finding on summary judgment you're saying that what he has to do is find that there's no genuine issue of fact about whether the intermediate company was used as a agreement between spencer rock products and nugget construction and nugget construction decided that whether it was disclosed or not is not a matter for you had to disclose to spencer rock products vendors and nor is there any law that would require that the context in which this arose was the situation where now that had a contract with the government to build  not i don't believe there is all of this was it was actually the bank that approached spencer and said you need to enter into this supply agreement with nugget or this support agreement with nugget to tremendous exposure to the general contractor or to the government if they can't perform their contract they're ultimately on the hook so they enter into this agreement and it wasn't a particular benefit to them either they lost a significant amount of money turning to the question that you asked about the telescoping argument i'd like to just briefly discuss that the agreement or this question involves the relationship between that i believe what he was looking at is looking at determining if there was a set of tax that would enable the court to find whether there is an implied in fact contract only if that's the way it seems to me that the question is whether the claimant start to remove under the miller act if they're too remote they lose whether they're no matter what the contract is if they're not too remote they win no matter what the contract this nature of the contract wasn't the issue its remoteness that sort of issue so what the question is is whether spencer the inadequately capitalized rock supplier can be removed from the analysis for purposes of the miller act and i don't understand why that would be contract dependent and why it be construing alaska law at all alaska law one because the question of when you find a quasar contractual relationship is a question that applies alaska law but i don't understand why it matters whether you find contracts who are with you contractual when you're looking at government resting in a union organizing case or when you're looking at a sham corporation in a tax case you're just deciding whether spenser should be recognized as an existing entity for purposes of this analysis if you take if you would give up your position your honor then i still believe the judge in appropriately reached up make factual determinations and if i may why i can't why don't the facts show without a genuine issue that spencer does not exist as an intermediate entity here because it had no capital with which to perform the job it did not perform the question i raised material issues the fact that he just agreed with them specifically no involvement between now get and metro during the course of the project i e no control subject the only discussions with nec over subsequent that you're saying they're disputed but accepting the fact you're just disputing the legal conclusion he draws that they are material or immaterial in his game deposition experts with established anyone issues of fact certainly no direct contact with mexico and the discussion other than the record three twenty only discussions with northstar with and that under the harris decision is a perfect place for most of all communication between now get all communications with permissable the only question is whether whether they yeah nominal rock existing in so far as they remain retain primary responsibility for operating the spencer rock products corey that  spencer rock products by now get this doesn't raise to the level of that charge i don't see where one thirty seven paragraph twelve does the job for you what it says in the first paragraph it says under the contract spencer iraq remains responsible for operations at that would be responsible to no good for operations that really has neither here nor there and then the second sentence is under the support agreement nuggets personnel work alongside spencer rocks personnel to generate rock in the quarry and i don't understand where and then it continues on t spencer rock products entered into these agreements on its way i mean even it's not necessarily a bad thing it's just that sometimes you pierce a corporate veil sometimes you disregard the existence of the corporation because of the way it's used in that respect your honor i would suggest that what you really look for is the kargil analysis and the overriding control of spencer significantly different involvement what we simply had here was a general contractor who utilized its back charges to assist or its labor in equipment and back charge spencer for it to  completing a subcontract spencer remain an independent entity utilizing well had its own bank accounts made its own decisions operational decisions made its own  employees of spencer rock products nor did not get ever attempt to lower the vendors into believing that nugget would pay whenever they were communicated with nugget indicated that spencer rock products was responsible for about spencer rock products on debt in conclusion i believe that there are material issues in fact respecting intent and control which need to be resolved before this and that makes summary judgment inappropriate i will retain two minutes for a revival thank you your honor if you're asking is there evidence in this case that now get and spencer entered into their support agreement we're talking about the second agreement with an intent a specific intent at that moment to defraud claimants there is some circumstantial evidence of that but i would not say evidence that supports a summary judgment if