Summary
In Didomenico v. North American Construction Corp., 94 Fed. Appx. 598 (9th Cir. 2004), the surety argued that penalties and attorneys' fees allowed under California law are not remedies permissible under the Miller Act.
Summary of this case from GREG OPINSKI CONST. v. BRASWELL CONSTRUCTIONOpinion
Argued and Submitted March 24, 2004.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3) Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding.
George W. Wolff, San Francisco, CA, for Plaintiff-Appellant.
David A. Schnider, Sedwick, Detert, Moran & Arnold, LLP, Los Angeles, CA, James P. Diwik, Sedgwick, Detert, Moran & Arnold, San Francisco, CA, for Defendants-Appellees.
Before RYMER, THOMAS, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Louis Didomenico, doing business as Quality Consultants, appeals the district court's summary judgment dismissal of Didomenico's action to recover under North American Construction Corporation's Miller Act payment bond. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the district court's grant of summary judgment de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). We affirm.
Because the parties are familiar with the facts of this case, we recite them only as necessary to this decision.
Didomenico argues that the district court erred in holding that penalties and attorneys' fees allowed in Cal. Bus. & Prof.Code § 7108.5 are not "sums justly due" under the Miller Act, 40 U.S.C. §§ 270b(a) (2001). However, federal law, not state law, determines the remedies under the Miller Act. F.D. Rich Co. v. Indus. Lumber Co., 417 U.S. 116, 127, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974); United States ex rel. Walton Tech., Inc. v. Weststar Eng'g, Inc., 290 F.3d 1199, 1206 (9th Cir.2002). Because the contract in this case did not provide for fees or penalties, Didomenico was not entitled to attorneys' fees or penalties as "sums justly due" under the Miller Act. F.D. Rich, 417 U.S. at 126-27.
On August 21, 2002, Congress repealed §§ 270a-d. See Pub.L. No. 107-217, § 6(b), 116 Sat 1062, 1304, 1309-10 (2002). Because this case was pending on appeal, the prior §§ 270a-d apply to this case. Id. § 6(b), 116 Stat. 1304.
Didomenico argues that § 3905(j) of the Prompt Payment Act, 31 U.S.C. § 3905(j), incorporates state remedies as "sums justly due" under the Miller Act, effectively overruling F.D. Rich. This claim fails. The plain language of § 3905(j) of the Prompt Payment Act allows supplemental state law claims against contractor. It does not incorporate state law remedies into the Prompt Payment Act or Miller Act as Miller Act remedies that can be recovered from the surety or Miller Act
Page 600.
bond. See 31 U.S.C. § 3905(j); United States ex rel. Cal's A/C & Elec. v. The Famous Const. Corp., 220 F.3d 326, 328 (5th Cir.2000).
Although supplemental state claims may be asserted against a subcontractor, Didomenico did not assert supplemental state law claims against the contractor in district court. Thus, the district court did not abuse its discretion in treating all of the claims in this case as Miller Act claims.
AFFIRMED.