IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

for the use and benefit of 

MCALLISTER CONSTRUCTION CO.,

LLC, an Alabama limited liability company, 

Plaintiff, 

vs. CASE NO. 5:11-cv-100/RS-CJK

DIVERSIFIED MAINTENANCE SYSTEMS

INC., a Utah corporation,

Intervenor-Plaintiff,

vs. 

GREAT AMERICAN INS. CO., of NY,

a New York corporation,

Defendant.

_________________________________________ 

UORDER

Before me are Intervenor’s Motion for Summary Judgment (Docs. 29 & 30), 

Defendant’s Motion for Summary Judgment (Doc. 31), and Plaintiff’s Response in 

opposition (Doc. 35). 

Standard of Review

Summary judgment is appropriate when “there is no genuine issue as to any 

material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

Case 5:11-cv-00100-RS-CJK Document 37 Filed 12/08/11 Page 1 of 4
P. 56 (c). In other words, the basic issue before the court is “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of 

showing the absence of a genuine issue as to any material fact, and in deciding whether 

the movant has met this burden, the court must view the movant’s evidence and all 

factual inferences arising from it in the light most favorable to the nonmoving party. 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences 

arising from undisputed facts, then a court should deny summary judgment. Miranda v. B 

& B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile 

Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere ‘scintilla’ of evidence supporting the nonmoving party's position will not suffice; 

there must be enough of a showing that the jury could reasonably find for that party. 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 

251). 

Analysis

This is a simple Miller Act case. Intervenor, Diversified Maintenance Systems, 

Inc., (“DMS”), held a contract with the US Navy for work in Panama City, FL. 

Defendant, Great American Insurance Company of New York (“Great American”), 

issued a payment bond pursuant to 40 U.S.C. § 3131 for that project. DMS, a prime 

contractor, entered into a contract with Plaintiff as subcontractor. Plaintiff was to furnish 

Case 5:11-cv-00100-RS-CJK Document 37 Filed 12/08/11 Page 2 of 4
management, labor, materials, and equipment necessary for the project. Plaintiff claims 

that it completed, but has not received payment. (Doc. 1, ¶1-17). 

The relationship between the parties is governed by contract. The contract 

between DMS and Plaintiff (Doc. 1, Exhibit B) contains an arbitration provision. In 

relevant part it states: 

“In the event of disagreement between the parties over any 

matters arising out of the interpretation and/or enforcement of 

the terms of this Agreement or whatsoever nature, but not 

limited to, amounts of money allegedly owed by one party to 

another party which the parties have not resolved between 

themselves, either party shall select an arbitrator and give 

written notice thereof to the other party of the name and 

address of the arbitrator so chosen and describing the 

disagreement. Within ten (10) days after such notification, 

the other party shall advise the former in writing of the name 

and address of an arbitrator chosen by it. The two partyappointed arbitrators shall select an additional neutral 

arbitrator, and the three arbitrators shall select a time and 

place in Utah, at which time and place both parties shall 

present their versions and contentions concerning the matters 

in dispute. The subsequent decision of the majority of the

arbitrators shall be binding upon both parties. If for any 

reason any party fails to select an arbitrator within the time

above provided, the arbitrator selected by the other party shall 

be the sole arbitrator and the decision of said arbitrator shall 

be binding upon both parties. ... The decision of the 

arbitrators may be filed with the clerk of the Court which 

would have had jurisdiction over the parties or the subject 

matter if there had been no arbitration provision as set forth 

herein as a basis of judgment to be entered upon said decision 

or award. No party shall have recourse to the courts to settle 

any dispute or disagreement between the parties arising out of 

interpretation and/or enforcement of this Agreement without 

first having submitted the matter to arbitration as herein 

described, and then only to enforce the decision arrived at by 

the majority vote of said arbitrators. Pending final decision of 

any dispute, Subcontractor will proceed diligently in 

accordance with this Agreement.” 

Case 5:11-cv-00100-RS-CJK Document 37 Filed 12/08/11 Page 3 of 4
On September 29, 2011, DMS gave notice to Plaintiff of arbitration. (Doc. 35, 

p.2). Arbitration was conducted on October 27, 2011. Id. Plaintiff did not participate in 

this arbitration and now claims that it was invalid. 

 Plaintiff asserts that DMS’ intervention in this suit acts as a waiver of their right to 

arbitrate. (Doc. 35, p.4). Plaintiff claims “due to its prior conduct, DMS has settled on 

this forum and has elected against arbitration.” Id. This claim is without merit. DMS’ 

Motion to Intervene specifically makes mention of the arbitration provision. (Doc. 21, 

¶3). The motion states that DMS “has commenced arbitration” and would abide by the 

decisions of the arbitrator. It also asserts that Plaintiff brought the suit to evade 

arbitration. Id. By notifying Plaintiff of its intention to arbitrate, it should have been 

obvious that DMS was not waiving its rights but was seeking to enforce them. 

Because the contract clearly states that “no party shall have recourse to the courts 

to settle any dispute or disagreement between the parties arising out of interpretation 

and/or enforcement of this Agreement without first having submitted the matter to 

arbitration,” the Motions for Summary Judgment (Docs. 29&31) are GRANTED. This 

case is dismissed with prejudice. 

ORDERED on December 8, 2011. 

 /S/ Richard Smoak

 RICHARD SMOAK

 UNITED STATES DISTRICT JUDGE 

Case 5:11-cv-00100-RS-CJK Document 37 Filed 12/08/11 Page 4 of 4