United States v. Alpha Energy & Elec.

• Decision Date: 07 October 2022
• Docket Number: 2:18-CV-1182 JCM (EJY)
• Parties: UNITED STATES OF AMERICA, for the use and benefit of WELLS CARGO, INC., Plaintiff(s), v. ALPHA ENERGY AND ELECTRIC, INC. et al., Defendant(s).
• Court: U.S. District Court — District of Nevada

UNITED STATES OF AMERICA, for the use and benefit of WELLS CARGO, INC., Plaintiff(s),
v.
ALPHA ENERGY AND ELECTRIC, INC. et al., Defendant(s).

No. 2:18-CV-1182 JCM (EJY)

United States District Court, D. Nevada

October 7, 2022

ORDER

Presently before the court is third-party defendant Southwestern Construction (“Southwestern”)'s motion for summary judgment. (ECF No. 206). Third-party plaintiff Alpha Energy and Electric (“Alpha”), and the case's original defendant American Contractors Indemnity Company (“ACIC”) each filed a response (ECF Nos. 215; 218), to which Southwestern replied (ECF No. 227).

Third-party defendant Northcon, Inc. (“Northcon”) filed a notice of non-opposition and purports to join Southwestern's motion. (ECF No. 221). Alpha filed a response opposing that purported joinder. (ECF No. 226).

I. Background

This matter arises from construction contracts between contractor Alpha, subcontractor Southwestern, and project manager Northcon for a project at the Nellis Air Force Base in Nevada. On June 28, 2018, plaintiff Wells Cargo, Inc. (“Wells Cargo”), filed the original claim in this matter against Alpha and against Alpha's surety, ACIC.

On August 6, 2018, Alpha filed its third-party complaint against Southwestern and Northcon. (ECF No. 6). Alpha alleges that the subcontract between Alpha and Southwestern

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contains an indemnity provision wherein Southwestern indemnified Alpha for any damage arising out of supplier claims. (Id. at 9). Alpha further alleges that the project management contract between Alpha and Northcon required Northcon to manage, handle, review, and track all payments for subcontractors working on the project. (Id. at 8).

According to Alpha, Southwestern breached its contract with Alpha by failing to pay one of its suppliers, Wells Cargo, during the Nellis project. (Id. at 9). Alpha also alleges that Northcon breached its contract by failing to properly manage payment requests and applications under the Nellis project. (Id. at 8). Further, Alpha alleges that it is entitled to indemnification from both Southwestern and Northcon for any judgment against Alpha in favor of Wells Cargo in the underlying litigation. (Id. at 11).

On July 22, 2019, the court granted Wells Cargo's motion for summary judgment against Alpha in the amount of $134,814.76. (ECF No. 89). On August 19, 2019, ACIC and Wells Cargo entered into a settlement agreement and agreed to a complete settlement. (ECF No. 91). According to Alpha, the settlement amount is $149,955.64. (See ECF No. 174 at 3). On September 11, 2019, the parties stipulated to dismiss Wells Cargo as a party. (ECF No. 93).

Alpha made its initial disclosures to Southwestern and Northcon for its third-party action on October 10, 2018. (ECF No. 170-1). Where Alpha was required to disclose its calculation of damages, it provided an empty table listing “TBD” under the amount of damages. (Id. at 11). On February 13, 2019, Alpha supplemented its initial disclosures, but again provided “TBD” for the amount of damages. (ECF No. 170-2 at 12).

On December 12, 2019, Alpha again supplemented its disclosures, this time alleging $149,955.64 in special damages “[a]gainst Southwestern Construction, Inc. and Northcon, Inc.,” as well as $397.841.72 in special damages “[a]gainst Northcon, Inc.” (ECF No. 170-4 at 11). Alpha provided no calculation for these damages, and according to Southwestern, did not make available any documents or other evidence upon which those damages were based. When discovery closed on February 11, 2020, Alpha had still not provided a calculation of damages or any evidence supporting its damages.

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Granting a motion by Southwestern and Northcon, the court then imposed discovery sanctions precluding Alpha “from using any undisclosed and improperly disclosed evidence at trial” to support a calculation of damages. (ECF Nos. 183; 201). Functionally, this order prevents Alpha from disclosing evidence of any actual damages.

Southwestern now moves for summary judgment on all of Alpha's claims against it, arguing that since Alpha is precluded from offering evidence of damages, it cannot prevail on any of its contractual claims. (ECF No. 206). Alpha contends that the availability of nominal damages means Southwestern is not entitled to judgment as a matter of law. (ECF No. 215).

II. Legal Standard

The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “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). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 32324 (1986).

For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be entitled to a denial of summary judgment, the non-moving party must “set forth specific facts showing that there is a genuine issue for trial.” Id.

In determining summary judgment, the court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000). Moreover, “[i]n such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” Id.

By contrast, when the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an...