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United States v. R.E.P. Electric, Inc.

United States District Court, W.D. Washington, Tacoma

February 7, 2017

UNITED STATES OF AMERICA for the use of NORTH COAST ELECTRIC COMPANY, a Washington corporation, Plaintiff,
v.
R.E.P. ELECTRIC, INC., a Washington corporation, TUNISTA CONSTRUCTION, LLC, an Alaska limited liability company, LIBERTY MUTUAL INSURANCE COMPANY, a foreign corporation, WESTERN SURETY COMPANY and Electrical Contractor's Bond No. 939460009, Defendants.,

          ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN United States District Judge.

         This matter comes before the Court on Plaintiff United States of America for the use of North Coast Electric Company's (“North Coast”) Motion for Summary Judgment regarding Ft. Lewis Payment Bond Claim against Defendants Tunista Construction, LLC (“Tunista”) and Liberty Mutual Insurance Company (“Liberty Mutual”) (Dkt. 58) and Defendants' opposition to the motion, or in the alternative, motion to continue the motion for summary judgment under Fed.R.Civ.P. 56(d) (Dkt. 66). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

         PROCEDURAL HISTORY

         On June 2, 2016, the Plaintiff filed this case against Defendants Tunista and Liberty Mutual and others for the non-payment of materials supplied for various construction projects on Joint Base Lewis McChord (“JBLM”). Dkt. 1. Claims against Defendants S.M. Wilson & Co. and Federal Insurance Company have been dismissed (Dkt. 45) as have the claims against Defendants Coburn Contractors, LLC and Hartford Fire Insurance Company (Dkt. 52). The caption has been amended to exclude these parties; all future pleadings from the parties should reflect the same.

         On October 19, 2016, a default declaratory judgment, in Plaintiff's favor, was entered against Defendant R.E.P. Electric, Inc. (“R.E.P.”). Dkt. 54. Defendant R.E.P. is in receivership. Dkt. 50. Although Defendant R.E.P. did not answer or otherwise respond to Plaintiff's complaint, it answered the cross claims asserted by Defendant Tunista and asserted counterclaims against Defendant Tunista. Dkt. 57.

         Now pending is Plaintiff's motion for summary judgment against Defendants Tunista, the general contractor, and Liberty Mutual, Tunista's insurance company, for a principal balance of $9, 910.98 for materials supplied and for interest, costs and attorneys' fees. Dkt. 58. For the reasons provided, the motion for summary judgment (Dkt. 58) should be renoted to May 5, 2017.

         RELEVANT FACTS

         On May 17, 2013, Tunista entered into a contract with the United States Army Corps of Engineers (“Army”) for the construction of a dining facility at JBLM (“project”). Dkt. 30, at 5. Tunista, as principal, and Liberty Mutual, as surety, provided Payment Bond No. 023023242 in the amount of $9, 432, 860.00 to the United States. Dkt. 58-2, at 3-4.

         Around September 12, 2013, Tunista subcontracted with R.E.P. to provide certain labor and electrical materials for the project. Dkts. 57, at 3; 66-1, at 1; 66-2, at 4-46. R.E.P., as principal, and Western Surety Company, as surety, entered in to performance and payment bonds, in favor of Tunista. Dkt. 66-2, at 47-50.

         According to North Coast, as evidenced by North Coast's quote (including its Standard Terms and Conditions) and R.E.P.'s purchase orders, North Coast agreed to supply, and R.E.P. agreed to purchase, certain electrical materials for the project. Dkt. 58-1, at 4-15. According to North Coast's Standard Terms and Conditions, payment was due 30 after purchase, R.E.P. agreed to pay 18% per annum on past due amounts, and parties agreed that if litigation is brought, the prevailing party is entitled to reasonable attorneys' fees and costs. Dkt. 58-1, at 15.

         On December 4, 2013, North Coast notified Tunista that it would be furnishing R.E.P. materials for use on the project. Dkt. 58-1, at 16.

         According to North Coast's credit manager, between February 17, 2015 and July 1, 2015, North Coast provided R.E.P. project materials, which were delivered to the project site. Dkt. 58-1, at 3. The last delivery of materials was on July 1, 2015. Dkt. 58-1, at 3. The unpaid principal balance was $9, 910.98. Dkt. 58-1, at 3; and 17-28 (copies of the invoices). Despite demands for payment, R.E.P. did not pay North Coast. Dkt. 58-1, at 3.

         On September 24, 2015, North Coast notified Tunista that, under 40 U.S.C. § 3133, it has “a claim for electrical materials in the amount of $9, 910.98, plus accruing interest at the rate of 18% from September 22, 2015, until paid, against the payment bond posted by Tunista . . . for the [JBLM dining facility project].” Dkt. 58-2, at 5. Plaintiff further notified Tunista that North Coast provided the materials to R.E.P. Id.

         Tunista maintains that Western Surety (R.E.P.'s surety) should pay any amount due to North Coast. Dkt. 66-2, at 2. Tunista tendered North Coast's claims to Western Surety for defense and indemnity, which it has not yet accepted because it ...


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