United States District Court, D. Colorado
UNITED STATES, ex rel. EL PASO GLASS COMPANY, INC., Plaintiff,
DAVID BOLAND, INC., a Florida corporation, and WESTERN SURETY COMPANY, a South Dakota corporation, Defendants.
ORDER GRANTING DEFENDANTS' REQUEST FOR A
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion to
Dismiss the Amended Complaint or Alternatively to Stay this
Action. (Doc. # 10.) For the following reasons, the Court
grants Defendants' request for a stay pending the
parties' completion of their contractually-mandated
August 29, 2017, Plaintiff El Paso Glass Company, Inc.
commenced this action bringing Miller Act and breach of
contract claims against Defendants David Boland, Inc. and
Western Surety Company (Defendants). Plaintiff served as the
subcontractor on a construction project for which Boland,
Inc. was the general contractor. Plaintiff generally contends
that Defendants owe Plaintiff $40, 000.00 for work that
Plaintiff performed in accordance with the parties'
Subcontract Agreement (the Subcontract). Defendants dispute
Plaintiff's claims, contending that Defendants are
lawfully withholding payment in part because Plaintiff caused
significant property damage to the construction project,
costing approximately $80, 000.00.
October 18, 2017, Defendants filed a motion to either dismiss
Plaintiff's Complaint under Federal Rule of Civil
Procedure 12(b)(6) or to stay this action on the grounds that
the parties have yet to engage in mediation as required by
the Subcontract. (Doc. # 10.) Plaintiff does not dispute that
it failed to engage in mediation prior to filing this lawsuit
but nonetheless objects to a dismissal or stay of this
action. (Doc. # 18.)
MOTION TO STAY
Court has “broad discretion to stay proceedings as an
incident to its power to control its own docket.”
Clinton v. Jones, 520 U.S. 681, 706 (1997) (citation
omitted). In deciding whether a stay should be granted, the
Court is guided by the factors of judicial economy and
convenience for the Court, for counsel, and for the parties.
See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
The decision calls for the exercise of sound judgment,
weighing competing interests and maintaining an even balance.
Commodity Futures Trading Comm'n v. Chilcott
Portfolio Mgmt., Inc., 713 F.2d 1477, 1483 (10th Cir.
1983); see also Kansas City So. R. Co. v. United
States, 282 U.S. 760, 763 (1931).
their motion, Defendants argue that the parties'
Subcontract expressly requires Plaintiff's claims be
submitted to mediation procedures before initiating suit and
provides for a stay of all litigation against Defendants
until completion of those procedures.
Subcontract states in relevant part:
Any claim arising out of or related to the Subcontract
Agreement, other than those subject to Paragraph 13A, above,
shall be submitted to the Contractor for an initial decision
in its sole discretion. Thereafter, should Subcontractor
disagree with the Contractor's decision, such claim shall
be subject to non-binding mediation, to be held in Orange
County, Florida, as a condition precedent to the institution
of legal or equitable proceedings by either party. . . . No
legal or equitable proceeding may be filed until the
conclusion of the mediation process and the Subcontractor
agrees that it will stay any such proceeding that is
instituted until the completion of mediation.
(Doc. # 10-1 at 7.) The Contract further provides that
If the Prime Contract incorporated herein is one for which
the Contractor has provided any bond(s) pursuant to 40 U.S.C.
§ 270a, the “Miller Act, ” . . . then the
Subcontractor expressly agrees to stay any action or claim
under this Subcontract Agreement against the Contractor and
against the Contractor's surety and its Payment Bond and
Performance Bond pending the complete and final resolution of
. . . the Subcontract Agreement's mediation procedure, as
required by Paragraph 13, above.
Court finds these provisions clearly and unequivocally state
that an attempt at mediation, among other things, is required
before commencing an action in this Court. See Equity
Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv.,
Inc., 556 F.3d 1232, 1242 (11th Cir. 2009) (Under
Florida law, “[m]ediation clauses, like arbitration
clauses, are contractual in nature, and construction of such
provisions is a matter of contract interpretation.”);
3-J Hospitality, LLC v. Big Time Design, Inc.,
09-cv-61077, 2009 WL 3586830, *1 (S.D. Fla. Oct. 27, 2009)
(“In interpreting a contract under Florida law,
[courts] give effect to the plain language of contracts when
that language is clear and
unambiguous.”). The Court also finds that the Subcontract
expressly provides that this action must be stayed pending
the conclusion of the outlined mediation procedures.
undisputed that no mediation has occurred or even been
attempted in this case. Indeed, Plaintiff does not dispute
the validity of these provisions and acknowledges that they
require mediation and the imposition of a consequent stay.
Plaintiff instead argues that Defendants have waived the
Subcontract's mediation requirements and/or that those
requirements are futile. In support of its contentions,
Plaintiff merely highlights instances where Defendants
disputed Plaintiff's requests for payment or did not take
Plaintiff's calls. (Doc. ## 18-2, 18-3, 18-4.) ...