Archer Western Contractors, LLC v. The Erection Company, Inc. et al, No. 2:2017cv03032 - Document 11 (D. Nev. 2018)
Court Description: ORDER granting 9 Stipulation to Stay; The parties will provide a status report of the pending FAA dispute by Tuesday, September 4, 2018, and every forty-five (45) days thereafter. Signed by Chief Judge Gloria M. Navarro on 6/14/2018. (Copies have been distributed pursuant to the NEF - JM)
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Archer Western Contractors, LLC v. The Erection Company, Inc. et al Doc. 11 Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 1 of 8 1 2 3 4 5 6 7 8 9 KURT C. FAUX, ESQ. Nevada Bar No. 003407 WILLI SIEPMANN, ESQ. Nevada Bar No. 002478 JORDAN F. FAUX, ESQ. Nevada Bar No. 12205 THE FAUX LAW GROUP 1540 W. Warm Springs Road, Suite 100 Henderson, Nevada 89014 Telephone: (702) 458-5790 Facsimile: (702) 458-5794 Email: kfaux@fauxlaw.com wsiepmann@fauxlaw.com jfaux@fauxlaw.com Attorneys for Plaintiff Archer Western Contractors, LLC 10 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA THE FAUX LAW GROUP 1540 W. WARM SPRINGS ROAD, SUITE 100 HENDERSON, NEVADA 89014 TEL. (702) 458-5790 11 12 13 ARCHER WESTERN CONTRACTORS, LLC A Delaware foreign limited-liability company 14 Plaintiff, 15 v. 16 THE ERECTION COMPANY, INC., A Washington corporation 17 18 19 CASE NO. 2:17-cv-03032-GMN-NJK STIPULATION TO STAY and ORDER and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, A Connecticut Corporation 20 Defendants. 21 22 Plaintiff, Archer Western Contractors, LLC, (“Archer Western”), and Defendants, The 23 Erection Company, Inc. (“TEC”), and Travelers Casualty and Surety Company of America 24 25 (“Travelers TEC”) 1, (collectively referred to as the “Parties”), by counsel, hereby stipulate to stay 26 27 28 1 Travelers issued payment and performance bonds to both Archer Western and TEC. Travelers’ bonds related to Archer Western are referred to as “Archer Western Travelers”. Travelers’ bonds related to TEC are referred to as “Travelers TEC”. 00051145/ 102 Dockets.Justia.com Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 2 of 8 1 this litigation. This joint stipulation is made for good cause and is not made with any intent to 2 delay these proceedings. This Stipulation is based upon the information and case law provided 3 below. 4 STIPULATION 5 6 I. The Parties seek to stay the pending action for two primary reasons: 7 (a) Archer Western filed this lawsuit due to concerns regarding the expiration of the statute 8 THE FAUX LAW GROUP 9 1540 W. WARM SPRINGS ROAD, SUITE 100 HENDERSON, NEVADA 89014 TEL. (702) 458-5790 INTRODUCTION of limitation; and 10 (b) The resolution of a pending dispute between Archer Western and the Federal Aviation 11 Administration (“FAA”) may resolve this lawsuit and other pending and potential 12 lawsuits as delineated below. 13 14 II. STATEMENT OF THE CASE 15 This litigation is related to and arises from disputes between Archer Western and the FAA 16 regarding the construction of the new Air Traffic Control Tower and Terminal Radar Approach 17 Control at McCarran International Airport, Las Vegas, Nevada (“Project”). It also arises from 18 disputes between Archer Western, its subcontractors, and their subcontractors regarding the 19 assertions of affirmative claims. 20 Archer Western, as general contractor, entered into a prime contract with the FAA, the 21 22 owner, to construct the Project. Archer Western entered into subcontracts with the Gallagher- 23 Kaiser Corporation (“G-K”) and Fisk Electric Company (“Fisk”), wherein G-K was to perform 24 certain mechanical and plumbing work for the Project as a subcontractor to Archer Western, and 25 wherein Fisk was to perform certain electrical work. 26 27 During the Project, the FAA materially altered the character of Archer Western’s work on the Project by, among other things, issuing numerous changes and design revisions – including 28 00051145/ 102 Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 3 of 8 1 changes and design revisions to G-K’s mechanical and plumbing work and Fisk’s electrical work. 2 The FAA’s changes and design revisions are described in detail in Archer Western’s claims 3 4 5 6 The FAA’s numerous changes and design revisions significantly increased Archer Western’s, G-K’s and Fisk’s cost of performing their work. Archer Western contends that it also increased the cost of G-K’s and Fisk’s subcontractors. TEC and Travelers TEC dispute that 8 contention and the contention that Archer Western may seek indemnification for claims by any of 9 G-K’s or Fisk’s subcontractors.. The FAA’s changes and design revisions also impacted Archer 11 THE FAUX LAW GROUP hereto. 