United States of America for the Use of Asphalt Surfacing, Inc. v. Ahtna Design-Build, Inc.

1] ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Law Corporation Anthony P. Niccoli State Bar No. 219118 ANiccoli@aaltr.com 3} Michael J. Davis State Bar No. 299196 MDavis@aaltr.com 41 5075 Hopyard Road, Suite 210 Pleasanton, California 94588-3361 Telephone: (925) 227-9200 ‘ Fax: (925) 227-9202 4 Attorneys for Use Plaintiff ASPHALT SURFACING, INC. 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE 11 UNITED STATES OF AMERICA FOR THE Case No. 5:21-cv-08572-SVK USE OF ASPHALT SURFACING, INC., a 12} California corporation, JOINT BRIEF AND STIPULATION TO TRANSFER VENUE: ORDER GRANTING 13 Plaintiff, STIPULATION Complaint Filed: | November 4, 2021 Pp vy, 15] AHTNA DESIGN-BUILD, INC., an Alaska corporation; GREAT AMERICAN 16! INSURANCE GROUP, an Ohio corporation, Bond No. 3348912, Defendants. — 18 — — 19 — 20 Pursuant to the Court’s September 13, 2022 Order (Docket # 29), the parties to the above 21} entitled action jointly submit this JOINT BRIEF AND STIPULATION TO TRANSFER VENUE. 22 I. Introduction 23 se On September 6, 2022 in the related action pending in the United District Court in Alask — 24 — under ECF No. 3:21-CV-00228-JMK, the District Court denied Defendants Asphalt Surfacing — 25 — Inc. (“AST”) and United Fire & Casualty Company Bond No. 54-197210’s Motion to Dismiss o 26 Transfer for Lack of Personal Jurisdiction, and held that the action shall remain in the District o 27 Alaska. (See ECF No. 3:21-CV-00228-JMK Docket # 30). 28 On September 13, 2022, this Court ordered that the parties submit a joint dismissal or joint _1TL brief addressing whether the matter should be dismissed or the stay should remain in place 2|| (Docket # 29). 3 The parties have met and conferred regarding the disposition of this matter and have 4| agreed that transfer to the District Court in Alaska is appropriate. Accordingly, the parties jointh 5] stipulate to transfer this matter to the Alaska District Court pursuant to 28 U.S.C. § 1404 (a). 6 II. Transfer is Appropriate and Proper 7 The Court has the power to transfer this matter to the Alaska District Court and the partie are in agreement that the matter should transfer. Such a transfer would be for the convenience o the parties and witnesses and in the interests of justice. 10} A. This Court has the Power to Transfer the Action 1] Section 1404(a) provides that “For the convenience of parties and witnesses, in the interest o8 12} of justice, a district court may transfer any civil action to any other district or division where i might have been brought or to any district or division to which all parties have consented.” 2! 14] ULS.C.A. § 1404. One of the initial questions before this Court was whether the Miller Act’s venu 15} provision at 40 U.S.C. § 3133 (b)(3) was jurisdictional or a venue requirement subject to th 16] parties’ forum selection clause. This Court found that the venue provision is a venue requiremen 17} that was overridden by the forum selection clause in Parties’ Subcontract. (Docket # 24). 18 As this Court has found that the forum selection clause is valid, Alaska is a proper venu: 19} for disputes between the parties. The District Court in Alaska has subject matter jurisdiction ove 20} this dispute, as evidenced by Judge Kindred’s ruling in ECF No. 3:21-CV-00228-JMK Docket ; 21} 29 (Attached hereto as Attachment #1). Accordingly, the Miller Act claim might have bee 22] brought in the Alaska District Court and this Court has the power to transfer this matter to th 23 Alaska District Court. 