IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

CONDUCTIX, INC.

10102 F Street

Omaha, NE 68127

and

UNITED STATES OF AMERICA FOR THE 

USE AND BENEFIT OF CONDUCTIX, INC.

Plaintiffs,

vs.

K.C. ELECTRICAL CONSTRUCTION, INC.

4907 147th Street

Midlothian, IL 60445-2438

and

ALLEGHENY CASUALTY COMPANY

One Newark Center, 20th Floor

Newark, NJ 07102

Defendants

CASE NO. 2:18-CV-192

JUDGE 

COMPLAINT FOR BREACH OF 

CONTRACT AND RECOVERY 

UNDER MILLER ACT PAYMENT 

BOND

* * * *

JURISDICTION

1. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and provisions of 

the Miller Act, 40 U.S.C. § 3133(b)(3). This Court has pendent jurisdiction and 

supplemental jurisdiction over the state law claims alleged in this Complaint pursuant to 

28 U.S.C. § 1367.

VENUE

2. The contract at issue was to be performed in Monroe County, Ohio. Venue therefore lies 

in the United States District Court for the Southern District of Ohio pursuant to 40 U.S.C. 

§ 3133(b)(3)(B) and 28 U.S.C. § 1391(b)(2).

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PARTIES

3. Plaintiff Conductix, Inc. (“Conductix”) is a corporation organized and existing under the 

laws of the State of Nebraska, with a principal place of business at 10102 F Street, Omaha, 

Nebraska 68127. Conductix brings some of the following causes of action in the name of 

the United States of America, as provided for in the Miller Act, 40 U.S.C. § 3133. 

4. Defendant K.C. Electrical Construction, Inc. (“K.C.”) is a corporation organized and 

existing under the laws of the State of Illinois, with a principal place of business at 4907 

147th Street, Midlothian, Illinois 60445.

5. Defendant Allegheny Casualty Company is a Pennsylvania insurance business corporation, 

organized and existing under the laws of the State of Pennsylvania. 

STATEMENT OF FACTS

6. On or about January 30, 2017, Defendant K.C. entered into a contract with the United 

States of America through the U.S. Army Corps of Engineers, Pittsburgh District, to act as 

the prime contractor for the replacement of the conductor rail system at Hannibal Locks 

and Dam in Hannibal, Ohio (hereinafter the “Project”).

7. The contract number for the Hannibal Locks and Dam conductor rail system replacement 

is W911WN-17-C-8001 (hereinafter, the “Prime Contract”).

8. The Prime Contract amount was $466,400. 

9. Pursuant to 40 U.S.C.§ 3131 and since the Prime Contract amount was greater than 

$150,000, K.C. obtained both a performance bond and a payment bond from Defendant 

Allegheny Casualty Company. True and accurate copies of the performance bond and 

payment bond are attached to this Complaint as Exhibit A. 

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10. On or about March 4, 2017, K.C.’s president, Daniel Klaus, notified Conductix of K.C.’s 

intent to purchase electrical components for the Project. 

11. K.C. required two separate shipments of the electrical components. The first shipment, 

consisting of five copies of the manuals, occurred on March 24, 2017. See Invoice 

21166284 totaling $48.43, attached to this Complaint as Exhibit B. 

12. The second shipment, containing the electrical components, was delivered to K.C. at the 

Project address on September 7, 2017. See Invoice 21222027 totaling $83,546.65, attached 

to this Complaint as Exhibit C. 

13. Each invoice supplied by Conductix to K.C. clearly states the payment terms as net 30 

days, so payment on Invoice 21166284 was due April 23, 2017, and payment on Invoice 

21222027 was due October 7, 2017. See Exs. B and C. 

14. The total owed to Conductix under Invoices 21166284 and 21222027 is $83,595.08.

15. To date, Conductix has not been paid any of the $83,595.08 it is due. 

16. More than 90 days, but less than one year, has passed since the amounts were due to 

Conductix by K.C., and Conductix had a direct relationship with K.C., so this action is 

timely and proper pursuant to 40 U.S.C. § 3133. 

FIRST CLAIM: BREACH OF CONTRACT AGAINST K.C. 

17. Plaintiff Conductix incorporates by reference the preceding paragraphs of this Complaint 

as though fully set forth in this claim. 

18. Conductix performed its obligations under the contract between it and K.C. through its 

delivery of the electrical components and materials to the Project. 

19. K.C. breached the contract between it and Conductix when it failed and refused to pay 

Conductix for the electrical components and materials Conductix supplied to the Project.

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20. As a direct and proximate result of K.C.’s breach of contract, Conductix has suffered 

damages in the amount of $83,595.08, plus interest, attorney’s fees, and costs. 

SECOND CLAIM: MILLER ACT PAYMENT BOND CLAIM AGAINST ALLEGHENY 

CASUALTY COMPANY

21. Plaintiff Conductix incorporates by reference the preceding paragraphs of this Complaint 

as though fully set forth in this claim. 

22. Conductix supplied electrical components and materials to K.C. and the Project.

23. Conductix has not been paid amounts owed for supplying electrical components and

materials to K.C. and the Project.

24. Defendant Allegheny Casualty Company is obligated, pursuant to the payment bond 

attached to this Complaint as Exhibit A, and pursuant to the Miller Act, to pay Conductix 

for the electrical components and materials Conductix supplied to the Project as required 

by the contract between Conductix and K.C.

25. Conductix is entitled to payment from Allegheny Casualty Company pursuant to the 

payment bond in the amount of $83,595.08, plus interest, attorney’s fees, and costs. 

THIRD CLAIM: UNJUST ENRICHMENT AGAINST K.C. 

26. Plaintiff Conductix incorporates by reference the preceding paragraphs of this Complaint 

as though fully set forth in this claim. 

27. K.C. had knowledge that Conductix was supplying valuable electrical components and 

materials to the Project. 

28. K.C. benefited from Conductix’s supplying of electrical components and materials to the 

Project. 

29. K.C. failed and continues to fail to pay Conductix for Conductix’s electrical components 

and materials supplied to the Project. 

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30. K.C.’s receipt and retention of Conductix’s electrical components and materials supplied

to the Project without payment to Conductix is unjust. 

31. Conductix suffered and continues to suffer damages in the amount of $83,595.08, plus 

interest, attorney’s fees, and costs through the unjust enrichment of K.C. 

32. K.C. is liable to Conductix in the amount of $83,595.08, plus interest, attorney’s fees, and 

costs. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for:

1. Damages in the amount of $83,595.08 plus interest; 

2. Costs of suit incurred herein;

3. Reasonable attorney's fees; and 

4. Such other relief as the Court may deem just and proper. 

Respectfully submitted,

s/Michael R. Fortney _____________

Michael R. Fortney (#0092325)

Michael L. Fortney (#0032878)

FORTNEY LAW GROUP LLC

4040 Embassy Parkway, Suite 250

Akron, OH 44333

(330) 665-5445

m.fortney@fortneylawgroup.com

fortney@fortneylawgroup.com

Attorneys for Plaintiff Conductix, Inc.

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