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United States v. Allen & Shariff Construction Services, LLC

United States District Court, Fourth Circuit

August 13, 2013

UNITED STATES for the use of TYMATT INDUSTRIES, INC., Plaintiff,


Ellen Lipton Hollander, United States District Judge

On November 26, 2012, Tymatt Industries, Inc. (“Tymatt”), the use plaintiff, filed suit under the Miller Act, 40 U.S.C. §§ 3131 et seq., against Allen & Shariff Construction Services, LLC (“Allen & Shariff”) and the United States Security Company (“USSC”), defendants. This Memorandum Opinion resolves defendants’ Motion to Dismiss (“Motion”) (ECF 3), filed under Fed.R.Civ.P. 12(b), which has been fully briefed.[1] For the reasons that follow, pursuant to notice provided to the parties, see ECF 4, I will convert the Motion to a motion for summary judgment pursuant to Fed.R.Civ.P. 12(d), and will enter judgment in favor of defendants as to Tymatt’s Miller Act claim on the ground that the claim is time-barred.


The Miller Act imposes certain obligations on the prime contractor on any “contract of more than $100, 000 . . . for the construction alteration, or repair of any public building or public work of the Federal Government.” 40 U.S.C. § 3131(b). Of import here, the Miller Act requires the contractor to furnish a payment bond, through a satisfactory surety, “for the protection of all persons supplying labor and material in carrying out the work provided for in the contract.” Id. § 3131(b)(2). The Act authorizes any “person that has furnished labor or material in carrying out work” under a Miller Act contract and who “has not been paid in full within 90 days after the day on which the person did or performed the last of the labor furnished or supplied the material” to bring “a civil action on the payment bond.” Id. § 3133(b)(1). Such a civil action must be filed “in the name of the United States for the use of the person bringing the action.” Id. § 3133(b)(3)(A).

According to the Complaint (ECF 1), Allen & Shariff was the prime contractor on a federal contract for the construction of a dam in Bethesda, Maryland, and related remediation. See Complaint ¶ 5. USSC was the surety on the Miller Act payment bond for the contract. Id. ¶¶ 3 & 6. Tymatt was a subcontractor on the project, and performed a variety of labor under the contract, pursuant to a subcontract between Allen & Shariff and Tymatt that plaintiff has appended to the Complaint. See ECF 1-1. Tymatt alleges that the “reasonable and agreed value” of its labor, under the original subcontract and subsequent approved change orders, was $545, 646.94. Complaint ¶ 8. However, Tymatt asserts that Allen & Shariff only paid $437, 981.68, leaving a balance due of $107, 665.26. Id.

The Miller Act contains a limitations provision, which states: “An action brought under this subsection must be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action.” 40 U.S.C. § 3133(b)(4). In the Complaint, Tymatt claims that the “date on which the last labor was performed and equipment supplied to [Allen & Shariff] by [Tymatt] was November 25, 2011.” Complaint ¶ 11. As noted, Tymatt filed its Complaint on Monday, November 26, 2012, seeking $107, 665.26 in damages, with interest and costs.

Additional facts will be included in the Discussion.


A. Procedural History

Defendants contend that Tymatt’s action is time-barred. In their Motion, defendants mention, in a footnote, that they dispute Tymatt’s allegation that its last day of work on the project was November 25, 2011. See Motion at 2 n.1. Instead, they assert that “Tymatt’s last day of work was either November 17, 2011, the last day of productive work by Tymatt on the site, or November 22, 2011, the day that Tymatt began to remove [its] equipment from the site.” Id. However, for purposes of their Motion defendants assume the truth of Tymatt’s allegation that its last day of work was November 25, 2011. Id. According to defendants, the Complaint nevertheless is time-barred on its face under the Miller Act’s one-year limitations provision, because Tymatt filed suit on November 26, 2011—one year and one day after its alleged last day of work.

