UNITED STATES OF AMERICA v. PENN NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, No. 2:2011cv03470 - Document 19 (D.N.J. 2012)

Court Description: OPINION fld. Signed by Judge Claire C. Cecchi on 3/28/12. (sr, )

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NOT FOR PUBLICATION UNITED STATES DISTRiCT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA For the use and benefit of STAN AND SON CONSTRUCTION, L.L.C. Plaintiff, Civil Action Nos. lI-03470(CCC) 1i-04607(CCC) 1 1-04503(CCC) PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY OPINION Defendant. CECCIII, District Judge. I. INTRODUCTION This matter comes before the Court on Defendant Pennsylvania National Mutual Casualty Insurance Company s ( Defendant ) Motion to Dismiss Plaintiff Stan and Son Construction, LLC s ( Plaintiff ) Complaint pursuant to Fed. R. Civ, P. 12(b)(6), or in the alternative, for Summary Judgment pursuant to Fed. R. Civ. P. 56, The Court has given careful consideration to the submissions from each party. Pursuant to Fed. R. Civ. R. 78(b), no oral argument was heard. For the reasons outlined herein, the Court grants Defendant s Motion to Dismiss Plaintiffs Complaint because Plaintiffs claim is time barred. The Court considers any new arguments not presented by the parties in their papers or at oral argument to be waived. See Brenner v. Local 514, United Bhd. of Carpenters & Joiners. 927 F.2d 1283. 1298 (3d Cir. 1991) ( it is well established that failure to raise an issue in the district court constitutes a waiver of the argument. ). IL BACKGROUND The National Park Service, a bureau of the United States Department of Interior, initiated a restoration project of the Ford Mansion at the Morristown Historical National Park in Morristown, New Jersey. (Comp. ¶1 7.) The Department of Interior accepted the bid of DeNicolola Design, LLC ( DeNicolola ), and awarded DeNicolola $126,468.55 for the restoration project. (Id. ¶J 7, 8.) On February 16, 2010, Defendant executed a payment bond 2 for DeNicolola in the amount of $126,468.55. (Id.) DeNicolola subcontracted work on the project to Courtet Restoration, LLC ( Courtet ), which then subcontracted the mansion s roof restoration project to Plaintiff, (Id. $65,000.00 for the job. (Id.) ¶ 10.) The contract provided that Plaintiff would receive After completing the work on the mansion s roof, Plaintiff submitted its final invoice to Courtet on June 21, 2010. (Id. 2010. Plaintiff gave notice of its claim to Defendant. ¶ 14.) Subsequently, on August 30, (Comp. ¶ 16.) On October 6. 2010. DeNicolola filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code. (Içi. 18.) 4 On June 15, 2011, Plaintiff filed suit alleging breach of the payment bond. (Comp. ¶ 20.) Plaintiff alleges that Defendant was required by 40 U.SC. §S3 131-3133 to assure payment to all persons supplying labor or materials to the restoration project. §3131(b)(2)(1959)(referred to as the Miller Act ). 40 U.S.C. The Miller Act governs construction contracts established with the United States goernment. 40 U.S.C. §270(a)-(d)(1935). amended 2 I)eNicholola is Defendant s principal. (Comp. 8.) In its August 30, 2010 letter to l)efendant, Plaintiff indicated that it completed the project on June 15, 2010. (P1. Opp. Fx, I).) Plaintiff filed two separate actions against Defendant and Courtet. Courtet filed a third action against Defendant. On September 1. 2011. Defendant filed a Motion to Consolidate all three cases because the claims arose from the same transaction occurrence and involved common questions of law or fact. (I)ef. Motion to Consolidate 2. 3.) The motion was unopposed. On Noxember 3. 2011. the Court ordered the three actions consolidated for all purposes, including pre-trial discovery, arbitration and trial, construction by 40 U.S.C. fl313l-3133(l959). The Act provides that contractors in public projects must obtain a performance and payment bond for all work performed under the contract, t has the right and that a person who has performed labor or furnished material under the contrac to sue on the payment bond for the amount contracted for. 40 u.s.c. § 3131(b), 3133(b). tractor in the Thus, Plaintiff seeks to collect $65,000.00 for the work it completed as a subcon restoration project. (Comp. ¶ 20.) . Plaintiff stated in its Complaint that it completed its work on June 15, 2010. (comp ¶ after the day on 13.) Under the Miller Act, any action must be brought no later than one year bringing the which the last of the labor was performed or material was supplied by the person action. 