IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60251

JSI COMMUNICATIONS, 

 Plaintiff - Appellant

v.

TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Mississippi

Before JOLLY, HAYNES, and COSTA, Circuit Judges.

HAYNES, Circuit Judge:

Plaintiff JSI Communications appeals the district court’s grant of 

summary judgment in favor of Defendant Travelers Casualty & Surety 

Company of America on JSI’s payment bond and bad faith claims. We 

REVERSE and RENDER in part, REVERSE and REMAND in part, and 

VACATE and REMAND in part. 

I. Background

McMillan-Pitts Construction Company, LLC was selected as the prime 

contractor on a public project to construct the New Stoneville Office Building, 

Mississippi State University Delta Research and Extension Center, located in 

Stoneville, Mississippi (the “Project”). McMillan-Pitts was required to procure 

United States Court of Appeals

Fifth Circuit

FILED

December 4, 2015

Lyle W. Cayce

Clerk

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payment and performance bonds as surety for the Project, and McMillan-Pitts 

obtained these bonds from Travelers. Under their agreement, McMillan-Pitts 

and Travelers were jointly and severally liable for the covenants in the bonds. 

The agreement further specified that the bonds were “governed by and shall 

be construed in accordance with Mississippi law. Any inconsistency with these 

Bonds and any provision of Mississippi law shall be remedied by deleting the 

inconsistent portion of these Bonds and leaving the remaining consistent 

portions in full force and effect.”

Tackett Electric Company LLC was a subcontractor to McMillan-Pitts

on the Project, and Tackett subcontracted with JSI to install and test voice and 

data cabling as well as fiber optic cabling. JSI completed its work on the 

Project on July 31, 2012, and invoiced Tackett for $36,346.09. It is uncontested 

that JSI has not been paid this sum.

JSI is apparently not the only entity to which Tackett owes money. In 

March 2012, a Tackett creditor unrelated to the Project served a writ of 

garnishment on McMillan-Pitts, seeking access to any funds McMillan-Pitts 

owed Tackett. In response, McMillan-Pitts commenced an interpleader action

in Mississippi chancery court, which named as defendants Tackett, the 

unrelated Tackett creditor, and two Tackett subcontractors (not JSI) on the 

Project with which McMillan-Pitts and Tackett had joint check agreements. 

According to the complaint for interpleader, McMillian-Pitts believed these 

four defendants were “the only persons who may be interested in the subject 

proceeds or who may assert claims to the proceeds of McMillan-Pitts’[s]

contract with Tackett.” In connection with the interpleader action, McMillanPitts tendered $19,445.16, the amount of money it still owed Tackett for its 

work on the Project, into the court’s registry. On August 30, 2012, McMillanPitts obtained a judgment releasing it from any further liability on its 

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subcontract with Tackett, on the two joint check agreements, and on the writ 

of garnishment. 

On or about October 3, 2012—shortly after McMillan-Pitts obtained this 

judgment in the interpleader action—JSI notified both McMillan-Pitts and 

Travelers that it was seeking payment under the Project’s payment bond due 

to Tackett’s nonpayment of JSI’s invoice. On October 25, 2012, McMillan-Pitts 

amended its complaint for interpleader to include JSI and “all persons or 

entities supplying materials and/or labor to Tackett” on the Project. That same 

day, McMillan-Pitts obtained an amended judgment extending the previous 

release of liability to “any claim made by any other claimant made a party to 

this action for sums due and owing from [Tackett] for materials, supplies 

and/or labor provided to [Tackett] on the [Project].” 

On November 8, 2012, Travelers denied JSI’s claim on the bond on the 

grounds that McMillan-Pitts had received a judgment releasing it of any 

obligations under its subcontract with Tackett.1 JSI and Travelers exchanged 

further correspondence regarding JSI’s bond claim, but were unable to resolve 

the issue. Accordingly, JSI sued Travelers in state court, seeking payment 

under the bond, punitive damages, and attorneys’ fees. Travelers removed the 

case on the basis of diversity jurisdiction, and both parties moved for summary 

judgment. The district court granted summary judgment in favor of Travelers 

and denied JSI’s subsequent motion for reconsideration. JSI timely appealed.

