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United States for Use and Benefit of Sequoia Electric, LLC v. Guarantee Co. of North America USA

United States District Court, D. Nevada

February 1, 2017



         Presently 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).

         I. Introduction

         Sequoia 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.).

         In its 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).

         Regarding 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. 23).

         Regarding 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).

         Defendant's 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. (Id.).

         II. Legal Standard

         The 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).

         For 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.

         In 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.” Id.

         By 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).

         If the 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. 1987).

         III. ...

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