40 U.S.C. §3133(b)(4). a Motion On August 24,2011, Defendant filed a Motion to Dismiss, or in the alternative, pursuing its claim for Summary Judgment. Defendant argues that Plaintiff is time barred from n, Defendant has under the Miller Act (Def. Motion to Dismiss 1.) In support of its positio ment of Interior attached to its Motion to Dismiss payroll records it obtained from the Depart Ex. D.) Specifically, under the Freedom of Information Act ( FOIA ). (Def. Motion to Dismiss was June 11, 2010, these payroll records indicate that Plaintiff s last day of work on the project ant argues, the time not June 15, 2010, as Plaintiff alleged in its Complaint. (j4) Thus, Defend 2011, one year after period for Plaintiff to bring suit under the Miller Act ended on June 11, Plaintiffs last clay of work on the project. Because Plaintiff brought suit on June 15, 2011, Defendant asserts that Plaintiffs claim is time barred and should be dismissed. that its last In its opposition papers, Plaintiff admits that it made a mistake in claiming s that this oversight day of work on the project was June 15, 2010. (P1. Opp. 5.) Plaintiff explain was based on looking at the last day of the payroll period, rather than the last 3 day of work. (jj the project was actually June 11. 7,) Thus, Plaintiff now concedes that its last day of work on ions to preserve its claims. 2010. (Id. 5.) It seeks equitable tolling of the statute of limitat 111. LEGAL STADAR1) A. Motion to Dismiss P. I 2(b)(6). it must For a complaint to survive dismissal pursuant to Fed. R. Civ. claim to relief that is plausible on its contain sufficient factual matter, accepted as true, to state a g Bell Atl. Coi. v. Twomblv. face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotin of a complaint, the Court must accept 550 U.S. 544, 570 (2007)). In evaluating the sufficiency draw all reasonable inferences in all well-pleaded factual allegations in the complaint as true and eny, 515 F.3d 224, 234 (3d Cir. favor of the non-moving party. See Phillips v. Cty of Allegh to relief above the speculative level. 2008). Factual allegations must be enough to raise a right offers labels and conclusions or a Twombly, 550 U.S. at 555. Furthermore, [a] pleading that will not do. Nor does a complaint formulaic recitation of the elements of a cause of action enhancement. Ashcroft,129 suffice if it tenders naked assertion[s] devoid of further factual S. Ct. at 1949. stated is on the moving party. The burden of proof for showing that no claim has been Inc. v. Fidelcor. Inc., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages. 926 F.2d 1406, 1409 (3d Cir. 1991)). During a court s threshold review, [tjhe issue is not nt is entitled to offer evidence to whether a plaintiff will ultimately prevail but whether the claima 311 F.3d 198, 215 (3d Cir. 2002). support the claims. If a may be granted leave to amend or claim is dismissed pursuant to Rule l2(b)(6), the plaintiff 114 F.3d 1410, 1434 (3d Cir. 1997). reassert the claim. In re Burlington Coat Factory Litig., 4 fail to state a the complaint, as amended, would r, leave to amend is not warranted if Howeve . Id.. claim upon which relief could be granted B. Summary Judgment ly stored depositions. documents, electronical Summary judgment is appropriate if the s, stipulations information, affidavits or declaration . . . admissions, interrogatory answers, or erial fact, and. e is no genuine issue as to any mat other materials demonstrate that ther -moving party, the a light most favorable to the non construing all facts and inferences in see also ter of law. Fed. R. Civ. P. 56(c); ty is entitled to a judgment as a mat moving par lock v. Ct. 2548, 91 L. Ed. 2d 265 (1986), Pol p. v. Catrett, 477 U.S. 317, 322, 106 S. Celotex Cor the initial (3d Cir. 1986). The moving party has . & Tel. Long Lines, 794 F.2d 860, 864 Am. Tel U.S. at 323. issue of material fact. See Celotex, 477 of proving the absence of a genuine burden of identifying , the non-moving party has the burden e the moving party meets this burden Onc material fact for trial. trary, there exists a genuine issue of specific facts to show that, to the con 106 5. Ct. 1348. ith Radio Coi., 475 U.S. 574, 