7 10 1540 W. WARM SPRINGS ROAD, SUITE 100 HENDERSON, NEVADA 89014 TEL. (702) 458-5790 against the FAA (Notices of Contract Dispute), which are included as part of Exhibit A attached Western’s and G-K’s ability to perform their work in a timely and cost-effective manner. Additionally, Archer Western alleges that the work of Archer Western, its subcontractors, 12 and their lower-tiered subcontractors was affected by significant delays to the entire Project caused 13 14 by TEC, which had been retained by one of Archer Western’s subcontractors to do the steel 15 erection work on the Project. TEC disputes and denies this allegation. While a previous lawsuit 16 between Archer Western, TEC, and Travelers TEC was settled and dismissed, the settlement 17 agreement between the parties exempted claims relating to the Project from G-K and Fisk.2 18 Archer Western and Archer Western Travelers contend that the settlement agreement also 19 exempted claims from G-K and Fisk’s subcontractors. TEC and Travelers TEC dispute that 20 contention. 21 22 Archer Western asserts that G-K and Fisk Electric, subcontractors to Archer Western, have 23 asserted claims against Archer Western and Archer Western Travelers. Archer Western also 24 asserts that subcontractors of G-K have asserted claims against Archer Western and Archer 25 Western Travelers. TEC and Travelers TEC dispute that these claims are exempted from the 26 27 2 28 The dismissed case is The Erection Co., Inc. v. Archer Western Contractors, LLC, et al., Case No. 2:12-cv-00612-MMD-MJK. 00051145/ 102 Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 4 of 8 1 settlement agreement between Archer Western and Archer Western Travelers and TEC and 2 Travelers TEC. 3 4 G-K, has filed a legal action against Archer Western and/or Archer Western Travelers, and this action has been dismissed without prejudice for one primary reason, namely that the pending 5 6 7 action between Archer Western and the FAA will potentially resolve the claims of G-K and of Fisk. Desert Mechanical and Liberty Duct also filed legal actions against Archer Western and/or 8 Archer Western Travelers, which have been stayed. TEC and Travelers TEC dispute that they 9 might have any liability related to those claims and that their actions and/or claims are exempted 10 from the settlement agreement. THE FAUX LAW GROUP 1540 W. WARM SPRINGS ROAD, SUITE 100 HENDERSON, NEVADA 89014 TEL. (702) 458-5790 11 As a result of the FAA’s changes and design revisions, and in accordance with the dispute 12 resolution process in the prime contract, Archer Western submitted its claims for additional 13 14 compensation (Notices of Contract Dispute) to the Office of Dispute Resolution for Acquisitions 15 (“ODRA”). (Exhibit A.) That dispute is pending. ODRA is the sole, statutorily designated 16 tribunal for all contract disputes under the FAA’s management system. 14 CFR Part 17. 17 A substantial portion of the pending claims against Archer Western by its subcontractors 18 relates to claimed delay damages, and, as stated, Archer Western contends that TEC caused 19 substantial delays on the Project, a contention disputed by TEC. Because of statute of limitation 20 concerns, Archer Western asserts that it could not wait until its claim against the FAA was 21 22 resolved to assert a claim against TEC and Travelers TEC but was forced to file the instant lawsuit. 23 However, as the ultimate outcome of Archer Western’s claim against the FAA will have a 24 significant effect on this case and the other pending claims and cases, the Parties seek to stay this 25 action pending the resolution of the ODRA action. 