750 F.2d 759 (9th Cir. 1984), 83-2129, United States for Use and Ben. of Martin Steel Constructors, Inc. v. Avanti Constructors, Inc.

Docket Nº:83-2129.
Citation:750 F.2d 759
Party Name:UNITED STATES of America, for the Use and Benefit of MARTIN STEEL CONSTRUCTORS, INC., Plaintiffs-Appellees, v. AVANTI CONSTRUCTORS, INC., Defendant, and Harvis Construction, Inc., Seaboard Surety Company, and The Home Insurance Company, Defendants-Appellants.
Case Date:December 28, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 759

750 F.2d 759 (9th Cir. 1984)

UNITED STATES of America, for the Use and Benefit of MARTIN

STEEL CONSTRUCTORS, INC., Plaintiffs-Appellees,

v.

AVANTI CONSTRUCTORS, INC., Defendant,

and

Harvis Construction, Inc., Seaboard Surety Company, and The

Home Insurance Company, Defendants-Appellants.

No. 83-2129.

United States Court of Appeals, Ninth Circuit

December 28, 1984

Argued and Submitted Nov. 7, 1984.

David Schulmeister, Cades Schutte Fleming & Wright, Honolulu, Hawaii, for plaintiffs-appellees.

Robert Hines, San Francisco, Cal., for defendants-appellants.

Appeal from the United States District Court for the District of Hawaii.

Before HUG, TANG and SCHROEDER, Circuit Judges.

TANG, Circuit Judge:

I. OVERVIEW

Defendant Harvis Construction, Inc. (Harvis), appeals the district court's grant of summary judgment in favor of use plaintiff

Page 760

Martin Steel Construction, Inc. (Martin). Martin brought suit under the Miller Act, 40 U.S.C. Sec. 270a-270d, for unpaid amounts due on its contract to supply steel materials to subcontractor Avanti Construction, Inc. (Avanti). Harvis maintains that summary judgment was improper because Martin failed to prove its prima facie case, and also because the district court erred in not allowing Harvis a set-off defense. These assertions are based on evidence showing that Martin made late and non-conforming deliveries to Avanti. We reject Harvis' assertions of error and affirm the summary judgment.

II. FACTS

Harvis was the general contractor for the construction of an electric shop addition to a building at the Pearl Harbor Naval Shipyard, Honolulu, Hawaii. In accordance with 40 U.S.C. Sec. 270a, Harvis executed a bond, accepted by the United States, to protect material and labor suppliers working on the project.

Harvis then entered into a subcontract with Avanti, wherein Avanti agreed to perform the steel work at the site. Avanti entered into a contract with Martin for supply of steel-related materials to be used in its subcontract. The contract is a purchase order dated May 17, 1977.

In accordance with the contract, Martin supplied steel materials eventually used in the project. Affidavits and correspondence in the record show that many of the shipments from Martin to Avanti were delayed and/or defective. Avanti encountered financial difficulties, failed to complete its work and failed to pay Martin for all shipments made under the contract. Although some required repair or alteration, all goods delivered by Martin undisputedly were used in the project.

On April 11, 1979, Martin filed suit against Avanti, Harvis, and Harvis' sureties under the Miller Act, 40 U.S.C. Sec. 270a-270b, to recover on Harvis' bond the amounts owed by Avanti to Martin. Harvis answered and counterclaimed against Martin for damages resulting from alleged delays and defective shipments to Avanti, but allegedly damaging Harvis. Avanti never answered, and default judgment was entered against it on July 10, 1979. In May 1982, Avanti filed bankruptcy and was dismissed by Martin from this suit.

In December, 1980, Martin moved for judgment on the pleadings on Harvis' counterclaim. After a hearing, Judge Curtis originally denied the motion, but on April 10, 1981 granted the motion to dismiss the counterclaim. Judge Curtis based the...

To continue reading

FREE SIGN UP