that is your test well that's that's part of it  think that evidence is there and i was listening to one of your prior questions about specific intent and furthermore i don't think that one has to show  or well what you need to tell let's talk about that as far as i can see the great bulk of the cases are pretty strict  on how remote the recovering party can be from the contractor and your party's problem is that one step too far and what you've got as far as i can tell we have no quarrel with the cited decisions and they're referring to telescoping decisions where this has been done in cases involving and here's where judge nelson's words are are come from subterfuge collusion between the prime contractor and some contractor or circumstances indicating the interpretation of a straw man presumably for the purpose of insulating the prime contractor and surety company from exten act liability and we're fearful to rely on such a principle in view of its tendency to destroy the mcevoy will and nor are we willing to characterize the party as a paper so solely because he stopped all work required of him there must be circumstances of structure fused collusion or interpretation of straw men to warrant elimination of a party and claim some contract now and different cases you can have a joint venture situation you can have different facts or circumstances b in the harris decision you had different factual circumstances i don't think you had anything approaching the into position of a straw man that you have in and doing that what you have is a perfectly ordinary relationship where a nugget is the low bidder and part because it has a really good deal on the brock and spencer is the low better essentially replace tenser in its own bar and they do that but not through any sham or subterfuge through anything just as a matter of good business to perform their duty to the corps of engineers why isn't that a permissible inference from the evidence your honor i'll give you several reasons first of all and i never really gave spencer much of a chance it gave it was two weeks before nugget moved in the project work really this is what we can do are they agreed among themselves now i really think that how they came about this agreement isn't particularly relevant to to the situation that north star and the other finding or his conclusion and put it that way there so there's no getting gauged in subterfuges in his desire to keep the terms of the support agreement secret and he talks about what they did it also required spencer to keep the terms of the support agreement secret so as to prevent the parties from demanding payment directly from the legate now isn't that an inference o and why is that disputed in other words the sustained finding of super subterfuge is there that's a conclusion about what their purpose was in keeping it secret collins conclusion i think it's an unnecessary conclusion that he has to draw all inferences favorable to the nonmoving party what in other words what if they kept it secret because they didn't girl was any of their business it was just it was a private transaction they don't have to open their books up to these to your clients that was their purpose your honor the bottom line is this they did interposed a straw man they charge four million dollars of work against spencer that spencer had contracted with not get to do and under have refused doesn't spencer have to be a straw man from the get i don't think that under her track not i don't think that under harris spencer has to be a straw man from the get go spencer has to be a straw man before are that that process has to be underway  before perhaps the claimant does the work which clearly was the case why it seems to me that if i take the barest analysis if nugget enters into a perfectly good faith relationship with spencer expecting spencer to with spencer because of spencer's inability to perform your clients came forward and entered into the transaction spencer rock was under the support agreement with by the time my class did the future work of this called for by their timing if if this starts out as a straight up arrangement because i understand you to be reading terrorist to avoid having to prove either them became a straw man that is enough to satisfy her yesterday even if it started out with that i'm a nugget changed the deal and your clients thought they were dealing with a there is that responsibility i thought the way it worked was that generally people kept their contracts secret it's kind of like people don't tell their employees what their other employees get paid they don't tell ones or another is getting paid they don't tell one with the third start with another so what the terms are with general or any of that because they don't want people get mad that they didn't get something something is good your honor in this situation under the prompt pay act now you have the obligation to at least tell the federal government the contracting officer what was going on here and they didn't they had they were supposed to inform the federal government before they received progress payments and they believe this is not your responsibility to pay in our start cetera i have to address one thing before i leave in my times about the focus of all of your questioning has been and i and i understand why on the telescoping remedy but there was an alternative remedy that was very easy to find no one can dispute that nugget controlled spencer on this project the control was evident it security itself  creditor and receive the money first in line without telling anybody that control and that in enter position and interception of all the money unto itself that clearly establishes a