USA for Pittsburgh v. G & C Enterprises

First Circuit

USA for Pittsburgh v. G & C Enterprises

CourtCourt of Appeals for the First Circuit

DecidedAugust 10, 1995

Docket95-1257

StatusPublished

This text of USA for Pittsburgh v. G & C Enterprises (USA for Pittsburgh v. G & C Enterprises) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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USA for Pittsburgh v. G & C Enterprises, (1st Cir. 1995).

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Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________

No. 95-1257

UNITED STATES OF AMERICA ON BEHALF OF
PITTSBURGH TANK & TOWER, INC.,

Plaintiff, Appellant,

v.

G & C ENTERPRISES, INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge] ___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges. ______________

____________________

Wayne P. Doane with whom Kevin M. Cuddy and Cuddy & Lanham were ______________ ______________ ______________
on brief for appellant.
Joanne F. Cole with whom W. John Amerling and Amerling & Burns, ______________ _________________ __________________
P.A. were on brief for appellee. ____

____________________

August 10, 1995
____________________

Per Curiam. This case involves the validity of a forum __________

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. _____________ _______________

Carter, 353 U.S. 210 (1957). ______

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., _________

Gigliello v. Sovereign Constr. Co. Ltd., 311 F. Supp. 371 (D. _________ __________________________

Mass. 1970) (interpreting the clause as jurisdictional);

Vermont Marble Co. v. Roscoe-Ajax Constr. Co., 246 F. Supp. __________________ _______________________

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. _____________ _____________________

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. ___

Most of the cases after Rich have said that the disputed ____

provision is simply a venue statute. See, e.g., In re __________ ______

Fireman's Fund Ins. Cos., 588 F.2d 93, 95 (5th Cir. 1979); _________________________

Arrow Plumbing & Heating, Inc. v. North Amer. Mechanical ________________________________ _______________________

Servs. Corp., 810 F. Supp. 369, 370 (D.R.I. 1993). ____________

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.

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USCA1 Opinion




UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-1257



                        UNITED STATES OF AMERICA ON BEHALF OF

                            PITTSBURGH TANK & TOWER, INC.,



                                Plaintiff, Appellant,



                                          v.



                               G & C ENTERPRISES, INC.,



                                 Defendant, Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,



                                   Circuit Judges.
                                   ______________



                                 ____________________



            Wayne P. Doane with whom  Kevin M. Cuddy and  Cuddy & Lanham  were
            ______________            ______________      ______________

        on brief for appellant.

            Joanne F. Cole  with whom W. John  Amerling and Amerling &  Burns,
            ______________            _________________     __________________

        P.A. were on brief for appellee.
        ____


____________________



                                   August 10, 1995

                                 ____________________



Per Curiam.  This case  involves the validity of a forum
                 __________



            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.
                                         _____________ _______________



            Carter, 353 U.S. 210 (1957).
            ______



                 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.,
                                                               _________



            Gigliello v. Sovereign Constr. Co. Ltd., 311 F. Supp. 371 (D.
            _________    __________________________



            Mass.  1970)  (interpreting  the clause  as  jurisdictional);



            Vermont Marble Co.  v. Roscoe-Ajax Constr. Co.,  246 F. Supp.
            __________________     _______________________



            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.
                        _____________     _____________________



            116 (1974).  In the course of deciding a venue question  in a


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                                         -3-



Miller Act case,  the Court said that the  statutory language



            in question was "merely a venue requirement."  Id. at 124-26.
                                                           ___



            Most  of the  cases after  Rich have  said that  the disputed
                                       ____



            provision  is simply  a  venue  statute.   See,  e.g., In  re
                                                       __________  ______



            Fireman's Fund  Ins. Cos., 588  F.2d 93, 95 (5th  Cir. 1979);
            _________________________



            Arrow  Plumbing &  Heating, Inc.  v.  North Amer.  Mechanical
            ________________________________      _______________________



            Servs. Corp., 810 F. Supp. 369, 370 (D.R.I. 1993).
            ____________



                 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.
                                  _________  ____________________________



            v. Szukhent,  375 U.S. 311  (1964).  Pittsburgh Tank  has not
               ________



            argued  that the  selection  clause  in  the  subcontract  is



            invalid under traditional  standards (e.g., for fraud).   See
                                                  ____                ___



            Fireman's Fund Amer. Ins. Co. v. Puerto Rican Forwarding Co.,
            _____________________________    ___________________________



            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
                                              ______  ______________



            F. Supp. at 370.



                 We agree  with appellant that the Supreme  Court in Rich
                                                                     ____



            was not focusing  on anything quite like the  problem in this



            case and  Rich's venue reference  was something of  an aside.
                      ____



            Still,   the  designation  is   explicit  ("merely   a  venue



            requirement") and  very  hard for  a lower  federal court  to


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                                         -4-



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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                                         -5-



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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