24] B. Convenience of the Parties and Witnesses Supports Transfer 25 Discovery is currently underway between ASI and Ahtna Design-Build (“ADB”) in EC] 261 No. 3:21-CV-00228-JMK, which involves substantially similar facts and circumstances as th 27} above-captioned matter. The only difference is that the instant action includes the Miller Act clain 281 and, as a result, Great American Insurance Group (“Great American”) as a named defendant eee Great American’s interest in this matter is substantially the same, as they provided the Miller Ac 2} bond to Ahtna Design-Build (“ADB”) for the federal public works project at issue and □□□□□□□□ 3] their obligations under the bond, regardless of where the action is maintained. 4 Transferring this action to Alaska would bring the entire dispute into one District Court fo case management through ultimate disposition. Accordingly, transfer is appropriate for th convenience of the parties and witnesses. 7|C. Transfer is in the Interests of Justice 8 ASI brought its timely Miller Act claim in the Northern District of California in good faitl 9} and to comply with the statutory venue requirement set forth at 40 U.S.C. § 3133 (b)(3). Miller Ac 10] claims “must be brought no later than one year after the day on which the last of the labor wa 11] performed or material was supplied by the person bringing the action.” 40 U.S.C. § 3133 . Mille o8 12] Act plaintiffs “may prosecute the action to final execution and judgment for the amount due.” 40 13] U.S.C. § 3133. If this action were dismissed instead of transferred, ASI would be deprived of it 14] right to prosecute its claim to its ultimate disposition as it would not be able to timely assert it 15} Miller Act claim in the District Court in Alaska. ASI and ADB do not dispute that the Distric Court in Alaska has personal jurisdiction over the Miller Act claim, and do not dispute th “2 17] suitability of the District Court in Alaska for venue of that claim. 18 As has been previously briefed, the Miller Act “represents a congressional effort to protec 19|| persons supplying labor and material for the construction of federal public [works] in lieu of th 20|| protection they might receive under state statutes with respect to the construction of nonfedera [works].” U.S. for Use & Benefit of Walton Tech., Inc. v. Weststar Eng'g, Inc., 290 F.3d 1199 1205 (9th Cir. 2002) (citing Mai Steel Serv. Inc. v. Blake Constr. Co., 981 F.2d 414 , 416-17 □□□ 23} Cir.1992)). Because the Miller Act is “highly remedial in nature ... [i]t is entitled to a libera 24 construction and application in order properly to effectuate the Congressional intent to protec 5 those whose labor and materials go into public projects.” Weststar Eng’g, Inc., supra, 290 F.3d a 6 1205 (quoting United States ex rel. Sherman v. Carter, 353 U.S. 210, 216 (1957)). 7 Transfer of this action is in the interest of justice and would be consistent with Congress’ 28 intent in enacting the Miller Act. _3l IiI.Conclusion & Stipulation 2 Accordingly, counsel for the parties hereby agree and stipulate as follows: 3 b. That the above-captioned action shall be transferred to the United States District 4! Court, District of Alaska at Anchorage; 5 he That the Clerk of this Court shall send their file and other materials relating to this 6]| matter to the Clerk of the United States District Court, District of Alaska at Anchorage, upon the Court’s signing of the order herein. 9! Dated: 10/3/2022 ATKINSON, ANDELSON, LOYA, RUUD & ROMC Mis By: Lf ' = Michael J] Davis Attorneys for Use Plaintiff ASPHALT of SURFACING, INC. 14! pated: /0/3/2 22 BERLINER COWEN — 15 — “rOas By: ee 16 Micka Cheng 3 17 Attorneys for Defendants AHTNA DESIGNBUILD, INC. and GREAT AMERICAN 18 INSURANCE GROUP — 19 — 25 fPrepesed] ORDER Because a change in venue would be for the convenience of the parties and in the intere: of justice, venue is proper in Alaska, and the parties have so consented, the Parties Joir 33 Stipulation to Transfer Venue is hereby granted and this case is hereby transferred to the Unite States District Court, District of Alaska at Anchorage. 25 S. — 26 — 7 Hon. SUSAN VAN KEULEN 9g United States Magistrate Judge -4-