DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this case arising under the Miller Act is a motion to dismiss filed by Defendant SEI Group, Inc. ("SEI"). (ECF No. 7). The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be denied.
The following facts are set forth in the complaint. (ECF No. 1). On or about October 22, 2012, SEI entered into a contract with the United States government for the construction of a "Helium Recovery Plant" in Gaithersburg, Maryland ("the project"). (Id. at ¶ 14). As required under the Miller Act, SEI furnished performance and payment bonds to the government naming Defendant The Guarantee Company of North America USA ("Guarantee") as the surety on the project.
SEI subcontracted with Defendant All State Construction, Inc. ("All State"), which, in turn, entered into a sub-subcontract with Plaintiff Ariosa & Company, LLC, "for the performance of work and the furnishing of labor and materials for completion of the installation of [a] mechanical component structure" of the project. (ECF No. 1 ¶ 9).
Plaintiff commenced this action on November 25, 2013, bringing separate counts against All State, SEI, Guarantee, and CNA Surety, d/b/a Western Surety Company — the surety on bonds furnished by All State — asserting jurisdiction under the Miller Act, 40 U.S.C. §§ 3131 et seq., and seeking a judgment against all defendants in the amount of "$137,515.00 plus interest, attorneys' fees and costs[.]" (ECF No. 1 ¶ 12). On February 28, 2014, SEI filed the pending motion to dismiss the second count of the complaint, the sole count against it, pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 7). Plaintiff filed a response in opposition on March 21 (ECF No. 15) and SEI filed a reply on April 7 (ECF No. 16).
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4
At this stage, the court must consider all well-pleaded allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4
The Miller Act requires a general contractor on a federal construction project of more than $100,000 to furnish, inter alia, a payment bond "for the protection of all persons supplying labor and materials in carrying out the work provided for in the contract." 40 U.S.C. § 3131(b)(2). "The Act further provides that any person who furnishes labor or materials for such a bonded project and has not been paid may sue on the bond for the amount due," but recovery is limited "to first- and second-tier subcontractors." Datastaff Technology Group, Inc. v. Centex Const. Co., Inc., 528 F.Supp.2d 587, 592-93 (E.D.Va. 2007) (citing 40 U.S.C. § 3133). Pursuant to § 3133(b)(2), a second-tier subcontractor is required to provide written notice to the general contractor within ninety days of the date it last performed the labor or supplied the materials that form the basis of its Miller Act claim.
To state a claim under the Miller Act, the plaintiff must set forth facts showing that "(1) it has furnished labor or material in carrying out work provided for in a contract for which a payment bond is furnished[;] . . . and (2) it has not been paid in full within 90 days." U.S. ex rel. Tenn. Valley Marble Holding Co. v. Grunley Constr., 433 F.Supp.2d 104, 114 (D.D.C. 2006) (internal citation and marks omitted). The statute is "highly remedial in nature" and is liberally construed to "effectuate the Congressional intent to protect those whose labor and materials go into public projects." Clifford F. MacEvoy, Co. v. U.S. for Use & Benefit of Calvin Tomkins Co., 322 U.S. 102, 107 (1944).
SEI argues that dismissal is warranted because it "does not have any contractual obligations to Plaintiff by virtue of the contract by and between All State and Plaintiff." (ECF No. 7-1, at 4). In other words, SEI suggests that it could only be liable under the Miller Act if it were in direct contractual privity with Plaintiff. This argument is belied by the statutory language, which expressly authorizes "[a] person [i.e., Plaintiff] having a direct contractual relationship with a subcontractor [i.e., All State] but no contractual relationship, express or implied, with the contractor furnishing the payment bond [i.e., SEI] [to] bring a civil action on the payment bond on giving written notice to the contractor within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made." 40 U.S.C. § 3133(b)(2). There appears to be no dispute that Plaintiff is a second-tier subcontractor; thus, assuming it provided the requisite notice and filed its claim in a timely manner, it has a right to recover labor and material costs expended under the sub-subcontract.
Insofar as the statute permits an action to be brought "on the payment bond," courts generally agree that a surety may be sued directly and that a general contractor, such as SEI, is not an indispensable party. See United States ex rel. Henderson v. Nucon Contr. Corp., 49 F.3d 1421, 1423 (9
On the other hand, to the extent that Plaintiff sought to bring a common law tort or third party beneficiary claim, as suggested in its opposition papers, the complaint does not support liability. To state a claim for negligence, the plaintiff must allege that the defendant owed a duty of care, see Iodice v. United States, 289 F.3d 270, 281 (4
For the foregoing reasons, the motion to dismiss filed by SEI Group, Inc. (ECF No. 7), will be denied. A separate order will follow.