Fought & Company, Inc. v. Walsh/DeMaria Joint Venture V et al, No. 5:2014cv04401 - Document 32 (N.D. Cal. 2014)
Court Description: ORDER GRANTING STIPULATION TO RELATE CASES Signed by Judge Paul S. Grewal on December 24, 2014. 14-cv-03360-PSG and 14-cv-04401-HRL ARE NOW RELATED. (psglc2, COURT STAFF) (Filed on 12/24/2014)
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Fought & Company, Inc. v. Walsh/DeMaria Joint Venture V et al 1 2 3 4 5 6 7 Doc. 32 NEWMEYER & DILLION LLP J. BRIAN MORROW, CBN 191392 brian.morrow@ndlf.com BRANDON A. CLOUSE, CBN 293102 brandon.clouse@ndlf.com 1277 Treat Blvd, Suite 600 Walnut Creek, California 94597 (925) 988-3200; (925) 988-3290 (Fax) Attorneys for Defendants WALSH/DEMARIA JOINT VENTURE V, WALSH CONSTRUCTION COMPANY, THE WALSH GROUP LTD., and DEMARIA BUILDING COMPANY, INC. 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 N EWMEYER & D ILLION LLP SAN JOSE DIVISION 11 12 13 14 THE UNITED STATES OF AMERICA, for the Use and Benefit of J.R. CONKEY & ASSOCIATES, INC., a California corporation; and J.R. CONKEY & ASSOCIATES, INC., a California corporation, 15 16 17 18 19 20 21 CASE NO.: 5:14-cv-03360-PSG STIPULATION TO RELATE CASES AND [PROPOSED] ORDER Plaintiff, vs. WALSH/DEMARIA JOINT VENTURE V, an Illinois joint venture; WALSH CONSTRUCTION COMPANY, AN Illinois corporation; THE WALSH GROUP LTD., an Illinois corporation; DEMARIA BUILDING COMPANY, INC., a Michigan corporation; TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut corporation; and DOES 1 through 10 22 FILE DATE: July 24, 2014 TRIAL DATE SET: No Date Set Defendants. 23 24 STIPULATION TO RELATE CASES 25 Defendants, Walsh/DeMaria Joint Venture V (“Walsh/DeMaria”), Walsh Construction 26 27 28 Company (“Walsh Construction”), The Walsh Group Ltd. (“Walsh Group”), DeMaria Building Company, Inc. (“DeMaria Building”) (collectively “Walsh”), Travelers Casualty and Surety 5010967.1 CASE NO. 5:14-cv-03360-PSG STIPULATION TO RELATE CASES AND [PROPOSED] ORDER Dockets.Justia.com 1 Company of America (“Travelers”) and Liberty Mutual Insurance Company (“Liberty Mutual”) 2 (collectively the “Sureties”), Plaintiffs, The United States of America, for the use and benefit of 3 J.R. Conkey & Associates, Inc. and J.R. Conkey & Associates, Inc. (“Conkey”) and Plaintiff, The 4 United States of America, for the use and benefit of Fought & Company, Inc. Fought & 5 Company, Inc. (“Fought”) (all collectively referred to as the “Conkey and Fought Parties”), by 6 and through their respective counsel of record herein, hereby stipulate and agree as follows: 7 RELATED ACTIONS 8 WHEREAS, Plaintiff, J.R. Conkey, commenced an action entitled J.R. Conkey v. Walsh DeMaria Joint Venture V. et al. (N.D. Cal.) Case No. 5:14-cv-03360-PSG (“Conkey Action”) by 10 N EWMEYER & D ILLION LLP 9 filing a complaint on or about July 24, 2014, in the United States District Court for the Northern 11 District of California, including a cause of action for recovery on Miller Act Payment Bond, 12 pursuant to 40 U.S.C. §§ 3131-3134, relating to monies allegedly owed for work performed at a 13 Veterans Administration (“VA”) hospital in Palo Alto; 14 WHEREAS, Plaintiff, Fought, commenced an action entitled Fought v. Walsh DeMaria 15 Joint Venture V. et al. (N.D. Cal.) Case No. 5:14-cv-04401-HRL (“Fought Action”) by filing a 16 complaint on or about September 30, 2014, in the United States District Court for the Northern 17 District of California, including a Miller Act Payment Bond claim for relief, pursuant to 40 18 U.S.C. §§ 3131 et seq., relating to monies allegedly owed for work performed at a Veterans 19 Administration hospital in Palo Alto; 20 WHEREAS, Defendants, Walsh, filed a counter-claim against Conkey on or about 21 December 8, 2014 in the Conkey Action, inter alia, for failing to defend and indemnify Walsh 22 and its Sureties against the Fought Action and for breaching the Subcontract Agreement; 23 WHEREAS, Defendants, Walsh, filed a cross-claim in the Fought Action against Conkey 24 on or about December 9, 2014 asserting the same claims alleged in its counter-claim against 25 Conkey in the Conkey Action; 26 RELATIONSHIP OF THE ACTIONS 27 28 WHEREAS, Defendant Walsh/DeMaria entered into a contract (the “Prime Contract”) with the United States of America, Department of Veteran Affairs, for the construction of the VA 5010967.1 -2- CASE NO. 5:14-cv-03360-PSG STIPULATION TO RELATE CASES AND [PROPOSED] ORDER 1 Palo Alto Health Care System Capital Asset Improvements, Phase I, Contract No. VA101CFM- 2 C-0168 (“the Project”), also known as the VA Hospital, Palo Alto Polytrauma Blind Rehab 3 Center, 3801 Miranda Avenue, Palo Alto, CA; 4 WHEREAS, on or about October 7, 2011, Walsh/DeMaria