United States District Court, D. Nevada
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).
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).
instant action involves a contractual dispute between a
contractor and subcontractor.
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.
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.
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).
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).
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.
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).
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.
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
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).
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.
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 versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
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.
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.
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 ...