United States ex rel. Chasney & Co. v. Hartford Accident & Indemnity Co.United States ex rel. Chasney & Co. v. Hartford Accident & Indemnity Co.
MEMORANDUM
Chasney and Company, Inc. (“Chasney”) brought a claim under the Miller Act, 40
I. Background
This dispute arises from a massive government construction project fraught with disruption and delay. JWA, as general contractor, executed contract number W912QR-10-C-0029 with the United States of America, by and through the United States Army Corps of Engineers (“USACE” or “the Government”), for the construction of an Army Reserve Center in Baltimore, Maryland (“the Project”). (ECF No. 1 ¶ 5.) In relation to this contract and pursuant to the Miller Act,
Two provisions of the Subcontract are particularly apposite to the Court’s analysis of the pending Motions. Article 5, the “Price and Payment” article, provides that Chasney “shall furnish guarantees and all other documents required by the Prime Contract for [Chasney’s] work, including releases of all claims and liens as a condition precedent for final payment,” and that “[pjartial releases may be required at [JWA’s] option as a condition precedent to any partial payments for work completed.” (Id. at 2.)
Beginning in November 2010 and continuing through November 2013, the parties executed a series of twenty-four instruments titled “Subcontractor’s Partial Release, Waiver of Lien and Affidavit” (“Partial Release”). (ECF No. 27-5.) By signing each Partial Release, “in consideration of the payments previously made and payment for the period covered by the current payment due,” Chasney agreed to
waive[ ] and release[ ] all... liens... and claims and demands against [JWA] and/or its sureties... in any manner arising out of [Chasney’s] work, labor, services, equipment or materials... performed or furnished... in connection with the project, through the period covered by the current payment and all previous payments.
(ECF No. 27-6 at 2.) The waiver language did not apply to “extra work which ha[d] been authorized in writing by [JWA], but for which the payment ha[d] not been made.” (Id.) By signing, Chasney affirmed that it was “aware of no claims nor any circumstances that could give rise to any future claims” against JWA, Hartford, or others involved on the Project. (Id.) Each form included a space for Chasney to list claim exceptions; no such exceptions appear on any of the twenty-four signed forms. The last such form, dated November 15, 2013, applies to claims arising on or before October 31, 2013. (Id.)
During the course of performance on the Project, Chasney and JWA encountered numerous design defects and other deficiencies attributable to the Government. These defects resulted in extended delays and unexpected costs. JWA submitted over two dozen claims to the USACE; these claims eventually ripened into appeals before the Armed Services Board of Contract Appeals (“ASBCA”). (ECF No. 28-2.) In July 2013, while the appeals were pending, JWA entered into settlement negotiations with the USACE. (ECF No. 28-6 at 3.) Chasney apparently learned of these negotiations, and — with some drafting assistance from JWA
In an e-mail dated April 25, 2014, Peter Chasney (Chasney’s president) advised James Ancel that (1) he understood that Chasney’s delay claim had been paid as part of the Settlement Agreement and (2) he therefore requested reimbursement of $380,687.65. (ECF No. 55 at 29.) In a May 12, 2014, e-mail, Ancel informed Peter Chasney that his understanding was “simply not correct”; that the “settlement with the government was a lump sum amount”; and that the “parties did not assign any particular value to individual elements in reaching the settlement sum.” (Id. at 33.) To date, JWA has refused to pay Chas-ney’s claim.
Chasney filed suit on July 2, 2014, naming Hartford as Defendant and claiming against the Bond. (ECF No. 1.) Chasney demanded $380,687.65 for , its delay damages as well as $79,882.45 for labor-and-material expenses allegedly due and owing, for a total claim of $460,570.10.
11. Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322,
The facts themselves, and the inferences to be drawn therefrom, must be viewed in the light most favorable to the party opposing summary judgment. Scott v. Harris,
III. The Miller Act
Under the Miller Act, before any federal contract with a value exceeding $100,000 can be awarded for the construction or improvement of a public building, the putative contractor must furnish to the Government (1) a performance bond for the protection of the Government and (2) a payment bond for the protection of “all persons supplying labor and material in carrying out the work provided for in the contract,” e.g., subcontractors. 40 U.S.C. § 3131(b). “The Miller Act is the modern-day remedy to the historical dilemma faced by contractors and materialmen denied compensation in federal construction projects.” Technica LLC ex rel. United States v. Carolina Cas. Ins. Co.,
IV. Defendants’ First Motion for Partial Summary Judgment (ECF No. 27)
In their First Motion, Defendants contend that “Chasney’s claims for work, labor, services, equipment, or materials performed or furnished through October 31, 2013, including any delay damages.. .are barred by releases signed by Chasney.” (ECF No. 27 at 1.)
