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United States v. Alpha Energy and Electric

United States District Court, D. Nevada

July 22, 2019

UNITED STATES OF AMERICA, for the use and benefit of WELLS CARGO, INC., Plaintiff,
v.
ALPHA ENERGY AND ELECTRIC, et al., Defendants.

          ORDER

          JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE

         Presently 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).

         Also 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).

         Also 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).

         Also 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).

         I. Facts

         This 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).

         On 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.

         Wells 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.

         Wells 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. 39-9).

         At some 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).

         On 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.

         On June 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).

         Now, 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 ...


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