Summary
noting that, although the Miller Act "allows a subcontractor who performed work on [federal] contract . . . to file suit against the prime contractor and the payment bond for unpaid sums," the statute "does not permit a prime contractor to cross-claim in district court against the United States"
Summary of this case from DME Constr. Assocs., Inc. v. United StatesOpinion
Civ. A. No. 3-88-3121-H.
September 8, 1989.
Randall F. Adair, Guest Morris Adair Julius, Dallas, Tex., for plaintiff.
John M. Groce, Forth Worth, Tex., for defendants.
Marvin Collins, U.S. Atty. by Stafford Hutchinson, Asst. U.S. Atty., Dallas, Tex., for third-party defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Third Party Defendants' Motion to Dismiss Third Party Complaint, filed July 14, 1989. The Motion is ripe for consideration, no response having been filed within the 20-day deadline imposed by Local Rule 5.1(e). Having considered the Motion, the Court makes the following ruling:
Third Party Plaintiffs St. James Construction Company and Amwest Surety Insurance Company have been sued by Phase II Contractors, Inc. for payment for work allegedly done by Phase II as a subcontractor for St. James on a contract with the U.S. Department of the Navy. Asserting that the United States must indemnify them, St. James and Amwest filed a Third Party Complaint against the United States.
The United States challenges the subject matter jurisdiction of the Court, claiming that under the Contract Disputes Act of 1978, 41 U.S.C. § 601 et seq., district courts are deprived of jurisdiction over suits on government contracts.
Jurisdiction over the initial complaint by Phase II rests on section 2 of the Miller Act, 40 U.S.C. § 270a et seq., which allows a subcontractor who performed work on a contract covered by the Miller Act to file suit against the prime contractor and the payment bond surety for unpaid sums. However, the Act does not permit a prime contractor to cross-claim in district court against the United States. Fett Roofing and Sheet Metal Co. v. Seaboard Surety Co., 294 F. Supp. 112, 118 (E.D.Va. 1968) ("The statute makes no provision for a cross-claim or counter-claim against the United States in Miller Act actions or under the Tucker Act, nor do these Acts provide for third-party actions against the United States."). See also United States v. Biggs, 46 F. Supp. 8, 11 (E.D.Ill. 1942).
Instead, Congress gave exclusive jurisdiction over disputes over government contracts to the Claims Court. In 28 U.S.C. § 1346(a)(2), commonly referred to as the Little Tucker Act, Congress expressly removed district court jurisdiction as to any civil action or claim against the United States which is subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978, codified at 41 U.S.C. § 607(g)(1), § 609(a)(1). In 28 U.S.C. § 1491(a)(2), Congress conferred jurisdiction over these claims upon the Claims Court.
The contract sued upon by St. James is covered by the Contract Disputes Act, both by the terms of the Act itself, see 41 U.S.C. § 602, and by the incorporation into the contract of Federal Acquisition Regulation clause 52.233-1 (stating that the contract is subject to the Contract Disputes Act). Thus, the Court has no jurisdiction over the Third-Party Complaint.
Therefore, the Third Party Defendants' Motion to Dismiss Third Party Complaint is GRANTED, and the Third Party Complaint is hereby DISMISSED.
SO ORDERED.