The interpretation of a release agreement implicates state-law principles.
must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated.... [Wjhen the language of the contract is plain and unambiguous[,] there is no room for construction, and a court must presume that the parties meant what they expressed.
Taylor v. NationsBank, N.A.,
A litigant seeking to avert the sting of an ill-conceived release agreement has an obvious incentive to argue that the parties never intended the release to encompass the claims at issue. Nevertheless, under the objective theory, a court will only consider extrinsic evidence concerning the parties’ intent if it first deems the contract’s language ambiguous. SpaceSaver Sys., Inc. v. Adam,
In its opposition brief, Chasney contests both the validity and the applicability of the Partial Releases. Chasney advances some creative arguments in support of its position, but these arguments are unavailing.
A. Validity of the Partial Releases 1. Voluntary Relinquishment of a Known Right
Chasney contends that it did not voluntarily agree to the Partial Releases and that the waiver language therein is thus “ineffective and not enforceable.” (ECF No. 28 at 14.) See Gresser v. Wells Fargo Bank, N.A., Civ. No. CCB-12-987,
Unfortunately for Chasney, its logic finds no support in the law. Parties routinely enter settlement agreements through which they waive all claims— present and future, known and unknown— arising from a particular set of circumstances, and courts routinely enforce such agreements. See, e.g., Bernstein v. Kapneck,
2. Elements of Contract Formation
Chasney posits that the Partial Releases were invalid because “there was no meeting of the minds with respect to the [releases]” and because “the consideration paid to support the [releases] was insufficient.” (ECF No. 28 at 16.) Both arguments fail.
As to Chasney’s first argument (ie., no meeting of the minds), it is certainly true that “[a]n essential element with
As to Chasney’s second argument (i.e., insufficient consideration), Chasney invokes the preexisting duty rule, a staple of hornbook law. The theory is simple enough: “payment of a sum which the payee [sic] was under a previous legal or statutory obligation to pay is not sufficient consideration to support a contract.” (ECF No. 28 at 18.) Since JWA was obligated, pursuant to the Subcontract, to compensate Chasney for its contributions to the Project, Chasney reasons that the Partial Releases — purportedly executed “in consideration of the payments previously made and payment for the period covered by the current payment due” (see ECF No. 27-6 at 2) — are void for lack of additional consideration. Were the Court to construe the Partial Releases in isolation as independent, freestanding contracts, Chasney’s argument might have traction. But because the Partial Releases are expressly authorized by the Subcontract, the more reasonable approach is to view them as supported by the same consideration that supports the Subcontract— i.e., the $1,500,000 compensation that JWA promised to pay Chasney. And indeed, courts have frequently adopted this approach, holding that “a release required by the provisions of a contract is supported by the same consideration that supports the contract itself,” Sauer, 742 F.Supp.2d at. 720 (quoting Yakima Asphalt Paving Co. v. Wash. State Dep’t of Transp.,
In light of the foregoing, the Court concludes that the Partial Releases are valid and enforceable as a matter of contract law.
Chasney posits in the alternative that even if the Partial Releases are enforceable as against some claims, they are not enforceable as against Chasney’s delay claim. Chasney presents several unconvincing arguments in support of this alternative position.
Principally, Chasney contends that the October 31, 2013, release “could not have operated as a release of Chasney’s claim for delay damages which [JWA] had not yet received from the Government and to which Chasney was not yet entitled under the provisions of Subcontract Article 11.” (ECF No. 28 at 11-12.) This contention is materially indistinguishable from Chas-ney’s argument that the Partial Releases did not constitute relinquishment of a known right — and it fails for a similar reason. The Partial Releases unambiguously waive “claims and demands.. .in any manner arising out of.. .work, labor, services, equipment or materials... performed or furnished.. .in connection with the project, through the period covered by the current payment and all previous payments.” (ECF No. 27-6 at 2.) Nothing in this language restricts the operation of the waiver to fully ripened, perfected claims for which Chasney enjoys a present right to payment. In fact, in signing each Partial Release — including the October 31 release — Chasney affirmed under the penalties for perjury that it was “aware of no claims nor any circumstances that could give rise to any future claims” against JWA. (Id. (emphasis added).) The forms include a space for Chasney to list any exceptions; this space is blank on each of the twenty-four forms.