agency relationship and that was argued to judge holland to he said that the remedies are the causes of action were virtually indistinguishable yet one question about the  agency cause of action and therefore didn't reach it but that was answered in the briefing for before him and at that point he said well i've already decided this case given as an alternative theory i'm giving you an alternative theory now what's the agency theory the for this project and not get intercepted was a secured credit or made itself a secured credit or in the second agreement and intercepts the money and paid itself and the that he's been briefed extensively in  where the you are arguing under supposed principles which run it's it can be disclosed are undisclosed to court according to cargill court it didn't matter but basically in this case you don't tell somebody i'm going with your own personality quick mind and management everything else and i could put it on shooter and that cory it put its own supervisor in the quarry nugget ran that corey and it ran it for nuggets benefit and it into my word or who once that it starts controlling that other organization becomes the principal as a matter of law and as a matter of fact as a matter of the restatement therefore you do much arrangement occurred even though it was memorialized in writing and you know the attorney's got around to it or whomever by and signed by both spencer and nugget on april twenty three one thousand nine hundred seven now even if you look however why don't you take one or two minutes to like you very much i'm representing two companies that operate out of seward shoreside petroleum that provided the fuel and loop for this entire operation and medco that provided some of the employees in response to your question it appears based on the uncontroverted testimony at its excerpt record one hundred seven which is the deposition of randy randy off and then the statements of counsel at page eleven toward the middle of the page that by the end of march one thousand nine hundred seven now that had to come in and take over the operations because spencer simply could not fulfill its terms under that contract from that point forward no good was effectively in the test that we've been looking at hasn't been developed extensively in case law and it takes a look at some to refuse collusion or circumstances indicating the inner position of straw men i don't know if there is real collusion here between nugget and spencer spencer was what by the time you get to the support agreement if you take a look at that agreement and it is part of the record it's pretty clear that that was a one sided agreement all the indemnification spencer indemnifying no get it states in there that if there's going to be any if there's any dispute the attorneys fees of nugget will be paid instead of spencer words have meaning contracts are sometimes fairly clear on their face by that point this was just not get written large problem poor was driving a truck from that point nugget sat back allowed bob look for spencer to go ahead and continue with these projects and there wasn't really much oversight of the three subcontractors when nugget needed fuel shore side provided it in states in the letter i think it exhibit her actual record sixty four sixty five we know this responded you knew there was a payment and we knew that this was a miller act project so we would get paid this thing is true with mexico they provided some laborers when they were needed for loading their own seward they sent a laborers over so they really didn't have to look to anyone for any specific management or oversight although it's real clear that this fellow and randy rand off who had worked spencer arc was immaterial and therefore wasn't as much when i finished covered by the miller are there for your contract worth absent some kind of more direct relationship so when just in a practical back and show that there was some kind of which george carlin going to want to have with the invitation found but that's the first instance when you say your people go into this field thinking they're doing with spencer  what do they do to make sure at that point that they are in fact bonded cover virally them and at that point they've had an agreement with spencer iraq and so that they were part of that they were subject to the bond little miller act for state construction projects and i think the average lay person just assumes this is a government project i can't mean the crown or the private property of the crown if it's a federal project they're sort of aware of the miller act and sort of aware that supposed to be paid if they provide services and cooperate in the effort saying it's true under the state's little miller act so sure site was providing if you will and understandably wants everything got developed in the matter got up to this panel a few years ago there was a determination that spencer was just a material person but from sort of a reasonable business person out there it was their perception that this was a bonded projects that was safe they would get paid if they perform i don't think you for the time you will see that spencer rock had a significant rock production business prior to this project and during the course of this project they also had a contract with a r r c to provide rep rap so they had an facts you'll find that that's very factually specific it required a full jury jury determination and the facts here are different and raised indicate that there's not a strong m present i see that my time is up to one another and point i'd like to make is simply that if you look at net co shoreside and then north star you'll see that the ordering of the services