NOT FOR PUBLICATION

UNITED STATES DISTRiCT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA

For the use and benefit of

STAN AND SON

CONSTRUCTION, L.L.C.

Plaintiff, Civil Action Nos. lI-03470(CCC)

1i-04607(CCC)

1 1-04503(CCC)

PENNSYLVANIA NATIONAL OPINION

MUTUAL CASUALTY INSURANCE

COMPANY

Defendant.

CECCIII, District Judge.

I. INTRODUCTION

This matter comes before the Court on Defendant Pennsylvania National Mutual

Casualty Insurance Company’s (“Defendant”) Motion to Dismiss Plaintiff Stan and Son

Construction, LLC’s (“Plaintiff’) Complaint pursuant to Fed. R. Civ, P. 12(b)(6), or in the

alternative, for Summary Judgment pursuant to Fed. R. Civ. P. 56, The Court has given careful

consideration to the submissions from each party. Pursuant to Fed. R. Civ. R. 78(b), no oral

argument was heard. For the reasons outlined herein, the Court grants Defendant’s Motion to

Dismiss Plaintiffs Complaint because Plaintiffs claim is time barred.

The Court considers any new arguments not presented by the parties in their papers or at

oral argument to be waived. See Brenner v. Local 514, United Bhd. of Carpenters & Joiners.

927 F.2d 1283. 1298 (3d Cir. 1991) (‘it is well established that failure to raise an issue in the

district court constitutes a waiver of the argument.”).

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IL BACKGROUND

The National Park Service, a bureau of the United States Department of Interior, initiated

a restoration project of the Ford Mansion at the Morristown Historical National Park in

Morristown, New Jersey. (Comp. ¶1 7.) The Department of Interior accepted the bid of

DeNicolola Design, LLC (“DeNicolola”), and awarded DeNicolola $126,468.55 for the

restoration project. (Id. ¶J 7, 8.) On February 16, 2010, Defendant 2executed a payment bond

for DeNicolola in the amount of $126,468.55. (Id.) DeNicolola subcontracted work on the

project to Courtet Restoration, LLC (“Courtet”), which then subcontracted the mansion’s roof

restoration project to Plaintiff, (Id. ¶ 10.) The contract provided that Plaintiff would receive

$65,000.00 for the job. (Id.) After completing the work on the mansion’s roof, Plaintiff

submitted its final invoice to Courtet on June 21, 2010. (Id. ¶ 14.) Subsequently, on August 30,

2010. Plaintiff gave notice of its claim to Defendant. (Comp. ¶ 16.) On October 6. 2010.

DeNicolola filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code. (Içi.

18.)

On June 15, 2011, Plaintiff filed suit alleging breach of the payment bond. 4 (Comp. ¶

20.) Plaintiff alleges that Defendant was required by 40 U.SC. §S3 131-3133 to assure payment

to ‘all persons supplying labor or materials” to the restoration project. 40 U.S.C.

§3131(b)(2)(1959)(referred to as the “Miller Act”). The Miller Act governs construction

contracts established with the United States goernment. 40 U.S.C. §270(a)-(d)(1935). amended

2 I)eNicholola is Defendant’s principal. (Comp. 8.)

In its August 30, 2010 letter to l)efendant, Plaintiff indicated that it completed the

project on June 15, 2010. (P1. Opp. Fx, I).)

Plaintiff filed two separate actions against Defendant and Courtet. Courtet filed a third

action against Defendant. On September 1. 2011. Defendant filed a Motion to Consolidate all

three cases because the claims arose from the same transaction occurrence and involved common

questions of law or fact. (I)ef. Motion to Consolidate 2. 3.) The motion was unopposed. On

Noxember 3. 2011. the Court ordered the three actions consolidated for all purposes, including

pre-trial discovery, arbitration and trial,

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by 40 U.S.C. fl313l-3133(l959). The Act provides that contractors in public construction

projects must obtain a performance and payment bond for all work performed under the contract,

and that a person who has performed labor or furnished material under the contract has the right

to sue on the payment bond for the amount contracted for. 40 u.s.c. § 3131(b), 3133(b).

