816 F. Supp. 2d 1139
D.N.M.2011Background
- In April 2009 Kinley Construction (prime contractor) contracted with the Army Corps of Engineers for work at Kirtland AFB NM, including two fuel tanks.
- Kinley and Brown Minneapolis Tank Co. (BMT) entered a September 2009 subcontract to fabricate and install the tanks at the Project.
- The tanks collapsed twice due to wind, with BMT performing labor and supplying materials incorporated into the Prime Contract work.
- Kinley and BMT dispute timeliness and resulting delay costs; Kinley contends BMT caused delays and misses payments; BMT disputes negligence and seeks Miller Act payment.
- Kinley filed suit against BMT in Texas state court; BMT removed to the Northern District of Texas and then filed this Miller Act action in NM; Defendants moved to dismiss or transfer venue.
- Judge McBryde later granted BMT’s Motion to Transfer the Texas Action to NM, consolidating related proceedings in NM.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Miller Act venue provision is exclusive to NM over related actions | BMT: NM exclusive venue under Miller Act, overriding first-filed rules | Kinley: venue should follow first-filed rule and related Texas action | Miller Act venue is a venue requirement (not jurisdiction) and NM venue applies |
| Whether the first-filed rule controls or Miller Act venue overrides it | BMT: Miller Act venue trumps first-filed rule | Defendants: first-filed rule should govern | Miller Act venue does not yield to the first-filed rule; exclusive venue retained in NM |
| Whether the Miller Act venue provision can be waived or overridden by forum selection | BMT: forum clause or waiver not applicable; plaintiffs protected | Tex. Constr. and Harvey Gulf lines suggest possible waiver by forum selection | Miller Act venue provision can be waived by a valid forum selection; plaintiffs may be protected by waiver in appropriate circumstances |
| Whether Miller Act claim is a compulsory counterclaim under Rule 13 | BMT: Miller Act claim is not compelled counterclaim; venue governs | Defs: Miller Act claim should be counterclaim under Rule 13 | Rule 13(a) does not require dismissal or transfer; Miller Act venue governs |
Key Cases Cited
- F.D. Rich Co., Inc. v. United States ex rel. Indus. Lumber Co., Inc., 417 U.S. 116 (U.S. 1974) (venue is a mere requirement; Miller Act purpose to provide venue protections)
- Texas Constr. Co. v. United States ex rel. Caldwell Foundry & Mach. Co., 236 F.2d 138 (5th Cir. 1956) (Miller Act venue is a venue restriction, not jurisdictional; may be waived by parties)
- Tex. Constr. Co. v. United States ex rel. Caldwell Foundry & Mach. Co., 236 F.2d 140 (5th Cir. 1956) (place of suit as strict condition of bringing suit; venue component of Miller Act)
- United States ex rel. Harvey Gulf Int’l Marine, Inc. v. Md. Cas. Co., 573 F.2d 245 (5th Cir. 1978) (Miller Act venue provision can be read as benefiting plaintiffs; can be waived by defendants)
- Publicis Communc’ns v. True N. Communc’ns Inc., 132 F.3d 363 (7th Cir. 1997) (Rule 13 and venue doctrines; duplicative actions context)
- Moseley v. Electronic & Missile Facilities, Inc., 374 U.S. 167 (U.S. 1963) (arbitration/venue interplay; Miller Act protections for plaintiffs discussed)