Rule 6(a) of the Federal Rules of Civil Procedure applies, by its terms, inter alia, “in computing any time specified . . . in any statute that does not specify a method of computing time.” Defendants acknowledge that, ordinarily, the rule would operate to extend the one-year period in this circumstance, because November 25, 2012 (the one-year anniversary of November 25, 2011) fell on a Sunday, and Fed.R.Civ.P. 6(a)(1)(C) provides that, “if the last day [of a given time period] is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” So, if Fed.R.Civ.P. 6(a)(1)(C) applies here, Tymatt’s Complaint would be timely on its face. But, defendants rely on United States ex rel. Magna Masonry, Inc. v. R.T. Woodfield, Inc., 709 F.2d 249 (4th Cir. 1983), which they contend held, as a matter of controlling Fourth Circuit precedent, that Rule 6(a) does not apply to the limitations period of the Miller Act. Accordingly, they reason that Tymatt’s Complaint was filed one day too late.

Before Tymatt responded to defendants’ Motion, I issued an Order (ECF 4), in which I observed that, although Magna Masonry “appeared to hold that Rule 6(a) does not apply to the limitations period of the Miller Act, ” this ruling seemed inconsistent with more recent Fourth Circuit case law. See, e.g., Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000) (“We use Rule 6(a) in computing the limitations periods provided in statutes.”). I reasoned that, if “Magna Masonry represents the current state of circuit precedent” on the Miller Act’s limitations provision, “this Court may be required to dismiss plaintiff’s suit as time-barred, ” but that, on appeal, the Fourth Circuit might be inclined to reconsider Magna Masonry. I concluded that “it would be appropriate to make a record as to the actual date upon which the limitations period began to run, in order to facilitate review by the Fourth Circuit in the event of an appeal.” Accordingly, I directed the parties to submit, with their subsequent briefing of the Motion, affidavit and documentary evidence regarding the date that the Miller Act limitations period began to run. I also notified the parties that, if necessary to consideration of evidence submitted by the parties, I would exercise my discretion under Fed.R.Civ.P. 12(d) to convert the Motion to one for summary judgment.

Thereafter, Tymatt submitted its Opposition, accompanied by an affidavit of Ted Neuman, its owner and CEO. See Neuman Affidavit (ECF 5-1). And, defendants submitted their Reply, accompanied by an affidavit of its Project Manager, John Hyland, see Hyland Affidavit (ECF 6-2), and several other exhibits. See ECF 6-1, 6-3, 6-4, 6-5, 6-6, 6-7, 6-8.

B. Standard of Review

In their Motion, defendants rely on Fed.R.Civ.P. 12 as the vehicle for their challenge to the Complaint. Although they do not expressly invoke a specific subsection of Rule 12, they argue that plaintiff’s alleged failure to file suit within the limitations period deprives the Court of “subject matter jurisdiction over the untimely action.” Motion at 2. This suggests that their Motion arises under Rule 12(b)(1), which authorizes a motion to dismiss for “lack of subject-matter jurisdiction.” In considering a Rule 12(b)(1) motion, a court may, under some circumstances “consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004).

However, a statute of limitations is ordinarily considered “an affirmative defense, meaning that the defendant generally bears the burden of affirmatively pleading its existence, ” Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 (4th Cir. 2006), and it is “not jurisdictional.” Id. at 654 n.8. As I will explain, I do not conclude that the Miller Act’s statute of limitations presents a jurisdictional exception to this general rule. Accordingly, I will treat the limitations issue in this case as an affirmative defense.

An affirmative defense is the “‘defendant’s assertion raising new facts and arguments that, if true, will defeat the plaintiff’s . . . claim, even if all allegations in the complaint are true.’” Emergency One, Inc. v. Am. Fire Eagle Engine Co., 332 F.3d 264, 271 (4th Cir. 2003) (emphasis added) (internal citations and some internal quotation marks omitted). As indicated, defendant, rather than the plaintiff, bears the burden of pleading and proof as to an affirmative defense. See, e.g., Taylor v. Sturgell, 553 U.S. 880, 907 (2008) (ÔÇťOrdinarily, it is incumbent on the defendant to plead and prove [an ...

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