United States District Court, D. Nevada
UNITED STATES FOR USE AND BENEFIT OF SEQUOIA ELECTRIC, LLC and SEQUOIA ELECTIC, LLC, Plaintiff(s),
THE GUARANTEE COMPANY OF NORTH AMERICA USA, Defendant(s).
before the court is defendant Guarantee Company of North
America USA's (“GCNA”) motion for partial
summary judgment on the question of whether
“[p]laintiff's claim for attorney's fees and
interest must be denied as a matter of law.” (ECF No.
22 at 1). Plaintiff Sequoia Electric, LLC
(“Sequoia”) filed a response (ECF No. 23), and
defendant filed a reply (ECF No. 26).
initiated this suit in pursuit of money allegedly owed in
connection with its subcontracting work on the “Kyle
Canyon Picnic Area Reconstruction Project.” (ECF No. 1
at 3). Plaintiff claims that general contractor Barajas &
Associates, Inc. (“Barajas”) acquired a Miller
Act payment bond from GCNA. (Id.). Barajas later
filed for bankruptcy, and plaintiff allegedly understood that
GCNA would assume the completion of that project and
Barajas's corresponding obligations. (Id.).
motion, defendant asserts that plaintiff, after the
completion of the project, “unilaterally issued change
orders in the total amount of $100, 463.64.” (ECF No.
22 at 2). Specifically, defendant now challenges change order
13's request for attorney's fees and change order
14's request for prejudgment interest. (Id.).
Defendant argues that attorney's fees are precluded as a
matter of law both because of the Supreme Court's
decision in F.D. Rich Co. v. United States for Use of
Indus. Lumber Co., 417 U.S. 116 (1974), and because no
contract term exists allowing Sequoia to recover
attorney's fees. (ECF No. 22).
change order 13, plaintiff responds that Barajas agreed to
pay plaintiff for the change orders and that defendant's
motion is premature for insufficient evidence of contract
terms. (ECF No. 23). Next, plaintiff contests the application
of F. D. Rich Co. because the instant case is not an
exception to the Miller Act. Finally, plaintiff alleges that
Nevada Revised Statute (“NRS”) 18.010 applies in
the instant case, which may allow attorney's fees
“[w]hen the prevailing party has not recovered more
than $20, 000.” NRS 18.010; see also (ECF No.
change order 14, defendant asserts that these fees are
“not ascertainable with sufficient certainty, ”
the contract does not permit their collection, and Nevada
statutory law precludes payment. (ECF No. 22 at 5-6) (citing
NRS 17.130(2)). Plaintiff takes issue with the
characterization of this sum as “prejudgment interest,
” alleging instead that “[t]hese items are direct
expenses S[equoia] incurred because B[arajas] did not pay
S[equoia].” (ECF No. 23 at 7).
reply reiterates its previous argument; however, it also
offers a portion of the subcontract stating that a
subcontractor must offer a change notice request within 10
days of discovering an underlying change. (ECF No. 26).
Accordingly, it argues, these change orders are invalid.
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims . . . .” Celotex Corp.
v. Catrett, 477 U.S. 317, 323- 24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
non-moving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, the court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial.” C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000).
Moreover, “[i]n such a case, the moving party has the
initial burden of establishing the absence of a genuine issue
of fact on each issue material to its case.”
contrast, when the non-moving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the non-moving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the non-moving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.