United States v. Rogers & Rogers

• Decision Date: 22 April 1958
• Docket Number: 19769.,Civ. No. 19487
• Citation: 161 F. Supp. 132
• Court: U.S. District Court — Southern District of California
• Parties: The UNITED STATES of America for the Use and Benefit of the LOS ANGELES TESTING LABORATORY [in No. 19487], for the Use and benefit of D. L. Holliday [in No. 19769], Plaintiff, v. ROGERS & ROGERS, a partnership, Charles John Rogers, Earl Granville Rogers, Fidelity and Casualty Company of New York, a corporation, Defendants. Charles John ROGERS and Earl Granville Rogers, formerly partners doing business as Rogers & Rogers, Counterclaimants, v. The LOS ANGELES TESTING LABORATORY, a corporation, D. L. Holliday and H. L. Gogerty, Counterdefendants.

161 F. Supp. 132

The UNITED STATES of America for the Use and Benefit of the LOS ANGELES TESTING LABORATORY in No. 19487, for the Use and benefit of D. L. Holliday in No. 19769, Plaintiff, v. ROGERS & ROGERS, a partnership, Charles John Rogers, Earl Granville Rogers, Fidelity and Casualty Company of New York, a corporation, Defendants.

Charles John ROGERS and Earl Granville Rogers, formerly partners doing business as Rogers & Rogers, Counterclaimants, v. The LOS ANGELES TESTING LABORATORY, a corporation, D. L. Holliday and H. L. Gogerty, Counterdefendants.

Civ. Nos. 19487, 19769.

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

April 22, 1958.

Gordon, Knapp & Gill, Los Angeles, Cal., for plaintiff and counterdefendant Los Angeles Testing Laboratory.

William J. Johnston and Ben M. Shera, Los Angeles, Cal., for plaintiff and counterdefendant D. L. Holliday.

Max Tendler and Andrew J. Weisz, Los Angeles, Cal., for defendants and counterclaimants Rogers and Rogers and defendant the Fidelity & Casualty Co. of New York.

John E. Glover, Los Angeles, Cal., for counterdefendant H. L. Gogerty.

MATHES, District Judge.

These actions were brought in the name of the United States, pursuant to § 2 of the Miller Act 49 Stat. 794 (1935), 40 U.S.C.A. § 270b, by the Los Angeles Testing Laboratory and D. L. Holliday, suppliers of labor and materials for a Government school-construction project, against the partnership of Rogers and Rogers, prime contractor for the project, and its surety see Miller Act § 1, 49 Stat. 793 (1935), 40 U.S.C.A. § 270a.

In each action the defendant prime contractor has answered and asserted a counterclaim against the plaintiff materialmen and the Government's architect for the project, the latter being brought in as an additional party counterdefendant pursuant to Rule 13(h) Fed.R.Civ.P. 13(h), 28 U.S.C..

Briefly put, the factual background is this. Holliday supplied transit-mix concrete for the project, and is suing for the balance due on the purchase price. The Los Angeles Testing Laboratory was designated by the Government architect and retained by the prime contractor to test and inspect the concrete, and is suing for the balance of its fee.

The prime contractor alleges in the counterclaim that certain concrete furnished by Holliday was not up to specifications; that this was not brought to the prime contractor's attention until after the concrete had been incorporated into the building; that the furnishing and incorporation into the building of this sub-standard concrete was due to negligence on the part of one or more or all the counterdefendants; that as a result of the concrete's failure to meet specifications the architect ordered the work stopped; that in order to secure approval of the work and have the stop-work order withdrawn, corrective measures were required which, together with the consequent delay, caused substantial expense for which the prime contractor seeks judgment against the counterdefendants.

The counterdefendant architect now moves in the alternative for judgment on the pleadings or for summary judgment on the counterclaim. Inasmuch as various affidavits and other matters of record outside the pleadings have been presented to and considered by the court, the motion must be treated as one solely for summary judgment. Fed.R. Civ.P. 12(c).

Although not raised by any of the parties, there is confronted at the outset the question, as yet undecided in this Circuit, whether this court has jurisdiction of the prime contractor's counterclaim as against the brought-in counterdefendant architect. That claim, not being one for labor or material furnished in the performance of a contract with respect to which a payment bond is required by § 1 of the Miller Act 40 U.S.C.A. § 270a, does not arise under that Act; nor does diversity of citizenship exist between the counterclaimant contractor and the counterdefendant architect 28 U.S.C. § 1332.

As to the plaintiff materialmen, the counterclaim is clearly a compulsory one Fed.R.Civ.P. 13(a) over which this Court has jurisdiction ancillary to original jurisdiction under the Miller Act, so no independent jurisdictional ground is essential to support the counterclaim as against the materialmen. Moore v. New York Cotton Exchange, 1926, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750. And the better reasoned cases hold that ancillary jurisdiction which will support a compulsory counterclaim against one or more counterdefendants also extends to additional parties counterdefendant brought in under Rule 13(h), so no independent or separate ground of federal jurisdiction is necessary as to such additional parties. United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 1955, 221 F.2d 213; United States for Use and Benefit of Jones Contracting Co. v. Skilken, D.C.N.D.Ohio 1943, 53 F.Supp. 14; see Ciechanowicz v. Bowery Savings Bank, D.C.S.D.N.Y.1956, 19 F.R.D. 367. Contra, McNaughton v. New York Central R. Co., 7 Cir., 1955, 220 F.2d 835, 840.

The apparent holding to the contrary in Reynolds v. Maples, 5 Cir., 1954, 214 F.2d 395, 399, has been distinguished on the ground that there the court might have thought the counterclaim was not compulsory. United Artists Corp. v. Masterpiece Productions, Inc., supra, 221 F.2d at page 217, note 4. In any event, doubt is cast upon the authority of the jurisdictional holding in Reynolds v. Maples by the recent ruling of the Fifth Circuit that a cross claim under Rule 13 (g) is to be considered ancillary to the main action and so maintainable without any independent ground of federal jurisdiction. Childress v. Cook, 5 Cir., 1957, 245 F.2d 798, 802-805.

Accordingly I hold that this Court has jurisdiction over the counterclaim asserted against the architect, and now proceed to consider on the merits his motion for summary judgment.

The record before the Court on the pending motion establishes without contradiction that the architect was contractually obligated to the United States to prepare plans and specifications for and supervise the construction of the school building involved. This record further shows beyond dispute that under the prime contractor's agreement with the Government the architect had not only the general supervision and direction of the work, but also the authority to stop the work whenever that might be necessary to insure specified performance.

The gravamen of the prime contractor's counterclaim as against the architect is negligent supervision: that the architect negligently construed and interpreted reports of tests on the concrete in question; that he then negligently approved bents (pre-formed structures which when hoisted into place form the skeleton of the building) made of that concrete, when in fact, as he should have known, the concrete failed to meet...