Thus, Plaintiff seeks to collect $65,000.00 for the work it completed as a subcontractor in the

restoration project. (Comp. ¶ 20.)

Plaintiff stated in its Complaint that it “completed its work on June 15, 2010.” (comp. ¶

13.) Under the Miller Act, any action “must be brought no later than one year after the day on

which the last of the labor was performed or material was supplied by the person bringing the

action.” 40 U.S.C. §3133(b)(4).

On August 24,2011, Defendant filed a Motion to Dismiss, or in the alternative, a Motion

for Summary Judgment. Defendant argues that Plaintiff is time barred from pursuing its claim

under the Miller Act (Def. Motion to Dismiss 1.) In support of its position, Defendant has

attached to its Motion to Dismiss payroll records it obtained from the Department of Interior

under the Freedom ofInformation Act (“FOIA”). (Def. Motion to Dismiss Ex. D.) Specifically,

these payroll records indicate that Plaintiff’s last day of work on the project was June 11, 2010,

not June 15, 2010, as Plaintiff alleged in its Complaint. (j4) Thus, Defendant argues, the time

period for Plaintiff to bring suit under the Miller Act ended on June 11, 2011, one year after

Plaintiffs last clay of work on the project. Because Plaintiff brought suit on June 15, 2011,

Defendant asserts that Plaintiffs claim is time barred and should be dismissed.

In its opposition papers, Plaintiff admits that it made a mistake in claiming that its last

day of work on the project was June 15, 2010. (P1. Opp. 5.) Plaintiff explains that this oversight

was based on “looking at the last day ofthe payroll period, rather than the last day ofwork.” (jj

3

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7,) Thus, Plaintiff now concedes that its last day of work on the project was actually June 11.

2010. (Id. 5.) It seeks equitable tolling of the statute of limitations to preserve its claims.

111. LEGAL STADAR1)

A. Motion to Dismiss

For a complaint to survive dismissal pursuant to Fed. R. Civ. P. I 2(b)(6). it “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Coi. v. Twomblv.

550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept

all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in

favor of the non-moving party. See Phillips v. Cty of Allegheny, 515 F.3d 224, 234 (3d Cir.

2008). “Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. Furthermore, “[a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements’ of a cause of action will not do. Nor does a complaint

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.” Ashcroft,129

S. Ct. at 1949.

The burden of proof for showing that no claim has been stated is on the moving party.

404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages. Inc. v. Fidelcor. Inc.,

926 F.2d 1406, 1409 (3d Cir. 1991)). During a court’s threshold review, “[tjhe issue is not

whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to

support the claims.” 311 F.3d 198, 215 (3d Cir. 2002). If a

claim is dismissed pursuant to Rule l2(b)(6), the plaintiff may be granted leave to amend or

reassert the claim. In re Burlington Coat Factory Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).

4

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However, leave to amend is not warranted if “the complaint, as amended, would fail to state a

claim upon which relief could be granted.” Id..

B. Summary Judgment

Summary judgment is appropriate if the ‘depositions. documents, electronically stored

information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or

other materials” demonstrate that there is no genuine issue as to any material fact, and.

construing all facts and inferences in a light most favorable to the non-moving party, “the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), Pollock v.

Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The moving party has the initial

burden of proving the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323.

Once the moving party meets this burden, the non-moving party has the burden of identifying

specific facts to show that, to the contrary, there exists a genuine issue of material fact for trial.

See Matsushita Elec. Indus. Co. v. Zenith Radio Coi., 475 U.S. 574, 586—87. 106 5. Ct. 1348.

89 L. Ed. 2d 538 (1986). A fact is “material” if a dispute about that fact ‘might affect the

outcome of the suit under governing [substantivej law,” and a ‘genuine” issue exists as to that

fact ‘if the evidence is such that a reasonable jury could return a verdict for the non[-]moving

party.” A ersvibertvLo nc., 477 U.S. 242, 248 (1986). The Court’s role is to

determine whether there is a genuine issue for trial. not to weigh the evidence and decide the

truth of the matter, Id. at 249.

