The opinion of the court was delivered by: Wolfson, United States District Judge
Plaintiff Quinn Construction, Inc. ("Quinn") was party to a subcontract on a library construction project at the College of New Jersey ("the College") with Hunt Construction Group, Inc. ("Hunt"), the general contractor on the project. The Sureties*fn1 , through payment bonds secured by Hunt, are jointly and severally liable to Quinn for all work performed under its subcontract with Hunt. Quinn alleges that Hunt has failed to pay it for its work on that project, and accordingly, Quinn brings this action against the Sureties to collect certain payments it alleges are due it on the project. Now, more than two-and-a-half years after the commencement of this suit, the Sureties move the Court to summarily dismiss the Complaint in its entirety. The Sureties claim that summary judgment is proper because Quinn filed suit prematurely, failing to wait 90 days after giving notice to the Sureties before bringing suit, as required by New Jersey's Public Works Lien and Bond Law, N.J.S.A. 2A:44-143, et seq. ("Bond Act"). For the reasons that follow, the Sureties' motion is denied.
Hunt, a construction firm, entered into a Prime Contract with the College on August 11, 2003, in the amount of $22,750,000.00 for construction of a library. Declaration of Andrew Kobayashi, ¶ 2 ("Kobayashi Decl.").The Prime Contract incorporated multiple documents into its conditions, including the Volume I Project Manual dated May 30, 2003 ("Project Manual"). See Reply Declaration of Andrew Kobayashi, ¶ 2 ("Kobayashi Reply Decl."). The Project Manual expressly requires that payment and performance bonds be furnished by the contractor and that all such bonds "conform in all respects to the requirement and language of" the Bond Act. Kobayashi Reply Decl., Ex. A (the Project Manual) at p. 24. Specifically, Article IB 7 of Section 5 of the Project Manual required Hunt to secure payment and performance bonds as security for payments to all parties and persons performing labor and providing materials for the library project, see Id., and that all such bonds "conform in all respects to the requirement and language of N.J.S.A. § 2A:44-143 to 147." See Id.; Kobayashi Reply Decl. ¶ 3. The general conditions of the Project Manual also required all such bonds to be legally effective on the date the contract was signed and accordingly, Hunt secured bonds from the Sureties, effective on July 31, 2003.
Kobayashi Decl., Ex. A at p. 1 (bond documents). The Bonds secured by Hunt from the Sureties stated that they were given in compliance with New Jersey's State College Contracts Law, N.J.S.A. 18A:64-68 ("the College Contracts Law"). Id.
Hunt executed a subcontract with Quinn on December 2, 2003, wherein Quinn agreed to furnish labor and materials for concrete construction on the project. Kobayashi Decl. ¶ 4. The subcontract between Hunt and Quinn provided that the Prime Contract and the subcontract "are intended to supplement and complement each other and shall, where possible, be so interpreted." Certification of Carter N. Williamson, Ex. 4 (the subcontract). However, if any term of the subcontract "irreconcilably conflicts" with the Prime Contract, then that provision granting greater rights to Hunt or greater obligations to Quinn would govern. Id. Quinn's last day of work on the project was in 2005. Kobayashi Decl. ¶ 8.
On November 8, 2005, Quinn sent to the Sureties notice of its claim against Hunt's payment bond and then filed suit against the Sureties 85 days later on February 1, 2006. The Sureties submitted their Answers to Quinn's Complaint in April of 2006. Now, the Sureties move for Summary Judgment against Quinn on the ground that suit was prematurely filed in volation of the Bond Act.
"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56(c).
For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). For a fact to be material, it must have the ability to "affect the outcome of the suit under governing law." Kaucher, 455 F.3d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Moreover, the non-moving party must present "more than a scintilla of evidence showing that there is a genuine issue for trial." Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322.
Moreover, in deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the fact finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
The Sureties move to dismiss Quinn's Complaint on the following grounds: New Jersey's Bond Act requires that a contractor wait 90 days to file suit after giving notice to the party against whom it asserts a claim. See N.J.S.A. 2A:44-145. The Prime Contract between Hunt and the College and the subcontract between Quinn and Hunt incorporated the provisions of the Bond Act into their general conditions. Quinn filed suit only 85 days after giving notice to the Sureties. As such, the ...