United States District Court, E.D. Louisiana
SIBONEY CONTRACTING CO.
BERKLEY INSURANCE CO., ET. AL.
ORDER AND REASONS
the Court is Defendant Berkley Insurance Company's
(“Berkley”) Motion to Dismiss Plaintiff Siboney
Contracting Company's (“Plaintiff”) Miller
Act, Federal Prompt Payment Act, and declaratory judgment
claims pursuant to F.R.C.P. 12(b)(6) (Rec. Doc. 7),
Plaintiff's Response in Opposition (Rec. Doc. 13), and
Berkley's Motion for Leave to File Reply (Rec. Doc. 14).
For the reasons discussed below, IT IS
ORDERED that the Motion to Dismiss (Rec. Doc. 7) is
GRANTED in Part and DISMISSED in Part;
IS FURTHER ORDERED that Berkley's Motion for
Leave to File Reply (Rec. Doc. 14) is hereby
GRANTED and all proposed pleadings are
hereby filed into the record.
and Procedural History
September 23, 2016, Plaintiff (as subcontractor) entered into
a contract with Defendant Tikigaq Construction, L.L.C. (as
contractor), in which Plaintiff agreed to haul sand to the
United States Army Corps of Engineers project referred to as
the WBV-EVM-78. Rec. Doc. 1 at 3. Pursuant to the
requirements of 40 U.S.C. § 3131(b)(2), Tikigaq received
a payment bond issued by Berkley to secure Tikigaq's
payment of its obligations to its subcontractors.
alleges that Plaintiff and Tikigaq originally agreed that
Plaintiff would haul the sand at a fixed price of $4.82 per
cubic yard. Rec. Doc. 1 at 3. However, prior to
Plaintiff's commencing performance Tikigaq requested that
payment be fixed, in writing, at the same $4.82 rate, but
“by the ton” rather than by the cubic yard.
Id. Plaintiff agreed to this proposal through a text
message conversation with a representative of Tikigaq. Rec.
Doc. 1 at 3-4.
alleges that after months of performing in accordance with
this arrangement Tikigaq attempted to negotiate a lower rate
for the past rendered performance. Rec. Doc. 1 at 4. While
Plaintiff responded that it would not negotiate the price of
the sand it had already hauled, it would apply a discounted
rate to work performed in the future. Rec. Doc. 1 at 4.
Plaintiff alleges that Tikigaq stopped its payments to
Plaintiff immediately following this discussion, resulting in
two unpaid invoices-one for $29, 356.90 billed by the ton and
another for $2, 287.50 billed at a rate of $75.00 per
hour-totaling $31, 644.40. Rec. Doc. 1 at 4.
15, 2017, Plaintiff demanded payment of the outstanding debt
to the U.S. Army Corps of Engineers, Tikigaq, and Berkley
through a Miller Act Notice; Plaintiff states that it
received no response to this notice. Rec. Doc. 1 at 5.
Plaintiff then sent a demand letter to Berkley on the payment
bond on June 23, 2017, which Berkley acknowledged on June 26,
2017, stating that it would investigate the claim. Rec. Doc.
1 at 5. On July 17, 2017, Tikigaq sent a letter alleging that
Plaintiff owed it $131, 883.60 as a result of overbilling and
that it would retain the disputed $31, 644.41 allegedly owed
to Plaintiff as an offset. Rec. Doc. 1 at 5. Berkley adopted
Tikigaq's position on the matter in August 2017.
September 27, 2017, Plaintiff filed suit against Berkley and
Tikigaq, seeking recovery of the $31, 644.41 as well as
attorney's fees under the Miller Act, the federal Prompt
Payment Act, La. R.S. § 9:2781 (Louisiana's Open
Account Statute), La. R.S. § 9:2784 (Louisiana's
Late Payment by Contractor Law), breach of contract, and
quasi-contract claims. Rec. Doc. 1 at 6-9. Plaintiff also
seeks a declaratory judgment that Tikigaq was not overbilled
by Plaintiff, and that Plaintiff owes Tikigaq no obligations,
including reimbursement of money already paid. Rec. Doc. 1 at
10. Berkley filed an answer to this complaint on December 20,
2017; Tikigaq has yet to respond.
conjunction with its answer, Berkley filed the instant motion
to dismiss Plaintiff's Miller Act, federal Prompt Payment
Act, and declaratory judgment claims pursuant to F.R.C.P.
12(b)(6) on the grounds that Plaintiff has stated no cause of
action for which relief can be granted. Rec. Doc. 7-1.
Standard for 12(b)(6) Motion
defendant may move to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
rule 12(b)(6) of the Federal Rules of Civil Procedure. The
court will grant a 12(b)(6) motion if the plaintiff
“has not set forth a factual allegation in support of
his claim that would entitle him to relief.”
Masonry Sols. Int'l, Inc. v. DWG & Assocs.,
Inc., 2016 WL 1170149, at *2 (E.D. La. Mar. 25, 2016)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). In order to survive a 12(b)(6) motion, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Failure to Bring Miller Act Claim in the Name of ...