586 87. See Matsushita Elec. Indus. Co. v. Zen might affect the material if a dispute about that fact 89 L. Ed. 2d 538 (1986). A fact is that , and a genuine issue exists as to suit under governing [substantivej law outcome of the ng ld return a verdict for the non[-]movi ence is such that a reasonable jury cou fact if the evid Court s role is to nc., 477 U.S. 242, 248 (1986). The ersvibertvLo party. A and decide the for trial. not to weigh the evidence ne whether there is a genuine issue determi truth of the matter, Id. at 249. IV. DISCUSSiON A. Defendant s Motion to Dismiss Miller Act is time barred because Defendant argues that Plaintiff s claim under the day of work on the project. (Def. Motion to Plaintiff filed suit more than one year after its last brought within one year from the last day of Dismiss 1.) The Miller Act requires claims to be ght under this subsection must be brought performance. 40 U.S.C. §3133(b)(4) ( An action brou last of the labor was performed or material was no later than one year after the day on which the added). supplied by the person bringing the action (emphasis ts in the Third Circuit, have routinely Courts in this district, as well as other cour were not filed within the one year time period. dismissed complaints under the Miller Act that ech Systems, Inc., No. 89-cv-1657, 1989 U.S. See United States use of E.J. & Sons, Inc. v. Viat ) (granting defendant s motion for summary Dist. LEXIS 11153 (D.N.J. Sept. 19, 1989 vrials Co. v. Fireman s Fund Ins. Co., No. 98-c judgment); United States cx rd. J.D.M. Mate to Feb. 3, 1999) (granting defendants motion 5186, 1999 U.S. Dist. LEXIS 1231 (E.D. Pa. No. 90-cv-7540, 1991 U.S. Dist. LEXIS 6890 dismiss); Rca-Car, Inc. v. PNM Constr., Inc., motion for summarvjudgment); United States use (E.D. Pa, May 21, 1991) (granting defendant s 415 F. Supp. 1328 (D. Del. 1976) (granting defendant s motion to dismiss). work on the project was .June 15, 2010. Plaintiff mistakenly claimed that its last day of oll documents from the Department ol lnterior (Comp. ¶ 13.) However, Defendant obtained payr payroll documents as an exhibit to its Motion to b way of a FOJA request. and attached these e documents indicate that Plaintiffs last day of Dismiss. (DeL Motion to Dismiss Ex, D). Thes which Plaintiff now concedes. (P1. Opp. 5.) work on the project was actually June 11, 2010, 6 Although courts generally consider only the alleations contained in the complaint. to cxhibits attached to the complaint and matters of public record when deciding a motion s as dismiss, a court may consider an undisputedly authentic document that a defendant attache Pension an exhibit to a motion to dismiss if the plaintiffs claims are based on the document. Benefit Guar, Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Here, the ffs payroll documents submitted by Defendant with its Motion to Dismiss indicate that Plainti relies last day of work was June 11. 2010. (Def. Motion to Dismiss Ex. D.) Plaintiff necessarily on ff the work it completed on the project for its Miller Act claim. Moreover, although Plainti indicates that June 15, 2010 was the last day ofthe payroll period for the project, that June 11, 2010 was actually Plaintiffs last day of work on the project. Plaintiff admits (P1. Opp. 5.) aint Although Plaintiff did not attach the payroll documents to its Complaint, Plaintiffs Compl claim. does, in essence, rely on these payroll documents in order to support its Miller Act usly is on Further, Plaintiff does not dispute that the documents are authentic, and Plaintiff obvio ering the notice of the contents of the document. Pension, 998 F.2d at 1196-97. As such, consid payroll documents as part of Defendant s Motion to Dismiss is appropriate. Otherwise, a to plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing attach a dispositive document on which it relied. [4 at 1196. In conclusion, Plaintiff had one year from June 11, 2010 to initiate its action under the . Miller Act. 40 U.S.C. §31 33(b)(4). Plaintiff filed the present action on June 15, 2011. (Comp ¶ was 13.) Plaintiffs claim was initiated one year and four days after the last day that labor and performed. See id. Consequently, Plaintiffs claim is time barred under the Miller Act, Defendant s Motion to Dismiss should be granted. rnative B. Defendant s Motion for Summary Judgment in the Alte t should be granted in its In the alternative, Defendant argues that summary judgmen favor. Judgment. this Court must In considering Defendant s Motion as one for Summary Matsushita, 475 U.S. at 587-88. determine whether there is a genuine issue of material fact. Motion to Dismiss 1.) Plaintiff Defendant alleges that Plaintiffs claims are time barred. (Def. the Miller Act. 40 U.S.C. §3 131was part) to a public construction project that is governed by within one year from the last day of 3133(1959). The Miller Act requires claims to be brought agree that Plaintiffs last day of work performance. 