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United States ex rel. Butler Supply, Inc. v. Power & Data, LLC

United States District Court, E.D. Missouri, Eastern Division

September 30, 2014

UNITED STATES OF AMERICA ex rel. BUTLER SUPPLY, INC., Plaintiff,
v.
POWER & DATA, LLC, et al., Defendants.

MEMORANDUM AND ORDER

JOHN A. ROSS, District Judge.

This matter is before the Court on Plaintiff Butler Supply, Inc.'s Motion for Summary Judgment. (Doc. No. 14) On June 13, 2014, Defendants Hof Construction, Inc. and Federal Insurance Company filed their response in opposition to the motion. (Doc. No. 30) The motion is fully briefed and ready for disposition. As to Defendant Power & Data, LLC, the Court granted Power & Data until August 27, 2014 to respond to Butler's motion (Doc. No. 33); however, Power & Data filed no response. As a result, Power & Data has not met the requirements of Local Rule 4.01(E), and is deemed to have admitted all facts in Plaintiff's statement of uncontroverted facts. Turner v. Shinseki , 2010 WL 2555114, at *2 (E.D.Mo. June 22, 2010) (citing Deichmann v. Boeing Co. , 36 F.Supp.2d 1166, 1168 (E.D.Mo.1999), aff'd, 232 F.3d 907 (8th Cir.2000), cert. denied, 531 U.S. 877). Accordingly, the motion will be granted in favor of Butler and against Power & Data.

Background

Plaintiff Butler Supply, Inc. ("Butler") brings this action against Power & Data, LLC ("Power & Data"), Hof Construction, Inc. ("Hof") and Hof's surety, Federal Insurance Company ("FIC"), under the Miller Act, 40 U.S.C. §§ 3131-3133.[1] Butler further alleges state law claims for breach of contract against Power & Data and quantum meruit against both Power & Data and Hof.[2] (Complaint, Doc. No. 1) Hof asserts cross-claims against Power & Data for breach of contract and indemnity. (Doc. No. 27)

It is undisputed that on September 24, 2012, the United States of America entered into contract number GS06P12GZD0008/GSP0612G2 with Hof, the general contractor for work on the GSA Facility located at 4300 Goodfellow Blvd., Building 107, St. Louis, Missouri ("the Project"). (Plaintiff's Statement of Uncontroverted Material Facts ("PSOF"), Doc. No. 14-1, at ¶ 1) Hof, together with its surety FIC, executed and delivered a payment bond for the protection of all persons supplying labor or materials or both for the Project in the amount of $874, 200.00. (PSOF at ¶ 5) Hof retained Power & Data as a subcontractor to perform work on the Project. (PSOF at ¶ 2)

Butler alleges it was a material supplier working at the special instance and request of Power & Data and supplied electrical and other construction materials to Power & Data for use in the Project in the amount of $69, 534.41, which amount remains unpaid by Power & Data. (Complaint, Doc. No. 1 at ¶ 6) Butler relies on a credit application executed by Power & Data on June 26, 2012 whereby Butler agreed to sell material to Power & Data and Power & Data agreed to pay for such material. (Doc. No. 14-2 at 2; Doc. No. 14-3 at 12) Butler further alleges that within 90 days of last supplying materials to Power & Data for the Project, it served written notice of its claim for the unpaid materials on Defendants pursuant to 40 U.S.C. § 3133(b)(2).[3] (Compl. at ¶ 10; Doc. No. 14-3 at 41-48)

In support of its motion for summary judgment, Butler contends the undisputed facts of record show that Power & Data breached its contractual obligations with Butler, Hof was unjustly enriched by the materials furnished by Butler, and that FIC failed to pay Butler pursuant to the terms of the payment bond.

I. Legal standard

Summary judgment is appropriate when no genuine issue of material fact exists in the case and the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc. , 838 F.2d 268, 273 (8th Cir. 1988). If the record demonstrates that no genuine issue of fact is in dispute, the burden then shifts to the non-moving party, who must set forth affirmative evidence and specific facts showing a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). In determining whether summary judgment is appropriate in a particular case, the Court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. The Court is required to resolve all conflicts of evidence in favor of the nonmoving party. Osborn v. E.F. Hutton & Co., Inc. , 853 F.2d 616, 619 (8th Cir. 1988).

II. Discussion

A. Miller Act

Because subcontractors and suppliers are prohibited from imposing liens on governmental facilities, the Miller Act requires a general contractor on a federal construction project to post a bond to protect those who supply labor or materials for the project. 40 U.S.C. § 3131(b)(2); United States ex rel. Lighting & Power Servs., Inc. v. Interface Constr. Corp. , 553 F.3d 1150, 1152 (8th Cir.2009); United States ex rel. United Bhd. of Carpenters & Joiners Local Union No. 2028 v. Woerfel Corp. , 545 F.2d 1148, 1150 (8th Cir.1976). The Act allows a subcontractor's materials supplier to bring suit on the bond for any unpaid amounts owing for labor or materials, even if no contractual relationship exists between the general contractor and the supplier. 40 U.S.C. § 3133(b)(2); United States ex rel. J.D. Fields & Co. v. Gottfried Corp. , 272 F.3d 692, 696 (5th Cir.2001). The Miller Act is "highly remedial in nature, " and its terms should be liberally construed. U.S. ex rel. Country Boys Feed and Farm Supply v. Eickelmann, 2010 WL 750059, at *3 (W.D.Mo. Mar. 2, 2010) (quoting F.D. Rich Co. v. United States ex rel. Indus. Lumber Co. , 417 U.S. 116, 124 (1974)).

To prevail on a Miller Act claim, a material supplier need only prove four elements: 1) the materials were supplied for work in the particular contract at issue; 2) the supplier has not been paid; 3) the supplier had a good faith belief that the materials were for the specified work; and 4) the jurisdictional requirements of timely notice and filing are met. United States v. Avanti Constructors, Inc. , 750 F.2d 759, 761 (9th Cir.1984) ...


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