I.
Px'еsently before this Court is a motion to dismiss the cross-complaint filed herein by defendants and cross-complainants A1 Sаnders and Paul Hurst and by cross-complainant United States for the use of *507 Paul Hurst dba Hurst Sand and Gravel Company and A1 Sanders, against defendants and cross-defendants Southern, Waldrip & Harvick and Continental Casualty Company.
It appears from the undisputed pleadings of all partiеs that defendant and cross-defendant Southern, Waldrip & Harviek was the prime contractor on a contraсt for the construction or improvement of facilities for the United States. A subcontractor of Southern, Waldrip & Hаrviek was defendant Paul W. Larsen-Contractor, Inc. Defendant Robert C. Martin was a subcontractor of Defendant Paul W. Larsen-Contractor, Inc. Martin had no direct contractual relationship with Southern, Waldrip & Harvick. Cross-complainants leased certain equipment to defendant Robert C. Martin, and performed some work for him, in connection with the project. Martin is bankrupt, and cross-complainants are unpaid. They seek by the cross-complaint in question to recover on the payment bond furnished by cross-defendant Southern, Waldrip & Harvick (upon which bond cross-defendant Continental Casualty Company was surety), pursuant to the provisions of the Miller Act (Title 40 U.S. C.A. §§ 270a and 270b). Jurisdiction of the cross-complaint is conferred upon this Court by Title 40 U.S.C.A. § 270b (b).
The Miller Act protects those who deal with prime contractors and (where notice is properly given) those who deal with subcontractors of a prime contraсtor on Federal public works, but it does not protect those who deal with subcontractors of subcontractоrs of a prime contractor. MacEvoy Co. v. United States,
Cross-complainants rely upon my decision in United States for Use of Marys-ville Tractor & Equipment Co. v. Pinole Land Co., D.C.,
In United States for Use of Marys-ville Tractor & Equipment Co. v. Pinole Land Co., the prime contractor was Pinole Land Co. Baker was a subcontractor of Pinole Land Co., and Taylor wаs a subcontractor of Baker. Use-plaintiff in that case allegedly furnished labor and materials to Baker and also to Taylor at
the instance and request of Baker.
It was thus alleged that there was a direct contractual relationship between use-plaintiff in that case and Baker, concerning the materials and labor in question. Baker was admittedly a subcontractor within the meaning of the Miller Act. Proper notice to the prime contractor was alleged. Thus the case fеll within the clear language of Title 40 U.S.C.A. § 270b. It followed that the Court had ancillary jurisdiction of the claim against Taylor. Glens Fаlls Indemnity Co. v. United States, 9 Cir.,
The precise holding of United States for Use of Marysville Tractor & Equipment Co. v. Pinole Land Co., suрra, was that Taylor was not entitled to have the action dismissed as to him. I believe that my holding was correct.
Additional reflection on the subject leads me to the conclusion that some of the language of my opinion in Pinole Land Co., supra, was at best ill chosen. As it was not alleged, or contended, in that ease that Taylor had any direct contractual relationship with Pinole Land Co., it was clear that he was not a subcontractor within the meaning of the Miller Act. MacEvоy Co. v. United States, supra; United States v. Idaho Crane & Rigging Co., supra. Insofar as I implied the contrary, I was mistaken, *508 and I want here and now to correct this error. I certainly do not intend to repeat my past mistakes in the instant case.
I agree with the analysis of Judge Fred M. Taylor in United States v. Idaho Crane & Rigging Co., supra, to the effect that McGregor Architеctural Iron Co. v. Merritt-Chapman & Scott Corp., supra, does not square with the decision of the United States Supreme Court in MacEvoy Co. v. United States, supra. Therefore, I decline to follow the McGregor Iron decision.
My decision as to the cross-complaint in question is that it must be dismissed for failure to state a claim upon which relief can bе granted (Federal Rules of Civil Procedure, Rule 12(b), 28 U.S. C.A.).
II.
The jurisdiction of this Court was predicated, in the original complaint, оn diversity of citizenship among the parties, with requisite amount -in controversy (Title 28 U.S.C. § 1332). The principal place of businеss of plaintiff does not appear in the pleadings. The following defendants may be cox*porations, and thе state under whose laws they are incorporated (if any) does not appear in the pleadings: Brighton Sand & Grаvel Co., Bear River Construction Company, Highway Safety Supply Company, California Rents Company, George W. Philpott Company and Pipe Trades Trust Fund. The jurisdictional question is further clouded by the inclusion of defendants Doe Three to Doe Ten. For the reasons indicated, plaintiff’s complaint is defective and, on the Court’s own motion, must be dismissed. Leаve to file an amended complaint will, however, be granted. Stenhouse v. Jacobson, D.C.,
It is, therefore, orderеd that plaintiff’s complaint be, and the same is, hereby dismissed with plaintiff beixxg granted 15 days within which to file an amended complaint, if it so chooses;
And it is further ordered that the cross-complaint of defendants and cross-complaixxants Al Sаnders and Paul Hux*st and of cross-complainant United States for the use of Paul Hurst dba Hurst Sand and Gravel Company and Al Sanders, against defendants and cross-defendants Southern, Waldrip & Harvick and Continental Casualty Company, together with any cause of action sought to be assex'ted in said cross-complaint, be, and the same is, hereby dismissed.