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Buesing Corp. v. Helix Electric of Nevada LLC

United States District Court, D. Nevada

July 13, 2018

BUESING CORPORATION, Plaintiffs,
v.
HELIX ELECTRIC OF NEVADA, LLC, Defendants.

          ORDER

         Presently before the court is defendant/counter claimant Helix Electric of Nevada's (“Helix”) motion for partial summary judgment. (ECF No. 33). Plaintiff/counter defendant Buesing Corporation (“Buesing”) filed a response (ECF No. 40), to which Helix replied (ECF No. 44).

         Also before the court is Buesing's motion for partial summary judgment. (ECF No. 41). Helix filed a response (ECF No. 45), to which Buesing replied (ECF No. 48).

         I. Facts

         The instant action involves a contractual dispute between a contractor and subcontractor.

         On August 7, 2015, Helix and Buesing entered into a subcontract (“the contract”) for the purpose of pile driving for a solar project. (ECF No. 33, Ex. 3). Pursuant to the contract, Buesing was to perform its work in accordance with certain project documents including the SNWA Ninyo & Moore pile test (“the pile test”). Id. The pile test detailed soil and site conditions. Id.

         On August 31, 2015, Buesing began working on the solar project. Id. at 4. On September 10, 2015, Buesing informed Helix that it encountered differing site conditions and was therefore unable to meets its contractual requirements. Id. at Ex. 5.

         On September 23, 2015, a contract modification in the amount of $130, 000 was signed by the parties. Id. at Ex. 6. The modification was for “pulling and drilling for remediation of piles.” Id. Despite the modification, Buesing remained unable to meet its contractual requirements. (ECF No. 41, Ex. 6).

         On October 2, 2015, due to Buesing's ongoing difficulties with pile installation, Helix and Buesing agreed to temporarily stop installation. Id. at Ex. 14. On October 9, 2015, Buesing advised Helix that it was unable to meet its contractual obligations. (ECF No. 33, Ex. 7).

         On October 12, 2015, Helix gave Buesing written notice of default. Id. at Ex. 8. Helix claimed that Buesing needed to continue pulling piles and remediate the out of tolerance piles. Id.

         On October 16, 2015, Buesing responded to the notice of default. (ECF No. 41, Ex. 18). Buesing claimed that it was unable to complete its required work because it could not continue pulling piles while simultaneously remediating the out of tolerance piles. (ECF No. 33, Ex. 10).

         Additionally, on October 16, 2015, Helix gave Buesing notice that it was terminating the contract for failure to perform and job abandonment. Id. at Ex. 19. On November 24, 2015, Buesing formally contested Helix's assertion that it had failed to perform or had abandoned the project. Id. at Ex. 21.

         On June 6, 2016, Buesing filed a complaint asserting three related causes of action: breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory judgment. (ECF No. 1). On July 8, 2016, Helix answered and counterclaimed asserting three causes of action against Buesing: breach of contract, breach of the implied covenant of good faith and fair dealing, and misrepresentation. (ECF No. 8).

         II. Legal Standard

         The Federal Rules of Civil Procedure authorize 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 preclude 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 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

         In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex, 477 U.S. at 324.

         At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See Id. at 249-50.

         III. Discussion

         In its motion for partial summary judgment, Helix contends that it is entitled to summary judgment on Buesing's causes of action. (ECF No. 33). Moreover, Helix argues that it is entitled to summary judgment on its breach of contract and breach of the implied covenant of good faith and fair ...


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