40 U.S.C. §3133(b)(4). Here, both parties ion to Dismiss 2.) Thus, there is no on the project was June 11, 2010. (P1. Opp. 5; DeE Mot file its complaint under the Miller Act genuine issue of material fact that Plaintiffs deadline to Plaintiff filed its complaint on June 15. was one year from June 11, 2010, or June 11. 2011. 2011. four days afier the limitations period expired. Thus, the evidence is such that no plaint within the appropriate time period. reasonable jury could find that Plaintiff filed its Com ion warrants granting. Anderson, 477 Under the summary judgment standard, Defendant s Mot U.S. at 248. C. Equitable Tolling the time period afforded by the Plaintiff admits that it filed its Complaint outside of that the Court utilize the equitable tolling Miller Act (P1. Opp. 6-8). However. Plaintiff requests doctrine to preserve Plaintiffs claim. Equitable tolling functions to stop the statute of has passed. Oshiver limitations from running x\here the claim s accrual date Levin. 38 F.3d 920 F.2d 446. 450 (7th Cir. 1380. 1387 (3d Cir. 1994)(citing 1990). . equitable tolling: The l hird Circuit has stated that the doctrine of 8 is applied sparing1y. Podobnik v. U.S. Postal Serv., 409 F.3d 584, 591(3d Cir, 2005) (quoting Nat l R.R. Passenger Corp. v. Morgan. 536 U.S. 110, 113.) A plaintiff bears an obligation to exercise due diligence to preserve his or her claim. Robinson v. Dalton, 107, F.3d 1018, 1023 (3rd Cir. 1997). As such, equitable tolling is a remedy invoked in extraordinary circumstances that are distinguishable from instances where individuals who have missed carefully drawn deadlines are seeking to preserve their claim. j. The Third Circuit has held that equitable tolling may be appropriate in the following three situations: (1) where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action, (2) where the plaintiff in some extraordinary way has been prevented form asserting his rights, or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum. Oshiver. 38 F.3d at 1387. Plaintiff has not satisfied any of the three prongs outlined above. First, Plaintiff admits that it made an innocent mistake, when it represented to Defendants, in its August 30, 2010 letter, that its last day of work was June 15, 2010. (P1. Opp 5; Def Reply 3-4.) Nowhere does Plaintiff assert that it was misled by Defendant in believing that June 15, 2010 was its last day of work. Second, Plaintiff has not established that it has, in some extraordinary way, been prevented from asserting its rights. Oshiver. 38 F.3d at 1387. Instead, Plaintiff cites to its innocent mistake of relying on the last day of the payroll period rather than on the last da of actual work, (P1. Opp. 5-7). Plaintiff provides no evidence of extraordinary circumstances that prevented it from filing suit earlier. In fact. Plaintiff had ample time between October 2010. when DeNicolola filed for bankruptcy, and June 11. 2011. the deadline under the Miller Act, to file its Complaint. (Id. 18.) Finally. Plaintiff has not provided any evidence that it timely 9 asserted its rights mistakenly in the wrong forunL Id. Here, Plaintiffs innocent mistake led to an zimime!i filing in the propel forum. In sum. Plaintiff has not met the requirements for equitable tolling. Podobnik._409 F.3d at 591. Therefore, Plaintiffs claim is time barred under the Miller Act, and Defendant s Motion to Dismiss, or in the alternative, for Summary Judgment, should be granted. V. CONCLUSION Based on the reasons set forth above, Defendant s Motion to Dismiss, or in the alternative, for Summary Judgment. is granted and the Complaint is dismissed with prejudice. An appropriate Order accompanies this Opinion. CLAIRE C. CECCHL U.S.D.J. DATED: March 28, 2012 I ()

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