Chasney additionally contends that even if the October 31 Partial Release covered Chasney’s delay claim, “the express language of the [release] excepted Chasney’s delay claim from its operation.” (ECF No. 28 at 12.) Here, Chasney points to a provi
In a last-ditch effort to sway the Court, Chasney proposes that if JWA is correct, and if Chasney in fact waived its right to recover damages by operation of the October 31 Partial Release, then JWA may have violated the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq., by submitting and settling Chasney’s delay claim with the Government. (ECF No. 28 at 13.) That argument is absurd. JWA signed the Settlement Agreement with the USACE more than two months before Chasney executed the October 31 release; thus, at the time JWA submitted Chasney’s claim for Government review, no waiver was in effect. Moreover, even if — hypothetically—JWA somehow violated the FCA through its settlement of Chasney’s claim, such violation would not vitiate a wholly separate, private release agreement negotiated between JWA and Chasney. And crucially, James Ancel stated under oath that “JWA did not certify Chasney’s claim to the Government because JWA believed that Chasney’s actual costs were overstated and there was incomplete and insufficient supporting documentation.” (ECF No. 35- 1 at 5.) Unsurprisingly, “Government officials were dismissive of Chasney’s claim and stated that it lacked any merit.” (Id.) Chasney has never adduced admissible evidence tending to refute Aneel’s testimony. On these facts, there is simply no indication that JWA violated federal law, nor that any hypothetical violation is relevant to the issues before the Court.
In summary, the Court’s analysis begins and ends — as it must — with the unambiguous language of the Partial Releases. By signing each release, Chasney waived all claims relating to work performed through the covered period: no reasonable factfin-der could conclude otherwise. While Chas-ney’s opposition brief teems with subtle linguistic maneuvers (and more than a few red herrings), Chasney cannot avoid the plain consequences of its contracting through artful argument. The Court will thus GRANT Defendants’ First Motion for Partial Summary Judgment.
V. Defendants’ Second Motion for Partial Summary Judgment (ECF No. 51)
Defendants’ First Motion is directed toward all damages that Chasney allegedly incurred on or before October 31, 2013— whether delay damages or unpaid compensation under the Subcontract. Defendants’ Second Motion, by contrast, is directed toward delay damages exclusively — but now, Defendants contend that Chasney is entitled to no such damages whatsoever.
A. Chasney’s Delay Claim
Defendants propose that partial summary judgment is warranted because Chasney has failed to adduce any admissible evidence tending to show that the Government actually paid any portion of its delay claim. For his part, James Ancel has consistently testified that the Government denied Chasney’s claim “one hundred percent” as meritless. (See ECF Nos. 35-1 at 5; 51-3 at 6; 53-2 at 6-7.) Conversely, when asked on deposition what information he had received that led him to believe the Government had paid his firm’s claim, Peter Chasney admitted: “Don’t know. Never got that kind of information.” (ECF No. 51-7 at 13.) Because there is no evidence that JWA recovered any funds specifically allocable to Chas-ney’s claim,
The problem with Defendants’ analysis is that it conflicts with the plain language of Article 11 of the Subcontract. Article 11 provides that “[JWA] shall not be liable to [Chasney] for delays caused by the [Government] or other subcontractors or suppliers. [Chasney] shall he entitled to reimbursement only for damages for delays recovered from the [Government]....” (ECF No. 1-2 at 3 (emphasis added).) By its terms, Article 11 does not restrict Chasney’s putative recovery to those delay damages allocable to a particular claim approved by the Government. Nor does it limit Chasney’s recovery to those delay damages recouped by JWA acting on Chasney’s behalf.
This is not to suggest, of course, that Article 11 creates a carte blanche for recovery. Chasney will bear the burden of proof at a trial on its Miller Act claim, see United States ex rel. Patton Contractors, Inc. v. Innovative Performance Contracting, Inc., Civ. No. 3:13-CV-2198-D,
B. Chasney’s Cost-Estimation Method
Defendants alternatively propose that partial summary judgment is warranted because (1) Chasney intends to prove its damages pursuant to the disfavored “total cost method”
Although the Court is aware of no binding authority in this Circuit for the proposition that a litigant seeking to recover under the total cost method must prove each of the elements recommended in the AACE practice guide, the Court reserves judgment on the propriety of that recommendation.
