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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA, for the 

use and benefit of MMC MECHANICAL 

CONTRACTORS, INC., a Nebraska 

corporation,

Plaintiff,

v.

TURTLE CREEK CONSTRUCTION, LLC, 

a Nebraska limited liability company, and 

MID-CONTINENT CASUALTY 

COMPANY, an Oklahoma insurance

corporation,

Defendants.

Case No. 8:23-cv-236

COMPLAINT, JURY DEMAND AND 

PLACE OF TRIAL DESIGNATION

COMES NOW, Use Plaintiff, MMC Mechanical Contractors, Inc, (“MMC”), by and 

through undersigned counsel, and for its claims against Defendants, Turtle Creek Construction, 

LLC (“Turtle Creek”) and Mid-Continent Casualty Company (“Mid-Continent”), state and allege 

as follows:

PARTIES

1. That MMC is a corporation organized and existing pursuant to the laws of the State 

of Nebraska operating as a mechanical contractor from its principal place of business located in 

Sarpy County, Nebraska at 9751 South 142nd Street, Omaha, Nebraska 68183.

2. That Turtle Creek a limited liability company organized and existing pursuant to 

the laws of the State of Nebraska operating as a general contractor on government projects from 

its principal place of business located in Buffalo County, Nebraska at 910 Avenue D, Kearney, 

Nebraska 68847 and can be served with summons through its designated registered agent, Adams 

& Sullivan, P.C., L.L.O., at 1246 Golden Gate Drive, Suite 1, Papillion, Nebraska 68046.

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3. That Mid-Continent is an insurance corporation organized and existing pursuant to 

the laws of the state of Oklahoma, domiciled in the State of Ohio, registered with the Nebraska 

Department of Insurance, engaged in the business of a corporate paid surety and can be served 

with summons through its designated registered agent, United Agent Group, Inc., at 5000 Central 

Park Drive, Suite 204, Lincoln, Nebraska 68504.

JURISDICTION AND VENUE

4. That jurisdiction and venue are proper in the United States District Court for the 

District of Nebraska pursuant to 40 U.S.C. § 3133(b)(3)(B) as the labor and materials furnished by 

MMC for the project described below were furnished within the District of Nebraska.

FACTS RELEVANT TO ALL CLAIMS

5. That prior to October 15, 2020, Turtle Creek was engaged as a general contractor 

for the United States Department of Defense (“USDOD”) for construction and remodeling to occur 

at specific locations at Offutt Air Force Base located in Sarpy County, Nebraska (the “Project”) to 

include repair/replacement of boiler and related HVAC work in specific buildings at the base (the 

“Work”) and that also prior to October 15, 2020, MMC submitted bids for its performance of the 

Work at the Project.

6. That on or about October 15, 2020, Turtle Creek and MMC entered into a 

subcontract agreement (the “Subcontract”) for MMC’s performance of the Work at the Project, 

which divided MMC’s work between three separate federal contracts to include federal contract 

number FA460020F0187 which is at issue in the present matter (the “Federal Contract”). 

7. That a true and correct copy of the Subcontract is attached hereto, labeled Exhibit 

“A” and incorporated herein by such reference

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8. That with respect to the Federal Contract (identified in the Subcontract as “B457-

SGBP 20-0061”), the Subcontract contained a total contract price of $429,868.00, which by 

subsequent change order was increased to $472,832.00.

9. That on or about July 26, 2022, Turtle Creek terminated the Subcontract for 

convenience. .

10. That despite MMC’s completion of the Work on the Project in compliance with the 

terms and conditions of the Subcontract through the date the Subcontract was terminated, there 

remains due and owing from Turtle Creek to MMC on the Subcontract the total amount of 

$166,117.23 (the “Remaining Contract Price”) and that although MMC has submitted applications 

for progress payments for Turtle Creek’s payment of the Remaining Contract Price to MMC as 

required by the Subcontract, Turtle Creek continues in its failure and refusal to pay MMC the 

Remaining Contract Price.

THE MILLER ACT, 40 U.S.C. § 3131 et seq.

