Opinion
22-cv-02162-VKD
04-08-2022
UNITED STATES OF AMERICA FOR THE USE OF G & G HEAVY EQUIPMENT RENTALS, LLC, Plaintiff, v. CLARK REALTY BUILDERS, LP, et al., Defendants.
ORDER TO SHOW CAUSE RE FILING FEE
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE
On April 5, 2022, G&G Heavy Equipment Rentals, LLC (“G&G”) filed a complaint against defendant Clark Realty Builders, LP and CNA Surety Corporation under the Miller Act, 40 U.S.C. §§ 3131-3134. Dkt. No. 1. G&G claims that the defendant contractor owes G&G an outstanding balance of $168, 130.00, under a contract between G&G and the defendant contractor's agent, for G&G's provision of heavy moving equipment required for a federal construction project. Id.
G&G has not paid the $402.00 filing fee applicable to civil cases. On April 7, 2022, the Clerk's Office posted a notice for payment of the filing fee. It is the Court's understanding that G&G contends that it is not required to pay the fee because G&G essentially stands in the shoes of the United States when suing under the Miller Act.
Earlier, G&G inadvertently filed its complaint as a miscellaneous matter and stated that its complaint would be re-filed as a civil case. See No. 5:22-mc-80087, Dkt. No. 3. On the same day it filed the present civil action, G&G filed an Application for Refund of $49, which is the fee applicable to miscellaneous actions. G&G's application for refund should be filed on the docket in the miscellaneous action, rather than in the present case.
“The Miller Act requires a general contractor on a federal construction project to furnish a payment bond for the protection of all persons supplying labor and material in carrying out the work provided for in the contract, ” and provides subcontractors and sub-subcontractors that are not paid a right to file a suit in federal court against the payment bond. Technica LLC for the use and benefit of the United States v. Carolina Cas. Ins. Co., 749 F.3d 1149, 1151-52 (9th Cir. 2014) (internal quotations and citations omitted); see also 40 U.S.C. §§ 3131(b)(2), 3133(b). The Miller Act “represents a congressional effort to protect persons supplying labor and material for the construction of federal public buildings in lieu of the protections they might receive under state statutes with respect to the construction of nonfederal buildings.” Technica LLC, 749 F.3d at 1152 (internal quotations and citation omitted).
The Court is not aware that the civil action filing fee is waived for plaintiffs who file Miller Act claims, and it is the Court's understanding that plaintiffs who file such complaints do pay the filing fee. However, the Court will give G&G an opportunity to file a brief in response to this order and explain, with citations to cogent authority, why it is entitled to a waiver of the filing fee in this case by virtue of the filing of a Miller Act complaint. G&G's brief, not to exceed 5 pages, shall be filed by April 18, 2022.
See, e.g., Case No. 20-cv-01505-VC United States for the use and benefit of The New IEM, LLC, et al. v. Tri-Technic, Inc., et al; Case No. 20-cv-08774-TSH United States for the use and benefit of Steven Field Plumbing v. Anderson Burton Constr., Inc. et al; Case No. 20-cv-06037-SVK United States for the use and benefit of Harborside Constr., Inc. v. Heffler Contracting Group, et al; Case No. 21-cv-08572-SVK United States for the use of Asphalt Surfacing, Inc. v. Ahtna Design-Build, Inc. et al.
IT IS SO ORDERED.