II. Standard of Review

We review the district court’s grant of summary judgment de novo and

construe all facts and inferences in the light most favorable to the nonmoving 

 

1 Travelers initially also denied the claim on the grounds that JSI did not timely notify 

McMillian-Pitts of the claim within 90 days of completing the work, as required under 

Mississippi’s Little Miller Act. See MISS. CODE. ANN. § 31-5-51(3). Travelers eventually

dropped this defense during briefing on the cross-motions for summary judgment.

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party. See EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 

2009). Summary judgment is appropriate when “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of 

law.” FED. R. CIV. P. 56(a). 

III. Discussion

Because public property is not subject to private liens for nonpayment, 

Mississippi law requires contractors on public projects to procure bonds to 

ensure payment to those who work on the project. MISS. CODE. ANN. § 31-5-51; 

Key Constructors, Inc. v. H & M Gas Co., 537 So. 2d 1318, 1321 (Miss. 1989); 

Aetna Cas. & Sur. Co. v. Doleac Elec. Co., 471 So. 2d 325, 327 (Miss. 1985). 

Mississippi’s so-called Little Miller Act is premised on the federal Miller Act, 

which requires both a payment and a performance bond on federal projects 

worth more than $100,000. Key Constructors, 537 So. 2d at 1321; 40 U.S.C. 

§ 3131(b). Like the federal Miller Act, Mississippi’s Little Miller Act protects 

both subcontractors and sub-subcontractors. 40 U.S.C. § 3133(b)(2); MISS.

CODE. ANN. § 31-5-51(3). Those protected under Mississippi’s Little Miller Act 

“shall have a right of action upon the . . . payment bond upon giving written 

notice to [the] contractor within ninety (90) days from the date on which such 

person did or performed the last of the labor or furnished or supplied the last 

of the material for which such claim is made . . . .” MISS. CODE. ANN. § 31-5-

51(3). Furthermore, “the Mississippi Supreme Court has found federal court 

decisions interpreting the Federal Miller Act instructive and persuasive when 

interpreting Mississippi’s Little Miller Act.” Younge Mech., Inc. v. Max Foote 

Constr. Co., 869 So. 2d 1079, 1082 (Miss. Ct. App. 2004) (citing Key 

Constructors, 537 So. 2d at 1321).

Travelers maintains that it is no longer liable to JSI on the bond because 

“McMillan-Pitts’[s] liability to JSI was extinguished” by the chancery court 

judgment. The exact source of McMillan-Pitts’s liability to which Travelers is 

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referring is unclear. To the extent Travelers is arguing that its bond obligation 

to JSI was discharged because McMillian-Pitts is no longer liable on its 

contract with Tackett, we disagree. Under Mississippi’s Little Miller Act, 

second-tier contractors—like JSI—can sue on a payment bond absent a direct 

contractual relationship with the contractor. MISS. CODE. ANN. § 31-5-51(3)

(“Any person having direct contractual relationship with a subcontractor but 

no contractual relationship express or implied with the contractor furnishing 

said payment bond shall have a right of action upon the said payment 

bond . . . .”). Accordingly, that McMillan-Pitts has been released of liability to 

Tackett under the subcontract has no effect on JSI’s ability to recover under 

the bond. See Ill. Sur. Co. v. John Davis Co., 244 U.S. 376, 380 (1917) (noting 

under the federal Miller Act’s predecessor statute that “he who has supplied 

[labor and materials] to a subcontractor may claim under the bond, even if the 

subcontractor has been fully paid”); cf. Key Constructors, 537 So. 2d at 1323–

24 (noting that contractor was liable on the payment bond to a second-tier 

subcontractor even though the contractor had a valid defense against the firsttier subcontractor).

