United States District Court, D. Nevada
UNITED STATES OF AMERICA, for the use and benefit of WELLS CARGO, INC., Plaintiff,
ALPHA ENERGY AND ELECTRIC, et al., Defendants.
C. MAHAN, UNITED STATES DISTRICT JUDGE
before the court is defendants/third party plaintiffs Alpha
Energy and Electric, Inc. ("Alpha Energy") and
American Contractors Indemnity Company's ("American
Contractors") motion to consolidate. (ECF No. 57).
Plaintiff United States of America for the use and benefit of
Wells Cargo, Inc. ("Wells Cargo"), third-party
defendant Southwestern Construction
("Southwestern") and cross claimant/third-party
defendant Northcon, Inc. ("Northcon") filed
separate responses. (ECF Nos. 60, 63, 65). Alpha Energy and
American Contractors filed a separate reply to each response.
(ECF Nos. 72, 73, 74).
before the court is Alpha Energy's motion to stay case.
(ECF No. 56). Wells Cargo, Southwestern, and Northcon filed
separate responses (ECF Nos. 61, 62, 66), to which Alpha
Energy filed separate replies. (ECF Nos. 69, 70, 71).
before the court is Wells Cargo's motion for summary
judgment. (ECF No. 45). Alpha Energy filed a response (ECF
No. 47), to which Wells Cargo replied (ECF No. 52).
before the court is Alpha Energy's motion for summary
judgment. (ECF No. 39). Wells Cargo filed a response (ECF No.
44), to which Alpha Energy replied (ECF No, 47).
action arises from a contract dispute involving a federal
construction project on Nellis Air Force Base in Las Vegas,
Nevada. (ECF No. 1). On September 30, 2016, the United States
Army Corps of Engineers ("USACE") entered into a
contract with Alpha Energy to build an additional/alteration
family campground ("FAMCAMP"). (ECF No. 39-2).
Seven days later, Alpha Energy obtained a Miller Act payment
bond with a penal sum of $4, 730, 350, 000 for the FAMCAMP
project. (ECF No. 44).
March 30, 2017, Alpha Energy subcontracted landscaping and
asphalt paving work to Southwestern in exchange for $1, 250,
000.00. (ECF Nos. 39, 39-3). Southwestern then subcontracted
certain asphalt paving work to Wells Cargo ("Wells Cargo
subcontract"). (ECF No. 39-3). The Wells Cargo
subcontract was based on two signed proposals. The first
proposal provided a bid of $16, 000.00 for patching work.
(ECF No. 44). The second proposal provided a base bid in the
amount of $328, 164.00 and two onsite options totaling $84,
755.20. (ECF Nos. 39-3, 44). The proposals also provide that
each additional mobilization costs $3, 000.00. Id.
Cargo performed the asphalting work from August 2017 to
December 15, 2017, and billed Southwestern $437, 919.20. (ECF
Nos. 39-5, 39-7). The bill constituted the total cost for the
patching work, the base bid, both onsite options, and three
additional mobilizations. Id. Southwestern paid
Wells Cargo only $304, 104.44. Id.
Cargo maintained that Southwestern owed $134, 814.76 under
the Wells Cargo subcontract and prepared a bond claim against
Alpha Energy for that amount. (ECF No. 39-6). On March 12,
2018, Wells Cargo sent a ninety-day notice of bond to 1000 E.
34th Street, Kansas City, Missouri 64109-1808, which was the
address that Alpha Energy provided in its Miller Act payment
bond. (ECF Nos. 39-8, 44). On March 15, 2018, the United
States Postal Service ("USPS") made an unsuccessful
delivery attempt and eventually returned the notice. (ECF No.
unknown time, Wells Cargo discovered that the address on the
Miller Act payment bond was incorrect. On March 13, 2018,
Wells Cargo sent a second ninety-day notice of bond to Alpha
Energy's actual address at 1100 E. 34th Street, Kansas
City, Missouri 64109- 1808. See (ECF No. 39-10). On
March 16, 2019, which was ninety-one days after Wells Cargo
completed the asphalting work, USPS made another unsuccessful
delivery attempt and eventually returned the notice.
Id. Alpha Energy did not learn about the bond claim
until March 19, 2019, when its surety's representative
received Wells Cargo's claim. (ECF No. 39-2).
November 13, 2018, Alpha Energy and Northcon submitted a
request for equitable adjustment ("REA") with USACE
to increase the general contract price by $421, 748.36. (ECF
No. 56-7). Alpha Energy represents that this requested
adjustment includes the amount that Southwestern owes Wells
Cargo under the Wells Cargo subcontract. (ECF No. 56). The
record does not indicate whether the federal government has
rendered a decision on the REA.
28, 2019, Wells Cargo initiated this action. (ECF No. 1). In
the amended complaint, Wells Cargo asserts three causes of
action: (1) violation of the Miller Act, 40 U.S.C. §
3131 et seq., against all defendants; (2) unjust
enrichment against Alpha Energy and Southwestern; and (3)
breach of contract against Southwestern. (ECF No. 41).
Thereafter, the parties filed complaints asserting various
third-party claims, counterclaims, and crossclaims. (ECF Nos.
6, 15, 27).
Alpha Energy and American Contractors move to consolidate
United States of America For the Use and Benefit of LV
Restoration & Plumbing, Inc. v. Alpha Energy &
Electric, Inc., et al, case number 2:18-cv-01510-KJD-VCF
(hereinafter "IF Restoration v. Alpha
Energy") with this action. (ECF No. 57). Alpha
Energy also moves to stay case pending its request for
equitable adjustment before the USACE. (ECF No. 56). Lastly,
Alpha Energy and Wells ...