UNITED STATES OF AMERICA v. CUSTOM MECHANICAL SYSTEMS, INC. et al
||UNITED STATES OF AMERICA
||CUSTOM MECHANICAL SYSTEMS, INC. and LEXON INSURANCE COMPANY
||October 26, 2016
||US District Court for the Southern District of Indiana
||Mark J. Dinsmore
|Nature of Suit:
|Cause of Action:
||28 U.S.C. § 1352 Miller Act
|Jury Demanded By:
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|October 4, 2017
ORDER - This case involves the Miller Act, which requires bonds for certain types of government construction contracts. Subcontractor Sustainable Modular Management, Inc. ("SMM") brought suit against prime contractor Custom Mechanical Sy stems, Corp., also known as CMS Corporation ("CMS"), and surety Lexon Insurance Company ("Lexon"), related to a construction project at a Marine Corps Base in Hawaii. SMM alleged breach of contract and quantum meruit claims aga inst CMS and a payment bond claim against Lexon. [Filing No. 14 at 4-5.] On May 5, 2017, this Court dismissed several of SMM's claims against CMS and Lexon. [Filing No. 59 .] SMM then filed a Motion to Alter or Amend Judgment pursuant to R ule 59(e) of the Federal Rules of Civil Procedure, [Filing No. 63], which is now ripe for the Court's review. In addition, CMS and Lexon filed a Motion to file a Sur-Reply in opposition to SMM's Motion, [Filing No. 72 ], which the Court will also consider herein. For the reasons stated herein, Defendants' Motion for Leave to File a Sur-Reply, [Filing No. 72 ], is GRANTED and SMM's Motion to Alter or Amend Judgment, [Filing No. 63 ], which the Court treats as a Motion for Reconsideration pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, is DENIED. (See Order). Signed by Judge Jane Magnus-Stinson on 10/4/2017. (APD)
|May 5, 2017
ORDER ON DEFENDANTS' MOTION TO DISMISS - Granting 23 Motion to Dismiss for Failure to State a Claim. Defendant Custom Mechanical Systems, Corp., also known as CMS Corporation ("CMS"), entered into a contract with the United States Government in 2014 regarding a construction project at a Marine Corps Base in Hawaii. CMS subsequently entered into two subcontracts with Plaintiff Sustainable Modular Management, Inc. ("SMM"), related to the construction project. SMM h as sued CMS and its surety, Defendant Lexon Insurance Company ("Lexon"), alleging breach of contract and quantum meruit claims against CMS and a payment bond claim against Lexon. [Filing No. 14 at 4-5.] CMS and Lexon (collectively, &qu ot;Defendants") move to dismiss all of SMM's claims and its request for attorney's fees, [Filing No. 23 ], and SMM opposes that request, [Filing No. 41 ]. The Court grants CMS's Motion to Dismiss. [Filing No. 23 .] To the ex tent that SMM can plead a breach of contract claim and payment bond claim for an amount of damages not based on delay, taxes, or additional work, it must file a Second Amended Complaint by May 22, 2017, specifically asserting such a claim. If it d oes so, CMS and Lexon may answer or otherwise respond consistent with the Federal Rules of Civil Procedure. If SMM does not file a Second Amended Complaint by that date, CMS must file a notice by June 1, 2017 stating whether it intends to continue to pursue its counterclaim against SMM or third-party claim against GAIC or whether this Court can enter final judgment in its favor at that time. (See Entry.) Signed by Judge Jane Magnus-Stinson on 5/5/2017. (APD)
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