USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1257
UNITED STATES OF AMERICA ON BEHALF OF
PITTSBURGH TANK & TOWER, INC.,
Plaintiff, Appellant,
v.
G & C ENTERPRISES, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Cyr, Boudin and Lynch,
Circuit Judges.
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Wayne P. Doane with whom Kevin M. Cuddy and Cuddy & Lanham were
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on brief for appellant.
Joanne F. Cole with whom W. John Amerling and Amerling & Burns,
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P.A. were on brief for appellee.
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August 10, 1995
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Per Curiam. This case involves the validity of a forum
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selection clause in a construction subcontract. Appellee G &
C Enterprises, Inc., was the general contractor on a project
to construct a jet fuel storage and distribution system at
Bangor International Airport for the military. G & C
subcontracted work on two large fuel tanks to appellant
Pittsburgh Tank & Tower, Inc. for an agreed payment of
$343,000. Pittsburgh Tank agreed to complete discrete
portions of its work in accord with deadlines spelled out in
the subcontract, and to indemnify G & C for any loss
resulting from delays caused by Pittsburgh Tank.
Pittsburgh Tank completed its work but, contending that
Pittsburgh Tank had failed to meet its deadlines, G & C
retained approximately $120,000 from the contract price.
Pittsburgh Tank then filed the instant action for the
$120,000 in federal district court in Maine, asserting a
claim against G & C for breach of the subcontract and a claim
on G & C's payment bond under the Miller Act, 40 U.S.C.
270b. The Miller Act bond protects contractors (and
subcontractors) who have furnished labor or materials on a
federal construction project, and a suit on the bond can be
brought in federal court. United States ex rel Sherman v.
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Carter, 353 U.S. 210 (1957).
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G & C moved to dismiss for improper venue, relying on a
forum selection clause in the subcontract, which provided
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that "venue of all suits arising against CONTRACTOR under
this contract shall be in Burlington County[, New Jersey]."
Pittsburgh Tank argued that the Miller Act's venue clause
trumped the contrary venue provision in the subcontract. The
Miller Act states that suit is to be brought "in any district
in which the contract was to be performed and executed and
not elsewhere . . . ." 40 U.S.C. 270b(b). The magistrate
judge and the district court rejected Pittsburgh Tank's
argument and dismissed the complaint for improper venue.
This appeal followed.
Pittsburgh Tank contends that the venue clause in the
Miller Act is jurisdictional, and the parties cannot contract
around it. The provision for venue in a particular federal
court "and not elsewhere" could be taken as a statement that
no other federal court has jurisdiction to hear a Miller Act
claim. In the past, lower federal courts took varying
positions on the import of this ambiguous clause. See, e.g.,
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Gigliello v. Sovereign Constr. Co. Ltd., 311 F. Supp. 371 (D.
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Mass. 1970) (interpreting the clause as jurisdictional);
Vermont Marble Co. v. Roscoe-Ajax Constr. Co., 246 F. Supp.
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439 (N.D. Cal. 1965) (discussing the "divergence of views"
about the meaning of the venue clause).
The Supreme Court, however, seems to have settled the
question in F.D. Rich Co. v. Industrial Lumber Co., 417 U.S.
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116 (1974). In the course of deciding a venue question in a
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Miller Act case, the Court said that the statutory language
in question was "merely a venue requirement." Id. at 124-26.
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Most of the cases after Rich have said that the disputed
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provision is simply a venue statute. See, e.g., In re
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Fireman's Fund Ins. Cos., 588 F.2d 93, 95 (5th Cir. 1979);
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Arrow Plumbing & Heating, Inc. v. North Amer. Mechanical
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Servs. Corp., 810 F. Supp. 369, 370 (D.R.I. 1993).
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Under conventional venue statutes, venue provisions have
long been subject to contractual waiver through a valid forum
selection agreement. See, e.g., National Equip. Rental. Ltd.
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v. Szukhent, 375 U.S. 311 (1964). Pittsburgh Tank has not
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argued that the selection clause in the subcontract is
invalid under traditional standards (e.g., for fraud). See
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Fireman's Fund Amer. Ins. Co. v. Puerto Rican Forwarding Co.,
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492 F.2d 1294, 1297 (1st Cir. 1974). And although the forum
selection clause here refers to a county that apparently
contains no federal court, both parties have treated the
clause as providing for venue in the federal district court
for the district of New Jersey. Accord, Arrow Plumbing, 810
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F. Supp. at 370.
We agree with appellant that the Supreme Court in Rich
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was not focusing on anything quite like the problem in this
case and Rich's venue reference was something of an aside.
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Still, the designation is explicit ("merely a venue
requirement") and very hard for a lower federal court to
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ignore. Possibly there are reasons why the Miller Act's
policies would warrant different standards for waiver of its
venue provisions than the standards conventionally applied.
But no such argument is made in this case, so we need not
pursue that issue here.
The only remaining question is whether the dismissal
should be affirmed or the case should be remanded for
transfer to a New Jersey district court, pursuant to 28
U.S.C. 1406(a). No such request was made to the district
court or in Pittsburgh Tank's brief in this court. But it
emerged at oral argument that the special one-year statute of
limitations may have run under the Miller Act, 40 U.S.C.
2706(b); counsel for G & C is to be commended for advising
the court that such a problem may exist. However, it appears
that Pittsburgh Tank may still sue on the subcontract under
state law without the Miller Act claim. There is no
indication that the general contractor is insolvent.
Under these circumstances, we affirm outright rather
than remanding for consideration of a transfer. It is rare
in a civil action to afford relief not requested in the trial
court and, at a minimum, further proceedings would be
required in the district court to allow G & C an opportunity
to argue against transfer. Since Pittsburgh Tank's state-law
contract claim apparently remains intact, we see no equitable
reason for a remand. Pittsburgh Tank is free to pursue the
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matter in the district court under Fed. R. Civ. P. 60(b), but
we express no views on the merits of such an endeavor.
Affirmed.
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