United States District Court, D. Nebraska
EQUIPMENT RENTAL SOURCE, LLC, a Colorado Corporation; Plaintiff,
WESTERN SURETY COMPANY, a South Dakota Corporation; Defendant.
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge.
matter is before the Court on the Motion for Summary Judgment
(Filing No. 28) submitted by Defendant Western Surety Company
(“WSC”). For the reasons stated below, the Motion
will be granted.
Rental Source, LLC (“ERS”) responded to each of
WSC's numbered facts and set forth additional facts in
response. (See ECF No. 31, Page ID 135-39.) The
Court has considered the additional facts to the extent they
are relevant. The following is a summary of the pertinent
facts presented in the parties' briefs, supported by
pinpoint citations to evidence in the record, according to
and Federal Rule of Civil Procedure 56.
Project and the Parties' Contractual
Nebraska Department of Roads (“NDOR”) owned a
construction project affecting a certain stretch of
Interstate 80 in Keith County, Nebraska (the
“Project”). On August 17, 2010, the NDOR entered
into a contract (the “Prime Contract”) with Upper
Plains Contracting, Inc. (“UPCI”). As part of its
obligations under the Prime Contract, UPCI procured a payment
bond from WSC, Bond No. 929507060 (the “Bond”),
under which WSC agreed to pay claimants for labor performed
and material, supplies, and equipment used or rented in the
performance of the Prime Contract. In its capacity as prime
contractor, UPCI engaged Paul Reed Construction
(“PRC”) as a subcontractor for certain work on
the Project. On March 28, 2011, PRC subcontracted with Arcon
to perform some of its work, related to concrete crushing,
for the Project (the “Arcon Subcontract”). Arcon
purchased and/or leased materials and/or equipment from
vendors, including Intermountain Construction Equipment, Inc.
(“ICE”), and Equipment Rental Source, LLC
(“ERS”), to perform work on the Project. ERS
claims that Arcon failed to pay all amounts due for the
materials and equipment purchased and/or leased from them.
Accordingly, on September 20, 2011, ERS submitted notice to
WSC of its claim on the Bond in the amount of $102, 672.11.
January 27, 2012, PRC filed the case of Paul Reed
Construction & Supply, Inc., v. Arcon, Inc., and Granite
Re, Inc., in the District Court of Scotts Bluff County,
Nebraska; Case No. CI12-56. PRC sought a declaratory judgment
on certain aspects of the Arcon Subcontract as well as
damages for breach of the Arcon Subcontract. On February 3,
2012, Arcon removed that action to this Court, captioned as
Paul Reed Constr. & Supply, Inc. v. Arcon,
Inc., 8:12-cv-00048-LSC-FG3 (the “Arcon
Action”). That same day, Arcon filed a Counterclaim
against PRC, alleging that PRC breached the Arcon Subcontract
by “fail[ing] to pay Arcon for the labor, equipment[, ]
and materials Arcon and Arcon's subcontractors and
suppliers performed or supplied on the Project.” (Arcon
Action, ECF No. 2, Page ID 24.) Arcon also filed a
Third-Party Complaint against WSC on the Bond, seeking
payment for its work on the Project, including payment for
equipment that ERS supplied. On September 16, 2014, ERS filed
a Motion to Intervene in the Arcon Action, proposing to
assert a claim on the Bond against WSC for $102, 672.11, due
to Arcon's alleged failure to pay. On September 26, 2014,
the Court denied ERS's Motion to Intervene.
October 21, 22, 23, and 28, 2014, the Court conducted a jury
trial in the Arcon Action. On October 30, 2014, the jury
returned a verdict in PRC's favor and against Arcon on
PRC's breach of contract claim; in PRC's favor and
against Arcon on Arcon's breach of contract claim; and in
Arcon's favor and against WSC on Arcon's claim
against the Bond. (Arcon Action, ECF Nos. 174, 176.) The jury
awarded PRC $14, 000.00 on its breach of contract claim
against Arcon, and awarded Arcon $13, 438.26 on its breach of
payment bond claim against WSC. (See Arcon Action,
ECF No. 200, Page ID 2341-42.) On December 22, 2014, the
Court determined that Judgment would be entered in PRC's
favor and against Arcon in the amount of net $561.74, because
the jury's verdict indicated that it intended the $13,
438.26 as an offset in the amount owed by Arcon to PRC.
(Arcon Action, ECF No. 201.)
Claims in this Case
October 15, 2014, ERS initiated a lawsuit in the District
Court of Douglas County, Nebraska. (ECF No. 1-2.) ERS
asserted a claim on the Bond against WSC for $102, 672.11 for
amounts Arcon failed to pay. (Id., Page ID 4-5.) ERS
also asserted a claim against Arcon for breach of the Rental
Agreement for that same amount. (Id., Page ID 10.)