11. That pursuant to provisions of The Miller Act, 40 U.S.C. § 3131 et seq. (the “Miller 

Act”), Turtle Creek and Mid-Continent bound themselves jointly and severally to ensure payment 

by the principal of the claims of all persons supplying labor and materials in the prosecution of the 

work provided for in the Subcontract, as well as any and all modifications thereof and that a true 

and correct copy of the Payment Bond is attached hereto, labeled Exhibit “B” and incorporated

herein by such reference.

12. That the Payment Bond was duly accepted by the United States of America and 

upon its acceptance the contract for construction of the Project was awarded to Turtle Creek.

13. That MMC has furnished all of the labor and material required of it under the 

Subcontract with Turtle Creek.

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14. That MMC is owed payment of the full amount of the Remaining Contract Price.

15. That Turtle Creek has failed and neglected to pay the sum of $166,117.23 under the 

Subcontract within ninety (90) days from the last day upon which MMC furnished labor and 

materials on the Project.

16. That MMC has made timely demand upon Turtle Creek for payment of 

$166,117.23, but Defendants have refused and continue to refuse to pay the same or any part 

thereof.

FIRST CAUSE OF ACTION: CLAIM ON BOND

17. That for its first cause of action against Defendants, MMC incorporates each the 

allegations contained in paragraphs 1 through 16 hereof as fully set forth herein.

18. That by reason of the failure of Turtle Creek and Mid-Continent to pay MMC the 

sum of $166,117.23 due and owing to it in accordance with the provisions of the Payment Bond 

(attached hereto as Exhibit B) and The Miller Act, Defendants have become indebted jointly and 

severally to MMC in the amount of $166,117.23.

19. That more than ninety (90) days but less than one (1) year has expired from the last 

day upon which MMC furnished labor and material to the Project.

20. That MMC has complied with all conditions precedent required of it under the 

contract, the Payment Bond and The Miller Act.

SECOND CAUSE OF ACTION: BREACH OF CONTRACT

21. That for its second cause of action against Turtle Creek, MMC incorporates each 

the allegations contained in paragraphs 1 through 20 hereof as fully set forth herein.

22. That Turtle Creek materially breached the Subcontract by failing to pay MMC for 

Work properly performed through Turtle Creek’s termination of the Subcontract for convenience.

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23. That Turtle Creek has failed to perform its obligation of payment under the terms 

of the Subcontract.

24. That as a direct and proximate result of Turtle Creek’s breach of the Subcontract, 

MMC has been damaged in the total amount of $166,117.23.

25. That pursuant to the terms of the Subcontract, MMC is entitled to recover its 

reasonable legal fees and costs incurred in collecting amounts owed to it under the Subcontract.

26. That despite demand, Turtle Creek has failed and refused to perform.

THIRD CAUSE OF ACTION: QUANTUM MERUIT

27. That for its third cause of action against Turtle Creek, MMC incorporates each the 

allegations contained in paragraphs 1 through 26 hereof as fully set forth herein.

28. That in the alternative, if and only if and to the extent that the Court determines that 

MMC is not entitled to recover any or all of its damages per its First and Second Causes of Action, 

then MMC is entitled to recover against Turtle Creek under this Third Cause of Action.

29. That Turtle Creek received and retained the benefits of MMC’s labor and service, 

and improvements to the Project.

30. That it would be inequitable, unjust and unconscionable to permit Turtle Creek to 

receive and/or retain the benefits of the labor and services, and the improvements to the Project, 

without compensating MMC for the reasonable value of those benefits.

31. That the fair and reasonable value of the benefits received and retained by Turtle 

Creek for which MMC has not been compensated is $166,117.23.

FOURTH CAUSE OF ACTION: VIOLATION OF THE NEBRASKA 

CONSTRUCTION PROMPT PAY ACT (NEB.REV.STAT. § 45-1201 et seq.)

32. That for its fourth cause of action against Defendants, MMC incorporates each the 

allegations contained in paragraphs 1 through 31 hereof as fully set forth herein.

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33. That at times relevant herein, MMC acted as a “subcontractor” for Turtle Creek as 

the term is defined by Neb.Rev.Stat. § 45-1202(6).

