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 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).
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).
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.
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).
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.
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.
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).
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).
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.
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).
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).
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 ...