RAMONA EQUIPMENT RENTAL, INC., for the use of the United States on behalf of a California corporation, Plaintiff-Appellee,
CAROLINA CASUALTY INSURANCE COMPANY, a Florida corporation; CANDELARIA CORPORATION, an Arizona corporation; OTAY GROUP, INC., a California corporation, Defendants-Appellants
Argued and Submitted, Pasadena, California October 11, 2013.
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:08-cv-01685-H-MDD. Marilyn L. Huff, District Judge, Presiding.
The panel affirmed the district court's judgment after bench trial in favor of the plaintiff in an action under the Miller Act.
The plaintiff alleged that a subcontractor on a federal project failed to pay for equipment rented on an open book account. The panel held that the plaintiff's notice of demand, served on the prime contractor within ninety days of the last day on which the plaintiff furnished the equipment, was timely as to equipment furnished more than ninety days before the notice. Agreeing with the First, Fourth, and Fifth Circuits, the panel held that if all the goods in a series of deliveries by a supplier on an open book account are used on the same government project, then the ninety-day notice is timely as to all of the deliveries if it is given within ninety days from the last delivery.
The panel also affirmed the district court's determination of when the plaintiff's duty to mitigate damages arose, as well as the district court's award of contractual prejudgment interest.
Dissenting, Judge Erickson wrote that he would reverse the district court's judgment because, in light of the Miller Act notice provision's purpose of protecting the general contractor and its surety, the plaintiff's ninety-day notice was not timely as to equipment furnished more than ninety days before the notice. Judge Erickson wrote that he also would reverse as to mitigation of damages and prejudgment interest.
Robert J. Berens (argued) and Adam D. Melton, Phoenix, Arizona, for Defendants-Appellants.
James D. Crosby (argued) and Leah A. Plaskin, Klinedinst PC, San Diego, California, for Plaintiffs-Appellees.
Before: Richard A. Paez and Andrew D. Hurwitz, Circuit Judges, and Ralph R. Erickson, Chief District Judge.[*]
PAEZ, Circuit Judge: