United States District Court, D. Nevada
THE UNITED STATES OF AMERICA, for the Use of LV RESTORATION & PLUMBING, INC., a Nevada corporation, Plaintiff,
NORTHCON, INC, et al., Defendants.
J. DAWSON UNITED STATES DISTRICT JUDGE.
are several motions currently pending before the Court. First
is defendants Northcon, Inc. and Berkley Insurance
Company's motion to drop parties or sever claims (#34).
Co-defendants Alpha Energy & Electric, Inc. and American
Contractors Indemnity Company joined the motion (#36).
Plaintiff LV Restoration & Plumbing, Inc. opposed the
motion (#37), and Northcon replied (#39). Magistrate Judge
Ferenbach reviewed the motion and recommends that this Court
grant the motion to sever (#42).
are two motions filed by LV Restoration. The first is a
motion to amend or correct its complaint (#44) to which only
Northcon and Berkley responded (#47), and LV Restoration
replied (#44). The second is a motion to modify scheduling
order (#49). Again, Northcon and Berkley responded (#54), and
LV Restoration replied (#56).
co-defendants Alpha Energy and American Contractors Indemnity
jointly filed a motion to stay this case (#57) or in the
alternative to consolidate cases (#58). Both the plaintiff,
LV Restoration (##60, 64), and co-defendants Northcon and
Berkley (##59, 63) have responded to those motions, and Alpha
Energy replied (##65, 66).
the Court ruled on those motions, LV Restoration settled with
Alpha Energy and American Contractors Indemnity. Those
parties stipulated to dismissal (#69). Northcon objected to
the dismissal (#70). However, the Court granted the
stipulation over Northcon's objection and ordered Alpha
Energy and American Contractors dismissed (#72).
dismissal shifts the landscape of these pending motions. To
start, it moots Alpha Energy's pending motion to stay
case (#57) and its motion to consolidate cases (#58). The
Court need not consider the motions of parties no longer
involved in the case. The Court therefore denies those
motions as moot. The dismissal also moots Northcon's
motion to sever or drop parties. Given that the Court
dismissed the parties that Northcon asked the Court to drop,
there is no reason to decide that motion on its merits.
Therefore, it too is dismissed as moot. That leaves only LV
Restoration's motions to modify the scheduling order
(#49) and to amend its complaint (#44). For the reasons
below, the Court also denies LV Restoration's motion to
modify the scheduling order (#49) and with it the motion to
a dispute over outstanding change orders on two public works
projects on Nellis Air Force Base. The first project-called
the “Saber Project”-involved the construction and
renovation of two buildings on the base. The buildings are
known as “Building 61664” and “Building
2102.” Def's Mot. to Sever 3 (#34). Northcon served
as prime contractor for the Saber Project and oversaw work on
both buildings. Id Northcon secured payment bonds
for both buildings under the Miller Act. Co-defendant Berkley
Insurance Company provided surety for the payment bonds. LV
Restoration was subcontractor to Northcon. Id It
claims that Northcon refused to pay over $165, 000 in
outstanding change orders that arose during construction.
Compl. 3-4 (#1).
other public works project is the “FamCamp
Project.” That project was to build a “Family
Camp RV Park” on Nellis Air Force Base. Def's Mot.
to Sever 3 (#34). Alpha Energy was the prime contractor on
the FamCamp Project with LV Restoration as its subcontractor.
Id. Alpha Energy also secured a Miller Act payment
bond for the construction. Id Co-defendant American
Contractors Indemnity Company is surety of that payment bond.
Id at 3-4. Like the Saber Project, LV Restoration
claims that Alpha Energy refuses to pay outstanding change
after LV Restoration brought this case, Northcon moved to
sever claims or drop parties (#34). At bottom, Northcon
wished to separate LV Restoration's claims arising out of
the Saber project from those arising out of the FamCamp
project. See id. Every defendant joined
Northcon's motion. Magistrate Judge Ferenbach found that
the Saber Project claims and FamCamp Project claims arose out
of similar fact patterns but did not share enough common
facts to join them in the same suit. R&R 4 (#42). He
recommends that this Court sever the Saber Project and
FamCamp Project claims. Id To escape an order
severing claims or dropping parties, LV Restoration filed a
motion to amend its complaint (#44). When it discovered that the
motion to amend was untimely,  LV Restoration moved to modify
the scheduling order (#49).
Alpha Energy and American Contractors moved to stay this case
(#57), or in the alternative, to consolidate (#58) it with a
case in this district that also arises out of the FamCamp
Project. Def.'s Mot. to Consolidate (referencing
United States of America for the Use of Wells Cargo,
Inc., v Alpha Energy and Electric, Inc., et al, No.
2:18-cv-1182-JCM-CWH (D. Nev. June. 28, 2018)). Shortly
thereafter, LV Restoration settled with Alpha Energy and
American Contractors, and the Court dismissed those parties.
Order of Dismissal (#72).
Restoration moves to modify the parties' prior scheduling
order because it wishes to amend its complaint after the
deadline to do so has passed. It claims that Northcon's
discovery responses revealed facts that support an additional
claim against Northcon for unjust enrichment arising out of
the FamCamp Project. Namely, LV Restoration argues that in
addition to being general contractor for the Saber Project,
Northcon was project manager on the FamCamp construction. See
Pl.'s Mot. to Amend 2 (#44). LV Restoration brings its
motion to amend under FRCP 15(a), which created a lax
standard to amend a complaint. Under rule 15(a), amendment is
“freely given” unless it would prejudice the
opposing party, is sought in bad faith, is futile, or would
create undue delay. Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 607 (9th Cir. 1992).
argues that rule 15(a) is inapplicable here because the Court
has already issued a scheduling order. That order, it argues,
subjects LV Restoration to the more demanding
“good-cause” standard of FRCP 16(b). Northcon
claims that LV Restoration has not met that standard because
it did not diligently attempt to modify the scheduling order.
The argument hinges on LV Restoration's knowledge that
Northcon had limited administrative authority over ...