Courts in this District have repeatedly denied summary judgment in cases in which the plaintiff has adduced some evidence corresponding to its damages, even where such evidence seems incomplete or where the court is skeptical of the plaintiffs prospects at trial. See, e.g., Wright Sols., Inc. v. Wright, Civ. No. CBD-12-178,
Litigants ignore arguments in disposi-tive motions at their peril. See, e.g., Khoshmukhamedov v. Potomac Elec. Power Co., Civ. No. 8:11-cv-00449-AW,
VI. Conclusion
For the reasons stated herein, an Order shall enter GRANTING Defendants’ First Motion for Partial Summary Judgment (ECF No. 27) and DENYING Defendants’ Second Motion for Partial Summary Judgment (ECF No. 51).
Notes
. Throughout this Memorandum, for clarity, the Court will refer to ECF No. 27 as Defendants' First Motion for Partial Summary Judgment (or Defendants’ First Motion); the Court will refer to ECF No. 51 as Defendants’ Second Motion for Partial Summary Judgment (or Defendants' Second Motion).
. The facts and the inferences to be drawn therefrom are taken in the light most favorable to the party opposing summary judgment — in this case, Chasney. See Scott v. Harris,
. As discussed below, the Miller Act requires government contractors on large projects to furnish performance bonds for the protection of the Government and payment bonds for the protection of subcontractors. See 40 U.S.C. § 3131(b).
.In an affidavit, James W. Ancel, Sr. (JWA's president) attested that his firm had worked with Chasney on several projects over the years and that “[i]n each case, the parties used JWA's form subcontract which requires releases be submitted before payments are made.” (ECF No. 35-1 at 3.) Ancel added that "[a]s a matter of company policy, JWA requires its subcontractors to sign releases on all of its projects as a condition precedent to any partial payments for work completed. (Id.)
. In a June 22, 2015, Memorandum, Judge William D. Quarles, Jr., held that the delay-damage provision of Article 11 is enforceable. (ECF No. 16 at 6-7.) That holding is the law of the case for the duration of these proceedings. See Christianson v. Colt Indus. Operating Corp.,
. The parties differ over the extent to which JWA assisted Chasney with the preparation of its delay claim. Peter Chasney, the firm’s president, attested that JWA "directed Chas-ney with respect to the means, manner, format, and contents of the delay claim” and that JWA ultimately "approved” the claim. (ECF No. 55 at 3.) James Ancel countered that JWA "gave Chasney some suggestions on how to revise its claim and requested that Chasney provide back[-]up documentation” but that "JWA never 'approved' Chasney's claim” because "JWA always had concerns about the accuracy and the amount of Chas-ney’s claim.” (ECF No. 35-1 at 4.) Ancel added that "JWA did not certify Chasney’s claim to the Government because JWA believed Chasney's actual costs were overstated and there was incomplete and insufficient supporting documentation.” (Id. at 5.)
. In his deposition testimony, Ancel expounded on the Government’s apparent disdain for Chasney's claim, averring that the USACE negotiators "denied Chasney’s claim one hundred percent,” deemed it a "total false claim,” and characterized it as "garbage.” (ECF No. 53-2 at 7-8, 10.)
. The Settlement Agreement includes "as fully resolved” all "actual or potential subcontractor claims for labor or material escalation, labor inefficiency, extended field overhead or unabsorbed/extended home office overhead.” (ECF No. 56 at 2.)
. The first $3,000,000 was payable within forty-five days after execution of the Settlement Agreement. (Id. at 4.) The remaining $300,000 was allocated toward additional utility-installation costs and would be "paid for as the work [was] completed on a percentage complete basis, as per the payment provisions of the Contract.” (Id.)
. In its response in opposition to JWA’s First Motion for Partial Summary Judgment, Chas- ' ney noted that James Ancel made a $75,000 settlement offer back in May 2014. (ECF No. 28 at 9.) In its February 2, 2016, Memorandum and Order, the Court ruled that evidence of Ancel’s settlement offer is inadmissible under Rule 408 of the Federal Rules of Evidence and therefore properly excluded at the summary-judgment stage. (ECF No. 52 at 8.) Consistent with its prior ruling, the Court will give no further consideration to Ancel’s settlement offer.