26 27 /// /// 28 00051145/ 102 Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 5 of 8 1 III. LEGAL SUPPORT 2 A. The Legal Standard 3 The “power to stay proceedings is incidental to the power inherent in every court to control 4 the disposition of the causes on its docket with economy of time and effort for itself, for counsel, 5 and for litigants. How this can best be done calls for the exercise of judgment, which must weigh 6 7 competing interests and maintain an even balance.” Landis v. North American. Co., 299 U.S. 248, 8 254-55 (1936). There is no requirement that “before proceedings in one suit may be stayed to 9 abide the proceedings in another, the parties to the two causes must be shown to be the same and 10 the issues identical.” Id. at 254. THE FAUX LAW GROUP 1540 W. WARM SPRINGS ROAD, SUITE 100 HENDERSON, NEVADA 89014 TEL. (702) 458-5790 11 12 “Where it is proposed that a pending proceeding be stayed, the competing interests which will be affected by the granting or refusal to grant a stay must be weighed. Among these 13 14 15 competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly 16 course of justice measured in terms of simplifying or complicating the issues, proof, and questions 17 of law which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 18 (1962). 19 “A trial court may, with propriety, find it is efficient for its own docket and the fairest 20 course for the parties to enter a stay of an action before it, pending resolution of independent 21 22 proceedings which bear upon the case. This rule applies whether the separate proceedings are 23 judicial, administrative, or arbitral in character, and does not require that the issues in such 24 proceedings are necessarily controlling of the action before the court.” Leyva v. Certified Grocers 25 of California, Ltd., 593 F.2d 857, 863-864 (9th Cir. 1979). 26 /// 27 /// 28 00051145/ 102 Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 6 of 8 B. The Present Litigation should be stayed until the dispute between Archer Western and the FAA is resolved. 1 2 3 As stated, this case was filed by Archer Western because of statute of limitation concerns. 4 The case, however, is significantly related to other pending litigation and claims, all of which arise 5 6 7 as described in Exhibit “A”. It is likely that the outcome of that dispute will significantly affect the 8 other pending claims of Archer Western’s subcontractors and sub-subcontractors, and may well 9 cause this case to be dismissed or be consolidated with one of the other cases. In the meantime, 10 THE FAUX LAW GROUP 11 1540 W. WARM SPRINGS ROAD, SUITE 100 HENDERSON, NEVADA 89014 TEL. (702) 458-5790 out of the same Project, with the main dispute being the one between Archer Western and the FAA and because of that likely outcome, the Parties hereto should not be forced to incur significant attorney’s fees and costs. 12 C. The “Competing Interests of Justice” in the Present Matter Support a Stay of this Litigation 13 14 The “competing interests” in the present matter also support a stay of this litigation. See 15 CMAX, Inc., 300 F.2d 265, 268. In the first instance, no possible damage to the Parties or this 16 17 Court will result from the stay, and TEC and Travelers TEC will not be prejudiced by a stay of this 18 litigation. See Id. A stay of the present litigation would only be temporary and would only remain 19 in effect until such time that the ODRA proceedings are exhausted. Once the ODRA proceedings 20 conclude, this litigation can resume, if necessary, and the stay will not result in TEC and Travelers 21 TEC losing any contractual or legal rights. 