United States District Court, D. Hawaii
UNITED STATES OF AMERICA, ex rel. ATLAS COPCO COMPRESSORS LLC Plaintiff,
RWT LLC and ARCH INSURANCE COMPANY Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY
C. Kay United States District Judge
reasons set forth below, the Court DENIES Defendants'
Motion for Summary Judgment and Plaintiff's Motion for
4, 2016, Plaintiff Atlas Copco Compressors LLC
(“Plaintiff”) filed a Complaint against RWT LLC
(“RWT”) and Arch Insurance Company (“Arch,
” and together with RWT, “Defendants”).
Plaintiff alleged that Defendants violated the Miller Act, 40
U.S.C. §§ 3131, 3133.
parties have moved for summary judgment and have filed
memorandum, concise statements of fact, responses, and
replies in support of their position. The Court held a hearing on
both motions on May 15, 2017.
February 24, 2014, RWT was awarded a contract by the United
States Department of Defense (the “Contract”).
Def. CSF, Ex. 1; Pl. Opp. CSF, Ex. C. The Contract required
RWT to “provide all labor, materials, supervision,
tools, equipment, supplies and transportation necessary to
Construct P-089 LPA Satellite Compressor Plant” for a
project at the Pearl Harbor Navy Shipyard (the
February 25, 2014, RWT provided a payment bond issued by
Arch. Def. CSF, Ex. 2; Pl. Opp. CSF, Ex. D. RWT was the
principal and Arch was the surety on the bond. Id.
The bond provided, inter alia, that both RWT and
Arch were bound “jointly and severally . . . for the
payment or the sum shown opposite the name of the
March 11, 2014, RWT notified Plaintiff that it would be
receiving the subcontract for the four air compressors and
two air dryers (“compressors and air dryers” or
“equipment”) that were specified for the Project.
Pl. Opp. CSF, Ex. E. On March 13, 2014, Plaintiff provided
RWT with a proposal (the “Proposal”), which
included a price quotation for the specified equipment and
Plaintiff's standard conditions of sale. Def. CSF, Ex. 4;
Pl. Opp. CSF, Ex. F. On July 29, 2014, RWT issued a purchase
order (the “Purchase Order”), which included
general terms and conditions of sale, to Plaintiff to supply
compressors and air dryers for the Project in accordance with
the Proposal. Def. CSF, Ex. 3.
August 28, 2014, Plaintiff's Vice President initialed the
bottom of each page of the Proposal. Def. Opp. CSF, Ex. 3;
Pl. CSF, Kiser Decl. ¶ 6; Pl. CSF, Ex. F. In September
2014, RWT's Project Manager initialed the bottom of each
page of the Proposal. Id. Plaintiff then began
manufacturing the compressors and air dryers at their
facility in Belgium to meet RWT's purchase order. Pl.
CSF, Callow Decl. ¶ 5.
early March 2015, Plaintiff made arrangements for the
shipment of the compressors and air dryers from Belgium to
Honolulu, Hawaii. Id. ¶ 6. On April 23, 2015,
the compressors and air dryers were discharged from the
shipment vessel in Honolulu, Hawaii and were ready for pickup
on April 24, 2015. Def. CSF, Ex. 5. When the equipment
arrived in Honolulu, RWT arranged and paid for its delivery
from the port to Pearl Harbor. Def. CSF, Raas Decl.
¶¶ 9-10. On May 11, 2015, RWT's trucking
company, Island Movers, took delivery of the compressors and
air dryers. Pl. CSF, Callow Decl. ¶ 6.
12, 2015, Plaintiff issued invoices totaling $2, 030, 794.52.
Pl. CSF, Ex. G. On October 30, 2015, RWT tendered a check to
Plaintiff for $1, 749, 009.00, leaving an unpaid principal
balance of $281, 785.52. Pl. CSF, Gogic Decl. ¶ 3.
November 23, 2015, the U.S. Department of Defense suspended
work on the Project until February 2016. Def. Opp. CSF, Ex.
4. On March 20, 2017, the work was further suspended until
July 2017. Def. Opp. CSF, Ex. 5.
Defendants' Opposition, Defendants state that they cannot
pay the remaining balance until the equipment has been
inspected, and consequently accepted, by RWT pursuant to the
terms of the Purchase Order. Def. Opp. at 8 n.2. Defendants
state that RWT will install the equipment and conduct a test
to verify that it operates in conformity with the contract
specifications as soon as the government lifts the suspension
of work. Id. Defendants state that if the equipment
passes inspection, they will accept it and issue the
remaining balance due under the contract. Id.
judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates
summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252,
1258 (9th Cir. 1999).
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.” Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 323); see also Jespersen v.
Harrah's Operating Co., 392 F.3d 1076, 1079 (9th
Cir. 2004). “When the moving party has carried its
burden under Rule 56 [(a)] its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts [and] come forward with specific facts showing
that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 586-87 (1986) (citation and internal quotation
marks omitted); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (stating that a party
cannot “rest upon the mere allegations or denials of
his pleading” in opposing summary judgment).
issue is ‘genuine' only if there is a sufficient
evidentiary basis on which a reasonable fact finder could
find for the nonmoving party, and a dispute is
‘material' only if it could affect the outcome of
the suit under the governing law.” In re
Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248). When considering the
evidence on a motion for summary judgment, the court must
draw all reasonable inferences on behalf of the nonmoving
party. Matsushita Elec. Indus. Co., 475 U.S. at 587;
see also Posey v. Lake Pend Oreille Sch. Dist. No.
84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that
“the evidence of [the nonmovant] is to be believed, and
all justifiable inferences are to be drawn in his
The Miller Act
Miller Act, 40 U.S.C. §§ 3131 et seq.,
requires that before a contract in excess of $100, 000 for
the construction of a federal project is awarded, the
contractor must provide a payment bond “for the
protection of all persons supplying labor and material in
carrying out the work provided in the contract . . .”
40 U.S.C. § 3131(b). The Miller Act further provides:
[e]very person that has furnished labor or material in
carrying out work provided for in a contract for which a
payment bond is furnished . . . and that has not been paid in
full within 90 days after the day on which the person did or
performed the last of the labor or furnished or supplied the
material for which the claim ...