.In a Motion for Leave to Amend Complaint (ECF No. 37), which the Court denied on February 2, 2016 (ECF No. 52), Chasney indicated that "the discovery process has revealed that the amount paid by [JWA] to Chasney and/or to Chasney’s subcontractors and suppliers is greater than the amount set forth in the Complaint.” (ECF No. 37 at 5.) Accordingly, Chasney reduced its $79,882.45 labor- and-material claim to $6456.14. (ECF No. 37-2 at 4.) As will be discussed in detail below, the Court has determined that the October 31, 2013, Partial Release waives all claims relating to the Subcontract that arose on or before that date. However, the Court cannot determine from the summary-judgment record whether any portion of the remaining $6456.14 for labor and materials arose after October 31, 2013. Any such portion remains in controversy at this stage.
. Consistent with its strong protections for subcontractors, the Miller Act includes a restrictive waiver provision:
A waiver of the right to bring a civil action on a payment bond...is void unless the waiver is — (1) in writing; (2) signed by theperson whose right is waived; and (3) executed after the person whose right is waived has furnished labor or material for use in the performance of the contract.
40 U.S.C. § 3133(c). The parties do not address this waiver provision in their briefs. However, assuming arguendo that this provision could apply to the type of claim waiver at issue in this case, its requirements are satisfied by the Partial Releases: Chasney’s agents executed such releases in exchange for part payment after Chasney completed segments of work on the Project.
. The Bond at issue in this case is drafted in a manner consistent with these general principles: it provides that its obligation becomes void if JWA "promptly makes payment to all persons having a direct relationship with [JWA] or a subcontractor of [JWA] for furnishing labor, material or both in the prosecution of.. .the contract.. .and any authorized modifications of the contract that subsequently are made.” (ECF No. 1-1 at 1.)
. See United States ex rel. Renegade Equip., LLC v. W. Sur. Co., No. 3:07CV00187 JWS,
. Article 37 provides that the "Subcontract shall be governed by the laws of the State where the Contractor has its principal office.” (ECF No. 1-2 at 8.) JWA's principal office is located inTowson, Maryland. (Id. at 1.)
. See supra note 4.
. Chasney cites Fantle v. Fantle,
It is also worth noting that the Fantle court did not actually decide the waiver issue. In fact, in remanding for further evidentiary review, the court remarked that the record might ultimately show voluntary relinquishment of a known right. Id. at 382.
. Chasney also suggests that JWA’s interpretation of the Partial Releases "would mean that [JWA] submitted a false claim to the Government.” (ECF No. 28 at 16.) Chasney repeats this specious argument elsewhere, and the Court addresses it in Part IV.B, infra.
. Chasney further contends that JWA was obligated, pursuant to the Prompt Payment Act (“PPA”), 31 U.S.C. § 3905(b), to remit timely payments to Chasney. (ECF No. 28 at 19.) Thus, Chasney reasons, the Partial Releases must have lacked consideration — since JWA had a statutory obligation to pay Chas-ney regardless of whether it executed such releases. (Id. at 19-20.)
Chasney's contention fails for two reasons. First, the provision of the PPA on which Chas-ney relies — § 3905(b) — does not purport to impair or modify private agreements between contractors. Rather, it prescribes requirements for contracts awarded by federal agencies:
Each construction contract awarded by an agency shall include a clause that requires the prime contractor to include in each subcontract.. .(1) a payment clause which obligates the prime contractor to pay the subcontractor for satisfactory performance under its subcontract within 7 days out of such amounts as are paid to the prime contractor.. .and (2) an interest penalty clause which obligates the prime contractor to pay to the subcontractor an interest penalty on amounts due in the case of each payment not made in accordance with the payment clause....
Although this provision obviously inures to the benefit of subcontractors on federal projects, courts have consistently held that the PPA "does not confer a private right of action upon subcontractors,” United States ex rel. Drill Tech Drilling & Shoring, Inc. v. Lexon Ins. Co., No. SACV 14-01573 DDP (ANx),
Second, nothing in the PPA prevents parties from attaching conditions or provisos to their payment arrangements. Rather, the statute is directed toward the timing of payment. Article 5 of the Subcontract at issue here provides that Chasney shall furnish "releases of all claims and liens as a condition precedent for final payment” and that "[p]artial releases may be required at [JWA’s] option as a condition precedent to any partial payments for work completed.” (ECF No. 1-2 at 2.) That provision, which in turn supports the waiver language in the Partial Releases, has nothing whatever to do with the timing of payment. Consequently, the PPA is inapposite.