22 23 24 25 However, if the present litigation is not stayed, the Parties will be prejudiced and will suffer “hardship or inequity.” See Id. Litigating the same issues in this Court and ODRA at the same time would be duplicative and unduly burdensome. If this litigation is not stayed, the Archer 26 Western will incur unnecessary attorneys’ fees and legal costs in having to litigate the same issues 27 simultaneously in different jurisdictions, and TEC and Travelers TEC will incur similar fees and 28 cost. 00051145/ 102 Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 7 of 8 1 Furthermore, if this litigation is not stayed, Archer Western, TEC and Travelers TEC 2 would be forced to litigate issues related to the claims of other contractors and subcontractors, 3 4 whose own actions against Archer Western have been stayed or dismissed. That, in turn, would potentially result in inconsistent outcomes, duplicative proceedings and discovery, and might not 5 6 7 THE FAUX LAW GROUP In fact, this lawsuit, by its very nature, relates to the claims of G-K and Fisk, and indirectly 8 to the dispute between Archer Western and the FAA. If this case is not stayed, Archer Western will 9 in all likelihood move to have it consolidated with one of the other pending lawsuits, because of 10 the assertion of delay damages by one of those plaintiffs. Because those cases are presently stayed, 11 1540 W. WARM SPRINGS ROAD, SUITE 100 HENDERSON, NEVADA 89014 TEL. (702) 458-5790 resolve any of the pending disputes. 12 the ultimate result would be the same. The “orderly course of justice” and the judicial economy of this Court would be enhanced 13 14 if this litigation were stayed and the ODRA proceedings were allowed to proceed to determine the 15 entitlement and measure of Archer Western’s damages resulting from claims by G-K and/or Fisk. 16 Archer Western and Archer Western Travelers also contend that this lawsuit pertains to claims of 17 G-K’s and Fisk’s subcontractors. 18 contention that Archer Western may seek indemnification for claims by any of G-K’s or Fisk’s 19 TEC and Travelers TEC dispute that contention and the subcontractors. Judicial resources and time would be saved if this litigation is stayed because the 20 risk of inconsistent findings and judgments would be avoided. Also, if this litigation is stayed, 21 22 Archer Western could recover damages against the FAA in the ODRA proceedings for these other 23 pending claims and, as a result, these claims against Archer Western could be resolved without the 24 need for this litigation. Even if the ODRA proceedings do not resolve all of the issues between 25 Archer Western and G-K, the ODRA proceedings will at the very least significantly narrow the 26 issues. Nevertheless, if this litigation is stayed, there would be no harm to the Parties as the stay 27 28 00051145/ 102 Case 2:17-cv-03032-GMN-NJK Document 9 Filed 05/25/18 Page 8 of 8 1 could be lifted upon the conclusion of the ODRA proceedings, and the Parties would not incur any 2 fees and cost in the meantime. 3 IV. 4 CONCLUSION Based on the above, the Parties respectfully requests that this Court stay this litigation until 5 6 7 agrees that TEC and Travelers TEC retain any and all defenses which they have to Archer 9 Western’s complaint, and which they could have asserted in a responsive pleading pursuant to the 11 THE FAUX LAW GROUP By agreeing to this Stipulation, TEC and Travelers TEC do not waive and Archer Western 8 10 1540 W. WARM SPRINGS ROAD, SUITE 100 HENDERSON, NEVADA 89014 TEL. (702) 458-5790 the owner related disputes process against the FAA is exhausted. Federal Rules of Civil Procedure. Dated this 25th day of May, 2018. Dated this 25th day of May, 2018. THE FAUX LAW GROUP KEMP, JONES & COULTHARD, LLP /s/ Kurt C. Faux KURT C. FAUX, ESQ Nevada Bar No. 3407 WILLI H. SIEPMANN, ESQ. Nevada Bar No. 2478 JORDAN F. FAUX, ESQ. Nevada Bar No. 12205 1540 Warm Springs, Rd., Ste. 100 Henderson, Nevada 89014 Attorneys for Archer Western Contractors, LLC /s/ Nathanael R. Rulis (with permission) SPENCER H. GUNNERSON, ESQ. Nevada Bar No. 8810 NATHANAEL R. RULIS, ESQ. Nevada Bar No. 11259 3800 Howard Hughes Parkway, 17th Floor Las Vegas, NV 89169 Telephone: (702) 385-6000 Attorneys for The Erection Company and Travelers Casualty & Surety Company of America 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER IT IS HEREBY ORDERED that the above Stipulation to Stay, (ECF No. 9), is GRANTED. IT IS FURTHER ORDERED that the parties will provide a status report of the pending FAA dispute by Tuesday, September 4, 2018, and every forty-five (45) days thereafter. 25 26 27 28 14 day of June, 2018. DATED this ___ _________________________________________ Gloria M. Navarro, Chief Judge U.S. DISTRICT COURT 00051145/ 102
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