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U.S.A. ex rel. Advance Concrete, LLC v. T.H.R. Enterprises, Inc.

United States District Court, E.D. Virginia, Norfolk Division

May 18, 2016

U.S.A. ex rel. ADVANCE CONCRETE, LLC, Use Plaintiff,
v.
T.H.R. ENTERPRISES, INC. and HANOVER INSURANCE COMPANY Defendants.

          MEMORANDUM OPINION & ORDER

          RAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Motion to Dismiss or Alternatively Transfer this Miller Act action. ECF No. 6. In addition to their Motion. Defendants have (lied a Memorandum in Support (ECF No. 7) and a Request for heating (ECF No. 12). Plaintiff filed a Response in Opposition to the Motion (ECF No. 9) and Request for Hearing {ECF No. 10). Defendants filed a Rebuttal Brief to their Motion. ECF No. 11. The Court has now reviewed the Motion and the related filings, and has determined that a hearing would not aid in the decisional process. This matter is now ripe for judicial adjudication and for the reasons slated below. Defendants' Alternative Motion to Transfer is GRANTED and the Motion to Dismiss is DEFERRED to the transferee court as it relates to Federal Rule of Civil Procedure 12(b)(6).

         I. FACTUAL AND PROCEDURAL HISTORY

         The facts alleged in the Complaint are as follows. Plaintiff Advance Concrete, LLC is a limited liability company organized and existing under the laws of the State of North Carolina, having its principal place of business in Greenville. North Carolina. Complaint, ECF No. 1, at ¶ 1. Defendant, THR Enterprises, Inc., is a corporation existing under the laws of the State of Virginia and having its principal place of business in Norfolk Virginia. Id. at ¶ 2. Defendant The Hanover Insurance Company is a corporation organized and existing under the laws of the State of New Hampshire, with a principal place of business in Worcester, Massachusetts. Id. at ¶ 3.

         This case arises from a contract between Defendant THR Enterprises and NAVFAC Mid-Atlantic whereby THR agreed to perform as prime contractor certain labor and furnish certain materials related to the VSSTOL power Check Pad Overhaul at the Marine Corps Air Station in Cherry Point, North Carolina. Compl. ¶ 8. Pursuant to 40 U.S.C. § 3131, Defendant THR has a construction payment bond for the project with Defendant Hanover acting as surety. Id. at ¶10. THR contracted in writing with Plaintiff Advance on August 5, 2010, whereby Advance agreed to perform certain labor and furnish materials related to the VSTOL Power Check Pad Overhaul at the Marine Corps Air Station in Cherry Point, North Carolina in exchange for payment in the amount of $547, 475. Id. at ¶ 11. Plaintiff has timely performed all work required under the subcontract, including additional work requested by Defendant THR, however Plaintiff has received no payment. The amount currently do from Defendant to Plaintiff is in excess of 512, 324.48. Id. at ¶ 13.

         Plaintiff further alleges that THR has submitted for approval the work performed by Plaintiff on the project, and has requested payment from the United States of America for that work, that THR has received payment from the United States, and that the United States raised no complaint regarding the workmanship or sufficiency of the work performed by Plaintiff. Id. at ¶ 16-18.

         On February 8, 2013, the parties entered into a Subcontractor Pass-Through Agreement. Pursuant to the Pass-Through Agreement, Plaintiff submitted a claim through THR to the Government for added cost and expenses incurred by reason of the Government's specifications requiring "FireRok" as an accepted product for a portion of Advance's work at the Project. Id. at 21-22. On October 30, 2014, the Contracting Officer for the Project denied Plaintiffs Pass-Through Claim for the portion of the claim asserted herein for which the Government may have had liability to THR. Id. at 24. Plaintiffs total claim is in the amount of $512, 324.48. Id. at ¶ 30. Of that amount, Plaintiff alleges only $30, 494, the amount for which the Government may be liable, had accrued prior to March 16, 2011. Id. Of the total amount of Plaintiff s claim, $339, 784.48 is unrelated to the FireRok product, but was caused solely by THR's acts and omissions and for which the Government is in no way liable. Id. at 31.

         Plaintiff filed its Complaint on October 29, 2015. Defendants filed the instant Motions on November 24, 2015.

         The Court received memoranda in support of the parties' positions, as well as request for a hearing by both parties. However, after reviewing the briefs and the law the Court determined that a hearing was not necessary, and adjudicates the Motions on the papers as discussed below.

         II. LEGAL STANDARD

         Defendants move this Court to (1) dismiss this action pursuant to 28 U.S.C. § 1406(a) and Federal Rule of Civil Procedure 12(b)(3) or, in the alternative, to transfer the action pursuant to same or 28 U.S.C. § 1404(a). Defendants further move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6).

         A. Motion to Transfer

         A civil action must be commenced in a proper venue. Pursuant to Title 28 United States Code Section 1391, an action may be commenced in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. 28 U.S.C. § 1391(b).

         Cases brought pursuant to the Miller Act, 40 U.S.C. § 3133 "must be brought in the United States District Court for any district in which the contract was to be performed and ...


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