
1540 W. WARM SPRINGS ROAD, SUITE 100
HENDERSON, NEVADA 89014
TEL. (702) 458-5790
11
Federal Rules of Civil Procedure.
Dated this 25th day of May, 2018.
Dated this 25th day of May, 2018.
THE FAUX LAW GROUP
KEMP, JONES & COULTHARD, LLP
/s/ Kurt C. Faux
KURT C. FAUX, ESQ
Nevada Bar No. 3407
WILLI H. SIEPMANN, ESQ.
Nevada Bar No. 2478
JORDAN F. FAUX, ESQ.
Nevada Bar No. 12205
1540 Warm Springs, Rd., Ste. 100
Henderson, Nevada 89014
Attorneys for Archer Western Contractors,
LLC
/s/ Nathanael R. Rulis (with permission)
SPENCER H. GUNNERSON, ESQ.
Nevada Bar No. 8810
NATHANAEL R. RULIS, ESQ.
Nevada Bar No. 11259
3800 Howard Hughes Parkway, 17th Floor
Las Vegas, NV 89169
Telephone: (702) 385-6000
Attorneys for The Erection Company and
Travelers Casualty & Surety Company of
America
12
13
14
15
16
17
18
19
20
21
22
23
24
ORDER
IT IS HEREBY ORDERED that the above Stipulation to Stay, (ECF No. 9), is
GRANTED. IT IS FURTHER ORDERED that the parties will provide a status report of
the pending FAA dispute by Tuesday, September 4, 2018, and every forty-five (45) days
thereafter.
25
26
27
28
14
DATED this ___ day of June, 2018.
_________________________________________
Gloria M. Navarro, Chief Judge
U.S. DISTRICT COURT
00051145/ 102
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?