United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
Western Surety Company, as assignee of N-Powell, brings this
action pursuant to the Miller Act, 40 U.S.C. §§
3131-34, against Defendants Hudson Insurance Company and
M.E.R.I.T., Inc. Plaintiff alleges, inter alia, that
Defendants owe Plaintiff an unpaid sum of $232, 359.06, plus
interest, under the Miller Act. The Miller Act allows
subcontractors who have “furnished labor or
material” to a federal construction project to bring
suit to recover any unpaid amounts owed to them. 40 U.S.C.
§ 3133(b)(1). A Miller Act claim must be brought
“no later than one year after the day on which the last
of the labor was performed or material was supplied.”
40 U.S.C. § 3133(b)(4).
M.E.R.I.T. now moves for partial summary judgment on
Plaintiff's Miller Act claim, asserting that
Plaintiff's claim is time-barred because it was filed
outside of the Miller Act's one-year statute of
limitations. Plaintiff opposes the motion. For the reasons
set forth below, Defendant's motion for partial summary
judgment is DENIED.
is a commercial construction contractor that performs
construction work on public and private construction
projects. Named Plaintiff Western Surety Co. is the contract
surety for N-Powell, and the assignee of N-Powell's
claims against Defendants.
Defendant Hudson Insurance Company is the payment bond surety
for Defendant M.E.R.I.T. Moving Defendant M.E.R.I.T.
(hereinafter “Defendant”) is a commercial
construction contractor who was awarded a contract by the
United States Army Corps of Engineers (“USACE”),
and subsequently entered into a subcontract agreement with
Plaintiff for labor and materials for that project.
following facts are undisputed unless otherwise noted.
April 2014, Defendant was awarded a contract by the USACE for
the maintenance dredging of Shoal Harbor and Compton Creek in
Belford Township, New Jersey (hereinafter, “the
Project”). ECF No. 30 (Am. Compl.) ¶ 13.
entered into a subcontract with Plaintiff in which Plaintiff
agreed to provide a portion of the labor and materials for
the Project. ECF No. 37, Ex. A (Subcontract). Under the
subcontract, Plaintiff was to perform all work identified in
a work proposal Plaintiff had submitted to Defendant, and all
work “as per Contract W912DS-14-C-0013.”
Id. The time of performance was also “as per
Contract W912-DS-14-C-0013.” Id. Plaintiffs
Proposal included base bid work, option work, and providing
miscellaneous supplies. ECF No. 37, Ex. B. The Project was
initially set to conclude sometime in 2014; however, due to
several delays in work and additional option work and change
orders agreed upon by both parties, the project end date was
repeatedly extended. See, e.g.., ECF No. 37., Ex. D,
pp. 36 (January 2015 change order), 40-43 (April 2015 revised
option work) 62-66 (Extra work letters). On March 29, 2016,
Plaintiff submitted a “proof of claim” for
payment under the surety payment bond to Defendant,
identifying June 25, 2015, as the last day labor was
performed under the subcontract. Id. pp. 2-4.
parties' key point of dispute is when Plaintiffs last day
of work occurred for purposes of the statute of limitations
under the Miller Act. The present action was filed on June
22, 2016, so Plaintiffs last day of work must have been on or
after June 22, 2015 in order for the action to be timely.
asserts that Plaintiffs last day of work was no later than
June 12, 2015. ECF No. 37-2 (Def SOF) ¶¶ 5-6. In
support of this contention, Defendant provides, inter
alia, the following evidence:
• A Certified Payroll Report, signed and certified by
Plaintiffs Payroll Administrator, showing work billed through
June 12, 2015, and marked with a handwritten