Finally, ERS asserted a breach of contract claim against PRC,
alleging PRC breached the Arcon Subcontract by failing to
have Arcon obtain a separate payment bond for the benefit of
ERS. (Id., Page ID 11.) On or about October 15,
2014, ERS amended its Complaint, adding Arcon's
principal, Donna Schultejann (“Schultejann”), as
a defendant and asserting a claim against her for breach of a
personal guarantee that purported to secure Arcon's
obligations to ERS.
about November 21, 2014, Arcon, Schultejann, and ERS entered
into a Settlement Agreement and Mutual Release (the
“Settlement Agreement”) with respect to the
claims “arising out of the Project which include breach
of contract for unpaid material and equipment rental and
under the Personal Guarantee and questioning the accuracy of
amounts outstanding on the Sale-Invoice/Rental
Agreements” (ECF No. 29-3, Page ID 121-22.) Under the
terms of the Settlement Agreement, ERS agreed “to
accept the amount of Sixty-Five Thousand and no/100 Dollars
($65, 000.00) as a full and complete settlement of any and
all claims held by ERS against Arcon and/or Schultejann in
connection with the Project” (Id., Page ID
122.) As part of the Settlement Agreement, ERS executed an
Assignment of Claims (the “Assignment”) in favor
of Arcon with respect to ERS's “right, title[, ]
and interest in and to its claim as a supplier of [Arcon]
against Western Surety Company” on the Bond with
respect to its furnishing equipment for the Project. (ECF No.
29-4, Page ID 125.)
April 30, 2015, ERS filed a Second Amended Complaint,
asserting only a claim on the Bond against WSC (the
“ERS Action”). (ECF No. 1-4.) ERS omitted its
claims against Arcon, Schultejann, and PRC. On May 29, 2015,
WSC removed the ERS Action to this Court.
judgment is appropriate when, construing the evidence most
favorably to the nonmoving party, there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law.” Crozier v. Wint, 736 F.3d
1134, 1136 (8th Cir. 2013) (citing Fed.R.Civ.P. 56(c)).
“[S]ummary judgment is not disfavored and is designed
for every action.” Briscoe v. Cnty. of St.
Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (internal
quotation marks omitted) (quoting Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)
cert. denied, 132 S.Ct. 513 (2011)). In reviewing a
motion for summary judgment, the Court will view “all
facts and mak[e] all reasonable inferences favorable to the
nonmovant.” Gen. Mills Operations, LLC v. Five Star
Custom Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013).
“[W]here the nonmoving party will bear the burden of
proof at trial on a dispositive issue . . . Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving
party need not negate the nonmoving party's claims by
showing “the absence of a genuine issue of material
fact.” Id. at 325. Instead, “the burden
on the moving party may be discharged by ‘showing'
. . . that there is an absence of evidence to support the
nonmoving party's case.” Id. (quoting
response to the movant's showing, the nonmoving
party's burden is to produce specific facts demonstrating
“‘a genuine issue of material fact' such that
[its] claim should proceed to trial.” Nitro
Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th
Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine
issue for trial.” Briscoe, 690 F.3d at 1011
(internal quotation marks omitted) (quoting
Torgerson, 643 F.3d at 1042). “[T]he mere
existence of some alleged factual dispute between the
parties” will not defeat an otherwise properly
supported motion for summary judgment. Quinn v. St. Louis
Cty., 653 F.3d 745, 751 (8th Cir. 2011) (internal
quotation marks omitted) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
other words, in deciding “a motion for summary
judgment, facts must be viewed in the light most favorable to
the nonmoving party only if there is a genuine dispute as to
those facts.” Guimaraes v. SuperValu, Inc.,
674 F.3d 962, 972 (8th Cir. 2012) (internal quotation marks
omitted) (quoting Torgerson, 643 F.3d at 1042).
Otherwise, where the Court finds that “the record taken
as a whole could not lead a rational trier of fact to find
for the non-moving party, ” there is no “genuine
issue for trial” and summary judgment is appropriate.
Torgerson, 643 F.3d at 1042 (internal quotation
marks omitted) (quoting Ricci v. DeStefano, 557 U.S.
557, 586 (2009)).
argues that it is entitled to summary judgment on two
principal grounds. First, it argues that ERS lacks standing
to pursue the claims alleged against WSC. Second, WSC argues
that ERS's claims are barred under Nebraska's
“Little Miller Act, ” Neb. Rev. Stat.
§§ 52-118, 52-118.01 (Reissue 2010). The Court
concludes that ERS has standing to pursue its claims, but
lacks a contractual relationship ...