34. That MMC performed its scope of work in accordance with the provisions of the 

Subcontract and satisfied all conditions precedent to payment under the Subcontract.

35. That more than ten (10) days have passed since receipt by Turtle Creek of each 

periodic or final payment for the Project and MMC is entitled to the full amount for its work and 

materials based on work completed and services provided under the Subcontract.

36. That MMC has properly requested payment from Turtle Creek and Mid-Continent, 

but Turtle Creek and Mid-Continent have refused and failed to remit payment to MMC.

37. That Turtle Creek and Mid-Continent do not have a lawful basis to withhold 

payment due to MMC.

38. That MMC is entitled to interest on the unpaid balance due to it under the 

Subcontract pursuant to Neb.Rev.Stat. § 45-1205.

39. That MMC is entitled to an award of its reasonable attorney’s fees and costs as the 

Court determines is appropriate pursuant to Neb.Rev.Stat. § 45-1211.

FIFTH CAUSE OF ACTION: VIOLATION OF THE 

FEDERAL PROMPT PAYMENT ACT (31 U.S.C. § 3901 et seq.)

40. That for its fifth cause of action against Defendants, MMC incorporates each the 

allegations contained in paragraphs 1 through 39 hereof as fully set forth herein.

41. That Turtle Creek was awarded a construction contract by the USDOD, an 

“agency” as that term is defined under the U.S. Federal Prompt Payment Act (“FPPA”).

42. That at times relevant herein, MMC acted as a “subcontractor” for Turtle Creek as 

the term is defined by the FPPA.

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43. That as the prime contractor of the Project, Turtle Creek was bound by the payment 

terms of § 3905 of the FPPA.

44. That MMC satisfactorily performed its scope of work in accordance with the 

provisions of the Subcontract and satisfied all conditions precedent to payment under the 

Subcontract.

45. That more than seven (7) days have passed since receipt by Turtle Creek of payment 

by the USDOD of all amounts necessary to satisfy the payment terms of the Subcontract for the 

Project and MMC is entitled to the full amount for its work and materials based on work completed 

and services provided under the Subcontract.

46. That MMC has properly requested, in writing, payment from Turtle Creek and MidContinent, but Turtle Creek and Mid-Continent have refused and failed to remit payment to MMC.

47. That Turtle Creek and Mid-Continent do not have a lawful basis to withhold 

payment due to MMC.

48. That MMC is entitled to interest on the unpaid balance due to it under the 

Subcontract pursuant to 31 U.S.C. § 3902 and 31 U.S.C. § 3905(b)(2).

JURY DEMAND AND REQUEST FOR PLACE OF TRIAL

49. That MMC respectfully requests a jury trial on all claims and that the trial of this 

matter take place in Omaha, Nebraska.

REQUEST FOR RELIEF ON ALL CLAIMS FOR RELIEF

WHEREFORE, with regard to all claims for relief, MMC respectfully requests the Courts 

entry of judgment in MMC’s favor and for the following relief:

A. Judgment against the Payment Bond under the First Cause of Action in the amount 

equal to $166,117.23;

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B. Damages in favor of MMC under the Second Cause of Action in the total amount 

of $166,117.23;

C. Judgment in favor of MMC under the Third Cause of Action in the amount equal 

to $166,117.23;

D. Judgment in favor of MMC under the Fourth Cause of Action in the amount equal 

to $166,117.23;

E. Judgment in favor of MMC under the Fifth Cause of Action in the amount of 

$166,117.23;

F. Interest;

G. Costs and attorney fees; and

H. Such other, further, and different relief as the Court deems just and appropriate.

MMC MECHANICAL CONTRACTORS, 

INC., a Nebraska corporation, Use Plaintiff

By:____________________________________

David S. Houghton - #15204

Justin D. Eichmann - #22405

HOUGHTON BRADFORD WHITTED PC LLO

6457 Frances Street, Suite 100

Omaha, Nebraska 68106

(402) 344-4000 | (402) 930-1099 fax

dhoughton@houghtonbradford.com

jeichmann@houghtonbradford.com

Attorneys for Use Plaintiff

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