To the extent Travelers is arguing that its bond obligation was 

discharged under the chancery court judgment, we must construe the effect, if 

any, of that judgment2 on the Travelers bond obligation. We conclude that it 

has no effect on the bond liability. Our interpretation of the chancery court 

judgment begins by examining the very nature of interpleader proceedings. 

McMillan-Pitts interpleaded the funds in the chancery court in accordance 

with Mississippi Rule of Civil Procedure 22. In an interpleader action, the 

court must determine what entities are entitled to the property at issue, known 

 

2 We do not address the troubling concept of amending a judgment to address a party 

added that day.

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as the “stake.” See First Nat’l Bank of Vicksburg v. Middleton, 480 So. 2d 1153, 

1155–57 (Miss. 1985); Md. Cas. Co. v. Sauter, 344 F. Supp. 433, 436–37 (N.D. 

Miss. 1972). The discharge of liability the interpleader receives is defined by 

the scope of the funds interpleaded. See MISS. R. CIV. P. 22(b) (“Any party 

seeking interpleader . . . may deposit with the court the amount claimed, . . . 

and the court may thereupon order such party discharged from liability as to 

such claims and the action shall continue as between the claimants of such 

money or property.” (emphasis added)); Lee v. W. Coast Life Ins. Co., 688 F.3d 

1004, 1011 (9th Cir. 2012) (“The stake marks the outer limits of the 

stakeholder’s potential liability where the respective claimants’ entitlement to 

the stake is the sole contested issue; however, where the stakeholder may be 

independently liable to one or more claimants, interpleader does not shield the 

stakeholder from tort liability, nor from liability in excess of the stake.” (citing 

State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 535 (1967))).3 

According to the amended complaint for interpleader, the stake in the 

interpleader action was the “proceeds of [the] contract between McMillan-Pitts 

and Tackett”—$19,445.16.4 Any funds relating to McMillan-Pitts’s bond 

obligation (and that of Travelers) were clearly not included in the interpleader 

action. This obligation is separate and distinct from any obligation McMillanPitts and Travelers had on the Tackett subcontract.5 Because Mississippi law 

 

3 Because Mississippi’s rules are generally modeled after the Federal Rules of Civil 

Procedure, Mississippi courts often find federal authority persuasive when considering 

similar Mississippi rules. BB Buggies, Inc. v. Leon, 150 So. 3d 90, 96 (Miss. 2014); Middleton, 

480 So. 2d at 1156.

4 JSI’s claim on the payment bond is for $36,346.09. Even if JSI were entitled to all 

of the money that McMillan-Pitts interpleaded, which is unlikely, it would still be due 

$16,900.93. Under Travelers’s interpretation of the chancery court judgment, JSI would have 

no recourse to recover this remaining sum. 

5 That the chancery court judgment had no effect on Travelers’s bond obligation is 

underscored by the fact that Travelers does not maintain that JSI’s claim is precluded under 

res judicata or collateral estoppel. Res judicata would not apply because the bond was not 

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defines the release the interpleader receives by the scope of the stake, the 

interpleader action does not shield Travelers (a non-party) from liability that 

arises from its bond obligation.

The original judgment releasing McMillan-Pitts was limited to specific 

sources of liability: the Tackett subcontract, the joint check agreements, and 

the writ of garnishment. When the judgment was amended to extend the 

release to additional claimants,6 there is no indication that the chancery court 

intended the extension to operate as a release of an entirely separate obligation

owed by an unnamed party that was never at issue in the interpleader action, 

namely the statutorily mandated payment bond. This payment bond was not

referenced in the amended judgment, nor did McMillan-Pitts mention the

existence of the bond in its amended complaint. Construing the chancery court 

judgment in light of what sources of liability were before the court, we do not 

interpret the judgment as having any effect on obligations under the payment 

bond. 