. In so doing, the Court finds itself in good company. See United States ex rel. Kogok Corp. v. Travelers Cas. & Sur. Co. of Am.,
. Chasney proffers a feeble excuse for its failure to exclude its delay claim from the October 31 Partial Release: “Given that [JWA],. .worked closely with Chasney in preparing and submitting the delay claim, it was unconceivable to Chasney that [JWA] would refuse to pay Chasney for its delay claim.’’ (ECF No. 28 at 13.) This is less an explanation and more a protestation; it is not the function of a federal court to save litigants from their lack of foresight. See Kogok Corp.,
. The Court stresses the sequence of events: by October 31, 2013, Chasney had submitted its delay claim through JWA for Government consideration; JWA had negotiated, finalized, and signed the Settlement Agreement with the USACE; and the lump-sum $3,000,000 payment had been invoiced. All that remained of this lengthy settlement process was for the Government to wire the funds to JWA’s account. For that matter, the October 31 Partial Release was executed on November 15, 2013 — nearly two weeks after JWA received its payment. Under such circumstances, Chas-ney’s contention that the release antedated •and therefore could not have operated to waive its delay claim holds no water.
. Because the Court grants Defendants' First Motion, Chasney will be precluded in these proceedings from recovering any damages (including but not limited to delay damages) arising out of work performed on or before October 31, 2013.
. In its opposition brief, Chasney attempts to discredit Ancel’s testimony, suggesting that "[h]ad the USACE truly rejected Chasney's delay claim...the USACE or [JWA] could have noted that ‘fact’ in the Settlement Agreement. .. .Accordingly, [the Court] is required to draw the justifiable inference.. .that the USACE neither rejected Chasney’s delay claim nor assigned it no value.” (ECF No. 53 at 4-5.)
Chasney is mistaken: the Court is required to draw no such inference, and in fact it would be improper for the Court to do so. Where the summary-judgment mov-ant presents competent evidence (through sworn testimony), and the nonmovant meets that evidence with nothing more than raw speculation, the nonmovant fails to establish a genuine dispute for trial. Cf. Holt v. Camus,
. Chasney picks up on this line of argument in its opposition brief, citing Nolfi Masonry Corp. v. Lasker-Goldman Corp.,
. See Youngdale & Sons Constr. Co. v. United States,
. Chasney has never explicitly stated that it intends to prove its damages via the total cost method. However, in his expert disclosure, Paul Krogh noted that Chasney had retained him to "calculate Chasney's total labor cost overrun and extended site costs incurred on the Army Reserve Center.” (ECF No. 51-5 at 2.) During his deposition, Krogh added that (1) Chasney’s delay claim was a total cost claim and (2) while Krogh adjusted the claim to reflect certain change orders, "in [his] mind [the claim is] still a total cost [claim].. .because the change orders are part of the contract.” (ECF No. 51-6 at 10.) As Krogh explained it, "you look at what did I spend, less my bid, less my approved change orders. That's my overrun.” {Id.)
. But see Youngdale & Sons Constr. Co.,
. Compare Propellex Corp. v. Brownlee,
. While failing to address Defendants’ cost-estimation argument, Chasney devotes the bulk of its opposition brief to a seemingly irrelevant inquiry into whether James Ancel adequately informed Chasney about the Government’s rejection of its delay claim and whether JWA impaired Chasney’s rights under the Subcontract. (See ECF No. 53 at 6-13.) This discussion seems more apposite to the state-law breach-of-contract theory that Chasney proposed through its untimely Motion for Leave to Amend Complaint. (ECF No. 37.) But the Court denied that motion in its February 2, 2016, Memorandum and Order. (ECF No. 52 at 12.) Consequently, this case is not about whether JWA may have impaired Chasney's rights or what the consequences of such impairment might be; it is simply about whether and to what extent Chasney may recover damages associated with the labor and materials it provided under the Subcontract.
. Cf. Campbell v. Hewitt, Coleman & Assocs., Inc.,