entered into and executed a 5 Payment Bond with Travelers, Travelers Bond No. 105669430, and its co-surety, Liberty Mutual, 6 Liberty Mutual Bond No. 013124426, with Walsh as principal and Travelers and Liberty Mutual 7 as Surety; 8 9 N EWMEYER & D ILLION LLP 10 WHEREAS, on or about February 3, 2012, Walsh/DeMaria entered into a written Subcontract Agreement with Conkey, Subcontract Number 212010S01 for certain labor and materials to be provided by Conkey on the Project; 11 12 WHEREAS, on or about October 17, 2012, Conkey entered into a sub-subcontract with Fought for certain labor, materials, and equipment on the Project; 13 CRITERIA FOR RELATED ACTIONS PER L.R. 3-12(a) 14 WHEREAS, Civil Local Rule 3-12 provides that actions are related when: 15 (1) The actions concern substantially the same parties, property, transaction or event; and (2) It appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges; 16 17 18 19 20 WHEREAS, the actions concern substantially the same parties because Walsh, Travelers, Liberty Mutual and Conkey are parties to both actions; 21 WHEREAS, the actions concern substantially the same transaction or event because the 22 lawsuits arise from the same work for building demolition, for the same Project in Palo Alto for 23 the VA, concerning the same contracts between Walsh and the VA, Walsh and Conkey, and 24 Conkey and Fought, and claims are being made under the same bonds issued by the same 25 Sureties. Further, Walsh filed the same claims for relief in its counter-claim and cross-claim 26 against Conkey in the Conkey Action and Fought Action; 27 WHEREAS, there will be an unduly burdensome duplication of labor and expense and 28 conflicting results if the cases are conducted before different judges because Walsh’s counter5010967.1 -3- CASE NO. 5:14-cv-03360-PSG STIPULATION TO RELATE CASES AND [PROPOSED] ORDER 1 claim and cross-claim are the same in both cases. Further, the payment issues are substantially 2 the same in both cases because they concern substantially the same parties, facts and law, as the 3 claims in both actions are pursuant to the Miller Act; 4 5 WHEREAS, all Parties in the Conkey Action and Fought Action agree that these actions should be related; and 6 WHEREAS, the Conkey Action is the lowest numbered case, such that if the cases are 7 related the Fought Action should be reassigned to Magistrate Judge Paul S. Grewal, who is 8 assigned to the Conkey Action, pursuant to L.R. 3-12 (f)(3). THEREFORE, IT IS HEREBY STIPULATED AND AGREED BY THE 10 N EWMEYER & D ILLION LLP 9 COUNSEL SIGNATORIES BELOW, ON BEHALF OF THEIR RESPECTIVE 11 CLIENTS, AND THE PARTIES RESPECTFULLY REQUEST THAT THE 12 COURT ORDER THE FOLLOWING: 13 (1) That the Conkey Action and Fought Action, including related counter-claims and 14 cross-claims, should be related pursuant to L.R. 3-12 because the actions concern substantially 15 the same parties, property, transaction or event and it appears likely that there will be an unduly 16 burdensome duplication of labor and expense or conflicting results if the cases are conducted 17 before different Judges; and 18 (2) That the Clerk reassign the Fought Action to Magistrate Judge Paul S. Grewal 19 pursuant to L.R. 3-12 (f)(3). 20 IT IS SO STIPULATED. 21 Dated: December ____, 2014 MARKS, FINCH, THORNTON & BAIRD, LLP 22 _____________________________ David S. Demian Jeffrey B. Baird Christopher R. Sillari Attorneys for Plaintiffs THE UNITED STATES OF AMERICA, for the Use and Benefit of J.R. CONKEY & ASSOCIATES, INC., a California corporation; and J.R. CONKEY & ASSOCIATES, INC., a California corporation, 23 24 25 26 27 28 5010967.1 -4- CASE NO. 5:14-cv-03360-PSG STIPULATION TO RELATE CASES AND [PROPOSED] ORDER 1 Dated: December ____, 2014 HANSON BRIDGETT LLP 2 3 _____________________________ Robert W. O'Connor John W. Klotsche Attorneys for Plaintiffs THE UNITED STATES OF AMERICA, for the Use and Benefit of FOUGHT & COMPANY, INC., an Oregon corporation; and FOUGHT & COMPANY, INC., an Oregon corporation, 4 5 6 7 8 9 Dated: December____, 2014 NEWMEYER & DILLION, LLP N EWMEYER & D ILLION LLP 10 _____________________________ J. Brian Morrow Attorneys for Defendants WALSH/DEMARIA JOINT VENTURE V, WALSH CONSTRUCTION COMPANY, THE WALSH GROUP LTD., and DEMARIA BUILDING COMPANY, INC. 11 12 13 14 15 Dated: December ____, 2014 CORFIELD FELD LLP 16 _____________________________ Michael A. Corfield Natalie M. Kellogg Attorneys for Travelers Casualty and Surety Company of America and Liberty Mutual Insurance Company 17 18 19 20 21 22 23 24 25 26 27 28 5010967.1 -5- CASE NO. 5:14-cv-03360-PSG STIPULATION TO RELATE CASES AND [PROPOSED] ORDER
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