This construction of the judgment also comports with the policies 

underlying the Little Miller Act. To permit the chancery court to sub silentio 

nullify Travelers’s bond obligation would be contrary to the very purpose of 

Mississippi’s Little Miller Act, which is to provide protection to subcontractors 

in the absence of lien rights. See Aetna Cas. & Sur., 471 So. 2d at 327; see also 

 

the subject matter (or necessarily part of the same set of operative facts) of the interpleader 

action. See Dunaway v. W.H. Hopper & Assocs., Inc., 422 So. 2d 749, 751 (Miss. 1982). 

Collateral estoppel is also not a bar to recovery because the parties did not litigate the bond 

obligation. See id. 

6 The exact effect of the chancery court’s release of liability vis-à-vis JSI is unclear, 

given that McMillan-Pitts appears to have no contractual obligation to pay JSI in the event 

of Tackett’s nonpayment. Any obligation on the part of McMillan-Pitts arose from the 

payment bond, which, from the pleadings, was not at issue in the chancery court case. Given 

our determination that the chancery court judgment does not release Travelers from the 

bond, we need not determine its effect on any other obligations.

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United States ex rel. Martin Steel Constructors, Inc. v. Avanti Constructors, 

Inc., 750 F.2d 759, 761 (9th Cir. 1984) (“The purpose of the [Miller Act] is to 

protect persons supplying materials and labor for federal projects, and it is to 

be construed liberally in their favor to effectuate this purpose.” (quoted by Key 

Constructors, 537 So. 2d at 1322)).

Travelers draws our attention to the indemnification agreement between 

it and McMillan-Pitts. Under this agreement, if JSI recovered on its bond 

claim against Travelers, Travelers would seek indemnification from McMillanPitts. According to Travelers, requiring McMillan-Pitts to indemnify Travelers

would “circumvent the effect and purpose” of the chancery court judgment. 

Mississippi law does not require the contractor to indemnify its surety. Rather, 

Travelers and McMillan-Pitts entered into this agreement between themselves 

and likely priced their bond agreement in accordance with the existence of the 

indemnification clause. That McMillan-Pitts might have to indemnify 

Travelers is irrelevant and has no bearing on our decision regarding 

Travelers’s bond obligation to JSI under Mississippi’s Little Miller Act. 

We thus conclude that Travelers remains liable to JSI on the payment 

bond, requiring reversal of the summary judgment granted to Travelers on this 

claim. We then turn to whether summary judgment should have been granted 

to JSI on its cross-motion. To prevail on its payment bond claim under 

Mississippi’s Little Miller Act, JSI must provide “(1) written notice of the claim, 

(2) within ninety days from the date on which [JSI] last performed labor or 

furnished or supplied the materials, and (3) [state] the amount of the claim 

with substantial accuracy.” Younge Mech., 869 So. 2d at 1083. The evidence 

submitted at summary judgment established that JSI satisfied these 

requirements. Travelers has offered no basis, other than those rejected above,

for its failure to pay. Accordingly, we conclude that JSI is entitled to recovery 

under the bond and summary judgment on liability for the invoiced amount 

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should have been granted in the amount of $36,346.09. JSI also requested 

attorneys’ fees and other sums. We remand those matters to the district court 

for ruling in the first instance. JSI also sought bad faith damages from 

Travelers. The district court’s summary judgment in favor of Travelers on this 

claim was based upon its erroneous determination that Travelers was not 

liable to JSI on the bond. Thus, we vacate the grant of summary judgment and 

remand for reconsideration in light of our opinion herein.

Accordingly, we (1) REVERSE the district court’s grant of summary 

judgment in favor of Travelers on the bond claim; (2) RENDER judgment in 

favor of JSI on the issue of Travelers’s liability under the bond in the amount 

of $36,346.09; (3) REMAND for the district court to consider the other fees and 

costs relevant to JSI’s bond claim; and (4) VACATE the summary judgment on 

the bad faith claim and REMAND for reconsideration of JSI’s bad faith claim 

in light of this opinion.

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