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IV. DISCUSSiON

A. Defendant’s Motion to Dismiss

Defendant argues that Plaintiff’s claim under the Miller Act is time barred because

Plaintiff filed suit more than one year after its last day of work on the project. (Def. Motion to

Dismiss 1.) The Miller Act requires claims to be brought within one year from the last day of

performance. 40 U.S.C. §3133(b)(4) (‘An action brought under this subsection must be brought

no later than one year after the day on which the last ofthe labor was performed or material was

supplied by the person bringing the action” (emphasis added).

Courts in this district, as well as other courts in the Third Circuit, have routinely

dismissed complaints under the Miller Act that were not filed within the one year time period.

See United States use of E.J. & Sons, Inc. v. Viatech Systems, Inc., No. 89-cv-1657, 1989 U.S.

Dist. LEXIS 11153 (D.N.J. Sept. 19, 1989) (granting defendant’s motion for summary

judgment); United States cx rd. J.D.M. Materials Co. v. Fireman’s Fund Ins. Co., No. 98-cv5186, 1999 U.S. Dist. LEXIS 1231 (E.D. Pa. Feb. 3, 1999) (granting defendants motion to

dismiss); Rca-Car, Inc. v. PNM Constr., Inc., No. 90-cv-7540, 1991 U.S. Dist. LEXIS 6890

(E.D. Pa, May 21, 1991) (granting defendant’s motion for summarvjudgment); United States use

415 F. Supp. 1328 (D. Del. 1976) (granting

defendant’s motion to dismiss).

Plaintiff mistakenly claimed that its last day of work on the project was .June 15, 2010.

(Comp. ¶ 13.) However, Defendant obtained payroll documents from the Department ol’ lnterior

b way of a FOJA request. and attached these payroll documents as an exhibit to its Motion to

Dismiss. (DeL Motion to Dismiss Ex, D). These documents indicate that Plaintiffs last day of

work on the project was actually June 11, 2010, which Plaintiff now concedes. (P1. Opp. 5.)

6

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Although “courts generally consider only the alleations contained in the complaint.

cxhibits attached to the complaint and matters of public record” when deciding a motion to

dismiss, “a court may consider an undisputedly authentic document that a defendant attaches as

an exhibit to a motion to dismiss if the plaintiffs claims are based on the document.” Pension

Benefit Guar, Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Here, the

payroll documents submitted by Defendant with its Motion to Dismiss indicate that Plaintiffs

last day of work was June 11. 2010. (Def. Motion to Dismiss Ex. D.) Plaintiff necessarily relies

on the work it completed on the project for its Miller Act claim. Moreover, although Plaintiff

indicates that June 15, 2010 was the last day ofthe payroll period for the project, Plaintiff admits

that June 11, 2010 was actually Plaintiffs last day of work on the project. (P1. Opp. 5.)

Although Plaintiff did not attach the payroll documents to its Complaint, Plaintiffs Complaint

does, in essence, rely on these payroll documents in order to support its Miller Act claim.

Further, Plaintiff does not dispute that the documents are authentic, and Plaintiff “obviously is on

notice of the contents ofthe document.” Pension, 998 F.2d at 1196-97. As such, considering the

payroll documents as part of Defendant’s Motion to Dismiss is appropriate. “Otherwise, a

plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to

attach a dispositive document on which it relied.” [4 at 1196.

In conclusion, Plaintiff had one year from June 11, 2010 to initiate its action under the

Miller Act. 40 U.S.C. §31 33(b)(4). Plaintiff filed the present action on June 15, 2011. (Comp. ¶

13.) Plaintiffs claim was initiated one year and four days after the last day that “labor was

performed.” See id. Consequently, Plaintiffs claim is time barred under the Miller Act, and

Defendant’s Motion to Dismiss should be granted.

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B. Defendant’s Motion for Summary Judgment in the Alternative

In the alternative, Defendant argues that summary judgment should be granted in its

favor. In considering Defendant’s Motion as one for Summary Judgment. this Court must

determine whether there is a genuine issue of material fact. Matsushita, 475 U.S. at 587-88.

