United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
Before the Court is The Erection Company, Inc.'s ("TEC") Motion for Summary Judgment Against Postel Industries, Inc. ("Postel") on its Counterclaim (dkt. no. 85). For the reasons set forth below, TEC's Motion is denied.
The instant case concerns a dispute over the construction of a new control tower at McCarran International Airport ("the Project"). Clark County leased the property to the Federal Aviation Administration ("FAA") in order to build the control tower. On September 3, 2010, the FAA hired Archer Western Contractors ("Archer") to be the general contractor on the Project. ( See dkt. no. 85 at 3.) Archer hired Postel as the subcontractor for steel fabrication around August 2011, and Postel in turn hired TEC as the subcontractor for steel installation in November 2011. ( See id. at 3-4.)
TEC began work on the Project in November 2011. ( See id. ) TEC states that on February 16, 2012, it issued a Notice of Intent to Stop Work as it had yet to be paid for any of its work. ( See id. at 9.) TEC claims that, realizing Postel was having problems, Archer served Postel with a Notice to Cure on February 20, 2012, and Postel abandoned the Project that same day. ( See id. 9-10.) TEC received a check for $54, 645.30 from Archer on February 27, 2012, and claims that at the time TEC filed its Motion, it was still owed over $230, 000.00. ( See id. at 10-11.) On February 28, 2012, TEC stopped work on the Project. ( See id. at 11.) TEC issued two separate notices of termination.
B. Procedural History
On March 13, 2012, TEC filed its Complaint in the Eighth Judicial District Court in Clark County. Archer filed its Petition for Removal on April 13, 2012. (Dkt. no. 1.) Archer filed its Amended Answer to Plaintiff's Complaint, Counterclaim, Cross-Claim and Third-Party Complaint on May 11, 2012. (Dkt. no. 9.) TEC filed its answer to Archer's Counterclaim on May 25, 2012 (dkt. no. 23), Travelers filed its answer on July 3, 2012 (dkt. no. 26), and Postel filed its answer September 19, 2013 (dkt. no. 27). Postel's answer also included its own counterclaim, cross-claim, and third party complaint. TEC answered Postel on October 3, 2012 (dkt. no. 35), Travelers answered on October 9, 2012 (dkt. no. 36), and Archer answered on December 6, 2012 (dkt. no. 37). On February 11, 2013, the Court granted TEC's motion to file an amended complaint against Archer and Postel (dkt. no. 47) and an amended complaint against Travelers (dkt. no. 48).
TEC's Motion seeks summary judgment against Postel on its counterclaim for breach of contract. (Dkt. no. 85.) While TEC's Motion was exclusively against Postel, Archer has demonstrated that the Court's consideration of TEC's affirmative defense to Postel's breach of contract counterclaim would have significant implications for Archer's breach of contract counterclaim. The Court has considered the Motion and exhibits (dkt. nos. 85, 86), Postel's Response (dkt. no. 88), Archer's Response (dkt. no. 96), TEC's Reply (dkt. no. 107), and the parties' arguments at the hearing held on March 11, 2013 (dkt. no. 215).
III. MOTION FOR SUMMARY JUDGMENT
A. Legal Standard
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits "show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). "The amount of evidence necessary to raise a genuine issue of material fact is enough to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) ( quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).
The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, " Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is ...