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

United States District Court, D. Nevada

March 14, 2018

UNITED STATES FOR USE AND BENEFIT OF SEQUOIA ELECTRIC, LLC and SEQUOIA ELECTIC, LLC, Plaintiff(s),
v.
THE GUARANTEE COMPANY OF NORTH AMERICA USA, Defendant(s).

          ORDER

         Presently before the court is defendant The Guarantee Company of North America USA (“GCNA”) motion for summary judgment. (ECF No. 47). Plaintiff Sequoia Electric, LLC (“Sequoia”) filed a response (ECF No. 53), to which defendant replied (ECF No. 57).

         Also before the court is defendant's stipulation to extend time to file a reply in support of its motion for summary judgment. (ECF No. 54).

         I. Facts

         This suit relates to defendant's bond obligations to plaintiff, a subcontractor who worked 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. The subcontract between plaintiff and Barajas was initially for $183, 746.20. (ECF No. 53). Plaintiff and Barajas approved a change order (#1) for $60, 500, which meant the total amount payable to plaintiff under the contract was $244, 246.20. Id.

         Plaintiff completed the majority of its deliverables under the subcontract by July of 2013, with the exception of running certain electrical wires and energizing the electrical system. Id. Between July and October of 2013, a fire, government furloughs, and flooding stalled work on the project. Id. The flooding caused damage to work already performed by plaintiff. Id. Plaintiff resumed work on the project in November of 2013, and completed its work by December 17, 2013. Id. Barajas and GCNA combined to pay defendant $244, 246.20 based on the original contract and change order #1. (ECF No. 47).

         On November 11, 2013, plaintiff submitted a request for extra costs to Barajas. (ECF No. 53). Barajas agreed to a request a change on behalf of plaintiff from the U.S. Forest Service (“the Forest Service”) on January 20, 2014 for the first three line items (remobilization, the bollard work referenced in change order #2 and the retrenching addressed in change order #3). (ECF No. 57-2). Barajas's division manager for construction (Richard Cross) stated in his deposition that he did not include the additional line items in the request for modification because there was a dispute as to who should bear the costs of flood damage. (ECF No. 53-2).

         On January 28, 2014, the Forest Service denied the change request. (ECF No. 57-2). The Forest Service cited Barajas's failure to timely request the changes pursuant to FAR 52.243-4. Id.

         On April 18, 2014, plaintiff filed 13 change orders that are the subject of the instant litigation. Change order #2 related to bollard installation, and plaintiff completed this work on or before May 16, 2013. (ECF No. 47-7 at 13-17). Change order #3 related to rerouting NV Energy conduits because of the relocation of an energy transformer, and plaintiff completed this work on or before May 10, 2013. Id. at 18-19; (ECF No. 57-1). The other change orders relate to work performed in November of 2013. (ECF No. 47-7). Defendant refused to pay plaintiff based on the change orders, and plaintiff brought the instant action to recover payments allegedly due pursuant to the payment bond. (ECF No. 1).

         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 a 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 nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Id.

         In determining summary judgment, a court applies a burden-shifting analysis. The moving party must first satisfy its initial burden. “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. In 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.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

         By contrast, when the nonmoving 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 nonmoving 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 nonmoving 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 ...


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