United States v. ABC Roofing & Siding, Inc.

• Decision Date: 14 April 1961
• Docket Number: No. 583-60.,583-60.
• Citation: 193 F. Supp. 465
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America for the Use and Benefit of PRE-FAB ERECTORS, INC., a California corporation, Plaintiff, v. A. B. C. ROOFING & SIDING, INC., a Washington corporation, United Pacific Insurance Company, a Washington corporation, and American Re-Insurance Company, a New York Corporation, Defendants.

193 F. Supp. 465

UNITED STATES of America for the Use and Benefit of PRE-FAB ERECTORS, INC., a California corporation, Plaintiff, v. A. B. C. ROOFING & SIDING, INC., a Washington corporation, United Pacific Insurance Company, a Washington corporation, and American Re-Insurance Company, a New York Corporation, Defendants.

No. 583-60.

United States District Court S. D. California, Central Division.

April 14, 1961.

John W. Bunnett, South Gate, Cal., for plaintiff.

Maurice H. Wallbert, Los Angeles, Cal., for defendants United Pac. Ins. Co. and American Re-Insurance Co.

WESTOVER, District Judge.

The complaint in this action was filed on May 20, 1960. Jurisdiction is conferred under §§ 270a and 270b of Title 40 U.S.C.A. (The Miller Act).

Section 270b(b) provides in part as follows:

"* * *, but no such suit shall be commenced after the expiration of one year after the date of final settlement of such contract. * *"

In the case at bar final settlement was made on May 20, 1959.

The question before the Court is whether the complaint was filed after expiration of one year from the date of final settlement.

In 1943 a Judge of this Court, Honorable J. F. T. O'Connor, in United States for Use of Strona v. Bussey, 51 F.Supp. 996, 998 (an action "on all fours" with the case at bar), interpreted the term "after the expiration of one year" to mean a calendar year and held that where final settlement was on July 9, 1942 a complaint filed on July 9, 1943 was filed too late.

However, Rule 6 of the Federal Rules of Civil Procedure, 28 U.S.C.A., is as follows:

"(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. * * *"

The Miller Act is an "applicable statute" within contemplation of Rule 6. The two most recent cases construing application of the rule seem to be United States to Use of Engineering and Equipment Company v. Wyatt, D.C., 174 F. Supp. 260 and Prince v. United States, D.C., 185 F.Supp. 269.

In the case at bar the complaint was filed timely, if the first day of the year involved is excluded in accordance with Rule 6. Consequently, it is the finding of the Court that the within action was commenced within one year after the date of final settlement.