Defendant alleges that Plaintiffs claims are time barred. (Def. Motion to Dismiss 1.) Plaintiff

was part)’ to a public construction project that is governed by the Miller Act. 40 U.S.C. §3 131-

3133(1959). The Miller Act requires claims to be brought within one year from the last day of

performance. 40 U.S.C. §3133(b)(4). Here, both parties agree that Plaintiffs last day of work

on the project was June 11, 2010. (P1. Opp. 5; DeE Motion to Dismiss 2.) Thus, there is no

genuine issue of material fact that Plaintiffs deadline to file its complaint under the Miller Act

was one year from June 11, 2010, or June 11. 2011. Plaintiff filed its complaint on June 15.

2011. four days afier the limitations period expired. Thus, the evidence is such that no

reasonable jury could find that Plaintiff filed its Complaint within the appropriate time period.

Under the summary judgment standard, Defendant’s Motion warrants granting. Anderson, 477

U.S. at 248.

C. Equitable Tolling

Plaintiff admits that it filed its Complaint outside of the time period afforded by the

Miller Act (P1. Opp. 6-8). However. Plaintiff requests that the Court utilize the equitable tolling

doctrine” to preserve Plaintiffs claim. Equitable tolling functions to stop the statute of

limitations from running x\here the claim’s accrual date has passed.” Oshiver .Levin. 38 F.3d

1380. 1387 (3d Cir. 1994)(citing 920 F.2d 446. 450 (7th Cir.

1990). The ‘l’hird Circuit has stated that the doctrine of equitable tolling: is applied

8

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“sparing1y.’” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 591(3d Cir, 2005) (quoting Nat’l

R.R. Passenger Corp. v. Morgan. 536 U.S. 110, 113.)

A plaintiff bears an “obligation” to “exercise due diligence to preserve his or her claim.”

Robinson v. Dalton, 107, F.3d 1018, 1023 (3rd Cir. 1997). As such, equitable tolling is a remedy

invoked in extraordinary circumstances that are distinguishable from instances where individuals

who have “missed carefully drawn deadlines” are seeking to preserve their claim. j. The Third

Circuit has held that equitable tolling may be appropriate in the following three situations: (1)

where the defendant has actively misled the plaintiff respecting the plaintiffs cause of action, (2)

where the plaintiff in some extraordinary way has been prevented form asserting his rights, or (3)

where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.”

Oshiver. 38 F.3d at 1387.

Plaintiff has not satisfied any of the three prongs outlined above. First, Plaintiff admits

that it made an “innocent mistake,” when it represented to Defendants, in its August 30, 2010

letter, that its last day of work was June 15, 2010. (P1. Opp 5; Def Reply 3-4.) Nowhere does

Plaintiff assert that it was misled by Defendant in believing that June 15, 2010 was its last day’ of

work. Second, Plaintiff has not established that it has, in some extraordinary way, been

prevented from asserting its rights. Oshiver. 38 F.3d at 1387. Instead, Plaintiff cites to its

“innocent mistake” of relying on the last day of the payroll period rather than on the last da of

actual work, (P1. Opp. 5-7). Plaintiff provides no evidence of “extraordinary’ circumstances that

prevented it from filing suit earlier. In fact. Plaintiff had ample time between October 2010.

when DeNicolola filed for bankruptcy, and June 11. 2011. the deadline under the Miller Act, to

file its Complaint. (Id. 18.) Finally. Plaintiff has not provided any evidence that it ‘timely

9

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asserted” its rights “mistakenly in the wrong forunL” Id. Here, Plaintiffs “innocent mistake”

led to an zimime!i filing in the propel’ forum.

In sum. Plaintiff has not met the requirements for equitable tolling. Podobnik._409 F.3d

at 591. Therefore, Plaintiffs claim is time barred under the Miller Act, and Defendant’s Motion

to Dismiss, or in the alternative, for Summary Judgment, should be granted.

V. CONCLUSION

Based on the reasons set forth above, Defendant’s Motion to Dismiss, or in the

alternative, for Summary Judgment. is granted and the Complaint is dismissed with prejudice.

An appropriate Order accompanies this Opinion.

CLAIRE C. CECCHL U.S.D.J.

DATED: March 28, 2012

I ()

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