STIPULATION TO RELATE CASES AND [PROPOSED] ORDER

PAUL S. GREWAL, Magistrate Judge.

STIPULATION TO RELATE CASES

Defendants, Walsh/DeMaria Joint Venture V ("Walsh/DeMaria"), Walsh Construction Company ("Walsh Construction"), The Walsh Group Ltd. ("Walsh Group"), DeMaria Building Company, Inc. ("DeMaria Building") (collectively "Walsh"), Travelers Casualty and Surety Company of America ("Travelers") and Liberty Mutual Insurance Company ("Liberty Mutual") (collectively the "Sureties"), Plaintiffs, The United States of America, for the use and benefit of J.R. Conkey & Associates, Inc. and J.R. Conkey & Associates, Inc. ("Conkey") and Plaintiff, The United States of America, for the use and benefit of Fought & Company, Inc. Fought & Company, Inc. ("Fought") (all collectively referred to as the "Conkey and Fought Parties"), by and through their respective counsel of record herein, hereby stipulate and agree as follows:

RELATED ACTIONS

WHEREAS, Plaintiff, J.R. Conkey, commenced an action entitled J.R. Conkey v. Walsh DeMaria Joint Venture V. et al. (N.D. Cal.) Case No. 5:14-cv-03360-PSG ("Conkey Action") by filing a complaint on or about July 24, 2014, in the United States District Court for the Northern District of California, including a cause of action for recovery on Miller Act Payment Bond, pursuant to 40 U.S.C. §§ 3131-3134, relating to monies allegedly owed for work performed at a Veterans Administration ("VA") hospital in Palo Alto;

WHEREAS, Plaintiff, Fought, commenced an action entitled Fought v. Walsh DeMaria Joint Venture V. et al. (N.D. Cal.) Case No. 5:14-cv-04401-HRL ("Fought Action") by filing a complaint on or about September 30, 2014, in the United States District Court for the Northern District of California, including a Miller Act Payment Bond claim for relief, pursuant to 40 U.S.C. §§ 3131 et seq., relating to monies allegedly owed for work performed at a Veterans Administration hospital in Palo Alto;

WHEREAS, Defendants, Walsh, filed a counter-claim against Conkey on or about December 8, 2014 in the Conkey Action, inter alia, for failing to defend and indemnify Walsh and its Sureties against the Fought Action and for breaching the Subcontract Agreement;

WHEREAS, Defendants, Walsh, filed a cross-claim in the Fought Action against Conkey on or about December 9, 2014 asserting the same claims alleged in its counter-claim against Conkey in the Conkey Action;

RELATIONSHIP OF THE ACTIONS

WHEREAS, Defendant Walsh/DeMaria entered into a contract (the "Prime Contract") with the United States of America, Department of Veteran Affairs, for the construction of the VA Palo Alto Health Care System Capital Asset Improvements, Phase I, Contract No. VA101CFM-C-0168 ("the Project"), also known as the VA Hospital, Palo Alto Polytrauma Blind Rehab Center, 3801 Miranda Avenue, Palo Alto, CA;

WHEREAS, on or about October 7, 2011, Walsh/DeMaria entered into and executed a Payment Bond with Travelers, Travelers Bond No. 105669430, and its co-surety, Liberty Mutual, Liberty Mutual Bond No. 013124426, with Walsh as principal and Travelers and Liberty Mutual as Surety;

WHEREAS, on or about February 3, 2012, Walsh/DeMaria entered into a written Subcontract Agreement with Conkey, Subcontract Number 212010S01 for certain labor and materials to be provided by Conkey on the Project;

WHEREAS, on or about October 17, 2012, Conkey entered into a sub-subcontract with Fought for certain labor, materials, and equipment on the Project;

CRITERIA FOR RELATED ACTIONS PER L.R. 3-12(a)

WHEREAS, Civil Local Rule 3-12 provides that actions are related when:

WHEREAS, the actions concern substantially the same parties because Walsh, Travelers, Liberty Mutual and Conkey are parties to both actions;

WHEREAS, the actions concern substantially the same transaction or event because the lawsuits arise from the same work for building demolition, for the same Project in Palo Alto for the VA, concerning the same contracts between Walsh and the VA, Walsh and Conkey, and Conkey and Fought, and claims are being made under the same bonds issued by the same Sureties. Further, Walsh filed the same claims for relief in its counter-claim and cross-claim against Conkey in the Conkey Action and Fought Action;

WHEREAS, there will be an unduly burdensome duplication of labor and expense and conflicting results if the cases are conducted before different judges because Walsh's counter-claim and cross-claim are the same in both cases. Further, the payment issues are substantially the same in both cases because they concern substantially the same parties, facts and law, as the claims in both actions are pursuant to the Miller Act;

WHEREAS, all Parties in the Conkey Action and Fought Action agree that these actions should be related; and

WHEREAS, the Conkey Action is the lowest numbered case, such that if the cases are related the Fought Action should be reassigned to Magistrate Judge Paul S. Grewal, who is assigned to the Conkey Action, pursuant to L.R. 3-12 (f)(3).

THEREFORE, IT IS HEREBY STIPULATED AND AGREED BY THE COUNSEL SIGNATORIES BELOW, ON BEHALF OF THEIR RESPECTIVE CLIENTS, AND THE PARTIES RESPECTFULLY REQUEST THAT THE COURT ORDER THE FOLLOWING:

(1) That the Conkey Action and Fought Action, including related counter-claims and cross-claims, should be related pursuant to L.R. 3-12 because the actions concern substantially the same parties, property, transaction or event and it appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges; and

(2) That the Clerk reassign the Fought Action to Magistrate Judge Paul S. Grewal pursuant to L.R. 3-12 (f)(3).

IT IS SO STIPULATED.

[PROPOSED]ORDER

The foregoing Stipulation to Relate Cases, by Defendants, Walsh/DeMaria Joint Venture V, Walsh Construction Company, The Walsh Group Ltd., DeMaria Building Company, Inc., Travelers Casualty and Surety Company of America and Liberty Mutual Insurance Company, Plaintiffs, The United States of America, for the use and benefit of J.R. Conkey & Associates, Inc. and J.R. Conkey & Associates, Inc. and Plaitniff, the United States of America, for the use and benefit of Fought & Company, Inc. Fought & Company, Inc., has been submitted to the Court for consideration.

THE COURT, HAVING REVIEWED AND CONSIDERED THE FOREGOING STIPULATION, AND GOOD CAUSE APPEARING THEREFOR, HEREBY ORDERS:

(1) That the cases entitled J.R. Conkey v. Walsh DeMaria Joint Venture V. et al. (N.D. Cal.) Case No. 5:14-cv-03360-PSG and Fought v. Walsh DeMaria Joint Venture V. et al. (N.D. Cal.) Case No. 5:14-cv-04401-HRL, including related counter-claims and cross-claims, are deemed related pursuant to L.R. 3-12 because the actions concern substantially the same parties, property, transaction or event and it appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges; and

(2) That the Clerk reassign the Fought Action, the highest numbered case, to Magistrate Judge Paul S. Grewal pursuant to L.R. 3-12(f)(3).

IT IS SO ORDERED.